Director of Public Prosecutions v Spacho
[2021] VCC 1351
•15 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 19-01380
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIKOLA SPACHO |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 September 2021 |
DATE OF SENTENCE: | 15 September 2021 |
CASE MAY BE CITED AS: | DPP v Spacho |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1351 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cultivate a commercial quantity of cannabis; deportation risk; COVID-19; specific deterrence and community protection, general deterrence; denunciation and just punishment
Legislation Cited: Section 5(2H) Sentencing Act 1991 (Vic); Section 501(3A) of the Migration Act 1958 (Cth); Section 6AAAA Sentencing Act 1991 (Vic); s18 of the Sentencing Act 1991 (Vic)
Cases Cited:R v Worboyes [2021] VSCA 169; R v Verdins [2007] VSCA 62
Sentence:19 months imprisonment with a non-parole period of 11 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding | Office of Public Prosecutions |
For the Accused | Mr W. Barker |
HIS HONOUR:
1Nikola Spacho, you have pleaded guilty on indictment K1009207 to a charge of cultivate a commercial quantity of cannabis, for which the maximum penalty is 25 years. This is also a Category 2 offence, which means that pursuant to s5(2H) of the Sentencing Act 1991 (Vic) unless you can satisfy one of the various statutory exceptions I must impose a period of imprisonment, but not one involving a period of imprisonment combined with a community corrections order. It was not argued on the plea that any of the statutory exceptions apply in this case.
2At the time of the offending you were aged 46 and 47. You are now 50 years old. You were living with your wife, Silvana, at 57 Fulham Way, Wollert.
3The background of this matter is that after police discovered a crop house in Ringwood, they began investigating your co-offenders, Martin Schulz and Armando Delia, for their role in that cultivation. The investigation revealed that they were involved in cultivation of large commercial quantities of cannabis in five houses across metropolitan Melbourne.
4One of the addresses investigated was Unit 1, No.411 St Kilda Street, Brighton. This is where you, Mr Spacho, came to the attention of police due to your regular attendance at the property, which was captured on a lawfully installed optical surveillance device. Additionally, incriminating telephone conversations between you and Mr Schulz were recorded on a lawful telephone intercept from 14 July 2018.
5The property at Unit 1, 411 St Kilda Street is a four-bedroom unit owned by Ms Adi Bzezinshi. She never lived there. It was managed by
Mr Robert Yakabov, who was to furnish the property and then rent it.The Offending
6The facts of your offending are set out in the prosecution opening, which was tendered as an exhibit on the plea. I will briefly summarise those facts.
7On 31 August 2018 police executed a search warrant at the St Kilda Street property and found a sophisticated hydroponic cannabis setup with mature cannabis plants in four rooms of the house. An electricity meter bypass was located in the roof cavity, feeding lighting and other electrical equipment. The setup of the crop included the following features:
· A run to waste irrigation system;
· 'Water ring' horseshoe shaped irrigation units;
· Brown plastic barrel nutrient solution reservoirs in a central location which were interconnected by a length of hosing;
· Double layer wire mesh to support the plants;
· Grow lights with rectangular shades; and
· Light management units connected to external timers.
8A total of 23 cannabis plants were seized, all of which were close to mature female plants ranging in height from 150 to 200 centimetres. The total weight of the plants seized was 151.36 kilograms. This is 6.05 times the threshold for the commercial quantity of cannabis, which is 25 kilograms or 100 plants.
9As to your role the prosecution case is that between 14 July and 31 August 2018 you were involved in the monitoring and maintenance of this crop house with Mr Delia and Mr Schulz. It is not suggested you played any role in establishing the hydroponic equipment or the crop within the premises.
10In intercepted phone calls with Mr Schulz between 14 July and 26 August 2018 you discussed with him the state of the plants at the address, the various tasks required for the tending of the crop, repairs that needed to be done to the property and equipment and your respective visits to the property. During the relevant period you used two mobile phones: one in your name and the other registered in the name of Mokhamad Nur.
11The optical surveillance device installed shows you attending the property on the following days:
·2 August 2018 - you arrived at 7.26 pm and remained until 10.38 pm;
·3 August 2018 - you arrived at 3.36 pm and remined until 3.55 pm;
·5 August 2018 - you arrived at 1.58 pm and remained until 2.24 pm. You took a rubbish bin to the nature strip before leaving. You phoned Schulz twice whilst you were there and told him that you were at the house;
·6 August 2018 - you arrived at 2.35 pm and took the garbage bin inside the gate of premises. You remained until 2.46 pm. Earlier that day, at 12.13 pm in an intercepted call, Mr Schulz directed you to bring the bins inside;
·8 August 2018 - you arrived at 2.26 pm and remained until 4.17 pm. At 4.13 pm you spoke to Schultz on the phone about watering and that the pumps were not working;
·10 August 2018 - you arrived at 5.58 pm and remained until 6.14 pm. At 6.09 pm you spoke to Schulz on the phone and told him the pumps in which the medicine is mixed had burnt out;
·12 August 2018 - you arrived at 1.52 pm and remained until 3.41 pm. At 3.37 pm you spoke on the phone to Schulz and told him you had watered the plants, taken out the rubbish, and that one of the pumps was broken again. You said you had unsuccessfully tried to fix it;
·13 August 2018 - you arrived at 5.16 pm and remained until 5.23 pm. You were wearing a blue latex glove when you left. In a call between you and Mr Schulz you said that you had bought tube for the air and lengthened it, as it did not previously reach. You confirmed that the plants had water and everything was looking good;
·18 August 2018 - you arrived at 7.47 am and remained until 7.54 am;
·19 August 2018 - you arrived at 6.53 am and remained until 7.56 am;
·20 August 2018 - you arrived at 5.54 pm and remained until 6.22 pm. At 6.18 pm, in a phone call with Mr Schulz, you said you were at the property and had cleaned up. You thanked Mr Schulz, who told you that you did not have to notify him of everything and that you were learning the profession for yourself and not for him;
·22 August 2018 - you arrived at 10.42 pm and remained until 10.49 pm. In a telephone call at 2.08 pm the following day you told Mr Schulz you had been at the house on the 22nd and that the tips in one room had started to yellow and that you had washed and filled them all because the yellowing had been happening for about a week;
·On 27 August 2018, at 10.37 pm, Mr Schulz and Mr Delia were captured entering the premises via an unlocked door. They left at 10.46 pm without locking the door. About a minute later you left, locking the door behind you.
12In subsequent forensic testing your DNA was located on the inner surface of the palm and finger regions of the left glove of a pair of gardening gloves seized from the property.
13You were interviewed for the offending on 19 March 2019. You made a no comment interview.
Seriousness of Offence
14Mr Spacho, it is clear from the appellate authorities for offences such as this that general deterrence is the primary sentencing purpose and that the quantum of cannabis involved is a very significant matter in sentencing. Of course the role played by the offender is also another important matter which requires analysis.
15The maximum penalty of 25 years' imprisonment and the status of this offence as a Category 2 offence reflect the serious nature of the offence of cultivating a commercial quantity of cannabis. In this case the quantity of drugs in the charge is 6.05 times the commercial quantity threshold by weight, although the number of plants seized falls below the 100-plant threshold. This is a significant quantity worth a lot of money. The profits involved in such offending are substantial. The set up was a typically sophisticated hydroponic crop requiring ongoing attention, which you provided. Such offending is prevalent.
16You were not a principal. You took directions from your co-offender, Schulz, who himself was not sentenced as the principal, however the optical surveillance device and the intercepted calls demonstrate you were an enthusiastic and active participant in this cultivation; attending the property on many occasions in the six-week charged period, performing essential tasks and monitoring the crop. In my opinion it is apparent from the calls with Mr Schulz, and from your DNA on the gardening glove, that you were actively involved in the cultivation of the plants and you performed other maintenance tasks. It seems from the intercepted calls you were engaged in learning the skills involved in such an enterprise. You were in close contact with Schulz, who placed trust in you in relation to this crop. The charged period of the offending covers approximately six weeks and you attended the property regularly in that time and also had regular phone calls with Mr Schulz about the property. In my opinion, whilst there is no direct evidence of remuneration the inference that you were doing this in the expectation of financial gain is inescapable.
17Mr Barker has submitted that your offending in this case is at the bottom level. I accept that you were at the bottom of the hierarchy for this offending, and acted on direction, but the regular visits you undertook, the tasks you performed, and the level of trust placed in you by the co-offenders all indicate your role was integral to this successful crop.
18You made a decision to take the risk and become involved in this illegal criminal enterprise. In my opinion it is clear from the calls with Mr Schulz that you were an enthusiastic and eager to please participant in this enterprise with a close association to the crop and the hydroponic set up. Your moral culpability is significant for the role that you played.
Parity
19Your co-offenders in this matter, Mr Schulz and Mr Delia, were dealt with by Her Honour Judge Quin for a commercial quantity cultivation charge that took place in this property and several others. Mr Schulz was sentenced to five years and eight months with a non-parole period of three years. Mr Delia was sentenced to six years and six months with a non-parole period of four years' imprisonment. Their criminality was vastly more significant than yours. Considerations of parity are of no real weight, given the very different circumstances and the multiple cultivations involved for the co-offenders.
Personal Circumstances
20I turn to your personal circumstances.
21You were born in Albania on 19 July 1971. You moved to Greece later on with your family in 1997. You grew up with both parents and your younger brother. Your younger brother remains in Albania and you are close to him. You arrived in Australia in 2016 and in Australia you met your wife, Silvana. You got married in 2017. You have been living with Silvana and her son, Izaiah, who was aged 14 at the time, the reference material was written.
22You were educated in Albania to the equivalent of Year 10. After school you worked for a while at a factory before completing military training for 18 months based on a remote island.
23In the early 1990s you operated your own carpet supply and installation business for about five years. After this you worked in a transport company delivering furniture items into Albania for approximately 14 years. You also worked at your local church.
24In 1997 you moved from Albania to Greece due to political unrest in Albania. You had previously travelled to Greece frequently in the transport business. In Greece you worked organising funeral services.
25You married your first wife in 1993. She moved to Greece with you. You have a daughter with her, whose name is Maria, who is now aged 24 and who is still living in Greece. Your daughter provided a reference on your behalf. She attests to your good character, kindness to others, work ethic, and that you have always been a good father to her.
26You came to Australia in 2016 for a holiday. After meeting Silvana, you decided to stay and get married. Just prior to the pandemic Silvana purchased a café. This is apparently the family's sole source of income. You are not allowed to work on your visa and you are also not entitled to Centrelink benefits. You help Silvana with the business. Your family has endured financial stress in the pandemic.
27The circumstances in which you came to be involved in this offending are not entirely clear but I am told you met Mr Schulz, who is also from Albania, and because you both spoke Albanian and because you were somewhat isolated due to your lack of English, you then spent periods of time with him and later became involved in the offending.
Guilty Plea
28You pleaded guilty to the charge on the indictment at a mention held a few weeks after a sentencing indication hearing. At that hearing I had indicated that I was likely to impose a period of immediate imprisonment. The matter had been listed for trial in February of this year but that trial did not proceed due to the pandemic. The matter was referred off for emergency case management and made its way before me as a sentence indication. Whilst this was not an early plea the utilitarian value of the plea is substantial. You have not cross-examined any witnesses in this matter. The issue in contention was always limited to your intention or awareness of a commercial quantity.
29You have entered a plea at a time when the court faces very substantial trial backlogs as a result of the disruption caused to the court's listings by the pandemic. In the case of Worboyes [2021] VSCA 169 the Court of Appeal said this of the increased utilitarian value of a guilty plea in the present circumstances:
'Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
30I accept your guilty plea indicates remorse for the offending and a willingness to facilitate the course of justice.
Remorse
31Additional evidence of remorse can be found in the reference material; particularly those references tendered from Mr Tegkos and your daughter, Maria.
Mental Health
32You have been seeing a psychologist, Dr Peter Kyriakoulis, who has diagnosed you as suffering from an adjustment disorder with anxiety and depressed mood. He suggests your mental health conditions will increase the burden of your incarceration. Your mental health issues are partly due to the pressure of the criminal proceedings.
33It was submitted, based on the report of Dr Kyriakoulis, that principle five of the Verdins principles applies. Ms Goding accepted there should be some moderation of sentence based on the increased burden of your incarceration by reason of your mental health. I have taken this into account as a mitigating circumstance in your case.
Deportation
34You are currently the holder of a bridging visa pending an application for a partner visa. This visa does not entitle you to work or to receive benefits. You are clearly at risk of deportation because of this offence. A sentence of 12 months or more triggers the automatic cancellation of your visa pursuant to s501(3A) of the Migration Act. You would have appeal rights against any such cancellation but the spectre of deportation would loom large following a sentence of that duration. I accept the risk of deportation has and will cause hardship to you during your sentence because of the uncertainty about whether you will be deported at the end of your sentence, as well as anxiety at the prospect of a period in immigration detention. In your situation, now married and settled in a relationship in Australia, I take into account that the loss of the opportunity to settle permanently in Australia will be an additional punishing consequence.
35Your wife, Silvana, indicated in evidence that she intends to stay with you and would move to live with you if you are deported. This is no doubt of comfort to you but in my opinion does not substantially reduce for you the uncertainty of your future.
COVID-19
36I take into account the impact of the COVID-19 pandemic creating uncertainty in the community, as well as restricted conditions in the prison which include the suspension of visits and other restrictions. These conditions will make imprisonment for you more onerous. I accept that the suspension of visits will weigh particularly heavily on you, given your limited English and your relative isolation in this country. I have also had regard to the fact this is your first sentence of imprisonment separating you from your wife, Silvana, who suffers from a range of health issues which are set out in the material filed. These matters add to the weight of the sentence on you.
Current Sentencing Practices
37I discussed with counsel on the plea various comparative sentences, including the County Court sentence of Judge Cahill that Mr Barker had filed as part of the defence material. There are many comparative cases for offending such as this. Current sentencing practices are one factor amongst many I must have regard to in formulating the sentence, but they are not the determinative factor. They are a guide but not a controlling factor.
Rehabilitation
38You were charged on 19 March 2019. You were granted bail. You have remained on bail since then. You have not re-offended. You have been living with your wife, Silvana, and working in her cafe in that period. You have been seeing a psychologist for a year to address the mental health issues that have arisen since you were charged. I have received character references from your wife, Silvana, your stepson, Izaiah, your daughter, Maria, your mother in law, Carmel Tsani, and a friend, Mr Chris Tegkos; all of whom attest to your unblemished record, your work ethic and your good character. They describe you as caring, respectful and a good man. Your wife also gave evidence that you have been a dedicated partner to her and a positive role model to her son, whose relationship with you has been the best thing that has happened to her along with the birth of her son. The experience of waiting for these matters to be finalised has negatively affected her health.
39You have no criminal history. You have strong family support and you can assist your wife in the cafe she runs. You have complied with your bail conditions for about 30 months now. You have demonstrated a capacity to rehabilitate. On the issue of delay I accept that this matter has been hanging over your head for a lengthy period of time and this has weighed heavily on you.
40I sentence you on the basis you have very good prospects of rehabilitation and that your rehabilitation is of importance in formulating the sentence in this case.
Sentencing Principles
41In sentencing you I must have regard to a range of different factors. As I have already said, general deterrence is of the utmost importance. So too are denunciation and just punishment. This is a prevalent offence and many of the offenders that come before the courts play a secondary role in the cultivation. People who assist are needed to perform important tasks and limit the risks of detection to those higher up the chain. Those who might participate in such offending must understand that significant prison sentences will be the result if they are caught. Specific deterrence is of less significance in your case, given your circumstances and the mitigating matters that I have set out, including your positive prospects of rehabilitation.
42Mr Spacho, I have attempted to balance the gravity of this offending with the mitigating features that apply. I am about to sentence you now, Mr Spacho.
Sentence
43On the charge of cultivate a commercial quantity of cannabis you are convicted and sentenced to 19 months' imprisonment. I fix a non-parole period of 11 months.
Pre-Sentence Detention & s 6AAA
44I declare pre-sentence detention pursuant to s18 of the Sentencing Act for two days to be deducted from the sentence and I indicate, pursuant to s6AAA of the Sentencing Act, that but for your plea of guilty I would have sentenced you to a period of imprisonment of 30 months with a minimum of 20 months. Are there any other orders required?
45MR BARKER: No, Your Honour.
46MS GODING: I don't believe that there are, Your Honour.
47HIS HONOUR: I don't think there are any ancillary orders in this matter. All right, thank you both for your assistance and I'll now adjourn until 10.30. You can stay on the link, Mr Barker, if you want to speak to Mr Spacho?
48MR BARKER: Thank you, Your Honour.
49HIS HONOUR: All right.
50MR BARKER: If the interpreter can stay as well?
51HIS HONOUR: Yes.
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