Director of Public Prosecutions v Sylejmani

[2021] VCC 1914

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00772

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANIT SYLEJMANI

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2021
DATE OF SENTENCE:	24 November 2021
CASE MAY BE CITED AS:	DPP v Sylejmani
MEDIUM NEUTRAL CITATION:	[2021] VCC 1914

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Traffick commercial quantity of controlled drug - possess drug of dependence - possess false document

Legislation Cited:     Sentencing Act 1991 (Vic), Criminal Code (Cth)

Cases Cited:            

Sentence:7 years' imprisonment with non-parole period 4 years and 6 months' imprisonment, $1000 fine

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms J. Swiney	Commonwealth Office of Public Prosecutions
For the Accused	Mr T. Antos	Nelson Brown Legal

HIS HONOUR:

1Granit Sylejmani, you have pleaded guilty to a charge of trafficking in a commercial quantity of a controlled drug contrary to the Commonwealth Criminal Code, to a charge of possessing a drug of dependence - namely, cannabis - and to a charge of possessing a false document – namely, a false NSW driver's licence. The latter two charges arise under Victorian state legislation.

2The maximum penalty for the offence of trafficking in a commercial quantity of a controlled drug is imprisonment for life.  The maximum penalty for the offence of possessing cannabis is imprisonment for five years or a fine of 400 penalty units, or both; and for possessing a false document the maximum penalty is imprisonment for 10 years.

3The circumstances of the offending are well described in the summary of prosecution opening which is an exhibit in the plea hearing.  No issue has been taken with the contents of that document.  The facts can be summarised as follows.

4At 7 am on 19 February 2020, Australian Federal Police officers executed a search warrant at your residence in Bentleigh East that you shared with your housemate, Arianit Hajzeri.  During the search police found a significant amount of cocaine and drug paraphernalia in various locations throughout the house, as well as a NSW driver's licence displaying your photograph with a false name.

5During the search of the premises, police located three blocks of cocaine in the laundry (later analysed to have a purity of 62.6 per cent), two plastics bags of broken up or loose cocaine in the kitchen, and three plastic bags of cocaine in the bedroom occupied by Hajzeri.

6Trace amounts of cocaine were located on numerous items such as plates and knives in the kitchen.  Drug paraphernalia including a vacuum sealing machine, numerous vacuum sealing bags and a cocaine testing kit were located throughout the residence.

7The total weights of cocaine seized from the various locations in the premises are: in the laundry, a total of 1,866.2 grams of pure cocaine; in the kitchen, a total of 497.7 grams of pure cocaine; and in the bedroom occupied by Hajzeri, a total of 197.5 grams of pure cocaine.

8That makes a total found on the premises of 2,561.4 grams of pure cocaine. The minimum commercial quantity for cocaine under the Commonwealth Criminal Code is two kilograms. The cocaine found on the premises was more than half a kilogram over the minimum for the commercial quantity of cocaine.

9A search of the laundry resulted in the seizure of three blocks of white powder wrapped in black plastic located inside a shoe box within a pile of clothing to the left of the sink.  Next to the sink on the counter was a blue hydraulic press.  Fingerprints belonging to both yourself and Hajzeri were identified on the hydraulic press.  Trace items of cocaine were also located on the hydraulic press.

10In the kitchen, a search revealed two plastic bags containing white blocks of powder, both of which appeared to be somewhat broken up, one located inside a frying pan and one inside a silver pot in a cupboard.  The bags of cocaine in the kitchen were analysed.  That in the frying pan was found to contain 268.2 grams of pure cocaine, and that in the silver pot, 229.5 grams of pure cocaine, making a total of 497.7 grams.

11Additionally, the following items were found in the kitchen:  a roll of silver duct tape matching that which was wrapped around one of the blocks of cocaine in the laundry with trace amounts of cocaine on it; and a cocaine-purity testing kit located openly on the counter.  The cocaine testing kit displayed the words 'Cocaine purity' labelled on it.

12In a cupboard a large, uncovered glass plate was located with white powder on it which was tested and found to be trace amounts of cocaine.  Under the sink, another plate with white powder was located, along with two Myki cards and a rolled-up $10 note.  The powder was tested and found to contain trace amounts of cocaine.

13From the same cupboard as the plate with the Myki cards, a Coles brand shopping bag was located with numerous small Clip Seal deal bags inside.  In a Myer-branded plastic bag hanging off the cupboard door near the sink were two silver scales, one medium-sized and one small, with traces of white powder on them.  The powder was tested and found to contain traces of cocaine.

14In the bedroom occupied by Hajzeri, a search revealed three plastic bags of white powder, one being an unsealed freezer bag and two being plastic vacuum-sealed bags.  These were located in the bottom drawer of the dresser in the bedroom.  The bags had varying layers of plastic on them.  The three bags of white powder were found to contain variously 18.4 grams of pure cocaine, 146.1 grams of pure cocaine and 33 grams of pure cocaine, making a total of 197.5 grams.

15In the unoccupied bedroom of the house, a vacuum-sealing machine was seized, as were two boxes of vacuum-sealable bags consistent in appearance with the wrappings of two of the bags of cocaine found in Hajzeri's bedroom.

16During the course of the execution of the search warrant on 19 February 2020, you stated to the police that you had moved into the premises about three or four months previously.  You lived there with you friend, Hajzeri.  You were aware of the blocks of drugs in the laundry.  You had been given the blocks by another male who asked you to store them at your house.  In return for storing the drugs, he would give you 50 grams of cocaine as payment.  You did not know the name of the male who asked you to store the drugs.

17On 5 May 2020, you participated in a recorded interview.  Essentially you told police the same story with elaborations.  You claimed that you were responsible for the drugs in the house and that you had not intended to sell any of the drugs, merely to hold them for the unnamed gentleman who had provided you with them in exchange for an expectation of 50 grams of cocaine for your own use.

18At the plea hearing I indicated to your counsel that I was not inclined to accept your explanation as to the nature of the trafficking offence.  Your counsel did not present arguments as to why I should do so beyond saying that what you told police was consistent with your instructions to him as to what occurred.  In relation to the cannabis, you said you had obtained that through ‘a few people’ and you accepted ownership.

19Mr Hajzeri appeared before this court on 4 August of this year and pleaded guilty to an offence of possessing a drug of dependence.  He was sentenced to imprisonment for 77 days, which was time that he had already served.  I was told that the relevant drug was the cocaine found in Hajzeri's bedroom.  There is no comparison between the Charge 1 against you and the much less serious offence of possessing a drug of dependence to which Mr Hajzeri pleaded guilty.

20As to Charge 2 on the indictment, the total weight of the cannabis found was 308.3 grams. 

21As to Charge 3 on the indictment, a search of your bedroom resulted in the seizure of a NSW driver's licence in the middle cupboard.  The name on the licence was Marco Zappella, with a 1987 date of birth and an address in Double Bay, Sydney.  The image on the driver's licence was that of yourself.

22You told police that you had the licence because you have such a bad record and that you were going to use it to get a place to live.  You said that you never ended up using it as you had found a house through Gumtree.  You had obtained it through mates.

23You gave them a photograph and you paid $500 for the falsified driver's licence.  You said you, 'just thought maybe it's a cool thing to do.  It might help me with the houses.' 

24Turning to matters personal to you, your counsel provided me with written plea submissions dated 3 November 2021, a psychological report from Mr Patrick Newton dated 26 October 2021, a reference and job offer from a former employer dated 30 April 2021, a letter dated 20 October 2021 signed by both your parents, a letter of reference and support dated 29 October 2021 from Valon Ajdini, a certificate of achievement and a certificate of completion and congratulations for rehabilitative programs you have undertaken, and clean assay results from urine drug testing for April, May, and June 2020 and one on 3 April 2021.

25You were born in April 1990 and are now 31 years of age.  You have no prior convictions.  You have been in custody since your arrest on 19 February 2020, which I note includes almost the entire period during which Victoria has been gripped by the COVID pandemic.

26The report of Patrick Newton provides a useful account of your background, which I accept is substantially accurate.  It describes how you grew up in the Kosovo region of the former Yugoslavia.  You are the elder of two brothers.  In the early years of your life, before the war involving Serbian forces in the late 1990s, your life had been apparently normal and happy and you were developing well.

27However, once the war began, your life changed dramatically and you witnessed many horrific sights and sounds.  Along with your family, and no doubt many other citizens, you were deeply affected by the conflict, to a point where, as Mr Newton describes in the report, you developed symptoms of post-traumatic stress disorder of a severe kind which have stayed with you since.

28Ultimately, when you were aged eight, your family was able to board a bus to Macedonia, and after remaining in a refugee camp for some months, you and your family were offered the chance to resettle in either Sweden or Australia.  Your family chose Australia and settled in Dandenong when you were aged nine years.

29Educationally, you had difficulty in settling in and no doubt, along with many other migrants, suffered vilification and harassment during your early years at school.  You did not have English, but you showed yourself to be a good student.  You did well at school, at least in the initial years.  You obtained functional English and moderately good general academic skills by the time you had finished your primary schooling.

30You managed to progress through the grades without repeating.  However, when you got to secondary school you got in with a bad crowd, and from Year 8 you largely ignored your academic studies.  Your attendance and your application at school deteriorated.

31After leaving school at the end of Year 11, you completed an apprenticeship as a plasterer and your main work during your adult life has been in that field.  You operated your own business for about 18 months, but your drug abuse prevented you from maintaining that business.

32So far as your mental health is concerned, it can be summed up as a response to the trauma that you experienced in your life in the latter part of your years in Kosovo.  You have reported persisting anxiety and depression that has dominated your life since late childhood.  You have been diagnosed by Mr Newton with prominent symptoms of post-traumatic stress disorder.

33He describes your early experimentation with alcohol and cannabis as commencing at about age 14.  As your teens went on, you began to experiment with illicit stimulants so that by the age of 18, in addition to the use of alcohol and cannabis, you had experimented with a number of different stimulants.

34However, it seems that you found your experimentation with cocaine compelling and that drug boosted your self-esteem and self-confidence.  It allowed you to overcome shyness and social anxiety so that you could interact with women.  From the outset of your use of cocaine, you became addicted and started using it regularly.

35You developed tolerance and required increasing amounts of cocaine to achieve the same level of response.  And as time went on, your use of cocaine came to dominate your life.  As Mr Newton observes, you became immersed in the drug-using and criminal subcultures that are associated with heavy usage of a drug such as cocaine.

36You told Mr Newton that you had never participated in drug-focused treatment prior to your incarceration.  Mr Newton noted that you had been abstinent since being placed on remand in February 2020.  That contention was supported by the urine drug screening, which was clear.

37There is no doubt in my mind that you continue to suffer from post-traumatic stress disorder, and that your symptoms persist, as Mr Newton puts it, 'despite the passage of time'.  They are moderately severe relative to other traumatised individuals.  And Mr Newton notes that attempts to avoid such symptoms have been instrumental in motivating your drug abuse.

38Mr Newton's report is supplemented by a very well-written letter from your parents which underscores the effects of the severe childhood trauma you suffered in Kosovo, and your struggles since then to deal with the resulting psychological damage.

39Your counsel has argued that Verdins principles 1, 3, 4, and 5 are enlivened.  The prosecution supports that submission to the extent that it relates to principles 4 and 5, but not as it relates to principles 1 and 3.

40Your heavy usage of cocaine masked your longstanding symptoms of moderately severe PTSD, but I am not persuaded that there is any, or any sufficient, nexus between your post-traumatic stress disorder and the offending conduct so as to reduce your moral culpability for the offending.  Nor am I satisfied that your heavy use of cocaine, together with alcohol and cannabis, is so linked to your underlying post-traumatic disorder as to create such a causative link.

41I note that Mr Newton estimated your level of intelligence to be within the upper end of the average range.  I also note that you told Mr Newton that, despite the urgings of your brother and despite knowing that you had a drug problem, you had never sought or obtained any drug-focused treatment prior to this offending.

42I propose to apply Verdins principles 4 and 5, but not principles 1 and 3.  It is unfortunate that the COVID pandemic has reduced the availability of rehabilitative programs for those in custody, and I take that into account in assessing an appropriate sentence.  I note that you have been on a waiting list for some considerable time and I do not doubt that you are now motivated to seek such treatment.  You have been receiving some anti-depressant medication.

43You are a qualified and experienced plasterer.  If you can overcome your drug abuse and obtain treatment to modify the symptoms of your PTSD, I regard your prospects of rehabilitation as reasonable.  I intend to impose a sentence which gives you the prospect of a significant period of parole as a first offender whose drug abuse is presently in remission.  It is to be hoped that you will be able to obtain and make use of parole at the earliest opportunity.

44You are entitled to substantial credit for your pleas of guilty in these COVID times.  I am prepared to accept that you are remorseful for your offending and that you are presently motivated towards rehabilitation.  To that end, you clearly have the support of your family.  I am not prepared to accept that you were merely storing the cocaine for a drug-dealing associate for modest reward.  I do not accept the explanations you gave to police.

45Based on the totality and the condition of the cocaine and the presence of trafficking paraphernalia when police searched your home, I am satisfied beyond reasonable doubt that your role was much more significant than you claimed and that you were motivated by the expectation of significant profit.

46In comparison with many other examples of trafficking in a commercial quantity of a controlled drug, the quantity of pure cocaine was not significantly above the minimum commercial quantity of cocaine, that being two kilograms.  But the estimated value of the cocaine is not insubstantial.  The need for just punishment, denunciation and general deterrence requires a substantial term of imprisonment.

47The offences the subjects of Charges 2 and 3 are considerably less serious, but still deserving of punishment. I have been provided with some assistance in identifying current sentencing practice for offending such as that in Charge 1. I have also reviewed broadly similar offending amongst case studies identified in the Victorian Sentencing Manual.

48I recognise the need for consistency in sentencing generally, and particularly in promoting consistency of sentencing for federal offences throughout Australia.  I have also been assisted by the prosecution sentencing submissions in identifying relevant sentencing factors.

49However, I am required to ensure that the sentences I impose are suitably modified by an instinctive synthesis of all mitigating factors, including considerations arising from the COVID pandemic and the harsher prison environment that has attended your lengthy period on remand and is likely to remain for some time to come.  The adverse effects of the prison environment are more acute for a person with your mental health issues.  The overall sentence is reduced accordingly.

50Granit Sylejmani, on Charge 1, you are convicted and sentenced to imprisonment for seven years.  On Charge 2, you are convicted and fined $1,000.  On Charge 3, you are convicted and sentenced to imprisonment for one month. 

51I order that the sentence on Charge 1 commences today.  The sentence of imprisonment on Charge 3 will run concurrently. 

52The total effective sentence is imprisonment for seven years.

53On Charge 1, I fix a non-parole period of four years and six months. 

54I declare 644 days of pre-sentence detention to be reckoned as served on the sentence I have imposed and deducted from it. 

55Pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to imprisonment for 10 years with a non-parole period of seven years and six months.

56The prosecution has sought a disposal order in relation to the cannabis the subject of Charge 2.  I understand the order is by consent and I make that order today.  Were there any other matters, counsel?

57MR ANTOS:  No other matters, Your Honour.

58MS SWINEY:  No, Your Honour.  Thank you.

59HIS HONOUR:  Thank you.  Adjourn the court, please.

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