Director of Public Prosecutions v Traljesic

[2016] VCC 1509

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01574
CR 16-01575

DIRECTOR OF PUBLIC PROSECUTIONS

V

FATMA TRALJESIC
ENIS IBRICIC

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2016
DATE OF SENTENCE:	11 October 2016
CASE MAY BE CITED AS:	DPP v TRALJESIC
MEDIUM NEUTRAL CITATION:	[2016] VCC 1509

REASONS FOR SENTENCE
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Subject: Criminal law- sentence             

Catchwords:   pleas of guilty by both accused to one charge of cultivating cannabis and theft of electricity at one house – pleas of guilty by Traljesic    to one further charge of cultivation at another house and one charge of dealing in proceeds of crime – plea of guilty by Ibricic to one summary charge of dealing with property suspected of being proceeds of crime – two other co-accused – illegal immigrant already sentenced to 271 days imprisonment time served–deported immediately after sentence - other accused awaiting trial – whether hardship to young children of Traljesic meets exceptional circumstances – not necessary to decide – persuasive mitigating circumstances - good prospects for rehabilitation.

Sentence:      18 month CCO for first accused, 3 year CCO for second accused.

APPEARANCES:	Counsel	Solicitors
DPP	MS J. CAVKA	OPP
For Both Accused	MR T. FITZPATRICK	Mark Rawson (Traljesic) NWA Legal Services (Ibricic)

HER HONOUR:

1Enis Ibricic and Fatma Traljesic have pleaded guilty to a number of charges as follows: each has pleaded guilty to a charge of cultivating a narcotic plant at Doncaster East, which is Charge 1 on the Indictment, and  theft of electricity at that property, Charge 2.  Fatma Traljesic has pleaded guilty to dealing with the proceeds of crime, which is Charge 3.  She has also pleaded guilty to cultivating cannabis at Heathmont, Charge 4.  Enis Ibricic has also pleaded guilty to a summary charge of dealing with property suspected of being proceeds of crime.

THE BACKGROUND

2The charges arise from cannabis crops located at two addresses.  The first address is 34 Gordon Street, Doncaster East, where the offenders lived with Ms Traljesic's two young children.  The cultivation at this address gave rise to Charges 1 and 2.

3The second address is at 389 Canterbury Road, Heathmont, a house owned by Ms Traljesic which had been occupied by her father until his death in 2014.  Her father had grown cannabis there previously but at the time of the cultivation in question it was leased to Akin Saricayir who, with Yigitcan Gunal, is one of the co-offenders.  The cultivation at this address gives rise to Charge 4.

4Gunal would occasionally sleep overnight at that house at Saricayir's request due to concerns regarding the house having been previously broken into.  Mr Ibricic and Ms Traljesic would also go there.

5On two occasions Mr Ibricic drove Gunal from the Heathmont house to his house in Doncaster East to assist with the cultivation of the cannabis crop at that address.

CIRCUMSTANCES OF THE OFFENDING

6On the 3rd of July 2015, an anonymous report was made to Crime Stoppers in relation to a male and female suspected of growing cannabis at the Heathmont house.  A description was given of a car being used and its Registration No.YLJ876.  Police made enquiries and found that the car and the Heathmont house belonged to Ms Traljesic and that there were irregularities with the power supply to that property.

7On the 11th of July 2015, police executed a search warrant and found Gunal there.  He refused to open the door and police made a forced entry.  Inside they found a hydroponic cannabis setup operating in three bedrooms and the kitchen.  One hundred and eleven cannabis plants were located in various stages of growth with a total weight of 47.8981 kgs.

8An electrical bypass of the meter had been installed and it was later established that the total value of electricity stolen from the supplier, AGL, was $8807.20.

9Gunal was arrested and told police that Mr Ibricic and Ms Traljesic regularly attended the property and were also cultivating cannabis at their home in Doncaster East.

10Police executed a search warrant later that evening at the East Doncaster house.  The car belonging to Ms Traljesic was parked in the driveway and the family was home.  Police found a hydroponic cannabis setup operating in two bedrooms with 23 plants measuring approximately 15 cm, weighing 1.85 kgs; that is Charge 1.

11The electrical bypass at that house resulted in theft of electricity valued at $23,658.82; that is Charge 2.

12In a drawer in the bedroom police found $19,000 in cash which was proceeds from the sale of cannabis; that is Charge 3.

13A search of the car and other locations in the house disclosed a further sum of $12,445 in cash believed to be cash obtained from the sale of cannabis; that is the summary offence.

14Other amounts of cannabis and equipment used in growing hydroponic crops were also found in the house.  Mr Ibricic and Ms Traljesic were arrested.

15Mr Ibricic was charged and bailed with the help of a telephone interpreter as he speaks little English.

16Ms Traljesic was interviewed and disclosed that she had leased the Heathmont house to the co-accused, Saricayir, with equipment for the cultivation of cannabis already installed there.  She admitted that she and Mr Ibricic had been there many times and both were aware of the crop.

17She also admitted the theft of electricity and that the $19,000 was from the sale of cannabis to Saricayir.  She said the other amount of cash was not proceeds of crime but was the earnings of Mr Ibricic from his work.

18She admitted to having grown cannabis for about two years at previous addresses and that she and Mr Ibricic together had grown cannabis at Doncaster East after she had taught him the process.

19Gunal pleaded guilty and was sentenced by me on the 7th of April 2016 in respect of two charges of cultivating cannabis, theft of electricity and dealing with property suspected of being the proceeds of crime.  As an illegal immigrant he had been remanded in custody after his arrest and he was sentenced to 271 days imprisonment which was declared already served and as he was an illegal immigrant he was then deported.

20Saricayir was arrested and charged in relation to the Heathmont property and is awaiting trial due to commence on the 2nd of May 2017.

MAXIMUM PENALTIES

21Cultivation of a narcotic plant is a serious offence for which the maximum penalty is 15 years' imprisonment if the cultivation was for the purposes of trafficking, which is the case here.  The same maximum penalty applies to dealing with the proceeds of crime.

22For theft, the maximum penalty is 10 years' imprisonment and for dealing with property suspected of  being the proceeds of crime, it is two years.

23Clearly deterrence is an important component of sentencing in such cases, both to deter others and to deter the offenders from reoffending.  A term of imprisonment is the starting point for sentences for cultivating cannabis and indeed for theft of large amounts of money, such as in this case.

24Neither of the offenders have any prior convictions and in view of the circumstances that I shall outline, there is little risk that either will offend again therefore specific deterrence need not be a significant component of the sentence I shall impose.

25General deterrence is of chief importance because these are serious offences and others must be deterred, if possible, from cultivating cannabis and from associated criminal activities such as stealing electricity.

26Both the offenders have been assessed as suitable for Community Correction Orders, a disposition urged upon me by their counsel and the prosecution agrees that it is within range.  I shall be imposing those orders.  Before doing so I shall turn to the personal circumstances of each offender.

27The circumstances of Ms Traljesic are particularly complex and I shall set those matters out in some detail but first I turn to Mr Ibricic.

PERSONAL CIRCUMSTANCES OF THE OFFENDERS

28Mr Ibricic, you are aged 51 and have been married to Ms Traljesic since September 2013.  You were born and raised in Serbia where you worked as a labourer.  You came to Australia in 2014 on a working visa a few months after your marriage to Ms Traljesic in Serbia.

29You returned to Serbia in October 2014 and then came back to Australia in January 2015.  You obtained work in March of that year as a factory hand at a furniture factory and have remained fully employed since then.  Your employer, Suzanne Murphy, has provided a reference stating that you are a hardworking, honest and respectful employee who is embarrassed and distressed by having committed these crimes.

30You have also started a cleaning business to provide additional income to help support the family.  The distress referred to by Ms Murphy is confirmed by Ms Roglic, the psychologist who assessed you recently and who noted symptoms of anxiety and reactive depression consistent with the guilt and shame you feel.  You told Ms Roglic that you had thought the cultivation was a bad idea but you agreed to be involved hoping your marriage and home life would improve as a result.

31It was submitted on your behalf that these symptoms would tend to make any term of imprisonment more difficult for you to serve and while that is accepted, in view of all the circumstances in this case it is not necessary to rely on that matter in determining the appropriate sentence.

32You have no previous convictions, as I have said, and you present as a man of previous good character.  A letter written by your imam, Mr Omerdic, states that you became caught up in your wife's problems who was depressed herself and was dealing with her terminally ill father.  This was occurring while you were settling into a new country without speaking the language and living with two children who were not your own and who were resistant to you and with whom you had trouble communicating.

33Meanwhile your mother in Serbia was unwell and you felt quite isolated away from her and your family.  Mr Omerdic stated that you have now actively assimilated with the community and that he believed you would not have offended but for the situation facing you at the time.

34Part of those circumstances was that presented by your wife's ex-husband, a violent and controlling man who still plays a part in the family's life because of his continuing access with the children, who go to his house once a fortnight.

35Your involvement was less culpable than that of Ms Traljesic, as it was not initiated by you and your ongoing participation was significantly influenced by the family circumstances and the fact of your recent arrival in the country.

36The plea of guilty was indicated when the matter resolved after two days of a committal hearing in July.  An unsuccessful application for summary jurisdiction was made in September and you were then committed for a plea in the County Court.  Overall the matter has proceeded without delay since the date of the offending in July 2015.

37Both you and Ms Traljesic are entitled to a discount on your sentences for having pleaded guilty because it has assisted the process of the criminal justice system by avoiding a trial.  I also accept it as an indication of remorse which of course you have expressed elsewhere, as has Ms Traljesic.

38At present you are on a spousal visa which is under review and it is not known what the outcome is likely to be.  I cannot take that into account except for the fact that it may be safe to infer that its uncertainty may cause stress and anxiety.

39I now turn to the personal circumstances of you, Ms Traljesic.  You are aged 51 and you were born in Bosnia-Herzegovina from where your family emigrated when you were aged four.  Tragically your brother died from drowning as a small child.  You have a younger sister and a younger brother but you are estranged from both of them.

40Your parents separated some years ago and your father died of cancer in 2014, as I said earlier.  Your mother had a gambling addiction and it seems you have a remote relationship with her.

41You were first married to Mr Harry Bajaic in 1989.  This was an arranged marriage and it was punctuated by physical and verbal abuse and it ended in 1998.  There were no children.

42In 2002 you were working in two jobs as a sales support officer for Shell Australia and on weekends as a dealer with Crown Casino.

43You met Mr Shan Vocoj and three weeks later you became pregnant.  Mr Vocoj did not want the pregnancy to continue but you decided to proceed with it.  Mr Vocoj convinced you to obtain a mortgage on your apartment with the promise of lending him the money to fund an overseas trip.  You both travelled overseas together but you cut your trip short and returned to Australia when you discovered he was being unfaithful to you.

44Your mother learned you were pregnant and said she disowned you.  Two days later you were diagnosed with toxaemia and your baby was delivered by caesarean section at 27 and a half weeks gestation.  Sadly she lived for only four days.  At this time you had no support from anyone and had to arrange the baby's funeral yourself.

45After this, Mr Vocoj returned and your relationship recommenced.  You became pregnant again and your daughter, Adriana, was born in 2004.

46Mr Vocoj did not work at all with the pattern of going out all night and sleeping all day.  He gave you no financial or any other support but physically abused you leading to depression which resulted in your admission to hospital.  The staff there contacted your mother and on your discharge from hospital you moved in to live with her for 11 months.

47Your mother's gambling problem led to a further breakdown in your relationship and you were homeless for a short time until you found accommodation.

48You then returned to work and Mr Vocoj moved in with you.  His violence against you continued for the following 18 months when he then left to travel overseas.

49He had recently bought a house in Templestowe in his name using part of the funds from the sale of your apartment.  You and your daughter moved into the house and on his return Mr Vocoj moved in too.

50Your second child was born in 2007 and the violence from Mr Vocoj continued very soon after the birth.  Depression and complications from the birth required your admission to hospital for six weeks during which time Mr Vocoj was arrested.

51With a loan from your father, you bought the house in Heathmont and lived there with your father and his partner who assisted with child care when you returned to work.

52The dissolution of your marriage was commenced and meanwhile your father travelled overseas where he met Mr Ibricic.  You joined your father there and you married Mr Ibricic in September 2013 before returning to Australia.

53In April 2014 your father became ill and at the same time you were made redundant by Shell.  You were unemployed for four months and then began working for a chemical company coinciding with the arrival of Mr Ibricic in Australia.

54Your father died in December 2014 while Mr Ibricic was overseas trying to arrange a visa to reside in Australia.  You had significant financial problems paying for your father's funeral and mortgage payments with no financial assistance from Mr Ibricic at that time and the ongoing property dispute with Mr Vocoj.

55In that context you rented the Heathmont house to the co-accused, Saricayir, having stored the cannabis growing equipment in the garage.  You were aware that Saricayir indeed used it to grow crops but you did nothing to prevent this because you needed the rent.  You then rented the Doncaster East house for your family to live in where you also grew cannabis.

56You now have the sole care of your children who are aged 12 and 8, as their father is awaiting trial for undisclosed matters.  Your sister and brother are both drug addicts and your mother continues to have a gambling addiction.

57You have been having psychological counselling with Dr Lisa Meehan, a clinical psychologist, during 2015 and she assessed you as suffering from depression, anxiety and stress within a severe range.  Dr Meehan observed this to cause impaired cognitive functioning in the early sessions with you which improved when you were taught various coping skills.

SENTENCING ISSUES

58Dr Meehan noted evidence of your regret about your behaviour, and fear regarding the possible consequences and resolution for change.  You told her that your stress had built up to the point where your judgment had been poor, and that insight had led to your determination to deal differently with stressors and seek help earlier.

59Dr Meehan did not refer to the likely effect of imprisonment upon you, and her opinion that you had improved and learnt effective coping strategies does not lead to the conclusion that imprisonment would be unusually difficult for you.

60More important however is the issue of hardship that would occur if you were imprisoned in the knowledge that no one is available to care for your children.  The Department of Human Services has been involved in the past because of the behaviour of Mr Vocoj so their care would likely fall within the purview of the Department.

61Hardship as suffered by children themselves can only be taken into account if the circumstances are exceptional.  The more serious the offending the more difficult it is to find the circumstances to be exceptional.  It is not at all unusual for the families of prisoners to suffer hardship but in the great majority of cases it is the father who is being imprisoned leaving the mother available to look after the children.  In this case there is no parent available and no relative.  Whilst it is unusual for that to be the case, it is not exceptional.  The Sentencing Act provides that imprisonment is a sentence of last resort and in this case another disposition is available within the applicable range.

62You have expressed remorse for what you did and that is confirmed by Mr Omerdic, the imam who knows you well.  Mr Saunders, your friend and former colleague at Shell, has also confirmed this and speaks highly of you as a responsible professional person whose judgement he believes was adversely affected by the stressors as you explained them to him.

63As I noted earlier, you are entitled to a discount on your sentence for your plea of guilty for the reasons I explained.

64Would you both stand please.

65I sentence each of you to a Community Correction Order which in each case will apply to all the charges.  The details are as follows: Ms Traljesic, your order begins today and will last for three years.  You will be under supervision and must perform 100 hours of unpaid community work over nine months.  You must also be assessed for any necessary mental health treatment, and I note that I have exercised leniency in setting the work hours and the length of the order because of the significant mitigating circumstances including your responsibilities, both working and looking after the children.

66Mr Ibricic, your order also begins today and lasts for 18 months.  You must perform 80 hours of unpaid work over six months but no further conditions will be necessary.  You must both attend the Corrections Office at Box Hill by 4 pm on Thursday.

67The prosecution seeks an order for a forensic sample of saliva to be obtained from you, Mr Ibricic, and I understand from your counsel that that is not opposed.

68The prosecution also seeks an order for the disposal of items from the Doncaster East address and that is not opposed.

69Finally, the prosecution seeks an order for restitution of the sum of money, the subject of the theft charge, which is $23,658.82 and that is also not opposed.

70Now, are there any matters I have neglected or omitted first of all?

71MS CAVKA:  No, Your Honour.

72HER HONOUR:  No, thank you.

73MR FITZPATRICK:  Just the declaration of 6AAA, Your Honour.

74HER HONOUR:  I do not need to do that when a CCO is imposed, so I have not gone there.

75MR FITZPATRICK:  Yes, Your Honour.

76HER HONOUR:  But the orders are now ready for signature.  Would you like to look at them first, Mr Fitzpatrick?

77MR FITZPATRICK:  Yes, Your Honour.

78MR FITZPATRICK:  May I leave the Bar table, Your Honour?

79HER HONOUR:  Certainly.

80MR FITZPATRICK:  Thank you, Your Honour.

81(Community Correction Orders signed)

82MR FITZPATRICK:  Thank you, Your Honour.

83HER HONOUR:  I think that's everything now, thank you.

84MR FITZGERALD:  Yes, Your Honour.

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