Director of Public Prosecutions v Vata
[2022] VCC 1954
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02330
Indictment No. M10294187
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTAN VATA |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 October 2022, 10 November 2022 |
DATE OF SENTENCE: | 10 November 2022 |
CASE MAY BE CITED AS: | DPP v Vata |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1954 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Cultivation of narcotic plant; theft; dealing with property suspected to be proceeds of crime; prospect of deportation, plea of guilty; no prior convictions; whether family hardship exceptional
Legislation Cited: Migration Act 1958 (Cth); Sentencing Act 1991 (Vic)
Cases Cited: Nguyen v The Queen [2016] VSCA 198; Nguyen v The Queen [2021] VSCA 211; Worboyes v The Queen [2021] VSCA 169.
Sentence: 10 months imprisonment, 2 year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Ms. O Ventura |
For the Accused | Mr P.A. Dunn KC | Mr S. Andrianakis |
HER HONOUR:
Introduction[1]
[1] Circumstances of offending based on the agreed Summary of Prosecution Opening, exhibit A.
1Artan Vata, at 6.40 am on 18 March 2021 you were at your rented home in Doncaster with your wife, two children and your adult nephew, when police attended with a search warrant. You readily admitted that there was cannabis in the garage underneath your house. You then retrieved a key from one of your children’s bedrooms and unlocked the garage so the police could look inside.
2The large garage, which was only accessible from outside the house, had been converted into three separate hydroponic grow rooms for cannabis. Two of the rooms were comprised of tents with wooden frames and heavy plastic. The setup included water pumps, fertiliser, timers, artificial lighting, transformers, shades, power boards, netting and a carbon filter. Duct tape identical to that used in the hydroponic setup was found in the glove box of your car. A representative from United Energy attended and located an illegal mains meter electricity bypass in the roof space.
3In total there were 31 plants weighing 113.2 kilograms located. Those plants, upon examination were estimated to comprise 13, which were at least 17 weeks after the nursery phase; four, which were three to four weeks after the nursery phase; and 14, which were five to seven weeks after the nursery phase.
4Also located during the search of your premises was $1400 in cash, which was stored in a cupboard above the fridge in the kitchen. You directed the police to that money.
5Police observed four CCTV cameras installed outside the house.
6You were arrested and conveyed to Doncaster Police Station and interviewed. Relevantly, you told the police that you could not remember how the cannabis started in the garage. You said the cannabis setup had been there for one or two months. You did not know how old the plants were. You said you attended to the cannabis plants, 'and make sure that they are growing okay'. You did this by putting water on the cannabis plants and putting on the lights. You said you bought the hydroponic equipment at a shop in Melbourne. You were not sure how many plants there were but you estimated about 20. You learnt how to tend them from the internet. You said you had not made any money from the cannabis yet. You said you did not know what you intended to do with the plants. You said you occasionally smoked cannabis. You said you did not know who installed the electrical bypass. You said that other than your wife no one else knew about the cannabis.
7You were charged with: cultivating a commercial quantity of cannabis, a commercial quantity being 25 kilograms or 100 plants; trafficking a commercial quantity of cannabis; theft of electricity; and deal with property suspected of being the proceeds of crime in relation to the $1400. You were taken to court and bailed the same day, meaning you have spent no time in custody thus far.
8On 29 October 2021 there was a contested committal which focused purely on the weight of the drugs, following which you were committed to this court and pleaded not guilty.
9Thereafter, negotiations between your legal team and the prosecution occurred resulting in you pleading guilty on 29 April 2022 to a lesser charge of cultivate cannabis simpliciter, that is not commercial quantity, and also theft of electricity. This was on the basis that you lacked the necessary intent to cultivate a commercial quantity. Both charges are between dates, corresponding to the age of the oldest plants. You also pleaded guilty on that day to the related summary charge of dealing with property suspected of being the proceeds of crime.
10A plea on your behalf was conducted before me on 14 October 2022, at which your counsel, Mr Dunn, argued that a Community Corrections Order, either on its own or in combination with a term of imprisonment was within range and appropriate.
11Mr Crouch, for the Crown, submitted that a sentence of imprisonment was required but, in all the circumstances, a combination sentence was within range.
12I indicated at the conclusion of the submissions on the 14 October that your offending was just too serious to do anything other than impose a term of imprisonment, even taking into account your mitigating factors. The matter was then booked in for sentence on 21 October 2022.
13On 20 October my chambers received an email from your solicitors seeking an adjournment for approximately one week so they could obtain medical reports detailing a deterioration of your wife’s mental health. This I allowed, and so the matter came back to me today for further plea and sentence with three further documents being provided to me in the meantime, they being Exhibits 7, 8
and 9.14Mr Dunn informed me that on 15 October your wife had attended at her general practitioner, Dr Lee, who doubled her medication, and because he was concerned at her condition, contacted both Victoria Police and the
Department of Fairness, Families and Health, DFFH.15As a consequence of this, police arrived at your house at 5 am the next day and your wife and your children were taken to the Royal Children's Hospital, where they remained, apparently, for three days whilst the department investigated the safety of the children living at home with your wife and you.
16The department remains involved in checking in on your wife and you and the children to ensure that the children are safe. Mr Dunn informed me that the increased medication that your wife is now on appears to be helping but she is still, obviously, extremely anxious, and in fact he said ‘terrified’.
17Mr Dunn submitted that this change in circumstances now amounted to exceptional hardship and justified a non-custodial disposition. He also relied upon your suitability for a Corrections order in the sense that you have a number of skills which would well qualify you to do community work. Mr Crouch maintained that the extra material and the matters that had arisen since the plea on 14 October, did not amount to exceptional circumstances and maintained his original submission that a term of imprisonment was called for.
18After considering the extra documents, and hearing further submissions, I remain of the view that the only appropriate sentence is one involving an immediate term of imprisonment and I will endeavour now to explain why.
19In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2] Section 5(2) of the Sentencing Act 1991.
Your Personal Circumstances
20Turning to your personal circumstances. These were outlined in defence submissions and a psychological report of clinical neuropsychologist,
Mathew Staios, who interviewed you on 24 July and 11 October this year.21You are now 39 years old and a permanent resident in Australia. You were 37 at the time of the offending.
22You were born and raised in Albania and are the youngest of three siblings. Your brother and sister continue to reside in Albania, as does your father. Your mother passed away in September 2021 following complications associated with COVID-19.
23Your family were subsistence farmers and struggled financially. In 1983, aged 16, you left school and moved to central Italy to live with your brother and to work. You lived with him for around seven years and drove trucks for a factory.
24In 2006, aged 23 and speaking no English, you came to Australia on an Italian passport, hoping to pursue employment opportunities. You lived with your cousins for about a year before moving out on your own. Your transition into Australian society was relatively smooth. You soon got work doing odd jobs, including house painting. Indeed, you worked as a painter for over 10 years and were doing so up until the pandemic.
25In 2011, you married your wife, Natali, who is of Serbian background. Your union was opposed by Natali’s extended family because of your Albanian heritage. Your relationship is positive and you support one another in both a practical and emotional sense. Together you have three children, aged six, five, and 10 months.
26Natali was living with her family in Croatia when the Balkan war started. The war and associated ethnic cleansing led to her family fleeing Croatia and resettling in Serbia in about 1995. Three years later Natali and her family were accepted into Australia as refugees. However, soon after their arrival her parents separated. Prior to that Natali had witnessed her father being abusive and violent to her mother. After the separation Nalali lived with her mother and grandparents. She was primarily raised by her grandmother as her mother worked full time as a cleaner to support her family.
27A report dated 28 September 2022 from psychologist; Elizabeth Chetcuti, who has been treating Natali treating since 2013, explained that Natali has recurrent depressive episodes and anxiety stemming from her early childhood experiences. She has also experienced postnatal depression and a miscarriage prior to the birth of your youngest child. She is very emotionally dependent on you.
28In 2019 Natali’s grandmother died and left $200,000 to Natali on specific instructions that the money was to be used towards the purchase of a house, which Natali did in September last year. Since its purchase you have lived with Natali and your children in that house in Lalor. The house has a significant mortgage and since Natali is engaged full time in looking after your children, you have been the sole financial provider.
29When the pandemic hit you were working as a painter and living in rented accommodation in Doncaster. You told Mr Staios that you started smoking about a gram a day of cannabis one year prior to your offending to assist with managing stress. As well as supporting your wife and children, you were supporting your sister and her children who had fled an abusive relationship in the United States some years ago. Moreover, when you could, you sent money to your siblings and parents in Albania who were not well off.
30The lockdowns put an end to your work as a painter and you were struggling emotionally and financially. This is the context in which the offending occurred.
31Physically you are in reasonable health apart from a permanently damaged eye and impaired vision from an apparently random assault. This injury has not stopped you from working or carrying on the normal tasks of daily life.
32Since the offending you report that you have not smoked cannabis and have managed to obtain full time work as a truck driver. Your employer in fact provided a reference for you describing you as hardworking, reliable and trustworthy.
33You have no mental health history but Mr Staios considered you met the criteria for adjustment disorder, both at the time of his assessment and in the lead-up to the offending. He considered you to be of low-average intelligence.
Objective Gravity of Your Offending and Moral Culpability
34I turn now to the objective gravity of your offending and moral culpability. They are two factors of central importance in determining any sentence.
35Cultivation of cannabis is a serious offence, as is reflected in the maximum penalty of 15 years' imprisonment.
36Theft of electricity in conjunction with the cultivation of cannabis is also a serious offence because it facilitates the cultivation by concealing its commission.[3] The maximum penalty for that offence is 10 years.
[3] See Nguyen v The Queen [2016] VSCA 198 at [89].
37The maximum penalty for your summary offence is two years.
38For cultivation offences the quantity cultivated, which represents potential profits, is a critical factor in the assessment of offence gravity. Other factors of importance are the role of the offender and the scale, sophistication and duration of the activity.[4]
[4] Nguyen v The Queen [2021] VSCA 211 at [30].
39Whilst you cultivated greater than a commercial quantity in terms of weight, more than four times the commercial quantity of 25 kilograms, you did not do so in terms of number of plants, only about a third of the commercial quantity in that respect. Further, only 13 of the plants were mature. Whilst it is accepted you did not intend to cultivate a commercial quantity, there can be no doubt that you knew and intended to cultivate many plants, including those that were small and in the nursery phase. You had been doing so for at least three months and had obviously gone to considerable expense and effort to do so.
40Your enterprise was described by the prosecutor as relatively sophisticated, and I think that is an apt description. There is simply no way you would have gone to that trouble and expense if you did not anticipate making significant profit.
41As I indicated during the plea, I do not accept your instructions to counsel that your role was limited to allowing others who had approached you to install the crop in return for a promise of payment at the end and that all you did was fill water barrels. I find that story improbable. It is also inconsistent with your record of interview. Whether anyone else was involved I do not know, but I sentence you on the basis that you were at least a principal, if not the only principal, in the enterprise.
42In your favour, you did not come to Australia for the purpose of committing these offences. Rather, after many years of being a hardworking, law-abiding citizen, your offending came about during a time of financial pressure because of COVID. Clearly that was no excuse and you were hardly destitute. As I said, your wife had recently inherited $200,000, albeit that money was quarantined for the purpose of buying a home. However, the fact you were not able to work as a painter is at least some explanation.
43Further, whilst the setup was relatively sophisticated, what you did was unsophisticated in the sense that you used your own home, which carried an obvious risk of detection. As Mr Dunn said, you were hardly a master criminal.
44Whilst undoubtedly serious, I consider your offending and moral culpability to be somewhere about the mid-range of offending for crimes of their type.
Current Sentencing Practices
45To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
46Whilst no two cases are the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
47I have had regard to the Court of Appeal cases and sentences imposed by this court, to which I was referred by both counsel, as well as those to which I referred. I have also had regard to the Sentencing Advisory Couincil statistics. Significantly, the Court of Appeal in the recent case of Nguyen v The Queen [2021] VSCA 346, which was a case of cultivation simpliciter, reiterated the need for higher sentences for offences of cultivating a commercial quantity of cannabis as well as for offences of cultivating less than that amount.[5]
[5] At [41].
48Of course, ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Plea of Guilty, Co-operation and Remorse
49You are entitled to a significant discount in your sentence for the fact you have pleaded guilty. You did not do so at the first opportunity, but I accept that the delay related simply to the quantity of cannabis and once the prosecution agreed to proceed with the lesser charge, you did plead guilty very soon after.
50In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. Our Court of Appeal has emphasised the need for sentences to reflect the high value of pleas of guilty during the pandemic when the legal system is under considerable strain.[6]
[6] For example Worboyes v The Queen [2021] VSCA 169 at [39].
51I also accept that you are remorseful for your conduct, which warrants an additional discount.
Your Character and Risk of Reoffending
52Turning to your character and risk of reoffending, you have no prior convictions and no outstanding offences. You are entitled to be sentenced as a person of otherwise good character and I am satisfied your prospects of rehabilitation are very good.
Prospect of Deportation
53In determining the appropriate sentence, I take into account the fact that a sentence of 12 months or more which, incidentally, includes the totality of concurrent sentences[7], will trigger the mandatory cancellation provisions of the Migration Act 1958, and therefore give rise to the prospect of your deportation. Whether you would actually be deported in that situation is far from certain given your strong ties to Australia and your rights to appeal to the minister to revoke the cancellation and then to review any refusal to do so[8]. Nevertheless, if you were to be deported the consequences for you and your family would be catastrophic. You have made your life in Australia and would be deported back to a country you have not lived in since you were 16. Further, your wife’s Serbian heritage would make it extremely difficult for her to follow you to Albania given the long held and open hostility between the Muslim population in Albania and Serbians. Without you she would struggle in Australia.
[7] See S 501(7A) Migration Act 1958 (Cth)
[8] See S 501C(4) and s500(1)(ba) of the Migration Act 1958.
54To be clear, whilst I take this matter into account, it is simply part of the mix. It would be wrong of me to impose a sentence of less than 12 months if to do so would be otherwise inappropriate or inadequate. Clearly, courts should not be in the business of attempting to defeat the intention of parliament by imposing artificially low sentences.
Impact on Your Family of Your Imprisonment
55I accept and that your imprisonment will be a hardship for your family, not only your wife and children, but also your sister, whom you have been supporting. However, the law is clear that unless the level of hardship is truly exceptional, I can only give it minimal weight. The reason for this is clear. To do otherwise would amount to giving preference to those offenders with dependants and therefore amount to unequal justice. Further, to quote from Fox & Freiberg on Sentencing:
‘Distress, reduced financial circumstances and deprivation of emotional support and comfort are the usual consequences of imprisonment of a spouse’[9].
[9] Fox & Freiberg’s SENTENCING, third edition at [6150].
56They are matters an offender should think of before embarking on a criminal enterprise.
57In your case, even taking into account Exhibits 7, 8 and 9, I am not satisfied the hardship your family, especially your wife, will suffer is truly exceptional.
58Although the Department of Fairness, Families and Housing are now involved, I am not satisfied that it is likely your children will be taken from your wife, and it appears that she is responding well to the increase in her medication.
59To be clear, family hardship is a matter I do take into account in determining my overall sentence but it does not justify departing from what would otherwise be required in the circumstances of this case, namely the imposition of a term of imprisonment.
The Burden of Imprisonment
60I must consider how a term of imprisonment would be likely to impact you. Because I will be imposing a sentence of less than 12 months the risk of deportation is not a matter that arises in this context. However, I do take into account that your time in custody will be harder because you will be worried about how your family, particularly your wife, will be coping without you, both financially and emotionally.
61I also take into account the fact you are being sentenced during the pandemic. It has been generally accepted that a term of imprisonment during the pandemic is harder than at other times because of periods of quarantine and lockdowns as well as the curtailment of various activities and programs and the reduction or suspension of personal visits. Whist those effects are diminishing with time, they are still relevant.
Purposes of Sentencing
62I turn to the purposes of sentencing. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
63Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality.
64In cases of cannabis cultivation for profit such as yours, general deterrence and denunciation loom large in the sentencing process. Those who are tempted to engage in this enterprise must be deterred from doing so by the knowledge that if caught they will receive a term of imprisonment that makes the risk not worthwhile.
65I do not consider specific deterrence or community protection to be significant sentencing considerations in your case as I consider your risk of reoffending to be low.
66Weighing up the competing considerations, in my view, I must impose a term of imprisonment, but I am satisfied that all the sentencing principles can be met by a sentence of less than one year combined with a Community Corrections Order. Because of the seriousness of your offending and the fact the term of imprisonment will be less than one year, the corrections order must have a punitive component, in the sense of work hours, as well as providing for your rehabilitation.
67So, Mr Vata, I will now ask you to stand up, please.
Sentence
68On Charge 1 of cultivating cannabis, I convict and sentence you to a term of imprisonment of nine months. This is the base sentence.
69On Charge 2, theft of electricity, I convict and sentence you to two months imprisonment, one month cumulative on Charge 1.
70On the summary charge I convict and sentence you to seven days' imprisonment, wholly concurrent.
71So the total effective sentence is 10 months.
Pre-sentence Detention
72I declare that you have not served any days in custody in respect of that sentence.
Community Correction Order
73I have had you assessed for a Community Corrections Order and you have been found suitable and indicated your consent to such an order.
74On the two indictable charges I impose a single Community Corrections Order. The order will last for two years and will commence upon your release from prison.
75You are to report to the Reservoir Community Correctional Centre within two working days of your release.
76There are a number of mandatory conditions attached to that order, which include that you not commit another offence and various other things, such as you not leaving Victoria without first getting permission to do so, obeying all lawful instructions from, and directions of, the Secretary, but as well as those mandatory conditions I impose the following conditions:
·you are to be under the supervision of a Corrections officer for the duration of the order;
·you are to perform 250 hours of unpaid community work over the period of the order;
·you are to undergo assessment and treatment, including testing, for drug abuse and dependency.
77I direct that none of the hours that you satisfactorily undertake in treatment and rehabilitation are to be counted towards the 250 hours of unpaid community work. They are to be in addition.
78So Mr Dunn will explain that order in more detail to you, but do you understand what I have said in relation to the Community Corrections Order?
79OFENDER: Ah, yes, I do, Your Honour.
80HER HONOUR: So, there are mandatory conditions. There are 250 hours of unpaid community work. You are to be under the supervision of a Corrections officer and to undergo assessment and treatment, including testing, for drug abuse and dependency, and that order starts upon your release from prison in 10 months' time.
81Mr Vata, you must make sure you comply with that order because breach of that order is an offence in itself and, in addition, if you breach the order, you will liable to be re-sentenced for these offences. You should realise that by imposing the Community Corrections Order I am giving you an opportunity to avoid further prison time. So in other words I am imposing less prison time and giving you some work hours instead. If you breach the Corrections order
re-sentencing you for the original offences is a real option and, in that event, you may well go back to prison. Do you understand?82OFFENDER: Yes.
Section 6AAA
83HER HONOUR: I will also tell you that if you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a term of imprisonment of two and a half years with a non-parole period of one year and eight months.
Ancillary orders
84I have been requested to make a disposal order in respect of the cannabis and equipment and also a forfeiture order in respect of the cash. Those orders were not opposed and I am satisfied it is appropriate to make them and I do so.
85So, Mr Vata, just have a seat and we will print out the Corrections order and it will be taken up to you for you to sign. Yes, if your instructor, Mr Dunn, wants to go up - - -
86MR DUNN: Yes, thank you.
87HER HONOUR: I thank counsel for their assistance and are there any other matters I need to attend to?
88MR DUNN: No, Your Honour, thank you.
89MR CROUCH: May it please the court.
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