Director of Public Prosecutions v Vata

[2020] VCC 1383

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00385

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIKTOR VATA

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2020
DATE OF SENTENCE:	17 August 2020
CASE MAY BE CITED AS:	DPP v Vata
MEDIUM NEUTRAL CITATION:	[2020] VCC 1383

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Cultivation of narcotic plant commercial quantity – Cannabis – Theft of electricity – Dealing with suspected proceeds of crime – No prior convictions – Lower end of seriousness – General deterrence – Community protection 
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, Crimes Act 1958
Sentence: Total effective sentence of 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months – s.6AAA declaration – 3 years imprisonment with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	The Office of Public Prosecutions
For the Offender	Mr J. O' Sullivan	O’Sullivan & Ruffilli

HIS HONOUR:

1Viktor Vata, you pleaded guilty to:

·Cultivating in a commercial quantity of a narcotic plant, namely cannabis, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act1981.  The maximum penalty for that offence is 25 years' imprisonment;

·Theft contrary to s.74 of the Crimes Act1958.  The maximum penalty for that offence is 10 years' imprisonment, and;

·The related summary offence of dealing with property suspected of being the proceeds of crime, contrary to s.195 of the Crimes Act1958.  The maximum penalty for that offence is two years' imprisonment.

2You pleaded guilty at committal proceedings, but prior to the calling of evidence, and I accept that your plea is to be treated as at an early stage of the proceedings.  It is evidence of remorse for your offending and it has spared the community the burden of a criminal trial.  I have taken your plea into account in your favour in mitigation of sentence.

3You have no prior convictions, subsequent convictions or outstanding charges.  You are a first-time offender of hitherto good character.

4An agreed prosecution opening was tendered in evidence and your offending may be summarised as follows -

5On 14 August 2019 police executed a search warrant at a premises located at 3 Bethwyn Street, Bentleigh East, and there located a cannabis crop growing in a sophisticated hydroponic system.  The crop was located in a number of rooms in the house and the plants were in varying stages of maturity.  An electricity bypass had been installed in the roof and during the charge period pleaded in Charge 2 on the indictment, a total of $8,438.15 worth of electricity was stolen from United Energy.

6$6,000 cash in $100 notes was located in a bag in the lounge room.  A total of 79 cannabis plants were located, weighing a total of 38.65 kilograms.  A commercial quantity of that substance is 25 kilograms and accordingly this crop falls at the lower end of seriousness by reference to the quantity of cannabis in respect of the charge that you have pleaded guilty to.

7Surveillance footage ultimately revealed that you had attended with another man at the Commonwealth Bank in Chadstone on 13 August 2019 to pay the rent in cash on the house.  You were present at the premises when the warrant was executed, and your belongings were also located there.

8In an interview with investigating police you denied any knowledge of the plantation or crop.  You were charged and remanded in custody on the day of your arrest, where you remain.

9The property had been rented in March 2015 from the owner, Ming Zhou, by a woman named 'Michelle'.  Following the execution of the search warrant it was revealed that the property was extensively damaged as a result of its use in the cultivation of cannabis, and I have received in evidence a victim impact statement of Ming Zhou detailing the economic losses he has suffered by reason of that damage and the personally traumatic effect the offending has had upon him.

10Your counsel submitted that there is no evidence that you were involved in the actual cultivation of the cannabis and your role may properly be described as that of a 'watchman'.  In my opinion you are properly described as a crop sitter; a term often employed in cases of this nature, but I accept that there is no evidence you actually tended the plants yourself.  You will be sentenced on the basis that your role was to secure the premises and the cannabis crop and you performed this role for financial reward.

11The sentencing principles applicable in cases of this type are well-established.  The sentence must be calculated to deter others from offending in this manner and you must be punished for engaging in this serious offence for financial reward.  The courts must protect the community from the cultivation of this illegal and highly deleterious substance.  I accept that it is unlikely, however, that you will reoffend, and specific deterrence is not a significant sentencing consideration in this case.

12I now turn to your personal circumstances.  You were born in Albania on
1 October 1964 and are now aged 55.  You spent your adult life in Italy, where you raised a family and worked in the construction industry.  You are now divorced and your son, Everest Vata, now resides in Australia.

13In approximately 2015 your construction business in Italy failed and I accept that you then suffered serious financial hardship, leading you to travelling to Australia in February 2018 on a tourist visa with the aim of obtaining residency on a student visa.  This application was unsuccessful and you became involved in the offending in order to support yourself financially in the short-term.  In all probability you will be deported on completion of your sentence and I accept this will compound the hardship of imprisonment upon you.

14I have received in evidence a number of character references detailing your good character and work history.  These references speak highly of you.

15I have also received into evidence a body of medical reports setting out your current physical condition.  You suffer from Hepatitis A and Hepatitis B, which was identified after you entered the prison system, and you also suffer bilateral hand pain due to your work-related injuries.  These conditions will also compound the hardship of imprisonment upon you.

16You also fall to be sentenced during the COVID-19 pandemic and I accept that the custodial restrictions in place for that reason have increased the isolation of imprisonment in your case, as you do not speak English and have not had any visits from your son for some months.

17In the result, the sentence of the court is as follows.

18On the charge of cultivating a commercial quantity of cannabis you are convicted and sentenced to be imprisoned for two years.

19On the charge of theft of electricity you are convicted and sentenced to be imprisoned for three months.

20On the charge of dealing with the proceeds of crime you are convicted and sentenced to be imprisoned for three months.

21I direct that two months of the sentence on the charge of theft and one month of the sentence on the charge of dealing with the proceeds of crime be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.

22This makes for a total effective term of imprisonment of two years and three months. 

23I direct that you serve 14 months' imprisonment before becoming eligible for release on parole.

24I declare that you have served 368 days by way of pre-sentence detention not including today. 

25But for your plea of guilty I would have imposed a total effective term of imprisonment of three years with a non-parole period of two years.

26I will make the forfeiture orders sought by the prosecution.

27COUNSEL:  As Your Honour pleases.

28HIS HONOUR:  I'll adjourn the court now and the prosecution can leave and one or other of my associates will remain.  Mr Pickard, perhaps you can remain to assist Mr Privatera and Mr O'Sullivan to explain to Mr Vata the effect of the sentence and the reasoning that accompanied it?  All right.  So if the court will adjourn now.

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