Director of Public Prosecutions v Virag

[2018] VCC 1314

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00735

DIRECTOR OF PUBLIC PROSECUTIONS

v

MIKLOS VIRAG

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2018
DATE OF SENTENCE:	22 August 2018
CASE MAY BE CITED AS:	DPP v Virag
MEDIUM NEUTRAL CITATION:	[2018] VCC 1314

REASONS FOR SENTENCE
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Subject:: Criminal law - sentence
Catchwords: pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity – one charge of possessing a handgun without a licence – one summary charge, dealing with proceeds of crime – on one occasion only assisted in the removal of cannabis  and equipment from house -  interpreter required - 27 year old – experienced poverty and childhood hardship arrived in Australia on tourist visa  - casual work only in Australia – extremely short of money – no drug or alcohol  use – pre-sentence detention 14 months declared – no visitors -  facing deportation.
Sentence: 18 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Tueno	OPP
For the Accused	Ms L. Ristivojevic	TT Lawyers

HER HONOUR: 

1Miklos Virag, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of possessing a handgun without a licence.  You have also pleaded guilty to one summary charge of dealing in the proceeds of crime.  At the time of your arrest on 20 June 2017, the police had been for some months investigating alleged crop cultivations in areas including Glenroy and Campbellfield.  One investigation was by state police, another was by Australian Border Force police. 

2On 8 June 2017, Australian Border Force members commenced observations at 1590 Dandenong Road, Huntingdale.  That morning, you were seen leaving a vehicle and entering the premises at that address.  Later, you were seen travelling by car to a jewellery store in Sydney Road where the co-accused, Artur Plesa got into the car.  During the afternoon, you were both seen at Hydroponic Warehouse Supplies in Campbellfield, and after a short time there you went to 150 Somerset Road in Campbellfield and entered the driveway.

3On 20 June, police were alerted to suspicious behaviour at 4 Lyons Street, Glenroy.  Men were seen carrying garbage bags from the house and loading them into a white Isuzu truck, registration ZPR 286.  Shortly afterwards, police located the same truck parked in reverse in the driveway of 150 Somerset Road, Campbellfield and saw you and two other men walking between the rear of the truck and the house.  Half an hour later, you were all seen climbing into the truck which appeared to be about to leave the address but police intercepted it.  You and the other men were arrested, and when you were searched, a number of items were found including keys for the house, a wallet containing ID and business cards for the Hydro Ware store as well as $150 in cash.  The cash gives rise to the charge of dealing in the proceeds of crime as it was the money you received for assisting in the cultivation.

4The truck contained items consistent with the cultivation of cannabis including garbage bags, plants, and equipment.  Using the keys found in your possession, the police gained access to the house and found a hydroponic set-up of plants they believed to be cannabis.  You were arrested and interviewed with the assistance of an interpreter but you made no admissions and you were remanded in custody. 

5The following day, police went to 150 Somerset Road, Campbellfield, and executed a search warrant.  In the house, they found four rooms set up for the growing of cannabis hydroponically.  Each room had varying numbers of pots on the floor.  In three rooms, there were numerous mature cannabis plants and a fourth room containing smaller cannabis plants.  The rooms were set up in a similarly sophisticated way with the plants connected to an irrigation system through which water and liquid nutrients were supplied to the plants.  Above the plants were high voltage lights under light shades.  They also found an electrical bypass, hydroponic irrigation, air filtering systems and heat lamps. 

6A loaded Browning semi-automatic handgun was found under the couch cushions in the lounge room.  The truck was seized and in it was found a dismantled hydroponic set-up including large sheets of black plastic, large black pots and 21 mouldy plants.  In total, police located 22 mature plants and 59 seedling cannabis plants in the house, and 21 plant stumps in the truck.  The plants were later examined by a forensic botanist who found the 22 plants weighed 71.85 kilograms, the 59 seedlings weighed 849.9 grams, 12 of the plant stumps from the truck were cannabis plants weighing 3.66 kilograms and the other nine plant stumps could not be identified.  The total weight of all the plants was 76.359 kilograms.

7At a committal hearing on 29 January 2018, you were not brought to court but appeared by video link and you had difficulty understanding your counsel and the interpreter who were in court.  Despite an offer being made by you to plead guilty to the charges on the indictment, a plea could not be entered because of the difficulties in communication.  A few days later, your offer to plead guilty was withdrawn but on 3 April your willingness to plead guilty was confirmed. 

8A week later at the part-heard committal hearing which proceeded by way of straight hand-up brief, you entered a plea of guilty and a plea hearing date in this court was arranged. 

9I am turning now to your personal circumstances, Mr Virag.  You are a 27-year-old single man born in Ukraine of Albanian parents and you grew up in rural Albania in circumstances of considerable poverty, often lacking food and ordinary comforts.  Your father was a strict disciplinarian and you endured physical punishment from him and had what you have described as an unhappy childhood because of the circumstances of poverty and violence.  You left school at 15 and left home then as well to fend for yourself.  You worked in a factory and then as a painter in difficult working conditions and endured long periods of unemployment in a system lacking any welfare benefits. 

10You heard that Australia offered a better life and you borrowed money to make the journey, travelling to Hungary to obtain travel documents.  These included a passport issued in your new name, Miklos Virag, which you had officially changed from your Albanian name, Ergys Pali.  You arrived here on a tourist visa in the expectation of being able to transfer to a working visa.  Your recollection is that you arrived here in late 2016 but the prosecution summary asserts that you arrived in early 2017.  In any event, you had only been here a few months when this offending occurred. 

11You knew one person in Australia and you lived with him and others in a sharehouse, but you found it difficult to obtain work and managed to find only casual manual work which paid cash in hand.  It was in this context that you accepted the offer of the job of cleaning, labouring and transport in the cultivation enterprise.  It would appear that you were the type of vulnerable person often preyed upon by criminals looking for others to perform the more visible illegal work.  You had not rented the truck, you were merely given the keys to work that day and you were paid the money that was found in your wallet.  You knew the cannabis was there as well as the gun but you had nothing to do with either.  Your job was only to take away the plants and equipment. 

12You have remained in custody with your tourist visa having expired, so you are facing the likelihood of deportation.  You have had no visitors, but a person visiting another prisoner learned of your circumstances and became a registered visitor of yours, so she could deposit money into your bank account to pay for telephone calls to your parents and to spend on items in the canteen.  As a result, you make a weekly call to your parents and you can talk with them for 12 minutes.  You spend time learning English and have participated in whatever programs have been available.  You have never used drugs and the urine screens provided, which are all negative, support that claim.  You do not have a problem with alcohol and no prior history has been alleged. 

13This is serious offending and that is clear from the penalties provided by the legislature and indeed from other cases where considerable prison terms have been imposed.  The maximum penalty for the charge of cultivation is 25 years' imprisonment.  For the firearms charge, it is four years and for the summary charge, two years. 

14Ms Tueno for the prosecution handed me an extract from the Judicial College collection of comparable cases and I have given careful consideration to those she highlighted as being relevant in terms of comparable weight of plant material.  The prosecution submission as to gravity is that this offending is of medium ranking because of the total weight of the crop and the presence of the gun, but the defence places it at a lower level because of your very limited role of one day's duration.  When all the circumstances are considered, I take the view that the lower level is the more appropriate ranking. 

15In sentencing an offender for such a crime, the court must consider the importance of general deterrence, that is, to deter others, and for denunciation.  An appropriate punishment must take into account all these matters.  You are entitled to a discount on your sentence for having pleaded guilty at an early stage,  indeed you indicated that very early on.  That has avoided the need for a trial and has therefore saved that expense and inconvenience.  It is recognised as being of assistance to the criminal justice system.

16You have now spent 14 months on remand, and during that time you have known that the likelihood of deportation will follow at the end of your sentence.  That of course is not a matter for me to comment upon or to take into account, but I can take into account that any further time in custody will extend the stress associated with that expected result.  Your limited English and your isolation in prison mean your time in custody has been difficult and I take that into account as well. 

17Would you stand now please, Mr Virag.

18Taking all these matters into account, I sentence you to 18 months' imprisonment for Charge 1, six months for Charge 2 and three months for the summary charge.  All these sentences are to be served concurrently, so your release date will be in about four months' time. 

19You have already spent 428 days in pre-sentence detention and I declare that time to be reckoned as already served which shall be noted on the court record.

20It will also be noted that you are being sentenced as a serious drug offender. 

21If you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a non-parole period of two years. 

22The prosecution seeks orders for forfeiture and disposal of items, and an order for a forensic sample of saliva.  Those orders are not opposed through your counsel and I make those orders.  I must advise you that the police have the power to use reasonable force to obtain the forensic sample but I trust that will not be necessary. 

23Just take a seat now please, Mr Virag.  Have I neglected or omitted anything, Ms Tueno?

24MS TUENO:  No, Your Honour, I don't believe so.

25MS RISTIVOJEVIC:  No, Your Honour.

26HER HONOUR:  No, nothing else?  All right.  Mr Interpreter, thank you very much for your assistance.  I am just going to ask you to wait a little bit longer to make sure that Mr Virag has understood everything.  Would you like to approach the dock, Ms Ristivojevic?

27MS RISTIVOJEVIC:  Yes, if I may, thank you, Your Honour.. 

28Thank you He understands and I've also advised him that in regards to the DNA, they'll attend upon him likely in the prison and what the process will be. 

29HER HONOUR:  Yes, that's right.  Good, thank you very much for your assistance.

30MS RISTIVOJEVIC:  Thank you.

31HER HONOUR:  Officers, you may take Mr Virag now, thank you.

32Mr Interpreter, thank you very much for your assistance today.

33INTERPRETER:  Thank you.

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