Director of Public Prosecutions v Vocaj
[2022] VCC 1659
•28 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTIJAN VOCAJ |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022 and 26 September 2022 | |
DATE OF SENTENCE: | 28 September 2022 | |
CASE MAY BE CITED AS: | DPP v Vocaj | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1659 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Falsification of documents – Cultivation of a narcotic plant (commercial quantity) – Permitting use of premises for cultivation of a drug of dependence – Trafficking in a drug of dependence – Possession of a false travel document – Mitigation – Plea of guilty – Deportation – General deterrence – Denunciation – Parsimony – COVID times.
Cases Cited: Worboyes v R [2021] VSCA 169; Chenhall v R [2021] VSCA 175.
Sentence: Three years and nine months imprisonment with a non-parole period of two years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr D. Hannan | Malkoun & Co Lawyers |
HIS HONOUR:
1
Mr Kristijan Vocaj, on 10 November 2020, a concerted police investigation into cultivation of cannabis in domestic homes in the Eastern suburbs culminated in search warrants being executed at a number of properties. Those raids followed on from a significant amount of surveillance at six properties. Cannabis was found growing and stored at a number of properties. You,
Mr Vocaj, were the subject of surveillance and were implicated in this
well-organised cannabis cultivation operation. You were arrested at one of the properties where you were at the time living. You have pleaded guilty to a number of offences arising from the investigation.
2
Prominently, you have pleaded guilty to a rolled-up charge of cultivation of cannabis in not less than a commercial quantity involving two houses at
8 Ernst Street, Doncaster, and 55 Harrow Street, Doncaster. The precise quantity found was 68 plants weighing 110.5 kilograms. You have also pleaded guilty to trafficking cannabis, being a total of 21.36 kilograms found in 48 small bags hidden under the stairs at 4 Milan Street, Doncaster. You resided at this address in Milan Street and thus you were in possession of this dried and bagged cannabis for the purposes of sale. Another house at 10 Leonard Street, Doncaster, was connected with you in the sense of one of your false names was the one used to rent the properties.
3
This property was used to cultivate cannabis using systems and items common with the other properties. In total, 52 plants weighing 92 kilograms were found during the search of this house at Milan Street. Also found during the search and hidden in a heating duct at your house at 4 Rutland Road, Doncaster, were false documents, being a false Victorian driver's licence, a Medicare card and a shopping card. Concerningly, also there was a false Italian passport with your photograph on it but a different name. These false documents as I have said were found hidden in a heating duct. Finally, the investigators found
$5,440 cash which has seen you plead guilty to a summary offence of dealing with the proceeds of crime.
4 The cultivation of cannabis and the possession of cannabis for the purposes of sale are all too common offences that come before this court. The other charge or the charge arising or relating to Milan Street is less common. It is a charge of allowing premises to be used for the purposes of cultivation. That offence has a maximum term of five years. Cultivation of a commercial quantity of cannabis has a much longer maximum term of 25 years and is a category 2 offence requiring incarceration unless strict exempting circumstances are established. It is conceded by your counsel that no exempting circumstances are established in your case. The nature of the charges, being cultivation and possession for the purposes of trafficking and allowing premises to be used for cultivation, do explain the overall criminality involved here.
5 This was a well-organised criminal operation. It is clear a group of relatives and associates with connections to Albania operated together to cultivate and distribute cannabis in the Eastern suburbs. You were part of that with your crop house and then being connected to a house where others were doing the cultivating. And finally, you were also part of the distribution of cannabis by storing bags of harvested cannabis in the house where you were living. I point out that there was no crop in that house. The gravity of these cannabis cultivation and trafficking crimes is in part determined by the quantities involved but also important is the role of an accused in the whole criminal operation. This court often deals with offenders at the lowest level; crop sitters as they are described.
6 Less often before the courts are the more important organisers and drug entrepreneurs. In this case, it is clear that you are an organiser of your own crop houses. It was submitted by your counsel that you were nonetheless at a lower level than the true organisers and entrepreneurs, principally, an uncle of yours, who escaped or went back to Europe before the raids and warrants occurred. Before dealing in more detail with your personal circumstances and the reasons you joined with your uncle, I need to again refer to the gravity of the offending with particular reference to the most important sentencing purposes.
7
The Court of Appeal has made clear that, in assessing the gravity of cultivation offences, the sentencing judge must consider all the circumstances of the offending, such as the tasks done by the particular offender, the nature of the relationships with other offenders or between offenders and those said to be
- and the relationship between the offenders and the relationship to those who are said to be the principals. These matters will expose just how trusted and what responsibility is given to an accused. This may also give a basis for considering the likely benefit to be expected by an offender from the cultivation. As noted, the size and weight and sophistication involved in setting up and committing the cultivation and trafficking offences are important in assessing overall gravity.
8 The Court of Appeal has also made clear that general deterrence is a very significant sentencing purpose, no matter what the role or level of a particular offender. Also of importance is the sentencing purpose of denunciation. Denunciation is to be satisfied not only by what I say of your crimes but by the imposition of stern punishment in the form of years of imprisonment. It has often been said this crime of cultivation of significant crops of cannabis in domestic homes is difficult to detect while the impact of the drug once sold into the community is significant. The purpose of the entrepreneurial cultivators is to make as much money as possible without any concern for the detrimental impact of drug use in our community.
9 The efforts and expense involved in establishing these indoor cultivation factories, that is, within ordinary domestic homes, makes it clear that sizable profits are expected by the organisers. Plainly in your case, the crimes you committed are serious and of significant scale in terms of volume or weight and sophistication of how the crimes were committed. You are connected with more than one property and you were deeply involved in the cultivation of your own crops as you frankly admitted. Also, you had possession of a significant amount of cannabis bagged ready for sale. The operation involved all aspects of the crime of growing then moving cannabis to the users.
10 Also, false documents were used to secure properties that were to be used as cannabis production houses. It was an operation involving a number of other offenders. Some have been sentenced in the Magistrates Court and another is awaiting trial and at least one has disappeared overseas. On any measure, this was organised crime and you played an important and trusted role within the organisation. As to your moral culpability, you knew what you were doing was criminally wrong. However, why you were involved is wrapped up in aspects of your personal circumstances and I turn to those now. You are now 30 years old. You were born in Albania. You moved to Italy at the age of nine as your father, a roof tiler, was better able to get work in Italy than in Albania. You went to school in Italy until age 16.
11 Around this time, your family returned to Albania. You then worked in a café for two years. You have instructed that opportunities in Albania were few and far between for you as a young man. Your family had struggled and your own future did not look optimistic. At age 21, you used false travel documents organised by relatives to come to Australia. You arrived here in 2013. As noted, the purpose of the move to Australia was to give you chances not available in Albania. However, your false travel documents made it near on impossible for you to work legitimately. You were under the influence of an uncle who associated with Albanian and Italian criminal associates himself.
12 You became immerged in the cultivation and drug trafficking activities of your uncle and associates. An important matter to separate you from your associates was that you ultimately met and began a de facto relationship with your partner and still your partner. This began in 2019. She supported your application for a partner visa and that was lodged in the weeks prior to your arrest. You wanted to regularise your immigration status if that was possible. Your partner has remained supportive as has her wider family. It is clear this relationship is important to you both. You and she are expecting a child in January 2023. It seems the relationship and the potential for a partner visa are the very things you had in mind when you left Albania for greater opportunities in Australia.
13 Those opportunities will now all come to nothing because of your crimes; that is, given the seriousness of your crimes and the falsity of your initial travel documents, it is inevitable you will be deported after you serve your sentence. You will be returned to Albania where of course you have significant family connections with elderly parents and a sister. However, you will be separated from your partner and child who have a family and a whole life here in Australia. I take into account that your prison sentence will be more onerous because you will be thinking of the loss of your chance to establish your life in Australia with your partner and child. There are other circumstances that are appropriately called upon in mitigation. You have no prior convictions here or as I understand it overseas.
14
You have been on very strict bail conditions upon your release after nearly
four months or 118 days on remand from your custody until you were granted bail. You have complied with bail including the wearing of an ankle bracelet, the cost of which must be borne by the wearer. Since your arrest and interview, in which you made admissions, you have instructed your lawyers to settle your case. That ultimately led to the charges on the indictment. These charges that you pleaded guilty to are different to what you first faced. Thus, your plea of guilty is rightly considered an early one. More important is the fact of your plea of guilty in circumstances where the criminal justice system is still dealing with the significant impact of the COVID-19 pandemic.
15 In accordance with the Court of Appeal decision in Worboyes[1] and Chenhall,[2] I must make the benefit to you of your plea of guilty greater than it would have been in earlier times. The benefit must be obvious to you and others. My sentence ought be one or must be one that encourages others who are guilty to plead guilty so that the beleaguered criminal trial lists are relieved. This is a matter of significance in mitigation, lowering your sentence than where it otherwise would have been. Your plea of guilty and your co-operation generally are evidence of your remorse. Your fiancé, her family and your friends see many good aspects of your character and they can see your remorse. Their letters to the court were genuine and helpful. One factor I note in this regard is your plea of guilty at this point.
[1]Worboyes v R [2021] VSCA 169.
[2]Chenhall v R [2021] VSCA 175.
16 I say that because you have not sought to delay until after your child is born. That is no small matter and it is very much to your credit in mitigation. I also note that there has been a significant time since your arrest. Thus, delay and having this hanging over your head are matters in mitigation. Your previous good character and what you have done on arrest and since indicate that you have good prospects of reform. All I can do is facilitate your rehabilitation. Well, to facilitate your rehabilitation is to allow for a period on parole. I will do that but I am mindful of your immigration difficulties and thus I am further mindful that you may have to do every day of the head sentence that I fix.
17 I have ensured that appropriate consideration has been given to the totality of what are connected crimes in an overall criminal opinion of which you were a part. I have examined the cases your counsel relied on by way of comparatives. There are many more examples of sentences imposed by County Court judges and on appeal and in the Court of Appeal. That is because, unfortunately, this offence is regularly before this court, but what is obvious from all those cases and also from your own case is that the circumstances of each offence and offender and different in important ways.
18 No other sentence is determinative of another. Finally, I must always ensure the principle of parsimony is to the fore. Doing the best I can, in respect of Charge 1, the false documents, you are sentenced to a term of imprisonment of one month; Charge 2, cultivation of cannabis in not less than a commercial quantity, you are sentenced to three years and three months; on Charge 3, allowing the premises to be used for the purpose of cultivation, you are sentenced to nine months; on Charge 4, trafficking in cannabis, you are sentenced to one year and two months; on Charge 5, a Commonwealth offence of having false travel documents, you are sentenced to one month imprisonment; for the summary offence of dealing with the proceeds of crime, you are sentenced to one month imprisonment. As to the orders for cumulation, the base sentence is obviously Charge 2.
19 I order that two months of Charge 3 and four months of Charge 4 be cumulative upon each other and upon Charge 2, the base sentence. So it is clear, all other sentences are concurrent, and importantly, the Commonwealth sentence starts immediately and is wholly concurrent with the State sentences. The summary offence, the term of imprisonment of one month, is also concurrent. The total effective sentence is thereby three years and nine months and I order that you serve a non-parole period of two years and six months. I note that you have already served 118 days in custody. This figure having been reckoned, I now declare it as part of the sentence that I have just imposed.
20 I will ensure that this declaration is entered into the records of this court so the prison authorities are clear that you have already served 118 days of the sentence I have just imposed. Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of five years with a non-parole period of three years and 10 months. The other orders that are sought generally should be held off until the end of the other accused man's matter. Is that as you have it, Mr Grant?
21 MR GRANT: Yes, thank you, Your Honour.
22 HIS HONOUR: Is there is anything specific to this that can be dealt with, I will, but, Mr Hannan, is there anything else required?
23 MR HANNAN: No, Your Honour.
24 HIS HONOUR: Thank you. Mr Interpreter, just so the bottom line is clear, it is always helpful to keep repeating. It is three years and nine months with a minimum term of two years and six months. Thanks. If there nothing further, Mr Vocaj and also to his family who are here, the court is just not set up for arrangements for interaction before you, Mr Vocaj, have to go with the prison authorities. So I will ask you to go with the prison authorities now. Mr Hannan will be able to come and see you and assist you and others will be advised by your lawyers how it is that they get in touch with you. Thank you, Mr Interpreter. Again, thank you, Mr Interpreter. Can I ask, Mr Hannan might need some assistance with the interpreting, if you could just discuss that with him for later. There is nothing further?
25 MR HANNAN: No, Your Honour.
26 MR GRANT: Thank you, Your Honour.
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