Director of Public Prosecutions v Zerafa

[2015] VCC 320

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01971

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH ZERAFA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 March 2015
CASE MAY BE CITED AS:	DPP v Zerafa
MEDIUM NEUTRAL CITATION:	[2015] VCC 320

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr M. Page

HIS HONOUR:

1Joseph Zerafa, you have pleaded guilty to a charge of cultivating simpliciter and you pleaded not guilty to a charge of cultivating in a commercial quantity.  On 12 November 2014 you were convicted of that charge by a jury.  It carries a maximum penalty of 25 years' imprisonment.  You are now 46 years of age.

2You endeavoured to resolved the matter by pleading guilty to cultivate simpliciter and I accept, having watched the trial, that there was nothing untoward in your having defended the matter.  It did not, in my view, display a lack of remorse and indeed it seems to me that there was a potential verdict of not guilty on this particular charge open to you on the material.  The jury, clearly, has taken a different view and of course I must sentence on that basis.

3In this particular situation so far as the utilitarian aspects are concerned the trial, if I might say so, was run very briefly, very competently and involved no wastage of time.  Accordingly, whilst you do not have the normal mitigating feature of a plea of guilty to the charge for which you will to be sentenced it is certainly in your situation not an aggravating feature. 

4The most difficult aspect of your circumstances, Mr Zerafa, is your prior history.  It goes back a long way.  I have had the circumstances of some of these explained to me but in 2004 you were given a 12 month suspended sentence for trafficking cannabis at Wodonga.  In 2003, possess cannabis, 1994 possess cannabis, 1993 possess and use, 1991 traffick and cultivate cannabis with nine months with three to serve.  You then had possession cannabis charges prior to that.  In 1989, traffick heroin, 1988 traffick heroin and you were given suspended sentences for those.  There are other prior convictions which seem mainly to relate to driving and are of no real significance here.

5The circumstances of the offending set out in the Crown opening for the plea I have obviously had the opportunity of hearing this evidence tested at trial and there is another trial to come of a Mr Calafati.  I do not want it to be seen that I am making findings against Mr Calafati in any way.  I am simply sentencing you on the basis of the Crown opening and with, perhaps, some observation of matters as perceived by myself.

6You, Mr Zerafa, was the leasee of a factory in Ravenhall.  At the end of January 2013 police installed an optical surveillance device outside that factory.  They also conducted physical surveillance.  It became clear to police that you were attending the factory almost daily and that there was no, on the face of it at least, legitimate business being conducted at that time in relation to the factory.  I am told you that you had originally leased the factory as part of your building business and I have no reason to disbelieve that.  You were attending in various vehicles from Hyalite, where you had worked and which was a hydroponic shop.

7On 6 March 2013 police, accompanied by a forensic botanist, executed a covert search warrant at the factory and a video recording was made of that covert search.  At that stage there were plants under hydroponic cultivation.  It was clearly a situation, in my view, and this was put to me that you were growing plants in such a way as to determine what would be the most efficient or effective way of obtaining a maximum yield insofar as growing cannabis was concerned.

8You were keeping a record of the nutrients that were being used the effect that they were having on the plant.  Interestingly the botanist who attended on that day in cross-examination would not indicate what weight he regarded the plants would have had at that point in time.  Whether they were commercial weight at that stage or not, we will never know.

9In any event on 1 May 2013 police installed an internal surveillance device and I have had the benefit, if it can be called that, of watching the results of that surveillance.  On about 28 May 2013 that surveillance indicated that cannabis plants were being harvested, removed from some of the tents in which they were being grown and removed to what was the office space within the factory.

10

Plastic bags were brought into the factory and from a couple of days a

Mr Spirovski, who I have already sentenced, participated in that harvest with you.  You were seen clearly engaging in harvesting and you were seen clearly on a number of occasions form the early time of May attending to the plants.

11In any event on 31 May police executed a search warrant.  In all something in the order of 30 or so plants were found.  There was dry material both mixed with other material and just cannabis simpliciter.  The total combined wet weight of the cannabis was 35.12 kilograms and there was also cannabis mixed with other material of 15.36 kilograms.  The Crown opening says that the market value of the cannabis located was somewhere between $20,000 and $140,000 which is an extraordinarily wide range but I understand the reason for that. 

12What was put to me was that in fact the cannabis that was harvested was to be retained by you effectively as your payment for having conducted these extensive experiments and that was to be the only benefit you got from it.  I do not think I need in this situation to go through all the detail of the Crown opening.  I simply direct that that remain on file but if there is a crop which could be described as sophisticated, it was this one.

13When police attended, I accept your counsel's submissions that the crop was, one, being harvested but, two, the set up was being dismantled.  There is nothing before me to suggest that in those premises you had previously grown a crop or that there was any intention of growing another crop.  This is the crop for which you must be sentenced and I have had the purposes of your involvement put to me by your counsel.

14The difficulty with this is, Mr Zerafa, that you have been gaoled for this before.  You know what the consequences can be, or should be, regarding the cultivation of cannabis.  It was a prolonged, calculated and considered operation and clearly you knew what you were doing and clearly knew the criminality of it.  Material has been put before me, which I accept, that you have, for a long time now, suffered from bipolar disorder but it is not put in any way, shape or form that that has contributed to this particular offending.

15It has to be regarded as serious.  It calls for the application of general and, indeed, specific deterrence as well as denunciation and appropriate punishment.  General deterrence in this particular situation, I think, are of real importance.  It seems to me that you could not have a situation where a crop of this nature, in these circumstances, was being produced without the fear of incarceration playing a part in the deterrence of others with a like mind.

16The sentencing statistics indicate that for this type of offending, certainly between 2008 and 2013 it was almost invariable that some form of custodial sentence was imposed.  Those statistics are dangerous in a sense that they tend not to reveal whether the other person who received that sentence had prior convictions or how many of them or any such matters.  But the fact of the matter is that it can only be described at, up until recently at least, as expected that someone involved in this sort of offending would receive a significant gaol sentence.

17What is being put on your behalf is that this is a situation where, particularly in light of the recent decision of R v Boulton and a couple of other subsequent decisions, that this is a matter whereby a community corrections order can suffice for all those purposes.  The appendix to the decision of Bolton says,

"Sentencing judges should proceed on the basis that there is now a very broad range of cases in which it will be appropriate to impose a suitably structured CCO either alone or in conjunction with a shorter term of imprisonment, including cases where a sentencing of imprisonment would formerly have been regarded as the only option".

18That appendix, when addressing sentencing judges says,

"In determining whether to sentence an offender to a CCO the court should first assess the objective nature and gravity of the offence and the moral culpability of the offender".

19In that regard I simply say this, that it is a calculated process.  You were able to use, and I am not going to buy into where it came from or who provided it, sophisticated material and you have done it before.  There is nothing to suggest that you were not aware of the potential consequences of what you were doing if you were apprehended and obviously the determination would be that you would not be apprehended in the first place.

20The appendix then goes on to say,

"...assessed as so serious that nothing short of a sentence wholly compromised of an immediate term of imprisonment will suffice to satisfy the requirement of just punishment or a CCO, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment".

21Clearly, and I am not going to go through all the details contained in Boulton, obviously now that it is now determined that there can be a serious punitive aspect of a community corrections order that relates to both specific deterrence and general deterrence and if the community, apparently, are sufficiently educated, can operate as just and appropriate punishment.

22As to whether that is the case in your situation, Mr Zerafa, with offending of this nature I look to matters personal to yourself.

23You are 46 years of age.  You clearly have strong family support and your parents and partner were present at the plea hearing that took place the other day.  You have a long history of bipolar disorder and have had psychiatric admissions over the years on a significant number of occasions, sometimes involving months.

24It is not put that that gave rise to this offending but I note that a year or so prior you had severe psychiatric difficulty and, indeed, I am told from the Bar table and have no reason, again, to disbelieve that your business had run into difficulties. 

25It is put that you were asked to participate in this and I say I have no idea what that background to all of this is.  I may have certain suspicions which may or may not be established in the coming months but be that as it may you, in that situation, determined to grow, or assist in growing, this particular crop.

26You have a good work record.  There are no exceptional circumstances insofar as mercy is concerned and I accept what was put by your counsel and what is contained within the report.  That with your disorder and the need for medication that you may well, or would may well, do gaol harder than would another prisoner.

27I have taken into account the references that were tendered on your behalf and the report of Dr Okadova about your background.  It is clear that in recent times your mental stability has been pretty good because you have been maintaining your medication.  Again, it is has been put to me that you have been a very long term chronic user of cannabis.  You have indicated that in more recent times you have been able to abstain.  That chronic use would seem to fly in the face of the sworn evidence that was called on your behalf but be that as it may.

28The prospects of your rehabilitation should be good however past history has indicated that when opportunities have been given by way of suspended sentences ultimately that was of not great avail.  The risk of you re-offending after this experience, I think, are pretty low.  I say that in the sense that I have now heard evidence, and I accept this, that your business situation has improved, that you have optimism and that you have plans for the future insofar as supporting yourself and your family are concerned.

29I take into account that a sentence of imprisonment would be hard on you bearing on mind the circumstances of this and the matters that are referred to in Boulton such as being disengaged from your family.  There are a number of matters which a community corrections order can offer that simple imprisonment cannot.  I accept all those.

30In the end I have formed the view that it is just inevitable, in your particular situation, for this offending that there has to be an active custodial element.  We are in very new territory insofar as calculating such sentences are now concerned and it is clear from Boulton that what previously may have been multiple years in prison can be significantly reduced by the imposition of a community corrections order.

31As I understand it no matters have yet been taken by the Crown to the Court of Appeal insofar as determining these matters are concerned and I certainly do not want you to be the first.  The fact of the matter is that it is clear that there is a new regime of sentencing in this state subsequent to that Court of Appeal decision and judges are just going to have to do their best to apply it appropriately and proportionately.

32As I say I have taken into account all the principles outlined in those decisions which your counsel alluded to and which, of course, I was very much aware.  When it comes down, in the end, is this.  That what you did insofar as this was concerned, you just cannot do and not expect to get locked up when you have been locked for it before.

33Accordingly on that charge, you are sentenced to be imprisoned for a period of four months.  Upon your release you are to enter a, if you agree otherwise I will re-sentence, to a community corrections order in there terms outlined in the Community Corrections support.  Because you are receiving an active custodial sentence there will be no community work in that but there will be treatment and rehabilitation in relation to drugs, treatment and rehabilitation in relation to mental health and supervision.  It will, of course, be three years if he agrees to do that.  There is no PSD is there?

34MR PAGE:  There is no PSD, Your Honour.  Can I just send my instructor up to make sure he agrees.  I'm 100 per cent certain he does, Your Honour.

35HIS HONOUR:  I'll re-sentence if he doesn't.  Dramatically.  I should also in those sentencing remarks, he has been assessed for a community corrections order and found to be suitable and counsel had the opportunity of reviewing that report. 

36MR PAGE:  Yes, he agrees to that, Your Honour.

37MR ALBERT:  Your Honour, the three years starts after the four months.

38HIS HONOUR:  That's right.  It starts after - the actual - I now understand this.  The order commences, he's got commences, within two days of his being released.  If you have a gaol lockdown or something like that you - so it's not after four months, it's after release.  So if there's a lockdown and he gets out a month earlier or something then so be it.  There's no other orders, is there?

39MR ALBERT:  Your Honour, you'll recall the mention of a disposable order for the camera  ‑ ‑ ‑ 

40HIS HONOUR:  Yes

41MR ALBERT:  Forfeiture order for the camera and it's needed for the following trial.

42HIS HONOUR:  That's right.

43MR ALBERT:  But nonetheless what my instructor seeks is an order to decide it won't be destroyed before the trial but we'll have that order be activated, given to the police officer at an appropriate time.

44HIS HONOUR:  That's up to the - I mean I don't order that it be destroyed, I just make an order that enables you to.

45MR ALBERT:  Yes.

46HIS HONOUR:  So if you've got that, I'll sign that right now.

47MR ALBERT:  Yes we have, Your Honour.  I take it it's by consent?

48HIS HONOUR:  Yes.

49

MR PAGE:  Yes, Your Honour, there's no issue with that. 

Your Honour, may I just approach Mr Zerafa?

50HIS HONOUR:  You're going to anyway because you're going to take him the CCO.  The forfeiture order has been made and handed down.  We'll just see what Mr Page has to say first.

51MR PAGE:  Thank you, Your Honour.

52HIS HONOUR:  Is there anything you want to say?

53MR PAGE:  No, Your Honour.

54HIS HONOUR:  No?  That's fine.  All right that order is made.  Just stand up for just for a moment, Mr Zerafa.  I just say this to you, you have heard what I have said.  You just cannot do this.  Can I simply say that the way you have conducted yourself and the way that your counsel has conducted this trial has been impeccable; all right?  We often have real difficulties when people take silly points and do all sorts of things. 

55I simply say that to you that you cannot do what you did and you have got to locked up for it but just to make sure it is understood that I regard your conduct during the trial as having been very good.  Yours too, Mr Page.

56MR PAGE:  Thank you, Your Honour.

57HIS HONOUR:  All right, no other orders, nothing to be done?

58MR ALBERT:  No, Your Honour.

59MR PAGE:  No, Your Honour.

60HIS HONOUR:  All right.

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