DPP v Danci
[2020] VCC 575
•7 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CR-19-02105
| CRIMINAL JURISDICTION DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETRU DANCI |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 May 2020 |
| DATE OF SENTENCE: | 7 May 2020 |
| CASE MAY BE CITED AS: | DPP v DANCI |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 575 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence, guilty plea, cultivate cannabis commercial quantity, trafficking, no prior convictions, COVID-19, no prior criminal history, cumulation and totality
Legislation Cited: s3(1) of the Sentencing Act 1991; s5(2H) of the Sentencing Act
Cases Cited: Nguyen & Ho 2017 VSCA 286; Dang 2020 VSCA 24
Sentence:Total effective sentence of 2 and 10 months imprisonment with
non-parole period of 18 months imprisonment.Section 6AAA declaration: 4 years imprisonment with a minimum non-parole period of 3 years imprisonment
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| APPEARANCES: For the Director of Public Prosecutions For the Defence | Counsel Ms L. Dawson for Plea Ms K. Farrell for Sentence Mr C. Terry | Solicitors |
HIS HONOUR:
- Petru Danci you have pleaded guilty to one charge of cultivation of a narcotic plant – (commercial quantity) for which the maximum penalty is 25 years imprisonment; and one charge of trafficking in a drug of dependence for which the maximum is 15 years imprisonment.
- The facts of this matter are set in the prosecution opening which was tendered and marked as exhibit 1 on the plea hearing.
Background
Mr Danci, you were born on 28 May 1965 and were 53 years old when you were arrested. At the time of the offending you were living at 11 Little Hyde Street, Yarraville. This is where the offences took place.
Offending
On 27 March 2019, at approximately 6.25am, police executed a search warrant at a at the Little Hyde Street address which was a commercial factory. When they entered police found you sitting on a bed inside the kitchen, which was also being used as a bedroom. You were arrested and police searched the factory.
The factory had undergone extensive internal modifications and there were internal doors hidden behind large, easily movable shelving. Four shelves were pushed away by police revealing four concealed doors. Behind each door was a purpose-built room fitted with sophisticated hydroponic equipment, including electrical work such as transformers, charcoal exhaust fans, commercial light shades and bulbs, as well as plumbing connected to a central reservoir. There was cannabis growing in each of the four grow rooms as follows:
a) Grow room 1 – 20 immature plants
b) Grow room 2 – 37 immature plants
c) Grow room 3 – 18 immature plants
d) Grow room 4 – 16 immature plants
The cannabis located within the grow rooms was examined by botanist, Susan Fiddian. There were 91 cannabis plants at varying stages of maturity. The total weight of the plants was 27.18 kilograms. Ms Fiddian said, in her statement, that the plants would have increased considerably in weight had they grown to maturity. This is the subject of charge 1.
Inside the factory was an internal staircase which lead to a mezzanine level where police found a separate grow and processing room. On the mezzanine level police located:
- 51 bags of packaged dried cannabis, each bag weighing approximately one pound, located within three containers inside the processing area
- An additional quantity of loose cannabis head and leaf, located on a processing table which had scales and implements used to package the cannabis
Ms Fiddian examined and weighed the loose cannabis head and leaf from the mezzanine level; the total weight was 25.81 kilograms. This is the basis of charge 2.
The combined total weight of all the Cannabis seized was 52.99 kilograms.
10.Police also found the following items in the factory: electricity and water statements and false identification in the name of ‘Dane Stevenson’ which had been used to set up the rental agreement and electricity and water agreements for the factory. The prosecution accepts there is no evidence that you set up the lease of the factory or the utility accounts, and they do not allege this.
11.There was an electrical bypass on the mezzanine level. It is not suggested that you put that in. All of the hydroponic equipment used in the cultivation was still in use and connected at the time of the search.
12.In the main area of the factory there was a woodchipper which had residual cannabis located within and around the external faces of the machine. The chipper was used to break down the cannabis head into smaller amounts prior to the packaging stage.
13.Using the two Honda keys located within the factory police unlocked the Honda vehicle registration 1MD 4QU parked on Hyde Street, Yarraville and found documents linking you to the vehicle.
Arrest and Interview
14.You were taken to Altona North Police Station for an interview. No Romanian interpreter was available and as a result you declined to be interviewed. You were charged and remanded into custody. Later, your lawyer indicated to police you did not want to be interviewed.
Further investigation
15.Police enquiries revealed that rent for the premises was $24,000.00 per year ($2,000.00 per month) for a term of two years commencing on 1 August 2017.
16.You were identified by employees of the real estate agency, where the rent was paid, as being the person who had begun attending the real estate agency in February and who paid cash for the rent from February 2019 onwards.
17.An Apple iPhone X found within the factory contained photographs showing you inside the factory on 19 January 2019. There was also a photograph of a receipt issued by ‘Hodges’ real estate.
18.DNA analysis of the plastic bags seized from the mezzanine area returned DNA that matched your DNA.
19.A fingerprint lifted from a light bulb found on the mezzanine level was a match with your fingerprints.
Personal Circumstances
20.I turn now to your personal circumstances. Mr Danci, you are 55 years old. You have no prior convictions. You were born in Romania. You were the middle child in your family. You had nine siblings. You fled Romania when you were in your early 20s and then you lived in a United Nations refugee camp before coming to Australia as a political refugee at the age of 22, in 1987. In the years prior to leaving Romania you had worked as a labourer.
21.Initially you lived in Western Australia in a refugee camp. Three of your siblings also lived in this camp. You had some difficulty adjusting to life in this country due to your limited English language skills. Notwithstanding your problems with the language you became a cabinet maker.
22.You were married for 12 years but you are now divorced. You have a good ongoing relationship with your ex-wife. She has visited you in prison.
23.In 2000, you returned to Romania and stayed there until 2017 caring for your sick mother. When you had first left Romania you were not able to return for fear you would be detained or imprisoned but by 2000 the political situation had changed. You had a heart attack in Romania in 2009 and you have ongoing health issues relating to your heart problems. You suffered depression after your heart disease because you could not work or sustain an income for yourself in construction. You returned to Australia in 2017 and you were living in Queensland until shortly before this offending.
24.It was submitted on your behalf that your financial circumstances were difficult in Queensland because you had no work. It was in that context that you agreed to participate in this offending for financial reward. You returned to Melbourne for that reason.
25.You were assessed by psychologist Mr Mathew Staios who provided a report dated 17 April 2020. Mr Staios sums up your situation in Queensland and deals with some of the factors that led you back to Melbourne to engage in this offending. You told him that you had a number of medical and physical health conditions and that you were not able to work in the building trade. This led to a decline in your mental state and your financial situation. Apparently, you came into contact with people who became aware of your financial situation and who offered you money to look after this crop of cannabis.
26.Mr Staios describes a history of reactive depressive symptoms in the context of you adjusting to management of your medical conditions and your poor financial status.
27.Your medical history includes coronary artery disease, umbilical hernia and type 2 diabetes.
Submissions
28.In submissions, Mr Terry emphasised that you fall to be sentenced for offences particularised as relating to a single day. He submitted that the quantum of cannabis for charge one is at the very low end of cases involving cultivation of a commercial quantity, only just above the threshold of 25 kg. He submitted this is a matter of primary significance in sentencing in a quantum-based regime.
29.He submitted that your role in this offending was marginally above the level commonly described as a “crop sitter”. He submitted that the only way in which your role differed from that of a crop sitter was that you made rental payments for the premises from February 2019 until your arrest on 27 March 2019.
30.In relation to the trafficking charge he submitted that it is not alleged that you had any ownership of the cannabis or expectation or personal profit from its sale.
31.Mr Terry accepted that you were to be paid for your role in this offending. He had no instructions about how much you were to be paid or how this was arranged. Mr Terry told me that you were provided with cash to make the rental payments.
32.Mr Terry conceded the application of general deterrence for cases such as this but submitted that general deterrence applied with more force to those who organised such enterprises.
33.He submitted that because you are in your mid-50s and have no prior convictions specific deterrence should be given little weight.
34.He submitted that you are entitled to a significant benefit for your previous good character, indicated by your lack of prior convictions.
35.Ms Dawson, on behalf of the prosecution, accepted that the quantum of the cultivation charge fell to the lower end of commercial quantity cases by weight but made the point that in relation to the trafficking charge the quantum was at the high end, accepting of course that you did not have the requisite intent in relation to a commercial quantity for that charge.
36.She submitted that although weight is an important consideration in the sentencing exercise, it is not the sole or the determining factor or even the chief factor in sentencing. She referred to Nguyen & Ho 2017 VSCA 286 where the Court of Appeal considered the factors relevant to assess the role of the offender.
37.Ms Dawson set out what the prosecution relies on as your acts of involvement.
38.Ms Dawson submitted that your offending falls within the middle of the range. She submitted that you had a higher level of trust and responsibility in the cultivation scheme than a “hypothetical crop sitter not tasked with the handling of money”.
39.She submitted that the scale, sophistication and concealment of the cultivation within the factory and the presence of growing and dried cannabis points to the factory being set up for ongoing profit.
40.She submitted the general deterrence, denunciation and just punishment carry weight in the sentencing process for this offending.
41.Both Mr Terry and Ms Dawson made submissions about the relevance to sentencing of the COVID-19 virus. I will return to that matter.
Gravity of offending
42.In the case Nguyen v The Queen [2017] VSCA 286 18-19 the Court of Appeal paragraphs 17 and 18 said:
... “it is important that any label that is attached to the offender’s role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise.[1]
[1] Nguyen v The Queen [2017] VSCA 286 18-19 p17
… “the focus when sentencing an offender must remain on what the offender has done in relation to the cultivation that forms the subject matter of the charge rather than the label to be applied.[2]”
[2] Nguyen v The Queen [2017] VSCA 286 18-19 p18
43.You occupied a position of trust and responsibility in relation to this cultivation. The organiser or organisers of this operation gave you the responsibility of paying the rent, a basic but essential role to ensure the success of the enterprise and avoid detection. You were apparently provided with cash to do this. You were living at the factory. You had effective control of the premises and the highly sophisticated hydroponic set up inside, refurbished to include shelving which concealed doors that opened into the grow rooms as well as all the other equipment required for such an enterprise.
44.You were the custodian of the large amount of packaged cannabis in the mezzanine level that looked ready for distribution, a further indication of the trust and responsibility placed in you. However, it is not suggested that you were to have any share in the profits of this cannabis or any direct involvement in its sale.
45.In his submissions, Mr Terry dealt with the two offences here quite separately, but I accept the prosecution submission that the presence of growing and dried cannabis points to the factory being set up for ongoing profit. The amount of cannabis on the mezzanine level shows what this enterprise could produce. Looked at in this way, there is overlap in the overall assessment of the offending in this case. It would be artificial to consider these two offences entirely in isolation from each other.
46.I accept Mr Terry’s submission that the quantum of the cannabis was at the very low end for a charge of cultivating a commercial quantity and that is an important matter in the assessment of charge 1. Of course, these plants were immature and had much growing to do. There is an element of chance to the weight of plants depending on what stage of the cycle police execute the search warrant.
47.The charges here are framed as single day offences and I have not lost sight of this. It is accepted that you paid the rent from February and that the photo on your phone shows you at the property in January. These matters provide the context to your offending which relates to the day of the search and your arrest, at which time you must have well understood that what you were being paid to maintain was a sophisticated ongoing operation.
48.It is not suggested by the prosecution that you were an organiser of this crop. I accept this. Someone else leased the property and set up the hydroponic system inside. It is not put by the prosecution that you harvested or packaged the cannabis the subject of charge 2, but you must have handled some of the bags for your DNA to be on them. It is not suggested by the prosecution that you had a direct stake in the profits of the enterprise.
49.I do not know how much money you were receiving but I infer that it must have significant enough to lure you from Queensland to live in this factory and engage in this serious criminal conduct. Given the sophisticated nature of this operation and that the trusted role you were paid to perform, your moral culpability for the offending, while obviously much lower than an organiser, is significant enough.
50.Without people such as yourself being willing to take on the role of tending to the crop, those who organise such cultivations could not remain at arm’s length and avoid detection and prosecution. They can engage in this unlawful and profitable activity relatively risk free.
51.I accept that you were in the role of an employee but an important and trusted employee.
52.To put it another way and adopting Mr Terry’s terminology, I asses your role as being a little above mere ‘crop sitter’ but below a principal.
Current Sentencing Practices
53.There was extensive discussion on the plea of a number of comparative cases including Nguyen 2019 VSCA 134 and Dang 2020 VSCA 24. There are relevant similarities in all these cases but of course none are quite the same as your case.
54.Mr Terry provided the sentencing statistics both cultivating commercial quantity charges and for trafficking from 2013-2018. I’ve also had regard to the case summaries and decisions of both the Court of Appeal and this court for cultivation of commercial quantity offences, of which there are many. While these cases are of considerable assistance in identifying the appropriate sentencing range for offences of this nature, they are a guide and not a controlling factor in the exercise of the sentencing discretion.
COVID-19
55.in relation to the COVID-19 virus I accept that the burden of your imprisonment so far has been increased by the restrictions imposed in the prison as a response to the pandemic. Any further period of imprisonment will be more burdensome because of the current situation. Prison visits have been suspended; lockdowns are prevalent; work opportunities reduced. There is potential for further restrictions. The threat of an outbreak creates further anxiety.
56.I accept these are significant matters and require discernible moderation of the sentences to be imposed.
Mitigation
57.Mr Danci, you pleaded guilty to this matter on the morning of the committal hearing on 21 October 2019. No witnesses were called, and the matter proceeded by way of hand up brief. I regard this as an early plea of guilty. You must be given credit for the utilitarian benefit of your plea. You have saved the community the time and expense of a trial and you have facilitated the course of justice. I do not have any clear evidence of remorse in this case other than your plea, but I do accept that your guilty plea indicates some remorse for your offending.
58.I accept the point made by Mr Terry in his submissions that in relation to charge 1 the quantum of the cannabis is only just above the commercial threshold and therefore it may have been difficult for the prosecution to prove this charge. In those circumstances your guilty plea to that charge was significant.
59.You never applied for bail in this matter indicating your realistic attitude from an early stage to the inevitable sentencing outcome in this matter.
60.You have no prior convictions or any subsequent convictions. This is an important matter in mitigation, particularly because you were a person of mature years when you committed these, your first criminal offences. I accept that your offending came about in a context where your health meant that you could no longer work in your chosen occupation. You were in a difficult financial position and had some reactive depressive symptoms. These things shed some light on why a man of your age with no prior convictions would involve himself in this serious offending. You have now been in custody for over 400 days to reinforce to you the consequences of what you did, and I can see no reason why you cannot revert to your earlier law-abiding life when you are released. Therefore, I accept that specific deterrence is of little weight in this case. I accept you have very good prospects of rehabilitation.
Sentencing principles
61.I turn to sentencing principles. Charge 1 is a Category 2 offence pursuant to section 3(1) Sentencing Act 1991. Section 5(2H) of the Act requires that the Court make an order for imprisonment for a Category 2 offence committed by an adult unless the criteria under section 5(2H) (a)- (e) apply. None of these criteria apply in this case and Mr Terry accepted that imprisonment is the only sentence open in this case.
62.It is clear from the Court of Appeal cases dealing with commercial cultivation that general deterrence which is the need to deter others who might be inclined to offend in the same way as you did for reward, is of primary importance in a case such as this. I must also denounce this offending.
63.I have not lost sight of the credit you should be afforded as a mature person without prior convictions, the increased burden of your imprisonment as a result of the COVID-19 situation and what I regard as your very good prospects of rehabilitation. I agree with Mr Terry’s submission that the non- parole period should emphasise rehabilitation which I take to mean there should be a substantial gap between the head sentence and the minimum sentence.
Cumulation and Totality
64.In this matter, in my view, it is necessary for some significant cumulation of the sentence imposed on charge 2. The large amount of cannabis on the mezzanine level is the basis of a separate and serious crime. That said, both offences arose on the same day, in the same place and in the same overall circumstances. Considerations of totality are also relevant.
Sentence
65.I will now proceed to the sentences Mr Danci.
66.On Charge 1 of cultivation a commercial quantity of cannabis, you are sentenced to a period of imprisonment of two years and two months. On Charge 2 of trafficking cannabis, you are sentenced to a period of imprisonment of 20 months.
67.I order that eight months of the sentence on Charge 2 is cumulative on the sentence for Charge 1. Therefore, the total effective sentence head sentence is two years and 10 months. I fix a minimum non-parole period in this matter of 18 months.
68.Pursuant to s.18(4) of the Sentencing Act, I declare pre-sentence detention of 407 days to be deducted from the sentence I have imposed. This will be entered into the records of the court.
69.Pursuant to s.6AAA, I declare that but for your plea of guilty, I would have imposed a sentence of four years with a minimum of three years.
70.I will make the disposal order in the terms sought by the prosecution.
71.Now, Mr Terry, Mr Danci, could you hear all of that?
72.OFFENDER: Yep.
73.HIS HONOUR: Yes. Mr Terry? I am not hearing you now, Mr Terry.
74.MR TERRY: Yes, we have heard all that. I got it all in as did my instructor. We will make it clear even after the link is closed with Mr Danci, we will speak to him as well so he will be left in no doubt.
75.HIS HONOUR: Yes, all right. So, Mr Danci, it is two years and 10 months head sentence, 18 months non-parole period. There is a deduction of 407 days which means you have got about five months before you are eligible for parole. You understand all that?
76.OFFENDER: Yep.
77.HIS HONOUR: All right. No other orders required?
78.MS FARRELL: No, Your Honour.
79.HIS HONOUR: All right. Mr Terry, if there is nothing more. All right, thank you.
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