DPP v Joumaa
[2020] VCC 2076
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-02131
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IBRAHIM JOUMAA |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 December 2020 | |
DATE OF SENTENCE: | 17 December 2020 | |
CASE MAY BE CITED AS: | DPP v Joumaa | |
MEDIUM NEUTRAL CITATION: | [20210] VCC 2076 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Cultivate narcotic plant – cannabis, theft
Legislation cited: Drugs, Poisons and Controlled Substances Act
Sentence: Convicted and sentence to 411 days imprisonment with time already served and fined $5,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D. Porceddu (Plea) Mr T. McCulloch (Sentence) | Director of Public Prosecutions |
| For the Accused | Mr A. Chernok | Balmer & Associates |
HIS HONOUR:
1 Ibrahim Joumaa, on 16 December 2020 you pleaded guilty to the following two charges on Indictment K12013333.1:
Charge 1, cultivated narcotic plant cannabis. The prosecution case says that you are to be sentenced on the basis of an intention to cultivate in a quantity reflecting what is referred to as a simpliciter offence. The maximum penalty in this case is 15 years imprisonment, and I will return to that when I talk about sentencing principles.
Charge 2, theft of electricity belonging to Powercor Australia Ltd and the maximum penalty for that charge is 10 years imprisonment.
Circumstances of your offending
2 In June 2019, police commenced an operation to investigate the cultivation of cannabis in the Melton area. By July 2019, the police attention was drawn to the property on Longshanks Street in Thornhill Park. The premises was owned by Gulcarn Kaper and Mustafa Joumaa who is your brother. The power and gas accounts connected to the property were under your name. You had leased the property and you were living at the premises.
3 On 18 July 2019, police were conducting surveillance at the premises. They observed three men working in the front garden of that place. A vehicle registered to Mustafa Joumaa was in the street. Your black Mitsubishi sedan registered number BAX 467 was parked in the garage of the premises.
4 On 22 July 2019 Detective Simmons made further inquiries with Powercor which revealed that the address was using excessive electricity compared with the average household. On the same day, Simmons applied for and was granted a search warrant pursuant the Drugs, Poisons and Controlled Substances Act.
5 On 1 August 2019 police attended at the premises at Longshanks Street, Thornhill Park. Senior Constable Simmonds knocked on the front door. Whilst at the front door, police identified themselves as police and also announced that they were in possession of a drugs, poisons, controlled substances search warrant, however, there was no response. After several minutes, the police decided they would use force to enter the house. Eventually, you opened the door to the house. Simmonds explained to you that he was in possession of a search warrant. The police then entered the premises.
6 After entering the house, Simmonds inspected two rear bedrooms which were being used to cultivate cannabis. The cannabis plants were being cultivated in pots under light shrouds and globes. The plants were counted to confirm that there were six large plants growing in each of the two bedrooms. You were then placed under arrest for cultivating cannabis. That is Charge 1, cultivate simpliciter. You were given your caution and rights.
7 After inspecting the plants, Detective Simmonds entered the garage and observed a black coloured Mitsubishi sedan bearing the same numberplate BAX 467. This was the same vehicle that Simmonds had seen on 18 July 2019. He then requested the attendance of Powercor to inspect the power supply at the property. Simmonds also requested a person from Botanist Unit of Victoria Police to attend to examine the cannabis plants.
8 At about 9.40 am on that day, you were taken to the Melton Police Station by police. In the meantime, a person from Powercor attended the address and conducted an assessment. That assessment found that the electrical meter had been bypassed. Bypassing the meter meant the usage is not recorded and, therefore, you were receiving electricity for which you did not pay. That is the theft of electricity. The electricity to the house was disconnected in order to make the house safe.
9 The police then commenced photographing the house, the cannabis plants and the equipment used to cultivate the cannabis within the house. An examination of the house revealed that two bedrooms were being used to cultivate the cannabis. The master bedroom was the only room in the house that had contained a bed. There was no other evidence of other people living at the address. A search of the house confirmed the following:
(a) An electrical bypass located in the main bedroom behind the vanity;
(b) Six cannabis plants located in Room number 1;
(c) Six cannabis plants located in Room number 2; and
(d) A handwritten note located on a table near Room 2. The note contained dates and details of growing agents in relation to the cultivation of the cannabis plants.
10 A search of the kitchen in the house revealed a large number of personal papers and documents in your name. The police also located an Australian passport belonging to you at the premises. All items seized by police were entered in the property seizure record. The plants were later tested and a confirmed weight of 82 kilograms was noted.
11 The prosecution accept by the plea that you intended to cultivate an amount of the cannabis that did not exceed the threshold of commercial quantity. You are to be sentenced, therefore, on the basis of an intention admitted by your plea and on the maximum penalty, which I have described before, of cultivating simpliciter, which carries a maximum penalty of one year, for purposes other than trafficking or 15 years in any other case, and it is the 15 years that I am referring to in your case. The prosecution asserts that the objective evidence establishes beyond reasonable doubt that the quantity cultivated could not solely be for personal use purposes and is therefore for the purposes of the expanded definition of trafficking.
12 When you were interviewed by police, you exercised your right to make a no comment record of interview.
13 You have spent 411 days pre-sentence detention. I granted you bail for these offences on 15 September 2020. The matter was resolved on 9 October 2020.
14 You have admitted a criminal record. The relevant drug prior convictions in the admitted criminal record are as follows; On 6 February 2013, you were convicted of cultivating a narcotic plant and you were in prison for a period of four months, which was wholly suspended for a period of two years. Then there are two other entries. The first was on 27 March 2009, you complied with a bond which was imposed in September 2009, and the second time was again, cultivating cannabis and you were sentenced to a without conviction bond adjourned to the March date in 2009. The only other matter which is not directly related but is drug related offending is on 7 September 2005, you were convicted and fined for possessing heroin.
Personal Circumstances
15 You are now 42 years of age. At the time of your offending you were 40 years old. You have three sisters and a brother. Your brother was the part owner of the premises where you were growing the cannabis crop. You were his tenant. You have grown up in a supporting family. One of your sisters was in court on the day of your plea and I note she is back here again today. Your parents separated when you were young, but you continued to have support and contact with each of them.
16
Your education finished at year 10 when you were expelled from school. In your words, ‘you got in with the wrong crowd’ and things developed from there. After you left school you worked in a variety of jobs, including sales jobs, transport, labouring and the fitness industry. You started an apprenticeship as a chef but gave that away due to the long hours of work that were required to do it. Your work history is sporadic and this may, in part, be due to your
long-term use of cannabis.
17 In the course of your plea, a letter from Gary Faulkner of GSF Tippers Pty Ltd, which was Exhibit 5 in the plea, was tendered in support of the submission that you had employment as a tip truck driver or operator to start on 4 January 2021. The job is part-time at the beginning and, depending on your response to training and your commitment to work, could develop into full-time employment for you. I have accepted that you will start this employment opportunity and that, as part of your rehabilitation, you will continue with that employment into the future.
18 You were assessed by Sandra Cokorilo who is a psychologist for the purposes of this plea. Her report was dated 9 December 2020 and was Exhibit 2 on the plea. She noted that you had a diagnosis of schizophrenia in 2001 at the Sunshine Hospital. You were hospitalised for a period of 10 days in the Werribee Hospital in 2005 as a voluntary psychiatric admission. Your GP notes refer to six psychiatric admissions to hospital as a total. You have been prescribed anti-psychotic medication since 2013. In your reporting to Ms Cokorilo, you state you do not accept the diagnosis of schizophrenia and played down your psychiatric history to her.
19
Your counsel did not rely on any limbs of the Verdins case in support of your plea. That was an appropriate course for him to take. Ms Cokorilo assessed you as a moderate to high risk of reoffending based on your prior criminal history and your psychosocial adversity, including impulsivity, poor self-regulation,
anti-social traits and poor attitude towards intervention from those trying to assist you. She diagnosed you with schizophrenia and anti-social personality disorder.
20 You have a long history of treatment for neck and upper back pain. An MRI examination shows that you have nerve impingement in the upper end of your spine, principally around your neck. Exhibit 3 was a Tristar Medical Group report dated 16 November 2020 and that report confirmed that physical complaint. You have stated to Ms Cokorilo your reason for growing the cannabis was for your personal pain relief.
21 I previously referred to the relevant matters in your criminal history. You also have prior court appearances for violence and dishonesty. Your first actual incarceration was the remand of 411 days for these matters, prior to a grant of bail by this court in September 2020. Since that date, you have been at living in a rented accommodation on social security support payments.
Sentencing considerations
22 The basic purpose for which a court may impose a sentence of imprisonment: just punishment; deterrence, both specific and general; your rehabilitation and the denunciation of your actions; and the protection of the community.
23 I have to have regard to the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct for the interests of the community and seeking to ensure, as far as possible, an offender such as yourself is rehabilitated and reintegrated into society.
24 As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices. That inquiry is directed particularly, but not exhaustively, to the kinds of sentence imposed in comparable cases. Needless to say, all cases are different, one from another, as indeed yours are from the ones I have considered.
25 Of course, current sentencing practices is but one of the sentencing factors I am required to consider in finalising your sentence.
26 In Charge 1 on the indictment, you have been charged with cultivate cannabis simpliciter. The cannabis weighed a total of 82 kilograms. There were 12 plants in total. The penalty for this charge is set out as one year or 20 penalty units for purposes other than trafficking, or 15 years in any other case. I find beyond reasonable doubt that, for the purposes of this sentencing process, that the appropriate maximum penalty is 15 years. I accept that, given the quantity of cannabis cultivated, this crop was not for personal use alone and therefore is caught by the expanding definition of trafficking under the Act.
27 In submissions, your counsel, whilst not conceding that to be the case, did not make any submissions to contradict the conclusion that the cultivation was beyond the personal use level. This was an appropriate approach in this case, given your instructions and the history to Ms Cokorilo.
28 I take into account your plea of guilty to these offences. Your plea of guilty is at an early stage, given the negotiations and settlement of the charges that you now have pleaded guilty to. In the sentencing process, you are entitled to the full benefit of an early plea of guilty.
29 Your plea of guilty to this charge has a utilitarian value to the community. Your plea of guilty has saved the community expensive court proceedings, including a trial, and your plea of guilty has given certainty of outcome to this case.
30 I also accept that your plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value. I note that the practical management of a jury trial has yet to be resolved in this state and you have not sought to delay the finalisation of this prosecution by conducting a trial of an unknown future date, even though you are on bail.
31
You have spent 411 days pre-sentence detention in respect of these charges on remand. A large part of that period was spent in custody during the
COVID-19 pandemic. In addition, it is relevant to take into account the impact of the lockdown restrictions that had been imposed as a result of the
COVID-19 pandemic and that were applicable to you and, indeed, all the prisoners in the state of Victoria, whilst you were in custody.
32 Your placement in custody and the COVID-19 restrictions also meant that you have had limited opportunity to participate in courses during your time in prison, although, I note you had done so, and that has limited the amount of rehabilitation that you would have been able to advance during your time in custody. You have also suffered some anxiety due to the COVID-19 risk to yourself personally and as you have no control whilst you were in custody. All of those circumstances mean that your time in custody has been more onerous than otherwise would have been for a prisoner who was serving their time in normal times.
33 I take the circumstances of your remand period in custody into account when fixing your total sentence.
34 The objective seriousness of your offending is indicated by the following factors:
(1) you were the sole interested party in this cannabis crop; grower, owner and crop sitter;
(2) you leased the property from your brother;
(3) the crop was substantial; there was 82 kilograms from 12 growing plants;
(4) the set-up in the premises leased by you was a sophisticated hydroponic crop in two separate rooms in the house. Including lighting, power system, air filters and an irrigation system all in place;
(5) An electrical bypass had been installed at the premises for the dual purpose of avoiding detection and stealing the power to grow the crop; and
(6) it is unclear what direct financial benefit you received as a result of your involvement in this cannabis growing enterprise; you've obviously paid the rent on the premises and there was no evidence, in this case, about what you would ultimately receive from this criminal activity.
35 As I have said, you were the owner, grower and organiser for this cannabis crop. There is a level of naivety in your criminality in the fact that your name was on the lease, the power and the gas bills were all in your name. You were always going to be connected to this operation if it was ever discovered by the authorities.
36 Your counsel submitted that the appropriate sentence was time served, that is, the 411 days in combination with a rehabilitative community corrections order. You do not accept your psychiatric diagnosis and gave contradictory histories to Ms Cokorilo about the cannabis. On the one hand you told her you have not used it for 10 years and, on the other, the cannabis crop was for the pain relief of your physical injuries.
37 I do not accept it is suitable to have you assessed for a community corrections order, as you effectively deny and do not accept the basis for which such an order is designed and you will not comply with such an order if it was made.
38 Your prior criminal history in respect of cultivating cannabis is relevant in this sentencing process. The principle of specific deterrence is significant in your sentencing because of that history. General deterrence is also a significant sentencing factor in this sentencing process given the size of the crop and the sophistication of the cropping process used by you.
39 I have been told your current income is $900 a fortnight and your rent is $325 a fortnight. I accept the submission that you have genuine employment prospects after the New Year. Further, I was told you were moving in to live with one of your sisters. I have assessed that your financial circumstances will markedly improve once you commence your truck driver job and have decided that the sentencing principle of specific deterrence can be reflected in a financial penalty to be imposed in respect of Charge 2.
40 I have assessed your prospects of rehabilitation as good. You have a long-term involvement with cannabis and in the past, you have used heroin. Nevertheless, the period of 411 days on remand was your first and only recorded period of incarceration. Hopefully, it has had a salutary effect on you and that your offer of employment by Mr Faulkner is real and you take up that opportunity in the near future.
41 The principles of sentencing, of general and specific deterrence, denunciation of your actions and the protection of the community are the most important considerations in your case. A term of imprisonment is the only appropriate and just sentence in respect of Charge 1.
42 If you would stand, please.
43 On Charge 1, the charge of cultivating cannabis, you are convicted and sentenced to 411 days imprisonment. I declare that you have served 411 days pre-sentence detention in respect of that sentence prior to this order being made.
44 On Charge 2, the charge of theft, you are convicted and fined $5,000. I have signed the disposal order.
MR McCULLAGH: If it please the court.
HIS HONOUR: Thank you. Is there anything further, Mr McCullagh?
MR McCULLAGH: Only perhaps a 6AAA statement, Your Honour.
HIS HONOUR: Yes, certainly, thank you. But for your plea of guilty, I would've imposed an aggregate sentence of three years with a two-year non-parole period.
MR McCULLAGH: Those are all the matters, Your Honour.
HIS HONOUR: Thank you for reminding me, Mr McCullagh.
MR McCULLAGH: If Your Honour pleases.
HIS HONOUR: All right. That's the background noise here, isn't it? Yes, is that everything?
MR CHERNOK: Yes, Your Honour.
HIS HONOUR: Thank you. Officers, I think that means you can let him get out of there. Mr Chernok, I'll grant your client an initial stay of three months for payment of the fine.
MR CHERNOK: If Your Honour pleases.
HIS HONOUR: Yes.
ACCUSED: Thank you, Your Honour.
HIS HONOUR: That's all right. You just keep your part of the bargain.
ACCUSED: Yes, I will do, sir, or, Your Honour.
HIS HONOUR: You be kind to your sister when you live with her.
ACCUSED: Certainly.
HIS HONOUR: You wash the dishes and contribute.
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