Marku v The Queen

[2012] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0277
VALENTIN MARKU	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and BONGIORNO JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 January 2012
DATE OF JUDGMENT:	23 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 51
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Gullaci, date of sentence 2 August 2010)

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CRIMINAL LAW – Appeal – Sentence – Cultivation and trafficking of cannabis – Offending whilst on bail – Sophisticated enterprise involving four properties – Total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years not manifestly excessive – Co-offender received lesser sentence – Whether principle of parity offended – Circumstances of co-offender markedly different to those of appellant – Disparity in sentences justified – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Assocs
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Williams AJA.

BONGIORNO JA:

1. I also agree with Williams AJA.

WILLIAMS AJA:

1. The appellant was sentenced after pleading guilty to three counts of cultivation of cannabis, three counts of theft of electricity and one count of trafficking cannabis.  Following a plea on 19 July 2010, he was sentenced on 2 August 2010 as follows:

Count	Offence	Maximum	Sentence	Cumulation
Presentment C0806334 (Presentment 1)
1	Cultivate Cannabis [s72B Drugs Poisons and Controlled Substances Act 1981 (Vic)]	15 years [s72B(b) Drugs Poisons and Controlled Substances Act 1981 (Vic)]	3 years	Base
2	Theft of Electricity [s74 Crimes Act 1958 (Vic)]	10 years [s74(1) Crimes Act 1958 (Vic)]	6 months	2 months
3	Cultivate Cannabis [s72B Drugs Poisons and Controlled Substances Act 1981 (Vic)]	15 years [s72B(b) Drugs Poisons and Controlled Substances Act 1981 (Vic)]	3 years	9 months
4	Theft of Electricity [s74 Crimes Act 1958 (Vic)]	10 years [s74(1) Crimes Act 1958 (Vic)]	6 months	2 months
5	Cultivate Cannabis [s72B Drugs Poisons and Controlled Substances Act 1981 (Vic)]	15 years [s72B(b) Drugs Poisons and Controlled Substances Act 1981 (Vic)]	3 years	9 months
6	Theft of Electricity [s74 Crimes Act 1958 (Vic)]	10 years [s74(1) Crimes Act 1958 (Vic)]	6 months	2 months
Presentment W00637253.1 (Presentment 2)
1	Traffick Cannabis [s71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)]	15 years [s71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)]	3 years	12 months
Total Effective Sentence:		6 years
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		520 days
6AAA Statement:		7 years’ imprisonment with a  non-parole period of 5 years and 6 months
Other orders: Forfeiture Order

1. On 22 August 2010 the appellant was granted leave to appeal, on the ground of manifest excess, against the individual sentences on counts 1, 3 and 5 in presentment 1, count 1 in presentment 2 and the orders for cumulation.

1. The appellant was ultimately permitted to appeal against his sentences on the additional ground that there was an unjustified disparity between them and others imposed by the sentencing judge on his co-offender, Anna Karoutsis.

The circumstances of the offences

1. I will refer to the circumstances of the offences with reference to the relevant properties, to demonstrate the sequence of events.

8 Newcastle Street, Preston (count 1 - presentment 2)

1. In November or December 2006 the appellant leased a three bedroom house at 8 Newcastle Street, Preston, using the alias ‘George Papas’.  He paid the rent monthly.

1. On 13 March 2007 police searched the Preston property.  Although the appellant was present, police found no evidence of habitation. The appellant fled but was arrested in a laneway behind the property.  Police found a sophisticated hydroponic cannabis plantation in two bedrooms.  There were 14 female cannabis plants, ranging between 1.9 and 2.4 metres in height, with a wet weight of 32.5 kilograms.  The flowering heads weighed approximately 14.3 kilograms, and no less than 3.6 kilograms air dried.  Police also found a bag containing cannabis mixed with unidentified material.  The total weight of its contents was 441.2 grams.  

1. The appellant made no relevant admissions.  Significantly, he was released on bail on  27 March 2007.

331 Waterdale Road, Bellfield (counts 3 and 4 - presentment 1)

1. On 24 February 2007 before his arrest in relation to the trafficking offence, the appellant and his co-offender, Anna Karoutsis, leased a property at 331 Waterdale Road, Bellfield, under false names.  In March 2007 the Waterdale Road house was also set up to grow cannabis hydroponically.    

1. Police conducted surveillance of the Waterdale Road property after 11 April 2008.  They saw Ms Karoutsis regularly in attendance alone.  They also saw her several times with the appellant and saw him there once on his own.  On 4 June 2008 police searched the property and found 25 cannabis plants, weighing 8.27 kilograms, in three hydroponic grow rooms.  (Count 3.)

1. An electrical by-pass was used to circumvent the meter, which meant that Australian Gas Company (AGL) was not paid for electricity it supplied to the Waterdale Road property.  (Count 4.)

1. The appellant denied any association with the Waterdale Road property when interviewed.  Ms Karoutsis, on the other hand, told police that she had rented it under a false name and that a friend had helped her set up the hydroponic system.  She claimed to have paid $5,000- $6000 for the equipment and to have paid bills and rent in relation to the property.  She denied selling the harvested crop.

1. Ms Karoutsis told police that there was an arrangement between her and the appellant, whereby she rented properties under a false name and provided other assistance to him, in return for free cannabis.

1065 Doncaster Road, Doncaster (counts 1 and 2 – presentment 1)

1. On 6 June 2007 Ms Karoutsis also leased a house at 1065 Doncaster Road, Doncaster, using a false name.  On 4 June 2008 police found three hydroponic grow rooms there containing a total of 13 plants and 32.75 kilograms of cannabis.  Some plants were still growing and some had been harvested.  (Count 1).

1. The electricity meter had also been by-passed at the Doncaster Road property.  This time, it was TRU Energy which supplied the electricity used, for which it was not paid. (Count 2.)

1. The appellant denied any association with the Doncaster Road property when interviewed.  Ms Karoutsis, however, made a number of admissions to police.  She admitted having helped the appellant rent the premises using a false name.  She said that she had checked the house every two or three weeks and had been provided with free cannabis in return. 

31 Wetherby Road, Doncaster (counts 5 and 6 - presentment 1)

1. In December 2007 the appellant rented a third property: at 31 Wetherby Road, Doncaster.  In January 2008 police conducting surveillance observed him and a co-offender using a rented truck to transport hydroponic equipment there from the appellant’s home.

1. A police search on 6 March 2008 revealed three hydroponic grow rooms and a total of 38 cannabis plants, weighing 5.76 kilograms.  The house had been altered to enable the drug to be grown;  holes had been cut in the ceiling and floor and wooden supports had been erected. (Count 5.)

1. Once again, the electricity meter was by-passed and AGL was not paid for electricity it supplied.  (Count 6.)

1. The appellant denied any association with the Wetherby Road property when interviewed by police.

Guilty plea

1. The appellant was arrested again on 4 June 2008.  He entered a plea of guilty after negotiations.  The sentencing judge accepted this as an early plea, entitling him to a sentencing discount.

Offences committed whilst on bail

1. The offences in counts 1, 2, 5 and 6 in presentment 1 were committed whilst the appellant was on bail for the trafficking offence in presentment 2.  The offences covered by counts 3 and 4 in presentment 1 began before he was arrested and continued after he was bailed. 

1. Accordingly, under s 16(3C) of the Sentencing Act 1991, the sentences on presentment 1 were to be served cumulatively on the sentence on presentment 2, unless the sentencing judge directed otherwise.

Submissions as to range

1. At the plea hearing, the respondent provided a range of a total effective sentence of six to seven and a half years’ imprisonment with a non-parole period of between four and five years.  Counsel for the appellant did not suggest a range.

Personal circumstances

1. This was an unusual case because there was a dispute as to the appellant’s identity. When sentenced, he was subject to a Magistrates’ Court order under s 19 of the Extradition Act 1988 (Cth).  This order made him eligible for surrender to Albania in relation to an uncompleted sentence of 25 years’ imprisonment.  The sentence had been imposed upon a person named Augustin Leshaj for the killing of one person and the wounding of another.

1. This matter was treated as generally irrelevant.  The judge accepted, for sentencing purposes, the appellant’s account of himself as a 46 year old refugee from Kosovo, who had lived in South Australia until he separated from his wife and children and came to Victoria.  He had been in Victoria for about nine months before his arrest on 13 March 2007.  He had been unemployed and smoking cannabis beforehand. 

1. The appellant had three relatively minor drug related prior convictions, for which he had been fined in the Adelaide Magistrates’ Court.

1. The judge did not accept senior counsel’s assertions that the appellant was only a ‘cultivator’ of the drugs and that others were responsible for setting up the houses where they were grown.  His Honour concluded that he was a primary offender in relation to the matters before him, except insofar as Ms Karoutsis had admitted that she had had that role.  The judge noted the appellant’s concessions that the offences were motivated by his expectation that they would provide a source of money and that the houses had been acquired for the sole purpose of the offending.  His Honour also accepted that there was no evidence of significant betterment as a result of the offending.

1. In all the circumstances, the sentencing judge found it difficult to assess the appellant’s prospects of rehabilitation. 

Co-offender

1. Ms Karoutsis pleaded guilty to one count of cultivation of cannabis in relation to each of the Waterdale Road and Doncaster Road properties, one count of theft of electricity in relation to each of those properties and one count of possessing cocaine.  She was sentenced on 25 August 2010 to eight months’ imprisonment for each cultivation offence and to three months’ imprisonment for each theft.  After orders for cumulation, the judge imposed a total effective sentence of 14 months’ imprisonment, wholly suspended for 24 months.

1. His Honour’s findings with regard to Ms Karoutsis’ personal circumstances and other sentencing considerations are relevant.  He found that Ms Karoutsis was 29 years’ old in August 2010.   She had had a stable home environment and had been educated to year 11 level at Alphington Grammar School.   She had begun work at CBC Commercial Real Estate and, by the time of her sentence, she had become a property manager there and was responsible for more than 100 properties.  She had completed a real estate agent’s course.  Her mother’s death in 1999 had profoundly affected her and other family members.  She had longstanding symptoms of underlying depression, compounded, in the judge’s view, by continuous use of cannabis and other drugs. 

1. The judge concluded that Ms Karoutsis had been very vulnerable and had only become involved in the offending because of her relationship with the appellant.   She had expected no monetary gain.  She had cooperated with police and was ashamed and  remorseful.  She had no prior convictions and had family support.  Referees also attested to her good character and the judge thought her prospects of rehabilitation were good.

Submissions

1. Counsel for the appellant concedes the aggravating features of his offending.  He mentions the four properties involved, the significant nature of the enterprise, given the amounts of cannabis found and the duration of the offending, as well as the fact that much of it occurred whilst his client was on bail.   

1. Counsel, nevertheless, urges the Court to conclude that the sentence was manifestly excessive, given the appellant’s early guilty plea, his limited prior convictions, the delay between arrest and sentence, the fact that there was one course of conduct involved, the absence of evidence of enrichment, the differences between the weights of the cannabis found at each property and the greater role played by Ms Karoutsis in relation to the Waterdale Road property.   

1. He argues that current sentencing practice is reflected in the June 2010 ‘Sentencing Snapshot of Sentencing Trends in Higher Victorian Courts between 2004-5 and 2008-9’ tendered as the only exhibit in the plea.  In that period, the median sentence for cultivation of a non-commercial quantity of cannabis was eighteen months’ imprisonment, whilst sentences ranged from six months’ to four years’ imprisonment.  Total effective sentences ranged from one year and seven days’to six years’ imprisonment and the median was imprisonment for one year, ten months and fifteen days.  Non-parole periods ranged from six months to three years and six months and the median length was one year.  Counsel submits that the appellant’s sentences were at the extreme end of the statistical range, contending that they would have been at the high end of the range, even if his offences had involved commercial quantities of cannabis.

1. The appellant compares his sentences with those imposed upon Ms Karoutsis and, in particular, her sentence for the cultivation at the Waterdale Road property, in relation to which she admitted a more significant involvement.  He argues that the disparity between the dispositions cannot be justified.

1. The Crown responds that the fact that the offending occurred whilst the appellant was on bail is significant in terms of the total effective sentence, given the effect of s 16(3C) of the Sentencing Act 1991.  Senior counsel defends the sentence on the basis of the matters conceded and also points out that the offending involved some 90 plants and a total of 80 kilograms of cannabis.

1. As far as parity with Ms Karoutsis’ sentence is concerned, senior counsel argues that the cases are not alike, given the overall responsibility of the appellant and the different levels of involvement of the co-offender.

Conclusions

Manifest excess

1. I am not persuaded to conclude that the appellant’s individual sentences, his total effective sentence or the minimum term fixed are manifestly excessive or unreasonable or plainly unjust.[1] 

   [1]Dinsdale v The Queen (2000) 202 CLR 321, 325 (Gleeson CJ and Hayne J)

1. The maximum penalty for the cultivation offence was 15 years’ imprisonment under s 72B(b) of the Drugs, Poisons and Controlled Substances Act 1981. Taking into account the tendered statistical material, the sentences for the individual counts may be regarded as stern, but they are not, in my view, outside the range of sentences open for this serious offending.  

1. The aggravating features of the appellant’s offending were conceded.  He was arrested for trafficking cannabis on 13 March 2007 and released two weeks later.  He was not re-arrested for another sixteen months.  During that period, he used his younger, vulnerable partner to assist him to lease the Doncaster Road property and he rented the Wetherby Road property.  He carried on cultivating cannabis at the three properties throughout the period of his bail.  This showed a reprehensible disregard for the law and, as the sentencing judge noted, indicated the need for specific deterrence.

1. The offending was serious for other reasons as well.  The quantity of cannabis  the subject of the trafficking count was very large, as was the quantity found at the Doncaster Road property.  This was not a case of a person cultivating the drug simply for personal use.  The appellant was engaged in trafficking and cultivation of cannabis for monetary gain, using a sophisticated set-up in the four separate properties. 

1. Bearing in mind the varying circumstances of the appellant’s offending behaviour in relation to the cultivation of cannabis at the different premises, it was open to the sentencing judge to impose the same sentences for each of the cultivation offences, despite the differing quantities of the drug found at each premises.

1. As far as the orders for cumulation are concerned, the significant factor was that the appellant offended whilst on bail, attracting the operation of s 16(3C) of the Sentencing Act 1991.  The operations were also quite separate, even though they may have been carried on in the same general period.

1. In relation to the minimum term, the dearth of material relating to the appellant’s personal circumstances made it difficult for the sentencing judge to determine his prospects for rehabilitation.  The offences were also committed whilst the appellant was on bail, against a background of minor cannabis related offending, indicating a particular need for  both specific and general deterrence. 

1. The ground of manifest excess is not made out.

Parity

1. There were a number of distinguishing features of Ms Karoutsis’ offending and personal circumstances which justified the disparity between the appellant’s sentences and those she received in relation to her offending behaviour in respect of the Waterdale Road and Doncaster Road properties.[2] 

   [2]See : Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ).

1. The appellant was the principal offender, aged 46 at the date of sentence.  In contrast, Ms Karoutsis was then only 29.  The sentencing judge found that her vulnerability had influenced her to assist him, in the expectation that she would receive cannabis for her own use.  She was not motivated by the prospect of significant monetary returns.  She was cooperative with police and generally ashamed and remorseful.  Her prospects for rehabilitation were excellent and could best be achieved under continuing treatment with the significant support of her family, friends and mental health professionals.

1. The challenge on the ground of disparity should also fail.

1. The appeal should be dismissed.

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