R v Ducaj and Ducaj
[2004] SADC 167
•24 November 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v DUCAJ AND DUCAJ
Reasons for Ruling of His Honour Judge Rice
24 November 2004
CRIMINAL LAW
Factual dispute as to the basis upon which the defendants were to be sentenced - finding that both defendants were involved in a substantial way in a substantial, ongoing commercial production of cannabis.
Controlled Substances Act 1984 s.32(1)(b); Summary Procedure Act 1921 ss.104, 105, 106, 107, 109 and 113; Director of Public Prosecutions Act 1991 s.7; Criminal Law Consolidation Act 1935 ss.275 and 276; Criminal Law (Sentencing) Act 1988 s.6, referred to.
In Re Liddy [1967] SASR 62 at 65; R v Hodge (1987) 48 SASR 91 at 102; R v Schlaefer (1992) 57 SASR 423 at 426; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127; R v Perre (1986) 41 SASR 105, considered.
R v DUCAJ AND DUCAJ
[2004] SADC 167Introduction
In this matter the two defendants were jointly charged with three offences of Taking Part in the Production of Cannabis contrary to s.32(1)(b) of the Controlled Substances Act 1984. The dates of the offending were each the same, namely, between 26th April, 2002 and 27th May, 2002. Each count refers to cannabis being grown under hydroponic conditions in three adjacent premises, Nos. 19, 19A and 21 Beaufort Street, Woodville.
Originally, the defendants pleaded “not guilty” but it was confidently expected at that time that the matter would resolve. The matter was actually set for trial but, after further delays and ongoing negotiations, pleas of guilty were entered on 5th March, 2004.
A dispute arose as to the factual basis upon which each defendant was to be sentenced. As events transpired, there is no real factual dispute but rather a dispute as to the inferences that are properly able to be drawn from the proved facts. Those matters are considered below.
Submissions have been made on behalf of each defendant as to the basis upon which I should sentence, as well as personal factors. At the conclusion of submissions, I decided to consider all of the submissions and then rule as to the basis upon which I may sentence them. I express it in that fashion because once the tentative factual basis was known, counsel for each defendant may have wished to call their client before sentence was imposed.
On 11th November, 2004, I expressed my tentative views on the material then before me. On 18th November, 2004, counsel indicated that their clients did not propose to give evidence.
I propose to consider the factual circumstances of the offending. In so doing, I have used all of the declarations provided to the Court, whether as part of the committal papers or from the prosecution since committal.
It was submitted by Mr Lister, counsel for Luidj Ducaj, that declarations provided by the prosecution since committal were not properly before me and therefore should not be used when considering the factual basis for sentence. I indicated at the time of submissions that I proposed to have regard to all of the declarations no matter when they were received. Nonetheless, I deal with the argument below.
Factual circumstances
On 26th May, 2002, at about 7.30 p.m., the police attended at 19A Beaufort Street. Nos. 19 and 19A are a pair of maisonettes. There were lights on in the rear of No. 19. A man, initially seen crouching in the rear yard of No. 19, decamped after being challenged by the police. He was variously described by the officers who saw him.
19A Beaufort Street
Inside No. 19A, fourteen cannabis plants were being cultivated under hydroponic growing conditions. As part of the material to which I have had regard are the photographs taken at each premises. In one room there were eight small, immature plants about 60-90 centimetres in height. In another room were four fully mature plants about 1.2-1.5 metres in height. In yet another room there were two fully mature plants about 1.2-1.5 metres in height.
The hydroponic growing conditions were of the type typically seen where cannabis is being grown inside. It would have been quite costly to set up, even leaving to one side the ongoing costs of electricity, fertilizers and rent for the premises. There was no evidence to show that someone was living there and the premises appear to be solely for growing the cannabis.
Fingerprints were located on various items. Some of the fingerprints found on the hydroponic lights were identical to the fingerprints of both accused.
No. 19 Beaufort Street
A similar search was undertaken at No. 19 Beaufort Street. All three premises involved in these offences were owned by Mr Gaetsano Roscioli. I shall return to this topic later.
Cannabis was again found to be growing under hydroponic conditions, much the same as was present in No. 19A. Again it did not appear there was anybody living there, although the presence of a television and mattress on the floor in one room suggests that someone may have slept there at some stages.
There were twelve cannabis plants located: one immature plant about 60 centimetres tall, five immature plants ranging from five to 30 centimetres tall, two bushy mature plants 0.9-1.2 metres tall and four bushy plants 60-90 centimetres tall.
21 Beaufort Street
A search of these premises revealed 40 cannabis plants growing using very similar hydroponic equipment.
In various rooms in the house there were fifteen plants about one metre tall plus 25 plants about 20 centimetres tall (declaration of D.K. Fechner dated 25th October, 2002).
As with the other premises, No. 21 was being used solely as a place to cultivate cannabis.
Various items found at these premises were subject to fingerprint analysis. Some of the fingerprints found on the light shades at the premises were identical to the fingerprints of the two defendants.
According to a Detective Anderson, steel fence posts had recently been erected across the front boundary of No. 21. An item of fencing material had the name “Ducoj” written on it and a label attached to a sheet of steel showed the name “Basic Steel Supplies Pty. Ltd.” and a reference name of “Ducoj” (see also photographs for No. 21). A declaration from Mr Daryl Rugari from Basic Steel Supplies of Edwardstown reveals that he attended at No. 21 on 24th May, 2002 and dealt with a man using the name Albert Ducoj. The Mr Ducoj spoke about adjustments to his new fence, the position of the gages and when the installers would return. Mr Rugari collected $1,076.80 in cash from the man. Mr Rugari described the man in this fashion:-
“....male, Middle Eastern of appearance, possibly Greek and about 36-40 years of age. He was about 179 centimetres tall, sold build with black wavy hair and clean shaven. He did not speak with an accent at all. He had a car, a VL Commodore....”
Electrical work
The declaration from Mr Gregory Darling from ETSA Utilities shows that the process for modification or alteration to the electricity supply to domestic premises is to be done by a licensed electrician. The electrician makes contact with ETSA Utilities to request the alteration or modification.
Concerning No. 21 Beaufort Street, work was booked to be done on 14th March, 2001. The electricity supply was to be upgraded from the stobie pole to the service point on the premises with an 80 amp supply to replace the 45 amp supply. The customer name was recorded as M. Shkreli and the licensed electrician was George Fessas.
Concerning Nos. 19 and 19A Beaufort Street, those premises were booked for an upgrade for work to be done on 6th June, 2001. The work consisted of upgrading the supply from a two-phase to a three-phase supply. The recorded customer name for those premises was Luigi Macaj. Again the electrician was George Fessas.
Electricity use
Three declarations were provided from Mr Darren Bonnici from AGL South Australia Pty Ltd, one relating to each premises, for electricity use.
No. 19
A Mr Luigi Malaj, date of birth 22/7/56, was recorded as being responsible for electricity accounts at this address from 30th March, 2001 to 18th June, 2002. The electricity was connected on 24th March, 2001. Consumption details for these premises are as follows:-
Read Date Days $ Amount Average Per Day 18/06/2002 85 $1,411.65 111.48 25/03/2002 97 $1,480.95 102.34 18/12/2001 88 $1,025.55 77.69 21/09/2001 18 $287.95 107.33 03/09/2001 157 $1,470.80 63.17
All payments were made at Australia Post but the method of payment is not known.
As at 2002, an average domestic house consumed about 17 units of electricity per day. This average takes into account all types of households.
No. 19A
A Ms Maria Marlaca, date of birth 24/1/74, was responsible for the payment of the electricity accounts at this address between 30th March, 2001 and 7th January, 2003. Consumption details for these premises are as follows:-
Read Date Days $ Amount Average Per Day 27/03/2003 83 $75.83 3.30 07/01/2003 21 $9.35 0.95 17/12/2002 82 $46.60 1.96 24/06/2002 91 $1,767.85 130.71 25/03/2002 95 $2,658.05 189.05 20/12/2001 90 $1,661.60 124.13 21/09/2001 175 $2,715.20 105.61 30/03/2001 119 $21.15 0.92
Payments were made at Australia Post.
No. 21
A person by the name of Ms Marjana Shkreli, date of birth 10/2/75, was responsible for the payment of all electricity accounts at this address between 14th March, 2001 to 24th October, 2002. Consumption details for these premises are as follows:-
Read Date Days $ Amount Average Per Day 24/10/2002 28 $188.68 42.86 26/09/2002 94 $126.60 7.14 24/06/2002 91 $2,820.75 209.64 25/03/2002 97 $4,095.70 286.22 18/12/2001 88 $2,463.85 189.18 21/09/2001 81 $3,574.25 299.20 02/07/2001 97 $2,195.50 156.94 27/03/2001 25 $237.70 64.92
Payments were made at Australia Post.
Rental of premises at 19, 19A and 21 Beaufort Street, Woodville
The three premises concerned are all owned by Mr Gaetano Roscioli, who resides at 12 Beaufort Street, Woodville.
No. 19
In March, 2001, No. 19 was vacated by a previous tenant. After advertising the property, it was leased to a Vasil and Prena Pali on 24th March, 2001 for a twelve-month period at $150.00 per week. In April, 2002 the rent was increased to $160.00 per week, but without a lease. The last rent payment was made on 18th May, 2002. Mr Roscioli saw these people about the premises from time to time. He saw nothing untoward. The description of Vasil Pali is unlike either of the defendants.
No. 19A
In March, 2001, No. 19A also became vacant. Again, after advertising, it was leased, this time to Maria Marlaca, also on 24th March, 2001 for twelve months at $150.00 per week. In April, 2002 the rent was increased to $160.00 per week, the last rent payment being 18th May, 2002. Rent was paid monthly. The police attendance at all three premises was on 26th May, 2002.
The tenant was described as about 30 years of age, European, about 175 centimetres tall, normal build, with long black hair past her shoulders. She spoke good English.
No. 21
The house at No. 21 was vacated in early 2001. After advertising, it was leased to a person giving the name of Marjana Shkreli. A lease for six months was signed on 1st February, 2001 at $230.00 per week. Thereafter, the rent was paid by a man who said he was Marjana’s boyfriend. He gave the name of Albert with a mobile telephone number of 0402 913 963. Some time after the lease expired but Albert continued to pay the rent, a new lease was entered into for the period 1st March, 2002 to 1st March, 2003 at $270.00 per week. The last rent was paid on 23rd May, 2002.
The man Albert was described as about 30 years, European, 170 centimetres tall, average build, light hair, almost blonde. He spoke English but still with an accent.
Mr Roscioli was unaware that any of the premises had been re-wired and the tenants did not ask if they could re-wire any of the premises.
Mobile telephone 0402 913 963
The mobile telephone number 0402 913 963 given to Mr Roscioli had a user name of Albert Ducaj, date of birth 11/3/74, with a billing address of 24 Downer Street. No suburb or State was provided in the declaration. However, the bail agreement entered into by Albert Ducaj on 22nd January, 2003 recorded a residential address of 24 Downer Street, Kilkenny. The service was activated on 4th January, 2001 and was active as at December, 2002.
(I mention at this stage that, during the course of submissions, Mr Lister, who appeared for Albert Ducaj, said his client is presently 35 years. The antecedent report for Albert Ducaj recorded a date of birth of 11/3/74.)
11 Tarcowie Street Kilkenny
On Monday, 27th May, 2002, at about 5.15 p.m., the police went to an address of 11 Tarcowie Street, Kilkenny. A red Jeep Wrangler was parked under the carport. That vehicle is registered in the name of Albert Ducaj of 21 Coombe Road, Allenby Gardens. The extract from the Register of Motor Vehicles shows the vehicle was acquired on 15th February, 2001 and registration commenced on 19th February, 2001 to expire on 18th February, 2002. Mr A. Ducaj remained as the registered owner as at 19th February, 2001.
Items found at that address were similar to some of the items used as part of the hydroponic set-up. A set of keys was located on the kitchen bench and one of those keys was later found to open the front door to No. 21 Beaufort Street. Another key from the same set unlocked the padlock attached to the rear gate of No. 21. Two other keys from the set opened two other locks at the premises.
Later on 27th May, the police attended at 26 Radstock Street, Woodville. Luidj Ducaj produced a driver’s licence with the address of 11 Tarcowie Street, Kilkenny. A Detective Anderson thought that Luidj Ducaj appeared “remarkably similar” to the person he had seen run from the rear yard of 19A Beaufort Street on the previous evening.
Albert Ducaj was arrested on 22nd January, 2003 and produced a driver’s licence showing his previous address of 11 Tarcowie Street, Kilkenny.
Earlier written submission on behalf of Albert Ducaj as to the basis of sentencing
By letter dated 2nd March, 2004, Mr M. Waye, solicitor and counsel for Mr A. Ducaj, wrote to the Director of Public Prosecutions in the following terms as to the basis upon which he proposed to plead guilty. Mr A. Ducaj pleaded guilty on 5th March, 2004 without agreement on the stated basis. The letter reads as follows:-
“RE: ALBERT DUCAJ
The abovenamed will plead guilty to 3 counts, as on the Information. He does so on the following basis:-
He did not lease the premises. Other persons leased the premises. He did not pay the rent as borne out by the statement of Roscioli. He did not rewire the premises. He did not pay for materials involved in the production. He was in effect a labourer who was attending to the plants. He was to tend to the plants at number 21. At the time of the cultivation his financial situation was extremely poor. Mr Ducaj expected some financial gain in the form of a debt that he owed in relation to going to visit his parents in 2001. His parents are in ill health and he thought that it would be the last time that he would see them. On that visit he met his wife. He was in debt and upon his return to Australia it was put upon him that to repay the debt he would grow some cannabis. He would be able to keep some cannabis and his debt would be relieved. He had borrowed money for the trip and needed more to pay for his wedding and to bring his wife to Australia.”
(I note that each defendant pleaded “not guilty” on 21st July, 2003. Their positions were not to be prejudiced if foreshadowed discussions were fruitful. Such an agreement would be of little effect if negotiations broke down and the matter was set for trial. On 2nd October, 2003, the matter was set for trial on 19th April, 2004. On 26th February, 2004, the representation of each defendant was assured for the April trial. As mentioned, each pleaded guilty on 5th March, 2004.)
Earlier written submissions on behalf of Luidj Ducaj as to the basis upon which he should be sentenced
By letter dated 15th July, 2004, Mr Lister, solicitor and counsel for Mr Luidj Ducaj, wrote to the Director of Public Prosecutions in these terms:-
“Re: Luigi DUCAJ
Pursuant to the direction of the Court of 27 May 2004, please be advised that the accused Luigi Ducaj will submit that he should be sentenced on the basis that:
1.The Statements of Witnesses filed in the District Court at the time of his pleas of guilty represent the Crown case against him.
2.He was involved in the production of cannabis to the extent that he assisted Albert Ducaj in attending to the hydroponic growing systems in each house. He did so because he wanted to obtain cannabis from the plants found in the premises at 19A Beaufort Street, Woodville. He expected he would supply some of it to his wife, some to friends and use some himself.”
Oral submissions on behalf of Albert Ducaj
Concerning this defendant, it is convenient to deal initially with a prosecution submission concerning the Jeep Wrangler parked under the carport at 11 Tarcowie Street, Kilkenny on Monday, 27th May, 2002. It is registered in the name of Albert Ducaj. The prosecution material showed that Albert Ducaj bought the Jeep in February, 2001 for $36,000, of which he paid $33,000 in cash. The prosecution contend that Albert Ducaj had the ability to buy this vehicle, mainly with cash, from the proceeds of his involvement in the cannabis production and sale.
It was also submitted by the prosecution that the availability of such a large amount of cash was inconsistent with parts of Mr Waye’s letter of 2nd March, 2004, particularly that he was in financial difficulty arising from a visit to his parents in Albania in 2001 and committed these offences to repay a debt.
In response, Mr Waye said his instructions were that, whilst Albert Ducaj physically paid over the money to buy the vehicle, it was not his money but relatives’ money. Mr Waye said the vehicle was no longer in his client’s name but was in the name of Ella Ducaj of 23 Radstock Street, Woodville in 2003. It is said that someone else now has it. In short, he says the money he used to purchase the vehicle was not his.
More importantly, however, Mr Waye submits that the date of the purchase of that vehicle, February, 2001, was before the dates of the charges (which commence in April, 2002). Whilst the dates of the charges are not conclusive, there is, however, no proved connection between this offending and the purchase of the vehicle. After all, the three properties were not rented until February and March, 2001. The upgrading of the electrical supply was not done until after that. The electricity usage did not increase until mid-to-late 2001. The offending at these premises did not commence until after the vehicle was purchased. There is no proper basis upon which I can have any regard to the purchase of that vehicle even though I regard the submissions as very unsatisfactory.
Mr Albert Ducaj submits he did not rent any of the premises, although he admits he physically paid thousands of dollars in rent. The total rent for all premises was $530.00 per week. He says this money came from a man named “Jonaj”. Similarly, he says he was given money to buy materials for fencing and to set up the hydroponic growing system. He submits he played no part in the upgrading of the electrical supply.
Further, Mr Albert Ducaj admits that he set up the hydroponic growing system, watered the plants and did all things attendant to growing cannabis. In Mr Waye’s submission his client was a labourer. Others used false names to rent and re-wire the premises and then remained at arms-length from the production. Based on that approach, Mr Waye submits it is a matter for the court to consider whether that involvement was minor or something greater.
There is insufficient material for me to find that Mr Albert Ducaj rented or re-wired the premises. There is no doubt he purchased materials to set up the hydroponic system and did everything necessary to cultivate the plants. He purchased fencing material. There is no evidence about who paid the electricity accounts. However, the evidence, overall, does disclose that this was a highly organised and expensive operation to install and maintain. All three properties were part of this operation. There can be, in my view, no doubt that this was a substantial commercial production of cannabis. The anticipated yield from the large plants was worth about $50,000. Other plants were in varying stages of growth and maturity. Again, there can be, in my view, no doubt that this production was intended to be ongoing, substantial and commercial. Any personal consumption of cannabis by either defendant or their wives and friends would have been quite minor in the scheme of the operation.
It is unnecessary and undesirable to put a label on Mr Albert Ducaj’s involvement such as “labourer”. Although he was not a principal in the sense of being an organiser of this operation, he had a very substantial involvement in what was a substantial commercial operation that was intended to be ongoing. Although no figures were submitted to me, I am prepared to infer, beyond reasonable doubt, that the financial benefit to him was also going to be substantial. I am not prepared to infer his role was minor.
Submissions on behalf of Luidj Ducaj
As mentioned earlier, Mr Lister, on behalf of Luidj Ducaj (who, I was told, is not related to Albert Ducaj), submitted that for the purposes of sentence I could only have regard to the statements and material filed at the committal or material filed prior to the guilty plea. He submitted that, unless his client consented (which his client did not), I could not have regard to statements filed after that time that involved his client.
Mr Lister submitted that there was no statutory warrant for the filing of statements in this Court after committal or at any time. He said it was habitually done that the Magistrates Court sends the declarations to this Court but that that was not authorised by statute. He also submitted that the only document the Court is entitled to receive is the Information.
For the purposes of a preliminary examination, s.104 of the Summary Procedure Act 1921 (“SP Act”) stipulates the statements, documents and material that must be filed in the Magistrates Court. I do not need to refer to those provisions in detail. Those statements, documents and material are those upon which the prosecution relies as tending to establish the guilt of the defendant.
The defendant denied the charge and the Court considered the evidence for the purpose of determining whether it was sufficient to put the defendant on trial for an offence (s.105 SP Act).
The statements and other material filed in the Court were admitted into evidence (s.106 SP Act).
The Court considered there was sufficient evidence to put the defendant on trial for an indictable offence (s.107 SP Act). The defendant was committed for trial to the District Court (s.109 SP Act).
S.113 of the SP Act prescribes what must be done by the Principal Registrar of the Magistrates Court:-
“113–Material to be forwarded by Registrar
Where a person is committed for trial or sentence, the Principal Registrar must forward to the Director of Public Prosecutions-
(a) a copy of the order for committal;
(b) a copy of any documentary material filed in the Court in connection with the preliminary examination;
(c) a transcript of the oral evidence (if any) taken at the preliminary examination.”
The Director of Public Prosecutions Act is silent as to what the Director does with that material. There is no statutory support for that material to be sent to the Supreme or District Courts by the Director of Public Prosecutions or Principal Registrar of the Magistrates Courts no matter whether the defendant is committed for trial or sentence.
Obviously the Director of Public Prosecutions is empowered to file an Information in either Court or the Director of Public Prosecutions may file a certificate stating that no charge is to be laid (ss.275, 276 Criminal Law Consolidation Act, plus Schedule 1 and s.7 Director of Public Prosecutions Act).
However, the matter does not end there. It is to be noted that s.113 SP Act refers to “a copy of the order of committal” and “a copy of any documentary material” (which must be a compendious term). The practice of the Magistrates Courts, for a very long time, has been that the original order for committal and the original copy of any documentary material filed in the (Magistrates) Court in connection with the preliminary examination, are sent to the Criminal Registry for the Supreme and District Courts. At the Registry, a copy is prepared for use by the Judge and the original remains as the Court record. That has been an accepted procedure. The practice of the Court has become the law of the Court: In Re Liddy [1967] SASR 62 at 65; R v Hodge (1987) 48 SASR 91 at 102; R v Schlaefer (1992) 57 SASR 423 at 426.
It has also been an accepted practice that statements obtained by the Director of Public Prosecutions subsequent to the order for committal, and upon which it proposes to rely for the purposes of trial or sentence, are filed with the Court. Such a filing and use by the Judge for trial or sentence has never required the consent, express or implied, of the accused or defendant.
Quite apart from those matters, there is another, more important, statutory argument that tells against Mr Lister’s argument. Luidj Ducaj was committed for trial on 18th June, 2003. He eventually pleaded guilty before the Chief Judge on 5th March, 2004. Thereafter, the nature of the proceedings changed. It then became a matter upon which the Court would have to pass sentence.
For the purposes of sentencing at common law, the Court is entitled to have regard to the depositions. Although against the background of different statutory regimes for committals, the earlier cases make it plain that for the purposes of sentence the sentencing Judge was entitled to have regard to the depositions: R v Maitland [1963] SASR 332, R v Vecsey [1962] SASR 127, R v Perre (1986) 41 SASR 105.
The previous position has been modified by the Criminal Law (Sentencing) Act 1988, particularly s.6. That section states:-
“6.For the purpose of determining sentence, a court–
(a) is not bound by the rules of evidence; and
(b) may inform itself on matters relevant to the determination as it thinks fit.”
Applying that section, I propose to use all of the material filed for the purposes of the committal and all material supplied to the Court by the Director of Public Prosecutions since that time. No question of the defendant’s consent arises. (I have, of course, also received material tendered on behalf of the defendant during the course of submissions.)
Factual basis for sentencing Luidj Ducaj
There is no need to repeat the factual background.
I make it plain that the involvement of both defendants was in the enterprise being undertaken in all three premises. To that extent at least, Luidj Ducaj was involved in a substantial commercial operation.
However, as Mr Lister put in his letter of 15th July, 2004 (supra), and repeated during the course of his submissions, his instructions are that he was not intending to profit financially from the production, but rather he was to receive the plants in No. 19A. He would supply some to his wife, some to friends and use some himself. As noted, there were fourteen cannabis plants in No. 19A, six fully mature plants and eight small, immature plants.
Upon the material before me, I do not accept the submission concerning what Luidj Ducaj was to receive for his involvement. It is clear, even on his instructions, that he was involved in a substantial way in a substantial commercial operation. There is insufficient material for me to conclude he was an organiser of this operation. I proceed upon the basis that others rented the premises and arranged for the re-wiring.
In setting up and operating such an operation, there were substantial initial and ongoing costs. I do not accept that those who set it up in a financial sense and paid for rent, nutrients and electricity, would have been prepared to forsake the production in No. 19A to pay for Luidj Ducaj’s involvement in all three premises. Why would the organisers give up such a substantial slice of the operation to someone who wanted some cannabis for his wife, himself and friends? What was happening in No. 19A was essentially the same cyclical production as was happening in the other premises. Further, the production in No. 19A was far in excess of how Luidj Ducaj said it was to be used.
I reject the submission made on his behalf in that regard. I find, beyond reasonable doubt, that Luidj Ducaj was also going to benefit financially in a substantial way. I am not in a position to say how much money he was going to receive.
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