R v Hasani
[2015] ACTSC 161
•17 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hasani |
Citation: | [2015] ACTSC 161 |
Hearing Date: | 17 June 2015 |
DecisionDate: | 17 June 2015 |
Before: | Murrell CJ |
Decision: | Total effective sentence of 18 months’ imprisonment, suspended upon the offender entering into a good behaviour order for a period of two years. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentencing – traffic in trafficable quantity of cannabis – cultivate a trafficable quantity of cannabis plants – good character – rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12 Criminal Code 2002 (ACT) ss 603(5), 616(5) Criminal Code Regulation 2005 (ACT) schs 1, 2 |
Parties: | The Queen (Crown) Fedrije Hasani (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Numbers: | SCC 203 of 2014; SCC 204 of 2014 |
MURRELL CJ:
The offender adhered to pleas of guilty to the following four principal offences:
(a)Between 30 April 2013 and 11 May 2013, traffic in trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code 2002 (ACT).
(b)Between 30 June 2013 and 10 July 2013, traffic in trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code.
(c)Between 25 January 2014 and 4 April 2014, traffic in trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code.
(d)On or about 3 April 2014, cultivate a trafficable quantity of cannabis plants with the intention to sell the plants or believing someone else intended to do so, contrary to s 616(5) of the Criminal Code.
Each of the four offences carries a maximum available penalty of 10 years’ imprisonment and/or a substantial fine.
The trafficable quantity in relation to trafficking in cannabis is 300 grams and the commercial quantity is 30 kilograms: sch 1 of the Criminal Code Regulation 2005 (ACT). The trafficable quantity in relation to the cultivation of cannabis plants is 10 plants and the commercial quantity is 100 plants: sch 2 of the Criminal Code Regulation.
There is a related offence that, on 3 April 2014, the offender possessed a prohibited substance, cannabis, contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT). This matter was transferred to the Supreme Court when the four principal offences were committed to trial under s 90B of the Magistrates Court Act 1930 (ACT).
The pleas of guilty for the principal offences were entered shortly after the matter was committed to the Supreme Court for trial. The pleas were entered in the face of a very strong Crown case. The prosecution evidence included admissions, DNA and fingerprint evidence and material found on execution of a search warrant. Nevertheless, the pleas of guilty have a significant utilitarian value. The offender should receive a discount on sentence in the range of 15 to 20%.
Facts
The first offence, trafficking in a trafficable quantity of cannabis between 30 April 2013 and 11 May 2013, involved the offender reaching an arrangement for the sale of cannabis to a police operative. The operative attended the offender’s home. He paid her $15,500 for a five pound (2296 grams) vacuum sealed pack of cannabis.
The second offence, trafficking in a trafficable quantity of cannabis between 30 June 2013 and 10 July 2013, involved a similar arrangement with the same police operative. He attended the offender’s home. He paid her $12,400, for which he received a four pound (1766 grams) vacuum sealed pack of cannabis.
The third offence, trafficking in a trafficable quantity of cannabis between 25 January 2014 and 4 April 2014 and the fourth offence, cultivate a trafficable quantity of cannabis plants with the intention to sell the plants or believing that someone else intended to do so on or about 3 April 2014, are related.
The same police operative made an arrangement with the offender whereby the operative would meet the offender at her home and purchase nine pounds of cannabis for $27,900. Police were advised of the arrangement. On 3 April 2014 they executed a search warrant at the offender’s premises. They found a large vacuum sealed bag, containing approximately nine pounds of cannabis in two separate amounts of 1789 grams and 2237 grams. Police also found a smaller bag of loose cannabis weighing about 200 grams and 17 plants ranging in height from about 15 to 60 centimetres. The plants were being grown in the third bedroom of the premises. No plant was fully mature.
When executing the search warrant, the police observed that there was a false wall in the garage. It concealed a room which had been lined with plastic and contained a heat lamp, transformer and water supply. They observed that the second bedroom had been lined with plastic sheeting and had several heat lamps on the ceiling and racks for drying cannabis. The third bedroom also contained heat lamps, transformers and electrical timers.
At the time that the search warrant was executed, the offender freely engaged in discussions with police. She admitted that she was responsible for the cannabis and that she had packed cannabis into the vacuum sealed packs.
In her evidence, the offender admitted that she had undertaken the electrical work herself. The work was haphazard and dangerous. It bypassed the electrical meter. The offender stated that the loose cannabis that was found was for her personal use. I accept that statement.
The offender stated that she commenced the growing enterprise in the garage. However she later moved the illegal enterprise into the main living quarters of the house.
The offender described the way in which she came to be growing and selling cannabis over the period of about 18 months up to April 2014. In the course of a previous relationship, she had met a man whom she understood purchased and on-sold cannabis. When she was in need of extra funds, she contacted that man. He agreed to purchase any cannabis that she was able to supply. She did not secure any other purchasers, apart from the police operative connected with these offences.
Objective Seriousness of the Offences
The offences are not isolated. The offender admitted to engaging in the illegal enterprise over a period of about 18 months.
The offender operated in relative isolation. She was not a cog in a large wheel. The operation was very limited, in terms of both its size and its market. The amount of drug involved, while not necessarily of primary importance, is a relevant matter. The individual amounts of drug were towards the lower end of the trafficable range. When the sum total of the drugs is considered (approximately 8000 grams), it is still towards the lower end of the trafficable range.
The motive for the offending is very relevant. The offender had multiple motives. To some extent, she was growing cannabis in order to supply her personal needs. However, her primary purpose was to sell the drug. The proceeds of sale were used to fund her gambling addiction and to send small remittances to family members who were living overseas. The offender did not use the proceeds to fund a lavish lifestyle.
Subjective Circumstances of the Offender
The offender comes before the Court as a person of otherwise excellent character. At 44 years of age she has no prior criminal convictions.
She was born in Kosovo and had a positive family upbringing. The offender completed the equivalent of Year 12 at school in Kosovo.
The offender was traumatised by the civil war in Kosovo.
In 1999, the offender and her then partner left Kosovo and came to Australia as refugees. The offender’s mother, brother and three sisters remain in Kosovo. On their arrival in Australia as refugees, the couple moved around. Ultimately, the offender obtained citizenship. They settled in Canberra in 2003.
The offender remained with her partner until 2004. Unfortunately, the relationship was marred by domestic violence. It was very traumatic for the offender as it came on top of the trauma that she had experienced as a result of the civil war. She did not report the domestic violence because she was intimidated and threatened with death. Matters came to a head in 2004. The offender’s former partner went overseas and returned to inform her that he had married and that he would be bringing his other partner to Australia. The offender was extremely upset. Fortunately, with the support of a long standing employer, she resisted her partner’s intentions. In 2004 he departed Australia to live overseas.
Soon after moving to Canberra in 2003, the offender gained employment as a chef. She retained that employment until March 2015 when she had to stop working for medical reasons. Until then, she had worked very hard, often seven days a week. Her employer has remained loyal to her; she can resume her employment once she is well and has dealt with these proceedings.
While she was in a relationship with her former partner, the offender began to abuse alcohol and to use cannabis. She did so in an attempt to obliterate the effect of past and ongoing abuse. She was a significant alcohol user from 2003 until her arrest on these matters. Similarly, the offender used cannabis almost daily from 2003 to 2014. However, the offender’s primary addiction has been gambling. She commenced gambling in 2001. At one stage she was losing up to $1000 per week on poker machines. The offender received no treatment for any addiction until recently, when she commenced counselling for gambling.
The offender used the proceeds of her illegal enterprise to service her gambling addiction. She sent some money to family overseas, but the sum spent on gambling was vastly more than the sum sent to family overseas. Apart from living expenses, gambling expenses and sending monies overseas to family, the offender’s only significant expense was an annual trip overseas to visit her family in Kosovo. The offender retained full time employment through the duration of her illegal enterprise. Her husband also earned a significant income. Yet the couple lived in rented accommodation.
The offender married her present husband in 2008. She has enjoyed very strong support from him. He is a person of good character. He continues to support her in her recovery. When the offender’s current husband became aware of her illegal enterprise, he objected and attempted to dissuade the offender, but she persisted. Considerable stress was caused to the relationship.
The offender wants to continue treatment for her addictions. With her husband’s help, she has reduced alcohol consumption to a very low level of social consumption. It is said that she has ceased using cannabis, although that has not been verified by drug testing. The offender has significantly reduced her gambling. She no longer earns an income herself. By agreement between the couple, her husband controls the family finances and he allows her to gamble $100 to $150 per week while he is present. Both take the view that it would be too difficult for the offender to completely surrender all her addictions at the same time.
The offender was recently diagnosed with a serious cardiac problem. She underwent double bypass heart surgery in March 2015. She is still recovering from the surgery. She appreciates that the excessive consumption of alcohol and the consumption of cannabis do not assist with her recovery. These proceedings have “assisted” the offender to cease abuse of alcohol and cannabis.
The Pre-Sentence Report (PSR) is very positive. It highlights that the offender has expressed regret for her conduct and has accepted sole responsibility. She has demonstrated insight, including insight into the impact of her activities on the broader community. She has indicated a preparedness to address her addiction issues.
Sentence
The offences are significant. They call for some sort of sentence of imprisonment. On the other hand, the offender has advanced strong subjective circumstances. The author of the PSR assessed her as at low risk of re-offending. This assessment is well grounded given the relationship between the offender’s offending behaviour, her addictions, her commitment to addressing those addictions and the fact that apart from this offending behaviour, the offender is a woman of excellent character.
In sentencing the offender, I am required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). All sentencing purposes are important to this sentencing exercise. It is important to support the offender in her rehabilitation but, because of the serious nature of any offending of this type, it is also important to acknowledge purposes such as punishment and denunciation.
The offender is convicted of each matter.
For the offence of traffic in trafficable quantity of cannabis between 30 April 2013 and 11 May 2013, the starting point for the sentence was 10 months’ imprisonment but I have deducted two months for the plea of guilty. The offender is sentenced to eight months’ imprisonment from 17 June 2015 to 16 February 2016.
For the offence of traffic in trafficable quantity of cannabis between 30 June and 10 July 2013, the starting point for the sentence was 12 months’ imprisonment but I have deducted two months for the plea of guilty. The offender is sentenced to 10 months’ imprisonment from 17 August 2015 to 16 June 2016.
For the offence of traffic in trafficable quantity of cannabis between 25 January 2014 and 4 April 2014, the starting point for the sentence was 16 months’ imprisonment but I have deducted three months for the plea. The offender is sentenced to 13 months’ imprisonment from 17 November 2015 to 16 December 2016.
For the offence of cultivate a trafficable quantity of cannabis plants with the intention to sell the plants or believing that someone else intended to do so on or about 3 April 2014, the starting point for the sentence was 12 months’ imprisonment but I have deducted two months for the plea. The offender is sentenced to 10 months’ imprisonment from 17 September 2015 to 16 July 2016.
For the related offence of, possessed a prohibited substance, cannabis on 3 April 2014, the offender is sentenced to the rising of the Court.
The total effective sentence is 18 months’ imprisonment from 17 June 2015 to 16 December 2016.
Pursuant to s 12 of the Sentencing Act, I make a suspended sentence order suspending all of the sentences of imprisonment and I make a good behaviour order requiring the offender to sign an undertaking to comply with her good behaviour obligations for a period of two years from today, 17 June 2015
The good behaviour order includes a condition that the offender report to ACT Corrective Services at Eclipse House by 4.00 pm today, 17 June 2015 and accept the supervision of ACT Corrective Services for as long as ACT Corrective Services deems necessary, including undertaking such counselling and treatment as is recommended by ACT Corrective Services.
The Court will now rise.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 6 July 2015 |
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