R v Kulli No. DCCRM-02-798

[2002] SADC 155

R v GJOVALIN KULLI & MARGARITA HILE KULLI
[2002] SADC 155

Judge Lunn
Criminal

1. On 26 August 2002 the accused Gjovalin Kulli (“GK”) and Margarita Hile Kulli (“MK”), each pleaded guilty to taking part in the production of cannabis contrary to s32(1)(b) of the Controlled Substances Act 1984. A nolle was entered against the co-accused, Edmund Kulli.

2. The matter was referred for a disputed facts hearing.  The commerciality of the cannabis production was denied by GK and MK.  At the commencement of the disputed facts hearing, counsel for the defence sought a voir dire hearing to exclude evidence about certain cannabis plants found in the house, but it was not proceeded with after it was agreed that the charge was confined to the 20 mature cannabis plants and that the other seedlings in the possession of GK and MK were to be treated only as circumstantial evidence about commerciality.

3. For the purposes of sentencing I have before me all of the declarations, but I disregard the record of interview with Edmund Kulli.  There are also a number of documents which were tendered by consent.  Both GK and MK elected not to give evidence on the disputed facts hearing.  Through their counsel they made various assertions of fact, such as that the cannabis grown was only intended for their own consumption, and in the case of GK also for supply to friends.  However, where the submissions by defence counsel have been put in issue by the DPP those submissions in themselves have no particular evidentiary weight and the issues are to be determined on the evidentiary material which is properly before me which is the material mentioned above.  I do not draw any inference against GK or MK for not having given evidence.  In reaching my conclusions I confine myself to the evidentiary material mentioned above.

4. In late March 2000 GK, using a false name of Tonin Bregu, rented a house at Paradise.  Subsequently GK and MK set up an elaborate, sophisticated and expensive hydroponic system inside the house for growing cannabis.  As at 13 March 2002 10 mature cannabis plants were growing hydroponically in GK’s bedroom in which there were nine large powerful lights, ten individual transformers upping the wattage to power the lights, seven power boards, five timers connected with the system and numerous electrical cables and water pipes.  There were holes cut in the ceiling and the floor to facilitate a ducting system for circulating the air in the room.  There were another 10 mature cannabis plants growing hydroponically in the bedroom of MK which was set up in a similar fashion to GK’s bedroom.  Another bedroom had been set up as a drying room for harvested cannabis and contained a number of heaters and exhaust fans.  In the bathroom 27 small cannabis seedlings were growing in a plastic container.

5. On 13 March 2002 the house caught fire and was substantially damaged.  This fire was caused by a fault in an exhaust fan in the drying room.  When firemen attended to put out the fire GK was observed to be pushing cannabis seedlings down the plug hole in the bathroom.

6. Immediately after the fire on 13 March 2002 police found the 10 mature cannabis plants in each of the bedrooms of GK and MK.  These 20 plants are the subject matter of the charge.  In addition they also found 27 cannabis seedlings in the bathroom and cuttings from 6 plants in GK’s bedroom.  It was accepted that the seedlings were merely indicative of an ongoing operation for the production of cannabis and were making provision for a subsequent crop after the existing crop had been harvested.  The 20 mature plants in the two bedrooms were likely to have yielded about 4 to 6 kilos of cannabis material.  The market value of that amount of cannabis material was somewhere between $24,000 and $36,000.

7. There is no evidence to support the defence submission that the cannabis being produced was intended by either GK or MK for their own use.  There was no evidence that either of them had ever used cannabis.  There were no pipes, bongs or other implements usually associated with the using of cannabis found in the house.  There were no small quantities of cannabis found in the house which would usually be indicative of regular use of it.  There was no harvested cannabis stored in the refrigerator which might have been expected if either GK or MK had made provision out of a previous crop for their own future consumption of cannabis.

8. On the evidence which I accept there is an overwhelming inference that the substantial purpose of GK and MK in taking part in the production of the cannabis was a commercial one.  Far more cannabis was being produced than could reasonably have been required by them for any personal use or for likely social supply to friends.  Considerable money and effort had been invested in setting up the elaborate hydroponic systems in the house and in a manner far beyond what would be usually expected if it was merely for personal use.  On 10 April 2001 to 13 July 2001 an average of 310 units of electricity a day had been used in the house, from 13 July to 12 October 2001 an average of 184 units a day, from 12 October 2001 to 10 January 2002 an average of 218 units a day and from 10 January to 1 July 2002 an average of 184 units of electricity.  (The average in the last period from 10 January to 13 March would have been much higher than 184 units per day.)  The records of AGL show the average domestic house in Adelaide uses about 15 units of electricity per day.  From 10 April 2001 until 1 July 2002 GK, under the false name of Bregu, incurred electricity charges totalling $14,279.  The major part of these electricity charges were obviously incurred to run the numerous electrical appliances in the house associated with the cannabis production.  As counsel for the DPP pointed out GK and MK, if they were regular heavy users of cannabis, could have bought all the cannabis they could possibly have required for their personal use for considerably less than they paid in electricity charges.  The only reasonable inference on the evidence is that all the cannabis, or at least the bulk of it, was being produced for commercial sale.  I find this proved beyond reasonable doubt.  There was no indicia of retail selling and it is likely that it was intended for wholesale.

9. Each of GK and MK had 10 plants in his or her own bedroom and under his or her direct control, but each was also indirectly concerned in the production of the 10 plants of the other of them.  There is nothing to suggest, and it was not submitted, that they were other than equally responsible for the production of the 20 mature plants.

10. I accept that in about 2001 each of GK and MK had received $50,000 from Albania which was not related to drug-trading.  Accordingly, I have not sought to draw any inference against them about the commerciality of their drug production from other assets which they may have had.  The evidence of the electricity consumption satisfies me that they had been involved in substantial cannabis production in the house from at least early in 2001 until 13 March 2002.  The evidence of the seedlings satisfies me that but for the fire they would have continued cannabis production in the future on that scale.  While they are only to be sentenced for taking part in the production of the 20 cannabis plants referred to it is against a background of a similar scale of commercial cannabis production over a significant period.

11. GK is the son of MK.  He is now 38 years of age.  He was born in Albania and obtained permanent residence status in Australia in 1993.  He is divorced and became depressed as a result of this.  He had some employment history, but he was unemployed at the time of this offence.  He has no criminal record.

12. MK is 59 years of age and a widow.  She came to Australia after GK and obtained permanent residence status in 1995.  Although no medical evidence was presented, she is not in particularly good health.  She has had one kidney removed and suffers problems with high blood pressure and high cholesterol.  Her English is limited and she has not been employed while she has been in Australia.  She has no criminal record.

13. GK and MK both expressed through their counsel their sorrow for the offence.  However, their failure to acknowledge the prime commercial purpose of the operation militates against a finding of true contrition.  Each is to be given credit for an early plea of guilty.  Nevertheless, there was a strong prosecution case against them.  They are likely to face a substantial civil claim for the fire damage to the house.

14. The maximum penalty for the offence is 10 years imprisonment and/or a fine of $50,000.  It is a serious and prevalent offence.  The commercial purpose is an aggravating feature.  A strong element of general deterrence must be contained in the sentence.  A substantial prison sentence must be imposed on each of them.  There is no basis to differentiate between them in the sentence to be imposed.  The starting point is imprisonment for 30 months which after a discount for their pleas of guilty will be a sentence of imprisonment for 26 months for each of them.

15. Their counsel submitted that the prison sentences should be suspended.  The prosecutor left it to me.  The significant ongoing nature of the operation, and the substantial commercial element involved, mean that the sentence can only be suspended if there are exceptional circumstances: R v Nayda, CCA 1/3/2000, Jud No [2000] SASC 52, unreported: DPP v McHugh, Perry J, 7/8/2002, Jud No [2002] SASC 271, unreported: R v Cristol, CCA 20/8/2002, Jud No [2002] SASC 288, unreported. I do not find that there are any such exceptional circumstances or any “good reason” to suspend the sentences, and so I decline to do so.

16. A non parole period is fixed for GK of 16 months.  In recognition of her age, ill health and previous good record a significantly lesser non parole period of 8 months is fixed for MK.  Both the head sentences and the non parole periods are to run from today.  I will hear the prosecutor on any forfeiture order which is sought.