DPP v Saricayir [2017] VCC 1058

3 The case against you was put on the basis that you were in possession of not less than a commercial quantity of cannabis for sale that was found growing at a house located at 389 Canterbury Road, Heathmont by police on 11 July 2015. Police executed a warrant at the Heathmont address and arrested Gunal who was there present. Police located 111 cannabis plants that weighed approximately 47 kilograms. On the evidence of Ms Sowter, botanist, the dried usable parts of the plants found growing at the Heathmont address was in the order of 31 kilograms. (See Transcript pp. 412 and 413.)

4 The case against you in my view was a strong circumstantial case, one consisting of:

(a) a lease for the Heathmont address in your name;

(b) the electricity supply to the Heathmont address being in a name almost identical to yours;

(c) telephone calls to AGL, the electricity supplier to the Heathmont address, made for the purposes of connecting gas to the Heathmont address by a male who used your name and telephone number to identify himself;

(d) documents in your name found by police in the garbage bin at the Heathmont address on the day of the execution of the search warrant;

(e) text messages between yourself and Gunal that in part related to the growing of cannabis;

(f) the content of Arunta telephone calls between yourself and Gunal whilst he was on remand and prior to your arrest that demonstrated;

(ii) admissions as to your involvement in the criminal combination; and

(iii) foundation for an argument that you told credit lies to police in your record of interview.

(g) call records and EastLink records that demonstrated that you were frequently in the area of the Heathmont address, despite you living in Kyabram at the relevant time;

(i) finding documents in your possession linking you to Gunal and Traljesic when you were arrested in Kyabram on 18 November 2015;

(j) lies told by you to police in your record of interview that constituted incriminating conduct; and

(k) the nature of the cannabis crop in that it was set up so that the plants of varying levels of maturity from small clones through to almost mature plants were grown in various grow rooms, allowing for the inference that the cultivation was a continuing enterprise. As well, there was the ubiquitous electricity bypass.

5 Mr Saricayir, you are thirty-six years of age and the youngest of nine children born to your parents in Turkey. Your mother died in 2003 and your father, together with the rest of your family, still reside in Turkey. You completed your secondary education in Turkey and thereafter studied sound engineering for two years.

6 You came to Australia in 2009. You studied English at Holmes College where you met your cooffender Gunal. Thereafter you studied sound and vision engineering for 18 months or so at a college that was identified simply as GMC.

7 You married in 2010 and have one child, Akin junior, who in late 2014 was diagnosed with autism spectrum disorder. A report dated 22 May 2015 by Dr Pawsey, community paediatrician (See Exhibit 1) contains in part the following opinions:

"... My impression was that Akin does have features consistent with the autism spectrum but has very many positive prognostic features.

... My feeling is that Akin will continue to do very well with early intervention."

8 Akin junior was born in Perth where you and your wife had gone to live not long after your marriage. Later, you travelled and lived in the Gold Coast. Your wife's family lived nearby in Brisbane. Thereafter, you moved to Melbourne and finally to Kyabram. You were living at Kyabram at the time of the instant offending.

9 Whilst on bail, you did not reside with your wife and son, as they had travelled to Brisbane and now reside there with your wife's parents. I was told that your wife needs support in the management of your son, Akin junior.

10 You have had a good work history whilst in Australia. Whilst living in Perth and at the Gold Coast you worked for Thrifty and whilst living in Victoria you always had work.

11 Each of your cooffenders were prosecuted for different offences to those upon which you were convicted. Gunal was indicted and sentenced on two charges of cultivation simpliciter, one for the Heathmont address and one for the Traljesic address at East Doncaster, as well as a charge of theft of electricity at that address. He was sentenced as a crop sitter and was sentenced to time served, being 271 days' imprisonment, in anticipation of his deportation from Australia as an illegal non-citizen.

12 Ebricic and Traljesic each pleaded guilty to a charge of cultivating a narcotic plant at Doncaster East and theft of electricity at that property. Fatma Traljesic pleaded guilty to dealing with the proceeds of crime and also cultivating cannabis at Heathmont. Ebricic also pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime. They were each sentenced to Community Correction Orders with conditions.

13 The question of parity does not apply in your circumstances and so much was conceded by Mr Chernok of Counsel on your behalf.

14 You told police on interview that you were a permanent resident of Australia and accordingly you hold a permanent resident visa. As you will be sentenced to a term of imprisonment of 12 months or more, your visa will be cancelled by the Minister under the General Character Test. Subject to the Minister's general discretion to revoke that decision and any other applications or reviews that may be available to you, you will spend your time in custody with the prospect of deportation present in your mind. I take this into account when arriving at a sentence appropriate to you and your offending.

15 Additionally, as your wife and son live in Queensland, it is unlikely that they will visit you often or at all and you have no other family in Australia. You will be isolated in prison.

16 You are a man without prior or subsequent convictions. You have worked hard while in Australia and married an Australian and your son is Australian-born. You have ties to this country. The fact that you will be unable to support your wife and particularly your son will play on your mind whilst you are in custody.

17 The offence of trafficking in a drug of dependence in not less than a commercial quantity is a serious offence punishable by 25 years' imprisonment. You entered into a criminal combination with others to traffic in cannabis by way of possessing cannabis for sale. The means by which this was to be achieved was the growing of a cannabis crop at the Heathmont address, which was plainly to be a continuing enterprise. In my assessment, you played a prominent role in this combination, as is evidenced by the text messages that passed between you and Gunal and the Arunta telephone calls relied upon by the Crown during the course of the trial.

18 Accordingly, general deterrence must play a prominent, if not dominant, role in the exercise of my sentencing discretion. Likewise, public denunciation and just punishment are important sentencing factors. I must also look to your rehabilitation which, despite the nature of your offending, I regard as good.

19 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:

20 On Charge 1 - five years and six months' imprisonment.

21 On Charge 3 - I sentence you to six months' imprisonment.

22 I order that three months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1. This results in a total effective sentence of five years and nine months' imprisonment and I fix a period of four years' imprisonment as the period of imprisonment that you must serve before you will become eligible for parole. Gentlemen, I calculate PSD as 245 days, is that correct?

23 MR HARDJADIBRATA: Two hundred and forty-eight, Your Honour.

24 HIS HONOUR: Thank you. I declare that you have spent 248 days by way of pre-sentence detention. You may be seated.

26 MR HARDJADIBRATA: Your Honour pleases. Your Honour, there were some ancillary orders. Sorry.

27 HIS HONOUR: Yes, I have those. I have signed a forfeiture order and there are three copies of that. I have signed an order for compensation in favour of AGL and there is a second disposal order which, I have a question of you, Mr Hardjadibrata and it's this, that within the schedule and this relates to the items seized from the Heathmont address - - -

29 HIS HONOUR: There are a number of items of it that, whilst not tendered as exhibits, were exhibits in fact in the trial, in that they were items used for the analysis of DNA and also for the purposes of extracting the text messages. I don't know whether you wish to have those disposed of, as the subject of a disposal order. Mr Saricayir's appeal rights are available to him. He may be successful if he appeals and where a re-trial is ordered, whoever appears on his behalf again may not adopt, whether it be Mr Chernok or someone else, may not adopt the same attitude and may want to have those items retested or examined. Do you wish to have them struck off the disposal order?

30 MR HARDJADIBRATA: Excuse me for a moment? Yes. Apparently this disposal order won't be acted upon until the appeal period has expired, Your Honour.

31 HIS HONOUR: Thank you very much for that. Could I hand down three copies of that disposal order as well? Thanks. Are there any other matters that need to be attended to?

34 HIS HONOUR: Thank you. Once again, I'd like to thank counsel for the way in which they conducted their case and their assistance that they gave me throughout the trial - - -

37 HIS HONOUR: - - -and on the plea. Would you remove the prisoner?