DPP v Selmani [2016] VCC 2026

County Court of Victoria|2016-12-21|Before: Ms J

1 Veri Selmani, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis L, in not less than a commercial quantity, which carries a maximum penalty of 25 years' imprisonment. You have also pleaded guilty to one charge of theft of electricity which carries a maximum penalty of 10 years' imprisonment.

2 The circumstances of your offending are summarised in the prosecution opening (Exhibit "A"). In essence, on 28 June 2016, police executed a search warrant at a house at 3 Mackay Road, Wyndham Vale where you were present. They located 17 mature cannabis plants in two rooms of the house, each of which contained a sophisticated hydroponic cultivation system, include transformers, light globes and shrouds. The total weight of the plants was 49.65 kilograms, almost twice the commercial quantity. This is the conduct constituting Charge 1.

4 You participated in a record of interview in which you made full admissions that you grew the plants yourself, having bought equipment and connected everything up, as well as having installed the electricity bypass. You told police that you used cannabis occasionally and your intention was to keep it for yourself and maybe try to sell a little bit. However, what has emerged on the plea is that you set up the crop hoping to sell cannabis, which you believed was not a harmful drug, because you needed to raise $40,000 to fund rehabilitation treatment for your son's addiction to ice, which treatment was to take place at the Raymond Hader Clinic.

5 You pleaded guilty at the earliest opportunity and the matter proceeded by way of hand-up brief for plea hearing in the County Court.

6 In a plea on your behalf by Mr Ginsbourg, the Court was told that you are sixtyfour years old, having been born on 18 January 1952. You grew up in Kosovo, when it was part of Yugoslavia. Your father was a railway maintenance foreman and you were the third eldest of seven children. You were educated to an equivalent of Year 10 by Australian standards and left school at age sixteen. Shortly after you left school, your father died very suddenly of heart failure, at the age of forty-eight. Your mother was not in paid employment. One of your older siblings had been conscripted into the army which was apparently controlled by Serbia. Conscripted soldiers received no salary. It was a time of great tension in the then Yugoslavia. Your other older sibling lived at home, but had no work and there were 4 younger siblings in need of support. You left the family home to work as a labourer in Slovenia and you sent one-third of your income home to your mother. However, a letter arrived at your mother's home conscripting you into the army and you fled to Italy to avoid conscription, which you perceived as being compelled to fight a war for a country other than your own. You were seventeen years old and became a refugee in a European camp, following which you were offered refugee status in Australia.

7 It seems that you arrived in Australia when you were about nineteen or twenty and appear to have had a good work ethic. You worked in meat works in Footscray, Bradmill Industries for 2 ½ years and then for a company in Kensington making electrical panels. You then travelled to South Australia and obtained work in the mining industry at Coober Pedy for a while, before moving to work at a zinc mine in Rosbury in Tasmania. Whilst working there, in the mine, you suffered an injury to one of your legs and decided not to pursue that employment. So, you moved to Sydney and, then, to the Northern Territory, where you worked as a trades assistant for the construction and engineering company, Simon Carves.

8 On 15 May 1981, you were found guilty by a jury in the Supreme Court of the Northern Territory of manslaughter. According to the very brief sentencing remarks of the then Chief Justice, there had been a prior assault of you by your victim of Albanian ethnicity on the night before your offending. You were angry and purchased a relatively large sharp knife with which you stabbed your victim, claiming that you intended merely to cause a slight injury in order to frighten or deter him from assaulting you. Prior to that, the Judge found that you had been of exemplary character and in the ten years that you had been in Australia you had been in constant employment. You were sentenced to 10 years' imprisonment with a 5 year non-parole period. This is your only prior criminal offending.

9 Mr Ginsbourg stated that, after serving your non-parole period in custody in the Northern Territory, you were permitted to finish your parole interstate, so you returned to Melbourne. By this stage, you were aged thirty-six. Not long after returning to Melbourne you obtained a job with Smorgon Steel Mills. You have demonstrated great stability in your application to work. You worked at that steel mill for a total of 33 years. Even though there was a change in ownership of the company after your first 18 years, you continued to work in the same job, but were employed by a labour hire company.

10 You were clearly a hard worker and things went well for you. You met your wife, Nazane, some 10 years younger than you, who was also from Kosovo. You have now been married for 28 years and have three children, a son aged twenty-six and two daughters aged twenty-four and twenty-two respectively. In addition to purchasing the family home, you also purchased a block of land at Point Cook, which you later sold for a profit, and bought a holiday home in Dromana. However, war broke out back in Kosovo in the 1990s and the family of yourself and your wife were in dire financial need. As a consequence, in 2000 you decided to take a redundancy package from Smorgon Steel Mill. This comprised $100,000, which you sent to your families in Kosovo. As previously mentioned, you were then re-employed in the same position working via a labour hire company. You were on casual full time rates for 18 months and the money was good. Gradually, over the years, you continued to send money to your family in Kosovo which amounted, in total, to about $330,000.

11 In 2015, after 33 years of full time work at Smorgon Steel Mills, your employment was reduced from five to two days, due to a downturn in work. By this stage, you had purchased the Mackay Street premises as an investment property (this was where the crops were found in June this year) as well as the family home in Sladen Street. Both were subject to mortgages totalling $600,000 and your total equity in both properties comprised $200,000. Your wife was working as a process worker earning $35,000 per year and your only savings consisted of $75,000 worth of superannuation. It was in this context of reduced financial circumstances and anxiety about continuing to pay the mortgage loans to the bank that you discovered that your then 25 year old son was addicted to ice.

12 You had observed that your son's behaviour had become increasingly aggressive towards his mother and two sisters and Mr Ginsbourg stated that you were at your wits' end. He said that you are an unsophisticated person, who was not aware that cannabis could have harmful effects. You were desperate to help your son and were aware that treatment of his ice addiction at the Raymond Hader Clinic was going to be $30,000 for a 90 day residential program, followed by approximately $10,000 for a 12 week outpatient/transitional program. Your counsel said that this was the motivation for your offending.

13 Tendered as Exhibit "2" at the plea hearing was a report by Ms Pamela Matthews, forensic psychologist, dated 13 December 2016. She expressed the view that you were undoubtedly depressed at the time of your offending and met the criteria for a Major Depressive Disorder as defined by DSM-V in that you reported low mood most days, then and now; poor appetite, then and now; sleep disturbance, then and now; feelings of worthlessness and inappropriate guilt relating to your son, then and now; and more specifically, difficulties with thinking and decision making then and to a lesser extent now. Ms Matthews expressed the view that your depression had been a significant factor in you making the decisions that you made which led to your offending.

14 Ms Matthews described you being very stressed at the time of offending. You were very worried about your financial situation and about your twenty-six year old son, Koushrim, who had apparently started using ice at the age of twenty-two. His aggression had increased but, as you were mostly at work, you did not witness all of his behaviour. Ms Matthews took a history that, after you confronted your son, he "went psycho" and, at one point, your daughter called police and arranged a restraining order against your son. It was your youngest daughter who found out information about the Raymond Hader Clinic which led to you using in excess of $40,000 of your $75,000 superannuation to pay for his treatment.

15 I here note that tendered as Exhibit "1" was an invoice from the Raymond Hader Clinic which detailed a total amount of $29,970 which had been paid in two instalments of $15,000 on 5 April 2016 and $14,970 on 3 May 2016. A second invoice dated 21 June 2016 shows an amount of $10,755 paid on that day. The dates of your offending were between 3 May 2016 and 28 June 2016 and I accept that they coincide with this period where you were very stressed and wondering how you could manage financially and also save your son from his addiction to ice.

16 Ms Matthews recorded as follows: "He reports at the time feeling very stressed, he was thinking of his wife and daughters all the time and also his son. He was not sleeping, waking in the middle of the night and spending the rest of the night at the kitchen table, drinking coffee and smoking (tobacco). His wife was unable to sleep and she would get up and sit with him. He lost weight as he was unable to eat and said he now weighs the least he can remember in a long time."

17 You indicated that you were not thinking straight. Ms Matthews describes you as an unsophisticated person who did not trust doctors. Unfortunately, this led you to seek help with decision making with a friend who suggested that growing a cannabis crop might be a way out of your difficulties. At the time of planting the crop, you did not know that cannabis was a drug with deleterious consequences, as you had heard that it had been used for medicinal purposes. Ms Matthews says that you now understand why it is illegal. You told her that, contrary what you told police in your record of interview, you had never tried cannabis yourself. You blamed your son's addiction to ice on the fact that you had been working all the time and not spending enough time with your children and stated that you feel very ashamed.

18 Also tendered at the plea hearing was a letter from your general practitioner, Dr Getulio Lumbes, dated 14 December 2016 (Exhibit "4"). He states that he has known you for 10 years as your general practitioner and you are a gentle, polite, hardworking family man with good moral character, who has never used illicit drugs. You had confided to him your concern about your son's addiction to ice and aggressive and irrational behaviour and had mentioned that it was taking too long to have him admitted to public drug rehabilitation facilities and the only way to get (your) son "back" was to pay $40,000 to have him admitted to the Raymond Hader Private Clinic. He expressed the view that what you have done was out of character and was a desperate act to raise money to rehabilitate your son.

19 Dr Lumbes referred you to Ms Lubna Atif, psychologist, for counselling which you commenced on 21 October 2016. You presented as stressed, ashamed and regretful and were struggling with symptoms of low self-worth, guilt and remorse over your wrongdoing. At the date of the report (17 November 2016), you had attended four sessions of counselling and were engaging well to develop strategies to deal with your stress, although you were highly anxious regarding the outcome of your court case. The psychologist assessed you as a man of good character and conduct with a consistent and honest work history, who was likely to benefit from ongoing counselling.

20 At the plea hearing, oral evidence was given by Craig Lesley Tarra who has known you for some three decades through your mutual work at Smorgon Steel Mill. Mr Tarra stated that he worked alongside you for 10 years and he was then your supervisor for 20 years. He described your work as being of the highest order and stated that you were quick to catch on to and understand the magnetic forces of steel and safety aspects and that he had often chosen you to train others. He stated that in 2015 your hours had been cut back and then six months ago you ceased to have any employment at all, when the steel mills became subject to administration. He stated that the cut-back of your hours and ultimate loss of your job was not a reflection on your capacity as an employee because you were very highly regarded but the mill had suffered a serious economic downturn.

21 Mr Tarra said that he was shocked when he learned of your offending. He stated that he understands that it was a desperate act and he knows you to be someone who has made big financial sacrifices all of your life to help others. He was privy to your decision to take a redundancy package back in 2000 so that you could send money to your family. In order to help them, you had also sold properties here in Australia and put your own family here in rented accommodation for a time, before purchasing the current family home.

22 Mr Tarra became visibly upset talking about how you had explained how much trouble you had got into legally because of growing cannabis. He stated that, after taking the redundancy, you had worked hard to rebuild your life and were a friendly, honest person with whom he had spent a lot of time fishing and camping. Also, he stated that your sons used to play football together and you would give a lot to the community by umpiring the football. He stated that since you had been charged with this offending you have "imploded" and are a big contrast to your former happy and friendly self. You were gravely concerned for your wife and children whom you described as being "an absolute mess" because of concern about your legal predicament, as well as the family finances.

23 Mr Ginsbourg said that at the time of and following this offending you find yourself as a sixty-four year old man in a perilous financial situation. In November 2016 you had sold the Mackay Road property in which the crops were grown. The property was worth about $600,000 of which $400,000 was owed to the bank and so your equity was about $200,000. By this stage your work at Smorgon Steel Mills had come to an end altogether. You, ultimately, did obtain some full time work as a storeman with Reece Plumbing but it only paid $35,000 net per year. Your family home in Sladen Street had been purchased for $407,000 on 21 January 2015. You endeavoured to rationalise your finances by putting your equity from the Mackay Road sale into the family home so that you would have only one mortgage, which ended up being $183,891.54 and you have some $220,000 to $230,000 equity in that family home. (Exhibits "5" and "6" confirm the state of your current mortgage and, also, the sale price of the Mackay Road property).

24 Mr Ginsbourg stated that because the Mackay Road property was where the crops were grown, it is tainted property and has been the subject of proceedings under the Confiscation Act. The solicitor acting for you in relation to the Confiscation Act proceedings has advised that the likely outcome is that you will forfeit your half share of the equity in the Sladen Street family home. An application has been made for your wife's half share in the equity to be excluded from confiscation.

25 It is apparent that your family has been left in a very perilous situation where they may lose the roof over their head. Your wife earns $650 net per week and the current mortgage repayments are approximately $1,800 or $1,900 per month. In order to save your wife's equity in the home, it will be necessary to increase the mortgage by approximately $100,000 in order to pay your share of the equity which will be forfeited under the Confiscation Act. This means that the mortgage payments will increase by an extra 5 to 10 per cent, or $100 to $200 per month. Your two daughters have only casual work as a waitress and barista and earn only about $100 each per week. Your son, now has work as an excavator operator and is earning about $1,000 per week. The family will try to pool their income to meet the mortgage whilst you will be unavailable to contribute because you realise that you must receive a custodial sentence.

26 The prosecution has conceded that in sentencing you I may take into account that approximately $100,000 of the equity in the family home will be forfeited because of your offending. I do take that factor into account.[1]

27 I also take into account your state of depression and anxiety at the time of committing these offences. That state is ongoing as is your concern about whether your son will remain drug free or revert to his aggressive behaviour whilst you are in custody. I accept that these concerns will weigh heavily upon you. In this regard, I note that your son attended upon Ms Matthews on one of the dates of her assessment. She described your son as having "presented as a very aggressive, rude, self centred young man who seemed to have no self awareness of the impact of his aggressive behaviour on others." I can only hope that your son will realise that by his self-indulgent behaviour he has already caused a great deal of grief to your family. Your misguided attempt to help him is what has resulted in you going to prison and that factor should weigh upon him so that he should feel a sense of responsibility to steer himself clear of ice and other illicit drugs and take up an honourable, contributing role to help the family while you are in custody.

28 Mr Selmani, the Court of Appeal has made it clear very recently that this type of offending of cultivating a commercial quantity of cannabis should be the subject of an increase in sentences where the offending is in the mid-range, which I calculate yours to be. You now apparently know that cannabis can be a dangerous drug. Unhappily, this Court deals very regularly with people who have become addicted to cannabis, who have developed a psychosis because of it and whose lives and those near and dear to them have become a mess because of it. Leniency cannot be extended to someone on the basis that they were unaware of the deleterious effect of cannabis. It does not bear thinking about if everyone concerned about saving a loved one from ice addiction took to growing commercial crops of cannabis. The gravity of growing cannabis is the potential for the quantity harvested to find its way onto the streets and feed addiction and the crime and associated social problems that go with addiction. It is a sad irony of this case that you sought to save your son from addiction to an illegal drug by cultivating another illegal drug to which others are addicted.

29 In sentencing you, I take into account that the amount cultivated by you was not far off being double the commercial quantity and that it was a sophisticated growing operation where you were the sole principal. Although there must be some cumulation in relation to the theft of electricity, I do take note that you have taken the decent and responsible step of repaying the amount owing to the electricity company, which is not something that this Court sees very often. A receipt for the amount of $3,010 paid by you to the electricity supply company has been tendered today as "Exhibit 7".

30 Mr Selmani, I assess you as a fundamentally decent, hardworking man who has had many difficulties in life and shown great resilience in dealing with them. Unfortunately, you have made two devastatingly bad judgments in your life back in the Northern Territory 3 ½ decades ago and, more recently, in your misguided attempt to help your son and save your family from ruin by planting this cannabis crop. Unfortunately, the seriousness of your offending is such that the Court must denounce your conduct and emphasise general deterrence so that a message will go to the community that this increasingly prevalent offence will not be tolerated and those who cultivate cannabis, particularly in commercial quantities, can expect appropriate sentences of imprisonment.

31 In your favour, I take into account that you did make full admissions to police and that you entered early pleas of guilty, which I accept to be remorseful pleas. For this reason you are entitled to a high discount on the sentence which otherwise, would have been imposed. I have accepted the explanation for your offending which could never excuse it, but I also accept that yours is not a case where you were cultivating for greed or to support a lavish lifestyle. I accept that you are ashamed of your behaviour and, as I have said, that your concern about your family will weigh heavily upon you whilst you are in prison and that your offending has already occasioned you some punishment in the sense that your equity in the family home will inevitably be forfeited under the Confiscation Act. There are aspects of your situation which I must say arouse my sympathy and merit some degree of mercy in sentencing, particularly for the sake of your wife and two daughters. I find that you have good prospects of rehabilitation and are unlikely to offend in this way again. For this reason, I consider it appropriate to set a lower than usual non-parole period.

33 On Charge 1, cultivating a narcotic plant, namely cannabis L, in not less than a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 3 years and 11 months.

34 On Charge 2, theft of electricity, you are convicted and sentenced to be imprisoned for a period of 6 months.

35 I direct that 1 month of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. Save for such cumulation, the sentences are to be served concurrently.

36 The total effective sentence is thus 4 years imprisonment.

37 I direct that you serve a period of 2 years' imprisonment before becoming eligible for parole.

38 I declare that a period of 5 days be time reckoned as already served under the sentence imposed this day.

39 On Charge 1, pursuant to s78(1) of the Confiscation Act 1987, I order the forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. The Schedule consists of 12 categories of equipment, most of which contain multiple items.

40 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 6 ½ years' imprisonment with a non-parole period of 5 years.

[1] S5(2A) Sentencing Act 1991 and Mileto v R [2014] VSCA 161 at paragraph 18ff

Confiscation Act 1987

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