Director of Public Prosecutions v Barisic
[2020] VCC 1332
•31 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-19-02081
CR-19-02082
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NENAD BARISIC |
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| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 August 2020 |
| DATE OF SENTENCE: | 31 August 2020 |
| CASE MAY BE CITED AS: | DPP v BARISIC |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1332 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Cultivation of a narcotic plant – Cultivation of a narcotic plant (commercial quantity) – plea of guilty
Sentence: Total effective sentence of 2 years and 7 months’ imprisonment with a
non-parole period of 1 year and 6 monthsSection 6AAA declaration: 4 years and 6 months’ imprisonment with
a non-parole period of 2 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Davison | Solicitor for Public Prosecutions |
| For the Accused | Mr A. Chernok | Theo Magazis & Associates |
| VICTORIAN GOVERNMENT REPORTING SERVICE 219167 | !Undefined Bookmark, I |
HER HONOUR:
Nenad BARISIC, you have pleaded guilty to one charge of cultivation of Cannabis, one charge of cultivation of Cannabis in not less than a commercial quantity and a summary offence of failing to appear in accordance with your undertaking of bail. The maximum penalty for Charge 1 is, in this case, 15 years’ imprisonment, in respect to Charge 2, 25 years’ imprisonment and in respect to the summary charge, 12 months’ imprisonment.
2010 Offending
On 12 January 2010 the police executed a search warrant at your home in Lalor. A search of the property located 95 Cannabis L. plants with a weight of 14.56kg and 1.42kg of loose Cannabis L. as well as the equipment for the hydroponic cultivation of Cannabis L.
Three bedrooms were set up with lampshades and globes, transformers, timers, water pumps, and containers with growing Cannabis plants. The quantities of Cannabis found in each room were:
Bedroom 1
i.Twenty (20) medium sized Cannabis plants; and
ii.One (1) plastic bag containing 1.1kg of Cannabis.
Bedroom 2
iii.Forty-three (43) small Cannabis plants on trays;
iv.Sixteen (16) small Cannabis plants in pots;
v.Eight (8) small Cannabis plants in pots;
Bedroom 3
vi.Eight (8) Cannabis plants;
In the laundry Police located various chemicals, fertilizers and hormones used in the cloning and healthy growth of plants. In the roof cavity above the laundry police located four (4) charcoal filters with two (2) fans attached and three (3) fans.
Also located at the property was an electrical bypass system which allowed power to be drawn by electrical equipment at the property without passing through the electrical meter.
I note that the weight of the growing Cannabis found was 14.56 kilograms and there was 1.42 kilograms of dried Cannabis. The number of plants, 95, was just under the commercial quantity threshold of 100 plants, which in combination with the nature of the set up makes this a relatively serious instance of this offence.
You were charged and bailed to appear at the Heidelberg Magistrates’ Court on
12 April 2010. You failed to appear on that day, having left Australia on 7 March 2010. This gives rise to the summary charge of failing to appear in accordance with your undertaking of bail.2019 Offending
On 28 August 2019 police searched your home in Frankston and found that Cannabis was being grown there in a hydroponic set up. They located 30 Cannabis plants with a weight of 61.95kgs, along with equipment for the hydroponic cultivation of Cannabis. The commercial quantity for Cannabis L. is 100 plants or 25 kgs, and thus the Cannabis found on this occasion amounts to a commercial quantity by reference to weight.
An electrical bypass had been installed in the roof cavity of the house, providing electricity to various lights and other equipment in the property without passing through the electricity meter. All the plants were being grown in free-standing “grow tents” using lamps and a watering system. The photos show a well put together hydroponic set up, that must have taken considerable effort to build. The number of plants in each area were:
a.Kitchen – 6 plants
b.Front Bedroom – 9 plants
c.Second Bedroom – 9 plants
d.Third bedroom - 6 plants.
10.Personal items belonging to you were found, and it was apparent that you had been living at this address.
11.The property had been leased to another man, a Mr Herceg, for around 8 years. The landlord was aware that it had been sublet to someone by Mr Herceg. At the same time you were the lessee of a property in Carrum Downs, where Mr Herceg was living, with Cannabis also being grown at that house. You are not charged in relation to the cultivation of Cannabis in Carrum Downs.
12.When you were interviewed by police you gave your residential address as being in Essendon, but later said that you had been living at the Frankston address for a few weeks.[1]
[1] RoI Q&A 48
13.You have been in custody since your arrest on that day.
Gravity and Role in offending
14.I note that the set up at each house was typical for the cultivation of Cannabis in an organised way, and that the nature and set up of the equipment and use of a bypass is evidence of a relatively sophisticated process. I note also that the 2010 crop included plants of different sizes, tending to suggest that it was an ongoing cultivation process.
15.You are not, of course, to be sentenced for any other activity than the day of each charged offence, however the nature and sophistication of the set-up is relevant to assessing the gravity of your offending, as it indicates that you were a participant in an organised cultivation enterprise. In respect to the 2019 offending, the cross-over leases are relevant as they demonstrate that there was a degree of planning regarding the letting of properties for the cultivation of Cannabis. The nature of the physical set up also shows considerable know-how, investment and effort.
16.There is no evidence that you were involved in the set-up of these houses, nor is there evidence that your participation was limited to being a crop-sitter. There is no evidence before me of what reward you were to receive. I must sentence you upon the facts, and so I will approach the sentencing exercise upon the basis that you played some role in the organised cultivation of Cannabis, and the fact that you were living at each address tends to suggest that you were not one of the principals of the endeavour.
Personal Circumstances
17.You are now 51 years old. You were born in Bosnia, to parents of Serbian origin. You had a normal upbringing and youth that were mostly happy, and your life was progressing well. You had friends, you went to university and you were employed with your father, in a stainless steel materials export business.
18.In your early 20s your life, the life of your family, and your country were thrown into chaos by the Bosnian War. You left for Serbia, where you were conscripted to fight. You told a psychologist, Mr McKinnon
'I was on the frontline a few time. I have very bad memories. Thirty-five years ago but I still think about it, have dreams about it. Most of my school friends are dead, only five or six left. Some moved away to the USA or Germany. When I went back I didn’t recognize anyone. All new people there.'
19.You did not want to take part in the war, but it was forced upon you. You eventually managed to leave the fighting, returning to Belgrade where you lived with the risk of being forced back into further military service. As your counsel submitted, it is impossible for someone who has lived all their life in the stability of Australia to really understand how devastating the war was on people such as yourself. That conflict has had a lasting impact upon you.
20.You arrived in Australia as a refugee in September 1994, and were initially able to live with an aunt. You obtained different types of work, and established your own home. In 1995 you married, and in 1998 your first child was born. There had been difficulties with her birth, and your wife was not able to return to work, due to the need to care for your daughter.
21.In 2009 your wife and daughters returned to Serbia, so that your eldest daughter could get medical treatment. You remained here and the offending in respect to Charge 1 was committed in January 2010. I was told you left Australia for Serbia in March 2010 to be there for your family.
22.You returned to Australia in 2016. You told Mr McKinnon that in 2019 you were in need of a place to live and you were offered a place to stay in Frankston, rent-free.
Mental Health
23.After you had returned to Australia, you were referred by your GP for mental health treatment, at which time your doctor noted a history of post-traumatic stress disorder related to the war. In June 2016 your psychologist diagnosed you as suffering “a long history of comorbid Major Depressive Disorder and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood”. He supported a recommendation that you receive the Disability Support Pension, due to your mental health. In 2017 and 2018 Mr Stojcevski wrote to your GP, it appears in the context of you retaining the DSP, confirming the history of Major Depressive Disorder and Chronic Adjustment Disorder with Mixed Anxiety and Depressed mood, related to your exposure to the Bosnian War. He considered that your mental state had impacted upon your ability to find and keep employment.
24.Mr McKinnon assessed you as meeting the criteria for the psychological disorder “mixed anxiety and depression disorder” (“MADD”). He noted that central to your mental health were symptoms of anxiety and depression. He said:[2]
[2] McKinnon page 6
'In my opinion, Mr Barisic’s anxiety and depression are, primarily, residual symptoms of the PTSD that he apparently suffered with for more than twenty years. Over time, some of the more intense symptoms of Mr Barisic’s PTSD – especially flashbacks and intrusive thoughts – have apparently ameliorated and he is now left with a variable mix of significant anxiety and depression. Mr Barisic’s struggles to re-establish a life in Australia after returning here in 2017, his current imprisonment and prolonged separation from his daughters have probably served to sustain his anxiety and depression.'
25.Mr McKinnon said, of the relationship between your mental health and the offending:
'In my opinion, Mr Barisic’s MADD probably made some contribution to his offending (on 28/08/19) by degrading his ability to reason and make sound judgement, lowering his powers of consequential thinking and encouraging a self-absorbed perspective that lacked appropriate concern for other individuals or the wider community.
In my opinion, Mr Barisic was probably also motivated to engage in the 2019 cannabis cultivation enterprise by financial stress and the hope that he would benefit financially by the offence. In this matter, Mr Barisic consciously participated in the criminal enterprise.
Mr Barisic did not wish to comment on the offences of 2010. Nevertheless, in my opinion, Mr Barisic’s anxiety and depression is likely to have made some contribution to his offending on (12/01/10, 12/04/10) by degrading his ability to reason and make sound judgement to a significant degree.
I note that, in 2010, Mr Barisic may well have been suffering with symptoms consistent with a full-blown PTSD – but I do not have enough information to make that diagnosis with any certainty.'
26.Regarding your time in custody, in connection to your mental health, Mr McKinnon noted that you have coped reasonably well with custody to date, but you were at risk of suffering a resurgence of the PTSD if you were involved in or witnessed serious violence.
27.In view of Mr McKinnon’s report your counsel did not seek to persuade me , in particular in respect to the questions of your moral culpability and whether you were an appropriate vehicle for general deterrence, that your mental health is a powerful factor in mitigation.
28.He did submit that Mr McKinnon’s opinion supported the view that there should be some mitigation of sentence by reason of your mental condition making time in custody more onerous for you than for a person in normal health, and by reason of the risk of exacerbation of the PTSD you have suffered if, as was possible, you were exposed to violence whilst in custody.
29.Your mental health is a significant aspect of your personal circumstances which I take into account. I accept that the trauma and disruption to your life and your family caused by the war has had a significant effect upon you. This background explains why you came to be in the position that you needed money and so committed these offences, and I take it into account in that way. I also afford you a degree of mitigation by reason of your continuing mental state and its effect on your experience of prison.
Criminal History
30.Whilst you do have two prior court appearances, these are not for drug related offending and are of a minor nature. I consider they are effectively irrelevant to this sentencing exercise.
Defence Submissions
31.The following matters were raised on your behalf on the plea:
i.Your personal background, including your mental health, which I have already covered in some detail;
ii.That you have good prospects for rehabilitation, taking into account that you have no relevant prior convictions, and are a man of middle age with no previous experience of custody, that you have good family support and as demonstrated by your self-initiated accessing of mental health treatment in the community in the past, and your efforts whilst on remand;
iii.Your early pleas of guilty; and finally
iv.Matters adding to the burden of imprisonment, in particular in view of the COVID-19 restrictions.
32.I accept that you have reasonable prospects for rehabilitation, for the reasons put forward by your counsel. You have a very limited criminal history. It is of concern that despite being arrested and charged in respect to the 2010 matter you offended in a very similar way in 2019. That your motivation for the offending was financial is both a positive and a negative in this assessment – on the one hand you will hopefully have realised that the cost/benefit ratio of what you earned compared to a term of imprisonment means that offending in this way in future is not worth the risk. On the other hand, financial issues will probably arise for you again. I consider there is a need for the sentences I impose to act as a deterrent upon you from committing such offences in future.
33.You indicated that you would plead guilty at the first committal mention and the prosecution have agreed that you are entitled to a discount for your early plea of guilty. Your plea warrants significant mitigation of your sentence, both because of the utilitarian benefits flowing from it, and as an indication of your remorse. Your plea and the facilitation of the administration of justice carries particularly strong weight in mitigation in light of the limitations upon the operation of the Court due to the COVID-19 restrictions.
34.The COVID-19 restrictions add to the burden of imprisonment for several reasons including the consequential limitations on the activities and courses available to prisoners, concern for the health of family and friends in the community, inability to have face to face visits, and inability to regulate your own exposure to others. This also has a mitigating effect on your sentence.
Other Sentencing Considerations
35.Those who organise crop houses must retain the services of people to care for the plants, both as necessary labour and to insulate themselves from detection. Deterring people such as yourself from taking part in such criminal activity has a significant role to play in sentencing for offending of this nature, but this does not overwhelm the other sentencing considerations.
36.Furthermore, the sentences I impose are intended to denounce your conduct, and to be just punishment. They are also to act as a deterrent upon you from committing further offences, although as I have noted this has some lesser effect by reason of you already having been detected and placed on remand.
37.Charge 2 is a serious offence, bearing a maximum penalty of 25 years. It is a Category 2 offence, and thus you cannot be sentenced to a term of imprisonment combined with a community correction order unless you established one of the exceptions set out in the Sentencing Act 1991. I note that your counsel did not submit that you fall into any of those exceptions.
38.I also take into account the principal of totality. Whilst there needs to be a degree of cumulation between the sentences, in view of the different times and places at which they occurred, I must also take care to ensure that the total sentence reflects the totality of the offending. Mr Barisic, the sentences which I am going to impose are as follows:
39.Charge 1 – you are sentenced to a term of 12 months' imprisonment.
40.Charge 2 – you are sentenced to a term of 2 years’ imprisonment.
41.On the summary offence you are sentenced to 3 months’ imprisonment.
42.I direct that 6 months of the sentence on Charge 1, and 1 month of the sentence on the summary offence be served cumulatively upon each other and on the sentence on Charge 2.
43.The total effective sentence is therefore 2 years and 7 months.
44.I impose a non-parole period of 1 year and 6 months.
45.Pursuant to s.18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 369 days, not including today, as pre-sentence detention and I direct that this be entered into the records of the court.
46.Pursuant to s.6AAA of the Sentencing Act I declare that if you had not pleaded guilty I would have sentenced you to 4 years and 6 months' imprisonment with a non-parole period of 2 years and 9 months. Are there any other matters?
47.MR DAVISON: Your Honour, there was an application for - a disposal order relating to the drugs themselves and items located. A draft order was provided to the court.
48.HER HONOUR: I understand you agreed to me making that order, Mr Chernok?
49.MR CHERNOK: That is right, there is no opposition to it, Your Honour.
50.HER HONOUR: I will make the orders. Thank you, we will adjourn the court.
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