Director of Public Prosecutions v Gjorgeski
[2020] VCC 355
•27 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01568
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARJAN GJORGESKI |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2020 | |
DATE OF SENTENCE: | 27 March 2020 | |
CASE MAY BE CITED AS: | DPP v Gjorgeski | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 355 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence - cultivation of a narcotic plant – theft of electricity – plea of guilty – remorse – no prior criminal history – good prospects of rehabilitation – aggregate sentence
Sentence: Community Correction Order for a period of 12 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Brennan | Office of Public Prosecutions |
| For the Accused | Mr R Melasecca | Melasecca Kelly & Zayler |
HER HONOUR:
1 Marjan Gjorgeski, you have pleaded guilty to one charge of cultivation of a narcotic plant, for which the maximum penalty is one year’s imprisonment, provided that the court is satisfied on the balance of probabilities that the offence was not committed for a purpose related to trafficking[1] You have also pleaded guilty to one charge of theft, for which the maximum penalty is 10 years’ imprisonment.
[1]I note that at the committal hearing the informant gave evidence and confirmed that there was no indicia of any kind of trafficking.
Circumstances of offending
2
The circumstances of your offending are outlined in the
Summary of Prosecution Opening which was tendered on the Plea and I sentence you on the basis of the facts set out in that document. I summarise those facts briefly here.
3 When executing a search warrant at your home on 21 November 2018, police located a hydroponic cannabis set up in two bedrooms and in your garage. Police also seized a jar containing cannabis oil. Police seized a total of 37 cannabis plants weighing 35.46 kg. The cultivation of cannabis is the subject of Charge 1. Police also discovered an illegal electrical bypass by which electricity to the value of $10,726.58 was stolen from Lumo Energy. This theft of electricity is the subject of Charge 2.
Procedural history
4 You were arrested on the same day, were immediately cooperative with police, made full admissions, and expressed remorse. You said that your family had a history of cancer. You said that you intended to use the plants to make oil for cancer protection, for medicinal use for yourself, your friends, and your family, and also to help you relax. You said that you had never sold any cannabis. You have since fully repaid the amount sought from you by Lumo Energy.
Personal circumstances
5 You were 34 years old at the time of offending and are now 35 years of age. You have no prior convictions. Your personal circumstances were set out in the Defence Outline of Submissions which was tendered at the plea hearing. Those circumstances were also fully explored in the psychological report of Luke Armstrong dated 23 March 2020[2] and in the report of your counsellor, Amanda Brown, dated 23 March 2020.[3]
[2]Exhibit B.
[3]Exhibit A.
6 In brief, you were born in Macedonia, qualified in telecommunications engineering in Sofia, then worked in the United States of America, Sofia and the United Kingdom before moving to Australia at the age of 28 with your current partner. You then completed a Masters in Engineering, and worked 20 hours per week while studying. You have since then been consistently employed as a communications engineer within the health and mining industries.
7 Your mother was a university graduate with a highly paid job, and your father was qualified to repair heavy machinery. He was a harsh, punitive and aggressive man who beat you regularly when he was displeased or drunk. When you were 14 years old, the situation at home worsened when your mother lost her job and was very depressed. You ran away from home several times. By the age of 16, you were smoking cannabis daily to reduce your anxiety, and your consumption increased while you did your tertiary studies.
8 While in the United States of America, your partner was killed in a trucking accident when the truck you were driving flipped over in icy conditions. You were not at fault but suffered afterwards from chronic and severe depression. You returned to Bulgaria but were unable to work for three months. You relocated to the United Kingdom for work but could not manage emotionally and returned to Sofia, where you met your current partner. Your partner suffered post-natal depression after your first child was born, five years ago, and you have needed her parents to come from Macedonia to help. You now also have a four-week old daughter.
9 You began treatment with Ms Brown in early December 2018. You were very depressed and anxious about your court matters and suffered depression requiring anti-depressant medication. This helped your symptoms. You began to have regular drug screens, and to attend church regularly. You followed her advice to undertake voluntary work and have undertaken a great deal of this.
10 When you were assessed by Luke Armstrong in January 2019, he noted that you developed features of personality disturbance as a result of family disturbance, and began self-medicating with cannabis from the age of 14 to mitigate the impact of your depression, anxiety and personal inadequacy. You continued to abuse cannabis on and off for the next 20 years. He diagnosed a Cannabis Use Disorder, moderate to severe, currently in early remission. He noted that you were currently drug free, and that your offending occurred in the context of your having become obsessed with your health, and with preventing cancer, and as a result of a belief you developed with the medicinal implications of cannabis oil. Mr Armstrong felt that this obsession impaired your judgment as to the legal consequences of your behaviour. He recommended ongoing psychological treatment.
11 When he reviewed you on 23 March 2020, Mr Armstrong noted that since being in therapy, you had developed insight into your dependence on cannabis, had become abstinent, had become fully engaged with your church, and had developed interventions to replace your tendency to self-medicate with drugs. You expressed remorse to him. Mr Armstrong felt that your rehabilitation and reformation have been successful for a few reasons. Firstly, you recognised that you had a drug problem, that there was a gap between your values and your behaviour, and that you needed an alternative way of coping with your mental health problems. Secondly, you reformed your belief system, and thirdly, you re-engaged with the community in a prosocial manner. He considered that you are at low risk of reoffending because you have no prior convictions, have abstained from drugs, now have a stable mental state, are surrounded by positive peer relationships including your family, workplace, church and community, and have engaged in a genuine and successful rehabilitation experience. He recommended that you maintain ongoing treatment to assist you in remaining drug free.
Submissions
12 In mitigation, your counsel relied on your lack of prior convictions, your plea of guilty, your remorse, your extensive rehabilitation, your abstinence from drug taking, your solid work history, the references from your priest, friends and colleagues, and your extensive voluntary work. I note that your partner was present in court to support you. I also note that a number of your referees had travelled to the vicinity of the court and were available if required to attend.
13 The prosecution conceded that given all of these matters, a disposition by way of a Community Correction Order is within range. I note that you have been assessed by Corrections Victoria as suitable to undergo a Community Correction Order with conditions including of unpaid community work and drug assessment and treatment.
Sentencing considerations
14 Having considered the tendered material and the submissions of the parties, I am satisfied on the balance of probabilities that the offence of cultivation was not committed for a purpose related to trafficking. I accept the matters relied on in mitigation.
15 The circumstances of your offending are quite unusual. In spite of abusing cannabis over a long period to help you deal with anxiety, depression, inadequacy and stress, you managed to complete your tertiary education, work solidly in your profession, and maintain personal relationships. That is to your credit. Your offending has exposed the psychological frailties which led to your abuse of cannabis. Your willingness to engage in therapy, to acknowledge your psychological difficulties, and to follow the advice you have received from your treaters has resulted in an excellent rehabilitative process. You are now mentally stable, taking no medication, have been drug free since your offending, are well engaged with your church and in your voluntary activities, and have maintained your excellent employment record. You are regarded as being at low risk of reoffending and you have repaid the money owed to the electricity company.
16 In all of the circumstances, I consider that all of the relevant sentencing principles can be given appropriate weight by the imposition of a Community Correction Order.
Sentence
17 Would you please stand?
18 On the two charges before me, you are sentenced, with conviction, to an aggregate sentence of a Community Correction Order for a period of 12 months.
19 You will be required to complete 100 hours of unpaid community work, as well as drug treatment. I direct that up to 75 hours of your participation in drug treatment may be credited towards hours of unpaid community work.
20 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, 12 months from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at South Morang within two clear working days, which will be 31 March 2020. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work, within 48 hours of that occurring. Finally, you must obey all lawful instructions from, and directions, of Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
21 ACCUSED: Yes, Your Honour.
22 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
23 ACCUSED: Yes, Your Honour.
24 HER HONOUR: The prosecution has sought a Disposal Order in relation to an item connected to your offending. I note that through your counsel you have consented to that order. I will make that order in chambers.
0
0
0