Director of Public Prosecutions v Grabovic

[2021] VCC 394

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02209

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL GRABOVIC

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2021
DATE OF SENTENCE:	7 April 2021
CASE MAY BE CITED AS:	DPP v Grabovic
MEDIUM NEUTRAL CITATION:	[2021] VCC 394

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Dishonestly cause a risk of loss to the Commonwealth; Evasion of payment of excise duty in relation to tobacco plants, leaf and seedlings; $315,351.68; Plea of guilty; No prior convictions; Chronic poor health

Legislation Cited:       Criminal Code (Cth); Sentencing Act (Vic)

Sentence:Four months imprisonment; released forthwith on a recognisance release order of $1,500; Conditioned to be of good behaviour for a period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms S. Holmes	Commonwealth Director of Public Prosecutions
For the Accused	Mr C. Terry	Cinque Oakley Bryant Lawyers

HIS HONOUR:

1Paul Grabovic, you have pleaded guilty to one charge that you dishonestly caused a risk of loss contrary to s 135.1(5) of the Criminal Code (Cth).

2The particulars of that charge are that at Dunnstown in Victoria, between about November 2017 and 1 March 2018, you dishonestly caused a risk of loss to the Commonwealth, namely the payment of excise duty in relation to tobacco plants, tobacco leaf and tobacco seeds located at 130 Ti Tree Road, Dunnstown, knowing or believing that there was a substantial risk of the loss occurring.

3In essence, your offending involved cultivating an illegal crop of tobacco on half an acre of your 26 acre property at Dunnstown, near Ballarat. On 1 March 2018 the excise rate on tobacco was $916.72 per kilogram. The total excise value of this crop was estimated to be $315,351.68. The gravamen of your offending was the risk of a loss to the Commonwealth revenue of that $315,351.68.

4Ms Holmes, who appeared on behalf of the Commonwealth Director of Public Prosecutions, tendered and read to the court the Summary of Prosecution Opening originally prepared for the purposes of the sentence indication hearing, which now serves as a summary of the facts upon which the prosecution relied for the purposes of your plea. Mr Terry accepted that that summary is accurate and what follows is largely based upon that document.

5In October 2006 the Australian Government withdrew all licences to grow tobacco in Australia. Since then no licences have been issued for tobacco production and all licensed tobacco manufacturers have sourced their tobacco from overseas. Indeed, since 2012 all tobacco products including cigarettes have been imported into Australia from overseas.

6On 1 March 2018, Australian Tax Office investigators executed a search warrant at a property at 130 Ti Tree Road, Dunnstown, which was owned by you and your brother. Investigators located 16 racks containing tobacco leaf, a crop of tobacco and seedlings. A kiln containing tobacco was also found. The seedlings and crop were sampled, analysed and found to be tobacco with a total weight estimated in the order of 344 kilograms. Investigators also seized, amongst other items, a tractor and a generator.

7You participated in an informal interview with investigators at the time of the execution of the warrant during which you made some admissions along the following lines:

·You said there was a tobacco crop growing on the property but that it was under an acre;

·You said that you planted the crop and that you did everything in relation to the crop;

·You said it was the first crop you had grown and that you had put it in to help yourself and, I assume, your brother, a little bit;

·You said there was a kiln operating on the property with tobacco leaves in it that had been picked the day before;

·You said that you planted the crop by hand from seedlings in November 2017;

·You said that you got the seedlings from a friend and that you had paid $2,000 for those seedlings; and

·You stated to investigators that the tobacco was intended to be kept by yourself and your brother John, and to be given to other members of your family.

8On 3 June 2020, you made a 'can say' statement to investigators in which you implicated a third person in the growing of this crop and another crop as a commercial enterprise. Ultimately, the prosecution decided not to take up your offer to make a formal statement and give evidence against that person. Nevertheless, it was accepted that you had co-operated and that that co-operation was genuine and of value to the prosecution and properly mitigated your sentence under s 16A(2)(h) of the Crimes Act 1914 (Cth).

Procedural history

9The procedural history of this matter is unfortunate. You were originally charged with one offence involving two properties and the matter proceeded to a contested committal. However, you never disputed your responsibility for the matter to which you have pleaded guilty in this indictment and, when the charges were separated, you promptly pleaded guilty.

10Further delay arose due to the pandemic. There was also a reasonably significant delay by prosecuting authorities in determining whether to proceed to use you as a witness in the prosecution of a third party/principal. Ultimately, it has been more than three years since you were charged with this offence. I accept that that delay has been punitive and should now operate to mitigate your sentence.

11Further, having regard to the manner in which you were charged, I accept that your plea of guilty was made at the first practicable opportunity. Unquestionably, your plea of guilty has facilitated the course of justice and supports the submission that, taken in combination with your co-operation, you are remorseful. It follows that your plea of guilty and the delay that has attended this matter will result in a substantial reduction in the sentence that would otherwise have been imposed.

Personal circumstances

12You are now 64 years of age, having been born on 25 May 1956. You have no prior or subsequent convictions. You emigrated to Australia as a young child with your parents and four siblings. Your parents were originally from Yugoslavia. They worked in factories until they were ultimately able to purchase a farm in Werribee South, when you lived in your secondary school years.

13You found schooling difficult because it appears you had some form of learning disability, and, although you completed school up to a Year 10 level, you remain functionally illiterate.

14Mr Terry explained that you have had a hard but productive working life, starting out as a labourer in a market garden and thereafter working for many years in factories. Notably, you worked as a foreman at Castle Bricks for about ten years before purchasing the Dunnstown property with your brother, and that farm was generally used to run cattle. You have otherwise led a quiet life and have not married or had children.

15The period since being charged with this offence has been particularly difficult for you, not only because of the uncertainty attaching to the outcome of these proceedings but also because your brother, with whom you lived and operated the property, passed away in 2020. Two other siblings have also passed away in the last two years. You now live alone and maintain the farm as best you can.

16A particularly salient feature of your personal circumstances is your chronic poor health. In 1998 you suffered kidney damage in a motor vehicle accident and had to undertake dialysis for eight years. In 2006 you underwent a kidney transplant and, although this procedure was apparently successful at the time, your condition is now progressively deteriorating.

17A report from Dr John Whitlam, nephrologist at Austin Health, dated 11 June 2020 states:

Mr Grabovic has a number of chronic health conditions including, but not limited to, kidney failure arising from IgA nephrology and treated with kidney transplantation (in June 2006), diabetes, dyslipidaemia, obstructive sleep apnoea, obesity, recurrent abdominal pains attributed to chronic pancreatitis, high blood pressure, fatty liver disease, back pain, plantar fasciitis, osteopenia and a right knee meniscus tear. Medications prescribed to Mr Grabovic include prednisolone, mycophenolate, tacrolimus XL, pantoprazole, insulin, linagliptin, rosuvastatin, fenofibrate, lercanidipine and candesartan.

Current active health issues include maintenance of his kidney transplant, management of his diabetes and blood pressure, preventative health measures, investigation of worsening shortness of breath on exertion and management of deteriorating kidney transplant function (declining since April 2018). If his kidney transplant fails, he will require dialysis and consideration of another transplant. It is not possible to predict when this will occur with any certainty.

18Since the time of that report you have told Mr Terry that your condition has continued to deteriorate and much of your time is now spent attending for medical treatment.

Defence submissions

19Mr Terry submitted that this was not an unduly serious example of this offence, given the relatively small proportion of the property actually used for the cultivation of tobacco. He further submitted that, having regard to the cogent matters which mitigate your position, a conviction bond was open as a disposition.

Prosecution submissions

20Ms Holmes, in her submissions, accepted that the personal matters relied on by you did strongly mitigate your position, however she emphasised the fact that this was nonetheless a commercial enterprise that you engaged in for profit. It was not on as large a scale as many cases and was clearly not the most serious example of this type of offending, but she submitted that it was not of the lowest order, either, where, for example, someone might cultivate tobacco for personal use. $315,351.68, it was submitted, was a significant risk of loss to the Commonwealth.

21Ms Holmes submitted that I should impose a term of imprisonment upon you in relation to this offending. However, it was submitted that, given the mitigation, it was open to order your release forthwith on a recognisance release order.

Consideration

22In analysing these submissions I accept that the following matters significantly mitigate your sentence:

·     First, your plea of guilty made at the earliest practicable opportunity;

·     Second, the punitive delay of more than three years before the resolution of this matter;

·     Third, your co-operation with the authorities;

·     Fourth, the fact that you are now 64 and have led a blameless and productive life and have no prior or subsequent convictions;

·     Fifth, your chronic and debilitating health condition, which substantially undermines your quality of life;

·     Sixth, that you are now alone, having recently endured the loss of your siblings, and bear the sole responsibility for maintaining your farm;

·     Seventh, that there has been some further extra-curial punishment in that your tractor and generator, which were of considerable value, were seized and sold by the authorities;

·     Eight, whilst this is serious offending, it is not, I accept, as serious an example of this offence as is sometimes seen in this court; and

·     Ninth, I accept that you are remorseful for involving yourself in this enterprise.

23Despite that mitigation, however, I accept the Crown's submission that the commercial nature of this offending elevates its seriousness beyond the lower range, as does the substantial sum of $315,000 which your enterprise put at risk. In my view, an appropriate balance of the competing sentencing considerations is that contended for by the Crown; namely, the imposition of a term of imprisonment which marks the seriousness of the offending but which enables your immediate release upon your promise to be of good behaviour.

Sentence

24Taking all relevant matters into account, you will be sentenced as follows.

25On the one charge of dishonestly causing a risk of loss to the Commonwealth you will be convicted and sentenced to a term of imprisonment of four months and I order that that sentence commence on this day, 7 April 2021.

26I will further order, however, that you be released forthwith on a Recognisance Release Order in the sum of $1,500 and that you be of good behaviour for a period of 12 months.

27I will also indicate, pursuant to s 6AAA of the Sentencing Act (Vic), that but for your plea of guilty you would have been sentenced to a term of 15 months imprisonment and I would have set a Recognisance Release Order for your release after the service of nine months of that sentence.

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