Director of Public Prosecutions v Grozdanov
[2013] VCC 794
•10 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00954
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN GROZDANOV |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18- 19 February 2013, 26 March 2013, 15 April 2013 | |
DATE OF SENTENCE: | 10 May 2013 | |
CASE MAY BE CITED AS: | DPP v Grozdanov | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 794 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | |
| For the Accused | Mr D. Dann (Plea) Mr C. Nikakis (Sentence) |
HIS HONOUR:
1 John Grozdanov, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis and a related charge of theft of electricity. Though those charges are laid on a between dates basis, the Crown opening made clear that there was a far more limited time span involved than the period of dates included in the indictment charges.
2 The maximum penalty for the cultivation of a commercial quantity of cannabis is 25 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment.
Chronology
3 Though the transcript of the plea will make clear enough the very complex chronology that I have to deal with, I still regard it as necessary to at least set out some of the details in these Reasons for Sentence.
4 On 16 February 2008 you were arrested at the Merri Concourse, Campbellfield factory, to which these charges relate. You were charged with a variety of offences relating to this property, as well as charges pertaining to another property at Merola Way, Campbellfield. You remained in custody until 15 September 2008, at which point you were bailed at the conclusion of the committal.
5 You were presented on four charges and a trial was conducted before His Honour Judge Gullaci in September 2010. You were convicted by a jury on each of the charges then in existence. The charge relating to 75 Merola Way was a commercial quantity cultivation. The charge for which you were convicted in relation to the Merri Concourse property was a large commercial quantity. In addition in each case there was a theft charge related to the theft of electricity courtesy of a meter by-pass at each of those locations.
6 Judge Gullaci sentenced you to a term of seven years imprisonment on the large commercial quantity at Merri Concourse. He sentenced you to a 4 year term of imprisonment on the Merola Way commercial cultivation and imposed 9 month terms on each charge of theft of electricity. Orders for cumulation produced a total effective sentence of eight years and four months’ imprisonment with a non-parole period of five years and four months’. There was a declaration as to pre-sentence detention to the tune of 224 days. His Honour’s Reasons for Sentence are marked as part of Exhibit E on these proceedings before me.
7 A man named Matthew Spiteri had already, by that point, been dealt with for his involvement in the Merri Concourse property.
8 Mr Spiteri had pleaded guilty at what was said to be the earliest opportunity to the large commercial quantity charge and had been dealt with by His Honour Judge Murphy on 19 February 2009. He received a term of 7 ½ years imprisonment and orders for cumulation made on the theft charge produced a total effective sentence of seven years and 11 months’ imprisonment with a four year nine month non-parole period. Again, those sentencing remarks for Mr Spiteri are part of Exhibit E on these proceedings as well.
9 Mr Spiteri later appealed his sentence and succeeded primarily on the basis of parity of sentence in that there was said to be a justifiable sense of grievance produced by the sentence that had been imposed upon you. See Spiteri V R [2011] VSCA 33
10 The Court of Appeal, at paragraph 61 of that decision, described the sentence imposed upon you by Judge Gullaci as being lenient and concluded also that Mr Spiteri’s sentence otherwise did not warrant appellant intervention but that, as a result of the sentence that had been passed upon you, it would be unfair to permit Mr Spiteri’s sentence to stand. His sentence was therefore reduced and reduced to a term of six years and nine months on the large commercial quantity to which he had pleaded guilty and after orders for cumulation made on the theft term, a total effective sentence of seven years was achieved. A four year two month non-parole period was fixed in his case.
11 To add to this nightmarish chronology, you then succeeded in your appeal against conviction, but only in relation to the Merri Concourse property. A re-trial was ordered on those two charges. See Grozdanov v R [2012] VSCA 94. As a result, the Court of Appeal, on 18 May 2012, affirmed the individual penalties that had been imposed in relation to the other property at Merola Way and maintained the level of cumulation as between those two charges (commercial quantity and theft) as had been selected at first instance by the sentencing Judge. This produced a head sentence of four years and two months. The Court of Appeal then was required to fix a non-parole period and fixed a new non parole period of 2 ½ years. The Court of Appeal made a declaration under s.18 of the Sentencing Act 1991 of 798 days which represented the entirety of your time in custody to that point.
12 Skipping ahead if I might, you obviously served that non-parole period and a little bit beyond, and in preparation for being paroled, you obtained bail in relation to the Merri Concourse property in September 2012. You were released about six weeks later on 25 October 2012 on parole.
13 Meanwhile, of course, the Merri Concourse charges, the subject of the order for retrial, were waiting in the wings and there they waited. The matter came before me on 18 February 2013 for trial in relation to the large commercial quantity charge, as it then was, and the charge of theft relating to the bypass.
14 Your counsel, Mr Dann, who had not appeared at the earlier trial which I will make some comments about, asked for time and I gave him some time. Ultimately, the following day, 19 February, the matter was settled. A new indictment was filed over containing the single charge of cultivation of a commercial quantity (not the large commercial quantity previously alleged) and a charge of theft. You were arraigned, pleaded guilty, and at that stage Mr Dann applied for the matter to be adjourned pending the preparation of a psychological report. I granted that adjournment and allowed you at that point to remain at large on bail.
15 On the day of the plea on 26 March 2013, I remanded you back into custody. To complete this chronology, you have remained there since in custody with a further plea that was conducted on 15 April where there were some detailed submissions made as to the appropriate manner for the Court to have regard to the time that you have spent in custody since your initial arrest back in 2008.
Facts
16 This matter was opened to me by Mr Devlin who appeared on behalf of the Director of Public Prosecutions on the earlier dates and indeed on 26 March 2013. He tendered a summary of prosecution opening which was marked as Exhibit A on the proceedings. I enquired of Mr Dann and I was told that this was an agreed summary. In those circumstances I do not think it is necessary to descend to the particulars of the offending. I will go into some detail but not into enormous detail. The document speaks for itself. The prosecution summary, in conjunction with the various photo books (Exhibit B), spell out the inherent seriousness of this offence.
17 The chronology of offending also assumes some importance in another domain. Though you are being dealt with in relation to this crop as an aider and abetter for the period of about 15 weeks prior to your apprehension on 16 February 2008, that period, 15 weeks, post-dates significantly your involvement in the other crop at Merola Way and the winding up and police seizure of that crop in early September 2007.
18 Neither the conviction for nor the sentence imposed in relation to the Merola Way cultivation have been in any way disturbed on appeal. The Crown went to the jury on that matter before His Judge Gullaci on the basis that you were a principal. You were sentenced on that basis and, undoubtedly, the evidence disclosed to the jury that you were. You were paying rent in relation to those premises, and were present and deflecting the real estate agent away from the examination of the site. You were in possession of a phone which related to the false details given when the property was in fact leased.
19 Mr Spiteri was not charged in relation to that property. The various findings made by His Honour Judge Gullaci and, indeed, the very basis of the verdict, remain undisturbed. The chronology, as I say, does assume some significance as your conduct in relation to the Merri Concourse property, albeit laid on the basis of your being an aider and abetter, post-dates the discovery of that other crop that you had an involvement in. It is clear from the summary placed before me, from the tracking device material, and the surveillance evidence, including the duration of periods where your car remained in the vicinity of the premises, that your role as an aider and abetter in relation to the Merri Concourse property was a relatively significant one. You were in possession of keys, your own set of keys, and visited on your own to this property. It is inescapable that you were fixed with clear knowledge as to the extent of the illegality of your conduct as it pertained to those premises. Again, the premises speak for themselves, the photographs that have been placed before me, and you parked your vehicle at all times away from the premises.
20 I will return to these matters when I deal with the suggestions made in the course of the plea as to the presence of remorse for, regrettably, you still, as recently as March of this year in conference with Mr Cummins were endeavouring to rationalise your misconduct, and only reluctantly accepting that it did involve some assistance in the cultivation at these premises.
21 Perusal of the Court of Appeal decision in your case will show the basis upon which this matter was presented to a jury by your defence counsel. As I say, that was not Mr Dann. That is, of a person who knew of the existence of the cannabis plants within this property, but who was only the “maintenance” man and not involved in cultivation. Of course that was rejected by the jury at first instance. Now, of course, you have pleaded guilty to cultivation in a commercial quantity as an aider and abettor. Necessarily you intentionally assisted or helped the primary offender commit the offence of cultivation in a commercial quantity. That must be so given the basis of liability, You were linked therefore, and have to be linked for that basis of liability to stand, in purpose with the primary offender.
22 I do not intend to descend, as I have said, to the details of the crop. Very often, the adjectives that are applied to hydroponic set ups are either the words “elaborate” or “sophisticated”. Sometimes those words do not pass muster when one is presented with photographs of scrappy little seedlings in dimly lit sheds.
23 The premises at Merri Concourse were set up as a highly sophisticated cannabis factory, of that there can be no doubt at all. Photo books 4, 5 and 6 demonstrate that fact. Of course, you do not stand to be sentenced for the construction of the property or, for that matter, for any involvement in the lease or in the fit out or set-up of the equipment. There could have been no misunderstanding in the mind of any person attending there to deal with nutrients, or timers, or pumps, or pipes, that this was a very significant and commercial illegal venture and of course, it is clear from your plea that you were aiding and abetting the cultivation of a commercial quantity of cannabis. Whilst the crop itself as a matter of fact exceeded a large commercial quantity, that was by a whisker and you do not stand to be sentenced on that basis in any event. You have pleaded guilty to a commercial quantity. On any view of it though, it is very much at the higher end of commercial quantity under the Act.
Range
24 The prosecution placed before me a range of sentences said to be very much reflective of endeavours to pay regard to the principles of totality that had real application in this case. The Crown submitted initially that a sentence in the range of 18 months to two years, with a non-parole period of nine months to 18 months fell within the available range of sentences. But for those matters in mitigation in particular the delay and application of the principles of totality and the stop start nature of your custodial placement, the Crown submitted that a range far in excess of that would have been appropriate. That was their initial submission. Indeed, your own counsel conceded as much in his submissions. But Mr Dann argued that in the particular circumstances of this case, it would be open not to immediately imprison you whilst conceding that ordinarily such an outcome would not be achievable given the nature of the crop and the 3 year ceiling in relation to a suspended disposition.
25 Mr Dann argued that it would be open to the court either to wholly or partially suspend any term, or, if I was against him in relation to that submission, to give you what he described as a brief term with a very short non-parole period.
26 Upon the later hearing on 15 April 203, the prosecutor, Mr Devlin, amended that range, at least in relation to the non parole period, arguing that the range of non parole period should fall between 9 to 12 months rather than the 9 to 18 months that had previously been urged upon the court. He also made submissions as to the likely range had His Honour Judge Gullaci sentenced you back in 2010 on a plea at that time to this offence on this basis. That was said to be in the range of 3 years. Let me say that I do not accept that range for one moment. I repeat, Mr Dann in his earlier submissions to me had conceded that ordinarily a crop such as this would warrant a sentence of such a duration as to make impossible any consideration of a suspended term of imprisonment.
Submissions
27 Mr Dann relied upon the fact of your guilty plea. He argued that quite aside from that, there was evidence of remorse. He relied upon the large delay, during which you had rehabilitated yourself but also had been held in a state of suspense for many years. Mr Dann relied upon what he said were your very good prospects of rehabilitation, there being no prior history and nothing since, and your very good response to release on parole. He argued that specific deterrence ought be given lesser weight than might otherwise be the case. He argued that I should take into account, other than by the general application of the principles of totality, the fact that you had served over two years in custody for this particular matter. That is to say, he was arguing in support of some style of Renzella allowance to reflect that fact. There were detailed submissions placed before me in that regard. The Director sought to resist that submission but conceded that totality was a critical aspect of this case. Mr Dann, relied upon is too strong a word, but at least raised the principles of parity of sentence insofar as they could in any way be meaningfully applied in this case. It is almost a hopeless task to disentangle the various decisions in this case and the various findings reached by one judge or the other, most often findings reached which were not directly applicable to the other offender and none of them made by me. The plea conducted by Mr Dann, focused sharply on the application of the principles of totality in this case leading or producing an outcome that at first blush might seem impermissibly lenient in the circumstances.
28 I say at once that the notion that there could be no immediate term imposed upon you for this particular crime is inconceivable. It is a serious example of a serious offence and really, no joy is to be found in the description of your role as an aider and abetter. You were actively involved in this crop as an aider and abettor. You must have had a significant role to play or you would not have been involved. You were, after all, well versed in hydroponics given your legal business interests in that domain.
29 I turn to consider the matters raised in mitigation.
Guilty plea
30 You have pleaded guilty. It is obvious that you must receive a benefit for that guilty plea. It has not been necessary for the trial to proceed. Witnesses have not needed to give evidence. The community has been saved the time and effort associated with the actual conduct of the trial. As to the stage of the plea, which is a relevant consideration, a simplistic approach would be to conclude that it could hardly have been later. But I will not adopt that simplistic approach. Your counsel submits that there had been, on one occasion very shortly after you were charged, an enquiry made of the police as to whether it would be sufficient for you to plead as an aider and abetter and that this was rejected by the police. I accept that this enquiry was made and the prosecution does not challenge that fact. But, of course, thereafter the prosecution authorities were seized of this matter.
31 A committal was conducted. A trial was then conducted before Judge Gullaci and it is conceded that at no stage was there any offer made in those terms. It was of course your right to run a trial, but I must say, frankly, when one looks at such portions of the material as are available to me in either the sentencing remarks or the Court of Appeal decision, it is a complete mystery as to how proceeding to trial was viewed as anything approaching a sensible course. This case cried out for discussion and resolution. Likewise, after the Court of Appeal decision made clear that even your then admitted conduct could be treated as cultivation and did not require any expanded definition under the Act, again it is a mystery as to why serious and immediate steps were not taken by either you or your legal team to resolve the matter as soon as was possible. I was told that there were enquiries made of the Crown as to the settlement of the matter after the Court of Appeal decision, but no formal offer was made at all. Indeed, I was told that the issue concerning your legal team was the Crown range. If I might say so, it is hard to imagine how or why the Crown range being offered would or should intrude upon an examination of your own conduct and the clear illegality of it.
32 In any event, the matter came before me without resolution, without any formal offer having been made but with an indictment alleging a large commercial quantity. Happily in the week before the trial, your counsel and Mr Devlin, counsel for the Director, had some sensible and useful discussions which resulted in my being requested to stand the matter down, as I have indicated, and the matter resolved on what would have been the second day of the trial. No one has suggested that it is an early plea; your own counsel did not suggest that. It obviously is not. But there has been on any view of it a complicated and convoluted history as well of course as the presence of the large commercial quantity charge which ultimately has not proceeded. So I will not treat the stage of the plea in a simplistic manner as being at the latest stage.
33 What is important is that you have ultimately pleaded guilty. I take that plea into account in mitigation.
Remorse
34 I have set out the chronology in some detail as it is relevant to the issue of delay as well as to the suggestion of the presence of remorse. Of course, now you have pleaded guilty to the commercial cultivation. You have admitted the cultivation in that legal sense but I am left with significant reservations as a result of discussions that you have had with Mr Cummins as recently as 13 March 2013 as to the presence of remorse in this case. His report is marked as Exhibit 1. There are themes running through that report of your being a ‘maintenance man’ not involving yourself in cultivation. In a portion relating to factors of relevance to the forthcoming County Court plea, Mr Cummins says:
“As indicated above, he is now pleading guilty to a charge of cultivation of cannabis of not less than a commercial quantity and on the basis it could be argued he was aiding and abetting the cultivation of cannabis because he was maintaining and servicing some of the hydroponic setup via his hydroponics business.” (my underlining)
35 You knew at the time of the offending, you knew at your trial and you know now that you were assisting in the cultivation of a significant and illegal commercial quantity of cannabis. Yet you still, it seems to me, in a manner, seek to rationalise the conduct as being somehow distanced from the act of cultivation. Likewise in these discussions with Mr Cummins, you described the basis of your ‘employment on a job-by-job basis’ by the co‑offender, Mr Spiteri, to service the hydroponic equipment at the two addresses where cannabis was being cultivated hydroponically. Mr Cummins states the following:
“He stated it was correct he knew cannabis was being cultivated at these addresses although he said at no time did he have any direct involvement with the cultivation of cannabis.”
36 Mr Spiteri was not charged with the other premises. You were dealt with as a principal, and it is clear enough that the evidence placed before the jury in relation to the Merola Way crop dealt with matters that went well beyond your simply being a person assisting in the service of the equipment. You were paying rent. You told Mr Cummins of how you “with time” became aware that cannabis was being cultivated hydroponically (See 2nd paragraph conclusions.) Again, this cannot be so. For reasons which I cannot fathom, you are still prepared today, despite your plea, to misrepresent or not acknowledge the realities of your offending. So I am afraid I am not able to accept any judgments made by Mr Cummins, in those circumstances, as to the presence or existence of remorse. Indeed his recent discussions with you leave me doubting the presence of remorse. I know that there are other matters that are relied upon in support of remorse including the references tendered. Sometimes the very fact of a guilty plea can evidence remorse, but it does not in this case. The statements of your partner, Ms Berkan, of your sister and Mr Mascaro do not persuade me that you are remorseful, given the matters referred to in the report of Mr Cummins and the way this plea has been conducted before me where, again, there is still an air of unreality to the description of what you did and knew. So I am not able to find that you are remorseful for your crimes. That is not a matter of aggravation; it merely means that a matter sometimes existing by way of mitigation does not apply in this case.
Delay
37 I have set out in some detail the chronology in this matter and it is relevant to the aspect of delay. In a way, perhaps I might just have included two dates and left it there, that is, the offence date 2007-2008 (for that 15 week period that is relied upon) and today’s date, 10 May 2013. You stand now to be sentenced for acts occurring back towards the tail end of 2007- 2008. Without saying anything more, it is clear that the delay is very significant. Here, there is no suggestion of any inordinate delay which can be laid at the feet of the prosecution authorities or the police. That is not the way delay is relied upon. It is simply a product of the way in which the matter proceeded with the contested committal and a contested trial and appeal and order for retrial and then the listing of the matter for retrial. Each of these matters was your right. So the delay itself is easy enough to at least understand or explain. There are clear reasons for it, as the chronology spells out. But the Court of Appeal has made clear repeatedly that there is no great profit, if profit at all, in conducting any audit or survey into the reasons for delay. It is clear that I must look at the fact of the delay, and I do. It is very significant and, in the period of that delay, you have gone into custody, been bailed at committal’s end, been returned to custody under sentence following the trial, succeeded in your appeal but remained in custody in relation to the other sentence then in existence. You have been bailed but then paroled later, that was late last year, and now of course you have now gone back into custody yet again. It is a torturous chronology on a personal level for you and I accept that to be so.
38 In the period of five years, you have served over two and a half years’ imprisonment which obviously is a matter of great significance. That is not an insubstantial term. Whilst still to an extent rationalizing your position, a term such as that must have driven home to you the seriousness in the future of any offending such as this. You have also been released on parole and have returned to your family and returned to work. You have complied very successfully with your release on parole, as the report marked Exhibit F makes clear; that is a progress report. I called for that report to look at your progress on parole. I take into account that report.
39 When you have been on bail for the significant period that you have been on bail at various times along the way, your bail conditions have been very strict by way of both reporting and residential conditions. So I am prepared to find that you are now a person who has well and truly embarked upon the process of rehabilitation. It is well under way. You used your time in custody quite usefully and have progressed, as I have said, very well upon release. Many of these things, no doubt, would have been the thrust of submissions as to your potential in the future had the plea been conducted many, many years ago. I do not need to look to the future. I am able to look at these matters now as matters of demonstrated fact in your favour and so of course I take them into account. You have, as I say, to a significant degree, rehabilitated yourself in the course of the delay. I have no hesitation in concluding that it must have been extremely difficult to establish and live any form of settled life over the last handful of years given the chronology that I have commented on. You must have been living in a state of suspense leading up to the committal, leading up to the trial and leading up to the Appeal. Then having served the non parole period, again upon your release on parole, you were plunged back into a level of uncertainty as to what lay ahead leading up to the retrial. So you have been living for years now with the risk just over the horizon of an unhappy conclusion at each stage of the proceedings. Your sister and partner comment on the impact of this great uncertainty upon you and the stresses of living such a life. I do not doubt it and I have regard to those references. I take into account delay in the ways that have been raised by your counsel. It is in my judgment a substantial mitigatory matter.
Rehabilitation/Background
40 I have not even to this point set out your personal history and I do not regard it as necessary to do so at all. I have no reason to doubt the history that was placed before me by Mr Dann, and that, to an extent, is mirrored also in the material provided in the report of Mr Cummins. You are 45 years of age. You have had no particular psychological issues. There is no suggestion that Verdins has any application in this case at all, as Mr Dann made very clear, and he undoubtedly was correct. You had a normal upbringing and moved from school to university and then successfully conducted your own businesses for a number of years. There is nothing personal to you disclosed in the material that is likely to hamper your rehabilitation. By the same token, there is nothing in that material that explains why it might be that you, an intelligent person with no issues in terms of drugs or debt, involved yourself as you did in offending as serious as this. You had, as is made clear, a very successful business and a very significant income at the time. This offending was between dates; it was not a single event on a single day. It was clearly quite deliberate, conscious and sustained action over a period of 15 weeks or so in relation to offending that demonstrably was extremely serious, as you must have known at the time.
41 You have no prior history and have nothing pending. In the circumstances, and notwithstanding that I am not able to find the presence of remorse, I do judge your rehabilitative prospects to be very good. There is though still a need to deter you from offending but given your progress to date and the passage of time since your offending, I assign less weight to that purpose and to the protection of the community than might ordinarily be the case. I believe you are a low risk of re-offence. There is also clearly a need to deter others from committing offences such as these of which I will have more to say.
Totality of sentence
42 It is clear that I must pay strong regard to the principle of totality of sentence in this case. This is an extremely difficult sentencing exercise in that you stand now to be sentenced for a serious crime many years after the event. I have the tangled history of the proceedings placed before me which I have endeavoured to state briefly in these reasons, including the fact that you have spent over two and a half years in custody already. Of course, had there been no Appellate intervention, you would have had a sentence lapse date of May 2018 or thereabouts with an earliest release date on parole of July 2015 or thereabouts. Once your appeal was allowed though, your then custodial liability was significantly reduced. The head sentence reduced from 8 years 4 months to 4 years 2 months. The non–parole period which had been 5 years and 4 months was reduced to 2 ½ years by the Court of Appeal. You were released as I say on parole in October of last year and really could not have complied in any better way than you did. The current sentence lapses in May 2014.
Characterisation of time already spent in custody
43 There was much focus on the way that I should view the period of imprisonment already served by you and its relationship to the sentence that I now impose. Submissions were addressed as to how that period should be viewed, what allowance should be made for it and whether this ought be done by application of the principle of totality or independent of that in a Renzella style allowance. There were some detailed written submissions placed before me in this respect by each side. I have looked at those submissions carefully and gone to each of the cases referred to within the materials and have looked at a number of other cases, including a relatively recent overview of authorities in this field, the case of R v Karpinski [2011] VSCA 78. There is no suggestion in Mr Dann’s written submissions of there being only one particular method in which the past periods could be considered by this Court (See paragraph 33.) The potential methods are set out in paragraph 34 of his submissions but of course as he concedes the first approach of declaring pre-sentence detention is simply not open given the earlier declaration made in the Court of Appeal. He argues therefore that this period of 798 days already declared as pre-sentence detention by the Court of Appeal should be taken into account in what is said to be a Renzella sense or at least by way of recognition of the loss of the opportunity for concurrency. However, Mr Dann concedes that another potential method is simply by the strong application of the principles of totality. The prosecution argue against a Renzella allowance in the circumstances and urge the Court to have regard to the principle of totality, whilst recognising that you cannot be disadvantaged by the successful appeal. The prosecution contended that there was to a degree a fettered sentencing discretion here. I do not agree and the written submissions filed on behalf of the crown take me through, a multi step approach urged upon the court. It involves this court endeavouring to place itself into Judge Gullaci’s position and considering the range that would have then existed if the plea was conducted then on the same basis as now and then move now to modify various aspects of that sentence. The submissions include an indication of the range which would have applied in those circumstances at the time of Judge Gullaci's sentencing in that hypothetical setting. However, that is presented not as a range at all but a stark figure of 3 years. I do not accept that that could ever have been a range in such a setting for a crop such as this. I obviously have taken the various written submissions into account but if I might say so, the prosecution submissions involve, it seems to me, a dangerous move away from the process of intuitive or instinctive synthesis which I am obliged to engage in and really are more in the manner of a series of theoretical assumptions as to events that have not taken place with various deductions and modifications more in line with a forbidden two stage approach.
44 I am not prepared to embark upon that approach commended by the Crown though I do accept the argument that in this case the best way of approaching the period served in custody is by the strong application of the principles of totality.
45 I do not believe it is appropriate to make any Renzella allowance for any period other than the 36 days from 19 September 2012 to 25 October 2012 when you were ultimately paroled. Every day that you served in relation to the sentences imposed by Judge Gullaci was reckoned when regard was had to the non-parole period fixed by the Court of Appeal. I do pay regard to the fact of your having or suffering a loss of opportunity for concurrency, though I will have some powers myself to exercise in that domain in ordering either cumulation or concurrency as of the date of this sentence and the exercise of that discretion will be heavily influenced by the loss of opportunity that I have recognised.
46 It is clear that I must pay strong regard to the principles of totality. I both moderate the actual sentence to be imposed in relation to each of the individual charges and moderate the extent of cumulation as between the sentences. In these two ways, I pay strong regard indeed to the principle of totality. Having done that, I have taken a last look at the sentences shortly to be pronounced to ensure that they are not crushing upon you.
Parity of sentence
47 The notions of parity of sentence are almost impossible to meaningfully apply in this case. I think it is fair to say each party concedes that to be the position. It is almost impossible to untangle the various findings made by other judges and other courts. I descend to further detail now merely to identify the difficulty in the task. Insofar as reliance is placed on what Mr Spiteri received for a large commercial quantity, Mr Spiteri was sentenced in relation to the particular setting accepted to be the position by that sentencing judge, His Honour Judge Murphy. That was a setting where you were the person said to be involved in the leasing, you were the person involved in the bypass and he was said not to be involved in the other process at Merola Way and he had made full admissions in relation to the Merri Concourse property and had pleaded at the first available opportunity to a large commercial quantity. Of course, you do not stand to be sentenced in relation to the large commercial quantity.
48 It is further complicated by His Honour Judge Gullaci sentencing you in October 2010. He ignored (as must I obviously) the various assertions made by Mr Dunn QC on behalf of Mr Spiteri. The Crown at that time of your sentencing made submissions about what the court ought be satisfied of in that sentencing task undertaken by Judge Gullaci. The notion of parity of sentence was said back then to be a vexed or difficult issue (See paragraph 12 of the sentencing remarks.) It has become impossible to apply since. In any event, Judge Gullaci was satisfied of a number of things as against you beyond reasonable doubt, as he spells out in paragraph 13, but they are not matters that I could possibly be satisfied of today given the way the matter has settled and the basis of your liability. I obviously am not and could not be satisfied that you were a principal or that you were involved in the setup of the factory or the process or any of the earlier crops or the bypass or your being involved for the full period of the indictment charge. So the aggravating features that His Honour Judge Gullaci commented on could not be found against you. I ignore the assertions that have been previously made by Spiteri and accept the findings made by His Honour as to the lack of aggravating circumstances, as set out in paragraph 20 of his sentencing remarks. So there are complex differences even before one takes a further step. But a further step must be taken for Spiteri then relied upon the sentences imposed by Judge Gullaci upon you to drive down his own sentence courtesy in that case of the application of the principles of parity of sentence. He succeeded in that regard. There is the description as I have said by the Court of Appeal of the ‘leniency’ of the sentence first imposed upon you in relation to the Merri Concourse property but again that was in relation to the large commercial quantity count. That sentence previously passed on you was passed on a factual basis that is not open to me in any shape or form of your being a principal, acting with the intention to cultivate a large commercial quantity and following a trial. You have pleaded guilty before me and not to a large commercial quantity. As I say, I perhaps have spent far too long going through the tangled course of the proceedings and the dispositions and findings made by others. But ultimately, in my judgment, it is impossible to unravel these various matters in any sensible fashion at least in any quest to pay regard to parity of sentence and the avoidance of any justifiable grievance.
49 As I am sure you will understand, Mr Grozdanov, there are a number of factors that the Court must have regard to when passing sentence. I must pay regard to the maximum term of imprisonment. Here, as I have said, the maximum term for the cultivation of a commercial quantity is 25 years’ imprisonment. Whilst, of course, one always pays regard to the prospects of rehabilitation, it is not the only purpose for which sentence is to be imposed. I must denounce your conduct. I must punish you justly and proportionately. I must protect the community. You must be deterred from ever offending in this way again.
50 Despite the delay and your rehabilitation to date, specific deterrence is still a relevant purpose to be given some weight. You moved from the Merola crop to this crop, seemingly undeterred by the winding up of the earlier enterprise. You were running a legitimate business, but clearly applying your expertise on an aiding and abetting basis, at Merri Concourse, to what was a very clear criminal undertaking. You had expertise derived from your legitimate business. The conduct for which I must pass sentence was conduct that spanned a reasonably significant period of time committed by you, a person with no personality disorders or no basis to misunderstand the seriousness and the gravity of the offending. As I have said though, I have reached a judgment that you have very good prospects of rehabilitation and that, to an extent, reduces the emphasis to be placed on the need for you to be specifically deterred, but it is still a factor for me to pay regard to, and I do. Those same conclusions, to an extent, reduce the need to pay strong regard to the protection of the community, although of course, as is clear, you stand to be sentenced as a serious offender in relation to Charge 1 on this indictment courtesy of the Merola Way conviction.
51 The Court of Appeal has made clear time and time again the seriousness of offending such as this. There has over the last 20 or so years been a massive growth of this style of cultivation of cannabis. This is a quantity-based regime. You were actively involved on an aiding and abetting basis in the cultivation of a commercial quantity and at the high end of a commercial quantity.
Current Sentencing Practice
52 I am required to take into account current sentencing practices, and I do. I have looked at the relevant Sentencing Advisory Council Snapshot number 133. I have also looked at the relevant portions of the Judicial College of Victoria Sentencing Manual dealing with an overview of cases for sentencing in this field.
53 What is clear to me is that, even paying regard to the very many matters in mitigation, including the powerful impact of delay and the very significant and driving force in this case provided by the principles of totality of sentence, you still must be sent immediately to prison.
54 This sort of offending almost invariably involves the taking of a calculated risk. A message must be sent by this Court, a message loud and clear to others in the community who are prepared to take the risk in relation to this style of offending. The message must be that with that risk comes the likelihood of apprehension and, with apprehension, the certainty of a significant term of immediate imprisonment. As to the objective seriousness of this cultivation the photographs in Exhibit B and the summary speak for themselves. This crop had all the hallmarks of a most expert cultivation of commercial quantity and in an unmistakeable commercial context as must have been clear as day to you at the time.
Serious offender status
55 You stand to be sentenced as a serious drug offender, courtesy of your prior conviction for commercial cultivation of cannabis recorded at the first trial and not disturbed on Appeal. Of course, it is not a prior conviction, I make that clear. But your counsel concedes you stand to be sentenced as a serious drug offender. Of course I will not pass a disproportionate sentence as is allowed in some circumstances. I have to pay regard to the protection of the community as the principal purpose for which the sentence is to be imposed. But again the case law makes clear that in having regard to that statutory requirement, I have to look at the individual risks posed. My findings as to your low risk of re-offence, and very good prospects of rehabilitation inform the way I approach this task under the serious offender regime. So I take into account those positive findings in applying that provision set out in s6D of the Act.
56 In the end, as I have said, I have absolutely no doubt at all as to there being a need for a significant immediate term of imprisonment. The nature and gravity of this offence calls for such an outcome, notwithstanding the very many mitigatory matters placed before me. Despite the great uncertainty and instability provided by your stop/start nature of your incarceration over the years, I am the agent now responsible for sending you back to prison many years after you have committed these crimes. However, I make clear to you that I have significantly moderated the individual sentence to be imposed on the base sentence to pay regard to the principles of totality and to the many mitigatory matters including the large delay in this matter. So too have I significantly reduced the non parole period that otherwise would have applied.
57 Indeed, in the circumstances, given the sentences that I am about to pronounce, I feel I should make plain that no one in any other case ought rely upon the sentences shortly to be imposed in this case as providing any example or guide or illustration as to the range of sentence applicable generally for this style of cultivation in a commercial quantity. But for the matters in mitigation especially the sizeable delay and the tortuous stop start nature of your custodial predicament, the sentences shortly to be pronounced would very plainly be seriously and manifestly inadequate.
58 Sentence
Would you stand up please?
59 On Charge 1, cultivation of a commercial quantity of cannabis, I convict and sentence you to two years’ 3 months imprisonment. (27 Months)
Charge 260
On Charge 2, the charge of theft, you are convicted and sentenced to 6 months imprisonment. I direct that 1 month of that sentence is to be served cumulatively upon the base sentence
This results in a total effective sentence of 28 months or 2 years and 4 month imprisonment
Non Parole Period
61 I fix a period of 12 months during which you will not be eligible for release on parole.
Section 18 of the Sentencing Act
62 You have spent a period of 45 days in custody pursuant to this sentence already and I declare that that period be reckoned as already served pursuant to this sentence under the provisions of s18(1) of the Sentencing Act. I have also taken into account in a Renzella fashion as I have described the period after you had served the non parole period and leading up to your release on bail, a period of some 36 days.
464ZFB
63 Application was made for a retention of the forensic sample and any related material and information obtained. That application under s464ZFB was not opposed. In the circumstances, I have signed the draft order and pronounce that order in these terms. I order that pursuant to s464ZFB of the Crimes Act the forensic sample and any related material and information obtained pursuant to the informed consent given by you on 16 February 2008 be retained for placement on the database. I have made that order. I am satisfied that the making of the order is justified, given the seriousness of the offending, the fact that the order is not opposed and that it is in my judgement in the public interest to make it.
Compensation
64 Secondly, there was an application for compensation that was brought in relation to the monetary amount for compensation for the monetary value of the electricity that is the apportioned value for the 15 weeks that are the subject of the span of this charge. Again, there is no issue about that. Your counsel consented to that application. In the circumstances then, pursuant to the provisions of s86 of the Sentencing Act I convict you and have convicted you of the charge of cultivation in a commercial quantity and theft. I am satisfied that as a result of the offences the named company, AGL Victoria Pty. Ltd. has suffered loss of property and loss in the sum of $11,445.37 and I order that you pay that sum to AGL Victoria Pty. Ltd at 120 Spencer Street, Melbourne, compensation in the sum of $11,445.27. So that is the compensation order that has been now made.
Section 6AAA of the Sentencing Act
65 I have taken into account the fact of your guilty plea and have passed a lesser sentence as a result of it. Had you been found guilty following a contested trial, I would have imposed a more significant sentence upon you. I would have sentenced you to a period of five years’ imprisonment with a non-parole period of three and a half years. That statement made pursuant to the provisions of s6AAA is to be entered in the records of the Court.
66 Though it is probably unnecessary for me to make any direction in this respect, I direct that the sentences that I have imposed are to be served concurrently with any other sentence you are currently undergoing. I do not cumulate any portion of the sentence upon any existing or other sentence that you are currently liable to. Again, to avoid any doubt in this area, as I feel I need to be explicit, it is my intention that this sentence run concurrently with the sentence imposed at the Court of Appeal. Of course in relation to that sentence, you were released on parole. That parole has not been cancelled. You are no longer able to comply with your conditions of parole and obviously have not been able to since my remand of you and one would expect the cancellation of your parole. As I say, that has not happened to date. There is little more I can do than to make plain that I am not cumulating the sentences that I have pronounced upon any existing sentence. To make it plainer still, had your parole actually been cancelled at this stage, I would have made clear that the sentence pronounced by me was to be served concurrently with any existing sentence including that flowing from the cancellation of your parole. It may well be in those circumstances that these remarks are of use to you, Mr Grozdanov, and I will send a copy of these reasons to the Adult Parole Board so they are left in no doubt about my sentiments.
67 Mr Devlin and Mr Nikakis, are there any other matters I have overlooked at all or not?
68 COUNSEL: No, Your Honour, thank you.
69 HIS HONOUR: Thank you. Yes, very well. Remove Mr Grozdanov, please.
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