Director of Public Prosecutions v Herceg

[2021] VCC 1111

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00308
Indictment No. K12266340

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEBOYSA HERCEG

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2021
DATE OF SENTENCE:	6 August 2021
CASE MAY BE CITED AS:	DPP v Herceg
MEDIUM NEUTRAL CITATION:	[2021] VCC 1111

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Cultivation of a Narcotic Plant; Cannabis; Theft

Legislation Cited:      Sentencing Act 1991, Migration Act 1958

Cases Cited:Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of 177 days’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Crouch	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A Sharpley	Sarah Pratt & Associates

HIS HONOUR:

Introduction

1Neboysa Herceg, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis, which carries a maximum penalty of 15 years’ imprisonment, and one charge of theft, which carries a maximum penalty of 10 years’ imprisonment.

Circumstances of Your Offending

2The circumstances of your offending were set out in the Amended Summary of Prosecution Opening upon Plea dated 26 July 2021, Exhibit 1 at your plea hearing.  Your offending can now be briefly summarised.

3On Wednesday 28 August 2019, police executed a warrant at 531 Frankston-Dandenong Road in Carrum Downs.  No one was present at the time.  Inside the property, police observed cannabis plants in various stages of growth through hydroponic setups in five separate rooms in the house.  The setup included air‑conditioning style ducting to remove odour, electric cabling and black irrigation piping running through the indoor growing areas, heat lamps suspended from the ceilings and a separate nursery for small plants.  A couch was set up as a bed in the loungeroom and nearby were personal papers and documents in your name.  Police seized the cannabis plants, which were later examined by a botanist who determined that there was a total of 139 plants with a total weight of 11.8 kilograms.  At your plea hearing on 30 July 2021, at my request, photographs showing the hydroponic setup and the cannabis plants were provided by the prosecution.

4Police also located an electrical bypass.  Subsequent investigations revealed that between 1 January 2019 and 28 August 2019 electricity to the value of $22,424.47 was stolen.

5After the execution of the warrant, the police members waited nearby, and at 10.10pm you were observed to drive into the property.  You were arrested and conveyed to the Frankston Police Station where you made a no comment record of interview.  A key in your possession was later found to fit the front door of the house.

6You were remanded in custody on that day, 28 August 2019, and remained in custody until being granted bail at the conclusion of your committal hearing on 21 February 2020, 177 days after your arrest.

Nature and Seriousness of the Offending

7Although the number of plants located exceeds the commercial quantity threshold of 100 plants, the total weight of those plants, 11.8 kilograms, is significantly less than the commercial quantity threshold by weight, being 25 kilograms.  As conceded by the prosecution, by far the largest quantity of plants were located in what was described as a “nursery” and therefore can be fairly described as small plants.  Your counsel explained that 55 plants were located in the “nursery” and were described by the relevant botanist as being cuttings with minimal root systems.  In all the circumstances, I accept that whilst the number of plants located is concerning, the relatively low weight accurately reflects the gravity of the cultivation offence.  The prosecution in this case submitted that the cultivation offence represents a fairly serious example of cultivation simpliciter.  Given the number of plants found and the nature and extent of the hydroponic setup, whilst I would not necessarily describe this as a fairly serious example of cultivation of a non-commercial quantity of cannabis, it nevertheless represents a significant example of this crime.  Clearly, this was an organised hydroponic setup, capable of significant yield.

8In terms of your role, both the prosecution and defence ultimately compared your role to that of a “crop sitter”.  Clearly, you were sleeping at the property, given the personal items found next to the couch which was set up as a bed.  At your plea hearing, your counsel indicated that your role essentially was to care for the plants, and to conduct other works on the property, including to the shed.  I am conscious that the cultivation offence is limited to a period of one day.  Overall, you are to be sentenced on the basis that, rather than being the organiser of this enterprise, your role was limited to tending to the plants in the manner which I have described.  I was informed, and accept, that you were to receive payment from others once the plants were harvested.  I accept that there is no evidence before me that you played an organising role or shared in the profits of any harvest.  Neither is there any evidence before me of any capacity on your part to source the equipment found at the property and utilised in the hydroponic setup.  Notwithstanding your role as a crop sitter, your role was nevertheless vital for the success of this enterprise as, without cultivation of the crop, there would be no sale of it and no profit to anyone.  Your role as a crop sitter essentially ensured that the equipment continued to operate and the crop continued to grow.

9Your counsel submitted that your motivation for the offending came from the financial difficulties experienced by you at the relevant time.  I will turn to your personal circumstances shortly.  Of course, many people, particularly in recent times, find themselves in significant financial difficulty, and yet do not succumb to the temptation to engage in serious criminality such as you did.  I find that your culpability for the offending is high.

Personal Circumstances

10You are now 65 years of age.  You were born in Sarajevo, Yugoslavia, now known as Bosnia.  I was informed that during your childhood, you encountered some trauma associated with the differing religious backgrounds of your parents, your mother being Serbian Orthodox and your father being Catholic.  Following your parents’ separation, you spent your first few early years in an orphanage before returning to live with your father and your stepmother.  Subsequent to this, you had limited contact with your birth mother, whom you have not now seen for some 50 years.  You lived in Sarajevo for some 35 years, completing your schooling to the equivalent of Year 12.  I was informed that you had been a talented soccer player and played professionally as a young man, also qualifying as a referee.  You had a productive employment history in Sarajevo.  You worked as a cameraman in the TV industry, working on documentaries, movies, television series and predominantly in the area news programs.  You worked in this capacity for 14 years.

11In 1987, you married your now ex-wife, Marianna, and in 1988 and 1991, your daughter, Maria, and son, Ivan, were born.

12Your work as a cameraman was, it seems, challenging and sometimes dangerous.  In 1989, you were in Romania filming during the Romanian revolution and the subsequent trial and execution of Nicolae Ceaușescu.  In 1991, you were working as a cameraman during the advent of the Bosnian war and you often filmed in war torn areas and on the war front, having to wear protective clothing as part of your work.  Sadly, when the Bosnian war broke out, you and your family lost all of your possessions including your home.  Your wife and children lived in a refugee camp, but through your work you were able to keep working as a cameraman, this leading to significant periods of separation from your family.

13In 1997, your wife and children were granted asylum in Australia, and they settled in the Dandenong area.  You remained in Europe to work, spending some time in the Czech Republic.  Your intention was to follow your family to Australia, however, when you applied for a visa to enable this to happen, for reasons unknown to you, your application was denied.  You ultimately arrived in Australia on a tourist visa in 2001 and you were reunited with your family in the Dandenong area.

14Ultimately, your relationship with your wife broke down, but I understand you remain close to her and remain very close to your now adult children.

15You remained in Australia following the expiration of your tourist visa.  You spent the next 14 years essentially living anonymously in Melbourne.  Without a valid visa, you were unable to open a bank account, seek medical attention or legally work.  You worked a number of cash jobs and relied on the assistance generally of the local Bosnian community for work and accommodation.

16Whilst in some senses you lived on the fringes of the community from an official sense, I accept that you were nevertheless embedded in your local community.  You became involved in the Springvale City Soccer Club and coached and refereed at that club for around a decade.  The various character references tendered on your behalf, collectively Exhibit C, reflect your involvement in your local community, particularly in a sporting context.  Clearly, you are highly regarded by those who know you.

17In 2014, following a random intercept, the police discovered your visa status and you were placed in immigration detention for approximately three months.  Whilst no doubt this was a difficult period for you, a positive aspect was that through the detention you obtained medical assistance for the first time since leaving Europe.  You were ultimately diagnosed with diabetes and high blood pressure and placed on medication.  The letter from your general practitioner, Dr Zelko Lovric, dated 26 July 2021, Exhibit B, sets out your various medical ailments.  I was informed and accept that you have a good relationship with your general practitioner, and it is clear from Dr Lovric’s letter that you have discussed your offending with him, and he refers to you being “deeply remorseful”.

18Upon being released from detention some six or seven years ago, you worked as a handyman, primarily building fences.

19You do not have a history of any drug or alcohol problems.  You do not have a gambling history.  Save for references by Dr Lovric to depression and anxiety, you do not appear to have suffered with any significant mental health problems.  You do not have a prior criminal history, and I accept that but for the offences for which you now fall to be sentenced, and the fact that you overstayed your tourist visa, you have essentially led a pro-social and productive life in Australia.

20In terms of the circumstances leading up to your offending, your counsel informed me that over time you had borrowed significant sums from family and friends to assist with your living expenses, particularly the expenses associated with medical treatments with regard to your ailments, you being ineligible for Medicare resulting in higher costs associated with this.  You were apparently struggling to repay these debts and found yourself in considerable financial stress as a result.  It was in these circumstances that you agreed to become involved in the offending, with you receiving payment upon the plants being harvested.  Further, you also obtained essentially rent-free accommodation by staying at the property where the hydroponic setup was located.

Sentencing Factors

21The Sentencing Act 1991 requires me to take into account various factors in formulating an appropriate sentence in your case.  I have already referred to the maximum penalties, the nature and seriousness of your offending and your culpability for it, and your previous character.  I now turn to other factors.

22Having considered the relevant chronology in this matter, I accept that you pleaded guilty to these offences at the earliest practicable opportunity.  Having been remanded in custody on 28 August 2019, you offered to plead guilty to the charges on the indictment on 6 February 2020.  This offer was rejected by the prosecution, and a committal hearing took place on 21 February 2020, essentially with regards to the allegation that you had engaged in cultivation of a commercial quantity of cannabis.  At this time, you repeated your offer to plead guilty to the charges on the indictment, with this offer again being rejected by the prosecution.  The prosecution ultimately accepted your plea offer 12 months after the committal hearing, on 8 February 2021.  In those circumstances, you are not to be disadvantaged by running a committal hearing, and I accept that you pleaded guilty to the charges on the indictment at the earliest reasonable stage.  Through your plea of guilty, you have accepted responsibility for your wrongdoing and you have facilitated the administration of justice.  Your plea has saved the community the cost of a trial and witnesses from giving evidence.  Your plea of guilty therefore has a significant utilitarian benefit.  Furthermore, given the current unprecedented challenges to the administration of criminal justice in this State due to the scourge of COVID‑19, and the consequential delays to criminal trials in this State, your plea of guilty has a significantly enhanced utilitarian benefit having regard to the significant backlog of cases currently before the Court.  As the Court of Appeal has recently emphasised, the courts must encourage those who are guilty to so plead, and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[1]

[1]        Worboyes v The Queen [2021] VSCA 169 at [35].

23I am satisfied that your plea of guilty is reflective of remorse on your part for your offending.  As previously indicated, your general practitioner, with whom you have a good relationship, refers to you being deeply remorseful for your previous transgressions.  A further sentencing discount is accordingly warranted.

24Your offending dates back to the first half of 2019.  You have been on bail since 21 February 2020.  There are no allegations of any further offending on your part.  There has been a delay in the resolution and disposition of your case, which I accept is through no fault of your own.  No doubt, this case has been hanging over your head for a considerable period of time, and the attendant anxiety warrants a mitigatory allowance. 

25Whilst on bail, you have resided with your daughter, who was present at your plea hearing.  You have continued working as a handyman, notwithstanding the obvious challenges brought about by the COVID‑19 pandemic.  In particular, due to your visa status, you are not eligible for JobKeeper or other financial support from Centrelink.  It is to your credit that you have nevertheless maintained a productive existence in the community whilst awaiting finalisation of your case.

26In all the circumstances, I find that your prospects of rehabilitation are extremely good, if not excellent.  You have no prior or subsequent criminal history.  You have strong family support through your adult children.  You do not suffer from any significant mental health conditions or addictions, and your offending was born from financial need, in my view, rather than any desire associated with wealth.

27I also accept that as you are the holder of a Bridging Visa and are not an Australian citizen, you live with the anxiety associated with the prospect of deportation.  Pursuant to the relevant provisions of the Migration Act 1958, should you be sentenced to a term of imprisonment in excess of 12 months, your visa will automatically be cancelled by the relevant Minister.  I accept that the prospect of deportation is relevant to the sentencing exercise, as a sentence of further imprisonment would be extremely onerous for you.  The prospect of deportation, given that your adult children have settled in Australia and you have lived here in this country for some 20 years, would make imprisonment particularly burdensome, in my view.

28In formulating an appropriate sentence in your case, I have given consideration to current sentencing practices.  Neither the prosecution nor defence were able to identify any previous sentencing decisions which were said to be commensurate with your offending and, indeed, the circumstances of your case.  Nevertheless, I have considered previous decisions with regards to cultivation of a non-commercial quantity of cannabis, and theft, in the circumstances as alleged in this case.  Of course, every case is necessarily fact specific, and the issue of current sentencing practices is just one of the relevant sentencing factors to which I must have regard.

29Given the nature of your offending, there is a need to impose a sentence which reflects the important sentencing principle of general deterrence.  It is clear that cannabis has wrought significant damage to the community, particularly vulnerable members of the community.  Those who engage in the cultivation of cannabis must know that the significant illegality involved warrants significant punishment.  Given your absence of criminal history, together with your early plea and articulation of remorse, I am satisfied that specific deterrence has little role to play in the sentencing exercise.

Sentencing Submissions

30Your counsel, on your behalf, submitted that whilst a term of imprisonment was warranted in your case, a sentence that did not exceed the time spent on remand to date would satisfy all of the sentencing objectives in your case.  In the event that further punishment was warranted, your counsel submitted that a Community Correction Order should be considered, rather than returning you to custody, in the particularly difficult circumstances of the COVID-19 environment, and its attendant restrictions in the custodial setting.

31The prosecution submitted that whilst a term of imprisonment was warranted, the length of any term, or the structure of any sentence of imprisonment, was a matter for the Court.  The prosecution specifically did not make submissions with regards to the appropriateness of a sentence of imprisonment with a non-parole period, nor a combination sentence involving a term of imprisonment with a Community Correction Order.

Sentence to be Imposed

32Having considered this matter carefully, I have come to the view that you should not be returned to prison in relation to this matter.  Whilst your criminal conduct must be denounced, in all of the circumstances of this case, particularly the relatively low weight of the plants coupled with your personal circumstances, age, early plea of guilty and remorse, and your current circumstances in the community, whilst a sentence of imprisonment is appropriate, I have concluded that the time spent to date can adequately reflect the various sentencing factors and principles.  Whilst, as I indicated at your plea hearing, I have considered the appropriateness of a Community Correction Order in addition to a term of imprisonment, I have concluded that this is not necessary in the relatively unusual circumstances of your case.

33On Charge 1, cultivation of a narcotic plant, namely cannabis, you are convicted and sentenced to a period of 177 days’ imprisonment.

34On Charge 2, theft, you are sentenced to a term of imprisonment of four months.  I order that this sentence be served concurrently with the sentence imposed on Charge 1, making a total effective sentence of 177 days’ imprisonment.

35Pursuant to s18 of the Sentencing Act 1991, I declare a period of 177 days has been served by way of pre-sentence detention, and I order that this period be deducted administratively from your sentence.

36Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months.

37Finally, I will make the ancillary order sought.

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