Director of Public Prosecutions v Kustura

[2025] VCC 220

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-24-01187

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER KUSTURA

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2025
DATE OF SENTENCE:	4 March 2025
CASE MAY BE CITED AS:	DPP v Kustura
MEDIUM NEUTRAL CITATION:	[2025] VCC 220

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - sentence

Catchwords:  Plea of guilty – cultivation of a commercial quantity of cannabis – theft of electricity – possess drug of dependence – 89.75 sophisticated hydroponic set-up – 105 cannabis plants found in two rooms and garage weighing 89.75kgs - quantity of cannabis cultivated marks seriousness of offending– low-level role in the cultivation of cannabis – history of substance abuse – earlier diagnosis of ADHD but otherwise no indication of any other mental illness – Bugmy principles – limited prior criminal record – good prospects of rehabilitation - general deterrence, just punishment and denunciation principle sentencing considerations

Legislation Cited:           Crimes Act1958; Drugs, Poisons and Controlled Substances Act1981; Sentencing Act1991

Cases Cited: Bugmy v. The Queen [2013] HCA 37, (2013) 249 CLR 571; DPP v. Tran [2024] VSCA 16; Dang v. The Queen [2020] VSCA 24; Nguyen v. The Queen [2021] VSCA 346; DPP v. Pham [2021] VCC 983; DPP v. Strachan [2020] VCC 1864

Sentence:Total effective sentence of 18 months’ imprisonment with a non-parole period of 10 months fixed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten (plea) Ms S. McKenzie (sentence)	Office of Public Prosecutions Victoria
For the Accused	Mr J. James	Marshall Jovanovska Ralph

HER HONOUR: 

1Christopher Kustura, you have pleaded guilty on indictment to the following offences: 

·cultivation of a narcotic plant, namely cannabis, in not less than a commercial quantity contrary to s72A of the Drugs, Poisons & Controlled Substances Act (‘the Act’), the maximum penalty for which is 25 years' imprisonment;

·theft of electricity contrary to s74 of the Crimes Act, the maximum penalty for which is 10 years' imprisonment; and

·possessing a drug of dependence, namely Diazepam, contrary to s73(1) of the Act, the relevant maximum penalty for which is one year’s imprisonment and/or 30 penalty units.

2You were born in January 1994 in Melbourne and were 29 years old at the time of your offending. 

3You have admitted a prior criminal history.

Circumstances of offending

4The circumstances of your offending are detailed in the summary of prosecution opening upon plea dated 14 February 2025, which is the agreed basis upon which you are to be sentenced.

5On 11 December 2023 the police drove past a property in Orville Street, Altona Meadows, and observed a white van reverse parked in the driveway.  The van was registered in the name of the co-offender.  The co-offender, who is your cousin, had rented the property from its owners two and a half years earlier.

6On 13 December 2023 the police executed a search warrant at the property.  You opened the front door and allowed police to enter the house.  The police located the co-offender in the front bedroom.  Upon searching the property, the police found cannabis being grown using hydroponic set-ups in two rooms in the house and in a garage at the rear of the property. 

7The first room contained a hydroponic set-up with 54 smaller cannabis plants weighing a total of 5.75 kilograms.  The second room housed 24 larger cannabis plants weighing 39.50 kilograms, with a further 27 larger cannabis plants located in the hydroponic set-up in the garage weighing a total of 44.50 kilograms.

8In the bedroom where the co-offender was arrested the police located CCTV monitors wired to a mounted TV screen which displayed a live feed from CCTV cameras affixed to the front of the property. 

9The police also located and seized two zip-lock bags containing 5.3 grams of dried cannabis and 19 Valium tablets that you later told police belonged to you, leading to Charge 3, possess a drug of dependence.

10The police also located and seized a zip-lock bag containing 14.4 grams of dried cannabis in a cupboard above the fridge in the kitchen, another zip-lock bag containing 72.4 grams of dried cannabis inside a tub on the floor beside the kitchen bench, and a glass jar with one gram of dried cannabis inside a tub on the floor of the pantry.

11In total, the police seized 105 cannabis plants weighing 89.75 kilograms, which is the subject of Charge 1, cultivation of a narcotic plant in a commercial quantity.  The total weight of the dried cannabis found at the property was 93.1 grams.

12An electrician who attended the premises at the request of police identified an illegal electrical bypass connected to an unmetered main, enabling electricity to be stolen.  The value of the stole electricity is not known.  This is the subject of Charge 2, the charge of theft.

13When questioned by police, you admitted to possessing the Valium tablets telling police that they were prescription drugs.  No prescription was ever produced.  You otherwise declined to answer questions asked of you in accordance with your rights.  You were charged and remanded in custody before being granted bail on 14 December 2023.  You indicated an intention to plead guilty to these charges before the commencement of a committal hearing in the Magistrates’ Court on 26 June 2024.

Nature and gravity of offending

14As cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years' imprisonment, it is by its nature a serious offence. It is also classified as a Category 2 offence, requiring that a custodial sentence be imposed unless an exception under s5(2H) of the Sentencing Act applies.  On your behalf it is accepted that none of the legislative exemptions apply.

15All other things being equal, it is the quantity of the cannabis that is cultivated that marks the seriousness of the offending.  In this case a total of 89.75 kilograms of cannabis was cultivated which is 3.5 times the commercial threshold for a commercial quantity.

16This was a sophisticated hydroponic set-up with two rooms in the house and the garage utilised to cultivate the cannabis, all facilitated by an electrical bypass to steal the electricity required for the plants to mature indoors.  This was clearly a commercial operation.  In addition to the cannabis under cultivation, dried cannabis was also located in zip-lock bags, including one containing 72.4 grams and in a glass jar in the house.

17The prosecution accepts that you played a lesser role in the offending than that of your co-offender who had rented the property over two years earlier and whose van was located at the property.

18At the plea hearing your uncle, Robert Kustura, gave evidence regarding your circumstances at the time of the offending.  He said that you had been living with him until approximately one month before the police executed the search warrant.  He said he was not aware of your offending until your arrest, although he was aware of your drug issues.  Your uncle said that two weeks before you moved out of his house he had given you $1,000.  At the time of your arrest the police located $890 in your wallet, which was in a sports bag in the bedroom.  Given your uncle's evidence, the prosecution concedes it cannot establish beyond reasonable doubt that you possessed this cash as a result of your involvement in the cultivation of the cannabis plants and I have proceeded on that basis.

19You are charged with cultivating a commercial quantity of cannabis on one day only.  It is clear, however, that the cannabis had been cultivated at the premises longer than that, particularly given that larger plants had been grown in two of the rooms.

20Your counsel highlighted that neither the house nor the van were leased or owned by you, but accepts that you had been at the property for at least two weeks.

21The evidence precludes any finding regarding the extent of your involvement or your precise role beyond your presence at the property for a short period.  Your counsel described your role as akin to that of an ‘unpaid’ crop sitter.  The prosecution accepts there is nothing that aggravates your involvement in this offending, such as a financial interest or share in the profits of the enterprise.

22Overall, I assess that you played a low-level role in the cultivation of the commercial quantity of cannabis.  As stated, it is the quantity of cannabis cultivated at the property that marks the seriousness of this offending.

Personal circumstances

23I turn now to your personal circumstances.

24Your parents separated soon after your birth in 1994.  Until the age of between seven to eight, you lived with your mother who struggled with drug addiction and alcohol abuse.  You did not have a significant relationship with your father.

25In a letter provided to the court by your maternal grandmother, Jelica Kustura, she writes that your mother was never in a fit state to raise you due to her drug abuse, describing periods where you were neglected and exposed to violence.

26In his evidence and letter to the court, your uncle describes his observations of your childhood.  He states that shortly after your birth he was involved in removing you from his sister due to concerns regarding your mother's capacity to care for you at that time.  He states that you required admission to the Royal Children's Hospital as a baby, having been born withdrawing from illicit drugs.  Your uncle recollects that Child Protection authorities were involved in your care from a young age and that you experienced considerable instability over the first seven to eight years of your life, repeatedly being returned to your mother's care only to be removed and placed with your maternal grandparents due to ongoing issues of drug abuse and maternal neglect.

27Your mother had re-partnered and had three more children and you were separated from your two brothers and a sister when they were placed in foster care.

28From the time you were seven to eight years of age, you lived permanently with your maternal grandparents in regional Victoria.  In his letter to the court dated 16 February 2025, your uncle states that you enjoyed a happy and well-adjusted childhood with your grandparents, although you were grief-stricken when, at the age of 13, you found your grandfather deceased.  You and your grandmother then moved to a different area, and you saw a school counsellor for a period.  Your uncle states you assumed the responsibility of the care of your grandmother who never fully recovered from the death of her husband.

29You attended numerous schools, including Monmia Primary School, Hillside Primary School, Christ the Priest Catholic primary school and Parkville Green Primary School.  You also attended Creekside College and Buckley Park secondary school, ultimately completing Year 12 of VCAL.  You struggled with reading and did not socialise well with other children.

30After school you found employment in construction and demolition work, having done construction work on weekends when you were still at school.

31You have held various jobs since, including work in ‘phone sales and as a sales assistant at Cleanaway.  You also worked for a health insurance company in phone sales and support.  More recently you have undertaken work as a truck driver and in pallet repairs.  The longest job you have held has been for two years.

32After 2020 you moved out of your grandmother's home to live with your uncle.  Prior to this, in 2018, you lived with a girlfriend in Bentleigh for a year.  You have been in another intimate relationship more recently.

33You have a history of substance abuse that began with cannabis use and by 2017 included methamphetamine and other substances.  You sought assistance from Dr Sunil Datta in East Keilor for substance abuse around this time.  Dr Datta has provided a report dated 21 March 2024 in which he states that you presented with depression, anxiety and substance abuse issues when he first saw you in 2017.

34In that context Dr Datta states that you experienced paranoid symptoms leading to your admission to the Essendon Private Clinic for treatment at various times including in 2020.  Dr Datta reports that interpersonal problems also led to your employment being terminated on one occasion, although to your credit you have maintained other work.  As at the date of his report in 2024, Dr Datta states that you had been able to sustain abstinence from methamphetamine but continued to use cannabis.

35You were assessed for the purposes of your plea by psychologist, Dr Aaron Cunningham, whose report dated 14 October 2024 was relied upon at your plea hearing.  Dr Cunningham, having conducted psychometric testing, concludes that your results are consistent with an earlier diagnosis of attention deficit hyperactivity disorder, but otherwise states there is no indication of any other mental illness.  Dr Cunningham states that your ADHD led to a pattern of inattention and hyperactivity that has interfered with your education and employment.

36You have admitted a reasonably limited prior criminal record.  In October 2014 you were convicted and fined $400 for driving a vehicle causing loss of traction.  In February 2017 you were fined $1,500, without conviction, for persistent contravention of a family violence intervention order.  In October 2017 you were placed on an adjourned undertaking, without conviction, for criminal damage.  Finally, on 17 February 2020 you were placed on an adjourned undertaking, without conviction, to continue receiving treatment through the Essendon clinic for drug treatment for offences that included intentionally destroying and damaging property, and contravening a family violence safety notice where the protected person was your maternal grandmother.

37During your assessment with Dr Cunningham, you discussed your involvement in this offending, stating you had just re-connected with a cousin on your father's side and were house sitting for him.  You said you wished you had not been involved and felt like ‘a big goose.'

Matters raised in mitigation of sentence

38On your behalf a number of matters were raised in mitigation of your sentence. 

39First and foremost, you pleaded guilty to these offences at an early opportunity.  In doing so you acknowledge responsibility for your offending and facilitated the course of justice.  By pleading guilty at an early stage you saved the courts and the community the time and resources associated with a trial.  Your uncle states that you have expressed remorse for your offending.  You are entitled to a significant sentencing discount for your early guilty plea, which I accept is accompanied by a level of remorse for your involvement in this offending.

40Secondly, the disadvantage and depravation you experienced in your early years reduces your moral culpability for your offending in a general way, which in turn operates in mitigation of your sentence to some degree.

41In the case of Bugmy v The Queen[1], the High Court explained the relationship between the effects of childhood depravation and the purposes of punishment stating:

'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate a sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.'

[1][2013] HCA 37; (2013) 249 CLR 571

42You were subjected to significant instability and neglect in your formative years due to your mother's entrenched issues with drug addiction.  As a result, Child Protection authorities became involved in your various placements until the age of seven to eight when you were permanently placed into the care of your maternal grandparents.  As a consequence, you regularly moved schools, particularly primary schools, in your early years.

43Accordingly, I give full weight to the general principles enunciated in the case of Bugmy in mitigation of your sentence.

44There is no evidence to suggest that the second specific limb of Bugmy applies and it was not argued that there was any connection between your childhood disadvantage and your engagement in this offending.  I do, however, have regard to Dr Cunningham's assessment that you present as psychologically immature and that he has diagnosed you with ADHD which he states resulted in a pattern of inattention and hyperactivity that interfered with your functioning and development more broadly.

45Thirdly, whilst you have a limited criminal history, at the age of 31 this will be your first sentence of imprisonment.  As highlighted in the sentencing submissions made on your behalf, despite your dysfunctional and unstable childhood you have a limited prior criminal history and have otherwise sought to maintain yourself through employment in various roles.

46There are a number of reasons why I assess that you have good prospects of rehabilitation into the future.  You have the ongoing support of your uncle and your grandmother who describes you as a caring, attentive young man.  You have since re-connected with your mother and other family members.  You have always sought to maintain some form of employment in various roles and have fully complied with all bail conditions since your arrest on these matters.

47Significantly, you sought treatment for methamphetamine abuse in 2020 and on the material before me you have remained abstinent since.  Dr Datta states that you were admitted for detoxification to the Essendon Private Clinic a few times and attended for the therapy programs offered to 'try and help himself move forward in life.'  However, you continued to abuse cannabis at the time of this offending. Managing your cannabis use into the future to achieve abstinence will undoubtedly assist in your rehabilitation.

48In the case of DPP v Tran[2] the Court of Appeal re-stated the sentencing principles that apply when sentencing offenders for trafficking in a commercial quantity or a large commercial quantity of cannabis, including the sentencing considerations enunciated in the Sentencing Act.

[2][2024] VSCA 16

49Firstly, the structure of drug offences is tied to the quantity of drugs involved.  Secondly, Parliament's assessment of the gravity of this type of offending is tied to the maximum penalty, which in this case is 25 years' imprisonment.  Thirdly, the demand for drugs is generally fuelled by addiction.  For that reason demand for drugs is often motivated by financial rewards which can be enormous.

50Given the societal harm caused by illicit drugs, general deterrence is a very important sentencing factor.  The Court of Appeal noted that while factors personal to an accused remain important, they are often required to yield or to be afforded less weight than in respect of other cases.

51As to the role played by an offender, the Court of Appeal stated this factor, in addition to the weight of the drugs involved, may be significant in assessing the relative criminality and culpability that the offending entails.

52As I have already discussed, I accept that your co-offender played a more significant role in the cultivation and that your role was a low-level one.  This in turn reduces your culpability for this offending.

53Finally, the Court of Appeal having reviewed a number of cases stated that as a matter of principle cultivation of a commercial and large commercial quantity of cannabis are serious offences that will result in substantial terms of imprisonment.

54In sentencing you, I am also required to have regard to current sentencing practices, although sentences imposed in other cases are no more than a guide and do no define or fix the sentence to be imposed.

55The prosecution referred me to two decisions as a guide to the relative seriousness of your offending. 

56In Dang v The Queen[3], a sentence of three years, four months' imprisonment for cultivating a commercial quantity of cannabis.  Fifty-six kilograms and 143 plants was found to be stern but within range.  In that case the offender pleaded guilty and played a role that was slightly above a crop-sitter, but at the lower end of the cultivation enterprise which was conducted across two properties.

[3][2020] VSCA 24

57In the case of Nguyen v The Queen[4] in which the offender pleaded guilty to cultivation simpliciter in respect of 142 plants weighing 31 kilograms.  His involvement in the crop was, like yours, low-level and of short duration.  A total effective sentence of 18 months with a non-parole period of 12 months was not manifestly excessive.  I note that a lower maximum penalty applied in that case.

[4][2021] VSCA 346

58The defence helpfully referred me to two decisions of this court, in DPP v Pham[5] and DPP v Strachan[6].

[5][2021] VCC 983

[6][2020] VCC 1864

59In Pham the offender was sentenced to 12 months' imprisonment for his role in the cultivation of 351 cannabis plants weighing 62.59 kilograms.  In that case the offender attended the premises to water the plants and stayed overnight occasionally.

60In Strachan the offender was sentenced to 22 months' imprisonment with a non-parole period of 11 months for her role in cultivating 109.45 kilograms of cannabis found in the garage and three rooms of the property  she was living in with her co-offender.  The offender was also sentenced for cultivating a commercial quantity of cannabis on a single day.  The offender had made admissions to cultivating the cannabis from the day she moved into the property and being responsible for the daily maintenance of the crop.

61Of course, every case must turn on its own facts the circumstances, but the sentences do indicate that sentences of immediate imprisonment are generally warranted for this offence.

62In cases involving the cultivation of a commercial quantity of cannabis, general deterrence, just punishment and denunciation are sentencing considerations of weight.  Others must be deterred from any involvement in cultivating large amounts of cannabis, irrespective of their role by the sentence I impose.  I accept that specific deterrence has a lesser role to play in sentencing you given my positive assessment of your future prospects.

Sentence

63Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I sentence you as follows:

64On Charge 1, cultivate a commercial quantity of a narcotic plant, you are convicted and sentenced to 18 months' imprisonment.

65On Charge 2, theft of electricity, you are convicted and sentenced to one month’s imprisonment to be served concurrently with the sentence imposed on Charge 1.

66On Charge 3, possess a drug of dependence, namely Diazepam, you are convicted and fined $500.

67This gives a total effective sentence of 18 months' imprisonment.  I fix a non-parole period of ten months' imprisonment.

68Pursuant to s18 of the Sentencing Act, I declare 17 days of pre-sentence detention as already served under the sentence I have imposed.

69I indicate pursuant to s6AAA of the Sentencing Act that had you not pleaded guilty to this offence the sentence I would otherwise have imposed is a sentence of three years' imprisonment with a non-parole period of two years.

70Finally, I make the disposal order sought by the prosecution noting that it is not opposed.

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