Director of Public Prosecutions v Radovanovic

[2022] VCC 666

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00852

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZIVORAD RADOVANOVIC

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2022
DATE OF SENTENCE:	13 May 2022
CASE MAY BE CITED AS:	DPP v Radovanovic
MEDIUM NEUTRAL CITATION:	[2022] VCC 666

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Cultivation of narcotic plants in not less than a commercial quantity; Cultivation of narcotic plants; Theft; age and ill-health; COVID-19

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Thomas v The Queen [2019] VSCA 223

Sentence:                  9 months' imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Birkin	Solicitor for the Director of Public Prosecutions
For the Accused	Mr A. Shirrefs	Furstenberg Law

HIS HONOUR:

Introduction

1Zivorad Radovanovic, you have pleaded guilty to an indictment containing three charges being:

(a)   Cultivation of narcotic plants - in not less than a commercial quantity,[1] the maximum penalty for which is 25 years' imprisonment;

(b)   Cultivation of narcotic plants,[2] the maximum penalty for which is 15 years' imprisonment;

(c)   Theft,[3] the maximum penalty for which is 10 years' imprisonment.

[1]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981.

[2]Contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981.

[3]Contrary to s 74(1) of the Crimes Act 1958.

2Cultivation of a narcotic plant, in not less than a commercial quantity, is a category 2 offence meaning a period of imprisonment must be imposed unless an exception applies.  It was not contended that any such exception applied in this case.

Summary of Offending

3A prosecution opening was tendered on the plea.[4]  No aspects of that opening were disputed.  Your offending can be summarised as follows:

[4]Prosecution Exhibit 1.

4On 10 September 2020, a search warrant was executed on your address in Sydenham.  Police located three rooms equipped with a hydroponic gardening system.  The rooms were located beneath the first floor of the house, accessible through the backyard.

5Inside the first bedroom there was a hydroponic gardening system with artificial lighting, a self-maintained watering system, and a charcoal filter.  Fourteen cannabis plants were being grown.

6Inside the second room there was a black tent that contained a hydroponic gardening system with artificial lighting and a self-maintained watering system.  Three cannabis plants were being grown.

7Inside the third room, there was a hydroponic gardening system with artificial lighting, a self-maintained watering system, and a charcoal filter.  Sixteen cannabis plants were being grown.

8Two nursery boxes containing nine and ten cannabis plants respectively were found.

9In total, there were 52 cannabis plants located in the house.  The total weight of these plants was 48.69 kilos.  This is the subject of Charge 1, Cultivation of not less than a commercial quantity of a narcotic plant.

10An electrical inspector attended the address and removed a power meter by-pass which was wired into the electrical system.  The total electricity stolen is estimated to be 179,840.40 kWh for a total value loss of revenue to Origin Energy of $56,013.15.  This is the subject of Charge 3, Theft.

11On 10 September 2020, you attended the Sunshine Police station and participated in a record of interview.  You made the following admissions:

(a)   You started growing cannabis five or six years ago due to financial pressure related to your house and family;

(b)   You heard marijuana would help your wife with her illness;

(c)   You were the person responsible for growing the cannabis;

(d)   You would sell cannabis for $2,500 or $2,000 but now you sell cannabis to an associate for $1,8000 a pound;

(e)   You estimated there were about 40 plants in the house with 18 larger plants;

(f)    You harvested the plants about two months ago and sold plants about seven months ago;

(g)   You cultivated cannabis between 1 August 2018 and 9 September 2020.  This is the subject of Charge 2 – Cultivation of a narcotic plant.

Nature and Gravity of Offending

12

Charge 1, cultivation of not less than a commercial quantity of cannabis, is an inherently serious offence.  So much is evident from its maximum penalty of

25 years' imprisonment.

13In this case, the weight of the plants was 1.95 times the designated commercial quantity.  Those plants were grown using a sophisticated hydroponic system at your own home.

14Whilst Charge 1 relates solely to the plants located on 10 September 2020, this offence must be considered in the context of the substantial investment in equipment and infrastructure that had been committed to the cultivation.

15The plants the subject of Charge 1 required your ongoing commitment over a substantial period of time to the ongoing expenses and the labour involved in the raising the crop.

16You are not charged with trafficking and are not to be punished for any previous sales of cannabis.  Your admissions, however, to having previously harvested and sold cannabis are relevant in determining that the cultivation was undertaken for the purpose of financial gain.  You are the principal and sole offender in relation to this criminal enterprise.

17Charge 2, cultivation of a narcotic plant, relates to the two years of cultivation at your home that preceded the execution of the search warrant on 10 September 2020.  The evidence supporting this charge is based purely on your frank admissions in your record of interview.

18The exact number or weight of the plants cultivated over the period covered by Charge 2 cannot be established beyond the very broad parameters that it was more than a small amount for personal use, and that it cannot be established to the requisite standard that it was more than the commercial quantity.

19Clearly also, the offending the subject of Charge 2 must cover the exact same plants that are already covered by Charge 1.  Similarly, Charge 2 relates to the same hydroponic system used for Charge 1.  It cannot be determined how many or what weight of plants the subject of Charge two are not already covered by Charge 1, though the time span of two years and your admissions confirms that there must have been some.

20The matters the subject of Charge 2, confirm that the Charge 1 cultivation was not an isolated incident, and that your commitment to this enterprise was motivated by financial gain over a substantial period of time.

21All of these matters aggravate the seriousness of Charge 1.  As such, whilst Charge 2 does represent a significant example of the offence of cultivation, it is difficult to discern that Charge 2 has any separate and distinct criminality not already considered as part of Charge 1.  The almost complete overlap of these factors will be reflected in the structure of the sentence.

22Charge 3, theft, relates to the electricity bypass installed at your premises.  That action was calculated both to save the significant energy costs that come with a hydroponic cultivation of this size, and to avoid the detection of your activity that may have followed a significant jump in electricity usage.

23It is accepted by you that the value of the stolen electricity was more than $56,000.

24This is a serious example of theft, and some cumulation of the sentence imposed for this charge on that imposed on Charge 1 is appropriate.

Personal Circumstances

25You are now 73 years of age and were 71 at the time of the offending, the subject of Charge 1.  You were born in Serbia.  You are the eldest of two children.  You told psychologist Matthew Barth that you had an abusive and unstable upbringing.[5] You report being the subject of violence from your father, and that your childhood years were very unhappy and distressing.

[5]Defence Exhibit 3.

26You immigrated to Austria in your late teens.  You lived there for four years before returning to Serbia, then subsequently migrated to Australia in 1972.

27Your parents are now deceased and you have not had contact with your younger brother for a very long time.

28You completed most of your schooling in Serbia.  You report that you had significant behavioural issues, and at age 14 were sent to a military school in Croatia.

29Upon leaving to go to Austria you worked mainly in factory and labouring jobs.  When you arrived in Perth you were employed as a truck driver for several years.  You later moved to the Northern Territory where you continued to work as a truck driver for another eight years.

30Upon moving to Melbourne, you were employed as a delivery driver for Australia Post.  You held this position until your retirement in 2014.  You are currently the recipient of an aged pension.

31You married for the first time in the 1970s.  You have two children from that marriage.  You and your first wife divorced in the 1980s.

32Your prior matters revolve around violence directed toward your first wife and have little relevance to the current proceedings.  You have not had contact with your first wife or those two children for several years.

33You re-married in early 1980s.  There is one son of that union, Daniel.  He attended the plea and provided a character reference.[6]  You separated from your second wife 10 years ago.  You continued to reside under the same roof, apparently for financial reasons.  You have remained very involved in Daniel's life and report that he is your primary source of support.

[6]Defence Exhibit 4.

34Your second wife has one son from a previous relationship.  You played a substantial role in the upbringing of this child.  Your step-son and his wife also prepared a character reference to the court. ^[7]

[7]Defence Exhibits 5 and 6.

35You have largely been employed in factory or labour jobs and as a truck driver since immigrating to Australia.

36It has been suggested in the material that losses from gambling placed you under financial pressure and were a strong reason for your initial choice to undertake this enterprise.  This was submitted on your behalf by way of explanation, rather than as a matter put in mitigation.

37You have never had any problem with alcohol dependence, nor have you ever used illicit substances.

Age and ill-health

38You suffer from a variety of physical ailments.  Material presented on the plea confirm that you have pain from osteoarthritis, hypertension, hypercholesterolaemia, ischaemic disturbance, and chronic lower back pain with sciatica and benign prostate hypertrophy.[8]  The pain you suffer in your lower back makes it difficult for you to sit down for any extended period.  These conditions have required ongoing medication.  I accept that your various medical conditions will make prison a more burdensome experience for you than for someone not enduring those conditions.

[8]Defence Exhibit 2.

39

I also accept that you are more vulnerable to serious complications from

COVID-19 than would be a younger person.  Your legitimate anxiety about entering the prison environment at a time of pandemic is an additional matter that you must endure.

40Your advanced years mean that any period of imprisonment you serve represents a higher proportion of your remaining life than it would for someone younger than yourself. 

41All of these matters represent additional burdens of imprisonment which are evident because of your particular circumstances.

42In addition to these matters, I accept that because of the pandemic the prison environment is generally more burdensome than would otherwise be the case. Whilst the additional level of deprivation is somewhat less than at the height of the lockdowns, there are still substantial extra restrictions on prison life because of the pandemic, and these additional burdens might be expected to persist for the foreseeable future.

43The property you own with your former wife will almost certainly be the subject of automatic forfeiture because of your offending.  I take the loss of your portion of the property into account as an additional punishment to be imposed on you.  The forfeiture has a significant impact financially.  The inability to pass your portion of the house onto your son also subjectively weighs on you, and I take this into account.

44Dr Barth evaluated you as suffering from an adjustment disorder with depressed mood.  The prospect of imprisonment has clearly, and understandably caused you a significant degree of emotional distress.  The symptoms you currently experience are a reaction to your legal situation.  Dr Barth says that these symptoms mean that it is likely you will find the custodial environment to be, "Particularly onerous when compared to other prisoners", which I accept and take into account as a matter in mitigation.

Plea of Guilty

45You pleaded guilty to the charges the subject of this indictment at the earliest reasonable opportunity.  Whilst the case against you was strong, the plea is a significant matter in mitigation of sentence.  By your plea you saved the time and resources that would otherwise have been expended on contested proceedings. Having regard for the impact that pandemic restrictions have placed on court listings, your plea of guilty is of substantial utilitarian worth.

46You made full and frank admissions at the time of your initial interview with police.  In relation to Charge 2, cultivation of a narcotic plant, those admissions represent the only evidence supporting that charge.

47I accept that your plea of guilty and your admissions reveal your regret for the impact that your offending is now having upon both yourself and your family.  This is consistent with your statements to Dr Barth and to your family members as evident from the reference material.  Whilst there is no reason to conclude that you have insight into the wrongfulness of the offending itself, I accept there is some limited degree of contrition.

48You are 73 with no priors of any real relevance.  You have no drug or alcohol issues.  You have had gambling problems in the past.  On balance, I would consider it unlikely that you will reoffend.  I consider your prospects of rehabilitation to be good.

49The nature of the offending means that general deterrence is an important sentencing consideration.  I must impose a sentence that expresses denunciation for your conduct.  I must have regard for the protection of the community.  There remains some, albeit limited, role for specific deterrence.  I must impose a punishment that is just in all the circumstances.

50Whilst I find your prospects of rehabilitation to be good, your age means that there is little utility in trying to craft a sentence to further foster those prospects.

Submissions on Sentence

51

Counsel for the prosecution, Mr Keks, submitted that only a period of immediate imprisonment was appropriate in the circumstances, though he did not contend that such a sentence must be of a length as to necessitate the imposition of a

non-parole period.[9]

[9]Prosecution Exhibit 2.

52Counsel on your behalf, Mr Furstenberg, conceded that a period of imprisonment should be imposed but its length should be tempered by the matters put in mitigation.

Current Sentencing Practice

53

Both counsel referred me to a number of cases where the courts have imposed sentences for the cultivation of cannabis in not less than a commercial quantity.  

I have taken these cases into account in assessing, to the extent possible, what might be regarded as current sentencing practices.

54Of all the cases referred to, the case of Thomas v The Queen[10] where a total effective sentence of 225 days' imprisonment was imposed, was the most similar. Comparable to the current situation, the case involved an accused of advanced years with significant health considerations.  In that case, unlike this one, the court considered as a matter in mitigation a substantial delay that was not the fault of the accused.  That distinction, however, is less significant given that the sentence was imposed in 2019 and as such no pandemic related matters in mitigation were applicable.

[10][2019] VSCA 223.

55Current sentencing practice is of course just one of many factors to consider on sentence.

Sentence

56Zivorad Radovanovic, I sentence you as follows:

57On Charge 1, cultivation of a narcotic plant, in lot less than a commercial quantity, you are sentenced to 8 months' imprisonment.

58On Charge 2, cultivation of a narcotic plant, you are sentenced to 4 months' imprisonment.

59On Charge 3, theft, you are sentenced to 3 months' imprisonment.

60I order that one month of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1.

61That makes for a total effective sentence of 9 months' imprisonment.

62Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a sentence of 15 months' imprisonment.

63The prosecution sought disposal of the cannabis crop material and plants, which was not opposed, and I will make that order in the terms sought.

64Are there any other orders required?

65MS BIRKIN:  No, Your Honour.

66MR SHIRREFS:  No, Your Honour.

67HIS HONOUR:  No.  Ms Birkin, no other orders required?

68MS BIRKIN:  No other orders, Your Honour.

69HIS HONOUR:  Thank you very much.  So, Mr Radovanovic can be taken back, thank you.

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