Director of Public Prosecutions v Savic

[2022] VCC 222

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00264

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANKO SAVIC

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2022
DATE OF SENTENCE:	3 March 2022
CASE MAY BE CITED AS:	DPP v Savic
MEDIUM NEUTRAL CITATION:	[2022] VCC 222

REASONS FOR SENTENCE

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Subject:  Criminal law - sentence

Catchwords: Pleaded guilty to one charge of cultivating cannabis simpliciter – one charge theft of electricity -  50 years of age at time of offending -  co-operative with police -  one-off offending – no criminal record – financial stress – 3 years 6 months delay not attributable to offender -  excellent prospects of rehabilitation.

Cases Cited: Todd v R [1982] 2 NSWLR 517 at [519 –[520]

Sentence:  12 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	OPP
For the Accused	Mr S. Tovey      Andrianakis

HER HONOUR: 

1Branko Savic, you have pleaded guilty to one charge of cultivating a narcotic plant namely cannabis and one charge of theft of electricity. 

The offending

2You grew a crop of cannabis plants in your house in Melton South.  You had bought the house in May 2018 for $270,000 and you had a mortgage of $285,000.  You were aged 50 and you were unemployed.  The police had had the property under surveillance and searched it pursuant to a search warrant on 6 September.  You immediately admitted to having cannabis on the property and the plants were located in four rooms and a shed.  There was a total of 133 plants classed generally as immature, weighing 2.966 kilograms in total. 

3Cultivation equipment, nutrient solutions and plant growth supplements were also located.

4When asked if there were any large amounts of cash in the house, you said there were and retrieved from a concealed case in the kitchen, cash amounting to $3700.  A search disclosed a further amount of $950.  An electrical bypass system was located in the roof space, meaning that the consumption of power was not being supplied and recorded through metering equipment. 

5You were arrested and interviewed and elected not to answer questions relating to the cultivation.  You were remanded for seven days before being released on bail.

Gravity of the offending

6The commercial quantity of cultivation is 100 plants, so the crop in this case was 33 in excess of the threshold amount.  However, the charge resolved to the charge of cultivation simpliciter because the prosecution may not have been able to prove that you intended to cultivate a commercial quantity.  Ninety-two of the plants were seedlings located in the bathroom with a total weight of 533.3 grams and the remaining 41 plants weighed over 20 kilograms.  The plants were growing in a relatively sophisticated hydroponic setup with the necessary equipment and materials. 

7The prosecution submission is that the offending is at the higher level of seriousness for this type of offending.  Other considerations are that the activity was planned in order to obtain money and you knew it was illegal.  It required considerable investment of time, effort and money and would have continued but for the police intervention. 

8Mr Tovey on your behalf submitted that while financial stress motivated your offending, there is no evidence of greed or a lavish lifestyle and no evidence of any previous crop.  It was a one-off situation with offending limited to a single date, which is inherent in the circumstances of course, and you have no previous convictions or criminal background.

Personal circumstances

9You are now aged 54, a single man, but close to your two adult children and on amicable terms with your estranged wife.  You have been separated for many years but have not divorced and have continued to support each other over the years. 

10You were born in Serbia and raised in Croatia by your parents, who separated when you were quite young.  After school, you went to the Croatian military academy and had to fight in the Yugoslav wars for around three years, which was a terrifying and confronting experience for you. 

11You married in 1994 and the two children were born.  They are now aged 23 and 25 and both are studying at university.  You and your family came to Australia as refugees in 1999.  You found assimilation difficult with lack of English but worked as a driver and eventually became self-employed.  You then worked as a carpenter for 10 years until an injury forced you out of the industry, and this led to you losing your house when you could not meet the payments. 

12You were eventually able to buy another house but your injury claim was denied by the insurer on the basis that you had failed to disclose a previous health complaint which was of a very minor nature and bore no relevance to the injury.  You then struggled to maintain your new mortgage and fell into the clutches of a loan shark.  Unable to repay that loan, you resolved to make some money by growing cannabis. 

Mitigating factors

13You offered to plead guilty at a very early stage and the prosecution did not accept the offer until recently.  That plea has avoided the need for a trial which is of great importance at this time when the backlog of trials in the County Court is enormous owing to the COVID-19 restrictions over the past almost two years.  The plea therefore has significant utilitarian value and you are entitled to a discount on your sentence because of it.

14I also accept it as an indication of remorse which indeed you have demonstrated over the last three years on bail through your determination to live a different life and commit yourself to earning a living and avoiding reoffending. 

Delay

15There has been a delay of three and a half years since you were charged in September 2018.  At the time of your arrest, you made admissions and you offered to plead guilty to the charges on the new indictment before the first committal hearing in February 2019. 

16A trial was listed for 24 February 2020 but after pre-trial argument and new evidence by a botanist, the matter was adjourned to 27 July 2020 for trial.  It was further adjourned to 29 July for mention and a new opening was filed.  COVID-19 restrictions prevented a trial throughout 2020 and 2021 and eventually the trial was listed for 16 March 2022.  On 15 November 2021, you pleaded guilty to a new indictment and the plea was listed for 2 March 2022.

17This delay was clearly not due to any action of yours and you have had the case hanging over your head for a long time which is to be taken into account.  To your credit, you have used the time well and you gain the benefit of that.  For offending which occurred so long ago, a lenient approach may be adopted as Mr Tovey submitted when he quoted from the decision in Todd v R[1].  Such leniency is appropriate in your case. 

[1] [1982] 2 NSWLR 517 at [519] –[520]

18Accordingly, delay is a significant mitigating factor in this case and so is the fact that you have excellent prospects for rehabilitation.  It is very unlikely that you will offend again.  You and your wife have embarked on a new business growing mushrooms and selling them to farmers markets, and are in the process of establishing a new restaurant.  You have a consistent record of hard work and you have tried to overcome the hurdles of significant injury.  You have recognised and accepted that your decision to grow cannabis to alleviate your financial problems was a foolish move, and that you exercised poor judgment.  That recognition goes to your remorse and to your likely successful rehabilitation. 

19The combination of these circumstances resulting in the need for leniency sits behind both the defence and the prosecution submissions that a Community Correction Order is an appropriate sentence.  I agree that it is appropriately deterrent in both the general and specific sense and that it meets the unusual circumstances of this case. 

Sentence

20Mr Savic, you have been assessed as suitable for a Community Correction Order and I shall make that order.  The order will apply to both charges and convictions will be recorded.  The order will begin today and will last for 12 months.  You will be subject to supervision which will be the only condition over and above the core conditions, which of course require that you not offend within the operational period.  If you were to offend in any way, you may be brought back to the court to be resentenced.  Do you agree to be bound by this order, Mr Savic?

21OFFENDER:  (No audible response.)

22HER HONOUR:  Yes, all right.  I have seen you nodding.

23OFFENDER:  Yes.

24HER HONOUR:  Yes, thank you.

25You must go to the Melton Corrections Office at 2A Barries Road by 4 pm next Monday, so you have two working days after today to attend there.  There will also be orders as sought by the prosecution for forfeiture and disposal and I note there is no objection by you through your counsel. 

26Now, the Correction Order will be forwarded to you, Mr Savic, and that means I think, Mr Tovey, to you chambers.  Is that correct?

27MR TOVEY:  Yes, Your Honour.  That would be suitable.

28HER HONOUR:  All right.  And it can be signed and then sent back again.  Now, before I leave the Bench in a moment, are there any other matters, Mr Raimondo?

29MR RAIMONDO:  No, Your Honour.  

30HER HONOUR:  Just to clarify, I have found it not necessary to make any order under s6AAA given that a community corrections order has been imposed. 

31MR RAIMONDO:  Yes, Your Honour.

32HER HONOUR:  Anything further, Mr Tovey?

33MR TOVEY:  No, Your Honour.  That completes the matter.

34HER HONOUR:  All right.  Thank you.  Thank you, Madam Interpreter, for your assistance.  Now, I will leave the Bench but I will leave the link open so that my associate can speak to you about the sending of that order, Mr Tovey.

35MR TOVEY:  May it please the court.

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