Director of Public Prosecutions v Slavenko
[2019] VCC 2173
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-01698
CR-19-01036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SLAVENKO MARKOVIC |
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| JUDGE: | HIS HONOUR JUDGE GEORGIOU |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 July, 23 August, 6 September and 17 December |
| DATE OF SENTENCE: | 18 December 2019 |
| CASE MAY BE CITED AS: | DPP v Slavenko |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2173 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Cultivate narcotic plant in a quantity not less than commercial quantity – Cannabis L – theft of electricity – possess drug of dependence – methylamphetamine - cocaine
Legislation Cited: s.73(1), 72A Drugs Poisons Controlled Substances Act
Cases Cited: Mohtadi v The Queen [2018] VSCA 238, Nguyen v The Queen [2019] VSCA 134
Sentence: Total effective sentence of 3 years and 6 months imprisonment with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Clancy (plea) Ms J. Cavka (sentence) | Office of Public Prosecutions |
| For the Accused | Mr C. Thomson | Theo Magazis & Associates |
HIS HONOUR:
1Slavenko Markovic, you may remain seated for now.
2On 3 June 2019 you appeared before me on two indictments. On indictment No.H13043458A a jury was empanelled and you pleaded not guilty to Charge 1, being that at Noble Park in Victoria between 12 June 2017 and 26 October 2017, you cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant.
3After pleading not guilty to Charge 1 you then pleaded before the jury that you were guilty of cultivation of cannabis. The prosecution did not accept that plea in satisfaction of Charge 1.
4You also pleaded guilty to Charge 2 that at Noble Park in Victoria between 12 June 2017 and 26 October 2017 you stole a quantity of electricity belonging to Simply Energy.
5On 7 June 2019 a jury returned a verdict of guilty in respect of Charge 1.
6On 3 June 2019, in the absence of the jury, you also pleaded guilty to the two Charges on indictment No.H13043458B. Charge 1 on that indictment charged that at Dandenong in Victoria on 26 October 2017 you possessed a drug of dependence, namely methylamphetamine. Charge 2 on that indictment charged that at Dandenong in Victoria on 26 October 2017 you possessed a drug of dependence, namely cocaine.
7The central issue on the cultivation charge was whether the prosecution was able to prove beyond reasonable doubt that you intended to cultivate at least 25 kilograms of cannabis. It was not disputed that you cultivated cannabis or that the combined weight of the cannabis plants was 88.48 kilograms.
8Following the trial and verdict a plea hearing was conducted on 19 July 2019,
23 August 2019, 6 September 2019 and 17 December 2019 in relation to all of the charges.
Circumstances of Offending
9At the time of your offending you lived at 101 Lightwood Road, Noble Park. That property comprised a shop front with attached living quarters. The shop front was not being used for any business related purposes. You were the lessee of the property.
10Police were alerted to the smell of cannabis coming from the property and on 26 October 2017, at approximately 3.30 pm, they executed a search warrant, issued under the Drugs, Poisons and Controlled Substances Act. You were not present when the warrant was executed.
11Police gained access to the premises from the rear of the property. On a table in what appeared to be the living room police located a number of small plants in pots. Police also found 15 mature cannabis plants in each of two rooms. Those 30 plants were being grown using hydroponic equipment that included large light shrouds on a pulley system, allowing for the height of the lights to be adjusted. The system was powered by an electrical bypass. An electrical contractor who attended the property noticed an illegal meter bypass connected to the hydroponic equipment in each of the two rooms.
12United Energy, the electricity distributor for your property, estimated the total illegal usage of electricity from 12 June 2017 to 26 October 2017 to be 33,201 kilowatts, which has a calculated value of electricity at $12,840.62. Charge 2 is based on the theft of that electricity.
13You returned to the property at 8 pm on 26 October 2017. You were then arrested by police. Police located a key on your person which fit the padlock on the back gate to the premises.
14On the morning of 27 October 2017 the cannabis was removed from the property by police. It was analysed by a botanist from the Police Forensic Services Centre. The 30 plants found in the two rooms were bushy, mature, female cannabis plants, approximately 70-90 centimetres in height, with flowering heads comprising 78-79 per cent of the total weight of the plants. The plants weighed a total of 88.4 kilograms and were estimated to have been growing for 14 to 16 weeks. The 40 smaller plants were also analysed and measured between 8 to 17 centimetres in height. These plants were estimated to have been growing for up to six weeks and weighed a total of 80.9 grams.15The threshold for a commercial quantity of cannabis is 100 plants or
25 kilograms. The amount of cannabis plant material was, by weight, 3.5 times the commercial quantity. Count 1 is based on your cultivation of that quantity of narcotic plant.16Police also located in your wallet four ‘zip lock’ bags. On scientific analysis two of the bags were found to contain methylamphetamine. The combined weight of the substance, including the methylamphetamine was 1.8 grams. The substances in the other two bags were found to contain cocaine. The combined weight of those substances, including the cocaine, was 1 gram. The two charges on indictment H13043458B are based on those drugs found in your possession.
17You were interviewed at the Dandenong police station on 26 October 2017 and 27 October 2017. During that interview you made numerous admissions. As you now contest those admissions it is necessary for me to set out in some detail the answers you provided to police during the interview.
18At questions 6-58 your rights were explained to you and you exercised your right to speak to a lawyer before the interview continued.
19At questions 64-66, the following questions and answers were recorded, question: 'Okay, so as I mentioned a little bit earlier I want to speak to you in relation to the cultivation of cannabis?' Answer: 'Yes, sure'. Question: 'All right, so in as much detail in your own words?' Answer: 'Yes'. Question: 'Tell me about your involvement in that?' Answer: 'Generally my work, yep - yep. I read on internet, I - that is stupid things but I - I am very good at gardening, even that is not my profession. I like - like flowers and that's no joke. I mean, I know, care about plant, that's it'.
20At questions 71-72 you told police that you smoke cannabis because of your arthritic pain.
21At question 74: 'First of all you said you've read on the internet?' Answer: 'Yes, I read on the internet. I read some books. I generally go to the hydroponic shop. I will see on TV how is this thing going. I - well, I watch this a law, well, that maybe be approval. Well I will - I don't have any paper that I'm good about this, you know, but well I am - well, I'm not - I'm educated. I mean, I'm enough educated to understand how this - this thing going, you know? And I see that. Well maybe the law that be approve to plant this medical cannabis like what they're doing in America, you know? And help people. And I wanted to try to do house thing. A bit of work and well this - this well - what - well maybe that I did not do everything okay, but boy'.
22At questions 97, 110, and 111 you confirmed that you had read some books on hydroponics and had been to hydroponic shops.
23At questions 99-100 you told police you purchased a couple of plants from some Vietnamese person or persons.
24At 111-113 you confirmed you researched a hydroponic set-up and that you set up the hydroponic system in the premises you were living.
25At questions 121-129 you told police that you lived 101 Wildwood Road, Noble Park and that no one else lived there.
26At questions 132-134 you told police you had a key to the shop but no one else did.
27At question 174 you told police that there are two rooms with 15 plants in each room, along with the hydroponic system.
28That last answer was consistent with the evidence at trial and demonstrates that you were aware of the number of plants in each of the two rooms in which the larger plants were growing.
29At questions 180-198 you told police that the plants were cannabis plants and that you put them inside the rooms. You again said that you purchased them from a Vietnamese guy and you explained the process of making 30 plants from cuttings.
30At 193-195, in particular, the following questions and answers were recorded. Question 195 'Explain to me the whole process?' Answer: 'I don't think you - you're supposed to plan in like glass, yeah'. Question: 'Yep'. Answer: 'One of that, you know, and grow. You know like you have ordinary power, you know, just you need to be grow, you know. When little bit grow you can cut this plant and to make another one'. Question: 'Okay'. Answer: 'Yes and that's going like this, that's how I make the 30, you know?'
31At questions 211-215 you told police that once the plants were mature and ready to sell you were to return them to the Vietnamese. You said that you did not get anything in return because the police had caught you.
32At question 217 you were asked: 'Okay, so how long have you been doing this for?' You answered: 'This, four month, four and a half months'.
33At question 224: 'So what's in it for you, Slavenko, to grow plants and then just give them away?' Answer: 'What do you mean? The - the -' Question: 'You're not making any money from them?' Answer: 'No - no - no'. Question: 'Why do that?' Answer: 'Well, no. The condition was first they give me small plant. I grow them. Well, they will pay them how much is cost me. Like everything that I done. But when I bring them this plant' - and then there's some part that can't be heard - 'condition was that they - the give me this small one that I start doing the job and they will pay me as well, all my expenses what I have there'.
34At questions 229-230 you told police that the Vietnamese guy with whom you were dealing, you had met behind the Waltzing Matilda.
35At 235 you were asked this question: 'So how much did it cost you to set this up?' Answer: 'Well cost me about, altogether, at least close $20,000, minimum'. You told police that you had received some $21,000 from a damages hearing.
36At question 259 you were asked: 'Have you given them anything back?' You answered: 'No, I don't give them anything because they give me small one, but I ask them to give me large. But they have a rules, you know? Give me maybe four, five, like - like just like this box'. Question 260: 'Yeah?' Answer: 'And from that you need - I see how on TV how they made it; the cutting, you know? And the planting. And - but you need time and you know, almost four months now'.
37At question 277 you revealed knowledge of the voltage of the light globes being 600 watts. You told police that someone else was responsible for setting up the electrical bypass.
38At question 322 you told police that you planted the cannabis.
39At questions 360-365 the following questions and answers are recorded, question: 'So you told me last night that there was 30 plants too?' Answer: 'Yes, 30 plants. Yes, 30'. Question: 'Can you tell me about some smaller plants that might be inside the house?' Answer: 'Well that was for - this plants will be done in a couple of weeks, you know?' Question 363: 'Okay and you were talking about the little cups?' Answer: 'Yeah, little'. Question 364: 'Is that what these ones are?' Answer: 'Yeah'. Question 365: 'And how many of those would there be?' Answer: 'Maybe more than 30 because some they will die'.
40At questions and answers 391-404 you told police that you thought that the plants weighed about 15 kilograms and you would be surprised if they weighed 25 kilograms.
41At question 419 you were asked: 'Do you want to say anything in answer to that charge?' Answer: 'That's nothing I can say about this, I plant this and that's it'. Question: 'Do you wish -' Answer: 'I don't sell that, that's it'. Question 421: 'All right?' Answer: 'I plant, I cultivate'.
42No issue was taken at the trial that you cultivated the cannabis plants. Both the learned prosecutor and your counsel relied on aspects of the recorded interview in their closing submissions to the jury. Mr Thomson at trial did not suggest that the interview was not true. Of course, given the burden of proof, he was not bound to do so. He relied on your answers that you thought the cannabis would weigh about 15 kilograms, not 25 kilograms. However, he relied on other answers as well. Mr Thomson relied on your answer that this was the first time you had cultivated cannabis and he told the jury you were completely open, frank and ashamed of your conduct. He submitted that you told police things in that interview that they did not know, such as preparing to plant the crop; obtaining information from the internet, books and hydroponic shops; the purchase of cuttings from a Vietnamese man and, he submitted, that was how you started the cultivation.
43Mr Thomson also suggested to the jury that they might think that you were doing your best to answer the police’s questions. At one point he asked the jury, rhetorically, 'Don't you think he is frank and honest about what he has done?' It was also put that you had pleaded guilty to what you had done, which was to cultivate cannabis. Mr Thomson submitted that if a person was to grow cannabis the set-up found at your premises was what was needed, regardless of the amount of cannabis to be grown.
44It was also put to the jury that you were obviously a good gardener, that you researched the topic, spoke to others, but all of that did not mean that you intended to cultivate a commercial quantity. The jury was told that the level of knowledge you acquired is what was required for the cultivation of cannabis, but that just because you were diligent did not mean you intended to grow a commercial quantity. Mr Thomson referred to your answer at Question 72, concerning your own use of cannabis. He told the jury that it was your intention to recoup your expenses once the harvested crop was given to the Vietnamese persons. He submitted that the jury should be satisfied beyond reasonable doubt that you were cultivating cannabis but that they should have a reasonable doubt that you intended to cultivate a commercial quantity.
45You did not give evidence before the jury. Mr Thomson's submissions to the jury were based on what was contained in your recorded interview. It must be that those submissions were made on your instructions to Mr Thomson.
46However, at the plea hearing on 19 July 2019 you gave evidence that was contrary to many of your answers in the recorded interview. You denied conducting research into growing cannabis. You denied any involvement in setting up the hydroponic system. You denied putting money into the hydroponic equipment and you denied planting and caring for the cannabis plants. Your evidence was that you allowed some unidentified Vietnamese persons to use your premises to grow the cannabis because you owed them money, approximately $10,000, and you say you were frightened of them. You said in evidence that a man by the name Nu or Nung had a key to the premises. You said that you would absent yourself from the premises whenever you learnt those responsible for the crop were going to visit. You said you would be notified of their intention to visit by way of telephone message. You said that your only role was to look after the house to ensure that no one stole the cannabis plants and in so doing your debt would be cleared.
47You also stated that the methylamphetamine and cocaine found in your possession were for your own use. Those drugs were given to you by some Vietnamese person or persons for your severe pain. They were for your own use and not for sale.
48Under cross-examination by Ms Clancy you said you did not know anything about cultivating cannabis and were not present to watch the Vietnamese persons cultivate the cannabis. You were cross-examined on your answers given to police concerning your knowledge of growing cannabis plants from cuttings. You agreed you told police that you grew the cannabis from cuttings but that, in fact, you did not do that or even know how to do it.
49You were taken by Ms Clancy to your answers at question 193. I have referred to those answers earlier in these reasons. You answered Ms Clancy by saying you could not remember what you actually said to the police because you were sick and upset. In further answers you said that you did not know what you said to police because you were really frightened and that was the first time you were being interviewed about something. You maintained under cross-examination that you were still scared of the Vietnamese persons.
50When asked why you were now able to tell the court that which you were not able to tell the police when interviewed in October 2017, you did not answer the question directly. You eventually said, 'They did not ask me - did - I am scared of these people. They not ask me anything about that, I just tell them what I know; how they contact me, what they do and that it'.
51In answer to another question of Ms Clancy you said that you told the police that you were only required to care for the house and make sure it was not burnt or robbed. However, there is no suggestion of that in your record of interview.
52At another point in your evidence you stated that you told the police that Vietnamese people do ‘every job about planting, I not tell police that I put that, I - never I told that'. The answer you gave is contrary to what appears in your interview. When asked by Ms Clancy about the answers to police that you bought a couple of small plants from a Vietnamese guy, you answered, 'Maybe I say, I don't know. I really don't know'.
53That is not an extensive review of your evidence on the plea hearing. However, even from that brief summary there is a clear difference between what you told police when interviewed and the evidence you gave at the plea hearing. Essentially, you now deny any direct involvement with the cannabis. Your role, on your evidence, was simply to protect the cannabis from being stolen or set alight and that you agreed to do so because you were scared of the Vietnamese persons to whom you owed money.
54The learned prosecutor made a number of submissions as to the factual basis upon which I should sentence you. Those submissions are set out in the prosecution's submissions on sentence, tendered and marked Exhibit A. At paragraph 9 of Exhibit A, Ms Clancy stated:
'In relation to the role the prosecution submits that the evidence establishes beyond reasonable doubt that Mr Markovic was the sole cultivator of cannabis and that he owned the crop and stood to gain significant financial reward from its eventual sale. The prosecution relies on the following to establish the offender's role: the crop was grown in his house; he was the only person living at the house; no one else had a key; he lived at the house full time; he undertook the research to learn how to grow the cannabis crop; he set up the hydroponic system; he put the cannabis plants in the house; he made the cuttings of the plants he initially obtained, which is how he made the 30 plants; he cared for the plants and had nothing else to do over that two month period; he had new seedlings ready to swap over and he invested at least $20,000 of his own money into the enterprise'.
55Ms Clancy also set out the relevant questions and answers from your record of interview in support of your role.
56It was also submitted by the learned prosecutor that given the sophistication of the hydroponic setup and the period of time in which you planned and engaged in the cultivation, as well as the substantial financial reward you were bound to receive if the crop had been sold, your moral culpability is high. It was submitted that you fall within the mid category of objective seriousness of this type of offence.
57In his written submissions, Exhibit 2, under the heading 'Genesis of Offending', Mr Thomson submitted that you owed about $10,000 in gambling debts to Vietnamese loan sharks and that they had told you that they would not enforce the debt if you became a house sitter for a hydroponic cannabis crop. Your role, it was submitted, was to make sure no one stole the cannabis. It was further submitted that the Vietnamese persons paid the rent for the premises and also set up the hydroponic system. Mr Thomson also submitted that you lied in your record of interview saying you had a greater role than you did out of fear of reprisals from those Vietnamese persons.
58At the resumed plea hearing, on 23 August 2019, Mr Thomson submitted that the sophistication of the hydroponic set-up points against you having a major role in the set-up. That does not necessarily follow. You told police you were a skilled gardener and that you had done your research. The difficulty for you is that apart from your own evidence there is no other evidence to support the submission of the involvement of others in the cultivation of the cannabis.
59I am required to sentence you on the basis that I may not take into account facts that are adverse to your interests unless those facts have been established beyond reasonable doubt and those to be taken into account in your favour are to be established on the balance of probabilities.
60Overall, I found your answers under cross-examination to be evasive and unconvincing. I do not accept that your admissions in the recorded interview were false. I do not understand why it was necessary to make elaborate admissions to the police if you were afraid of those Vietnamese persons. I do not accept that you would have falsely implicated yourself to the extent you did in the interview. You could, for example, have exercised your right to silence or you could have told police that the plants were grown by others whose contact details you do not have or who you are not prepared to name. You are not an unintelligent man. You are educated and have a law degree. You have run your own post office and newsagency business. In your interview you did in fact implicate Vietnamese persons and you did not mention who they were. I reject the version of events on which you now seek to be sentenced.
61I propose to sentence you on the following basis, which I find established beyond reasonable doubt:
A. The crop was growing in the house at which you were living. You were the lessee of those premises, no one else lived at those premises.
B. You were involved in the setting up of the hydroponic system and the growing of the plants. You did research into the growing of the cannabis. You had sufficient knowledge of the crop to know that there were 30 mature plants in the two rooms and they had been grown from cuttings.
C. The full extent of your involvement in the cultivation is not clear and I cannot exclude the possibility that others were involved in the cultivation and ownership of the plants. However, I find that your involvement extended beyond ensuring that the plants were not stolen or burnt in a fire.
D. The case put against you at trial was that you had engaged in the growing of the cannabis found at your premises. The prosecution alleged at trial that you grew, tended and nurtured the plants found. In closing the prosecutor relied on the admissions you made in your interview as to the setting up and maintenance of the plants, your level of research and your investment of $20,000 of your own money. These matters were not challenged by you at trial. I find that you were involved in the growing of the cannabis in the manner alleged at trial.
E. I find that you invested $20,000 of your own money in the set-up and I infer you expected some financial reward over and above your financial investment. However, I am not able to find beyond reasonable doubt that you were to receive a substantial reward from the sale of the cannabis as alleged. On your admissions to police you were to receive the recovery of money you invested and cannabis for your own use. In evidence before me, and submissions before me, you were also to receive $10,000 by way of debt elimination.
F. I find that you were more than just a crop-sitter.
G. Consistent with the jury verdict, you cultivated a commercial quantity of cannabis, intending to do so.
Personal circumstances
62I turn now to your personal circumstances. You were born in the town of Brčko in Bosnia, in 1955. You are now aged 64. You were 62 years of age when these offences were committed.
63You were born into an Orthodox Christian family. You completed a law degree in Sarajevo but you did not practice law. On completion of your law degree you gained employment as a ground manager for Yugoslav Airlines in Belgrade. You remained in that occupation until the outbreak of the civil war.
64You married your first wife, Sanya, but divorced after eight years. Two years later you married Mira and together you have a daughter. I am told that your daughter is a lawyer in Serbia and has recently sat her exams to become a judge. You separated from her mother in 1990. You have another adult child who also lives overseas.
65Following the siege of Sarajevo you were accepted into Australia as a refugee. You came to Melbourne in May 1992. Your mother and sister continue to live in Sarajevo.
66In Australia you worked as a painter and a petrol station attendant. You met and married another woman, Vesna, in late 1992. Together you purchased and ran the Glenferrie South newsagency and post office for a period of five years. Your wife managed the post office side of the business whilst you ran the newsagency. That business was sold in 2003 following an increase in the rent, which made the business financially unviable.
67Following the sale of the business you worked as a delivery driver and then as a cleaner. You experienced poor health which made it difficult for you to continue to work. You were eventually placed on a disability pension in approximately 2016 or 2017.
68You and Vesna separated approximately four years ago. You had been living with her parents after having been forced to sell your house because you could no longer afford the mortgage. Following separation from Vesna, I am told, you became depressed and resorted to gambling.
69It is obvious that you have a number of serious health issues and I have had regard to a number of documents tendered on the plea that set out your health issues. Those health issues include: arthritis affecting all major joints; right-shoulder difficulty requiring a total replacement of your right-shoulder; enlarged prostate requiring medication to assist you with urination; hypotension; lumbar degeneration; anxiety and depression; renal cysts and a large lesion over your right kidney.
70You have had great difficulty in moving your right arm and have been on the waiting list for a shoulder joint replacement procedure for a significant period of time. You were due to have surgery on your shoulder in August of this year but surgery was cancelled because, it would seem, the Dandenong Hospital did not have the necessary implant to effect the replacement. Surgery will be required in the near future. You are awaiting a prostate biopsy which, you are told, will be performed after your shoulder operation. You are also waiting to see a specialist urologist.
71More recently your counsel tendered further written submissions on the plea, which are marked Exhibit 8. I was informed by Mr Thomson that you are now awaiting surgery to remove a growth from your kidney and that CT results indicate a renal cyst and bilateral suspicious renal lesions, which may or may not be malignant.
72Following further submissions yesterday, and consideration overnight,
Mr Thomson told me that you do not want to have your sentencing adjourned to await the outcome of the proposed kidney biopsy. I note that yesterday it was mooted that your sentencing be adjourned for that purpose.73You have also received psychiatric and psychological treatment for your anxiety and depression. You report that you have seen Dr Roy Nallaratnam, a psychiatrist, for at least 12 months.
74I note in the document completed by Dr Peter Pjesivac, Exhibit 1, dated 3 November 2017, obtained in support of public housing, you were homeless and sleeping in your car. He noted that low density placement was essential due to your severe depression, need for social isolation and agoraphobia. You have managed to obtain a housing commission flat in Buckingham Avenue, Springvale. You said in evidence that you would lose your flat if you go to gaol for more than six months. You said you were on the waiting list for commission housing for approximately five years but, I note, you were renting at 101 Wildwood Road at the time these offences were committed. You rented those premises in your name.
75The psychological report from Ms McMillan, dated 19 August 2019, was obtained for the purpose of your plea hearing. Mr Thomson, relied on it only to establish the fact that you have been receiving psychological counselling. He did not otherwise seek to rely upon that report and it has not been tendered. As at the date of the report you had attended six psychological sessions with Ms McMillan.
76At the time of your plea hearing you were on the following medication: Atacand Plus for you high blood pressure; Crestor for high cholesterol; Panadeine Forte for pain and Zanidip to assist you in going to the toilet.
Sentencing considerations
77The quantity of cannabis you cultivated was 88.48 kilograms which is approximately 3.5 times the commercial quantity threshold by weight. The maximum penalty for cultivating a narcotic plant in not less than a commercial quantity is 25 years. The charge of theft carries a maximum penalty of 10 years' imprisonment.
78In relation to the two charges of possessing a drug of dependence, I accept that your possession was for a purpose unconnected with trafficking and accordingly the maximum penalty for each offence is one year imprisonment and or a fine not exceeding 30 penalty units.
79As already stated, the cannabis was being grown at your premises using a sophisticated hydroponic system. The 30 mature plants were soon to be harvested and replaced by the 40 seedlings. The period of your offending for both the cultivation and theft spanned some four and a half months, between 12 June 2017 and 26 October 2017.
80I consider that your culpability in the cultivation is high, having regard to the role I find you performed. You clearly knew that what you were doing was illegal, it was not suggested otherwise.
81Mr Thomson submitted that your role was one of a mere crop-sitter. I do not accept that characterisation of your role. The basis upon which I am to sentence you depends on all of the facts of the case as I find them concerning your role and involvement in the cultivation of the cannabis crop.
82In Nguyen v The Queen [2019] VSCA 134 Priest and Beach JJA stated at paragraph 59,
'While cases involving the commercial cultivation of narcotic plants are often categorised by reference to whether the accused is, on the one hand, a crop sitter or played some ancillary role or, on the other hand, was an organiser or played a principal or proprietary role, the issue of the role of an offender involved in such offending is not a binary one. Moreover, while the term "crop sitter" may be a useful shorthand description in a case where it is clear that the offender's role is a low-level one, it is not a term of art of fixed and precise meaning. A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation'.
83On any view I cannot find that the role you played is a low level one.
84You pleaded guilty to the theft of electricity on indictment H13043458A and guilty to two counts of possession of a drug of dependence on indictment H13043458B. I accept that the pleas to those charges were entered at the earliest opportunity, a matter that weighs in your favour on sentence. Your pleas of guilty have also provided utilitarian benefits to the community in the saving of trials in respect to those charges and sparing witnesses from having to give evidence. However, you pleaded not guilty to the charge of cultivating a commercial quantity of cannabis. As stated earlier, the sole basis on which you contested that charge was in relation to the third element of the offence, that is, you did not intend to cultivate a commercial quantity of cannabis. The jury rejected your defence and returned a verdict of guilty to that charge.
85Although you pleaded guilty to three charges I do not find that those pleas are indicative of remorse. With the exception of a reference from Father Milan Milutinovic, which was tendered and marked Exhibit 6, there is no other evidence of your remorse. You are not remorseful for your conduct in cultivating a commercial quantity of cannabis and I reject your attempt on the plea to minimise your role in the offending.
86You have a prior conviction on 17 May 1996 for theft and prior convictions for stealing mail and hindering the carriage, by post, of an article on 17 October 2001. Given the age of those matters and the moderate penalties you received I do not consider them relevant in sentencing you for the offences before me.
87I take into account the reference of Father Milutinovic. He has known you for two years and writes in his reference that you have been generous in assisting the church and community in various fundraisers. You have, he writes, been benevolent and demonstrated care for those in need. These are matters that weigh in your favour and reflect, to some degree, a positive outlook for your prospects for rehabilitation.
88As to those prospects, having regard to your lack of relevant prior convictions, your age and your poor health, I find them to be good. I have little doubt that your incarceration has operated to deter you from committing further offences. It has not been suggested that you have been in any further trouble since the commission of the offences before me. I note also that you complied with your conditions of bail for a considerable period of time without fail.
89I do not suggest that no weight is to be given to the need for specific deterrence, but in the circumstances of your case I consider that it is much reduced.
90However, general deterrence is a significant factor in the sentence I must impose. Other persons minded to cultivate a narcotic plant in not less than the commercial quantity must be deterred from becoming involved in such offending.
91Ms Clancy referred to Mohtadi v The Queen [2018] VSCA 238 where the
Court of Appeal emphasised that general deterrence is an important consideration which, ordinarily, should be at the forefront of sentencing considerations.92I am also required to impose a just punishment and express the court's denunciation of your conduct.
93I have had regard to current sentencing practices, to the cases to which I was referred by the learned prosecutor in her written submissions and a number of other sentencing decisions of both this court and the Victorian Court of Appeal. Those decisions are of some assistance in providing a yardstick that may show the possible range of sentences available.
94However as was stated in DPP v Dalgleish [2017] HCA 41, current sentencing practice is but one of a number of factors I am required to take into account.
95The learned prosecutor submitted that s.5(2H) of the Sentencing Act applies. That section requires me to impose a sentence of imprisonment unless you fall within one of the exceptions. It has not been submitted that the section does not apply in the circumstances of your case.
96I have also had careful regard to your state of poor health and the hardship that this will cause you during your incarceration. I have had regard to the affidavit of Mr Money, filed by the prosecutor. I have also had regard to the further submissions made by your counsel yesterday.
97It is regrettable that the proposed prostate and kidney biopsies have not been performed to date, which would have better informed me of the true state of your health. But, as stated earlier, you do not wish to have your sentence adjourned.
98Whilst you will receive the medical treatment you need I have no doubt that, given your numerous serious ailments, imprisonment will be a much greater burden on you than on prisoners in normal health. It a factor in your case that operates to mitigate the sentence to be imposed. It is for this reason also that I am prepared to impose a relatively short non-parole period.
99Mr Markovic, would you now please stand.
100On indictment H13043458A, Charge 1, cultivation of a narcotic plant, commercial quantity; you are convicted and sentenced to three years and six months' imprisonment. On Charge 2, theft; you are convicted and sentenced to eight months' imprisonment, to be served wholly concurrently with Charge 1.
101I direct you serve a minimum term of 18 months' imprisonment before becoming eligible for parole.
102Pursuant to s.18 of the Sentencing Act I declare that you have served 103 days by way of pre-sentence detention, not including today.
103On indictment H13043458B, on Charge 1, you are convicted and fined $500. On Charge 2, you are convicted and fined $500.
104Ancillary orders? Mr Campbell, have you seen the disposal order and the order for sample ‑ ‑ ‑
105MR THOMSON: Yes, Your Honour.
106HIS HONOUR: ‑ ‑ ‑ under 464ZF.
107MR THOMSON: No issue with that, Your Honour.
108HIS HONOUR: No issue. All right, thank you. Ms Cavka I make the disposal order as sought in your application, dated 18 December 2019.
109I will also make, pursuant to s.464ZF(2) of the Crimes Act, an order that you, Mr Markovic, undergo a forensic procedure for the taking of a scrapping from the mouth and/or a blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I do so on the basis that the order is not opposed and the seriousness of the circumstances of the offending.
110Mr Markovic, I am required to warn you that if at the time of the request for that mouth scrapping sample you do not consent, an authorised member of the police force may, using reasonable force if necessary, obtain a sample of your blood. So what I suggest is when the sample is sought of a mouth scrapping you cooperate with that.
111Are there any other matters?
112MR THOMSON: No, Your Honour.
113HIS HONOUR: All right.
114MR THOMSON: 6AAA, Your Honour.
115HIS HONOUR: On the theft charge, had it not been for your plea of guilty I would have sentenced you to a term of imprisonment of 12 months.
116No other matters?
117MR THOMSON: No other matters, Your Honour.
118HIS HONOUR: Mr Thomson, Ms Cavka, thank you very much for your assistance and if you would also pass on my thanks to Ms Clancy.
119MS CAVKA: Thank you, Your Honour.
120HIS HONOUR: Please adjourn the court.
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