Director of Public Prosecutions v Stankovic

[2021] VCC 1968

S

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 20-00217

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOBAN STANKOVIC

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2021
DATE OF SENTENCE:	1 December 2021
CASE MAY BE CITED AS:	DPP v Stankovic
MEDIUM NEUTRAL CITATION:	[2021] VCC 1968

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – one charge cultivate narcotic plant in commercial quantity – sentence indication – impact of post-traumatic stress disorder- prior good character- circumstances of COVID-19 pandemic

Legislation Cited:      Crimes Act 1958 ; Sentencing Act 1991 ; Criminal Procedure Act 2009; Mental Health Act 2014

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:                  30 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Mr A. Patton	Leanne Warren & Associates

HER HONOUR:

Preamble

1On 28 March 2019 police found cannabis growing at two addresses; 84 plants in various states of maturity were found. Their weight would later be calculated at 50.14 kilograms.

2The resident of one of the addresses, was charged with the cultivation of these plants. What follows are the considerations that the Court takes into account in sentencing for that cultivation.

3Boban Stankovic, you have pleaded guilty to one charge of cultivation of a narcotic plant on a single day, 28 March 2019,  an offence which carries a maximum penalty of 25 years’ imprisonment. 

The facts of offending

4The prosecution opening on your plea was tendered and became Exhibit A.  You did not dispute those facts; that opening is attached to and forms part of these reasons. I will repeat just some of the facts giving rise to your offending here.

5At the time of the alleged offending, you lived at an address in Board Street with your partner.  

6On 21 January 2019, you entered into a rental agreement at a second address in Doncaster.

7On 28 March 2019, police executed the two search warrants at both addresses.

8At the second address police found 43 cannabis plants growing in a hydroponic setup with an electrical bypass. The house seemed otherwise unoccupied. The plants were found in the garage and in two rooms inside the house. In each set up there were a number of plants, lamps, water pipes, charcoal filters, and light globes, items that are all classically associated with indoor hydroponic cannabis cultivation.

9The plants at this address measured between 62 cm and 132cm in height. The total number of plants located at the address was 43 and the total weight of the plants 48.75 kg.

10Police also found your wallet and a number of other documents at this address and that included $1,928.15 in cash.

11Now, turning to the Board Street address, police found another hydroponic setup, this time in the garage only.  The normal hydroponic accoutrements were found there, along with 41 immature plants ranging between 9 and 15 cm in height with a total weight of 19.3g. There was also one small, dried cannabis plant which was later measured to have the weight of 0.3 g.

12Police also found a number of other items: 12 zip-lock bags and one foil containing cannabis, later measured to be a total weight of 493.8 g, though the weight of some of the substance found could not be estimated.  There was also a hand drawn diagram of a grow room set up.

13

Across the two properties, police found a total of 84 plants weighing a total of

50.14 kg.  I note that the theft of electricity on a single day at the second address is said to be subsumed within Charge 1 on the indictment.  Also, part of the factual matrix of the offending is the finding of the $1928 in cash, an amount I am told will be returned to you.[1]

[1]See [6] p 2 of ‘Amended Opening Plea Summary’.

14After the execution of the warrants, you and your partner were taken to Doncaster police station. A Serbian interpreter could not be arranged, and you were charged and bailed.

The Plea

Sentence indication application- 22 November 2021

15Turning now to the plea and sentence indication application of 22 November 2021. Your case was listed for trial, but on 22 November 2021, I heard an application pursuant to s 207 of the Criminal Procedure Act for a sentence indication on the single charge on this indictment. A pre-condition to the making of such an application is the consent of the Director of Public Prosecutions, which was given. 

16At the conclusion of that process, I indicated that for reasons I will now set out, were you to enter a plea of guilty to the charge on the indictment, I would not impose on you a sentence involving your immediate imprisonment. You subsequently instructed your lawyers to proceed by way of a guilty plea.

Statutory Framework

17The sentencing indication took place within the statutory framework of s5(2)H of the Sentencing Act1991(‘the Act’) .

18Because the cultivation of a commercial quantity of a narcotic plant is a category 2 offence, s5(2)H requires me to make an order under division 2 of part 3 of the Act that is, impose a custodial order, unless one of the circumstances set out in paragraphs (a) to (e) of s5(2)H is established.

19Your counsel relied on two limbs:

(a) Section 5(2)H(c)(ii) that you had impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; and

(b)   Section 5(2)H(e) that there were ‘substantial and compelling circumstances that were ‘exceptional and rare’ and that justified my not making a custodial order.

20In relation to the first of these two limbs, your counsel argued that the psychological evidence, to which I shall come in a moment, established that the symptoms of your post-traumatic stress disorder would engage that section.

21Regarding the second limb in s5(2)H(e) your counsel submitted that the combination of the same circumstances advanced to establish the materially greater burden of imprisonment in combination with the non-commercial purpose of the cultivation amounted to circumstances that are exceptional and rare, even in the light of the restraints imposed by ss2H(c) and 2(I).

22Because both arguments were based in part, at least, on the psychological evidence, I will first refer to the report of Ms Maynard, filed on the sentencing indication application and ultimately tendered on the plea.

23Before leaving the statutory structure, I pause to note that the prosecutor, in written submissions filed with the court on the sentencing indication application conceded that findings under s5(2)H(c)(ii) and s5(2)H(e) appeared to be open. The same concession was also made in relation to s5(2)H(c)(i); but this was not pressed by counsel.

The Mynard report – burden of imprisonment

24On the sentence indication and plea, reliance was placed on an assessment report authored by Ms Alison Mynard, a clinical psychologist.

25After summarising a number of background matters, including your history of service in the Yugoslavian war, your family’s history, and the mental health symptoms you exhibited during your assessment, Ms Maynard diagnosed you with post-traumatic stress disorder and a major depressive disorder.

26Ms Mynard noted in particular the trauma you were exposed to during what is now called the Balkans war. You are of Serbian heritage. You were conscripted into what was then known as the Yugoslavian army, then occupying what is now Macedonia, as an 18-year-old.  You described being ‘drugged up’ and given the task of loading ordnance onto military planes.  Later, you were given a direct combat role.  This involved imposing on non-combatants, ordinary citizens who, you now say, you were brainwashed to think were ‘less than’ the Serbians. You were held as a prisoner of war in a Croatian prisoner of war camp and seriously mistreated there.   You are now haunted by the things you saw during your war service and feel very anxious about what you did as part of that service. This was a time in the history of your country of birth when neighbour was pitted against neighbour, with whom they had earlier lived peacefully. The horror of that time still resonates in you.

27Before arriving at the diagnosis of PTSD, Ms Mynard administered the Post Traumatic Stress Disorder Checklist for DSM-5 and at paragraph 32 of her report she sets out particular symptoms you experience referable to the diagnostic criteria.

28Ms Mynard’s report is detailed and cautious. I have taken her report into account in its entirety. Some of the symptoms she notes are: insomnia, nightmares, anxiety, persistent feelings of fear and guilt, as well as physical symptoms such as shaking, and feeling that your heart skips a beat. 

29At paragraph 45 Ms Mynard writes:

[Mr Stankovic’s] condition of PTSD does cause him to feel quite vulnerable in a contained environment, causing flashbacks and intrusive thoughts about the traumatic times when he was captured and tortured in the war in Yugoslavia. When he is in a contained environment and he has no control over this, this does trigger him to feel anxious, panicky, feeling out of control and helpless. Even though he may be physically safe, the feeling of being unsafe and compromised has remained in his mind, emotions and body, and being deprived of his liberty will trigger this again. This will result in deteriorated mental health and exacerbation of his PTSD symptoms. It is anticipated that he will find interaction with other inmates and prison guards more difficult because of his past experiences of being tortured and detained, struggling to trust people around him, which is also a symptom of PTSD.

30Ms Mynard sets out your history of medicating your PTSD symptoms with alcohol and how, about 6 -7 years ago, desperate to quell your persistent anxiety and your nightmares,  you discovered cannabis oil.  Ms Mynard cites various studies on the successful use of Cannabis oil as treatment for PTSD, not that you were prescribed the substance in this way.  But it does make sense of, and to some degree validates, your use of the substance for that purpose.  In Ms Maynard’s opinion, without targeted therapy, you are likely to continue to experience the symptoms of PTSD, and she thought it unlikely that such specific therapies could be obtained in the custodial environment.

31Ms Mynard also diagnosed a major depressive disorder.

Findings on 5(2)(c)(ii)

32Having regard to the contents of the Mynard report and in particular to paragraphs 45 to 46 of that report, and by reference to the definition of ‘impaired mental functioning’ in section 10 A of the Sentencing Act and s 4 of the Mental Health Act 2014,[2]  I find that the evidence has established, on the balance of probabilities, that you have impaired mental functioning that would result in you being subject to a substantially and materially ‘greater than the ordinary’ burden of imprisonment, were you to be incarcerated as part of this sentence. I make that conclusion conscious of the clear legislative intent to make the thresholds in this section difficult to meet.

[2]Section 4 Mental Health Act 2014: ‘mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.

33Having so concluded, it is unnecessary for me to consider the additional and more complex test imposed by s 5(2H)(e). I mention only for completeness the relatively powerful argument that in this case the indicia of normal entrepreneurial and commercial aspects of the cultivation are absent; I will return to that in my assessment of the nature and gravity of the offending.

Threshold met

34This threshold, having been met and the legislative barrier of s5(2)H removed, I then embark on the task of exercising the sentencing discretion in the usual way.

35Much of the evidence I have already cited and relied upon in the foregoing remains relevant to the exercise of that discretion. That being so, I’ll now turn to the other matters.

Nature and gravity of the offending

36The plea that you entered indicates your acceptance that you engaged in active cultivation while holding the intention to cultivate at or above the commercial quantity threshold, variously expressed as 25 kg or 100 plants.  So, your enterprise nearly doubled the weight threshold, though it was argued on your behalf that you did not know the actual weight of these plants.

37The purpose for your cultivation, that your barrister advanced on the plea, was to produce cannabis oil for your own use to reduce the toll of the symptoms of your PTSD in the context of your growing concerns with your use of alcohol to deal with your symptoms.  Cannabis oil uses only the dried flowers and leaf it is said, reducing the overall weight of the valuable crop for your purposes to approximately 10 kg. There was no evidence of your trafficking in the drug. There was no evidence of harvesting, drying or trafficking by sale such as ledgers or mobile phone records and I note your phone was seized and this revealed no evidence of trafficking.

38It is unusual that the cultivation of cannabis at this level is not accompanied by  indicia of a broader commercially related purpose.  I refer to a table of cases tendered on the plea dealing with this point.  I accept that your motivation for the offending was not commercial but rather to pursue your own source of a drug that in your rather desperate state had given you some relief.

39In assessing the nature of your offending as relatively low in the overall scheme, I have regard to the fact that the scale of the operation was relatively modest and not attached to broader criminality or commercial gain. You have been charged with that cultivation on a single day.

Personal circumstances

40Turning now to your personal circumstances.  You are now 51.  You were born and raised in rural Macedonia. You were conscripted at aged 18 into the Yugoslavian Armed Forces.

41When you were eight years old your father died suddenly after a bungled surgery and your grandfather, with whom you and your family lived, died just a few months later. This felt like your world was falling apart.

42You did finish your schooling though, concluding with a mechanics’ course and working in that trade for some time after leaving school, whereupon you were enlisted.  You spent the war in Bosnia, Croatia, and Montenegro.

43Initially, your role in the war was at the airport fuelling planes and loading ammunition. Later in the war you were captured and held in a Croatian army prisoner of war camp where you were tortured and beaten.  At other times you were engaged in a combat role which involved conduct directed at civilians.

44After the war you went home to find your mother had left the household in order to live with her new partner; you felt you needed her support after your war experiences and felt abandoned.

45You left your country of birth for Australia in 1996, sponsored by your uncle.  You became a citizen in 1998.  Your mother is still in good health and still lives overseas.

46After you arrived in Australia you used your mechanics qualification and worked at the Ford factory for a year then left to become a domestic painter, sometimes working for someone else and later working for yourself or others as a subcontractor.

47You met your partner Susan in 2005.  She has two children from a previous relationship, she works in real estate and remains supportive of you.

48After your arrival in Australia you started using alcohol excessively.  By your mid 30s you were drinking alcohol daily.  You would sometimes drink during work and after work and found yourself unable to stop.

49You have had no treatment for any of your mental health symptoms.  You did complete an inpatient rehabilitation program at Box Hill Hospital in recent times.  You have remained abstinent from alcohol since this time, you continue to engage in treatment with Ms Mynard.

Matters in mitigation

Plea of guilty

50First, turning to the plea of guilty.  At any time, a plea of guilty in this jurisdiction obliges me to significantly reduce your sentence on account of the benefit that your plea bestows on the community. However, at this time, when the pandemic has placed such an enormous strain on the administration of justice in Victoria,  the authorities make clear that your plea of guilty ought be recognised with an additional and palpable reduction in your sentence.

51Moreover, I accept that your plea of guilty contains within it an aspect of remorse.

Prior good character

52You come before the court a man of 51 years without prior convictions. Despite very significant difficulties in your childhood and early adulthood you have lived an otherwise law-abiding life, despite the burdens that you carry, and this will be recognised in your sentence

Verdins

53Psychological material initially tendered under the sentence indication hearing was then directed to advance propositions in mitigation of your sentence on each of four limbs of the case of Verdins.

Reduction in moral culpability

54First, a reduction in moral culpability.  It was argued that the purpose for which you cultivated, being to create a product that would help you to address the nightmares and other symptoms under which you labour, reduces the moral culpability of your offending.  I accept that to some degree.  Some of the statements in Ms Mynard’s report seem to be directed at a slightly different kind of reduction, being your ongoing distress, making you less able to think clearly and make good decisions about whether or not to cultivate cannabis.  These submissions are to some degree at odds with each other.  Clearly the cannabis set up was organised and relatively complex thus indicating a certain capacity to plan, organise, make practical solutions and be directed. While I have taken into account your enterprise was not commercial and therefore less harmful than the regular version of this kind of offending, I am less attracted to the reasoning the moral culpability is reduced in this way. I take it into account to a limited degree.

55What I do accept, however, is that given your diagnosis and the recommended treatment for it, I do think your mental illness has a bearing on the kind of sentence that should be imposed.

Moderation of general deterrence

56Your offending does arise in circumstances that are somewhat unusual and suggest that you are not a classical vehicle for general deterrence, though there is some, albeit reduced, role for this sentencing principle.

Burden of imprisonment and effect on mental health

57I will not repeat the analysis here that I’ve already undertaken in meeting the original threshold under s5(2)(h).  The form of your sentence has already been fundamentally altered by the effect your illness would have on you if you were imprisoned.   I add here consideration that a sentence of imprisonment seems likely to cause a deterioration in your mental health.

Sentencing principles

58Turning to sentencing principles, despite the stated purpose for your cultivation there is still a role for just punishment.  The law is clear that cultivation of a commercial quantity of cannabis for any purpose is prohibited and is punishable by significant terms of imprisonment. However, having regard to all the circumstances, I see a very limited role for specific deterrence in your case.  It seems that you have, by a circuitous route, now reached both the necessary need for psychological assistance and the ability to obtain it.  Community protection, insofar as it is significant in your case will best be served by your treatment.  The prosecution submitted that specific deterrence in your case is of a lesser significance.  Through this sentence the court denounces conduct directed at the cultivation of cannabis.

Prospects of rehabilitation

59I have had regard to your prospects of rehabilitation. You are in a stable relationship with your partner and have been for some years.  You have a good work history.  More recently you have started to be able to engage professional assistance for your difficulties, as demonstrated by your admission to Box Hill Hospital to deal with your alcohol addiction.  More recently, you have engaged in counselling. Although your treatment is in its early stages, the indications are you are increasingly able to both acknowledge your need for help and to seek it.

60In the context of your otherwise responsible life, I find your prospects for rehabilitation are very good.

Delay

61Turning now to delay, I note the delay in the resolution of your case.  It commenced with a filing hearing on 30 August 2019 and concludes today, 1 December 2021. It has hung over your head for that time.  This has a punitive aspect and you have also used the time profitably to commence the early stages of your treatment and rehabilitation and I take that into account.

Comparable cases

62On your sentence indication hearing I was helpfully provided with a range of cases dealing with similar offending, though often in very different circumstances with very different goals.  I have had regard to the general sentencing landscape.  Very few cases are even remotely like yours. I sentence you in that landscape though.

Disposition

63On Charge1: cultivation of a commercial quantity of cannabis, you are convicted and sentenced to community corrections order of 30 months’ duration.

CCO Conditions

64You will be first subject to the standard conditions of a CCO.  That means that you must not commit any other offences that are punishable by imprisonment during the 30 month period. 

65You must report to Box Hill Community Corrections Service in  Station Street,  Box Hill within two days of today .and I note that there is a tentative appointment for tomorrow at 2pm.

66You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.

67It is a term of all Community Corrections Orders that you submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer.  You are not able to leave the State of Victoria without their prior permission and that is for the whole 30 months.

Special conditions

68The following are the special conditions that I will attach to the order.

69You must report for supervision with your case manager as directed.

70You must submit to assessment and treatment for alcohol and/or drug dependence.

71You are required to submit to mental health assessment and treatment.

72I require you to perform 150 hours of unpaid community work over the term of this order, but pursuant to s.48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs can be credited towards those hours. 

73I make the orders for forfeiture and disposal as sought. 

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