R v Friese

[2022] NSWDC 428

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Friese [2022] NSWDC 428

Hearing dates:

30 June 2022

Date of orders:

26 September 2022

Decision date:

26 September 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

See [103]

Catchwords:

CRIMES- - Sentencing - Knowingly take part in the cultivation of prohibited plants namely cannabis by enhanced indoor means.

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act

Drugs Misuse and Trafficking Act

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Doyle v R [2022] NSWCCA 81

PH v R [2009] NSWCCA 161 at [32]

Tran v R [2018] NSWCCA 220

Category:

Sentence

Parties:

Rex
Dragomir Freise

Representation:

Counsel:
Mr Lloyd KC (Defence)

Solicitors:
Ms Moore (ODPP)
Mr Hardin / Ms Niagos (Defence)

File Number(s):

2021/46048

Publication restriction:

N /A

Judgment

Offences

1. Dragomir Friese has pleaded guilty to two counts of knowingly take part in the cultivation of prohibited plants namely cannabis by enhanced indoor means in breach of section 23(2) of the Drugs Misuse and Trafficking Act (DMT Act). Sequence 14 relates to 56 plants. Sequence 15 relates to 67 plants. The maximum penalties applicable to both offences is imprisonment for 15 years and/or a fine of 3500 penalty units.

2. In addition, the offender has admitted his guilt in relation to sequences 10, 11 (Count 3) and 13 (Count 4) being:

1. deal with suspected proceeds of crime being $6,943.00 cash in breach of section 193C(2) of the Crimes Act. The maximum penalty is 3 years imprisonment;

2. knowingly take part in the cultivation of prohibited plants by enhanced indoor means comprising 47 cannabis plants which is less than the commercial quantity of 50 plants in breach of section 23(1)(a) of the DMT Act. That carries a maximum penalty of 10 years imprisonment and/or a fine of 2000 penalty units;

3. cultivate prohibited plant by enhanced indoor means comprising 15 cannabis plants in breach of section 23(1)(a) of the DMT Act. That carries a maximum penalty of 10 years imprisonment and or a fine of 2000 penalty units.

3. All three charges attached to sequence 15.

Guideposts

4. The maximum penalties are a guidepost for sentencing judges. They reflect the seriousness with which the community, through Parliament, views the offending. There is no doubt that all offending relating to prohibited drugs is serious and calls for condign punishment so as to deter both the offender and others from engaging in like criminal behaviour.

Form 1

5. By signing the certificate to the Form 1, I confirm that I have taken those charges into account in sentencing for the principal charge to which they relate. The charges on the Form 1 to be considered with a view to increasing the penalty that would otherwise be appropriate for the principal sequence. The court does so by giving greater weight to elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community’s entitlement to extract retribution for serious offences.

Procedural history

6. The offending took place on and leading to 17 of February 2021. The offender was arrested that day and remained in custody until 2 September 2021. He is entitled to a credit of 6 months and 17 days for that time. On 16 December 2021 the offender was committed for sentence from Downing Centre Local Court. By reason of the timing of his plea, he is entitled to a reduction in sentence of 25% representing the utility of the plea.

7. There are a number of co-offenders, some of whom I have/will sentence others have been sentenced by other judicial officers. I shall have regard to the sentences imposed upon co-offenders in considering the question of parity, later in these remarks.

Statement of Agreed Facts

8. The offender was a member of a syndicate engaged in the cultivation of cannabis in the eastern suburbs of Sydney between August 2020 and February 2021. The syndicate was engaged in the enhanced indoor cultivation of cannabis across nine premises within the area bounded by Kensington, Rosebery, Maroubra and Chifley.

9. The syndicate was identified by police during 2020 resulting in the physical surveillance of eight males over a six-month period.

10. The offender was observed to attend four of the premises alone and with other syndicate members for the purpose of cultivating cannabis plants from November 2020 to February 2021. Those premises were at Rosebery, Chifley, Maroubra and Randwick. The addresses are referred to in paragraph 5 of the Agreed Facts.

11. The offender was also observed meeting with other syndicate members for meals on numerous days.

12. The following facts relate to the Chifley premises (count 3 on the indictment).

13. At about 2:36 PM on 1 February 2021 the offender was observed by police to attend the premises in his vehicle registration ending 46H. He entered the premises. At 5:25 PM the offender and Mr Boskovic left the premises and drove to Bunnings East Gardens where they purchased items from the plumbing section including PVC piping, elbow joints and sealer.

14. At 6:09 PM on 12 February 2021 the offender and Mr Moskowitz drove to the Maroubra address in the offender’s vehicle. Co-offender Mr Jolic met them at the premises. The three men entered the premises and at 6:45 PM was seen talking to Mr Kalache on the front lawn. He was the boyfriend of Mr Boskovic’s daughter. They then left those premises and drove to the Chifley premises where the offender, Mr Boskovic and Mr Jolic all entered the building at about 6:54 PM. The offender checked the status of the cannabis crop.

15. On 17 February 2021 police executed a search warrant at the Chifley address. They located two rooms in the house dedicated to the enhanced indoor cultivation of cannabis with 47 plants growing. Each room was fitted with irrigation to individual pots containing cannabis plants as well as heat lamps and lighting. Two vacuum sealed bags of cannabis leaf were located in the hallway cupboard and a third bag was found in a garbage bag in bedroom 3. The total weight was 3.672 kg.

16. Those premises had been leased by Mr Boskovic on 10 June 2020.

17. The following facts relates to the Maroubra property (count 4 on the indictment).

18. On 1 February 2021, the offender and Mr Boskovic were observed at Bunnings East Gardens where they purchased items from the plumbing section including PVC piping, elbow joints and sealer. They drove directly from there to the Maroubra address arriving at 6:10 PM and entered the premises. At 6:25 PM the men left the premises and drove away in the offender’s utility registration ending 46H.

19. At 6:09 PM on 12 February 2021 the offender and Mr Boskovic drove to the address in the offender’s vehicle with co-offender Mr Jolic driving behind them in vehicle registration ending 4DE. The three men entered the premises and at 6:45 PM were seen speaking to Mr Kalache on the front lawn. The offender, Mr Boskovic and Mr Jolic left the premises at 6:48 PM driving to the Chifley premises.

20. On 17 February 2021 the police executed a warrant at the Maroubra address. One room was found to be set up for the enhanced indoor cultivation of cannabis plants with a total of 15 plants located. The room was fitted with irrigation to individual pots containing cannabis plants as well as heat lamps and lighting set up in an identical way to the premises at Chifley and Kensington. The electricity mains had been bypassed.

21. The offender’s fingerprints were found on two batwing lamps found in bedroom one where cannabis plants were growing. The offender assisted others in the group to establish the system for cultivation of the crop. Fingerprints of Mr Kalache were located on 16 items being batwing lamps and globes. The premises had been leased by Mr Kalache on 14 January 2021.

22. The following facts relates to where 56 plants were located in Rosebery.

23. Mr Jolic was seen to attend the Rosebery premises on 26 August 2020, 28 September 2020, 13 October 2020, 16 December 2020, 29 December 2020 and 27 January 2021. At 2:17 PM on 11 February 2021 the offender was observed to attend the premises and enter the house. At 2:28 PM the offender left the house and drove away. About 3:51 PM the offender returned and went into the house through the front door, leaving again six minutes later.

24. On 17 February 2021 police executed a warrant at the Rosebery address. Mr Jolic was located inside the premises. Two rooms of the house were found to be set up for the enhanced indoor cultivation of cannabis plants with a total of 56 plants located. The rooms were fitted with irrigation to individual pots containing cannabis plants as well as heat lamps and lighting in the same way as the premises at Chifley, Kensington and Maroubra. The electricity mains had been bypassed.

25. The premises had been leased by the offender on 2 March 2020. The offender allowed Mr Jolic to use the premises for the purpose of cultivating cannabis plants. Mr Jolic was residing at the premises. His fingerprint was located on the inside of a reflective shade removed from the house. His DNA was located on a headlamp found in bedroom two.

26. The following facts relates to a property at Randwick where 67 plants were located.

27. At 2:50 PM on 7 November 2020 Mr Jolic was seen to arrive at an address on Council Street Randwick in his vehicle registration ending 4DE. He entered the premises through the rear of the garage. The offender arrived soon after and together they unloaded a number of wooden trestles from the utility driven by the offender. These were carried in through the rear entrance. Both offenders left the address at 2:55 PM.

28. Mr Jolic was again observed at the premises on 8 November 2020.

29. The premises were searched by police on 17 February 2021 when they discovered four rooms converted for the enhanced indoor cultivation of cannabis featuring heat lamps and lighting connected to power boards which had been installed, irrigation piping, filters and ducting. Electricity mains had been bypassed. 67 plants were located.

30. Mr Jolic’s fingerprint was found on a batwing light and his DNA was found on the handles of scissors in room three. The property had been leased by the offender commencing 7 January 2015. The offender allowed the co-offender to use the premises to cultivate cannabis plants.

31. The offender and Mr Boskovic were arrested at Broken Hill on 17 February 2021. They were travelling in a rental motorhome which was searched, and police discovered one opened vacuum sealed bag of cannabis leaf and $6,943 in cash. This was suspected to be the proceeds of cannabis leaf sales. Multiple mobile phones & cards were also located.

32. The offender was not offered the opportunity to take part in an interview due to difficulties obtaining representation and an interpreter. He was charged.

Subjective case

Prior convictions

33. This offender has no history of prior convictions in this country. A document from the Republic of Serbia (Exhibit 4) confirms that no criminal proceedings had been initiated against the offender in that country nor was he the subject of investigation for criminal offences.

34. The offender is entitled to a finding of good character and the leniency which may flow from such a finding.

Sentencing Assessment Report

35. A Sentencing Assessment Report dated 20 January 2022 forms part of exhibit A.

36. The offender immigrated to Australia from Serbia about 7 years ago after meeting his now wife on holiday in Europe. He is now a permanent resident of Australia. At the time of the report, the offender’s wife had temporarily relocated to Coffs Harbour where she was undergoing cancer treatment. The offender has four adult children who reside in Serbia. He has a cousin in Australia but is primarily supported by his wife’s family who he reports as positive social influences.

37. The offender is unemployed and is not in receipt of a Commonwealth benefit. He is reliant upon financial support from his son in Serbia and his wife’s family. His lack of English proficiency has proved to be a hurdle to obtaining gainful employment.

38. He said that the offending took place as he was attempting to help a long term friend. He said that he had an idea of what his friend was using the houses for but did not question him or report him to authorities. Notwithstanding he blames himself for the consequences of his actions. The offender demonstrated insight into the impact of his offending. During the interview he was cooperative and engaged.

39. He was assessed as being a medium to low risk of reoffending. He was assessed as suitable to undertake community service work up to 24 hours per month.

Subjective evidence

40. The offender’s treating doctor prepared a report (Exhibit 1). It refers to a number of conditions including obesity, diabetes, chest infection and depression/anxiety. All conditions appear to have been successfully moderated by treatment including his depression for which he receives medication.

41. Exhibit 2 is a letter from the Mid-North Coast Cancer Institute confirming that the offender’s wife has stage IV low-grade non-Hodgkin’s lymphoma. As at the date of the report (12 April 2022) she had undergone chemotherapy followed by infusion immune therapy on a monthly basis. As at the date of the report she was in the early stages of relapse.

42. A report was commissioned from Dr Protulipac (psychologist). It is dated 14 January 2022. The family history portrayed the offender’s father as being violent in that he engaged in harsh physical punishment and his mother was similar. She was however also abused by her husband which she took out on children who she’d would beat or otherwise abuse daily. Apparently, the offender lost consciousness many times and his mother would pour cold water over his face and head to revive him. He feared his parents and lived with the ongoing anticipation of abuse. His parents separated and divorced when he was six years of age, however his mother married another man who was also very violent towards him. His stepfather would whip him for physical punishment. He was placed in the care of his maternal grandparents at about the age of seven before returning home to live with his sisters after his mother left for Austria.

43. The offender returned to Serbia at about the age of 19 to complete his mandatory military duty of one year. Thereafter, he worked as a courier before moving to Berlin where he worked in the construction industry for 8 years. He married in 1995 and had three children from that marriage. They are now aged 27, 25 and 21 years. There was a previous child to what appears to have been a causal relationship with a woman after leaving the military. The offender divorced the mother of his three children in 2008 and she later died in 2017.

44. The offender migrated to Australia in 2014 and commenced employment as a handyman which he maintained until his employment was affected by the coronavirus in August 2020. He married his present wife in 2015.

45. In relation to the offending, he informed the psychologist that he was asked to rent the two houses in which the cultivation would take place. He said that he had poor knowledge of the possible consequences of such an act when he agreed to it.

46. The reporting psychologist took a lengthy medical history from the offender. Much of it related to trauma suffered at the hands of his parents as well as the effect of being run over by a large truck at the age of three. The offender is a diabetic and suffers from hypercholesterolaemia, both of which are the subject of treatment. In paragraph 5 of the report, the psychologist sets out a lengthy list of current symptoms.

47. The psychologist undertook a mental health assessment and performed a number of psychometric tests. This led to the diagnosis of chronic post-traumatic stress disorder and moderate major depressive disorder with psychotic features.

48. The psychologist attempted to draw a connection between the offenders conditions and the subject offending. He said that by reason of his anxiety levels the offender “had no strength to refuse the offer despite being aware of its criminal nature. This is due to the fact that his judgment was impaired by the means of psychological symptoms that he was suffering from the time of committing the offence in question.” Although this opinion was not challenged by the Crown, I find it, in terms, difficult to accept. It may, however, be that given his vulnerability by reason of his conditions diagnosed by the psychologist in 2022 that he was a target to be taken advantage of by his co-offenders. In that regard, I note the psychologist stated “overall, it is my opinion that Mr Friese was gullible when he agreed to lease the houses in which Mr Jolic could cultivate cannabis.”

49. The psychologist further expressed an opinion that the prospects of successful rehabilitation was very high and the risk of reoffending extremely low. He recommended psychological treatment, and commencing at paragraph 10 of his report, set out a treatment plan.

50. The offender wrote a letter to the court dated 28 June 2022 (Exhibit 6). In that, he acknowledged that he was to be sentenced to two charges of knowingly take part in the cultivation of cannabis with other matters of on a Form 1. He stated:

I have deep regret for my behaviour and apologise to the court and the community for my conduct.

In my days in lock-up, every day I thought about the damage caused by these criminal offences. I will think of that now for the rest of my life.

51. Exhibit 7 is a Justicelink printout indicating the offender’s bail. He was required to report daily, the subject of a residential condition and a non-association condition. It would seem that for a time he was also subjected to effectively home detention where he was required to remain at his home save for during the hours of 12 noon and 2pm. It is unclear from the evidence as to how long that condition was in force.

Submissions-Crown

52. Written submissions for the Crown were MFI 2.

53. The Crown referred to the remarks of Johnson J in Tran v R [2018] NSWCCA 220 at [79]:

It may be seen from the Second Reading speech that the mischief to which the 2006 legislation was directed, including the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities.

54. The legislation also reflected increased penalties and lower thresholds for numbers of plants given the higher yields and fast growth which can be obtained by indoor cultivation.

55. It was submitted that there were at least two important factors relevant to the sentencing exercise in cases of this nature. Namely, the scale and sophistication of the cultivation and the role of the offender.

56. In respect of the two principal charges for sentence (sequences 14 and 15) the Crown submitted that the objective seriousness fell at the mid-range. The factors pointed to by the Crown in support of that submission, include the following:

1. the number of plants:

1. at Rosebery a commercial quantity of 56 plants;

2. at Randwick a commercial quantity of 67 plants;

2. the cultivation system was sophisticated having regard to the following:

1. irrigation piping was fitted throughout running to individual plants;

2. there were heat lamps and ventilation systems;

3. there was an enhanced lighting;

4. netting across the plants for support;

5. the electricity mains had been bypassed; and

3. the offender’s role included the following:

1. renting the premises;

2. assisting in the setup of the cultivation system at Maroubra;

3. checking on the crop at Chifley; and

4. engaging in a joint criminal enterprise with co-offenders to cultivate the cannabis.

57. In oral addresses, the Crown varied the submission in relation objective seriousness from mid-range to low range in relation to the principal charges (T 11.30). The reason for the change was that the original submission was at odds with the submission in respect of the co-offender whose offending was more serious yet assessed as being at the low range.

58. It was further submitted that the objective seriousness for sequence 11 (on a Form 1) was above the low range having regard to the quantity of plants (47). In relation to sequences 10 and 13 (also on a Form 1), it was submitted that the objective seriousness of the offending fell at the low range.

59. The Crown conceded that there were no aggravating factors.

60. As for mitigating factors, the Crown conceded that there was no record of previous convictions, the offender was a person of good character and the guilty entitled him to a reduction in sentence of 25% reflecting the utility of the plea.

61. The Crown accepted that the offender’s prospects for rehabilitation were good and that he was above a low risk of reoffending.

62. Further, the Crown accepted the offender’s mental state existed at the time of the offending and that the court could find that the principles in De La Rosa apply so as to reduce the moral culpability, the need for specific deterrence and, to some extent, denunciation.

63. Again, in oral addresses, the Crown changed its position and put in dispute the application of the De La Rosa principles. In oral addresses (T 27.5) it was submitted for the Crown that the highest the psychologist’s opinion goes is to suggest that, as a result of abnormal anxiety, he is unable to make decisions or makes them in a hasty fashion. It was put that this falls short of what is required, even on the balance of probabilities. Oral submissions do not do justice to the opinion of the psychologist and his opinion was not challenged. I accept the opinion and prefer the Crown’s original submission that there is a sufficient nexus between his psychiatric conditions and the offending to warrant a moderation in sentence.

64. The Crown also accepted that there is some reduction in moral culpability by reason of the challenging, if not deprived, upbringing of the offender.

65. Notwithstanding an acceptance of the offender’s psychiatric conditions, the Crown disputed that this would result in greater hardship in custody as the offender would have access to treatment and the like through Justice Health.

66. The Crown further conceded special circumstances and identified denunciation, general deterrence and protection of the community as the prominent purposes for sentence.

67. It was submitted that the only appropriate sentence is one of full-time imprisonment.

68. In terms of parity, the Crown submitted that there was no parity between the offender and those related offenders already sentenced in the Local Court (Mr Cuskic and Mr Boskovic). It was submitted that their offending was far less serious than that of the current offender.

69. In relation to Mr Jolic, the Crown identified a distinction in the roles each played in relation to the crops at Rosebery and Randwick. Mr Jolic it was said played a greater role in the cultivation, reflecting the charges for which he was sentenced. Against that, it was submitted that the present offender is to be sentenced in relation to four different residential premises demonstrating a higher degree of knowledge and involvement than that of Mr Jolic. It was the Crown’s position that the charges against Mr Jolic which were more serious.

70. The Crown prepared a schedule of all offenders, going to the question of parity. It was MFI 1. A copy is annexed to these remarks.

Submissions-Offender

71. I was greatly assisted by both written (MFI 3) and oral submissions from Mr Lloyd KC, for the offender.

72. It was submitted that in determining objective seriousness, the role of the offender was more important than the quantity of drugs. Further, it was submitted the offender’s involvement was at a lower level given his role was “limited to allowing others to cultivate plants inside the premises he had earlier leased”. Further it was submitted that the offender was connected with four of the nine premises involved in the cultivation of cannabis and was only observed at any premises on just three occasions. There was no evidence that the offender gave any directions to any co-offender nor that he was involved in the sale of cannabis.

73. Any dispute in respect of objective seriousness was resolved between the parties with the Crown accepting the submission for the offender that it was low level. I will make a specific finding about that matter below.

74. Mr Lloyd submitted that there were no aggravating factors beyond those which form or are inherent characteristics of the charged offences. I accept that submission.

75. The offender relied upon a number of statutory mitigating factors under section 21A(3) of the Crimes (Sentencing Procedure) Act (CSP Act). They were absence of prior convictions, prior good character, unlikely to reoffend, good prospects of rehabilitation, remorse, age and ill-health and the plea of guilty.

76. In respect of the guilty plea, submissions were made in respect of the decision in Doyle v R [2022] NSWCCA 81 at [16] – [20], per Bell CJ. It was submitted that in addition to the 25% discount arising under section 25D(2) CSP Act the court is entitled to take into account a further undisclosed discount for contrition, remorse and willingness to facilitate the course of justice. At [16], the Chief Justice stated:

Following the introduction of s 25D, the utilitarian value of any guilty plea is quantified by that section in respect of state offences. If an offender also shows remorse and/or has manifested a willingness to facilitate the administration of justice, they are considerations to be taken into account quite separately from the utilitarian value of an early guilty plea.

77. And at [17]:

The Sentencing Act now explicitly differentiates between the utilitarian benefit of an early guilty plea (in s 25D) and the power conferred by s 22A “to reduce penalties for facilitating the administration of justice”. An offender’s remorse is specifically referred to as a mitigating factor in s 21A(3)(i).

78. In my opinion, this offender’s sentence ought to be discounted as, by his guilty plea, he has demonstrated remorse itself a mitigating factor and has also facilitated the administration of justice. Such additional discount whilst not specified will be factored into the determination of sentence.

79. Submissions were made about the offender’s motive. I note the Crown’s firm submission that the motive was one of financial gain. That must be established beyond reasonable doubt. Whilst it was possible if not probable that this was the offender’s motivation, particularly given his dire financial circumstances, the evidence is insufficient to establish that matter to the requisite standard. It was submitted for the offender that his motive was a misguided loyalty to friends. I accept that was probably the case.

80. I accept the submission that the offender has engaged positively in rehabilitation during a period of delay, awaiting sentence and that this moderates the significance of general deterrence as a purpose of sentencing (PH v R [2009] NSWCCA 161 at [32]).

81. Submissions were advanced on behalf of the offender as to what might broadly be referred to as “Bugmy” considerations (Bugmy v The Queen [2013] HCA 37). It is not disputed that the offender had a deprived upbringing. It follows that such a background may leave a mark on a person throughout their life and compromise the person’s capacity to mature and learn from experience. It is also commonly the case, as here, that such circumstances result in psychiatric conditions which are relevant in determining the moral culpability of the offender. These considerations also impact upon the role of general and specific deterrence in the sentencing exercise.

82. The offender spent about 6 ½ months in custody during Covid. The impact of Covid on the correctional facilities of this State are well known. It resulted in extensive lockdowns, reduction in programs and a drop in the availability of recreational activities. Plainly this offender’s time in custody was made more onerous by reason of those circumstances.

83. In addition, I accept the submission and find that this offender’s time in custody was made more onerous by reason of the psychiatric conditions from which he suffers.

84. A submission was advanced that hardship was caused to the offender’s wife as a consequence of his time spent in custody. Whilst this needs to reach the level of being “exceptional” in order to mitigate the sentence, it was put that it is still a relevant consideration to be taken into account in the offender’s general subjective mix. I accept that submission.

Aggravating factors

85. I find that none of the statutory aggravating factors under section 21A(2) of the CSP Act arise in this instance.

Mitigating factors

86. I find the following mitigating factors are present:

1. the offender has no history of prior convictions in this country or in Serbia;

2. the offender is a person the prior good character;

3. the offender is unlikely to reoffend;

4. the offender has good prospects of rehabilitation and has demonstrated the same through steps taken to date;

5. I accept that the offender has demonstrated remorse in that he has accepted responsibility for his conduct and acknowledged the negative impact which offending of this type has on the community;

6. the offender is now 60 years of age and suffers from a number of conditions. In my opinion, coupled with his deprived upbringing, these are matters which mitigate against his sentence (section 21A(3)(j)); and

7. the pleas of guilty by the offender entitling him to the statutory discount and a further unspecified discount for his contrition, remorse and willingness to facilitate the course of justice.

Objective seriousness

87. I find that all of the offending falls at the low range of objective seriousness. I reach that determination based upon the concessions made by the Crown but also having regard to the number of plants involved and the offender’s role.

88. I accept the Crown submissions that the offender’s role was somewhat greater than that characterised by counsel for the offender. Not only did he facilitate the lease of a number of the properties, but he also visited the premises, arranged for the procuring of plumbing items and other devices important and integral to the cultivation process.

Formulation of Sentence

Section 5 finding

89. I find that no sentence other than one of imprisonment is appropriate in the circumstances.

Purposes for sentence

90. I find that the need for personal deterrence, general deterrence and denunciation is moderated by the reduction in the offender’s moral culpability by reason of his deprived upbringing and the link between his offending and a number of psychiatric conditions.

91. The sentence must, however, be adequate for the offending, reflecting the overall criminality of the offender’s conduct. There remains some need for general deterrence and the protection of the community.

Special circumstances

92. I find special circumstances on the bases that this has been the offender’s first time in custody, the fact that his time in custody was more onerous by reason of Covid and his psychiatric conditions and the need for a greater than usual time on parole to continue rehabilitation and implement the treatment plan recommended by the psychologist.

Parity

93. The subjective cases of all co-offenders are sufficiently similar to not enliven considerations of parity on that basis alone. Attached to these remarks is a table of offenders. Leaving to one side the offenders who were dealt with in the Local Court, I consider that the index offender falls somewhere between Mr Vijatovic and Mr Jolic in terms of the seriousness of his offending. The former is to be sentenced by me this week and I have had regard to that sentence. The latter was sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months, to be served in a custodial setting.

Aggregate sentence

94. I intend to impose an aggregate sentence pursuant to section 53A of the CSP Act.

Indicative terms

95. After a discount of 25% for the guilty pleas and taking into account the three charges on a Form 1 attaching to sequence 15, I provide the following indicative terms which I would have imposed were I to sentence the offender in respect of the principal charges:

1. sequence 14 knowingly take part in cultivation of prohibited plants by enhanced indoor means (56 cannabis plants), I would have imposed a sentence of 15 months;

2. sequence 15 knowingly take part in cultivation a prohibited plants by enhanced indoor means (67 cannabis plants), I would have imposed a sentence of 18 months.

The aggregate sentence

96. Allowing for the application of principles of totality and permitting some accumulation, I intend to impose a sentence of 24 months and will take into account by way of credit the period of about 6 ½ months spent in custody and the period spent on bail in very restricted circumstances so as to reduce the sentence to one 14 months imprisonment. Expressed differently, I would backdate any custodial sentence by a period of 10 months representing the time in custody and the time the offender was subjected to very onerous bail conditions.

Consideration of a direction that the term of imprisonment be served by ICO

97. As the sentence is for 3 years or less I must consider how the term of imprisonment is to be served. I acknowledge that in considering an Intensive Corrections Order, community safety is of paramount importance. I do not consider that this offender poses any threat to community safety.

98. Next, it is necessary to consider whether or not serving the sentence by way of full-time custody or subject to an Intensive Corrections Order will best address any risk of reoffending. In my opinion, an Intensive Corrections Order will reduce and mitigate whatever low risk of reoffending remains as it will permit the offender to undergo the treatment regime recommended by the psychologist.

99. I have also had regard to the purposes for sentencing set out in section 3A of the CSP Act.

100. I intend to direct that the sentence be served by way of an Intensive Corrections Order.

Conviction

101. You are convicted.

Sentence

102. You are sentenced to a term of imprisonment. I direct that it be served by way of intensive corrections order for a period of 14 months commencing today 26 September 2022 and ending 25 November 2023.

103. You are subject to the standard conditions as follows:

1. you must not commit any offence; and

2. you must submit to supervision by a Community Corrections officer.

104. I impose the following additional conditions, namely:

1. 100 hours of community service work across the duration of this order;

2. rehabilitation or treatment as recommended in the report of Dr Protulipac;

3. that within 7 days the offender is to, by telephone, contact Leichhardt Community Corrections and notify them of this order. When you attend the Community Corrections Office you must provide them with a copy of the report by Dr Protulipac.

Additional Orders

105. On 30 June 2022, I made the following additional orders:

1. pursuant to section 18(1) of the Confiscation of Proceeds of Crime Act 1989 cash in the approximate sum of $6,943 found on the person of the offender on 17 February 2021 be forfeited to the state; and

2. pursuant to section 19(3)(a) the property forfeited herein be disposed of forthwith.

Charges withdrawn

106. Sequences 5, 7 and 9 are withdrawn and dismissed.

Explanation and caution

107. You must abide by the conditions of the intensive corrections order for the duration of the order, that is 1 year and 2 months. If you fail to comply with any one of the conditions, then you may be ordered to serve a period of full-time custody. Do you understand?

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Amendments

26 September 2022 - Hyperlink fixed.

05 October 2022 - Cover page updated

Decision last updated: 05 October 2022