R v John Varga

[2009] NSWDC 416

CITATION:	R v John VARGA [2009] NSWDC 416
JUDGMENT DATE:	24 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I impose a sentence of imprisonment of 20 months. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I make an order suspending the execution of the whole of the sentence for the whole of the period on the condition Mr Varga enter into a good behaviour bond for the period of 20 months.
CATCHWORDS:	CRIMINAL LAW - sentence - cultivating enhanced indoor cannabis plants - serious offence - serious gambling problem - sophisticated enterprise - full admissions to police - not a principal in the offence - likelihood of re-offending low
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 s 23(1A), s 33
TEXTS CITED:	R v DB [2001] NSWCCA 320
PARTIES:	Regina John Varga
FILE NUMBER(S):	2009/981
COUNSEL:	Mr Paish (for Mr Varga)
SOLICITORS:	Mr Kiru (NSW Office of the Director of Public Prosecutions)

JUDGMENT

1. John Varga has pleaded guilty to a serious crime. He is an elderly man in his early seventies who has a significant health problem. The question in sentencing him focuses on how I take into account his age and health in fixing an appropriate sentence for the serious crime he has committed.

2. The crime is cultivating enhanced indoor cannabis plants. It is a crime under the Drug Misuse and Trafficking Act 1985. S 23(1A) creates the crime and under s 33 of the same Act, Parliament has fixed a maximum of fifteen years imprisonment for this crime. So it is a very serious offence that Mr Varga has committed.

3. This is what happened. Mr Varga was a man in need. He had what he acknowledges was a serious gambling problem. He ran up a gambling debt on what he described as horses and dogs of something like $7,000. He was approached by a man known as Paul. Paul told him that if he took over the lease of a house and lived there for six months then his gambling debt would be cancelled.

4. Mr Varga agreed to this arrangement. The arrangement was not as straight-forward as it sounded and Mr Varga agreed not only to take over the lease of the house but to look after the cannabis plants that were concealed in the garage of the house. When police discovered the plants there were some nineteen plants. There was a sophisticated arrangement of lighting to generate the growth of the plants. There were other signs that it was a sophisticated enterprise. In addition to the plants, police found what are described as two drying beds each containing some cannabis head which was drying. In addition to the nineteen plants they found nearly four kilograms of dry cannabis.

5. Police discovered who Mr Varga was and about a month after police discovered the plantation, Mr Varga, who had seen his solicitor Mr Bergagnin, very wisely contacted the police on 11 August 2008 through his solicitor. He and Mr Bergagnin attended Liverpool police station a few days later where Mr Varga was interviewed and made full admissions. He said that he went to the house every day and stayed overnight. He was not required to pay anything towards his accommodation. He looked after the plants and knew that at the end of the period, his $7,000 gambling debt would be cleared.

6. Police estimate the total value of the nineteen plants was around $100,000 and the amount of cannabis head about $40,000. It is obvious from what I have described that this was a sophisticated crime designed to produce handsome profits for the principal organiser of the crime. That description is the basis of one of the submission of Mr Paish who appears for Mr Varga today, namely that his client is not a principal in this offence but was the kind of person often chosen by principals to become involved in these sorts of crimes. Mr Varga was a vulnerable man because of his age and health and particularly because of his gambling debt.

7. The assessment of how serious this crime is needs to be seen not only in the light of the sophistication of the arrangement and the maximum penalty but also of Mr Varga’s limited role as what Mr Paish correctly described as “the night watchman”.

8. I have made some reference to Mr Varga’s health. He has a heart condition. The heart condition was serious enough to require surgery in 2006. He has recovered from the surgery but not without complication and the most recent report dated 6 April 2009 from his cardiologist refers to some complication in recovery described as a leak.

9. A helpful pre-sentence report has been prepared about Mr Varga. It points out that he is now seventy-three and lives with a friend at Bronte. He was born in the country formerly known as Yugoslavia. He had a disrupted childhood as a result of the Second World War. His father was killed by the Nazis in 1943. His mother raised the family of four. Mr Varga came to Australia over fifty years ago. He has been married twice and is amicably separated from his second wife. Apparently one of the problems in the relationship was his gambling habit.

10. He is a trained motor mechanic and has worked all of his life in that area including in the Snowy Mountains Scheme and in the Solomon Islands. He has never had a personal problem with drugs or alcohol but, as I mentioned, he has this gambling problem which has led him into this criminal behaviour. The author of the pre-sentence report notes that Mr Varga “expressed regret for becoming involved in a project of this nature.” It notes that he has not been convicted which is confirmed by his criminal record which is part of exhibit A and records no convictions.

11. The author of the pre-sentence report assessed the likelihood of Mr Varga’s re-offending as low and thought that he was unlikely to require supervision. It assessed him as unsuitable for Community Service Order because of his medical condition and as eligible and suitable for periodic detention. However it also noted that he would be probably unfit to do the work which is normally a part of a Periodic Detention Order but would be able to attend the centre for the period of incarceration.

12. Mr Paish acknowledges that it is a serious offence and must attract a sentence of imprisonment. This is a realistic and correct acknowledgment. This is a serious crime carrying a significant maximum penalty. It is a crime which Mr Varga participated in and which would have resulted in the distribution within the community of a significant amount of prohibited drugs.

13. Mr Varga became involved in that crime in order to relieve himself of the financial discomfort of his own gambling debt. To my mind this is a crime which must be punished by a sentence of imprisonment but Mr Paish argues that the sentence should be either suspended or be made the subject of a Periodic Detention Order. He says that his client’s limited role in the cultivation of the plants together with his age and health and prior good character point towards the sentence being suspended or served by way of periodic detention.

14. He argues that the more desirable option is a suspended sentence because of the circumstance that as a result of his health Mr Varga would not be able to undertake the work which normally accompanies a Periodic Detention Order. This is referred to in the pre-sentence report. The consequence of that, Mr Paish argues, is that Mr Varga would not get the benefit from the concession that other offenders would receive during a Periodic Detention Order that after they have worked for a certain period of the term of the order, they would be relieved from attending. In Mr Varga’s case he would have to attend for the full period of the order because he cannot undertake the work which accompanies the order.

15. Mr Kiru who appears for the prosecution acknowledges that neither a suspended sentence nor a Periodic Detention Order would be erroneous. They are both, he says, within the range. He draws my attention to a decision of the Court of Criminal Appeal in R v DB [2001] NSWCCA 320 where an elderly man with a heard condition had his sentence of five years reduced to three years. However I do notice that the offence in that case was far more serious including a sexual assault of the offender’s own grandson when the child was seven years old. That carried a maximum of twenty-five years imprisonment.

16. I think Mr Paish has succeeded in his submission. I think for the reasons he advances the sentence of imprisonment should not be served full-time nor should it be served by way of periodic detention. I should add that I regard an appropriate sentence as one which would be within the range which would attract a suspension order. Taking into account where the offence lies in the range of seriousness and Mr Varga’s age, I regard a penalty of two and a half years as an appropriate sentence. Because he has pleaded guilty at what Mr Kiru fairly acknowledges is the earliest available opportunity, I propose to reduce that sentence by twenty five per cent to about twenty-two and a half months imprisonment. In addition I take into account his good character and the likelihood that he will not re-offend, I regard an appropriate sentence as being one of twenty months imprisonment which I will suspend.

HIS HONOUR: Would you stand up Mr Varga I am going to sentence you now.

17. For the crime of cultivating enhanced indoor cannabis plant I convict you of that offence and I impose a sentence of imprisonment of twenty months. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I make an order suspending the execution of the whole of the sentence for the whole of the period of twenty months and I direct that you be released from custody on condition that you enter into a good behaviour bond for the period of twenty months.
The conditions of the good behaviour bond are:
1 That you be of good behaviour and
2 That you notify the registrar of this court of any change in your residential address
3 That you attend this court if called upon to do so.

HIS HONOUR: Have a seat Mr Varga. Now anything in the remarks on sentence which need correction, any factual errors?
KIRU: In relation to the form 1, your Honour should mention the form 1 was taken--

HIS HONOUR: You’re quite right thank you.

KIRU: And also destruction order. Your Honour I’m seeking a destruction order for the drugs.

HIS HONOUR: That’s section 20 - it’s under the Drug Misuse yes okay thank you. Anything else?

KIRU: No.

HIS HONOUR: And what about the form of the order that’s the conditions of - I’m not going to give him supervision. They don’t recommend it.

KIRU: No your Honour not necessary.

HIS HONOUR: Nothing okay. Mr Paish I do need to take into account and in fact sign the form 1. Destruction of drugs.

PAISH: Yes your Honour and indeed I implicitly understood your Honour to be taking that form 1 matter into account when your Honour assessed the starting sentence of two and a half years.

HIS HONOUR: Yes, you’re right.

18. I add that in fixing the range of two and half years as the initial sentence I was also taking into account the offence of possessing a prohibited drug which is on the list of additional charges filed with the papers under s 32 of the Crimes (Sentencing Procedure) Act 1999 which I have signed and dated. I order that the drugs be destroyed and Mr Paish any other conditions of the bond - I don’t think so.

PAISH: I notice in the last case it was specifically asked that if there be a call-up it come before your Honour but it’s a matter for your Honour.

HIS HONOUR: It is, they send me a form. I usually call offenders up before me.

PAISH: Then I don’t think that needs to go in any order.

HIS HONOUR: No it doesn’t, no. All right. Mr Varga I’ve got to explain this to you. You’ve got a prison sentence. The prison sentence is twenty months. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: All right. So I’ve sentenced you to gaol for twenty months but I’ve suspended that so it doesn’t operate but there is a condition and that condition is that for twenty months from today you have to behave yourself, no more trouble.

OFFENDER: Yeah ..(not transcribable)..

HIS HONOUR: Good. Now if you change where you live, your address.

OFFENDER: I didn’t change yet but I--

HIS HONOUR: You’re going to?

OFFENDER: Intend to.

HIS HONOUR: All right. When you do that--

OFFENDER: Yeah.

HIS HONOUR: --you’ve got to write to this court and tell the Registrar what your new address is. Do you understand that?

OFFENDER: Yeah, yes.

HIS HONOUR: All right. Mr Bergagnin will tell you who to write to. Now a suspended sentence, you also have to behave yourself, no more trouble, you understand that?

OFFENDER: Yes I understand--

HIS HONOUR: All right. If you do get into trouble again you’ll come back before - I know you won’t but I’ve got to tell you this - if you do you come back before me again and it’s very hard for me not to send you to gaol.

OFFENDER: Yeah I--

HIS HONOUR: This is not just like an ordinary good behaviour bond. This is one where I’ve imposed a gaol sentence and if you breach the bond, if you misbehave yourself, come back to me, the law says that I pretty well have to send you to gaol.

OFFENDER: Yep.

HIS HONOUR: Do you understand that?

OFFENDER: And ..(not transcribable)..

HIS HONOUR: Very serious offence which you’ve committed, very serious but I’ve listened to what Mr Paish said and I’ve decided that a suspended sentence is the right sentence in this case. I’m confident you won’t offend again. You’ve lived in Australia for 50 years and had a very good record of no convictions and that now - you’re claiming the benefit of that and I’m giving you the benefit of your good behaviour for the last 50 years as a citizen of this country. Do you understand?

OFFENDER: Yeah I do.

HIS HONOUR: All right.

OFFENDER: Thank you very much.

HIS HONOUR: Okay anything else gentlemen.

PAISH: No your Honour.

HIS HONOUR: No. Mr Kiru?

KIRU: No your Honour.

HIS HONOUR: Thank you both for your assistance.

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