R v Jolic

[2022] NSWDC 284

District Court

New South Wales

Medium Neutral Citation:

R v Jolic [2022] NSWDC 284

Hearing dates:

30 June 2022

Date of orders:

22 July 2022

Decision date:

22 July 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

See [51]

Catchwords:

Crime – sentencing – two counts of cultivate prohibited plants by enhanced indoor means – Form 1 charge of deal with proceeds of crime.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Regina
Miroslav Jolic

Representation:

Solicitors:
Ms C Moore (Crown)
Mr M Betts (Legal Aid)

File Number(s):

2021/46016

Publication restriction:

Nil.

Judgment

1. Miroslav Jolic (the offender) has pleaded guilty to 2 counts of cultivating prohibited plants (cannabis) by enhanced indoor means and admitted his guilt in relation to a charge of deal with the proceeds of crime. They are, respectively, sequences 10, 11 and 5 of charge number ending 504.

2. A backup offence of knowingly participate in a criminal group (sequence 4) is withdrawn and dismissed.

Guidepost

3. For the cultivate charges, the maximum penalty is 15 years imprisonment and/or a fine of 3500 penalty units. For the deal with proceeds of crime charge the maximum penalty is three years imprisonment. These maximum penalties reflect the seriousness with which the community, through Parliament, views this offending and are guideposts for sentencing judges.

The Form 1

4. By signing the certificate to the Form 1, I confirm that I have taken that charge into account in sentencing for the principal charge to which it attaches. The charge on the Form 1 is to be taken into account 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 two 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: Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65].

Commencement date

5. The offender was committed for sentence from the Central Local Court on 16 December 2021. Due to his immigration status the offender is not entitled to reside in New South Wales and has, therefore, been in custody since 17 February 2021, a period of 1 year, 5 months and 5 days up to today’s date. His sentence will be backdated to that date.

Parity

6. There are a number of “associated offenders”, however, due to the nature of the offences and other distinguishing factors, parity does not directly arise. This will be discussed further below.

Agreed Facts

7. From mid-2020, New South Wales Police ran a strike force into cannabis growing activities in the eastern suburbs of Sydney. This offender was identified as having a connection with two properties under investigation between August 2020 and February 2021.

8. The following facts relate to sequence 10 concerning the cultivation of a commercial quantity of cannabis plants, namely 56 plants at property in Rosebery.

9. The offender or his vehicle were observed at the premises on the following dates:

26 August 2020	the offender and related offender Boris Cuskic were observed to arrive in this offender’s vehicle registration ending 4DE. They were inside the premises for one hour and 15 minutes;
28 September 2020	the same vehicle was seen at the premises at 11:45 AM. The offender was seen leaving the premises at 1:20 PM;
13 October 2020	the offender was observed removing piping and carbon filters from the premises;
11 December 2020	at 3:29 AM the offender's vehicle was seen parked in the carport. There was a light on inside the premises;
16 December 2020	at 8:00 AM the offender's vehicle was seen parked in the driveway at the premises. At 10:40 AM the offender was observed leaving the premises;
23 December 2020	the offender and a related offender Dragomir Friese attended Bunnings East Gardens to exchange a pool pump;
29 December 2020	at 9:53 AM the offender’s vehicle was seen parked in the carport. At 10:48 AM the offender was observed coming out of the premises and entering the carport before returning back inside the premises;
27 January 2020	at 9:15 AM related offender Nenad Veljovic attended and entered the premises. At 10:50 AM both the offender and Veljovic were observed leaving the premises;
17 February 2021	police search the premises. The offender was found in the premises. The police also discovered 34 cannabis plants more than 1 m in height in bedroom three and 22 cannabis seedlings growing in trays in bedroom two.

10. The two rooms were devoted to the hydroponic cultivation of cannabis which was growing in trays and individual pots under high-intensity heat lamps and irrigated by pipes laid throughout the rooms. Ducting to filter the rooms had been installed. Bags of growing medium were also located. The offender appeared to have been living at the premises.

11. The following facts relate to sequence 5 on the Form 1 being deal with the proceeds of crime. Cash in the sum of $550.00 was located inside the offender’s wallet which was found in the lounge room. This was suspected to be the proceeds of crime, namely money he had been paid to grow the crop or acquired from the sale of cannabis.

12. The offender’s fingerprints were located on the inside of a reflective shade removed from the house. His DNA was also located on a headlamp found in bedroom two. A search of the offender’s vehicle located receipts for irrigation equipment. The offender was arrested.

13. Investigations revealed that the Rosebery premises were leased by Friese on 2 March 2020.

14. The following facts relate to sequence 11 being cultivating a commercial quantity of cannabis by enhanced indoor means at a property in Randwick. The following observations were made of the offender at that address:

7 November 2020	at 2:50 PM the offender was seen arriving at the address and entering the premises through the garage. Friese arrived soon after and together they unloaded a number of wooden trestles from the utility driven by Friese. They were carried through the rear entrance into the premises. Both offenders left at 2:55 PM;
8 November 2020	at 9:09 AM the offender arrived at the address and entered the premises through the rear entrance. He remained in the premises until 12:18 PM;
17 February 2020	premises searched by police.

15. Police located 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. 67 cannabis plants were found all in pots. 18 plants were found to be over 1 m in height and 51 were seedlings.

16. The offender’s fingerprints were found on the backing of a light positioned over the crop and on a power board in room one. His DNA was located on a pair of scissors found in room 3.

17. A photograph showing plants over 1 m in height in room three appears in the statement of agreed facts. A second photograph showing seedlings in room one also appears on page 4 of the agreed facts. Investigations revealed that the premises were leased by Friese on 7 January 2015.

18. The offender was taken to Maroubra police station where he agreed to participate in an interview. He told the police he was living at the Rosebery address and that his uncle (Friese) had given him the keys. He said that he grew the cannabis crop found there by feeding the plants food and that he had begun growing that crop “3 to 4 months ago” and that the plants would be ready in 2 to 3 weeks. He also told the police that he had grown the crop of cannabis at the Randwick address. He said that he been given the keys to those premises by his uncle to look after the crop because the uncle was often away.

19. The offender told police that he came to Australia a year before and had been paying his uncle to live at the Rosebery premises. He was in Australia on a visitor’s visa. Police found the offender to be very cooperative and candid.

20. Those are the agreed facts.

Subjective case

Prior convictions

21. Next in Exhibit A is the offender’s criminal history. He has no convictions in New South Wales or in Serbia.

Sentencing Assessment Report

22. A sentencing assessment report dated 28 June 2022 is Exhibit B. The offender arrived in Australia on 16 November 2019 on a three-month visitor Visa. It had expired at the time of the offending.

23. In Serbia, the offender was employed as a manager of a transportation and logistics company. He held that employment for some 10 years. The offender accepted full responsibility for his actions however apportioned some blame to the circumstances in which he found himself being unable to return to Serbia following the outbreak of the Covid-19 pandemic.

24. He soon ran out of money and was given the opportunity to grow cannabis by family members. His sole motivation was financial gain, a common feature in offending of this nature. He has completed the Positive Lifestyle Program whilst in custody to a high standard. He was assessed as being at a medium/low risk of reoffending.

Subjective evidence

25. Exhibit 1 is a letter from the offender to the court dated 19 May 2022. Following the death of his father when he was 13 years of age, the offender took responsibility for his family. He continued going to school and also to work on the farm. He commenced studying agriculture at University until bombing of Serbia commenced, at which time he returned home to be with his family. He later commenced work as a sales manager.

26. From his first marriage he has two sons aged fourteen and nine. His current relationship is with a lady who is a police officer in Serbia. He explained that he came to Australia in 2019 as a visitor without plans to stay or to engage in criminal activity. Covid-19 meant that he could not leave Sydney and he was unable to work.

27. He described the hardship in prison caused by Covid-19. He expressed what I consider to be genuine remorse for his offending.

28. Exhibit 2 are documents produced by corrective services which, amongst other things, refer to the offender’s employment whilst in custody. The author of the documents spoke highly of the offender’s performance of his work duties.

29. Exhibit 3 is a character reference by the offender's partner, Jelina. As mentioned, she is a police officer with 20 years of service. She described the offender as a good man, hard-working and honest.

30. Exhibit 4 is a character reference by Milan Popratin. He referred to the offender as a very diligent and hard-working man.

31. Exhibit 5 is another character reference from the offender’s aunt. She referred to him as very capable and honourable.

32. Exhibit 6 is a certificate of completion of the Positive Lifestyle Program for Individuals dated 15 July 2021.

Objective seriousness

33. I am assisted by written submissions on behalf the Crown and the offender, marked MFI 1 and 2, respectively.

34. It was submitted on behalf the offender that I would consider the cultivation offences as being a single course of conduct as it occurred over the same period of time, albeit at 2 different addresses. In terms of objective seriousness, it was submitted that at the time when the plants were seized, they had not reached maturity and that each offence would fall towards the low range. Also relevant was the number of plants, namely 56, for sequence 10 and 67 for sequence 11 which is to be viewed in the context of the range for commercial quantity being between 50 and 200 plants.

35. Similarly, it was submitted for the Crown that the objective seriousness of both cultivation offences fell at the low range given the level of sophistication and the number of plants relative to the commercial quantity. I accept this joint submission and find the objective seriousness falls well below mid-range having regard to those factors which have been identified, namely the quantity of plants and the fact that the level of sophistication did not exceed that which is to be expected for offending of this type.

Mitigating factors

36. I acknowledge the guilty plea as a mitigating factor and will discount the sentence by 25% on account of the utility of the plea and for the assistance to the administration of justice.

37. I accept the submission on behalf the offender that he has demonstrated remorse, also a mitigating factor.

38. It is apparent from the absence of criminal convictions and also the numerous character references that the offender is otherwise a person of good character and is entitled to the leniency which flows from that finding as a mitigating factor.

39. I also accept that the period of incarceration has been more onerous than would ordinarily be the case given the impact of the Covid-19 pandemic. The offender has spent a considerable number of days in lockdown with only limited opportunities to exercise.

40. At page 3 of MFI 2, Mr Betts for the offender extracted a number of favourable remarks made by corrective’s offices concerning the offender’s work whilst in custody. I have already observed that those remarks are favourable and reflect positively upon the character of the offender and his remorse.

41. I also find that the offender has good prospects of rehabilitation and is unlikely to reoffend.

Formulation of the sentence

Purposes for sentence

42. I am mindful of the purposes for sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act. The sentence which I impose will be one which reflects the criminality of the offending and strives to achieve general deterrence, a prevalent sentencing purpose for offending of this type. The conduct of the offender must also be denounced. In my view, the need for specific deterrence is moderated on account of the risk of reoffending which I consider to be low. I also consider his prospects of rehabilitation to be excellent. I acknowledge the harm that drugs cause in the community and the sentence will also recognise that effect.

Section 5 finding

43. Given the seriousness of the offending, I find that no penalty other than one of full-time imprisonment is appropriate.

Special circumstances

44. I find special circumstances on the ground that this is the first time in custody for the offender and that he ought to be afforded a longer period on parole to reintegrate into his community in Serbia.

Form 1

45. The charge on the Form 1 attaches to sequence 11. Given the comparatively small amount of money discovered in the offender's wallet I consider that it warrants a minor increase in the sentence for the charge to which it relates.

Parity

46. I have given consideration to the question of parity as it relates to Mirkovic and Boskovic. The former was sentenced on 24 June 2022 for taking part in the cultivation of 90 prohibited plants. That is obviously a less serious charge, notwithstanding the higher number of plants. Mr Mirkovic was sentenced to a Community Corrections Order for 12 months. Mr Boskovic was convicted of knowingly take part in the cultivation of cannabis plants, namely 47 plants. He was sentenced to a Community Corrections Order for 2 years with a community service condition. For a second offence of knowingly take part in the cultivation of 15 cannabis plants he was fined $1500.00.

47. This is obviously less serious offending than that of the present offender. A more serious sentence outcome is justified in the present matter given that the offending is more serious and the charges relate to actual cultivation of a commercial quantity of cannabis.

Aggregate sentence and indicative terms

48. I intend to impose an aggregate sentence. Before doing so, I am required to indicate the sentence I would have imposed in respect of the 2 charges. In respect of sequence 10, and applying a 25% discount, I provide an indicative sentence of 18 months imprisonment. In respect of sequence 11, and applying a 25% discount with the Form 1 charge attaching, I provide an indicative sentence of 22 months imprisonment.

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

49. I intend to impose a sentence of 3 years imprisonment. I am required to give consideration to whether the sentence should be served by way full-time custody or by way of Intensive Corrections Order. As the offender will be deported upon being released from prison, supervision pursuant to an intensive corrections order would not be possible therefore defeating the intention of such an order. In those circumstances, I find that the term of imprisonment is to be served by way of full-time custody.

Conviction

50. Mr Jolic you are convicted of 2 counts of cultivating a commercial quantity of prohibited plants by enhanced indoor means in contravention of section 23 (2) of the Drug Misuse and Trafficking Act 1985.

Sentence

51. In respect of the convictions I impose a Head Sentence of 3 years imprisonment with a Non-Parole Period of 18 months, meaning that:

1. allowing for time served, the Head Sentence commenced 17 February 2021 and expires 16 February 2024; and

2. the Non-Parole Period of 18 months commenced 17 February 2022 and expires 16 August 2022, at which time the Offender will be released on parole.

52. Do you understand the sentence?

53. Do the legal representatives agree with the time calculations?

Orders

54. Lastly, I make the following orders:

1. orders in accordance with paragraphs 1.1 and 2.1 of the Short Minute Consent Orders date 30 June 2022 signed by the parties and by me; and

2. I order that all personal property (mobile phones and personal belonging) of the offender that have been seized be returned to the offender.

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Note: These reasons were read in court and translated from English to Serbian for the Offender on 22.07.22.

Decision last updated: 22 July 2022