R v Krizaic
[2021] ACTSC 147
•22 July 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Krizaic |
Citation: | [2021] ACTSC 147 |
Hearing Date: | 22 July 2021 |
DecisionDate: | 22 July 2021 |
Before: | Murrell CJ |
Decision: | Sentenced to six months’ imprisonment, fully suspended on a 12-month good behaviour order |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – cultivate trafficable quantity of cannabis – where offender provided premises for operation |
Legislation Cited: | Criminal Code 2002 (ACT) s 616(5)(b) Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 90 |
Cases Cited: | R v BG [2017] ACTSC 382 R v Goatcher [2016] ACTSC 114 R v Hasani [2015] ACTSC 161 |
Parties: | The Queen ( Crown) Edmund Scott Krizaic ( Offender) |
Representation: | Counsel C Daly ( Crown) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi ( Offender) | |
File Number(s): | SCC 93 of 2021 |
MURRELL CJ
Introduction
The offender pleaded guilty to one count of cultivating a trafficable quantity of cannabis, contrary to s 616(5)(b) of the Criminal Code 2002 (ACT) (Criminal Code).
The maximum penalty is 10 years’ imprisonment, a fine of $160,000, or both.
Following discussions, the offender entered a plea of guilty on the fifth mention in the Magistrates Court. The plea has significant utilitarian value, although the Crown case was strong.
Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), I will allow a discount of 25 per cent of the sentence that I would otherwise have imposed.
Facts
On 8 July 2020, the Australian Federal Police were granted a search warrant to search the offender’s premises in Higgins.
On 10 July 2020, police executed the search warrant.
While doing so, they discovered that someone other than the offender was the sole occupant of section of the premises.
The residence had been split into three distinct sections.
Section one
The first section was on the ground floor and was being used by the occupant. It was self-contained. The other sections of the residence and the backyard were not accessible from this section.
Section two
The second section of the house was on the first floor. It consisted of a living area, three bedrooms, kitchen, family room, bathroom, and laundry. It was accessible via a door to the front porch or through the laundry, which lead to the backyard.
This section of the house was devoid of furnishings and appeared to have been recently vacated.
Within a kitchen drawer, police located:
(a)A recent ACT Revenue Office rates instalment notice that had been issued to the offender in relation to the property.
(b)A collection of 40th birthday cards that were addressed to the offender.
The offender’s 40th birthday occurred about six weeks prior to the date of the offence.
Section 3
The third section of the residence was also on the first floor. It consisted of two main rooms, a kitchenette, a small laundry, and a small bathroom. The only means of access to this section was via a rear door leading to the backyard by way of an external staircase.
Otherwise, access to the backyard was through an electronically operated steel gate at the side of the residence, a gate on the southern boundary that was secured with a padlock, or through the laundry in section two.
A door to the front porch had been screwed to the door frame and a wooden batten had been affixed across the inside of the door.
In this section of the premises, police located another birthday card that appeared to be addressed to the offender.
This section had been converted to enable the hydroponic cultivation of cannabis.
Inside the two main rooms, police located 32 potted cannabis plants growing under hydroponic grow lamps. Electricity to the grow lamps was regulated by electrical ballasts. Windows had been covered to prevent light from entering or shining from the room. A ventilation system had been installed.
Police observed other items relating to the hydroponic cultivation operation, including:
(a)seedling propagation tubs and a propagation tent;
(b)large domestic wheelie bins that had been converted to facilitate water and nutrient irrigation to the plants;
(c)latex gloves;
(d)a respirator mask;
(e)cultivation and general-purpose tools; and
(f)a calendar that contained notations tracking the cultivation of the cannabis plants.
An electricity bypass was situated above the kitchenette. It served to divert electricity from the mains supply line to the cannabis cultivation operation, avoiding the electricity meter (which would have served to avoid detection based on excessive use of electricity).
The offender did not have permission or authority to cultivate controlled plants, including cannabis, at the residence.
It was agreed between the parties that:
(a)the offender committed the offence believing that the cultivator (that is, the person who actually cultivated the crop) intended to sell any of the plants or their products; and
(b)the offender expected that the cultivator would pay some of the profit to him.
The offender told the author of the pre-sentence report that he had met an old acquaintance at a party and voluntarily agreed that his house could be used to grow cannabis. His role was to provide the premises in exchange for payment. He described the decision as “stupid”.
Objective Seriousness
The following matters are relevant to an assessment of the objective seriousness of the offence:
(a)the role of the offender;
(b)the offender’s motivation;
(c)the number of plants being cultivated;
(d)the sophistication of the operation; and
(e)the duration of the offending.
The offender’s role in the operation was that he provided the premises that were used for the operation, knowing that they would be used for that purpose. He was a facilitator. He had resided at the premises until recently and, through his legal representative, he conceded that the was fully aware of the operation.
The offender’s motivation was to assist a friend and obtain a financial advantage. The latter is the usual motivation for such offences: R v Goatcher [2016] ACTSC 114.
The number of plants being cultivated was not insubstantial, being 32 plants. The trafficable quantity for cannabis is 10 plants. The commercial quantity is 100 plants.
The operation was moderately sophisticated in that it involved hydroponic cultivation, the provision of ventilation to the roof cavity, window coverings and the bypassing of the electricity meter.
The offence is particularised as relating to one day, 11 July 2020. However, the cultivation itself could not be considered to have occurred in a manner that was isolated to one day. In other words, I am sentencing the offender in relation to what was found on 11 July 2020 but, to have resulted in plants of the size that were located on that day, the operation must have been ongoing for a significant period.
Subjective features
The offender is 41 years old.
He has no relevant prior criminal history.
He was raised in a supportive family. He maintains good relationships with his parents and three siblings.
The offender has been in a relationship for six years. The couple has two children, aged two and four years. The offending has strained the relationship, and the offender has ceased living with his partner. He resides alone at the Higgins premises
After completing Year 12, the offender worked in the building industry. He obtained a builder’s licence and has been self-employed for the past 10 years. He works five days a week but has occasional difficulty meeting financial commitments.
The offender has a strong interest in dirt track motorbike competitions and has competed at many events. He has other sporting interests.
As a young man, the offender was a heavy user of alcohol. Currently, his use is moderate.
The offender experiences chronic back pain, which he manages through fitness and massage.
As a result of his current circumstances, the offender has experienced a decline in mental health, although he is yet to make an appointment with a mental health specialist. Recently, he commenced counselling to address issues within his relationship.
Character referees described the offence as out of character. They said that the offender was a good family man who doted on his two children. He had a strong work ethic. They described him as a reliable, honest, and generous person who was embarrassed and genuinely remorseful for his actions, for which he had accepted full responsibility. One referee said that the offender has a strong sense of social responsibility and was extremely supportive of community groups. Another referee stated that the offender had undertaken unpaid building work, including a significant level of involvement in constructing the Gungahlin BMX track. There was evidence that he had brought in heavy equipment to voluntarily assist a local winemaker to repair flooding damage to his vineyards. He has assisted friends to cope with emotional challenges.
The author of the pre-sentence report assessed the offender as a low risk of general reoffending. The author considered that the offender would not benefit from more than low intervention by ACT Corrective Services, commensurate with the assessed risk, and was suitable for a community service work condition pursuant to s 90 of the Crimes (Sentencing) Act 2005 (ACT). The offender was also assessed as suitable for an intensive correction order.
Other sentencing considerations
The limitations of sentencing statistics are well-known. However, for what it is worth, the ACT Sentencing Database indicates that, of the 22 offenders sentenced for the same offence between July 2012 and November 2020, 9 per cent received a good behaviour order, 41 per cent received a fully suspended sentence, 18 per cent received a partly suspended sentence and 32 per cent received a sentence of full-time imprisonment.
The Crown referred the Court to three somewhat comparable cases.
In R v Hasani [2015] ACTSC 161, the offender had actively cultivated 17 plants in her home over a significant period of time and intended to sell some of the cannabis crop. She was 44 years of age, had no prior convictions and her subjective circumstances were otherwise strong. From a starting point of 12 months’ imprisonment, she was sentenced to 10 months’ imprisonment, fully suspended. At the same time, she was sentenced for other drug matters.
In R v Goatcher [2016] ACTSC 114, the offender had actively cultivated 30 mature cannabis plants and 60 very small plants over a two-month period. He was 37 years old and had no significant criminal history. From a starting point of 12 months’ imprisonment, he was sentenced to nine months’ imprisonment, fully suspended.
In R v BG [2017] ACTSC 382, a lower maximum penalty (three years’ imprisonment) applied to a similar offence. The offender received a suspended sentence of three months’ imprisonment (reduced from four months’ imprisonment).
Unlike the cases to which I have referred, in this case there is no evidence establishing that the offender was actively involved in the cultivation itself although, as stated above, he was an important facilitator who was fully aware of what was occurring.
In sentencing the offender, I am required to take into account the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT). Insofar as they are known and relevant, I have referred to those factors above.
Relevant sentencing purposes include the provision of adequate punishment, general deterrence, accountability, and denunciation.
The offender's legal representatives submitted that a good behaviour order would adequately meet these purposes. The Crown submitted that some sort of penalty of imprisonment was not the only available penalty.
However, in my opinion, the only appropriate sentence is one of imprisonment, albeit not full-time imprisonment. A lesser sentence would fail to reflect the objective seriousness of the offence, the maximum available penalty of 10 years' imprisonment and the relevant sentencing purposes.
Sentence
The starting point for the sentence is eight months' imprisonment, which I discount to six months' imprisonment. The offender is convicted and sentenced to six months' imprisonment. The sentence will be fully suspended on a 12-month good behaviour order which contains the core conditions but no additional conditions.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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