R v Strbac - [2015] NSWDC 268

District Court

New South Wales

Medium Neutral Citation: R v Strbac [2015] NSWDC 268
Hearing dates: 24 July 2015; 31 July 2015; 7 August 2015
Decision date: 07 August 2015
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
Offender referred for assessment as to his suitability for intensive correction in the community under s 69(1) of the Crimes (Sentencing Procedure) Act 1999.

Catchwords: CRIMINAL LAW – Sentence – particular offence – cultivate commercial quantity of a prohibited plant – sophisticated cannabis plantation – cash crop – significant quantity but less serious than other examples of same offence – circumstances of offender – traumatic upbringing – depression following injury – causal connection between addiction and offending – good prospects of rehabilitation – remorse expressed – no prior convictions – plea of guilty at earliest available opportunity – 25% discount – no sentence other than imprisonment appropriate – whether sentence should be two years or less – referral for assessment for intensive correction order – Form 1 for offence of using electricity without authority taken into account
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 69(1)
Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
Electricity Supply Act 1995 (NSW), s 64
Cases Cited: R v Godden [2005] NSWCCA 160
R v Heffernan [2014] NSWDC 302
R v Nguyen [2007] NSWCCA 94
Category: Sentence
Parties: Regina (Crown)
Stevan Strbac (Offender)
Representation:
Counsel:
L C Hutchinson (Offender)
Solicitors:
P Low, Director of Public Prosecutions (NSW) (Crown)
A Faro, Nyman Gibson Miralis (Offender)

File Number(s): 2014/00289830

Judgment

I am sentencing a relatively young man who had a problem with cannabis. He used to take it when he was even younger. He got married and quit the habit but a month after he was married he was in a serious work accident and he spent some time in hospital. As a result of this he commenced the habit again but more intensely. The accident also caused him to lose money so he decided to grow cannabis at the back of his house. The cannabis plantation was found by the police and he was charged with the offence that I am sentencing him for.
The young man’s name is Stevan Strbac. He has been charged with cultivating the commercial quantity of a prohibited plant, namely cannabis. That is an offence against s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. Parliament regards it as a serious offence. It has fixed a maximum of 15 years imprisonment to the offence.
Mr Strbac has asked me to take into account another offece when I am sentencing him. The other offence is using electricity without authority. That is made a crime by s 64 of the Electricity Supply Act 1995. Again, Parliament regards it as serious and has fixed a maximum of five years imprisonment to the offence.
Mr Strbac pleaded guilty to the charge at what the prosecution agreed was the earliest available opportunity. The law in this State encourages such guilty pleas by offering a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Strbac

Details

AGLC: R v Strbac [2015] NSWDC 268
Case: [2015] NSWDC 268
Decision Date: 07 August 2015

CaseChat Overview and Summary

In the case of R v Strbac, the defendant faced sentencing following a guilty plea to cultivating a commercial quantity of a prohibited plant, specifically cannabis. The court had to consider the nature of the offence, which involved a sophisticated plantation, and the offender's personal circumstances, which included a traumatic upbringing, a significant injury leading to depression, and an addiction that was causally linked to the offending behaviour. Despite the seriousness of the crime, the offender had no prior convictions and expressed remorse, entering a guilty plea at the earliest opportunity. The court also took into account the significant quantity of the crop, albeit less serious than other examples of the same offence, and the offender's good prospects of rehabilitation.

The central legal issues before the court were whether the sentence should be two years or less, given the offender's personal circumstances and mitigating factors, and whether an alternative to imprisonment, such as an intensive correction order, was appropriate. The court weighed the offender's traumatic background, his expression of remorse, and his plea of guilty against the gravity of the offence. Additionally, the court considered whether the offence of using electricity without authority, which was captured on Form 1, warranted any additional consideration in the sentencing process.

The court determined that the circumstances warranted a referral for an assessment of the offender's suitability for an intensive correction order under section 69(1) of the Crimes (Sentencing Procedure) Act 1999. It was held that while no sentence other than imprisonment was appropriate, the offender's circumstances and the potential for rehabilitation justified exploring an alternative sentencing option. The court noted that the offender's traumatic upbringing, depression, and addiction were significant mitigating factors, but the severity of the offence necessitated a custodial sentence. The referral for an intensive correction order assessment aimed to balance these considerations.

The final order of the court was to refer the offender for an assessment as to his suitability for an intensive correction order in the community. This decision reflected the court's attempt to balance the need for punishment with the potential for rehabilitation, taking into account the offender's personal circumstances and the nature of the offence. The court's decision underscores the importance of considering individual factors in sentencing, particularly when they may offer pathways to rehabilitation.

Orders

Orders of the court

Offender referred for assessment as to his suitability for intensive correction in the community under s 69(1) of the Crimes (Sentencing Procedure) Act 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Strbac [2015] NSWDC 268
Hearing dates:	24 July 2015; 31 July 2015; 7 August 2015
Decision date:	07 August 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Offender referred for assessment as to his suitability for intensive correction in the community under s 69(1) of the Crimes (Sentencing Procedure) Act 1999.
Catchwords:	CRIMINAL LAW – Sentence – particular offence – cultivate commercial quantity of a prohibited plant – sophisticated cannabis plantation – cash crop – significant quantity but less serious than other examples of same offence – circumstances of offender – traumatic upbringing – depression following injury – causal connection between addiction and offending – good prospects of rehabilitation – remorse expressed – no prior convictions – plea of guilty at earliest available opportunity – 25% discount – no sentence other than imprisonment appropriate – whether sentence should be two years or less – referral for assessment for intensive correction order – Form 1 for offence of using electricity without authority taken into account
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 69(1) Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a) Electricity Supply Act 1995 (NSW), s 64
Cases Cited:	R v Godden [2005] NSWCCA 160 R v Heffernan [2014] NSWDC 302 R v Nguyen [2007] NSWCCA 94
Category:	Sentence
Parties:	Regina (Crown) Stevan Strbac (Offender)
Representation:	Counsel: L C Hutchinson (Offender) Solicitors: P Low, Director of Public Prosecutions (NSW) (Crown) A Faro, Nyman Gibson Miralis (Offender)
File Number(s):	2014/00289830