R v Tomas; R v Milenkovic
[2016] ACTSC 254
•10 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tomas; R v Milenkovic |
Citation: | [2016] ACTSC 254 |
Hearing Date: | 10 August 2016 |
DecisionDate: | 10 August 2016 |
Before: | Burns J |
Decision: | See [15]-[16] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – serious drug offences – cultivating controlled plants – cultivating controlled plant for selling, namely cannabis – pleas of guilty – good prospects for rehabilitation – low risk of reoffending – sentenced to terms of imprisonment – Good Behaviour Orders imposed. |
Legislation Cited: | Criminal Code 2002 (ACT), s 616(5) |
Parties: | The Queen (Crown) Tomislav Tomas (Offender) Zoran Milenkovic (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr K Archer (Offenders) |
| Solicitors ACT Director Public Prosecutions (Crown) Kamy Saeedi Law (Offenders) | |
File Numbers: | SCC 189 of 2015 (Tomas); SCC 190 of 2015 (Milenkovic) |
BURNS J:
Each of the offenders, Tomislav Tomas and Zoran Milenkovic, have pleaded guilty to cultivating a trafficable quantity of a controlled plant, namely, cannabis with the intention of selling it contrary to s 616(5) of the Criminal Code 2002 (ACT). This is an offence which is punishable by 10 years imprisonment, 1,000 penalty units, or both.
An Agreed Statement of Facts has been put before me and I will not now recite those facts in full. It is sufficient to note that the offenders jointly used a rental house which was owned by Mr Tomas as a grow house with respect to a quantity of cannabis plants. The Crown, I note, alleges that there were 28 plants located in the grow house, but Mr Archer has submitted that, in fact, there were a total of 43 plants in the house, including those that had been stripped earlier in the day when police entered the premises in order to take the loose cannabis from those plants and then dispose of the remaining stalks.
I take into account, without here reciting, the contents of the Statement of Facts which has been put before me. It is clear that there was a degree of sophistication and certainly a significant degree of premeditation involved in these offences. There has been some material put before me as to the amount of profit that could be expected to be returned from a given amount of cannabis if it were to be on‑sold on the street. However, I accept the proposition that has been put before me by Mr Archer that the intention was to sell the cannabis which was being cultivated as a wholesale amount to a third party and that the offenders would not receive the full amount that they might otherwise have received had they been proposing to engage in the full preparation, packaging and sale of the cannabis.
It was submitted by the Crown that in the Pre‑Sentence Report of the offender, Mr Milenkovic, there was a suggestion that there had been a previous sale. I note that the Report says, ‘Mr Milenkovic stated he started discussions about the current offence with his co‑offender in late 2014 and they had shared in the proceeds from the sale of cannabis’. In my opinion, that is somewhat of an inadequate basis to form the view that there had been previous sales of cannabis from this cultivation, and that is particularly so where I have not heard from the author of the Pre‑Sentence Report. Having said that, it is clear that a significant profit was anticipated by each of the offenders with respect to their participation in this cultivation.
I take into account the subjective factors with respect to each of the offenders set out in the Pre‑Sentence Reports. I note that Mr Milenkovic is 41 years of age, he was raised in Canberra and has two children. He has qualifications in surveying and set up a landscaping business which was successful over a number of years. However, in more recent times, because of entering into a variety of unprofitable contracts, that business suffered losses. On top of those losses, his house burned down, causing further significant financial loss, so that, as his counsel put it, by late 2014 he was financially challenged and looking for another source of income.
With respect to Mr Tomas, I note that he is 42 years of age and that he was also raised in the Australian Capital Territory (ACT) and has family who continue to reside here. He owns his own businesses. In particular, he has a carpet laying business which has a contract with Harvey Norman, but perhaps more importantly in recent times he entered into a construction business. In 2013 and 2014 that business incurred losses because of its inability to sell a number of houses that it had constructed and had put on the market for sale. Therefore, he also was financially challenged at the time of the commission of these offences.
Each of the offenders is supported in court by family and friends. It is clear that they have been honest with their family and friends about their involvement in these offences. I take into account with respect to each of the offenders the testimonials that were tendered on their behalf. These testimonials speak of the offenders as being otherwise people of good character, and they also speak of the fact that these offences are out of character for the offenders. Each of them has made significant contributions to their family and also to the community in the ACT.
I note that Mr Milenkovic has no prior criminal history. Mr Tomas has a relatively minor criminal history, which is irrelevant for present purposes. It is clear that each of the offenders were involved in this offence for the purpose of monetary gain, and that is a significant factor in sentencing.
General deterrence is always a particularly significant sentencing consideration for offences of this type; that is, I must impose sentences which are designed to deter others from committing this type of offending. Offences of this nature are difficult to detect, which also speaks of the need for general deterrence in sentencing.
Each of the offenders entered pleas of guilty with respect to the one charge against them, which is now before me. It cannot be said that those pleas were entered at the earliest opportunity, but I do take into account that the pleas were entered after negotiations with the Crown in which ultimately the Crown accepted that the quantity of loose cannabis which was located at the premises was a result of the harvesting of a number of plants that had been cultivated in the premises by the offenders.
I accept that the pleas of guilty entered by the offenders indicate remorse on their behalf and I also accept that they had significant utilitarian value. It is true that the case against each of the offenders was particularly strong, but in my opinion that does not mean that they are to be entirely deprived of a reduction in sentence by reason of their remorse, as demonstrated by their pleas, and also the utilitarian value of those pleas.
I am satisfied that each of the offenders has a very good prospect of rehabilitation and that they are at low risk of reoffending. I am grateful to counsel for putting before me a table of cases in which similar offences have been dealt with in the past, but I agree with the submission that has been made by Mr Archer on behalf of each of the offenders that they do not in reality set out or reveal a sentencing pattern or tariff with respect to offences of this nature.
It has been accepted by Mr Archer, and I think rightly so, that these offences call for a term of imprisonment, but the submission has been made that something less than a full‑time term of imprisonment may be imposed. I remind myself of the principle that a sentence of imprisonment and, in particular, a sentence of full‑time imprisonment, is a sentence of last resort and it is not to be imposed unless no other sentence available to the court will be adequate to address the requirements of sentencing.
I have reached the conclusion that sentences of imprisonment which are suspended with significant community service orders will be sufficient to address the requirements of sentencing in this case. I do accept the submission that was made by the Crown that I should draw some distinction in terms of culpability between Mr Milenkovic and Mr Tomas, in that it was Mr Tomas' house where the cultivation was taking place. With respect to each of the offenders I also take into account the fact that they spent four days in custody prior to sentencing.
Sentence
Mr Milenkovic, I record a conviction and you will be sentenced to 15 months imprisonment, which I have reduced from 18 months in order to reflect your plea of guilty. That sentence will be fully suspended with a Good Behaviour Order for a period of two years from today, 10 August 2016.There will be conditions of that order that you are to:
(a)accept the supervision of ACT Corrective Services for that period of two years, or such lesser period as deemed appropriate by your supervising officer; and
(b)complete 250 hours of community service within that period of two years.
Mr Tomas, I record a conviction and you will be sentenced to 18 months imprisonment, which I have reduced from 22 months in order to reflect your plea of guilty. That sentence will also be fully suspended and there will be a Good Behaviour Order for a period of two years with conditions that you are to:
(a)accept the supervision of ACT Corrective Services for that period of two years, or such lesser period as deemed appropriate by your supervising officer; and
(b)complete 300 hours of community service within two years as directed by ACT Corrective Services.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 6 September |
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