R v Vijatovic

[2022] NSWDC 443

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v VIJATOVIC [2022] NSWDC 443

Hearing dates:

30 June 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

At [55]

Catchwords:

CRIMES – Sentence- Single count of enhanced indoor cultivation of cannabis for commercial purposes

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drugs Misuse and Trafficking Act 1985

Category:

Sentence

Parties:

Rex
Rados Vijatovic

Representation:

Counsel:
Mr Brewer (Defence)

Solicitors:
Mr Lorkin (Defence)
Ms Moore (ODPP)

File Number(s):

2021/00205893

Publication restriction:

N/A

Judgment

The Charge

1. The offender has pleaded guilty to a single charge of enhanced indoor cultivation of cannabis for commercial purposes in breach of section 23(1A) Drugs Misuse and Trafficking Act 1985. That offence carries a maximum penalty of 15 years imprisonment and/or a fine of 3500 penalty units.

2. The maximum penalty for the offence is a guidepost for sentencing judges reflecting the seriousness with which the community, through Parliament, views the offending. There is no doubt that all drug offences are serious and call for strong deterrence.

Procedural history

3. The offending is said to have occurred over a period of time up to 17 February 2021. The offender was arrested on 19 July 2021 and spent one day in custody prior to being granted bail.

4. On 10 March 2022 he pleaded guilty in the Local Court and was committed for sentence to this court. He is entitled to a discount of 25% reflecting the utility of the plea.

5. There are two co-offenders identified, namely Dragomir Friese and Miroslav Jolic. Questions of parity will be considered later in these remarks.

Adherence to pleas

6. Do you adhere to the pleas of guilty which you entered in the Local Court in respect of the three charges which I have just read?

Agreed facts

7. The offender was born 26 March 1980 and is now 42 years of age. On 11 February 2021 police observed him driving a motor vehicle with registration ending 51D and parking outside a property at Kensington at about 7:04 PM with Mr Friese in the passenger seat. Mr Friese exited the side passenger door and the offender stepped out of the driver’s side. Both entered the premises through the front door. At about 7:50 PM they returned to the vehicle before driving to a car park of a building complex on Alison Road at Randwick.

8. On 16 February 2021 investigators were granted warrants for the Kensington property. On 17 February 2021 police executed the search warrant. Four of the five bedrooms were used at the property for the cultivation of cannabis. The lease for the property in Kensington was in the name of the offender. The lease commenced on 27 May 2020 and ran for a period of 12 months.

9. During the search they located and exhibited 59 separate items including cannabis plants and equipment which may be deployed for the cultivation of cannabis plants. Photographs were taken by crime scene investigators. Eight of those photographs are attached to the agreed facts.

10. During the search police located two photographs: one being of the offender and his children; and the other just his children as well as a gas bill for the address in the name of his wife.

11. Twenty – nine (29) plants were located, seized, and identified, all being over one meter tall.

12. An Ausgrid technician confirmed the power to the property had been bypassed.

13. The offender’s DNA was found on the bristles and head of a toothbrush found in the bathroom.

14. The offender was arrested at an address in Botany at about 9:10 AM on 19 July 2021. He declined to be interviewed.

Subjective case

15. The offender had no criminal history at the time of the index offending. There were convictions recorded only after the index offending. There is one conviction for common assault in respect of which he received a Conditional Release Order without conviction. There are four shoplifting convictions in respect of which he received fines. The offender was a person of good character and any time in prison will be his first time in custody.

16. A Sentencing Assessment Report was prepared and is dated 27 June 2022. The offender resides in stable accommodation with his wife of 15 years and their children. He also described a supportive relationship with his mother and siblings. Generally, he has enjoyed continual employment being self-employed and contracted to work by a construction company. The offender told the author that his motivation for offending was financial gain. He said that he regretted that his offending has caused pain and anguish to his family. The offender was diagnosed with anxiety about 20 years ago and has been taking medication since. He acknowledged the impact of illicit drugs on the greater community. The offender is willing to undertake rehabilitation and community service work. He was assessed as being a low risk of reoffending.

17. A report was obtained from Tim Watson Munro (psychologist). It is dated 29 June 2022. Mr Watson Munro found the offender to be cooperative and referred to him appearing “severely depressed, anxious and psychologically troubled”. The expert referred to “long-standing symptoms” of depression and anxiety that arose in the context of the Serbian conflict in the late 1990s. He said that the offender has been medicated with alprazolam since she was about 20 years of age.

18. The offender again expressed remorse, acknowledging the harm to society. He attributed his offending to the need for money to meet his household expenses and care for his mother who was diagnosed with lung cancer in 2015.

19. Mr Watson Munro considered that the offender described a spectrum of symptoms “reflective of a depressive disorder”. Testing confirmed clinical impressions referable to a depressive disorder according to diagnostic criteria.

20. In the opinion of the expert, at the time of the offending, the offender was suffering an anxiety disorder, a depressive disorder and “attendant to this, it would appear that his judgment had lapsed”.

21. A report was tendered from the offender’s GP at Matraville Medical Complex dated 19 July 2021. That confirmed the diagnosis in 2007 of anxiety and depression and hypertension. It also confirmed the prescription of medication namely alprazolam 0.5 mg tablet one tablet twice a day when required and Minax 50 mg tablet half twice a day.

22. A character and employment testimonial was provided (Exhibit 4). The author has known the offender for 14 years. In the period 2016 to 2017, he was employed in the author’s business. He referred to the offender as a caring and friendly character and expressed surprise to learn of the charge.

Submissions-Crown

23. Submissions on behalf the Crown (MFI 1). It was submitted that the offending fell at about the mid-range of objective seriousness having regard to the following factors:

1. the residential premises had been converted for cultivation of cannabis;

2. in total 29 cannabis plants were seized, all over 1m tall, suggesting the operation has been in place for some time;

3. the number of plants was closer to the indictable quantity (50) than the small quantity (5);

4. the offender provided the premises by taking out the lease, knowing that the cultivation was to take place. His role was not minor;

5. the operation was relatively sophisticated including the bypassing of electricity; and

6. the presence of the offender’s DNA and personal photographs suggest that he either had occupied the premises or attended the premises on multiple occasions.

24. Some of those factors are implicit in the charge or regularly seen in offending of this type.

25. Next, the Crown submitted the section 5 threshold was crossed but that if the sentence was three years or less the court could consider directing that the sentence be served by way of Intensive Corrections Order. As the offender is to be sentenced for a single charge, in order for an Intensive Corrections Order to be available, the sentence imprisonment must be for a period of two years or less.

26. The Crown submitted that general deterrence, protection of the community and denunciation arise as relevant purposes for sentencing in this case.

27. In oral addresses, the Crown submitted that in the event that a De La Rosa type submission was advanced on behalf the offender that the court would not be satisfied that there was a connection between the offending and any psychiatric condition.

Submissions- Offender

28. Oral submissions were made on behalf of the offender. It was said that the quantity was “well below” the indictable and commercial levels. It was submitted that the objective seriousness of the offending fell below the mid-range.

29. It was submitted that the offender was generally a person of good character. I accept that submission.

30. It was submitted that he is remorseful. I accept that submission.

31. Further, it was submitted that the evidence does not rise to the level of supporting a finding that any psychological conditions contributed in a material way, but that his anxiety may have impaired his judgment.

32. It was submitted for the offender that it would be appropriate that the sentence be served by way of an ICO. Implicit in that submission is an acceptance that the offending crosses in section 5 threshold.

33. It was accepted on behalf the offender that financial gain was the motive.

Objective seriousness

34. I find the objective seriousness of the offending to be just below the mid-range having regard to the following considerations:

1. the role played by the offender including that he was the lessee on the property and supervised the crop;

2. the number of plants involved in the cultivation; and

3. the fact that the offending was committed for financial gain.

Aggravating factors 

35. The offending involved some limited planning including obtaining a lease over the residential premises, monitoring the crops and attending to their maintenance. In my view, these matters are either already captured by the cultivation charge or are matters which one would ordinarily expect to be associated with this type of offending behaviour so as not to give rise to any specific aggravating factor.

36. The offending is aggravated by the fact that it was committed for financial gain.

Mitigating factors

37. At the time of the offending, the offender did not have any record of prior convictions. I find the offender was, but for the subject offending, a person of good character and is entitled to leniency which flows from that finding.

38. I find the offender is unlikely to reoffend.

39. I accept that the offender has demonstrated remorse in that he has accepted responsibility for his actions and acknowledged the harm done to the community by his conduct.

40. I find the offender has good prospects of rehabilitation by reason of the insight he has demonstrated into the offending.

41. I find the guilty plea to be a mitigating factor.

Parity

42. There are two co-offenders. The first, Mr Jolic, I sentenced on 22 July 2022. His offending was objectively more serious and included four offences. Mr Jolic pleaded guilty to two counts of cultivating prohibited plants by enhanced indoor means pursuant to section 23(2) of the Drugs Misuse and Trafficking Act. That section relates to a quantity of plants which is not less than the commercial quantity. The number of plants was 123 over two properties. The present offender is charged under section 23(1A) which relates to a number of plants between small quantity and commercial quantity. The number of plants was 29. In addition, Mr Jolic plead guilty to a charge under section 193C(2) of the Crimes Act being deal with the proceeds of crime. That charge was placed on a Form 1 and resulted in a more severe penalty in respect of the offence to which it is attached.

43. The respective offender’s subjective cases were, to a large degree, comparable in that neither had a criminal record and both suffered challenges in their upbringing in Serbia.

44. I have also sentenced the other co-offender, Mr Friese. He was sentenced for two counts of knowingly take part in the cultivation of cannabis plants by enhanced indoor means in contravention of section 23(2) of the Drugs Misuse and Trafficking Act. He also admitted his guilt in relation to three additional charges on a Form 1 consisting of dealing with the proceeds of crime in breach of section 193C(2) of the Crimes Act, knowingly take part in cultivation of prohibited plants by enhanced indoor means (less than commercial quantity) in breach of section 23(1)(a) of the Drugs Misuse and Trafficking Act and cultivate prohibited plant by enhanced indoor means (less than commercial quantity) in breach of section 23(1)(a) of the Drugs Misuse and Trafficking Act.

45. Like the index offender, Mr Friese did not have a history of prior convictions and was entitled to the leniency which flows from that finding of good character. He also experienced challenges earlier in life whilst living in Serbia.

46. Of the three related offenders, the circumstances of the present offender call for a more lenient sentence.

Formulation of sentence

Section 5 threshold

47. I find that no sentence, other than one of imprisonment is appropriate in the circumstances.

Special circumstances

48. I find special circumstances exist on the basis that the offender requires rehabilitation and a treatment course. It is also his first time in custody.

Purposes for sentence-section 3A of the Crimes (Sentencing Procedure) Act

49. In my opinion, the need for general deterrence looms as the most prominent purpose in the circumstances of this case. I do not consider personal deterrence to be significant given my findings in relation to remorse, risk of reoffending and prospects of rehabilitation. Of course, the sentence must be adequate having regard to the overall criminality.

Term of sentence

50. A sentence of 18 months imprisonment, after a discount of 25%, is appropriate in the circumstances.

Consideration of an ICO

51. Community safety is paramount in considering whether a term of imprisonment should be served by way of Intensive Corrections Order. In my opinion, this offender poses no risk to the community.

52. Further, I must ask myself whether a period in custody or a term of imprisonment served by way of Intensive Corrections Order is most likely to best address the offender’s risk of reoffending. I find, without hesitation, that the offender’s risk of reoffending, such as it is, is best addressed by him serving the sentence in the community with appropriate conditions directed towards obtaining counselling, treatment and the like.

53. I intend to direct that the sentence be served by way of an Intensive Corrections Order. In making that direction, I have had regard to the purposes for sentencing in section 3A of the Crimes (Sentencing Procedure) Act.

Conviction

54. Mr Vijatovic you are convicted.

Sentence

55. For that conviction you are sentenced to a term of imprisonment of 18 months. Pursuant to section 7 of the Crimes (Sentencing Procedure) Act, I direct that the sentence be served by way of Intensive Corrections Order.

56. The order will commence today 28 September 2022 and remain in force until 27 March 2024.

57. I impose the standard conditions of that order, namely:

1. you must not commit any offence; and

2. you must submit to supervision by a Community Corrections officer;

58. I impose the following additional conditions, namely:

1. 200 hours of community service work across the duration of this order;

2. rehabilitation or treatment as recommended in the report of Mr Watson Munro and as otherwise directed;

3. that within 7 days the offender is to, by telephone, contact Sydney City Community Corrections and notify them of this order. When you attend the Community Corrections Office you must provide them with a copy of the report by Dr Watson Munro.

Explanation and caution

59. In the event that you breach any of the conditions attendant upon the intensive corrections order you may be subject to a term of imprisonment. You are to comply with the conditions attaching to the order for the period of 18 months, that is, up until and including 27 March 2024.

********

Amendments

04 October 2022 - line 57

05 October 2022 - Cover page updated

Decision last updated: 05 October 2022