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District Court 7 August 2015

R v Strbac

[2015] NSWDC 268

Drugs
CRIMINAL LAW SENTENCE PARTICULAR OFFENCE SOPHISTICATED CANNABIS PLANTATION CASH CROP CIRCUMSTANCES OF OFFENDER

Citation: R v Strbac [2015] NSWDC 268
Court: District Court of New South Wales
Date: 7 August 2015
Judge(s): Cogswell SC DCJ

Background

The offender was a young man with no prior criminal history who had fled the Yugoslav conflict as a child after his father was killed. He settled in Australia, developed a good work history, and married. One month after his wedding, a serious industrial accident left him physically incapacitated for several months, causing him to resume heavy cannabis use after a period of abstinence.

Unable to work and feeling the financial and cultural pressure of being unable to provide for his wife, the offender spent almost $40,000 of wedding gifts the couple had received simply to sustain themselves. To recover those losses and fund his cannabis habit, he established a sophisticated cannabis plantation in three sheds behind his home at South Wentworthville. Police executed a search warrant in October 2014 and found 100 plants across two sheds, complete with transformers, lamps, and an illegal electricity bypass, with an estimated street value of close to $300,000.

The offender faced a principal charge of cultivating a commercial quantity of a prohibited plant (cannabis) under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum of 15 years imprisonment. He also asked the court to take into account on a Form 1 a charge of using electricity without authority under s 64 of the Electricity Supply Act 1995 (NSW).

  • What weight should be given to the offender's addiction, traumatic background, and personal circumstances when assessing the objective seriousness of the offence?
  • Whether a causal connection between addiction and offending reduced the offender's moral culpability.
  • Whether the sentence should be two years or less, so as to permit consideration of an Intensive Correction Order (ICO) as an alternative to full-time custody.
  • What discount applied to the sentence given the offender's guilty plea at the earliest available opportunity.

Decision

Cogswell SC DCJ accepted that the plantation was objectively serious, describing it as sophisticated and designed to generate significant profit well beyond the $40,000 the offender sought to recoup. However, the judge found the offending fell below the most serious examples of its kind, and accepted the submission by defence counsel that there was a genuine causal connection between the offender's addiction and his decision to establish the plantation.

The court accepted that the offender's vulnerability at the time, including chronic pain, depression, financial stress, and a traumatic upbringing, reduced his moral culpability. Psychiatric and psychological reports supported the diagnosis of a substance use disorder in remission, noted the absence of significant risk factors for future offending, and confirmed the offender had tested negative for cannabis use since the charge. The court gave weight to the offender's genuine remorse, complete absence of prior convictions, strong references, and what the psychologist described as a largely stable character.

Before applying the 25% guilty plea discount, the court determined a sentence of imprisonment was the only appropriate response. The pre-discount sentence was calculated at approximately 29 months, which, after the 25% reduction, produced a sentence of 22 months imprisonment. Because that sentence fell at or below the two-year threshold, the court referred the offender for assessment for an Intensive Correction Order, which would allow the sentence to be served in the community under strict conditions rather than in full-time custody.

Orders Made

  • Sentence of 22 months imprisonment imposed (after 25% guilty plea discount).
  • Offender referred to Community Corrections at Fairfield within seven days for ICO assessment.
  • Proceedings adjourned to 23 October 2015 for finalisation of ICO assessment.
  • Bail continued on existing conditions pending the assessment outcome.
  • Order made for destruction of the prohibited plants and associated equipment under the Drug Misuse and Trafficking Act 1985.
  • Form 1 offence of using electricity without authority taken into account.

Key Takeaways

  • A causal connection between an offender's addiction and the commission of a commercial drug cultivation offence can reduce the objective seriousness of the offending and lower the offender's assessed moral culpability, even where the enterprise is sophisticated and profit-motivated.
  • Traumatic background and personal vulnerability, supported by credible psychiatric and psychological evidence, are relevant mitigating factors in sentencing for serious drug offences, though they do not displace the need for a custodial response.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a guilty plea entered at the earliest available opportunity attracts a 25% sentencing discount in New South Wales.
  • Where the resulting sentence of imprisonment is two years or less, the sentencing court may refer the matter for ICO assessment, potentially enabling the offender to serve the sentence in the community rather than in full-time custody.
  • The District Court distinguished this case from other commercial cultivation matters, such as R v Heffernan [2014] NSWDC 302, on the basis that the offending here was driven by addiction and personal crisis rather than a sober commercial decision, placing it at a lower point on the objective seriousness scale.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Electricity Supply Act 1995 (NSW), s 64
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 69(1)

Cases
- R v Godden [2005] NSWCCA 160
- R v Heffernan [2014] NSWDC 302
- R v Nguyen [2007] NSWCCA 94