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District Court 22 July 2022

R v Jolic

[2022] NSWDC 284

Drugs
CRIME SENTENCING

Citation: R v Jolic [2022] NSWDC 284
Court: District Court of New South Wales
Date: 22 July 2022
Judge(s): Wilson SC DCJ

Background

The offender, a Serbian national who had overstayed a three-month visitor visa, pleaded guilty to two counts of cultivating a commercial quantity of cannabis by enhanced indoor means. The charges arose from a NSW Police strike force investigation into cannabis growing operations in Sydney's eastern suburbs between mid-2020 and February 2021. The offender was linked by surveillance, fingerprint evidence, and DNA to cannabis crops at two separate properties, one in Rosebery (56 plants) and one in Randwick (67 plants), both converted for hydroponic cultivation.

A Form 1 charge of dealing with the proceeds of crime was also admitted and taken into account on sentencing. A charge of knowingly participating in a criminal group was withdrawn and dismissed. The offender had been in custody since 17 February 2021, the date police found him at the Rosebery premises.

The offender had no prior convictions in New South Wales or Serbia. He told police he had begun growing cannabis after exhausting his money when the COVID-19 pandemic prevented him from returning to Serbia, and that the opportunity was provided by family members. His motivation was entirely financial.

  • What aggregate sentence was appropriate for two counts of commercial cannabis cultivation by enhanced indoor means, taking into account the Form 1 proceeds of crime charge?
  • What discount applied for the guilty plea?
  • Whether the sentence should be served by way of Intensive Corrections Order (ICO) or full-time custody, given the offender's immigration status and likely deportation upon release.
  • Whether parity with associated offenders was a material consideration.

Decision

Wilson SC DCJ imposed an aggregate sentence of three years imprisonment with a non-parole period of 18 months. Indicative sentences were set at 18 months for the Rosebery cultivation charge (sequence 10) and 22 months for the Randwick charge (sequence 11), with a 25% discount applied to both for the guilty plea. The Form 1 proceeds of crime charge was attached to sequence 11, increasing that indicative term to reflect the need for personal deterrence and retribution, consistent with the approach in Re Attorney General's Application (No 1 of 2002).

On the question of an ICO, the court found that one was not appropriate. Because the offender would be deported upon release from prison, supervision under an ICO would be impossible, defeating the purpose of such an order. Full-time custody was therefore the only available sentencing option in the circumstances.

On parity, the court noted several associated offenders but found that their offending differed sufficiently in nature and seriousness that direct parity comparisons were not applicable. The court also observed that the offending was more serious than that of at least one associated offender, justifying a more significant sentence outcome.

The head sentence was backdated to 17 February 2021, the date the offender entered custody. Allowing for time served, the head sentence was set to expire on 16 February 2024, with the non-parole period expiring on 16 August 2022, at which point the offender was to be released on parole.

Orders Made

  • Aggregate head sentence of three years imprisonment with a non-parole period of 18 months, backdated to 17 February 2021, to be served by way of full-time custody.
  • All personal property (mobile phones and personal belongings) seized from the offender to be returned to him.
  • Orders in accordance with paragraphs 1.1 and 2.1 of the Short Minute Consent Orders dated 30 June 2022.

Key Takeaways

  • An offender's pending deportation upon release from custody renders an Intensive Corrections Order unavailable, as post-release supervision would be impossible and the purpose of the order thereby defeated.
  • Under Re Attorney General's Application (No 1 of 2002), a Form 1 charge is taken into account at sentencing by giving increased weight to personal deterrence and community retribution, rather than by treating it as an additional standalone penalty.
  • A 25% discount for a guilty plea was applied to both principal charges in this matter, consistent with standard practice under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Where associated offenders have been sentenced for less serious conduct, parity principles do not require an equivalent outcome for a more culpable offender whose charges involve actual commercial-scale cultivation.
  • Financial motivation, described by the court as a common feature of this type of offending, did not operate as significant mitigation, even where the offender's circumstances included immigration hardship linked to the COVID-19 pandemic.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146