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District Court 28 September 2022

R v VIJATOVIC

[2022] NSWDC 443

Drugs
CRIMES SENTENCE

Citation: R v Vijatovic [2022] NSWDC 443
Court: District Court of New South Wales
Date: 28 September 2022
Judge: Wilson SC DCJ

Background

The offender, a 42-year-old man with no prior criminal history at the time of the offending, pleaded guilty to a single charge of enhanced indoor cultivation of cannabis for commercial purposes under s 23(1A) of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 15 years imprisonment and/or a fine of 3,500 penalty units.

Police executed a search warrant on a Kensington residential property in February 2021 and found 29 cannabis plants, all over one metre tall, growing across four of the five bedrooms. The offender had taken out the lease on the property, and his DNA was found on a toothbrush at the premises. Power to the property had been bypassed. Two co-offenders were also identified in connection with the offending.

The offender was arrested in July 2021 and entered his guilty plea in the Local Court in March 2022, attracting a 25% discount. He was assessed as a low risk of reoffending and had the support of his family and a long-term employer. Psychological evidence established that he was suffering from anxiety and depressive disorders at the time of the offending, conditions with roots in the Serbian conflict of the late 1990s.

  • Where the objective seriousness of the offending sat on the relevant spectrum
  • Whether the offender's mental health conditions materially contributed to the offending
  • Whether the s 5 threshold for imprisonment under the Crimes (Sentencing Procedure) Act 1999 was crossed
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody
  • What discount applied for the utilitarian value of the early guilty plea

Decision

Wilson SC DCJ found the objective seriousness of the offending to be just below the mid-range. Relevant factors included the offender's role as lessee and supervisor of the crop, the number of plants seized, and the relative sophistication of the operation, including the bypassing of electricity. The quantity of 29 plants was closer to the indictable quantity of 50 than to the small quantity threshold of 5, though still well below the commercial level.

On the mental health issue, the court accepted that the offender suffered from a depressive disorder and an anxiety disorder at the time of offending, with the psychologist's evidence indicating these conditions had impaired his judgment to some degree. However, the court did not make a finding that the conditions contributed materially to the offending in the manner that would attract significant mitigation under principles associated with De La Rosa. Financial gain was accepted as the primary motive.

The court found that the s 5 threshold for a custodial sentence was crossed, a point implicitly conceded by the defence. An 18-month term of imprisonment was imposed after applying the 25% discount for the early guilty plea.

On the question of an ICO, the court found that the offender posed no risk to community safety and that his risk of reoffending was best addressed by serving the sentence in the community, with conditions directed toward rehabilitation and treatment. The sentence was accordingly directed to be served by way of an ICO.

Orders Made

  • The offender was convicted of enhanced indoor cultivation of cannabis for commercial purposes.
  • A sentence of 18 months imprisonment was imposed.
  • Pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999, the sentence was directed to be served by way of an Intensive Corrections Order, commencing 28 September 2022 and expiring 27 March 2024.
  • Standard ICO conditions imposed: no further offences; submission to supervision by a Community Corrections officer.
  • Additional conditions imposed:
  • 200 hours of community service work across the duration of the order
  • Rehabilitation or treatment as recommended in the psychologist's report and as otherwise directed
  • Contact Sydney City Community Corrections by telephone within 7 days and provide a copy of the psychologist's report upon attending

Key Takeaways

  • The District Court placed the objective seriousness of a 29-plant commercial cannabis cultivation operation just below the mid-range, taking into account the offender's role as lessee, the sophistication of the setup, and the quantity of plants relative to relevant statutory thresholds.
  • A 25% discount on sentence was applied to reflect the utilitarian value of a guilty plea entered in the Local Court prior to committal for sentence.
  • Psychological evidence of long-standing anxiety and depressive disorders was accepted as part of the offender's subjective case, though the court did not find those conditions materially caused the offending. Financial motivation was the primary driver.
  • Under the Crimes (Sentencing Procedure) Act 1999, an ICO is available only where the term of imprisonment for a single charge does not exceed two years. The 18-month sentence here fell within that threshold, making the ICO direction available.
  • Community safety and the likelihood of rehabilitation were the determinative considerations in the ICO direction. The court found that serving the sentence in the community, with counselling and treatment conditions, was more likely to address the low reoffending risk than a period of full-time custody.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 23(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7
- Crimes Act 1900 (NSW)

Cases:
- De La Rosa (referenced in Crown submissions regarding the connection between psychiatric conditions and offending; full citation not provided in the judgment)