DPP v Stanovsek [2016] VCC 2022

4 Charge 2, to which you pleaded guilty, comprised your having been responsible for an electrical bypass being installed, so that the electricity used by you for the cultivation was not processed through the meter. The total amount of electricity stolen by you between 23 April 2015 and 16 July 2015 was $4,835.30.

5 On Charge 3, of which you were acquitted by the jury, the prosecution had relied upon you being in possession of approximately 9 kilograms of dried cannabis which was alleged to have been for the purpose of sale. In your garage in front of the two grow rooms you had built a false wall, so that if the roller doors to the garage came up, it simply looked as though there were boxes and other equipment in the garage and one could not see beyond the wall into the grow rooms.

6 In two boxes police found two garbage bags. In the first there were 20 separate snap lock bags which contained dried cannabis. In the second, there were 21 snap lock bags which contained dried cannabis. The evidence was that the total weight of the dried cannabis was approximately 9 kilograms but there were not equal amounts of cannabis in each of the snap lock bags and a couple of the bags had some twigs and a little bit of mould in them.

7 There were no scales found at the premises, no written record of any drug transactions and no any quantity of small deal bags or other paraphernalia often associated with trafficking activity. Nor was there any evidence of surveillance of the premises having been conducted showing people were coming and going regularly from there. Nor were there any telephone transactions in code or otherwise consistent with trafficking activity. It is of note that the front door of the house was unlocked when police attended to execute the search warrant. Nor was there any CCTV camera or other security measures evident at the property. In your record of interview you admitted that you had been cultivating cannabis in your garage, but when asked whether you wanted to say anything about the dried cannabis, you told the police "No".

8 At your trial, you gave evidence in relation to Charge 1 that, although you had been cultivating cannabis, you had no intention to cultivate a commercial quantity. You told the jury that a small quantity of cannabis found in three locations within the house itself was for personal use of yourself and your girlfriend, as you smoked cannabis socially. There was no evidence that it had come from any crop grown by you. However, you stated that the 9kg of dried cannabis found in the snap lock bags had been planted by you in March 2015. You stated that you planted that first crop because on 14 October 2013 your mother had undergone emergency surgery for a cancerous tumour in her colon which was removed. She lived in Mildura and you went up there and stayed with her for six weeks after the surgery to help look after her. You stated that your mother had deteriorated and, on 20 December 2014 a decision was made to take her off chemotherapy. You stated you decided to plant that first crop in order to obtain cannabis oil to help to try and save your mother from cancer. You said that she had lost her hair and had lost weight, was very thin and her appetite ebbed and flowed and she struggled to put on weight.

9 It would appear that, on the basis of the evidence given by you, the jury were not satisfied of the elements of trafficking of Charge 3, namely, that you possessed the 9 kilograms of dried cannabis for the purposes of future sale. Your evidence was that you had spent in excess of $10,000 purchasing the plants and equipment in order to grow the first crop and that you had harvested it by the end of May 2015. However, you had simply stored it in order to work out how you were going to get oil out of it to assist your mother's cancer. You stated that you had not sold any cannabis from that first crop and you did not intend to sell it, but planned to use it to get as much tincture out of it as you could to help save your mother. You stated that you did not have a clue how much cannabis you needed to make a tincture and you were not sure how much tincture you were going to get from the first crop, so you decided to put in a second crop immediately and claimed that by the end of the first week in June, the second crop was set up. By that stage, you said your mother was not very well at all and, in fact, she died on 28 June 2015.

10 The focus of the plea hearing on Charge 1 was the submission by Mr Polak, on your behalf, that the Court should be satisfied on the balance of probabilities, in the light of the jury's verdict of not guilty on Charge 3, that the purpose of you growing the second crop, which is the subject of Charge 1 was that you intended to use oil from that crop as a tincture to help your mother. He submitted that this was a mitigatory factor in your favour.

11 Ms Foot, on behalf of the prosecution, conceded, consistent with the jury's finding on Charge 3, that the Court could not be satisfied beyond reasonable doubt that you grew the commercial crop, which is the subject of Charge 1, with an intention to sell it. However, Ms Foot stated that the Court could not be satisfied on the balance of probabilities that you actually grew it in order to extract cannabis oil to make a tincture to assist your mother with her cancer.

12 I took judicial notice of the fact that there is a body of data concerning medicinal use of cannabis. Indeed, Mr Polak tendered on your behalf a research note relating to the Access to Medicinal Cannabis Bill 2015 provided to the Victorian Parliament (Exhibit "10") and, also, the New South Wales Legislative Council Report of General Purposes Standing Committee No 4 on the Use of Cannabis for Medicinal Purposes (Exhibit "11"). However, there is no suggestion that you, Mr Stanovsek, had access to either of these papers at the time that you claim that you planted the first crop in January 2015 or the second crop by early June 2015. I here note that the expert evidence of Ms Fiddian, botanist, is at odds with your evidence to the jury about when you planted each of those crops, as she had put the second crop at some 12 to 15 weeks post-nursery phase at the time the police executed the search warrant on 16 July 2015. This would have made the planting date of that crop most likely some time in April 2015. Indeed Charge 1 was worded to have been committed between 23 April and 16 July 2015. I am satisfied beyond reasonable doubt by the evidence as to the appearance and maturity and weight of the plants, and Ms Fiddian's evidence, that the plants seized by police had not been planted some six weeks prior to 16 July 2015 as claimed by you.

13 Tendered on the plea were a number of documents relating to your mother's medical care and treatment. I refer here to Exhibits "6" to "9". It is apparent that, in October 2013, your mother was admitted to Mildura Base Hospital for a laparotomy with a diverting loop colostomy for metastatic obstructing rectosigmoid cancer. Investigations revealed metastatic disease to the liver and the surgeon, Dr Tran, noted that she was considered palliative from a colorectal point of view. However, contrary to the evidence which you gave to the jury that your mother had ceased chemotherapy on 20 December 2014, it is plain from these exhibits that your mother continued to receive chemotherapy, albeit that the doctors considered that it could not be curative, right up until shortly before her death on 28 June 2015. On 24 June 2015, she had been admitted to hospital with a history of declining function and worsening abdominal pain in the previous week. She had been found on the floor by her brother and sister-in-law on 19 June 2015 and, whilst in hospital, her abdominal pain worsened and she eventually refused any more chemotherapy on 24 June 2015, four days before she died.

14 A letter from Dr Cook, consultant physician, dated 13 March 2014 stated that after the major surgery for the colon cancer in October of 2013, everyone was surprised at just how well your mother recovered and that she was coping with chemotherapy surprisingly well. He noted that her weight had dropped a little but she was feeling well and, in addition, she was coping quite well with her other issue of diabetes mellitus. He stated: "She will continue with the Palliative Chemotherapy which does not seem to be causing her any major concerns & it appears to be at least holding the situation as best as possible." In a later letter dated 6 May 2014, he stated: "She has continued to progress very well. Recent Tumour Marker is excellent at 1 ug/L. Examination unremarkable. Recent CT Scan shows that a number of the liver lesions have reduced in size. There are no new lesions & there are no lesions that are enlarged. Thus I think things are going about as good as one might hope. She is due to have her 8!h cycle of the above Chemotherapy on the 6th of May, 2014." Dr Cook made arrangements to review your mother in three months.

15 On 31 July 2014, Dr Cook noted: "Recent CT Scan Staging has shown that the metastatic disease in her liver is essentially unchanged with Tumour Marker remaining well & truly in the normal range at <1 ug/L." He noted that she had a degree of peripheral neuropathy setting in but her weight was up a little from her last visit at 56.15 kilograms and generally she looked well. He again arranged to review her in three months' time.

16 On 3 November 2014, Dr Cook noted: "She was very feeble & debilitated but subsequently we did offer her some Palliative Chemotherapy & the big surprise was that she seemed to tolerate this extremely well." He again noted a little bit of peripheral neuropathy and stated: " ... at this point her Restaging CT Scans have shown definite pulmonary nodules & more hepatic nodules." He went on to state: " ... after discussion to-day again - as she feels extra good, she would like to press on with some extra Chemotherapy." Again, he organised to review her in about three months.

17 The next letter from Dr Cook is dated 12 May 2015. He noted, at that stage, that recent CT scans showed progression in the liver and the lung but: "Clinically she is still feeling reasonably well." He noted that her tumour marker had increased from 1 to 3 ug/L, but she was managing her stoma well and still taking Clexane 60 mgm subcutaneously daily. He noted that because of a positive gene test, she was not a candidate for some alternative medication, Cetuximab. That is the last information of a medical nature tendered prior to the documents relating to your mother's admission to Mildura Base Hospital on 24 June 2015, four days before her death.

18 Your evidence to the jury that your mother's chemotherapy had ceased on 20 December 2014, would appear to have been incorrect. The indicators are that your mother was receiving chemotherapy and doing surprisingly well in response to it up until shortly before her death. Indeed, although she had lost a little bit of weight early in her treatment not long after her major surgery in October 2013, by July 2014 her weight was noted to have increased.

19 Your evidence to the jury was that you had relied upon information posted on the facebook page of your former sister-in-law about the positive benefits of cannabis oil in reducing cancer tumours and helping with the effects of chemotherapy. Copies of six of the posts from your former sister-in-law's Facebook page had been tendered in evidence before the jury.

20 I find that I cannot be satisfied on the balance of probabilities that your purpose in cultivating the commercial crop, the subject of Charge 1 was to extract cannabis oil to assist with your mothers cancer. My reasons are as follows:

1. There is no evidence which satisfies me that you were intimately in tune with your mother's medical state at the time that you say you planted either the first crop (which you claimed was in January 2015) or even when you planted the second crop, which I am satisfied was in April 2015. Save for your evidence that you spent six weeks with your mother after her major surgery in October 2013, there is no evidence as to the regularity or otherwise with which you visited her. Indeed, under cross-examination you conceded that you had been very busy consulting "the boys at the hydro shop in Sunshine" who gave you advice as to the equipment you needed and how to go about growing a successful cannabis crop when you grew your first crop.

2. You are a tertiary educated person. You graduated with a Bachelor of Economics, majoring in Accounting, from Monash University and held responsible positions as an accountant for many years. Also, you subsequently successfully ran a business as the owner of four taxis. I find it extraordinary that prior to planting the first crop, you took no steps whatsoever to ascertain how much cannabis would be necessary to produce oil to make a tincture and how to go about making a tincture. Yet this is said by you to be the reason that you used a month off your work as a chauffeur to purchase the $10,000 worth of equipment which you put in place to grow the first crop

Notwithstanding that you successfully harvested 9 kilograms of dried cannabis from that first crop, you admitted that you still had never made any inquiry as to how much cannabis you needed to make a tincture or to extract cannabis oil or how you went about this process before you then planted a second crop, the subject of Charge 1. You also agreed under cross-examination at the trial that you had never considered or made inquiries as to whether a tincture or cannabis oil was able to be purchased readymade even though there were videolinks to two persons, other than your former sister-in-law in the facebook posts. These two persons apparently promoted the medicinal treatment of cancer using cannabis. I find it simply incredible that if you were going to all this expense and trouble in order to assist your mother, that you did not take the fundamental step of finding out how to achieve the very thing that you claim you intended, namely to make cannabis oil to help your mother. There is no evidence as to when you proposed to get around to finding out how to produce cannabis oil to help your mother, notwithstanding your belief that her health was in serious decline.

3. Although it is your entitlement to remain silent and you told police in your record of interview that you did not wish to tell them anything aboutthe dried cannabis which they found packaged in your garage or about the fresh crop which was growing in your garage, it is astonishing, given that you mentioned your mother's death to them, that you did not mention your claimed purpose for having grown the crops, namely to make cannabis oil to assist your mother. This is all the more surprising given that you were cooperative with police. You were asleep when they arrived and you took them downstairs to show them where the cannabis was growing in the garage and, also, showed them where the boxes were which contained the dried cannabis.

4. Your mother had died two weeks prior to the police executing the search warrant. You told the jury that you believed the crop might still help a former girlfriend of yours who suffered from fibromyalgia. This was a condition also mentioned in the facebook posts of your former sister-in-law and said to be something for which cannabis treatment could be beneficial. I am not satisfied on the balance of probabilities that this or the making of cannabis oil was your rationale for growing the commercial quantity of cannabis the subject of Charge 1 in circumstances where you already had a significant quantity of dried cannabis, 9 kilograms, at your disposal.

21 Obviously, the jury did not have to consider the question of motivation or intention in relation to Charge 1, the commercial cultivation charge. However, the prosecution has conceded that, consistent with the jury's acquittal on Charge 3, the Court should not be satisfied beyond reasonable doubt that you intended to sell the harvested cannabis from the cultivation which forms the subject of Charge 1. I do not know that the crowns concession necessarily flows from the jury's acquittal of you on Charge 3, but as it is a very significant concession in your favour, I consider that justice requires that I should accept and act upon such concession. Thus, I am left to sentence on a very serious charge, which carries a maximum penalty of 25 years' imprisonment, where the purpose for such cultivation put forward by you has been rejected by me but the very rationale for the seriousness of the charge has been conceded by the crown not to be proven beyond reasonable doubt.

22 Recently in the case Nguyen v R,[1] the Court of Appeal made it clear that there should be an uplift in current sentencing practices for middle range offending of cultivation of a commercial quantity of the narcotic plant. Reference was made to the maximum penalty imposed by Parliament demonstrating the seriousness of the offence and the fact that general deterrence should be at the forefront of sentencing considerations so that, generally, an immediate term of imprisonment should be regarded as unavoidable. It is regarded as an offence which requires substantial punishment and the link between increasing prevalence of the offence and general deterrence is readily apparent.

23 Your offending on the cultivation charge has many of the aspects which make this offence so serious. Clearly there was substantial planning involved. Your evidence was that you grafted pieces from your earlier crop, nurtured them past the seedling phase and were clearly successful in achieving a very healthy crop of 18 mature plants which was very close to harvesting. You had separated the two crops into two "rooms" in your garage by using insulating material during the growing phase of the plants, you had spent something in the order of $10,000 initially for all the equipment which was used for growing the first crop and which you used again to grow the crop which is the subject of Charge 1. The weight of the plants is twice the commercial quantity and the diversion of power and the set-up generally showed a level of sophistication.

24 In Nguyen's case, the Court of Appeal made reference to the case of Pidoto[2] and the fact that no distinction in harmfulness is to be made between a narcotic plant and other drugs of dependence. It stated: "The statutory presumption was that the quantities selected as the 'commercial quantity' for each drug of dependence would lead to a 'consistency of monetary value' across the range of drugs. Therefore the starting point is that the profit return from a bare commercial quantity of each drug is of the same order."[3]

25 The difficulty that I face in sentencing you is that, in spite of you having been convicted of cultivating a commercial quantity of cannabis, because the prosecution's concession that I should not find that you intended to sell the cannabis or traffick it, your offending conduct lacks a commercial trafficking business aspect like the cases to which the Court of Appeal referred in Nguyen. It is essentially that aspect which has caused the Court of Appeal to indicate that there should be an uplift in sentences for middle range offending of this type. In the context of you already being in possession of 9 kilograms of dried cannabis, it seems absurd that another healthy crop produced by you which is twice the commercial quantity should have to be regarded as lacking any commercial trafficking aspect to it, but that is the very unusual scenario upon which I must sentence according to the concession made by the prosecution.

26 You are presently aged fifty-five years having been born on 9 July 1961. You come before the Court with one prior matter three and a half decades ago, when you appeared at Northcote Magistrates' Court on 30 April 1981 on one charge of theft for which you were given a 12 month good behaviour bond.

27 You grew up in Mildura until age four and then lived in various parts of Melbourne. You have one younger brother, Robert, who lives in the United States. In a report by Mr Warren Simmons, psychologist, dated 21 October 2016 (Exhibit "3"), you described your father as a chronic drinker, gambler and womaniser, who separated from your mother when you were eleven. You were close to your mother and Mr Simmons stated that, apart from some possible grief counselling over the loss of your mother, you had no psychological conditions which required attention. He noted that you were an intelligent person who completed a Bachelor of Economics with a major in Accounting, then graduate training with the Melbourne Metropolitan Board of Works, before working with the Auditor-General's Office from 1985 to 1992. During that period you also drove taxis part time, and purchased two taxi licences. In 1992 you accepted a redundancy from the Auditor-General's Office, as work was being out sourced and went on to buy two more taxis and continued in the taxi industry until 2004. You purchased two houses which you renovated.

28 In 2001, at approximately forty years of age, you married and you and your wife, Ms Curran, had one child who is now thirteen years of age. You separated from Ms Curran after approximately seven years. This seemed to coincide with you purchasing a hotel with a number of poker machines, which business had failed by 2008, when administrators were called in. You then worked as a gaming attendant for three months and then found a job driving as a chauffeur from May 2009, using a leased vehicle. You have continued to work in this employment to the present time.

29 Mr Simmons noted that you had used cannabis socially from a date in your forties, but ceased this after the police raided your home in July 2015. Mr Simmons stated that there was no family history of psychiatric disturbance and you had not been involved with mental health services. You had suffered some sleep disturbance and anxiety related to your Court proceedings and had exhibited tearfulness relating to grief concerning your mother, but otherwise your mental state examination was unremarkable.

30 Three character references were tendered on your behalf as Exhibit "4". Two of them are from very long term friends, who describe you as a hardworking, motivated, loyal and sincere man who is a caring father to his daughter and was a loving son to his mother. The third is from your current partner, Ms Dunkel, who has been dating you over the past year. She describes you as an honest and upstanding person, and, as with the other two referees, as a devoted father to your daughter and as having been very close to your mother. All three character witnesses say they were shocked or stunned to hear of your offending behaviour and that it is out of character and that you regret what you have done.

31 I find this to be an unusual and difficult sentencing exercise. Save for one minor infringement of the law which involved theft of a watering can when you were out with some friends drinking at the age of nineteen, you have led a lawful life and appear to be a person of good character. Whilst running your hotel gaming venue, you were intruded upon by armed robbers who had guns, which you apparently wrestled from them. You later received a commendation for brave conduct from the then Governor-General Major Michael Jeffery on 18 September 2006. Following the failure of that business, you have operated a business as a chauffeur for private business clients, essentially driving them to and from the airport. You appear to have led a respectable existence and appear to have been very caring towards your mother who reared you as a single parent after your father left the family home when you were only eleven. You are also apparently a devoted father to your thirteen year old daughter.

32 It is difficult, indeed, to understand your involvement in this offending. Notwithstanding that I have rejected on the balance of probabilities your stated intention in relation to the commercial cultivation charge, the fact of the matter is that, according to Ms Fiddian's evidence your first crop would have been harvested some time back in late March 2015. Yet there is no evidence that you did anything with the cannabis from that crop, other than dry it and store in plastic bags in the boxes in your garage. In the curious vacuum in which I must sentence you, the presumption of potential commercial gain and the harm that double the commercial quantity of cannabis would find its way into the community, cannot be relied upon. I am left with what I regard as an unsatisfactory but exceptional circumstance whereby, notwithstanding the cultivation of a commercial quantity, there is no commercial aspect to your criminal activity of which I can be satisfied beyond reasonable doubt. It is this commercial aspect and the presumption that the drug is harmful which has led to the principle of general deterrence being emphasised in sentencing for this crime such that the Court of Appeal has made it clear that the offence requires the imposition of a immediate custodial sentence which would usually only be avoided in exceptional circumstances. The vacuum in which I must sentence I find to be an exceptional circumstance.

33 Your counsel noted that, notwithstanding that you had run a trial, you had, in fact, made four offers to plead guilty to cultivating a commercial quantity of cannabis between 28 September 2015 and 15 December 2015 on the basis that Charge 3, trafficking, should not be proceeded with. You had always intended to plead guilty to theft of the electricity. Interestingly, the jury verdict reflects what you had offered to the prosecution over a year prior to the jury verdict. However, the fact remains that, before the jury, you did plead not guilty to Charge 1 of cultivating a commercial quantity of cannabis of which the jury have found you guilty. In these circumstances, there is no discount available to you. However, as I have stated, notwithstanding the gravity of cultivating a crop of cannabis of twice the commercial quantity and that you are the principal, indeed the only offender, I cannot be satisfied that the elements of gravity concerning potential profit and potential harm to the community are present in your case. Accordingly, I cannot be satisfied that the only appropriate sentence to be imposed is a term of imprisonment.

34 In the peculiar circumstances of your case, in my view, the need to denounce your offending and place emphasis upon general deterrence and just punishment can be met by a Community Correction Order with a significant component of unpaid community work. Although you have been a user of cannabis, a matter which is deemed appropriate for assessment by the Corrections Officer who assessed you as suitable for a CCO, you do not have any apparent addiction or psychological problem. In all the circumstances, I consider it unlikely that you will offend in this way again.

35 On Charge 1, cultivating a commercial quantity of cannabis, you are convicted and sentenced to undertake a Community Correction Order for a period of 3 years.

(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(ab) You must comply with any obligation or requirement prescribed by the regulations;

(b) You must report to and receive visits from the Secretary during the period of the order;

(c) You must report to the Community Corrections Centre specified in the order within two clear workings days after the order coming into force;

(d) You must notify the Secretary of any change of address or employment within two clear working days after the change;

(e) You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;

(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

37 In addition to those terms, the following conditions apply:

(1) You must perform 350 hours of unpaid community work over the period of the order;

(2) You must undergo drug assessment and treatment and rehabilitation as directed by the Secretary.

38 On Charge 2, theft of electricity, you are convicted and sentenced to undertake a Community Correction Order for a period of 6 months concurrent with the Community Correction Order imposed on Charge 1. The same terms apply to this order. In addition, there is one condition, namely, that you undertake 50 hours of unpaid community work over the period of the order, that is, unpaid community work in addition to that imposed on Charge 1.

39 Mr Stanovsek, I am unable to make a CCO unless you consent to it. Do you consent to it?

41 You need to be aware that if you breach the order by non-compliance with its terms or conditions, or by re-offending, then that breach, in itself, is an offence punishable by 3 months imprisonment. You will also be brought back before me for re-sentencing and that may result in the CCO being revoked and a term of imprisonment being imposed. Do you understand?

43 On Charge 2, you are ordered to pay to United Energy Distribution Pty Limited of 699 Bourke Street, Docklands, Victoria 3008, compensation in the sum of $4,835.29.

44 On Charge 1, having been convicted of a forensic sample offence, I order pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a sample of saliva in accordance with sub-Division 30A of Part 3 of the Crimes Act 1958. I consider that this order is warranted by reason of the seriousness of the circumstances of your offending.

45 Mr Stanovsek, you need to understand that if you do not cooperate with the taking of this sample, which involves taking a swab of saliva from inside your cheek, then the police are entitled to use reasonable force to ensure that a sample is obtained.

46 On Charge 1, as you have been convicted of cultivation of commercial quantity of a narcotic plant and being satisfied that the property referred to in the Schedule is an instrument, device or substance that was used, or intended to be used, in, or in connection with, the commission of the offence or was derived or realised, directly or indirectly, by you or another person from the commission of the offence, I order pursuant to s78(1) of the Confiscation Act 1987, the forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. There are a total of seven items listed in the Schedule each of which comprises multiple items in itself.

[1] [2016] VSCA 198 11 August 2016

[2] [2006] VSCA 185; (2006) 14 VR 269 (Pidoto)

[3] Paragraph 136, page 28 of the judgment in Nguyen