R v Strbac [2015] NSWDC 268 | Case summary

R v Strbac [2015] NSWDC 268 | Case summary | Zoe

Judgment

I am sentencing a relatively young man who had a problem with cannabis. He used to take it when he was even younger. He got married and quit the habit but a month after he was married he was in a serious work accident and he spent some time in hospital. As a result of this he commenced the habit again but more intensely. The accident also caused him to lose money so he decided to grow cannabis at the back of his house. The cannabis plantation was found by the police and he was charged with the offence that I am sentencing him for.
The young man's name is Stevan Strbac. He has been charged with cultivating the commercial quantity of a prohibited plant, namely cannabis. That is an offence against s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. Parliament regards it as a serious offence. It has fixed a maximum of 15 years imprisonment to the offence.
Mr Strbac has asked me to take into account another offece when I am sentencing him. The other offence is using electricity without authority. That is made a crime by s 64 of the Electricity Supply Act 1995. Again, Parliament regards it as serious and has fixed a maximum of five years imprisonment to the offence.
Mr Strbac pleaded guilty to the charge at what the prosecution agreed was the earliest available opportunity. The law in this State encourages such guilty pleas by offering a discount. A plea at the stage that Mr Strbac entered it attracts a discount of 25% from sentence. In due course I will discount his sentence by 25%.
First I should briefly say what happened. Police turned up at Mr Strbac's house in South Wentworthville on 2 October 2014 with a search warrant. They found three sheds in the back yard of the house. There was a relatively sophisticated cannabis plantation in two of the sheds. There were transformers. There were 68 plants in one shed and 32 plants in another. The third shed was for storage. There were lamps and light shades and an illegal electricity bypass. The hundred cannabis plants have an estimated street value of nearly $300,000. Mr Strbac admitted his offence immediately.
It is important in sentencing an offender not only to refer to what happened, but also to refer to the personal circumstances of the offender. Mr Strbac has no previous convictions. Not only that, he has a series of references from family and friends which point out that he is remorseful for what he has done and has struggled successfully through his life, which started off in very difficult circumstances. He is well regarded by his family and friends.
Ms L C Hutchinson of counsel who appeared for Mr Strbac called her client to give evidence. He was involved in the conflict arising from the break-up of the former country of Yugoslavia. His father was killed in the conflict and he fled as a refugee to Australia with his mother and a brother. The conflict obviously had a traumatic impact on him as a child. Those impacts have been recorded to some extent by a psychiatrist, Dr John Albert Roberts, who prepared a report and more so by a psychologist, Laura Durkin, who also prepared a report.
Mr Strbac has a good work history in Australia and, as I said, got engaged and married. He had taken cannabis as a teenager and in his early 20's. He stopped taking it, but a month after his wedding there was an industrial accident which rendered him incapacitated - I have seen a graphic photograph of his injured foot - for some months. This meant that his wife had to care for him. There were issues to do with the payment of compensation and pressure for him not to stay in hospital. According to Mr Strbac's wife - who was also called to give evidence - that pressure came from his employer and was related to the employer's liability. The impact of the injury was significant. He was physically incapacitated. It affected his mood and outlook on life. Mrs Strbac described how he became depressed, emotional, ill-tempered and uncommunicative. Related to this was the expectation - perhaps cultural, but nevertheless important - that he would be the breadwinner for him and his wife. Mr Strbac could not discharge that assumed responsibility. He started smoking cannabis again.
There is a related factor that I need to explain. The custom in Mr Strbac's cultural community on getting married is that the young couple are provided with cash for them to build their future. This happened to the Strbacs when they were married. However, because of the slowness of being paid by the insurance company and the lack of funds, they found that they had to spend most of their money, almost $40,000, in simply supporting themselves. In other words, the gifted capital fund had to be used simply to keep them going, rather than contributing in some significant way to their future. This again bothered Mr Strbac very much.
When Mr Strbac took up the habit of cannabis again, he was smoking a lot. He was at home. His wife was looking after him for a while but then she returned to work. Mr Strbac decided that he needed to make up for the loss of the capital fund. He decided to do this by growing cannabis in the back yard. That explains what the police found.
Mr P Low, who appears for the Director of Public Prosecutions, cross-examined Mr Strbac about how much money he would have made from the cash crop. It must be, at best, an estimate, but what is clear is that he would make far more than the loss of $40,000 or so in the gifted capital. The figure he might make would be closer to $100,000 or more. Mr Strbac was also, of course, supporting his own habit and was quite enterprising in cloning plants to get to the eventual number of about 100 that the police found.
Dr Roberts diagnosed Mr Strbac with a "substance use disorder" in current remission but also noted that he is "suffering from chronic pain arising as a result of a physical injury" which was a factor in substantially aggravating his level of marijuana use in order to obtain pain relief". Dr Roberts provided a treatment plan which would involve abstinence from cannabis and regular testing. The testing has proved negative in the sense that it has not disclosed any further use of cannabis. In his recent report of 21 July 2015, Dr Roberts said that Mr Strbac "appears to be making a significant effort in regard to dealing with his substance use disorder".
Laura Durkin, the psychologist, thought that Mr Strbac "does not present with many risk factors for offending". She accepted his account that he was "a relatively stable individual who has never before been in contact with the criminal justice system". Although not diagnosing a condition, Ms Durkin suggested that Mr Strbac "has resorted to inappropriate means of coping, namely smoking cannabis, to manage distressing emotions and to avoid feelings of boredom". Ms Durkin made observations about disclosure by Mr Strbac to her of what she called "permissive beliefs about the use of cannabis". Mr Strbac said under oath in the witness box that he no longer holds those beliefs because he has educated himself about the impact of illegal cannabis use within the community. The amount of money that he was going to make from the cannabis would not only far exceed the loss he sustained but would, he told Ms Durkin, help him towards purchasing a house.
Mrs Strbac is pregnant and is due to give birth very soon.
The essence of Ms Hutchsinson's submissions on behalf of her client was that Mr Strbac's moral culpability was reduced by the fact that he was driven by his addiction. Unlike other cases where an offender's decision to grow a commercial crop was a soberly assessed enterprise - for example R v Heffernan [2014] NSWDC 302, a man whom I sentenced last year in Newcastle - Ms Hutchinson argued that her client's behaviour was driven by the addiction, so that its objective seriousness was reduced by that motivational factor.
Ms Hutchinson emphasised the impact which the injury and incapacity had on her client's emotions and relationship with his wife. The decision to grow this crop was made in that environment of a great amount of pain, high emotions, disappointment and a failure to meet expectations. She pointed to the fact that Mr Strbac had given up the habit and started again after the injury, but in a much more driven way.
Ms Hutchinson referred to Mr Strbac's traumatic past and argued in her written submissions (which became MFI 1) that there is a link between his "diminished emotional responses and his traumatic youth" such that her client "should bear a lesser moral responsibility for his offending, than would those with a normal or advantaged upbringing". There is some force in that submission. Ms Hutchinson has made out, I agree, a causal connection between his addiction and his offending, which affects the objective seriousness, as I have already observed. It was a very ill-considered enterprise driven by a man who was in very vulnerable circumstances. Ms Hutchinson pointed to her client's good character and prospects of rehabilitation, his strong work ethic and his expressed remorse.
Mr Low, on the other hand, emphasised the distinction between Mr Strbac's motivation when he started growing the cannabis and later on as he persevered to eventually reach 100 plants. The decision to commence the cultivation may have been driven by the factors referred to by Ms Hutchinson, but the continuation of the enterprise, Mr Low said, pointed to its objective seriousness being higher.
Mr Low acknowledged the impact of the pressures from the employer, the insurer and the personal shame and pain which Mr Strbac experienced. I also emphasise that Mr Strbac alone was undertaking this enterprise and simply did it in order to improve his financial position. He was not only wanting to make up what he lost but earn, so to speak, far in excess.
As I said, the maximum penalty is 15 years imprisonment. Mr Strbac's offence is of cultivating a commercial number of plants. The number he cultivated - 100 - was twice the minimum amount for a commercial quantity and half the amount for a large commercial quantity. It was, to my mind, therefore a significant amount and should ordinarily attract a significant sentence.
However, Ms Hutchinson drew my attention to the Court of Criminal Appeal's decision in R v Godden [2005] NSWCCA 160. That was also a case of cultivating a commercial quantity of cannabis. The number of plants in that case was three times as many, over 300. The sentencing judge in that case took into account an offence of possessing a prohibited drug. In addition, the offender in that case obviously had a criminal record but, more significantly, was on a good behaviour bond when he committed the offence. The sentencing judge imposed a sentence of three years and two months on Mr Godden. Having reviewed the authorities Hall J, speaking on behalf of Hunt AJ and Grove J, observed at [20] that - "The sentence of three years and two months with a non‑parole period of two years imposed on the applicant for the offence charged under s.23(2) of the Drug (Misuse and Trafficking) Act 1985, having regard the particular facts of the case, must, in my opinion, be regarded as a very substantial one."
His Honour proposed that the sentence on Mr Godden be reduced to two years and two months and that was the order of the court. In R v Nguyen [2007] NSWCCA 94, Hulme J referred to Godden and raised a question based on certain assumptions about its correctness. However McClellan CJ at CL and Hislop J did not agree with Hulme J's observation.
On comparison between Mr Strbac's case and Mr Godden's case, it seems to me that Mr Strbac's case is less serious. Mr Strbac's involved a third of the number of plants and in Mr Godden's case a more significant drug offence was taken into account. There was also the significantly aggravating feature of the offender being in breach of a good behaviour bond.
For those reasons it seems to me that a sentence of two and-a-half years for Mr Strbac would be an appropriate starting point. I regard that as appropriate taking into account the objective seriousness of the offence and his personal circumstances, including his prospects of rehabilitation. I take into account his wife's pregnancy and the imminent birth of their first child as just another subjective matter rather than a feature which would have significant weight, or any weight, in altering the kind of sentence I would impose.
Because Mr Strbac pleaded guilty at the earliest available opportunity I would discount the two and-a-half year sentence by 25%, thus reducing the sentence and rounding it off to one of 22 months imprisonment. I will now hear the parties on the manner in which that sentence should be served. HIS HONOUR: Ms Hutchinson? HUTCHINSON: Your Honour, for the reasons that were canvassed in evidence and in particular on account of Mr Strbac's need, that is a strong need for rehabilitation, his proved success at efforts to rehabilitate himself and his prospects of rehabilitation, as that expression is understood in s 3A of the Sentencing Act, I submit that in all of the circumstances your Honour could find that it is, I believe the phrase is appropriate in all of the circumstances, if your Honour requires the particular wording I can have it, that it is appropriate in all of the circumstances that that sentence be served by way of an intensive correction order. HIS HONOUR: Yes I need an assessment don't I? HUTCHINSON: Yes, if your Honour were to so find then the procedure today would be to make an order referring him for assessment, which in turn would bind him to make contact with the appropriate office-- HIS HONOUR: Let's hear what Mr Low says about that proposal. LOW: I have nothing further to add to my submissions your Honour. HIS HONOUR: Thank you Mr Low.
I agree with the submission just made by Ms Hutchinson. Her client's prospects of rehabilitation are good and he needs rehabilitation. His efforts to date are very positive. I should have added in my remarks on sentence that because of the seriousness of the offence I regard no sentence other than imprisonment as being appropriate. However the question of how the sentence is served is a separate issue and I propose to refer Mr Strbac for assessment as to his suitability for intensive correction in the community. Accordingly the order which I make is this.
Under s 69(1) of the Crimes (Sentencing Procedure) Act I refer Mr Strbac for assessment as to the suitability of him for intensive correction in the community. HIS HONOUR: So that needs an adjournment I assume and he comes back before me in how much? LOW: At least six weeks your Honour. HIS HONOUR: All right. Sounds like October again. DISCUSSION AS TO DATES HUTCHINSON: Your Honour, my learned friend has just clarified that ordinarily with the referral under s 69 of the Act so too is there an ancillary order made that Mr Strbac would attend within a certain number of days on his local office. HIS HONOUR: Yes and what's his local office? HUTCHINSON: Fairfield is the relevant Community Corrections Office and whether that were for the next seven or within the next seven or 10 days, either would be suitable. HIS HONOUR: Okay. Now when's the baby due? LOW: It's in the next seven to 10 days. HUTCHINSON: 20 August. HIS HONOUR: All right. I've given the direction.
I adjourn the proceedings to Friday, 23 October 2015 at 10am before me in Sydney. I direct Mr Strbac to attend the Community Corrections Office at Fairfield within the next seven days, on or before next Friday 14 August 2015, for the purposes of commencing the assessment. Bail is continued on the same conditions as presently fixed. LOW: The intensive correction order's usually prepared slightly ahead of that time, your Honour. If he is suitable for it may I be excused on the next occasion? HIS HONOUR: Yes is the answer, provided your client, the Director, is legally represented, yes. LOW: As always, your Honour. Thank you. HIS HONOUR: Good. Okay. I will direct my associate, once the ICO arrives to forward a copy to both of you. There's a blue form coming your client's way, Ms Hutchinson. Continuation of bail. Anything else? HUTCHINSON: Not from our perspective. LOW: Just an order for the destruction of the plants and equipment, your Honour.
I make an order under a section of the Drug Misuse and Trafficking Act that my associate will specify in a formal order for the destruction of the prohibited plants and any associated equipment. HIS HONOUR: All right. Mr Strbac, I've heard what Ms Hutchinson has had to say and I've given you a sentence of 22 months imprisonment but we are going to see whether you can serve that by way of intensive correction in the community. That means that it will be very inconvenient for you and you will be under lots of restrictions and you'll have to do some community service probably. That's going to involve you in 22 months of a very restricted life and every day of that you will be thinking, as you are at home with your wife and family hopefully, your son or daughter, that you are far better off at home than at Long Bay or Silverwater, or somewhere further off in gaol. Do you understand that? OFFENDER: Yes your Honour. HIS HONOUR: That is the point. Ms Hutchinson will explain that to you and you will come back to Court on 23 October. In the meantime your bail is on the same conditions, whatever they are and a form will come to you in a moment for you to sign. Do you understand? OFFENDER: Yes I do.

R v Strbac

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