R v Kuzmic [2020] NSWDC 934

District Court New South Wales

Medium Neutral Citation: R v Kuzmic [2020] NSWDC 934 Hearing dates: 18 December 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: Pars [37]-[41], [43]. Catchwords: CRIME – SENTENCE – Cultivation of prohibited plants – Cannabis – Numerous driving offences of, inter alia, driving whilst suspended and disqualified – Plea of guilty at earliest opportunity - Contrition and remorse – Prospects of rehabilitation. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Cases Cited: Kresovic v Regina [2018] NSWCCA 37 R v Hyland [2020] NSWDC 933 Texts Cited: Nil. Category: Sentence Parties: R – Crown Offender – Zoran Kuzmic Representation: R – Pattinson Offender - Todd File Number(s): 2020/00029814 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: The facts of this case are discussed in the sentence of the offender's mother, and technically his co-offender, Ms Susan Gai Hyland, in R v Hyland [2020] NSWDC 933. I turn now to the sentence for the offender in this case, and the son of the duo, Mr Zoran Kuzmic. Mr Kuzmic was born in May 1984. He is currently 36 years old. 2. As I said in R v Hyland, earlier in January 2020 police commenced an investigation into the suspected cultivation of cannabis by enhanced indoor means at premises at Bexley North and also at 37 Thomas Street, Hurstville. At the time, the offender was residing with his mother at Bexley North. He was neither the tenant nor the owner of the property at 37 Thomas Street, Hurstville. 3. Between 15 and 29 January 2020 the police commenced electronic and physical surveillance of the premises at Hurstville. On three occasions during that period the offender was seen to arrive at, leave or be at the premises at Hurstville. 4. The offender's driver's licence was disqualified by order of the Burwood Local Court commencing on 19 February 2019. The disqualification was to end on 19 February 2020. On 17 January 2020, the offender was seen under surveillance at 37 Thomas Street, Hurstville to enter the driver's seat of a grey Subaru Impreza, registered number BVP45G. That constitutes an offence of driving a motor vehicle during a period of disqualification. It is a matter on a s 166 certificate for which I must deal with the offender. 5. On 22 January 2020 at about 8.55am police observed the offender leave the front door of the premises at Hurstville and enter the driver's side door of the grey Subaru and drive it to 26 Oliver Street, Bexley North, where he entered by the front door. That constitutes a second offence of driving whilst disqualified and is a matter which I must deal with on the s 166 certificate. 6. On 28 January 2020 investigators applied for and were granted search warrants for both the property at Bexley North and the property at Hurstville. The search warrant for the premises at Hurstville was executed on 29 January 2020. Inside the premises, the police found an enhanced indoor hydroponic setup with three rooms having been converted into growing rooms. Those three rooms had a self-watering system and heat lamps with charcoal ventilation filters. Police found 67 Cannabis Sativa plants inside the premises at Hurstville. 64 of those plants were over 1 metre high. The commercial quantity of prohibited plants is 50. So, that there was found growing in the premises at Hurstville a commercial quantity of prohibited plants. The offender asks me to take into account on a Form 1 this cultivation. 7. I, in R v Hyland, described what the police found when the search warrant was executed at Bexley North. Police also found at Bexley North 5.289 kilograms of cannabis comprised in five categories. The first was 4.82 kilograms of slightly mouldy, which I am told are compact heads of the cannabis plant and analysis showed it to be cannabis. There were 52.3 grams of fresh vegetable matter containing approximately 40% stem which are analysed to be cannabis leaf. There was 161.9 grams of vegetable matter which were analysed to be cannabis leaf, 445.6 further grams of vegetable material, again cannabis leaf, and finally 447.2 grams of vegetable matter, again analysed to be cannabis leaf. 8. Later, on 29 January 2020 the offender was arrested in Riverwood and has been in custody since that time. The offender, through his counsel, concedes that the cultivation at the two properties was the result of a planned exercise. He also concedes that there was some degree of sophistication in the arrangement. That is really part of the offence of cultivating a prohibited plant by enhanced indoor means. 9. Counsel of the offender, however, points out that there is no evidence that by his conduct the offender obtained a substantial financial reward nor is there any evidence that he armed himself or either property to protect his criminal activity, nor is there any evidence suggesting that the offender may have been cultivating cannabis for on-sale. For example, there is no evidence of any supply of packaging which could be used to package the cannabis nor, for example, any device which might heat seal such packaging, nor any lists of purchases, nor any list of moneys that might be owed to him by purchasers. The offender maintains that this cannabis was for his own consumption. 10. That submission causes me some disquiet. In the Australian Capital Territory, under Territory law, the legality of which is dubious, a citizen can cultivate two cannabis plants to obtain from it cannabis leaf for personal consumption. A cannabis plant, especially one over a metre in height, can yield a large amount of crop. 11. However, the offender was interviewed by a psychologist, Mr Patrick Sheehan, on 16 day of November 2020. Mr Sheehan's report of that date contains this matter: "13. Mr Kuzmic told me that subsequent to his release from custody in 2018 he relapsed to smoking cannabis. He grew his own cannabis plants, initially to save money and to avoid having to interact with suppliers. However, he described having become obsessive about growing and harvesting cannabis, being fascinated by the process, driven to selectively propagate the best plants, and using the oil and other bi-products. His personal time was heavily invested in this process. Mr Kuzmic denied use of any non-prescribed substance since his arrest in January 2020." 1. The extent of the cultivation is probably the result of the obsession that the offender developed for the growing of cannabis, some form of new hobby. There is no evidence that the cultivation was designed for a commercial purpose. The only relevant principle is the principle that the law regards the propagation of such an amount of cannabis as the propagation of a quantity for a commercial purpose, that is a deeming provision.