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. Antecedents 1. I have already alluded to the offender's background in reciting his mother's personal circumstances. The offender was raised in the St. George area of Sydney. He has nine half-siblings and step-siblings, but was only in contact with a few of them during his upbringing. Clearly, one of his half-siblings was his mother's son from her first marriage. The offender's earliest memories of his home life are of domestic violence between his parents, which distressed him. He recalled his parents going into bankruptcy when he was five years old. 2. His parents separated permanently, and his father moved on to commence another family. He has had only intermittent contact with the offender since that time. The offender confirmed that his father was a property developer and a "high-functioning alcoholic". His mother had no antisocial behaviour and worked consistently throughout her raising of her son. He was raised in a single parent family. He was never neglected and was always very close to his mother. 3. However, he described himself as "under-supervised" in childhood because his mother needed to work to support him and his half-brother. There was no childhood trauma or sexual abuse. The offender described himself as being "adventurous" and "wild", excelling in sports rather than academic subjects. However, he was influenced by some older half-brothers who were drug users, two of whom have served a custodial sentence. 4. The offender commenced year 7 at Marist Brothers College, Kogarah. He reported to Mr Sheehan that he had poor concentration and that he was persistently disruptive in class. He was frequently suspended. He was expelled during year 9 for bringing cannabis to school. He was then enrolled at Endeavour Sports High at Caringbah, but was expelled in the first term. His mother then arranged for him to relocate to Uralla to live with extended family members. That was in an attempt to curb his misbehaviour. The offender eventually completed high school whilst living in Uralla. 5. Although his behaviour at school did stabilise when he was at Uralla, his living conditions were unstable tending to move from place to place through poor relationships with his host families. He lived in share accommodation with other school boys in the final year of high school, and then returned to Sydney to live with his mother. 6. The report of Mr Sheehan continues thus: "6. Mr Kuzmic moved from the family home aged 19 years but has returned to live with his mother throughout adulthood, being unable to sustain independence for any period beyond two years. He was living with his mother at the time of his arrest for the current matters. He denied that his mother… had played any active role in his current cultivation charges. He said: 'Looking back, I guess I manipulated her to put up with it. I took advantage of her, I haven't been a good son'. He reported feeling ashamed that he exposed his mother (who is co-accused in the current matters) to criminal charges through his own actions." 1. At the age of 19, the offender commenced an apprenticeship to become a boilermaker. He has worked on and off in the metal fabrication industry since that time, his work being interspersed with periods of incarceration. His substance misuse has also been a major source of disruption of his employment. 2. At the time of the offender's arrest, he was seeking to start his own welding business and had only six months left of TAFE to achieve his boilermaker's qualification. He had been enrolled at the time at the Ultimo TAFE. The offender has expressed his intention to return to working in metal fabrication as soon as he is released, and no doubt he wishes to complete his apprenticeship. If he does so, it would have taken him from the ages of 19 to 37 or more to complete his apprenticeship. 3. The offender has been in and out of intimate relationships. He has a daughter, his mother's granddaughter, with whom his mother is currently living in Coniston. The relationship that the offender had with his daughter's mother persisted for some two years. According to the history given by the offender to Mr Sheehan, his former partner's family raised his daughter. At one time, the offender had a relationship of almost three years duration but that was with a drug user. Since 2010, the offender has had no serious relationship and regards himself at the current time as single. 4. Mr Sheehan took this history of the offender's abuse of illicit drugs: "12. Mr Kuzmic described a long history of evolving polysubstance use problems. He commenced smoking cannabis from the age of 13 years, and was a regular smoker of cannabis from that time, but in modest quantities of 0.5 grams per day. He has smoked cannabis throughout his life, abstaining in custody. His longest period cannabis free was two years. His use has escalated over time, up to five grams per day. He smoked methylamphetamine from the age of 19 years and throughout his twenties, smoking up to one gram per day for extended periods. He never used a needle. He experienced symptoms of psychosis when drug affected, but was never hospitalised. He said that much of his criminal history had occurred as a consequence of his methylamphetamine use. He has tended to cease all substance use on admission to custody. He ceased habitual use of methylamphetamine in 2012, using occasionally for a few further years and abstaining entirely for the past 3-5 years." 1. However, the offender continued to smoke cannabis and that led to the establishment of the cultivation for which he currently stands for sentence. Prospects of rehabilitation (1) 1. In custody the offender has attended and completed a large number of sessions in remand for "addictions". What, I ask myself, are the prospects of rehabilitation? Mr Sheehan tells me this: "24. Mr Kuzmic reports having faced some challenges in early life (such as domestic violence, family separation and an indifferent relationship with his father), but could not [be] regarded as having a background o[f] serious social deprivation. He described adolescent behavioural problems giving way to repeated criminality in adulthood, mostly embedded within a chronic methylamphetamine use disorder. Mr Kuzmic provides a history that points towards solid employment potential and interest in pursuing prosocial interests, persistently undermined by impulsivity and the high value he has placed on using substances. Although Mr Kuzmic reports sustained success in overcoming his methylamphetamine dependence, his cannabis use has continued to be a source of poor judgment, supported by misplaced benign views about this drug. Such views will need to be surrendered. 25. Encouragingly, Mr Kuzmic reports to have remained abstinent since his arrest in January 2020. He is currently participating in a medium intensity AOD program in custody (22 group sessions). He is forming an understanding of what strategies he will need to take in order to achieve his broader goals and achieve stability as he enters his forties. It remains to be seen to what extent Mr Kuzmic will internalise these learnings in a way that results in enduring behavioural change. Weekly individual booster sessions with an AOD worker on release may be a helpful therapeutic adjunct. Should he be unable to sustain abstinence on release, Mr Kuzmic may need to consider a more intensive residential program." 1. Based on that formulation, the offender's increasing maturity, and the positive aspect that he was able to wean himself off his methylamphetamine addiction, the prospects of rehabilitation are fair, that is, they are positive for the offender weaning himself off his cannabis addiction. He has to realise that only if he does so will he be able to complete his work training, establish his business as a welder, and perhaps find a new partner and settle down to a conventional family life. Contrition and remorse 1. Clearly the offender has shown contrition and remorse for involving his mother in this crime of cultivating prohibited plants at Bexley North. According to Mr Sheehan, the offender told him that he regretted and had remorse for having placed himself in the situation where he was charged and in custody, but the primary source of his remorse was of how his actions compromised his mother and placed her freedom in jeopardy. 2. Mr Kuzmic may believe that, other than his mother, there was no victim of this crime. However, he is the victim of his own crime and, if he had continued to cultivate large amounts of cannabis, it may well be that he would have been tempted to start selling the drug for profit and that could have led to others becoming addicted. His crime had the potential to badly affect other persons in our community than his mother and himself. He must realise that there is no future for him in cultivating cannabis, and to remove that problem he needs to give up smoking cannabis completely Prospects of rehabilitation (2) 1. As I say the prospects of rehabilitation are fair. Learned counsel for the offender referred me to the decision of the Court of Appeal in Kresovic v Regina [2018] NSWCCA 37, a decision of Hoeben CJ at CL with whom Campbell and N Adam JJ concurred. That was an appeal against the severity of a sentence passed by his Honour Pickering DCJ sitting at Campbelltown on a man who cultivated a commercial quantity of cannabis by enhanced indoor means, but also pleaded guilty to one offence of supplying a prohibited drug (and that was a deemed supply). The offender had cannabis with which to supply others, and it appears that he had intended to do so. His Honour appears to have commenced his sentencing exercise with a head sentence of three years and eight months. Consideration 1. For the principal offence, that is the cultivation by enhanced indoor means of a commercial quantity of cannabis plants, and bearing in mind the matter on the Form 1, I have reached the view that the starting point for the sentencing exercise is a head sentence of three years. I discount that by 25% for the agreed utilitarian value of the offender's plea of guilty at the earliest available opportunity. That reduces the head sentence to two years and three months in prison. 2. Before going to consider the non-parole period, I should indicate that I must deal with the offender for the driving offences to which I have referred. I should point out that the offender has a very lengthy criminal history. It is summed up by Mr Sheehan in this fashion: "22. Mr Kuzmic has a significant criminal history, commencing from 2004 (aged 20 years). There are multiple driving offences (drive while suspended, drive disqualified, drive under the influence of alcohol or other drug, unregistered, uninsured), property offences (Larceny, destroy/damage property, enter enclosed land, steal motor vehicle, steal vessel, goods suspected stolen, break and enter house destroy property, damage property by fire), interpersonal aggression (common assault, assault occasioning actual bodily harm, contravene AVO), drug offences (possess prohibited drug), gaol offences (inmate possess mobile phone/sim card, use or possess mobile phone in place of detention), weapons offences (possess or use prohibited weapon without permit) and a sex offence (Assault with act of indecency). Mr Kuzmic has served several custodial sentences. He estimated his combined period in custody to be five years." Of course, that means I cannot give the offender any leniency. 1. As far as the driving offences are concerned, I should recite the relevant offences, namely, the offences related to driving while suspended or disqualified. The first of those offences occurred on 26 August 2007 when the offender was 26 years old. He drove on a road while his licence was suspended. For that offence, he was fined. At the same time, he was driving under the influence of alcohol or other drugs. On 12 March 2009 he also drove whilst disqualified, and was given a seven month prison sentence, which was suspended under the then s 12 Crimes (Sentencing Procedure) Act 1999. On 25 November 2011 the offender again drove whilst his licence was suspended. For that, he was fined. 2. On 17 January 2012 he again drove whilst his licence was suspended. Under the Fines Act 1996, for that offence, he was given a fine of $1,000. He also used an unregistered motor vehicle at that time. On 21 March 2012 he again drove whilst his licence was suspended. For that offence, he was ordered to perform 150 hours of community service. However, he was called up for that offence and the community service order was extended for a further period of six months. However, he was called up for a breach of that amended sentence, and on callup was imprisoned for three months. 3. On 3 January 2013 he drove whilst disqualified and was imprisoned for a different period of three months. He appealed to this Court and the conviction was confirmed, but the three-month sentence was set aside and he was sentenced to imprisonment for nine months, but that was again suspended under the then s 12 Crimes (Sentencing Procedure) Act 1999. However, he was called up for breaches of a s 12 Crimes (Sentencing Procedure) Act 1999 bond, and was imprisoned for nine months with a six month non-parole period. On 27 December 2013, he again drove whilst he was disqualified and was sentenced to 12 months imprisonment with a non-parole period of six months. The vehicle which he was driving was one that had been stolen. 4. Finally, on 1 March 2019 he drove whilst suspended again. On that occasion, he was disqualified for three months and was fined $800. It was during that three-month disqualification period that the offender drove on two occasions. 5. Bearing in mind the contumelious driving record that the offender has for driving whilst suspended or disqualified, a custodial sentence is called for. In respect of each of the two driving offences I would fix a two-month period of imprisonment, but there should be some cumulation and that cumulation should amount to imprisonment for three months. 6. The sentence for the drug cultivation offence will commence at the expiration of those three months. The question is, what should be the non-parole period? Applying the statutory norm, the non-parole period should be one year and eight months. I have reached the view that the non-parole period should be one year and three months giving the offender the benefit of the assistance of Community Corrections for one year on parole, when he will have their support in drug and alcohol rehabilitation, counselling, and testing if need be. They can support him staying abstinent from drugs. I start the one year three months on 29 April 2020, that expires on 28 July 2021. Orders 1. On the charge that on 17 January 2020, you drove a motor vehicle whilst disqualified you are convicted. I sentence you to imprisonment for two months to date from 29 January 2020, to expire on 28 March 2020. 2. For the offence of driving whilst disqualified on 22 January 2020 I sentence you to imprisonment for two months to date from 29 February 2020 expiring on 28 April 2020. 3. For the charge of cultivating by enhanced indoor means prohibited plants, namely, cannabis being not less than the commercial quantity applicable to that prohibited drug at Bexley North, you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and three months commencing on 29 April 2020 and expiring on 28 July 2021. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 28 July 2022. The total sentence is therefore two years and three months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1, namely, the cultivation by enhanced indoor means prohibited plants in the commercial quantity at Hurstville. 4. The sequence 8 matter is withdrawn and dismissed. 5. In respect of the two driving offences in respect of each you are disqualified from driving for six months. 6. Now, unfortunately for you, Mr Kuzmic, that those six-month disqualification periods only will commence and I have no control over what the Roads and Maritime Service ("RMS") now does, but they do it, as the Roads & Traffic Authority ("RTA") did it, and that is they only commence after you are released from custody. OFFENDER: Oh you're kidding? HIS HONOUR: Sorry. OFFENDER: So that's an extra year after I'm released from gaol? HIS HONOUR: I think that's right, or can they be concurrent? OFFENDER: I'm sure it's-- TODD: I'll look at that for him your Honour and advise. HIS HONOUR: Yes. TODD: It's one of the more complex parts of the criminal law. HIS HONOUR: Well not only that it's complicated by the RMS/RTA. They're a law unto themselves. They can't even calculate a year. Instead of a year being from 1 January to 31 December, their idea of a year is 1 January to 1 January. TODD: Thank you your Honour. HIS HONOUR: Mr Todd will look into that for you Mr Kuzmic, but there's nothing I can do about it. There are automatic periods which are a year each, and I've taken it to the minimum disqualification of six months. OFFENDER: Thank you. HIS HONOUR: The question whether that can be concurrent or not is a matter that Mr Todd can take up with the relevant authority. TODD: Yes your Honour. 1. A drug destruction order, drugs to be destroyed. PATTINSON: Thank you your Honour. TODD: Thank you your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2022