Zepina v Regina [2010] NSWCCA 155

New South Wales Court of Criminal Appeal

CITATION: Zepina v Regina [2010] NSWCCA 155

HEARING DATE(S): 12/07/2010

JUDGMENT DATE: 21 July 2010

JUDGMENT OF: Hodgson JA at 1; Whealy J at 2; Buddin J at 19

DECISION: Grant leave to appeal but dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW - Sentencing practice and procedure - Allowance of evidence on appeal where required by the interests of justice - Whether evidence requires intervention by court - Criminal Appeal Act 1912 s 6(3)

Drug Misuse & Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 199 Crimes Act 1900 Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED : Many v R (1990) 51 A Crim R 54

PARTIES: Radovan Zepina v Regina

FILE NUMBER(S): CCA 2009/4129

COUNSEL: J. O'Sullivan - Applicant P. Miller - Crown/Respondent

SOLICITORS: Peter Williams - Criminal & Traffic Law - Applicant S. Kavanagh - DPP

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Keleman SC, DCJ

LOWER COURT DATE OF DECISION: 08/12/2008

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/4129

HODGSON JA WHEALY J BUDDIN J

WEDNESDAY 21 July 2010

Radovan ZEPINA v Regina Judgment

1 HODGSON JA: I agree with Whealy J. 2 WHEALY J: Radovan Zepina ("the applicant") seeks leave to appeal against the sentence passed upon him in the District Court at Campbelltown on 8 December 2008. He had pleaded guilty in the Local Court to a charge of knowingly take part in the cultivation of prohibited plants, by enhanced indoor means. The number of plants was 39 cannabis plants, being not less than the prescribed small quantity (five) and less than the commercial quantity (50). This was a contravention of s 23(1)A of the Drug Misuse and Trafficking Act 1985. It carried a maximum penalty of 15 years and/or a fine of 3,500 penalty units. 3 The applicant was sentenced to a total sentence of two years and six months imprisonment with a non-parole period of 12 months. The sentencing Judge found special circumstances in that this would be the applicant's first custodial sentence, and, secondly, that he would benefit from an extended period of supervision to assist him to overcome his long standing psychological and other problems. His sentence had been discounted "in the order of 25%" because of the utilitarian value of his plea. 4 The sentencing Judge took into account four further offences on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. These included, in particular, an offence of knowingly deal with the proceeds of crime contrary to s 193B of the Crimes Act 1900 for which the maximum penalty was 15 years imprisonment. This related to a sum of $104,450.00 located by police at the applicant's premises. The applicant accepted this was the proceeds of an earlier harvest or harvests of cannabis plants. 5 The facts found by the sentencing Judge may be briefly stated. The police had kept the applicant under observation on a number of occasions. Ultimately, they executed search warrants at a property at Egret Place, Ingleburn (owned by the applicant and his brother) and at premises owned by the applicant at Copeland Street, Liverpool. At the first premises police located a sophisticated hydroponic operation being used to cultivate cannabis plants. Three rooms of this property had been entirely adapted for the purpose of hydroponic cannabis cultivation, and a fourth room was being used for extensive storage. The 39 cannabis plants seized included plants of a height greater than one metre. The premises had been extensively and significantly modified to facilitate the cultivation process. The operation was rightly described by the sentencing Judge as both extensive and sophisticated. 6 The search at the Liverpool premises resulted in the finding of the $104,450.00 the subject of the matter included on the Form 1. Police also found at these premises an extensive range of paraphernalia of the type used in the cultivation of cannabis such as lights, light shades, carbon filters, transformer pots etc. The police undertook an analysis of the value of the plants seized at the Egret Street premises and concluded that the operation would have yielded an average return of about $33,000.00 per month to the applicant. 7 The sentencing Judge examined the applicant's subject features at some length. He found that the applicant was 36 years of age with no prior criminal history. He had been born in Croatia and, after leaving school, he had been conscripted into the Army in that country, during which time he had accidentally shot his best friend. He spent four years as an Ambulance Driver in the War there witnessing a good deal of destruction, terror and death. He presently suffers from post traumatic stress disorder and an adjustment disorder with an anxious and depressed mood. The anxiety related particularly to his wife's health, she having been diagnosed with multiple sclerosis some ten years earlier. He was also anxious about his ability to financially provide for her and his children. The applicant was psychologically dependant on cannabis to manage these anxieties, according to a psychological report. He had migrated to Australia in 1998 and worked in a variety of occupations, most recently installing shower screens. The sentencing Judge took into account the hardship to his family, particularly to his wife, likely to occur because of his incarceration. His Honour held, however, that this hardship would not amount to "exceptional hardship". 8 The sentencing Judge found that the applicant had good prospects of rehabilitation and was unlikely to re-offend. It was accepted that the applicant had shown remorse.