Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kresovic v R [2018] NSWCCA 37 Hearing dates: 2 March 2018 Date of orders: 19 March 2018 Decision date: 19 March 2018 Before: Hoeben CJ at CL at [1]; Campbell J at [48]; N Adams J at [49] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – an offence of cultivate not less than a commercial quantity of cannabis plants by enhanced indoor means and one offence of supply a prohibited drug – plea of guilty – whether sentence manifestly excessive – offender acting as principal – mid-range seriousness – strong subjective case – sentence imposed not unreasonable or clearly unjust – leave to appeal granted but appeal dismissed. Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Drug Misuse and Trafficking Act 1985 (NSW) – ss 23(2)(a), 25(1) Cases Cited: Andreata v Regina [2015] NSWCCA 239 Bao v R [2016] NSWCCA 16 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [41]. Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Owen v R [2017 NSWCCA 54 Papworth v R [2011] NSWCCA 253 Kerr v R [2016] NSWCCA 218 R v Van Ryn [2016] NSWCCA 1 Vaiusu v R [2017] NSWCCA 71 Walker v R [2016] NSWCCA 213 Category: Principal judgment Parties: Milivoj Kresovic – Applicant Regina – Respondent Crown Representation: Counsel: G Jones – Applicant T Smith – Respondent Crown Solicitors: Maria Sten – Applicant Solicitor for Public Prosecutions – Respondent File Number(s): 2016/277546 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 June 2017 Before: Pickering SC DCJ File Number(s): 2016/277546 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by his Honour Judge Pickering SC in the Campbelltown District Court on 20 June 2017. 1. The applicant pleaded guilty in the Local Court on 22 March 2017 to one count of cultivate not less than a commercial quantity of cannabis plants by enhanced indoor means (57 plants) contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence has a maximum penalty of imprisonment for 15 years. 2. The applicant also pleaded guilty to one count of supply a prohibited drug (6.708kgs of cannabis) contrary to s 25(1) of the Drug Misuse and Trafficking Act. This offence carries a maximum penalty of imprisonment for 10 years. 3. On sentence, one count of consume electricity without consent was to be taken into account on a Form 1 on the cultivation count and the offence of organise drug premises (first offence) was placed on a s 166 Certificate. 4. The applicant relies upon a single ground of appeal: That the sentence imposed is manifestly excessive Factual background 1. The applicant's premises were located at Mount Pritchard and comprised a brown brick split-level dwelling with a garage under the house. On 15 September 2016 police attended the premises. Police officers knocked on the front door and asked the applicant, who resided at the premises, whether they were being used for the cultivation of cannabis plants. The applicant initially replied "no". When police asked him whether he would allow them to look the premises to confirm that there were no cannabis plants there, the applicant consented. 2. Police discovered a room that contained cannabis plants growing in potting mix in pots. There were lamp shades protruding from the roof with globes attached. The globes were turned on. There were electrical transformers and a charcoal filter attached to the wall. The applicant was placed under arrest and police commenced to search the premises. 3. Police located three vacuum sealed bags of cannabis leaf inside a cupboard of a bar area in the lounge room. They also located a further three large vacuum sealed bags containing cannabis leaf on the other side of the bar's covered area. In the garage in a large metal box was a garbage bag containing nine vacuum sealed bags of cannabis leaf. This all amounted to 6.708 kilograms of cannabis. 4. During the search of the house, Endeavour Energy attended and located an electrical by-pass in the wall cavity in the front bedroom. The by-pass was identified to be powering unmetered electricity for the hydroponic setup. In the bedroom, where the electrical bypass was located, police found one lampshade and one electrical transformer. 5. In the garage, police seized 18 lampshades, 26 globes, 1 power board and 4 transformers. 6. The applicant participated in an electronic record of interview with the assistance of a Serbian interpreter. He confirmed that he owned the house and resided there with his wife. He had lived there for less than two years. He confirmed his initial permission for police to search the premises. He said that he was a regular smoker of cannabis and did so two or three times a day and had been using cannabis for a significant period of time. He said that he gave cannabis away but did not do so for financial purposes. 7. He told police that he was the person who placed the cannabis plants in the room. The plants had been in the room for about four to five weeks. He maintained the plants by pouring water with chemicals onto them four times per week. Because he had some knowledge of electrics, he was able to install the lights, the electrical transformers and the charcoal filters. He used the filters to get rid of the smell of cannabis. 8. There were 57 plants in the room. The plants were grown from cuttings from a previous crop. The applicant said that he intended to smoke some of the cannabis from the plants and sell some. In relation to the six bags of cannabis leaf located in the bar area, the applicant admitted that this was probably left over from the last cultivation and he intended to keep some of it for himself to use with friends and to sell the rest. 9. In relation to the Form 1 offence, he said that he performed the electrical work in bypassing the meter in April or May 2016. He bypassed the metre "so I don't become a suspect because I'm spending too much on electrical energy". He told police that he had grown cannabis plants on a previous occasion. He sold two bags of cannabis about a month and a half before and had received $2,300 for each bag. He said that the money covered the costs he had incurred. He said "I initially thought to use it only for myself but I got some suggestions that it would be good if I can sell some". Proceedings on sentence 1. In dealing with the objective seriousness of these two offences, his Honour noted that "In pretty much every respect the [applicant] was the person solely responsible for all aspects of it" (Sentence judgment, p5). His Honour found that in some respects that simply showed the applicant's honesty in the entire matter, which was to his credit. From an objective seriousness point of view, however, it made him essentially a principal in the cultivation. He was the person who did all the planting, who set up the entire cultivation and he was the one who was maintaining the plants. He was the one with the skills to set up the electrical bypass and other electric installations. He was the one who had done the research to make sure that he knew what to do in order to have a successful crop. 2. His Honour considered that on an objective basis this made the offending more serious than in cases where a person had a lesser role such as simply maintaining the plants. His Honour assessed the level of criminality as closer to the midpoint between the low range and mid range of objective seriousness for an offence of this nature. 3. His Honour found that the supply of a prohibited drug matter was also a serious example of this kind of offence and that the applicant's involvement was that of a principal. He was the one who harvested the crop, dried it, sealed the bags and stored it. He was the one who intended to supply it and who was intending to benefit from such supply. His Honour noted that again to his credit, the applicant was fundamentally honest about all aspects of the supply. His Honour assessed the applicant's involvement as somewhere in the middle between the low and the mid range of objective seriousness for an offence of this nature. 4. His Honour described the applicant as a man in his mid fifties of previous good character with a particularly traumatic subjective case. He had no previous convictions. His background circumstances were set out in a report of Dr Zoran Protulipac. 5. The pre-sentence report showed that the applicant was a 55 year old married man who had been bail refused since the date of his arrest on 15 September 2016. The applicant had been raised in his native country of Serbia and while he reported an initial positive upbringing with his parents and younger sister, he recalled life becoming difficult in his early twenties due to the Bosnia conflict. 6. The pre-sentence report recorded that the applicant had negative memories of his homeland due to his personal experiences with poverty, lack of resources and a transient lifestyle. His family were uprooted from Serbia and moved to Croatia where he reported being held as a prisoner of war for one week. He and his family were then afforded refugee asylum in Australia. He first married the mother of his three children when he was aged 24 and that marriage lasted 26 years. Although he had no current contact with his ex-wife, he had a good relationship with his adult children and had since remarried. 7. The applicant said that he had strong memories of his difficult time in Yugoslavia during the civil war. His Honour accepted that the effects of this traumatic experience had continued even after the applicant came to Australia. 8. One of the applicant's sons gave evidence in the sentence proceedings on his behalf. He said that the applicant had become a very different person since being bail refused and that his period in prison had made him realise how important his family was in his life. He said that the applicant accepted the consequences of his behaviour and the undesirability of engaging in such behaviour again. 9. The pre-sentence report stated that the applicant had experienced problems in relation to cannabis for a very long time. He used cannabis to assist him with some physical injuries but it also assisted him in relation to aspects of his post traumatic stress. This mental health difficulty was not made any better by him being in custody. 10. The pre-sentence report stated that the applicant was very remorseful for his involvement in the offences, even though he appeared at times to minimise the offences in that much of the cannabis was for his own use. His Honour was, however, satisfied that as well as using the cannabis himself, the applicant did sell a substantial quantity of it. 11. His Honour found that the psychological report was important in showing that the applicant had never really appreciated how traumatising his experiences in the civil war had been for him. The report opined that he had probably developed a post traumatic stress disorder without being aware of it and without receiving any treatment for it. His Honour thought that the post traumatic stress disorder explained his involvement in the growing and using of cannabis. His Honour concluded that this made him less of an appropriate vehicle for general deterrence. 12. His Honour also found that his post traumatic stress disorder in many respects reduced his moral culpability for the offending, although his Honour was conscious of the fact that the applicant was fully aware that what he was doing was illegal. Nevertheless, his Honour concluded that specific deterrence was not an important factor in this matter. 13. His Honour noted that the applicant suffered from chronic pain in his back, that he had chronic pain in the chest and suffered from diabetes. These conditions would make his time in custody more difficult. He gave a history of experiencing flashbacks of the war and of developing hypervigilance, fears, nightmares and avoidant behaviours as a result. He regretted very much the loss of his first marriage and what he believed were poor relationships with his children before going into prison. 14. His Honour accepted the assessment by the psychologist that there was only a low possibility of the applicant re-offending and that his prospects of rehabilitation were excellent. Although the applicant did not give evidence in the sentence proceedings, he provided a handwritten letter to the court. In the letter he said how deeply sorry he was for his involvement in these offences. He explained that the catalyst for his use of cannabis and involvement in cannabis production was to help relieve the mental and physical pain from the past. It had also assisted in him dealing with the effects of an industrial accident in 2009 in which he had injured his back. 15. Because of his early plea of guilty, his Honour allowed a discount of 25 per cent. His Honour noted that since his arrest, he had fully co-operated at all times with the authorities and had made extensive admissions against his interest. His Honour also had regard to a significant range of references which confirmed the integrity and prior good character of the applicant. His Honour did not deal with those references in detail but took them into account as confirming the finding which he had already made, that the applicant was a person of good character before this offending. 16. His Honour rejected the submission made by the applicant's counsel that the offending was very opportunistic. His counsel had submitted that fundamentally the applicant's intention was to have cannabis available for his own purposes but he then realised that he could make some money out of it. His Honour found it difficult to accept that the applicant would not have known that growing so many plants was going to result in far more cannabis than he would need. His Honour also noted that the whole setup was designed to achieve maximum growth of the plants by way of enhanced means. 17. His Honour summarised his conclusions as to the applicant's subjective case as follows: "I agree with all other aspects, subjectively, of counsel's submissions on behalf of the offender, including that he is unlikely to reoffend, the significance of his PTSD in reducing the importance of general deterrence in this particular matter, specific deterrence, that his prospects of rehabilitation were good, that his aspect of his underlying mental health issue had clouded his judgment and decision making and that that would factor into the appropriate sentence to be given, and that there was a strong basis to find special circumstances." (Sentence judgment, 16.4) 1. Having made those favourable findings concerning the applicant's subjective case, his Honour returned to the objective seriousness of the offending. He noted that the cultivation and supply offences, although linked in many ways, were still quite separate. In that regard, his Honour noted that some of the drug that he had packaged, came from a different cultivation. His Honour concluded that as a result there would have to be some degree of accumulation in the matter. 2. In relation to the seriousness of the offending, his Honour set out his conclusions as follows: "Unfortunately, in all the circumstances of this matter, there still must be a sentence that reflects the seriousness of the offending that was involved. There is a limit to the amount of mitigation that can go into a matter, even with the extremely strong subjective features that I have outlined in this particular matter. Courts of criminal appeal have still stressed the need for appropriate sentences of those involved in the drug industry, in particular, here, where you have a person both cultivating the drug and involved in the supply of it. Ultimately, therefore, although there is significantly reduced weight for general deterrence in this matter, a reduction of moral culpability, and little need for specific deterrence, there still must be a sentence that reflects the seriousness of the offending involved here. Although I am going to find special circumstances, the special circumstances need still to reflect the minimum appropriate time to be spent in custody in relation to this matter." (Sentence judgment, 17.1) 1. In relation to the cultivate offence, taking into account the Form 1 matter, his Honour nominated an indicative sentence of 2 years and 9 months. In relation to the supply offence, his Honour nominated an indicative sentence of 12 months. His Honour explained that both those sentences had been discounted by 25 percent. One can see from the aggregate sentence of imprisonment for 3 years with a non-parole period of 1 year and 10 months that the amount of accumulation was relatively small. His Honour nominated as the commencement date 15 September 2016 when the applicant had first been taken into custody. Accordingly, the applicant would be released to parole on 14 July 2018, i.e. in a little over 4½ months time. 2. I should make clear at this stage that when the Court queried the extent of the delay in bringing this application for leave to appeal against sentence, it was explained that this was not due to any fault on the part of the legal advisers of the applicant who had only received instructions relatively recently. The concern of the Court was, of course, that most of the sentence had already been served so that even if the Court decided to intervene and reduce the sentence, there might be little practical benefit for the applicant. Ground of Appeal 1 – That the sentence imposed is manifestly excessive. 1. In submissions the applicant accepted as correct the following statement of principle by Gleeson JA (Harrison and Campbell JJ agreeing) in Walker v R [2016] NSWCCA 213 at [53]-[56]: 1. That there are limits to the value of statistics and previously decided cases (see Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520). 2. That the task is not for the court to decide if it would exercise its discretion differently but whether the sentence is in a proper range (Markarian v The Queen [2005] HCA 25; 228 CLR 357; Papworth v R [2011] NSWCCA 253). 3. The submission that the sentence is excessive relates to the last submission in House v The King [1936] HCA 40; 55 CLR 499. To make good this ground an applicant must demonstrate that the sentence was unreasonable or plainly unjust (see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321). 1. The applicant submitted that a quantity of 57 plants was just above the commercial quantity and well below what would be required to establish a large commercial quantity (200 plants). The applicant submitted that within the spectrum of offending conduct, by reference to the number of plants involved, the seriousness of this offence would be at the bottom of the range. 2. The applicant submitted that although there were clear limits to the value of statistics, they were of some value when putting forward an argument of manifest excess, in that they did provide useful indicators of what other judges had decided in cases involving similar offences. His Honour had significantly discounted the application of the principles of general and specific deterrence insofar as they applied to this offending. 3. There was also the applicant's very strong subjective case, including as it did, his prior good character, his psychological issues, his physical problems, his age, his co-operation with the authorities and his good prospects of rehabilitation. 4. The applicant submitted that when all those matters were taken into account, it was apparent that a sentence of this severity was outside the appropriate range for offences of this kind. Consideration 1. In Vaiusu v R [2017] NSWCCA 71 at [28] R A Hulme J (with whom Bathurst CJ and Beech-Jones J agreed) summarised the principles which are relevant to a ground of appeal based on manifest excess. "28 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]. (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. The statistics provided by the applicant and the challenge made to the asserted excessiveness of the sentence are directed primarily at the indicative sentence nominated for the cultivation offence. The difficulty with that approach is that an appeal lies in respect to the aggregate sentence not the indicative sentences. The function performed by the indicative sentences is to set out the reasoning behind the aggregate sentence. The correct approach to an aggregate sentence and the indicative sentences which have been nominated was summarised in Kerr v R [2016] NSWCCA 218 where Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said at [114]: "114 As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive." 1. Part of the applicant's submission as to manifest excess was based on sentencing statistics in relation to the cultivation charge. When, however, one reviews the sentencing statistics relied upon by the applicant, they do not self-evidently show that the indicative sentence for that offence was manifestly excessive. It is towards the upper end of the range but not significantly so. As the applicant properly accepted, the limitations of statistics have been stressed by this Court on a number of occasions (Owen v R [2017] NSWCCA 54 at [72]). In Bao v R [2016] NSWCCA 16 Hoeben CJ at CL (Bathurst CJ and R S Hulme AJ agreeing) said at [73]: "73 … Statistics show a range of sentences actually imposed in the past, not the correctness of that range nor its applicability to a given case: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]. As was observed in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [48], [54] – [55] with respect to consistency of sentencing, what is sought is consistency in the application of relevant principles not some numerical or mathematical equivalence." 1. The fact that a sentence may fall towards the top of a statistical range is not determinative of manifest excess: Owen v R at [76]. Other cases may well establish a range of sentences which have been imposed but do not establish that the sentences which have been imposed mark the outer bounds of permissible discretion: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [41]. The bare statistics say nothing about the role played by the relevant offender or their subjective circumstances. They provide very little useful information to the court unless the court is told why the sentences were fixed that way. In any event, as the statistics relied upon by the applicant in respect of the indicative sentence for the cultivation count demonstrate, 34 per cent of offenders received the same or a greater sentence than the applicant. 2. It is true that his Honour made very favourable findings in favour of the applicant insofar as his subjective case was concerned. His Honour recognised the strength of that case and referred specifically to it in his sentencing judgment. What his Honour did not lose sight of, however, was the objective seriousness of the offending. Although the number of plants was not greatly over the commercial quantity, the applicant was very much the principal in the undertaking. It should also not be forgotten that as well as the cultivate charge, there was also a supply charge. As his Honour found, the applicant was the principal in that offending as well. There is, however, no disconnect between those favourable findings and the sentence ultimately imposed. This is because his Honour, while recognising the strength of the subjective case, determined that the objective seriousness of the offending still required that an appropriate sentence be imposed. In following that approach, his Honour did no more than apply the principle which was enunciated in R v Van Ryn [2016] NSWCCA 1 at [280] where R A Hulme J (with whom Leeming JA and Johnson J agreed) said: "280 True it is that there were a number of significant matters in the respondent's subjective case that called for not inconsiderable mitigation. But giving due recognition to those matters cannot be allowed to prevail over the well-established sentencing principle described by Spigelman CJ in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15]: "It is authoritatively established that the common law principle of proportionality, propounded in Veen No 2, requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires."" 1. When assessing the objective seriousness of offences of this kind "What can be discerned by way of "unifying principles" from the cases is that two important factors relevant to the sentencing in this area are the scale and sophistication of the cultivation and the role of the offender, whether as a principal or a "babysitter" or something in between". (Beech-Jones J (at [46]) in Andreata v Regina [2015] NSWCCA 239 (Ward JA and Adams J agreeing.) The findings made by his Honour demonstrate that he gave careful consideration to these important factors. No error of the kind required in House v The King has been established and accordingly, this ground of appeal has not been made out. 2. The orders which I propose are: 1. Leave to appeal be granted. 2. The appeal be dismissed. 1. CAMPBELL J: I agree with Hoeben CJ at CL. 2. N ADAMS J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his 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: 19 March 2018