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Cvitan v R

Cvitan v R

Case [2009] NSWCCA 156 4 June 2009

Drug Offence

Sentencing

Appeal

Manifestly Excessive Sentence

Factual Error

Standard Non-Parole Period

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: CVITAN, Zdenko Stipe v R; R v Zdenko Stipe CVITAN [2009] NSWCCA 156

HEARING DATE(S): 15 May 2009

JUDGMENT DATE:
4 June 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Simpson J at 3

DECISION: (i) Crown appeal dismissed; (ii) leave granted to Mr Cvitan to appeal against sentence; (iii) appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offence – manufacture not less than large commercial quantity of prohibited drug - CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether factual error in sentencing – parity – Crown appeal against sentence of co-offenders abandoned – Crown appeal – sentence manifestly inadequate – offence in mid range of objective gravity – insufficient weight given to standard non-parole period – no reason for departure from standard non-parole period – magnitude of departure denotes error – factual error regarding special circumstances – relevance of need for supervision on release – consequence of finding sentence manifestly inadequate – R v Borkowski [2009] NSWCCA 102 applied – parity consideration relevant to sentencing after Crown appeal

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Carroll v The Queen [2009] HCA 13
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Borkowski [2009] NSWCCA 102
R v HFW (Court of Criminal Appeal, 18 May 2007, unreported)
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584

PARTIES: Zdenko Stipe CVITAN (Applicant/Respondent)
Regina (Respondent/Applicant)

FILE NUMBER(S): CCA 2007/13854

COUNSEL: T Game SC (Applicant/Respondent)
L Lamprati SC (Respondent/Applicant)

SOLICITORS: Peter Ash & Associates (Applicant/Respondent)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0509

LOWER COURT JUDICIAL OFFICER: Zahra DCJ

LOWER COURT DATE OF DECISION: 10 October 2008

2007/13854

McCLELLAN CJ at CL
JAMES J
SIMPSON J
4 June 2009

Zdenko Stipe CVITAN v R;

R v Zdenko Stipe CVITAN

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 JAMES J: I agree with Simpson J.

3 SIMPSON J: In August 2008 Mr Cvitan was arraigned on an indictment alleging that, between 1 June and 2 December 2005, he manufactured not less than the large commercial quantity of a prohibited drug (3, 4 – methylenedioxymethylamphetamine – “MDMA”, also known as ecstasy). He entered a plea of not guilty. A jury was empanelled and a trial commenced. On the eleventh day of the trial, 14 August, Mr Cvitan changed his plea and entered a plea of guilty to the charge.

4 The charge, under s 24(2) of the Drug Misuse and Trafficking Act 1985, carries a maximum custodial penalty of imprisonment for life. By Part 4, Division 1A of the Crimes (Sentencing Procedure) Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cvitan v R

Details

AGLC: Cvitan v R [2009] NSWCCA 156
Case: [2009] NSWCCA 156
Decision Date: 4 June 2009

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the defendant, Cvitan, and a Crown appeal against the sentences of two co-offenders. The defendant was convicted of manufacturing a large commercial quantity of a prohibited drug. The Crown's appeal sought to argue that the sentences imposed on the co-offenders were inadequate. The court had to decide whether the sentence imposed on the defendant was manifestly excessive or if there were any factual errors in the sentencing process. Additionally, the court had to consider whether the sentences of the co-offenders were manifestly inadequate.

The court found that the sentence imposed on the defendant was not manifestly excessive and there were no factual errors in the sentencing process. Regarding the Crown's appeal, the court found that the sentences of the co-offenders were indeed manifestly inadequate. The court held that the sentences did not adequately reflect the objective gravity of the offence, which was in the mid-range. The sentences did not give sufficient weight to the standard non-parole period, and there was no valid reason for departing from it. The magnitude of the departure from the standard non-parole period indicated an error. The court also found a factual error in the consideration of special circumstances and the need for supervision on release. The consequence of finding the sentence manifestly inadequate was that the sentences of the co-offenders had to be increased. The court applied the principles from R v Borkowski to determine the appropriate sentence and considered parity in the sentencing process after the Crown's appeal.

The court ordered that the sentences of the co-offenders be increased to reflect the mid-range of the objective gravity of the offence. The court also clarified the importance of considering the standard non-parole period and special circumstances in future sentencing. The sentence of the defendant remained unchanged as it was not found to be manifestly excessive.

Orders