Cvitan v R

[2009] NSWCCA 156

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 1999 (“the Sentencing Procedure Act”) a standard non-parole period of 15 years for the offence is specified.

5 On 10 October 2008 Zahra DCJ imposed a sentence of imprisonment for 14 years and 3 months, made up of a non-parole period of 9 years and 3 months, and a balance of term of 5 years.

6 Mr Cvitan seeks leave to appeal against what he asserts is the manifest excessiveness of the sentence. The Crown, exercising its right under s 5D of the Criminal Appeal Act 1912, appeals against what it asserts to be the manifest inadequacy of the sentence. In those circumstances it will be convenient to continue to refer to Mr Cvitan by his surname.

The facts

7 A statement of agreed facts was put before the sentencing judge. Although, to a degree, this lacks the clarity one would wish, the following essential facts may be derived therefrom.

8 In 2005 a sophisticated manufacturing enterprise was carried on on a rural property at Colo Vale. A number of individuals were identified as having been involved. These included brothers Tom and David Kalemusic, Tony Suteski, Tibor Vesztroczi (also known as Victor Newman), Luke Jossey, and Karl Plawtschak (also known as Plavcak). Another person involved has been given the pseudonym “Benjamin Eady”.

9 Cvitan became involved in early June 2005. For a time he lived on the property, occupying one of the bedrooms in a house that was on the property. He participated in making structural changes to a shed in order to convert it into a drug laboratory. He purchased a number of items used in the construction of the laboratory and ingredients to be used in the manufacturing process.

10 On 29 September, Eady arrived in Australia from Mexico. He had been recruited for the purpose of providing technical expertise on the process. Cvitan met Eady in Sydney, introduced him to David Kalemusic, and provided transport for him to accommodation in Sydney, and to Colo Vale. He was in frequent telephone communication with other participants.

11 On his return to the Colo Vale property, he took part in the manufacturing process under the technical direction of Eady.

12 In the early hours of 1 December police intercepted a white van near the property. In the van were the Kalemusic brothers. Police searched the vehicle and found a loaded silver .22 calibre pistol and a cellophane bag containing 422.2 grams of MDMA; 2 plastic containers, containing 1.0442 kilograms of MDMA; a 2 litre Coca-Cola bottle containing 764.6 grams of methylamphetamine; boxes containing scientific glassware (glass flasks); literature and handwritten notes relating to the manufacture of drugs, including a book entitled “A Practical Guide for Handling Drug Crisis”; and a laptop computer containing drug manufacturing recipes and information. David Kalemusic was in possession of $4,465 in cash, a butterfly knife and a small resealable bag containing 0.39 grams of methylamphetamine. The total amount of MDMA found in the van was said to be 1.4774 kilograms with a purity between 82.2 percent and 83.7 percent. (The astute reader will calculate that the two quantities of MDMA specified add up to 1.4664 kilograms. The difference is immaterial.)

13 Some hours later, on the same day, police executed a search warrant at the property. In the shed they found a large active drug laboratory. In the laboratory were:

(i) 27.5 kilograms of a liquid mixture containing MDMA (1038 grams of pure MDMA);

(ii) 9.3 kilograms of a substance called MDP2P (a substance which can be converted to MDMA – 640 grams of pure MDP2P can produce approximately 580 grams of MDMA);

(iii) 213.8 litres of a liquid containing 184.8 litres of pure safrole (which could have been converted into between 101.6 kilograms and 286.5 kilograms of MDMA).

14 Also located were a variety of items plainly involved in the production of the drug, as well as another pistol, with ammunition, and more drug and chemical related publications and information. There were also computers, one of which contained documents in a file labelled “for Steve”. “Steve” is a name used by Cvitan. It was not disputed that the file was created for his use.

15 At this time the laboratory was still in operation, but in the process of being dismantled. A forensic scientist was of the opinion that it was capable of producing many times the large commercial quantity of MDMA.

16 A number of arrests were made on the day the search warrant was executed. Cvitan was arrested some months later, on 14 July 2006. He declined to take part in a record of interview or a line-up. He has remained in custody since that date.

Personal circumstances

17 Relatively little in the way of evidence of Cvitan’s personal circumstances was put before the sentencing Judge. What there was came by way of a one page document, the source of which is not clear. It showed that he was born in September 1959 and was 46 years of age at the time of the offence. He came to Australia from Croatia with his family in December 1968 at the age of 9 and the family took out Australian citizenship in 1973. He completed his secondary education at a private college in Canberra. He had an older brother who died in 1987. His parents returned to Croatia, his father in 1991 and his mother in 2005. He married in May 1991 and has 2 children aged 14 and 11 years. After his arrest the matrimonial home, which was registered in the name of his wife, was sold.

18 He has had various forms of employment. His only criminal history of relevance consists of convictions, in 1987, of offences of cultivating a prohibited plant and supplying a prohibited drug. The record shows that, for the first of these, he was sentenced to imprisonment for 4 years with a non-parole period of 2 years and 3 months; for the second, to imprisonment for 4 years. (Whether this was a fixed term or not is not apparent from the record.) Both sentences were specified to commence on the same date.

19 Cvitan did not give evidence in the sentencing proceedings. His solicitor supplemented the information available by way of submissions. His Honour was told that the marriage was, in effect, over, and likely to be dissolved. Cvitan had seen his children only intermittently since his incarceration, but has had some telephone contact with them. His wife retained the whole of the net proceeds of the sale of the property. Cvitan has no assets.

Co-offenders

David Kalemusic

20 David Kalemusic pleaded guilty to 4 counts on an indictment. These were of manufacturing not less than the large commercial quantity of a prohibited drug (MDMA); supplying not less than the large commercial quantity of a prohibited drug (MDMA); supplying not less than the commercial quantity of a prohibited drug (methylamphetamine); and possession of an unauthorised firearm (the .22 calibre pistol in his possession at the time of his arrest). Each count of supplying was alleged (and admitted) to have occurred on 1 December 2005.

21 He was sentenced by Freeman DCJ to a total effective sentence of imprisonment for 16 years and 3 months with a non-parole period of 12 years and 6 months. Some (unidentified in the published Remarks on Sentence) other offences were taken into account pursuant to Part 3 Division 3 of the Sentencing Procedure Act. In recognition of the plea of guilty his Honour reduced the sentence he otherwise would have imposed by one sixth (sixteen and two-thirds per cent). An application for leave to appeal against the asserted severity of the sentences has been filed and is listed for hearing next month.

Benjamin Eady

22 Eady pleaded guilty to the same offence as Cvitan. Initially he was sentenced to imprisonment for 6 years and 8 months, with a non-parole period of 5 years. What was held to be a very minor offence (possession of a small amount of cannabis leaf) was taken into account. Eady had given substantial assistance, and the sentence imposed at first instance was reduced by 50 percent for that assistance together with the plea of guilty.

23 Following a successful Crown appeal that sentence was quashed and Eady was sentenced to imprisonment for 8 years with a non-parole period of 6 years. This Court concluded that his role was “in about the middle of the range of objective seriousness”. The judgment appears in the Court records as R v HFW (Court of Criminal Appeal, 18 May 2007, unreported) but it does not appear to have a medium neutral citation apparently because as at 18 May 2007 the proceedings against co-offenders were outstanding.

Tony Suteski

24 Suteski was charged with the same offence as Cvitan, that is, manufacturing not less than the large commercial quantity of a prohibited drug. He offered a plea of guilty to an alternative charge of manufacturing an unspecified quantity of MDMA. The Crown declined to accept the offered plea in full satisfaction of the indictment. He thereupon stood trial before Freeman DCJ sitting without a jury and was found guilty and convicted.

25 In sentencing Suteski, Freeman DCJ took into account the “commendable … extraordinary celerity and simplicity” with which the trial was conducted as a factor justifying an (unquantified) moderation of the sentence that he would otherwise have imposed.

26 Freeman DCJ, after considerable analysis, found that Suteski’s offence fell “just short of the mid range of objective seriousness”. This was because of the analysis he had undertaken of what Suteski in fact did, and also by reference to the characterisation made in this Court of the role of Eady.

27 Suteski was sentenced to imprisonment for 12 years with a non-parole period of 8 years. A Crown appeal against the leniency of the sentence was filed, but was withdrawn.

The Remarks on Sentence

28 Zahra DCJ recounted the facts as drawn from the agreed statement. His Honour appended to his Remarks on Sentence a note of the sentences imposed on various offenders, Eady, Suteski, Vesztroczi, Plawtschak, Jossey, and Tom and David Kalemusic.

29 Zahra DCJ went to considerable trouble to analyse the evidence disclosing the part played by Cvitan in the enterprise. He was unable to conclude (beyond reasonable doubt) that Cvitan was involved in recruiting Eady from Mexico. He found it difficult to assess with precision the nature of Cvitan’s involvement at the time of the execution of the search warrant, at which time the laboratory was still in operation, but was being dismantled. Cvitan was no longer residing at the property. His Honour found no evidence that apart from the purchase of the items mentioned Cvitan provided any finance for recruitment of personnel or travel or in the extensive equipping of the laboratory.

30 He did note that Cvitan was the first person contacted by Eady on his arrival in Australia, and that he introduced Eady to David Kalemusic, and, with Kalemusic, arranged his accommodation up to the time he was taken to the Colo Vale property. He recognised that Cvitan assisted in the laboratory under the technical direction of Eady but found it difficult to determine the extent and nature of that assistance. He considered it probable that his role was more than that of a labourer. He noted that Cvitan assisted in the building and setting up of the laboratory, and in converting the shed. He noted that Cvitan had lived at the property for a time during the same period as the drug was being manufactured. He noted evidence giving rise to an inference that Cvitan had a role in recruiting two other participants as labourers.

31 He accepted a proposition put by the Crown that Cvitan:

“ … should be regarded as a willing, integral and significant player in the criminal enterprise.”

32 He considered the computer file labelled “for Steve” to be significant, supporting a finding that Cvitan was concerned with the process of manufacture at a level greater than a person who was simply labouring at the direction of others. He noted the absence of any evidence suggesting that Cvitan was or was to be involved in the distribution of the drugs. This was in contrast to, for example, the role of David Kalemusic, whose pleas of guilty to the two offences of supply established that he was significantly involved in the distribution of the manufactured drug.

33 In the end, his Honour expressly found a series of facts on the basis of which he sentenced Cvitan. These were:

(i) he was involved at an early stage;

(ii) he was instrumental as the point of contact with Eady on his arrival in Australia and following;

(iii) he assisted in the construction of the laboratory;

(iv) he purchased equipment and materials;

(v) he was involved in the manufacturing process;

(vi) he received reports from Eady of the yield of the manufacturing processes (from this he inferred that Cvitan had “some management role”, and an interest in the increased yields);

(vii) he was motivated by profit (although what he expected to receive by way of reward could not be determined, but, taking into account the quantity of the drug produced, the profit to be earned was likely to be high.)

34 In determining the objective gravity of the offence, his Honour observed that the operation was one “of considerable scale”. He found that scale to be central to his conclusion that the objective gravity of the offending was high. Large quantities of the drug were produced.

35 Accordingly, his Honour rejected a submission put on behalf of Cvitan that his culpability was less than that of Suteski. He considered that Cvitan’s role was greater than Suteski’s had been. Suteski’s offence was found by Freeman DCJ to have been “just short” of the middle of the range of objective seriousness for offences of the kind. Zahra DCJ concluded that Cvitan’s offence fell within the middle of the range of objective seriousness.

36 His Honour then turned his attention to Cvitan’s antecedents, and noted the previous convictions to which I have already referred. He noted the term of imprisonment that had been imposed.

37 He then outlined the personal circumstances which I have already mentioned. He noted that there was no material before him on which he could make a finding that Cvitan had expressed remorse or contrition.

38 In considering what, if any, reduction should be allowed by reason of the plea of guilty, His Honour noted that a contested committal, of 5 days, had taken place, following which Cvitan was committed for trial. He recorded that the trial had proceeded until its eleventh day, a time when the Crown case was near completion and the issues in the trial were defined. Nevertheless, he found that there had been some facilitation of the course of justice and allowed a reduction for utilitarian benefit “in the order of 5 percent”.

39 He found little material upon which to make any assessment of Cvitan’s prospects of rehabilitation.

40 He found that special circumstances existed, justifying departure from the ratio between the head sentence and non-parole period specified in s 44(2) of the Sentencing Procedure Act. He gave two reasons for this finding. One is now accepted to have been an error. He said that this was the first time that Cvitan would serve a period of imprisonment. The other reason was his view that, since Cvitan faced a lengthy sentence, he would benefit from a lengthy period of parole supervision upon release. Each of these reasons is the subject of challenge in the Crown appeal.

41 His Honour then considered the applicability of the standard non-parole period prescribed by Part 4 Division 1A of the Sentencing Procedure Act. He found that reasons existed for departing from that standard non-parole period. The first reason he gave was the plea of guilty: but he (correctly) recognised that, even when the standard non-parole period is not, by reason of a plea of guilty, strictly applicable, it remains relevant as a reference point. The other reason he gave was a repeat of his view that Cvitan would require a lengthy period of parole supervision on his release.

42 His Honour then imposed the sentences I have outlined above. He gave a synopsis of sentencing of other offenders, mentioned above.

The proceedings in this Court

43 The ground of appeal initially pleaded in the Crown appeal was, as is usual, that the sentence is manifestly inadequate. That was supplemented by written submissions identifying two respects in which it was said his Honour was in error. These were:

“Insufficient weight given to the standard non-parole period”;
“Errors regarding special circumstances”.

44 An amended notice of appeal, filed by leave and with consent, pleaded these two circumstances as specific grounds of appeal. This was done to circumvent any suggestion that the errors alleged were something less than grounds of appeal: see Carroll v The Queen [2009] HCA 13.

45 The second ground itself has two parts: firstly, that it was factually wrong to give as a reason for finding special circumstances that Cvitan would be facing his first term of imprisonment: his record makes it clear that that was erroneous; secondly, that it was wrong to make that finding by reason of the perceived need for a lengthy period on parole on supervision following release.

46 On behalf of Cvitan two grounds of the application for leave to appeal were pleaded. They are:

“1. The sentencing judge erroneously took into account as an aspect of the offending the 213.8 litres of liquid containing 184.8 litres of safrole. [see para [13] above]
2. The sentencing judge failed to have adequate regard to the parity principle and the sentences imposed on [David] Kalemusic and Suteski.”

47 It is convenient to turn first to the Crown appeal.

The Crown Appeal

(i) Ground 1: the standard non-parole period

48 As indicated above, the standard non-parole period fixed for the offence to which Cvitan pleaded guilty is 15 years. Since Zahra DCJ found Cvitan’s offence to be in the mid range of objective seriousness, s 54B required that to be the non-parole period, unless his Honour determined that there were reasons for not doing so. It was not contested by the Crown that the plea of guilty was one reason for departing from the standard non-parole period: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. However, that does not render the standard non-parole period irrelevant. It remains relevant as a “reference point, or benchmark, or sounding board or guide post …”. It was, of course, open to His Honour, for reasons other than the plea of guilty, to impose a non-parole period either greater or lesser than 15 years.

49 As I have indicated, a plea of guilty is, of itself, a reason for departing from the standard non-parole period. However, that circumstance does not give free reign to the sentencing judge to ignore the standard non-parole period or re-open an unfettered discretion in the sentencing exercise. The standard non-parole period retains considerable significance. It may be, in many cases, that, if all else is equal, all the plea of guilty does is justify a reduction in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. That remains a matter of individual sentencing discretion (to be exercised within the permitted parameters.)

50 On behalf of the Crown, a calculation was performed, determining what the sentence would have been had the standard non-parole period been imposed, but reduced by the 5 percent allowed for the plea of guilty. That calculation yielded a non-parole period of 14 years and 3 months. That was precisely the total term that was imposed.

51 Accordingly, the Crown suggested that his Honour may have “transposed” the head sentence and the non-parole period, and then taken the non-parole period from that figure, after the finding of special circumstances.

52 I would reject this hypothesis. There is no indication in the Remarks on Sentence that his Honour made that error.

53 The submission went on to argue that, even if that hypothesis were rejected, the non-parole period is so far below that specified as to suggest that “quite insufficient heed” was given to it.

54 It was then argued on behalf of the Crown that the finding that the motivation for the offence was profit elevates the seriousness of the offence, at least where the offence relates to prohibited drugs. Authority was cited for this proposition. It is not necessary to deal with it, because, as I understand the submission, it was not suggested that that circumstance rendered Cvitan’s offence more serious than one in the mid range of objective gravity. That the motive was profit is a circumstance properly to be taken into account in the determination of objective gravity: see Way, [86]. It is not right, then, to suggest that it ought be further taken into account in the determination of the sentence, and particularly whether the sentence should or should not vary from the standard non-parole period.

55 Reliance was also placed upon the decision of this Court in R v HFW at [32] (Eady’s case). There, James J, with whom Beazley JA and Hidden J agreed, said:

“The conclusion I have reached is that it was not open to his Honour, consistently with his own findings about the objective seriousness of the offence and about the subjective features of the respondent and not taking into account the respondent’s plea of guilty and assistance, to arrive at a putative non-parole period of 10 years, which departed, to the extent to which it did, from the standard non-parole period of 15 years. This conclusion is the more easily reached in the absence of his Honour giving any reasons for arriving at his conclusion.”

56 I do not read this paragraph as purporting to state any principle; it is a finding directed to the facts of the case then before the court. It is, however, an approach to that assessment which may give some guidance in circumstances, such as the present, where a similar determination is called for. Here, reasons have been given, although they are challenged.

57 Leaving aside the plea of guilty, the only reason given for departing from the standard non-parole period was the finding of special circumstances, or, more specifically, Cvitan’s need for supervision on parole on his release. It may be, in cases where sentences are relatively short, that a need for supervision in the community is a sufficient reason to shorten the non-parole period and elongate the parole period. That is not the case where, as here, on any view, the sentence to be imposed had to be a lengthy one, necessarily entailing a lengthy parole period, even for a sentence that adheres to the statutory proportions. As the Crown pointed out, the regime regulating parole and supervision on parole places a limit of 3 years’ supervision. Plainly, Cvitan was going to be sentenced to a term of imprisonment of which the parole period, (on the statutory ratio) exceeded 3 years. In this case, the need for supervision should not have had any impact on the imposition or otherwise of the standard non-parole period.

58 The response made on behalf of Cvitan to the Crown appeal calls for consideration of Part 4, Division 1A of the Sentencing Procedure Act.

59 By s 54A(2), the standard non-parole period:

“represents the non-parole period for an offence in the middle of the range of objective seriousness …”


for the offences in respect of which a standard non-parole period is specified. A Table to the Division identifies those offences and the standard non-parole periods fixed.

By s 54B(2) of the Sentencing Procedure Act , when determining the sentence for an offence, the court is to impose the standard non-parole period:

“ … unless [it] determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”

60 By s 54B(3), the reasons for which a court may depart from the standard non-parole period are confined to those referred to in s 21A. Section 21A sets out, in catalogue form, the aggravating and mitigating factors that a court is to take into account in sentencing. It is little (if anything) more than a statutory enactment of common law principles, and, by reason of the suffix to s 21A(1), is effectively open-ended.

61 In supplementary written submissions, provided after the hearing of the appeal, senior counsel for Cvitan presented an elaborate argument concerning the construction of s 54B, and the explanation given in Way of what was then a new sentencing regime. The essence of the argument, as I understand it, is that, because the determination of “objective seriousness” is made on the basis of circumstances not including mitigating factors, then evidence of any such factors, however trivial, will demand a departure (by reduction) from the standard non-parole period.

62 The argument is not entirely devoid of logic. It is true that, in combination, s 54A and s 54B(2) have the effect of requiring the imposition of the standard non-parole period in respect of offences determined to be in the mid-range of objective gravity; the assessment of objective gravity does not include mitigating factors; it logically follows that subjective circumstances justifying a degree of leniency are capable of enlivening the discretion conferred by s 54B(2). It does not logically follow that any such evidence has the (almost) automatic effect proposed. Whether the subjective case is such as to warrant, or permit, departure from the standard non-parole period remains essentially within the judicial function of the judge.

63 Here, the issue does not arise. There was a minimal subjective case presented, but a maximal reduction in the standard non-parole period. Cvitan could not possibly have hoped for any further reduction.

64 There really was nothing shown that would properly justify departure from the standard non-parole period. The evidence of personal circumstances was meagre indeed. It was urged upon this Court that the loss of his marriage, the loss of contact with his children, and the loss of his material assets, were personal circumstances of Cvitan calling for leniency – possibly in the same vein as evidence of extra-curial punishment. But these are personal circumstances common to many offenders who commit crimes rendering them liable to lengthy terms of imprisonment, and are, usually, a direct and unsurprising consequence of the offending, and the punishment thereby made necessary. Once the finding that the offence was of mid-range severity is accepted (as here it must be) it is impossible to see any justification for any greater departure from the standard non-parole period than that allowed by the reduction in recognition of the plea of guilty. That would suggest that the sentence ought to have been one of a non-parole period of 14 years and 3 months.

65 I am satisfied that the departure from the standard non-parole period was not warranted by the circumstances, was made for reasons that do not withstand scrutiny and cannot be supported, and was of such a degree as to denote error. I am, accordingly, satisfied that error has been demonstrated as contended by the Crown.

Ground 2: special circumstances

66 The second error for which the Crown contends concerns the finding of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act. Clearly, there was factual error in one respect in this: his Honour in part based his conclusion upon the erroneous foundation that Cvitan had not previously served a period of imprisonment. In response to this, senior counsel who appeared for Cvitan pointed out that, on two previous occasions within the Remarks, his Honour had noted the period of imprisonment. He could hardly be said to have been unaware of it. However, the error is explicitly given as a reason for the variation in the sentence ratio.

67 Senior counsel was on stronger ground in arguing, correctly, that the previous sentence is long in the past, that it related to cannabis and had a relatively short non-parole period, which, under the regime then in force, included remissions which would have resulted in the sentence served in custody being of 18 months or less.

68 In my opinion, these responses are persuasive. Cvitan was 28 at the time of his conviction for those offences; subsequent to that time, he married and had children and engaged in regular employment. Although inaccurately framed, the conclusion that the sentence about to be imposed was one that would impact severely upon Cvitan, by reason of his 22 years without encounter with the prison system, was not in itself inaccurate. That may, (in an appropriate case) be a reason for finding that an extended period of conditional release under supervision is called for, and therefore an appropriate basis for a finding of special circumstances. But that is so only if putting the finding into effect will, in reality, have the effect of affording a longer period of supervision. But that returns the argument to that concerning the first ground of appeal.

69 In this case, because of the lengthy sentence that will inevitably be imposed, the second reason for finding special circumstances is, as I have said above, attended with difficulty. Ample time would be available for supervision. Even if it were correct to say that this would be Cvitan’s first term of imprisonment, that could not be a reason, in this case, for finding special circumstances.

70 I accept the argument of the Crown that the finding of special circumstances was not reasonably open to the sentencing judge.

71 I am satisfied that the Crown has established error in the sentencing process. I am also satisfied, for reasons given in relation to the first ground of the Crown appeal, that the Crown has established that the sentence imposed was manifestly inadequate. I will return to the consequences of those conclusions after I have considered the application for leave to appeal against sentence and particularly the second ground thereof, by which parity of sentencing is raised.

The application for leave to appeal

Ground 1: Factual error

72 By this ground of appeal it is asserted, firstly, that Zahra DCJ, in arriving at the sentence he did, took into account the presence in the laboratory of a quantity of liquid containing safrole, a substance that can be converted to MDMA, and, secondly, that it was erroneous to do so.

73 The argument can be stated with simplicity. Cvitan was charged with the manufacture of not less than the commercial quantity of MDMA. He was not charged with possession of a substance which could be converted into MDMA. Nor was he charged with knowingly taking part in such an offence. Thus, the proper particularisation of the offence to which the plea of guilty relates involves the manufacture of the 27 kilograms of liquid containing 1.038 kilograms of MDMA found at the Colo Vale property, together with the 1.4774 kilograms of MDMA found in the van driven by David Kalemusic.

74 If, indeed, His Honour treated the quantity of MDMA the subject of the charge as including the 213.8 litres of liquid, and as relevant for sentencing purposes then, having regard to the significance attributed to quantities of drugs involved in drug offences (see Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584), arguably at least, Cvitan was sentenced for an offence of greater gravity than that the subject of his plea of guilty.

75 It was not contended that the presence of the 213.8 litres of liquid was not a relevant fact to be put before the judge: it was relevant to indicate the magnitude of the operation, and so much was accepted. What must be identified for the resolution of this ground of the application is the use that was made of it for the determination of the sentence. Did his Honour take it into account in the manner now contended? In my view he did not.

76 In recounting the facts, his Honour noted the 27.5 kilograms of liquid containing 1038 grams of pure MDMA, the 9.3 kilograms of MDP2P, and the 213.8 litres of the liquid containing safrole. That was in the context of outlining the nature of the enterprise and the various items and equipment found. This was drawn, it must be remembered, from an agreed statement of facts. Plainly, that the existence of the safrole was relevant was accepted by all. But, under a heading:

“The basis upon which this matter proceeds to sentence is as follows:”

his Honour isolated the facts I have set out above. Not one of these states the quantity of the drug produced. His Honour did add that the operation was one “of considerable scale” and that the scale of the operation was “central” to his finding of objective gravity. On any view, that was correct. He also noted that large quantities of the drug were produced. That was also correct. However, on any fair reading of the Remarks on Sentence, it cannot be said that his assessment took into account the presence of what are called precursors to the manufacture of a drug. There is no indication that the existence of the safrole was taken into account as identifying the quantity of the manufactured drug so as to affect the determination of sentence. This ground must, therefore, fail at the preliminary stage.

77 I would reject this ground of the application.

(ii) Ground 2: Parity

78 Only the sentences imposed on David Kalemusic and Suteski were invoked in support of the parity argument. Kalemusic was sentenced to 16 years and 3 months’ imprisonment with a 12 year 6 month non-parole period. However, he faced four charges, including two of supply. On the manufacture count, the sentence imposed was imprisonment for 15 years, with a non-parole period of 11 years and 3 months. On the second count he was sentenced to imprisonment for 10 years with a non-parole period of 7 years and 6 months.

79 The argument put in relation to his sentence was that, because the sentences imposed in respect of the first and second offences (the first being manufacture, the very same offence which Cvitan admitted) were wholly concurrent, then the actual time to be served should be regarded as “split” between the two. This would mean that the 15 year sentence should be regarded as considerably less, because part of it is, in reality, attributable to the second offence, that of supply. The argument recognised (presumably because the second sentence was shorter than the first) that neither the head sentence nor the non-parole period could be simply divided into two. It was, therefore, in general terms, submitted that Kalemusic’s non-parole period on the manufacture count “should be judged to have been well below [the] 11 years 3 months [actually imposed]”.

80 The argument has no merit whatsoever. Had Zahra DCJ proceeded to sentence in the way hypothesised, he would have been guilty of error of the kind identified in Pearce v R [1998] HCA 57; (1998) 194 CLR 610. There is no reason to think that he did.

81 The fact is that in sentencing Kalemusic, Zahra DCJ had to be aware of issues of totality and of accumulation. He did accumulate the later sentences (although the sentence on the third count, while partially accumulated, was effectively subsumed in that imposed on the manufacture count).

82 I would reject the parity argument advanced in relation to Kalemusic. Indeed, the final submission that was made was that Cvitan was entitled to expect a head sentence and a non-parole period “well below” those imposed on Kalemusic. And that is precisely what happened. The submission recognised that the non-parole period “at least sits conformably below the non-parole period fixed for Kalemusic”, but maintained that the head sentence, when considered against that imposed on Kalemusic, “may even be too high”.

83 As I have said, I would reject the argument. I accept that parity considerations entitled Cvitan to a sentence below that imposed on Kalemusic. And that is precisely what was imposed.

84 That being the case, the parity argument regarding Kalemusic avails Cvitan not at all.

85 As to Suteski, Zahra DCJ expressly found that Cvitan’s role was greater than that of Suteski’s. Suteski was sentenced on the basis that his culpability fell “just short of” the middle of the range of objective seriousness. His sentence was of 12 years, with a non-parole period of 8 years and a balance of term of 4 years.

86 Although Suteski’s sentence might be questioned, in the sense that it, like Cvitan’s, fell well below the standard non-parole period, for an offence said to be “just short of the middle of the range of objective seriousness”, it is in my opinion, a relevant consideration. It is also relevant that the Crown appeal filed was abandoned.

87 Plainly, on the finding of their relative culpability, Cvitan must be sentenced to something greater than Suteski. However, he is also entitled to the relative leniency that was shown to Suteski.

88 In my opinion, the argument that Cvitan’s sentence was excessive by reference to parity considerations with Suteski must fail. He was held to be a more significant participant than Suteski (and that finding is not challenged); he was sentenced to a proportionally greater term of imprisonment. The relativities are “proportionally correct”.

89 I would grant leave to appeal against sentence but dismiss the appeal.

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90 It is now necessary to return to the Crown appeal. I have already concluded that the sentence imposed was manifestly inadequate. A question arises, what orders ought to be made.

91 In this respect also, questions of parity are relevant.

92 In the light of my conclusion above, that the sentences imposed on Cvitan and Suteski are “proportionally correct”, to increase the sentence now would be to distort that relativity in such a way as to create, in Cvitan, a justifiable sense of grievance in relation to the sentence imposed upon Suteski: see R v Borkowski [2009] NSWCCA 102.

93 Contrary to the supplementary submission provided on behalf of the Crown, in Borkowski this Court expressly held that the sentence under consideration was “manifestly inadequate to a very significant degree”, but since the Crown appealed against one but not the other, declined to intervene. That was because intervention in one case and not the other would disrupt the relativities, and create unacceptable disparity. As I have indicated, the Crown initially appealed against the sentence imposed upon Suteski, but abandoned that appeal. No explanation for so doing was forthcoming in this Court, and nothing was identified in this Court that would suggest other than that Cvitan ought to be sentenced relatively with Suteski. He has been so sentenced, and now to correct his sentence, but not Suteski’s, would create inequity of the kind the principles of parity operate to avoid.

94 Accordingly, although the Crown has otherwise established that the sentence is manifestly inadequate, I would dismiss the Crown appeal.

95 I therefore propose the following orders:

(i) Crown appeal dismissed;

(ii) leave granted to Mr Cvitan to appeal against sentence;

(iii) appeal against sentence dismissed.

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