Kalemusic v The Queen - [2009] NSWCCA 178

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Kalemusic v R [2009] NSWCCA 178

FILE NUMBER(S):
2007/5829

HEARING DATE(S):
12 June 2009

JUDGMENT DATE:
8 July 2009

PARTIES:
David Kalemusic
Regina

JUDGMENT OF:
Allsop P Price J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
14 December 2007

COUNSEL:
C Davenport SC (Applicant)
D Arnott SC (Respondent)

SOLICITORS:
O'Brien & Hudson Solicitors (Applicant)
S Kavanagh Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
SENTENCING
whether facts found were open on the evidence
agreed facts
assessment of offenders role
whether sentence manifestly excessive
parity

LEGISLATION CITED:
Crimes Act 1900 s 527(1)(a)
Criminal Procedure Act 1986 s 166(1)(b)
Drug Misuse and Trafficking Act 1985 s 24(2),
s 25(2)
Firearms Act 1996 s 7(1), s 65(3)

CATEGORY:
Principal judgment

CASES CITED:
Cvitan v R; R v Cvitan [2009] NSWCCA 156
Hopley v R [2008] NSWCCA 105
House v The Queen (1936) 55 CLR 499
Postiglione v The Queen (1997) 189 CLR 295
R v HFW (Court of Criminal Appeal, 18 May 2007, unreported)
R v Khouzame [2000] NSWCCA 505
R v Merritt (2004) 59 NSWLR 557
The Queen v Olbrich (1999) 199 CLR 270

TEXTS CITED:

DECISION:
1. Leave to appeal against sentence granted. 2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5829
ALLSOP P
PRICE J
HARRISON J
8 July 2009
KALEMUSIC v R
JUDGMENT

ALLSOP P: I agree with Price J.
PRICE J: David Kalemusic seeks leave to appeal against the sentences imposed upon him by Freeman DCJ (the Judge) in the District Court on 14 December 2007. He had pleaded guilty to an indictment containing one count of manufacturing not less than the large commercial quantity of a prohibited drug (27.5 kilograms of 3,4-methylenedioxymethyl-amphetamine) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (count 1), one count of supply of an amount not less than the large commercial quantity of a prohibited drug (1,477.4 grams of 3,4-methylenedioxymethylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act (count 2), one count of supply of an amount not less than the commercial quantity of a prohibited drug (764.6 grams of methylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act (count 3) and one count of possession of an unauthorised firearm (.22 calibre pistol) contrary to s 7(1) of the Firearms Act 1996.
An offence contrary to s 24(2) of the Drug Misuse and Trafficking Act is punishable by imprisonment for life. A standard non-parole period of 15 years imprisonment has been prescribed for this offence. An offence of supply of an amount not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act is also punishable by imprisonment for life with a prescribed standard non-parole period of 15 years imprisonment. An offence of supply of not less than the commercial quantity of a prohibited drug…

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 Kalemusic v The Queen

Details

AGLC: Kalemusic v The Queen [2009] NSWCCA 178
Case: [2009] NSWCCA 178
Decision Date: 8 July 2009

CaseChat Overview and Summary

The case of Kalemusic v The Queen involves an appeal against the sentencing of the applicant, Kalemusic, by the Supreme Court of New South Wales. The appeal is based on two grounds: firstly, that the sentencing judge made findings of fact that were not supported by the evidence, leading to a manifestly excessive sentence; and secondly, that there is a sense of grievance due to the disparity in sentences between co-offenders. The applicant was found in possession of significant quantities of drugs and paraphernalia related to drug manufacturing, and was implicated in the operation of a drug laboratory.

The legal issues before the court involved the assessment of the applicant's role in the criminal activities and the proportionality of the sentence imposed. The court needed to determine whether the sentencing judge correctly assessed the evidence and the applicant's role, and whether the sentence was excessive or disproportionate when compared to co-offenders.

In its reasoning, the court examined the evidence and the findings of fact made by the sentencing judge. The court found that the sentencing judge's findings were supported by the evidence and that the sentence imposed was not manifestly excessive. The court also noted that while there may be a sense of grievance regarding the disparity in sentences, this did not necessarily indicate that the sentence was wrong or excessive. The court concluded that the sentencing judge had appropriately considered the circumstances and the principles of parity and proportionality in arriving at the sentence.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the sentencing judge. The court held that the appeal did not succeed on either ground, and that the sentence was just and appropriate given the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

The Notice of Appeal identifies two grounds, namely:1.His Honour made findings of fact that were not open to him upon the evidence before him which resulted in a sentence that was manifestly excessive.2.The applicant has a justifiable sense of grievance arising out of the sentences imposed upon co-offenders.Facts A statement of agreed facts consisting of ten pages was tendered which for present purposes may be conveniently summarised.On 30 November 2005, police commenced surveillance of a property at Colo Vale. In the early hours of the morning of 1 December 2005, police stopped a van in which the applicant and his brother Tom Kalemusic were travelling. They had been driving away from the Colo Vale property. The applicant was searched and $4,465 in cash was located in his pocket (s166 certificate offence). He was also in possession of a bum-bag in which there was a resealable bag containing 0.39 grams of methylamphetamine (Form 1 offence). In the glove box of the van was a silver handgun which had a magazine in it but no round in the chamber (count 4). In the van the police also found a bag and two plastic containers which contained a total of 1,477.4 grams of 3,4-methylenedioxmethylamphetamine (“MDMA”, also known as ecstacy) (count 2) and a half-filled 2 litre Coca-Cola bottle containing 764.6 grams of methylamphetamine in liquid form (count 3). Items removed from the van by police included boxes containing a number of pieces of scientific glassware and a tub which contained various printed internet documents which related to the manufacture of prohibited drug precursors and prohibited drugs.At about midday on the same day, police executed a search warrant at the Colo Vale property. Inside a shed, they found a drug laboratory within which a number of chemical reactions were taking place. In the laboratory were:(a) 27.5 kilograms of MDMA (1.038 kilograms of pure MDMA)(b)9.3 kilograms of MDP2P (capable of making a further 825 grams of MDMA)(c)213.8 litres of liquid containing 184.8 litres of pure safrole (which could be used to produce about 101.6kg of MDMA as its hydrochloride salt). The laboratory had been used to manufacture MDMA and for a few days prior to the execution of the search warrant approximately 1-2 litres of methylamphetamine oil was manufactured. Tony Suteski, Benjamin Eady, Luke Jossey, Karl Plawtschak and Tibor Vestroczi were on that day arrested at the site. Some months later Zdenko Cvitan was arrested.Subjective Circumstances The applicant did not give evidence before the Judge. A Probation and Parole pre-sentence report dated 15 June 2007, a report from Tim Watson-Munro, a psychologist, dated 8 August 2007 and an affidavit of Milan Tonic were tendered. At the time of the commission of the offences, the applicant was 35 years old. He had been born in Bosnia of Croatian heritage on 15 March 1970. His parents immigrated to Australia when he was two years old. After obtaining the Higher School Certificate, he undertook a five year part-time Associate Diploma in engineering which he almost completed. He worked with Telstra as a technical officer for about eight years. The applicant left this employment to commence work doing commercial fit outs and some self-employment in the building industry. At the time of his arrest, he was in a commercial fit out partnership.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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