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Kresovic v R

Kresovic v R

Case [2018] NSWCCA 37 19 March 2018

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

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

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (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.

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.
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.
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…

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 Kresovic v R

Details

AGLC: Kresovic v R [2018] NSWCCA 37
Case: [2018] NSWCCA 37
Decision Date: 19 March 2018

CaseChat Overview and Summary

In the High Court of Australia, Kresovic appealed against his sentence following a guilty plea to charges of cultivating not less than a commercial quantity of cannabis plants by enhanced indoor means and supplying a prohibited drug. The court was tasked with determining whether the sentence was manifestly excessive. The appellant, who acted as the principal in the drug operation, had been sentenced to imprisonment terms for each offence, to run concurrently. The aggregate non-parole period was eight years.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was too severe given the nature of his involvement and the sentencing principles applicable in Australia. The court considered the principles of proportionality, deterrence, and the need to reflect the seriousness of the offence. It examined the totality of the circumstances, including the appellant's role as the principal, the scale of the operation, and the impact of his actions. The court also noted the appellant's plea of guilty, which typically warrants a discount in sentence.

The court concluded that while the sentence was at the higher end of the scale, it was not unreasonable or clearly unjust. The appellant's role as the principal and the scale of the operation justified a mid-range sentence. The court found that the totality of the circumstances, including the subjective factors, supported the sentence imposed. The appeal was dismissed, and leave to appeal was granted only to address the issue of the sentence's excessiveness, which was ultimately upheld as appropriate.

Orders