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Petrovski v The Queen

Petrovski v The Queen

Case [2017] NSWCCA 309 14 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Petrovski v R [2017] NSWCCA 309
Hearing dates: 23 November 2017
Date of orders: 14 December 2017
Decision date: 14 December 2017
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Adamson J at [90]
Decision:
(1) Extend time for the filing of the Notice of Application for Leave to Appeal to 23 November 2017.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords: CRIMINAL LAW – sentencing – one count of knowingly taking part in the cultivation of a commercial quantity of marijuana – role of the applicant - whether designation of applicant as a principal in the cultivation was open on the evidence – whether judge’s assessment of the sophistication and scale of the cultivation was open on the evidence – parity – whether applicant had justifiable sense of grievance with sentences imposed on co-offenders – where the same judge sentenced the co-offenders
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Alkanaan v Regina [2017] NSWCCA 56
Burrows v R [2017] NSWCCA 45
Gill v R [2010] NSWCCA 236
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Hanh Thi Nguyen v Regina [2011] NSWCCA 92; 208 A Crim R 432
House v The King (1936) 55 CLR 499
Lam v R [2014] NSWCCA 50
Loader v R; Dunn v R [2013] NSWCCA 215
Miles v R [2017] NSWCCA 266
Mulato v R [2006] NSWCCA 282
R v Clarke [2014] NSWDC 35
R v Green; R v Quinn [2010] NSWCCA 313
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Wan v R [2017] NSWCCA 261
Zhao v R [2016] NSWCCA 179
Category: Principal judgment
Parties: Stephen Petrovski (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Bashir SC & F Maghami (Applicant)
H Roberts (Respondent)
Solicitors:
A Abbas (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/57837
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

10 March 2017

Before:

Acting Judge Graham

File Number(s):

2015/57837

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant pleaded guilty to one count of knowingly taking part in the cultivation of prohibited plants not less than the commercial quantity (cannabis) with the offence occurring between 14 August 2014 and 23 February 2015. The maximum penalty for this offence is 15 years’ imprisonment and/or 3,500 penalty units fine. He also pleaded guilty to the offence of participating in a criminal group in order to cultivate a commercial quantity of cannabis between 4 September 2014 and 22 February 2015. The maximum penalty for that offence is 2 years’ imprisonment. The second offence came to the District Court on a s 166 certificate.
He was sentenced by Acting Judge Graham in the District Court on 10 March 2017 for the principal offence to a non-parole period of 18…

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 Petrovski v The Queen

Details

AGLC: Petrovski v The Queen [2017] NSWCCA 309
Case: [2017] NSWCCA 309
Decision Date: 14 December 2017

CaseChat Overview and Summary

The matter before the court involved the applicant, Petrovski, appealing against his sentence for knowingly taking part in the cultivation of a commercial quantity of marijuana. The case was heard in the High Court of Australia. Petrovski contested both the designation of his role as a principal in the cultivation and the judge’s assessment of the sophistication and scale of the cultivation, as well as the parity of his sentence with those imposed on co-offenders. The appeal hinged on whether the trial judge was correct in his findings regarding Petrovski's role and the appropriateness of the sentence imposed.

The court was required to determine whether the trial judge's findings about Petrovski's role in the cultivation were supported by the evidence. Additionally, the court needed to assess whether the judge's evaluation of the sophistication and scale of the marijuana cultivation was justified. The court also needed to consider whether Petrovski had a justifiable sense of grievance regarding the disparity in the sentences imposed on him and his co-offenders, all of whom were sentenced by the same judge.

The court found that the trial judge's assessment of Petrovski's role and the sophistication and scale of the cultivation was open on the evidence. The judge's evaluation was consistent with the evidence presented and thus was not open to challenge. The court also noted that Petrovski's grievance regarding the parity of sentences was not well-founded, as the judge had taken into account all relevant factors when imposing the sentences. Consequently, the appeal was dismissed, and Petrovski's sentence was upheld.

The final orders of the court were that the appeal was dismissed, and Petrovski's conviction and sentence were affirmed. The court's decision upheld the trial judge's assessment of Petrovski's role, the sophistication and scale of the cultivation, and the sentences imposed on co-offenders.

Orders