R v Cetojevic - [2005] SASC 273

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CETOJEVIC & CETOJEVIC
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice Sulan)
22 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeals against sentence - appellant Petar Cetojevic pleaded guilty in the District Court to possessing cannabis for sale, possessing 4-Methoxy-A-Methylphenethylamine or PMA for sale and unlawful possession - appellant Nenad Cetojevic pleaded guilty in the District Court to possessing cannabis for sale, possessing methylamphetamine for sale and unlawful possession - appellant Petar Cetojevic sentenced to five years imprisonment with two years and six months non-parole - appellant Nenad Cetojevic sentenced to four years imprisonment with two years and one month non-parole - whether the sentences were manifestly excessive - whether the sentences were outside the established range of sentences for offences involving possession of middle range drugs for sale - discussion of classification of methylamphetamine and PMA as middle range drugs - whether the sentencing judge erred in placing greater weight on the quantity of the drugs rather than the indicia of sale indicating an ongoing commercial element to the offences - appeal allowed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Becker [2005] SASC 186; R v Mangelsdorf (1995) 66 SASR 60; R v Plaister & Graham [2001] SASC 383; R v Sladic [2005] SASC 210, considered.

R v CETOJEVIC & CETOJEVIC
[2005] SASC 273
Court of Criminal Appeal: Perry, Duggan and Sulan JJ

PERRY J: I agree with the orders proposed by Sulan J and with his reasons.
DUGGAN J: I agree that the appeals against sentence should be allowed, and that the sentences proposed by Sulan J should be substituted. I agree with the reasons prepared by Sulan J.
SULAN J: This is an appeal against sentence by two brothers, Petar Cetojevic and Nenad Cetojevic.
Petar Cetojevic pleaded guilty to one count each of possessing cannabis for sale, possessing 4-Methoxy-A-Methylphenethylamine or PMA for sale, and unlawful possession. Nenad Cetojevic pleaded guilty to one count each of possessing methylamphetamine for sale, possessing cannabis for sale and unlawful possession.
Petar Cetojevic was sentenced in the District Court to five years imprisonment with a non-parole period of two years and six months. Nenad Cetojevic received a sentence of four years and two months imprisonment with a non-parole period of two years and one month.
The appellants each complain that the sentences are manifestly excessive and that the periods of imprisonment ought to have been suspended.
Background
On 7 February 2003 Petar Cetojevic was approached by police in his car. Police found four plastic seal press bags containing cannabis on the seat of his car. Three of the bags contained between 2.8 g and 3 g of cannabis, and one bag contained 6.6 g of cannabis. Also found in the boot of the car was a cannabis plant. Police attended at his home and searched rooms identified by Petar Cetojevic as being occupied by him. At that time he resided with his parents and brother Nenad Cetojevic.
A search of the premises located a further thirty three empty plastic press seal bags and a list of names and figures on a coffee table. A tin was located which contained 240 whole tablets, 100 damaged tablets and an amount of green powder and tablet fragments, weighing a total of 118 g. This contained a mixture of 19.6 g of PMA and 3.16 g of methylamphetamine. The commercial value of those drugs was said to be approximately $7,300. Also found was $4,745 cash.
During the course of the police search Nenad Cetojevic arrived home. Police searched his room which was a detached room at the rear of the house. There police located 20.2 g of white powder containing 5.75 g of methylamphetamine in a freezer. A bag containing 539 g of cannabis was also located, as were two sets of scales, plastic resealable bags, and paper with names and figures on it. Also found was $7,000 cash.
The appellants’ antecedents
Petar Cetojevic was nineteen and a half years old at the time of the offence and twenty two years old at the time of sentencing. He had no previous convictions.
Nenad Cetojevic was thirty years old at the time of the offence and thirty‑three years old at the time of sentencing. Unlike his brother he has a relatively minor criminal history which began when he was nineteen years old. The only offence of relevance is in 1997 for possessing cannabis and possessing equipment to administer cannabis for which he received an $80.00 fine. Nenad Cetojevic had not previously been sentenced to a period of imprisonment.
The sentence imposed
The sentencing Judge had regard to psychological reports tendered by each appellant. Mr Fugler concluded that Petar Cetojevic exhibited a social anxiety disorder and low self-esteem. He reported that Petar Cetojevic began using cannabis at the age of sixteen. At the age of seventeen he was exposed to an environment of drug users through his employment as a security guard at various nightclubs. He looked up to Nenad Cetojevic as a role-model. Mr Fugler suggested specialised counselling to address his drug and alcohol consumption, and also to address his anxiety and social difficulties.
Dr Raeside, a psychiatrist, reported that Nenad Cetojevic began smoking cannabis at the age of seventeen, and amphetamine use began in his early twenties. This developed into a habit of daily use of amphetamines intranasally in the years leading up to his arrest. He reported an unremarkable psychiatric history and no current or previous psychiatric disorders. Dr Raeside believed that Nenad Cetojevic would potentially benefit from participation in a drug and alcohol rehabilitation programme.
There is nothing in the reports of Mr Fugler or Dr Raeside of an exceptional nature. A great many offenders who come before the courts are users of drugs and suffer from anxiety and personality disorders. The circumstances of each individual offender must be considered. There is nothing in the reports relating to either appellant which provides exceptional circumstances for their offending.
The sentencing Judge accepted that the appellants’ parents suffer from ill health and both men, although perhaps Petar Cetojevic to a greater extent, provide assistance to their parents both financially and physically by assisting with attendance at medical appointments.
The sentencing Judge concluded that Petar Cetojevic had purchased a bag of tablets for $1,200 and had intended to sell half of the 240 undamaged tablets in order to subsidise the cost of purchase. He accepted that Petar Cetojevic had believed the tablets to be ecstasy, although they were actually PMA. He also accepted that he had grown cannabis, some of which he had smoked, and some of which he expected to sell for approximately $100, which was found in the car. The sentencing Judge concluded that the $4,745 found in his room was indicative of the commerciality of the crime, and that selling had obviously occurred prior to his arrest. This was an ongoing course of conduct of selling drugs. He accepted that Petar Cetojevic showed contrition for his actions.
In relation to Nenad Cetojevic, the sentencing Judge noted his concern for his parents. Nenad Cetojevic is a hard working person who is well regarded amongst those who know him. The sentencing Judge concluded that there was a commercial element to his behaviour.
The sentencing Judge regarded general and personal deterrence to be significant. The nature and quantity of the drugs, and in particular the PMA and methylamphetamine, required that a sentence of imprisonment be imposed.
He also referred to the ‘ongoing and established’ commerciality of the crimes, indicated by the money found and other indicia of sale. He regarded such criminal behaviour as serious, particularly due to its potential to harm the community.
In each case the Judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”). As to Petar Cetojevic the sentencing Judge indicated that but for the plea of guilty a sentence of imprisonment of six years would have been imposed. The severity of this sentence was said to be largely predicated on the quantity of PMA and the potential harm that may be caused by that drug. He allowed a discount of about fifteen percent for the plea of guilty, stating that the plea was not made early. That resulted in a head sentence of five years. In fixing the non-parole period the Judge had regard to Petar Cetojevic’s age, the fact that he had not previously been imprisoned, and that it would be difficult for him in prison. He set a non‑parole period of two years and six months. He declined to suspend the sentence due to the seriousness and commercial purpose driving the offending.
The sentencing Judge indicated that but for Nenad Cetojevic’s plea of guilty he would have imposed a head sentence of five years imprisonment. He applied the same discount of approximately fifteen percent for the guilty plea, to reach a head sentence of four years and two months. He had regard to the fact that Nenad Cetojevic had not been to prison before and he set a non-parole period of two years and one month. He again declined to suspend the sentence due to the quantity and type of drugs involved, together with the obvious commerciality of the offences.
The appeal
The appellants’ counsel submitted that the starting points for the sentences were too high. She conceded that the primary consideration in offences of this nature is general deterrence, and that matters personal to an offender will have less weight than they would in other types of offences. She submitted that amphetamines have been classified by this court as a middle range drug. The court in R v Mangelsdorf[1] stated that offences of this nature involving middle range drugs should ordinarily attract a sentence in the range of four to five years before reductions for matters such as pleas of guilty. She submitted that, notwithstanding recent comments made by the Full Court in R v Becker[2] and R v Sladic[3], the appropriate range identified by the court in Mangelsdorf continues to be applicable until such time as an appeal is brought by the Director of Public Prosecutions to increase that range. The starting points of five and six years respectively were, it was submitted, outside that established range for offences of possessing amphetamines for sale. Further mitigating circumstances were said to be, for Petar Cetojevic, his youth, lack of prior record and contrition, and for Nenad Cetojevic his lack of relevant prior record and contrition.
[1] (1995) 66 SASR 60
[2] [2005] SASC 186
[3] [2005] SASC 210
Counsel for the Director submitted that the sentences were harsh but not manifestly excessive. He submitted that no error had been demonstrated in the approach of the sentencing Judge. As to the disparity between the sentences counsel submitted that it was within the trial Judge’s discretion to regard the offending of Petar Cetojevic as more serious having regard to the quantity of drugs found in his possession when compared to the quantity of drugs found in his brother’s possession. Counsel submitted that the difference should be looked at in light of the practical harm that PMA would cause to the community. Amphetamine is, he submitted, a recreational drug targeted at younger persons particularly in nightclubs who will buy perhaps one or two tablets for the night rather than buying to feed an addiction. If you translate the quantity found in Petar Cetojevic’s possession into ‘dosages’, he submitted the potential harm to the community justified the difference in the sentences.
In the circumstances of this case I cannot agree. The money and other indicia of sale found in the possession of each appellant clearly indicated that this was an ongoing commercial enterprise. Although Nenad Cetojevic was found with a lesser quantity of amphetamine, he had $7,000 in cash, whereas Petar Cetojevic was found with $4,745 in cash. Although the quantity must play some role in determining the starting point, I do not agree that the difference indicated by the Judge should have been reflected in the starting points of the sentences. Further, Petar Cetojevic’s age and lack of previous convictions is a significant mitigating factor in reducing the starting point for his sentence.
As has been said by this Court previously, in sentencing for dealing in drugs, general deterrence is a primary consideration.[4] A sentencing Judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and the nature of the drugs the subject of the charge. PMA and amphetamine are characterised in the middle range of seriousness.[5] The time may have come to reconsider that characterisation.[6] Until the Court has been provided with evidence about the effect of different drugs upon users the classification of drugs as low, middle range and high in seriousness as referred to in Mangelsdorf is authoritative.
[4] R v Sladic [2005] SASC 210; R v Mangelsdorf (1995) 66 SASR 60
[5] R v Mangelsdorf (1995) 66 SASR 60; R v Plaister and Graham [2001] SASC 383
[6] R v Becker [2005] SASC 186 at [64]
Having regard to the personal circumstances of each appellant I consider that the starting point of six years for Petar Cetojevic and five years for Nenad Cetojevic was excessive. In my view the Judge failed to give sufficient weight to Petar Cetojevic’s age and past history of not offending. He was entitled to have regard to the greater quantity of drugs found in Petar Cetojevic’s possession. However, given that in the case of each offender the Judge correctly concluded that they were involved in an ongoing commercial enterprise, then not a great deal turns on the difference in quantity of drugs found in the possession of each of them. Petar Cetojevic had less money in his room than Nenad Cetojevic. Both appear to have been involved in a relatively small ongoing enterprise of dealing in amphetamines. As to Nenad Cetojevic he is the older of the two and has a minor prior record.
The sentences imposed in each case were manifestly excessive.
In the case of Nenad Cetojevic after allowing a reduction of fifteen percent for his plea of guilty I would fix a head sentence of three years and six months imprisonment and set a non-parole period of twenty one months.
In the case of Petar Cetojevic because of his youth and prior good record he should be distinguished from Nenad Cetojevic. Some regard must be given to the greater quantity of drugs found in his possession but that should have a lesser relevance in this case. I would fix a head sentence of three years after a reduction of fifteen percent for the plea of guilty and fix a non-parole period of eighteen months. In each case, pursuant to s 18A of the Act, the sentence is imposed as an overall sentence for the offences to which each appellant pleaded guilty.
Suspension of the sentences
The appellants both submitted that the sentences of imprisonment ought to have been suspended pursuant to s 38 of the Act.
The offences of possession of PMA and amphetamines for sale in the circumstances of an ongoing commercial enterprise will almost invariably result in an immediate custodial sentence. Any such sentence will cause hardship both to the offender and family who may rely upon the offender. The offending in this case was serious. It has not been demonstrated that good reason exists to suspend the sentences. I decline to do so.
Conclusion
In each case I would allow the appeal. As to Petar Cetojevic I would substitute a sentence of three years with a non-parole period of eighteen months.
In the case of Nenad Cetojevic I would substitute a sentence of three years and six months imprisonment with a non-parole period of twenty one months.