R v Cetojevic

Case [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

  1. PERRY J:             I agree with the orders proposed by Sulan J and with his reasons.

  2. 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.

  3. SULAN J:              This is an appeal against sentence by two brothers, Petar Cetojevic and Nenad Cetojevic.

  4. 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. 

  5. 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.

  6. The appellants each complain that the sentences are manifestly excessive and that the periods of imprisonment ought to have been suspended.

    Background

  7. 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…

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AGLC
R v Cetojevic [2005] SASC 273
Case
[2005] SASC 273
Decision Date

CaseChat Overview and Summary

Petar and Nenad Cetojevic appealed against their sentences for drug possession and sale, arguing the sentences were excessive. The District Court had sentenced Petar to five years imprisonment with a non-parole period of two years and six months, and Nenad to four years with a non-parole period of two years and one month. The appellants contended that the sentences were manifestly excessive and outside the established range for middle range drug offences. They argued that the sentencing judge erred in placing greater weight on the quantity of drugs rather than the indicia of sale. The court considered whether the sentences were manifestly excessive and whether they were outside the established range of sentences for middle range drug offences. It also examined whether the sentencing judge erred in focusing on the quantity of drugs instead of the commercial element of the offences.

The court noted that the offences involved an ongoing commercial enterprise, which generally warrants an immediate custodial sentence. However, it recognised the hardship such sentences cause to the offender and their family. The court found that while the offending was serious, good reason had not been demonstrated to suspend the sentences. The court allowed the appeals and substituted the sentences. Petar Cetojevic's sentence was reduced to three years with a non-parole period of eighteen months, and Nenad Cetojevic's sentence was reduced to three years and six months with a non-parole period of twenty-one months.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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