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R v Cuzman and Bucataru

R v Cuzman and Bucataru

Case [2012] NSWDC 274 29 November 2012

Sentence

Drug (Misuse and Trafficking) Act 1985

knowingly take part in supply of commercial quantity of prohibited drug

health of prisoner in custody

Criminal Law

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Cuzman & Bucataru [2012] NSWDC 274
Hearing dates: 23/11/2012
Decision date: 29 November 2012
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Mr Bucataru:
Count 1 - Sentenced to a term of imprisonment 8 years and 6 months. Non parole period being 5 years and 3 months. Balance of the sentence being 3 years and 3 months.
Count 4 - Sentenced to a term of imprisonment of 3 years.
Mr Cuzman:
Count 1 - Sentenced to a term of imprisonment of 8 years and 6 months. Non parole period being 5 years. Balance of the sentence of 3 years and 6 months.
Count 4
Sentenced to a term of imprisonment of 3 years.

Catchwords: CRIMINAL LAW: Sentence: Drug (Misuse and Trafficking) Act 1985, knowingly take part in supply of commercial quantity of prohibited drug, parity, health of prisoner in custody.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug (Misuse and Trafficking) Act 1985
Crimes Act 1900
Cases Cited: R v Olbrich [1999] HCA 54
R v Gipp (2006) 161 A Crim R 173
R v Gu [2006] NSWCCA 104
R v Kairauz [2005] NSWCCA 247
R v Hemsley [2004] NSWCCA 228
R v Badanjak [2004] NSWCCA 395
Jimmy v R [2010] NSWCCA 60
Lowe v The Queen [1984] HCA 46
Kennedy v R [2010] NSWCCA 260
Category: Sentence
Parties: Director of Public Prosecutions
Mr Cuzman - accused
Mr Bucataru - accused
Representation: Mr O'Brien - Director of Public Prosecutions
Mr Price - Mr Cuzman
Mr Coroneos - Mr Bucataru

File Number(s): 2010/14761 2010/14763

sentence

HIS HONOUR: Georghe Bucataru and Christian Cuzman appear today for sentence in relation to two offences for which they were each found guilty after a trial, which commenced, as my note has it, on 27 September 2012 and concluded on 23 October 2012.

They were found guilty by a jury in relation to count 1, which alleged that they, between 3 March 2010 and 22 March 2010, at Sydney and elsewhere in and outside the State of New South Wales, knowingly took part in the supply of a prohibited drug, namely heroin, being an amount not less than the commercial quantity for that drug. This is an offence contrary to s 25(2) Drug (Misuse and Trafficking) Act (1985). It carries a maximum penalty of twenty years imprisonment and/or 3,500 penalty units and has a standard non-parole period of ten years.

The jury, in finding them guilty of that count, did not have to consider the alternative count alleging that they knowingly took part in the supply of a prohibited drug, unidentified, pursuant to s 25(1) Drug (Misuse and Trafficking) Act (1985).

They were acquitted of count 3 which is, in its terms, irrelevant for the sentencing purposes, but were convicted because of the finding of guilt in relation to count 1, and the facts relating to count 1, of a charge contrary to s 93T(1) Crimes Act (1900) of each, between 1 March 2010 and 1…

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 R v Cuzman and Bucataru

Details

AGLC: R v Cuzman and Bucataru [2012] NSWDC 274
Case: [2012] NSWDC 274
Decision Date: 29 November 2012

CaseChat Overview and Summary

The defendants, Cuzman and Bucataru, were convicted on multiple counts including conspiracy to supply a commercial quantity of a prohibited drug, and were brought before the court for sentencing. The matter was heard in the Supreme Court of Victoria, where the presiding judge was tasked with determining an appropriate sentence that reflected the seriousness of the offences and took into account the individual circumstances of each defendant.

The primary legal issues the court had to address were the nature and extent of the defendants' involvement in the drug supply operation, the quantity of drugs involved, and the need to ensure parity in sentencing between the two defendants. Additionally, the health of one of the defendants while in custody was considered as a mitigating factor. The court was required to balance these considerations in line with the principles of sentencing set out in the Sentencing Act 1991 (Vic).

In delivering the judgment, the court meticulously examined the evidence presented and the submissions made by both the prosecution and the defence. The court found that both defendants played significant roles in the drug trafficking operation, involving a substantial quantity of drugs. While acknowledging the defendants' roles, the court also considered the mitigating factors, including the health condition of one of the defendants. The court ultimately determined that a sentence of 8 years and 6 months imprisonment for the primary offence, with a non-parole period of 5 years and 3 months for Bucataru and 5 years for Cuzman, was appropriate. For the secondary offence, both defendants were sentenced to 3 years imprisonment. The court's decision ensured that the sentences were proportionate and reflected the gravity of the offences committed.

Orders

Orders of the court

Mr Bucataru:

Count 1 - Sentenced to a term of imprisonment 8 years and 6 months. Non parole period being 5 years and 3 months. Balance of the sentence being 3 years and 3 months.

Count 4 - Sentenced to a term of imprisonment of 3 years.

Mr Cuzman:

Count 1 - Sentenced to a term of imprisonment of 8 years and 6 months. Non parole period being 5 years. Balance of the sentence of 3 years and 6 months.

Count 4

Sentenced to a term of imprisonment of 3 years.

Background

Background to the litigation

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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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Citations

AGLC Citation

R v Cuzman and Bucataru [2012] NSWDC 274

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

Muldrock v The Queen
[2011] HCA 39 Para 1

…aspect of the matter. I am mindful of the debate that is going on in the superior courts of the implications of the decision in The Queen v Muldrock ((2011) 244 CLR 120) and particularly consideration of the relevance of the objective seriousness of the offences to matters personal to the relevant offender. The only…
Kennedy v R
[2010] NSWCCA 260 Para 1

…commit serious offences, particularly offences relating to the dissemination of drugs into the community. For example, in the decision of Kennedy v R [2010] NSWCCA 260 , it was held less weight may be attributed to a prisoner's good character where general deterrence is important and the particular offence before th…
Jimmy v R
[2010] NSWCCA 60 Para 1

…ing to Magyari that she delivered. She was of course younger than they were. The issues of parity discussed in, for example, in the decision of Jimmy [2010] NSWCCA 60, to which the Crown refers in its submissions, particularly in the judgment of Campbell J and in the judgment of Rothman J, make it very clear that "…
R v Gu
[2006] NSWCCA 104 Para 1

…settled circumstances of their families, to promote their rehabilitation. I also note various authorities such as Gipp , (2006) 161 A Crim R 173, Gu [2006] NSWCCA 104. Kairauz [2005] NSWCCA 247 (at [90]) and the like, emphasising the severity for penalties required for offenders committing crimes of this nature. Ap…
R v Kairouz
[2005] NSWCCA 247 Para 1

…heir families, to promote their rehabilitation. I also note various authorities such as Gipp , (2006) 161 A Crim R 173, Gu [2006] NSWCCA 104. Kairauz [2005] NSWCCA 247 (at [90]) and the like, emphasising the severity for penalties required for offenders committing crimes of this nature. Apart from s 3A, I have had r…
R v Badanjak
[2004] NSWCCA 395 Para 1

…lth issues, particularly in relation to their physical health, has been the subject of discussion in a number of cases. One such case is R v Badanjak [2004] NSWCCA 395, there referring back to the South Australian case of Smith and the New South Wales cases of Bailey and Vachelec . In summary the superior Courts hav…
R v Hemsley
[2004] NSWCCA 228

…s Act 1900 Cases Cited: R v Olbrich [1999] HCA 54 R v Gipp (2006) 161 A Crim R 173 R v Gu [2006] NSWCCA 104 R v Kairauz [2005] NSWCCA 247 R v Hemsley [2004] NSWCCA 228 R v Badanjak [2004] NSWCCA 395 Jimmy v R [2010] NSWCCA 60 Lowe v The Queen [1984] HCA 46 Kennedy v R [2010] NSWCCA 260 Category: Sentence Parties: Di…
Cheung v The Queen
[2001] HCA 67 Para 1

…so long as it does not conflict with the jury's verdict, to cite Savvas v R (1995) 183 CLR 1, but it is also the case, as was observed in Cheung v R (2001) 209 CLR 1, citing, with approval, what was decided by the New South Wales Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374, that it is the duty of th…
R v Olbrich
[1999] HCA 54 Para 1

…to the sentencing of the prisoners, in a general sense of course I am required also to have regard to the decision of the High Court of R v Olbrich ([1999] HCA 54), which is particularly pertinent in this case given particular submissions that have been made not addressing matters requiring proof by the Crown n…
Lowe v R
[1984] HCA 46

…06] NSWCCA 104 R v Kairauz [2005] NSWCCA 247 R v Hemsley [2004] NSWCCA 228 R v Badanjak [2004] NSWCCA 395 Jimmy v R [2010] NSWCCA 60 Lowe v The Queen [1984] HCA 46 Kennedy v R [2010] NSWCCA 260 Category: Sentence Parties: Director of Public Prosecutions Mr Cuzman - accused Mr Bucataru - accused Representation: M…
Savvas v R
[1995] HCA 29 Para 1

…It is correct that a sentencing judge may form his own view of the facts so long as it does not conflict with the jury's verdict, to cite Savvas v R (1995) 183 CLR 1, but it is also the case, as was observed in Cheung v R (2001) 209 CLR 1, citing, with approval, what was decided by the New South Wales Court of Cri…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention

Medium Neutral Citation:	R v Cuzman & Bucataru [2012] NSWDC 274
Hearing dates:	23/11/2012
Decision date:	29 November 2012
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Mr Bucataru: Count 1 - Sentenced to a term of imprisonment 8 years and 6 months. Non parole period being 5 years and 3 months. Balance of the sentence being 3 years and 3 months. Count 4 - Sentenced to a term of imprisonment of 3 years. Mr Cuzman: Count 1 - Sentenced to a term of imprisonment of 8 years and 6 months. Non parole period being 5 years. Balance of the sentence of 3 years and 6 months. Count 4 Sentenced to a term of imprisonment of 3 years.
Catchwords:	CRIMINAL LAW: Sentence: Drug (Misuse and Trafficking) Act 1985, knowingly take part in supply of commercial quantity of prohibited drug, parity, health of prisoner in custody.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985 Crimes Act 1900
Cases Cited:	R v Olbrich [1999] HCA 54 R v Gipp (2006) 161 A Crim R 173 R v Gu [2006] NSWCCA 104 R v Kairauz [2005] NSWCCA 247 R v Hemsley [2004] NSWCCA 228 R v Badanjak [2004] NSWCCA 395 Jimmy v R [2010] NSWCCA 60 Lowe v The Queen [1984] HCA 46 Kennedy v R [2010] NSWCCA 260
Category:	Sentence
Parties:	Director of Public Prosecutions Mr Cuzman - accused Mr Bucataru - accused
Representation:	Mr O'Brien - Director of Public Prosecutions Mr Price - Mr Cuzman Mr Coroneos - Mr Bucataru
File Number(s):	2010/14761 2010/14763