R v Dolovac - [2014] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOLOVAC
[2014] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kelly)
31 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
Application for permission to appeal against sentence. The applicant was jointly charged with the offence of trafficking in a large commercial quantity of a controlled substance. He was involved in a plan to transport 12.2 kilograms of cannabis from Adelaide to Brisbane. The applicant and his co-offender both pleaded guilty in the District Court. They were separately committed for sentence in the District Court and sentencing submissions were made at different times. After reductions for their guilty pleas and time spent in custody, the applicant and co-offender were each sentenced to a term of imprisonment of four years and nine months with a non-parole period of two years and nine months.
During sentencing submissions a psychological report was tendered on the applicant’s behalf. It transpired that the applicant had not disclosed to the psychologist and others his criminal antecedents which included a conviction in Victoria for cultivation of cannabis.
Whether the sentence imposed is manifestly excessive. Whether the sentencing Judge erred in failing to find good reason to suspend the sentence.
Held per Gray J and Kelly J (Vanstone J agreeing) (refusing application for permission to appeal):
(1) Having concluded that the appellant was not frank with the psychologist about important matters, it followed that little weight could be attached to the psychologist’s report. There has been no error demonstrated in the approach of the sentencing Judge to the psychologist’s report, or in failing to find that there were good prospects for rehabilitation.
(2) There is no relevant disparity between the respective sentences imposed on the applicant and his co-offender Zucker.
(3) There has been no error demonstrated in the approach which the Judge took to the facts.
(4) The sentencing Judge considered all of the applicant’s personal circumstances before concluding that an immediate custodial sentence was required. The applicant has not shown that there has been any error in the exercise of the discretion.
Controlled Substances Act 1984 (SA) s 32(1), referred to.

R v DOLOVAC
[2014] SASCFC 86
Court of Criminal Appeal: Gray, Vanstone and Kelly JJ
GRAY J.

This is an application for permission to appeal against sentence.
The defendant and appellant, Fikret Dolovac, was jointly charged with the offence of trafficking in a large commercial quantity of a controlled drug, contrary to section 32(1) of the Controlled Substances Act 1984 (SA). The defendant and his co-defendant, Benjamin Anthony Zucker, both pleaded guilty in the District Court.
The defendant was sentenced to a term of imprisonment of four years and nine months. A non-parole period of two years and nine months was fixed. The sentencing Judge declined to exercise his discretion to suspend the sentence.
Background
The offending conduct occurred on 9 August 2013. The defendant, a resident in Queensland, was a target of a police operation conducted by the Queensland Crime and Misconduct Commission. The operation targeted a suspected syndicate engaged in the sourcing of cannabis in South Australia and its transportation to Queensland for on-sale. Telephone intercepts in early August led the police to suspect that the defendant was ordering 25 or 30 pounds of cannabis. An intercept on 8 August 2013 led the police to believe that the defendant was meeting another person the following day in relation to the transaction. Police surveillance on 9 August 2013 revealed that the defendant met Zucker at the defendant’s home and that they proceeded to the Brisbane Airport. Both men were seen to board a domestic flight to Adelaide. Surveillance was continued in Adelaide, where both defendants were seen to leave gate 22 at the airport and then to meet another man at a coffee shop at the airport. The three men then went to the car park and left in a Holden Commodore motor vehicle. The vehicle drove to a self storage facility on Grand Junction Road and then to premises at Smithfield, and from there to a house at Sheidow Park. The defendant and Zucker left the vehicle and went through the front door. An hour later, they left the Sheidow Park property. The vehicle was stopped by police on South Road. Zucker ran away and escaped apprehension. The defendant was apprehended. A search of the vehicle revealed five sealed boxes. A search of the boxes revealed packaged cannabis. Zucker was arrested later that day. A search of the Sheidow Park property revealed a heat sealer, patching materials, some dried cannabis, a gun and cash in excess of $35,000.00.
The defendant was aged 25 years at the time of the offending. He remained in custody for five days and then was released on bail to live in Queensland. The plea of guilty was entered on 20 December 2013. The defendant and Zucker were separately committed for sentence in the District Court and sentencing submissions were made at different times.
The defendant and Zucker were each carrying about $20,000.00 in cash, being the monies to pay for the cannabis. Their role was to collect the cannabis in Adelaide and to transfer it in Adelaide to a truck, which was then to be driven to Queensland. It was the defendant’s case that he was to fly home from Adelaide following the delivery of the cannabis. It was accepted that the defendant was aware that the cannabis involved was of a significant value.
It was the prosecution case that the telephone intercepts disclosed that the defendant was involved with the making of arrangements for the travel to Adelaide and the collection of the cannabis. It was said that the content of those intercepts showed a congenial relationship between the defendant and the other party and did not show any indication of pressure being applied to the defendant. The Court was informed that no return ticket to Brisbane was located. The cannabis was said to have an estimated value of between $86,400.00 and $102,600.00 if sold in Queensland.
The defendant was born in Yugoslavia. He has two older siblings, a brother living in Serbia and a sister living in Brisbane. His parents live in Brisbane. At the time of the offending, the defendant was the carer of his parents. His father, due to a back injury, was on a disability pension. His mother was the sufferer of significant mental ailments. The defendant received a carer’s pension. A psychological report detailed the defendant’s history and exposure to trauma in Europe and indicated that, as a consequence, the defendant suffered from post-traumatic stress disorder symptomatology. However, it was not suggested that the defendant’s offending was related to this condition. Material tendered to the Judge disclosed that the defendant was an above average student, both at High School and while undertaking tertiary studies. At the time of sentencing, he had completed a Diploma of Business Management and a Bachelor of Commerce. He had partially completed the studies for a Bachelor of Environmental Management.
The defendant maintained to the reporting psychologist and to the character witnesses that he had no criminal antecedents of any sort and had no history in regard to drugs. Counsel for the defendant advanced this submission to the Court. As the Judge noted in his sentencing remarks, the defendant’s counsel submitted that the defendant had never been in trouble with the authorities whatsoever before now. This submission accorded with instructions that counsel had received. However, it transpired that the defendant did have criminal antecedents, including a conviction in Victoria for the offences of cultivating cannabis and using a false document to prejudice another. The defendant had also committed an offence in Queensland. Once these matters were made known to the Court, counsel for the defendant acknowledged that the defendant did have these criminal antecedents. It was said that the defendant was embarrassed about these antecedents and did not want to tell anybody that he had been in trouble.
The sentencing Judge was critical of the defendant in regard to his concealing his criminal antecedents from the reporting psychologist, his character witnesses and the Court. In this respect, the Judge observed:
I am satisfied beyond reasonable doubt that you did not wish me to know about your conviction involving drugs which occurred less than 12 months before this offending. I am satisfied that you did not wish me to know about your other offence in Queensland in respect of which you attended the Magistrates Court in Brisbane about a month before this offending.
I do not consider that you probably did not tell anyone about these offences because you were embarrassed about them. I am satisfied beyond reasonable doubt that you did not do so because you believed that I would impose a lighter sentence on you if I did not know about them.
All of this … seriously undermines the reliability of the assertion of your good character by your referees. I doubt that the criminal lawyer who wrote that your offending in Adelaide is an aberration from your past law-abiding conduct would have written that if he had known about these other offences.
The sentencing Judge then addressed the basis for sentencing the defendant as follows:
In your case, [the defendant], I consider that the probabilities are that you were a willing participant in this offending, that you played a greater role than Mr Zucker in its planning and execution, that you were not naive and vulnerable and that you did not become involved in this offending as a way of helping your family.
I cannot be satisfied of those matters beyond a reasonable doubt. So, therefore, I cannot sentence you on those bases. But I do not sentence you on the basis that you probably were an unwilling participant, that you were asked to become involved only as the driver, or that Mr Zucker, his friends or anyone else prevailed upon you to get involved and made threats or put pressure on you by referring to what would happen if you did not. I cannot be satisfied as to where the probabilities are as to what your role and motivation was.
Accordingly, I shall sentence you principally on the basis of what you did and the objective seriousness of it.
The Judge then proceeded to impose the following sentence on the defendant:
In your case, [the defendant], I start with a sentence of imprisonment for seven years. I reduce that to a sentence of imprisonment for four years and 10 months to reflect your early guilty plea. I reduce that further to a sentence of imprisonment for four years and nine months to reflect the time that you have spent in custody here and on bail since your release in August last year.
I fix a non-parole period of imprisonment for two years and nine months.
I do not consider that sufficiently good reason exists in your case to suspend that sentence of imprisonment. Whilst your youth, your parents’ plight and your studies, are matters favourable to you, the seriousness of your offending and your prior conviction for a drug offence which you did not want me to know about, tell against a suspension. Your sentence will commence today, 3 April 2014.
The Appeal
On the appeal, the defendant submitted that the head sentence and the non-parole period were both manifestly excessive. It was also submitted that the Judge’s failure to suspend the sentence involved an error of sentencing discretion.
Counsel for the defendant emphasised his age, the fact that he had not been in custody before, his tertiary qualifications, the fact that he was a full time carer for both of his parents, his references of general good reputation, his early plea, the evidence of remorse, the fact that his role in the offending was limited to that of a courier, and that his prospects of rehabilitation were good and that he was unlikely to offend again.
Particular reliance was placed on the terms of the psychological report and the suggestion that his offending could be seen in the context of an effort to help his family and his suggestion that he had, subsequent to the offending, extracted himself from the negative peer group that had led to his offending. In particular, attention was drawn to the psychologist’s recommendation about the need for continued psychological counselling and psychiatric treatment, and the ultimate opinion that, with such assistance, the defendant would not reoffend. The difficulty with this submission was that the psychologist proceeded on the basis that the defendant had no criminal history and no drug history. The failure of the defendant to disclose his criminal antecedents and his prior involvement with drugs is a serious matter and undermines the psychologist’s opinion to the point where it could carry little weight. There was no attempt to obtain any form of follow up report from a psychologist concerning the relevance of this non-disclosure.
In the course of submissions, attention was drawn to the sentence imposed on Zucker. It was pointed out that Zucker was 33 years of age, had a history of drug offending and had been sentenced to terms of imprisonment in the past. The Judge commenced with a notional head sentence of eight years and reduced that by 40 per cent because of the early plea to a period of four years and nine months. He fixed a non-parole period of two years and nine months. Undertaking a comparison of this sentence with that of the defendant reveals that the Judge started in the case of the defendant with a term of imprisonment of seven years, reduced by about 30 per cent on account of the plea and for the short period spent in custody.
The circumstances of Zucker were very different to those of the defendant. As earlier noted, on the material before the Court, the Judge accepted Zucker’s submission that he was acting at the direction of the defendant. The telephone intercept evidence confirmed the role played by the defendant in regard to the arrangements leading to the offending. Zucker was frank with the Court about his antecedents and advanced material to support drug addiction as being a cause of his criminal behaviour.
In my view, it was open to the Judge to differentiate between Zucker and the defendant in the way that he did. Having regard to the involvement of the two in the offending, their differences in age and the differences in their criminal antecedents, it was within the sentencing discretion of the Judge to commence the sentencing of the defendant with the notional head sentence of seven years. The difference in the reductions made in regard to the pleas of guilty was a consequence of the time at which those pleas were entered. The lack of frankness of the defendant about his antecedents with the psychologist and his character witnesses substantially undermined any value to that material. This lack of frankness, coupled with the misleading of the Court on this topic, counted heavily against a finding of any genuine contrition or remorse. I consider that the Judge gave adequate weight to the age of the defendant and to his rehabilitation prospects. In my view, the sentence imposed was within the discretion of the Judge.
Conclusion
I would refuse the application for permission to appeal.
VANSTONE J: For the reasons written by Kelly J I would refuse the application for permission to appeal.
KELLY J:
Introduction
The applicant, Fikret Dolovac, applies for permission to appeal against a sentence imposed in the District Court on 3 April 2014.
He pleaded guilty to trafficking in a large commercial quantity of a controlled drug and was sentenced to a term of imprisonment of four years and nine months with a non-parole period of two years and nine months.
The applicant was involved in a plan with a co-offender to transport 12.2 kilograms of cannabis from Adelaide to Brisbane. The co-offender, Mr Zucker, was sentenced to a term of imprisonment of four years and nine months with a non-parole period of two years and nine months.
The maximum penalty prescribed for the offence is imprisonment for life or a fine of $500,000 or both.
The applicant appeals against the sentence on the bases that the sentence is manifestly excessive and that the Judge erred in failing to find good reason to suspend the sentence of imprisonment.
Background
The offence occurred on 9 August 2013. On that date the applicant, a resident of Queensland, travelled from Brisbane to Adelaide by plane with the co-offender Zucker. Between them the applicant and the co-offender carried $40,000 in cash. At the airport they were met by a third party named Halimi who drove them to a storage facility in Holden Hill. There they purchased a number of boxes and packing materials before driving to a house in Sheidow Park which was the residence of Halimi’s sister. At the house the vehicle was backed into the garage and cannabis was loaded into the boot. The applicant and Zucker then set off in the vehicle toward the location of a truck which was to transport the cannabis to Queensland. En route they were stopped by police. The co-offender Zucker ran from the vehicle and was later found hiding. The applicant was arrested at the scene.
In the boot of the vehicle the police found 12.2 kilograms of cannabis packaged in five cardboard boxes. The cannabis was valued at between $86,400 and $102,600. The applicant declined to answer questions when later interviewed by the police.
In the days leading up to the arrest, police intercepted a number of telephone calls between the applicant and Halimi. Those intercepts reveal that the conversations conducted were congenial and directed towards making arrangements for the movement of the cannabis once the applicant and the co-offender had arrived in South Australia.
Complaints made on appeal
Counsel for the applicant, Mrs Shaw QC, made four main complaints in support of the grounds of appeal. The first was said to be the sentencing Judge’s error in approach to the psychological report of Mr Stoker. The second was said to be error in the sentencing Judge’s approach to fact finding about the respective roles of the applicant and Zucker. Thirdly it was said that there was disparity in the sentence imposed on the applicant and Zucker. Finally, it was submitted that the failure to give sufficient weight to the combination of personal circumstances, including the applicant’s prospects of rehabilitation, led to error in the exercise of the discretion not to suspend.
Discussion
Counsel for the applicant submitted that the approach of the sentencing Judge to the psychological report of Mr Stoker was incorrect in that his Honour found that Mr Stoker did not relate his opinion that the applicant suffered from Post-traumatic Stress Disorder to the offending. There was also a complaint that the sentencing Judge did not take into account the psychologist’s opinion that in the period leading up to the offending the applicant’s psychological health was deteriorating; his Post-traumatic Stress Disorder symptomatology was exacerbated by the circumstances of financial hardship of the applicant’s parents which resulted in the applicant having to be their carer. As a consequence, the applicant was said to have become more compliant with regard to the criminal activity suggested by his peer group.

In the court below, counsel who then appeared for the applicant tendered the report of the psychologist Mr Stoker, even though he acknowledged that it was not prepared in the way it would have been in South Australia. Both the psychological report and the character references were tendered apparently without objection by the prosecution.
In his report the psychologist expressed the opinion that a combination of circumstances made the applicant more than usually suggestible and compliant with regard to the criminal activity suggested by the criminal peer group he became involved with in Queensland. The psychologist opined further that the applicant was very remorseful and that with appropriate counselling and psychiatric treatment the applicant would not reoffend.
There are significant difficulties with the report of Mr Stoker. It is evident that the accuracy and amount of information given to the psychologist was deficient in a number of respects. He was not given any of the depositions, including telephone intercepts and other material in relation to the charge which the applicant faced. Nor was he informed of the applicant’s prior conviction for cultivation of cannabis. These matters were directly relevant to the issue of the applicant’s contrition and remorse as well as to his prospects of rehabilitation. They were serious omissions which tend to undermine the psychologist’s opinion that the applicant was remorseful and that he would not reoffend.
The applicant’s conviction in Victoria for cultivation of cannabis in November 2012 was relatively recent and although it resulted in a fine only, the circumstances of the offending described by the applicant’s counsel to this Court, were, to say the least, curious. The applicant claims to have taken the blame for seedlings which were found in the home of associates, which was where he happened to be staying on a short visit to Melbourne. Those seedlings were said to belong to his associates, not to him. I should note at this point that the psychologist was not the only individual whom the applicant failed to inform of his prior conviction. At least one of the applicant’s character referees, who gave a fulsome reference to the Court, appears to have been unaware of the applicant’s previous conviction. That referee described the applicant’s prior record as unblemished and his conduct as an aberration and a serious diversion from his law abiding conduct and community mindedness.
Counsel for the applicant was also not informed by the applicant of the prior conviction. It only came to light after the prosecution tendered the antecedent report of the applicant during sentencing submissions.
The applicant is plainly an intelligent young man who was capable of giving clear and coherent instructions to his counsel about his personal circumstances. This he did not do. It is evident from the way in which the matter unfolded before the sentencing Judge that the applicant’s failure to disclose his true circumstances was as a result of a choice freely exercised by him.
In my view the Judge was right to be troubled by these matters. It was open to him to conclude that the applicant deliberately refrained from telling anyone, including his own lawyer, about the highly relevant prior offending in Victoria because he hoped to obtain a lighter sentence.
The telephone intercepts of conversations between the applicant and Halimi between 5 and 9 August 2013 also tended to undermine the claim made by the applicant to Mr Stoker that he only became involved reluctantly and after innuendoes were made that were indirectly suggestive of some harm to his family. The telephone intercepts reveal a series of conversations during which the applicant and Halimi made the necessary arrangements for the trip to Adelaide. Those conversations suggest an apparently congenial relationship between the applicant and Halimi.
Counsel in the court below adopted a rather superficial approach to submissions. In my view that approach was not unintentional. Significantly, counsel did not repeat any submission made by the applicant to the psychologist about pressure having been placed on him after he expressed misgivings about going ahead with the offence. No doubt that was because the tenor of the telephone intercepts tended to refute such a submission. It may also have been a reflection of the fact that the sentencing Judge had only recently heard submissions from counsel for the co-offender Zucker to the effect that it was the applicant who was running that part of the operation.
In his sentencing remarks the Judge identified the deficiencies in the material tendered on behalf of the applicant. As I have said, they were serious deficiencies undermining the opinions expressed in the psychologist’s report.
Neither the psychologist nor the character referees were aware of any of the details surrounding the charge the applicant faced. It is particularly unfortunate that the psychologist did not have the benefit of the telephone intercept transcripts which tended to put the applicant’s offending in a different light from that portrayed to him by the applicant.
Counsel for the applicant made a further complaint that the Judge made no reference to the applicant’s prospects of rehabilitation. Mrs Shaw QC submitted that the Judge should have concluded that because the applicant displayed symptoms of post-traumatic stress his psychological state was such that he was compromised to the point where he complied with the suggestion made by others that he become involved in the offending.
I do not accept that submission. Once the Judge reached the conclusion that the applicant was not frank with the psychologist about important matters it followed that little weight could be attached to the psychologist’s report. The applicant’s candour, or lack thereof, was relevant to the issue of remorse and contrition which in turn was relevant to his prospects of rehabilitation.
For these reasons I do not consider that there is any error demonstrated in the approach of the sentencing Judge to the psychologist’s report or in failing to find that there were good prospects of rehabilitation.
Counsel for the applicant made the further complaint that there was error in the Judge’s fact finding about the applicant’s role in the offending. As to that the Judge said:
In your case, Mr Dolovac, I consider that the probabilities are that you were a willing participant in this offending, that you played a greater role than Mr Zucker in its planning and execution, that you were not naive and vulnerable and that you did not become involved in this offending as a way of helping your family.
I cannot be satisfied of those matters beyond a reasonable doubt. So, therefore, I cannot sentence you on those bases. But I do not sentence you on the basis that you probably were an unwilling participant, that you were asked to become involved only as the driver, or that Mr Zucker, his friends or anyone else prevailed upon you to get involved and made threats or put pressure on you by referring to what would happen if you did not. I cannot be satisfied as to where the probabilities are as to what your role and motivation was.
Accordingly, I shall sentence you principally on the basis of what you did and the objective seriousness of it.
As I understood the argument which developed on appeal, it is said there is a conflict between the factual basis on which the Judge sentenced the applicant and the factual basis on which he was prepared to sentence the co-offender.
This conflict was said to have arisen out of the fact that the sentencing Judge indicated he was sentencing the co-offender Zucker on the basis of the submissions put on his behalf, which included submissions that he was following the applicant’s directions. When he came to sentence the applicant, the sentencing Judge indicated that he was not satisfied beyond reasonable doubt that the applicant played a greater role than Zucker in the offending and in the end determined to sentence the applicant on the basis of the objective seriousness of the offending and what he was proved to have done. This was said to be in conflict with the basis on which he sentenced Zucker.
In my view that argument is misconceived. There was not, in fact, any conflict between the submissions put forward by the applicant’s counsel and the submissions put forward by counsel acting for Zucker. Counsel acting for the applicant at no stage took any issue with the submissions which had been made on behalf of Zucker. Moreover, there was nothing in the material before the Judge which was inconsistent with the factual basis put forward by Zucker. The Judge was entitled to sentence Zucker on the basis submitted on his behalf, namely that he was following the directions of the applicant. But in any event, it may not always be possible to reconcile submissions made on behalf of co-offenders. It is factual conflicts between prosecution and a particular offender which must be resolved.
When it came to sentencing the applicant the Judge was obliged to sentence only on the basis of any aggravating factors which were established to his satisfaction beyond reasonable doubt. As he could not be satisfied beyond reasonable doubt as to the precise role played by the applicant, the Judge correctly sentenced him on the basis of the depositions and declarations before him. From that material it is evident that it was the applicant who made most of the arrangements with the third party Halimi concerning the trip to Adelaide.
I turn now to the complaint that there was disparity in the sentences imposed upon the applicant and Zucker. Both the applicant and the co-offender Zucker travelled to South Australia pursuant to a plan to buy the cannabis which was worth in excess of $100,000 if sold on the streets in Queensland. Each was to receive payment of $4,000. The objective facts were undeniably very serious. The maximum penalty prescribed by the Parliament of imprisonment for life or a fine of $500,000 or both, is an indication of the seriousness of this offending.
In fashioning the sentences for each of the offenders, the Judge started with a slightly higher sentence of eight years for the co-offender Zucker. That was reduced by 40 per cent to four years and nine months on account of the early plea. In the case of the applicant the starting point was seven years reduced by a slightly lower percentage as his plea was entered later. The head sentence ultimately arrived at was four years and nine months. In the end the co-offenders received the same non-parole period, namely two years and nine months. It might be that some other Judges may have ensured that Zucker received a slightly lengthier sentence. However the sentencing Judge was entitled to take into account in a general way at least that Zucker faced the prospect of serving the balance of his unexpired parole in Queensland.
Nevertheless there were some striking differences between the two men. Zucker is seven years older than the applicant and has a bad record. However, the applicant did attempt to mislead the Court in relation to his prior conviction and actively misled the psychologist, at least one of his referees and counsel. Zucker pleaded guilty at the first available opportunity, thereby earning a greater discount on sentence. Moreover, Zucker was sentenced on the basis that he was merely the applicant’s lackey.
For these reasons, I do not accept that there is any relevant disparity between the respective sentences imposed on the applicant and his co-offender Zucker. Nor do I accept that there has been any error demonstrated in the approach which the Judge took to the facts. Furthermore, in light of the seriousness of the offending I do not accept that the starting point for the sentence was manifestly excessive. The non-parole period imposed was moderate and appropriately reflected the personal circumstances of the applicant.
I shall deal briefly with the last complaint, that the exercise of the discretion not to suspend miscarried.
This was serious offending involving over 12 kilograms of cannabis, the only intended use of which was trafficking. This Court has repeatedly said that substantial commercial dealing in drugs calls for deterrent penalties and substantial terms of imprisonment. The applicant was not entitled to the same leniency that might be afforded to a first offender.
It is apparent from his remarks that the sentencing Judge considered all of the applicant’s personal circumstances before concluding that an immediate custodial sentence was required. In my view the applicant has not shown that there has been any error in the exercise of the discretion.
Conclusion
For these reasons I would refuse the application for permission to appeal.