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…

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 Dolovac

Details

AGLC: R v Dolovac [2014] SASCFC 86
Case: [2014] SASCFC 86
Decision Date: 31 July 2014

CaseChat Overview and Summary

The applicant, Fikret Dolovac, sought permission to appeal against a sentence imposed by the District Court for trafficking in a large commercial quantity of a controlled drug. Dolovac, aged 25 at the time of the offence, pleaded guilty to being involved in a plan to transport 12.2 kilograms of cannabis from Adelaide to Brisbane. He was sentenced to four years and nine months imprisonment with a non-parole period of two years and nine months, with the sentencing judge declining to suspend the sentence.

The legal issues before the Court of Appeal concerned whether the sentence imposed was manifestly excessive and whether the sentencing judge erred in failing to find good reason to suspend the sentence. The applicant argued that the sentence was too severe and that the circumstances warranted a suspension.

The Court of Appeal considered the applicant's involvement in the drug trafficking operation, his age, and his criminal antecedents. It was noted that the sentencing judge had differentiated between Dolovac and his co-offender, Mr Zucker, based on their respective involvement, ages, and prior convictions. The Court found that the sentencing judge had a proper basis for commencing the sentencing of Dolovac with a notional head sentence of seven years. Furthermore, the Court found that Dolovac's lack of frankness regarding his antecedents and his misleading of the Court on this matter significantly undermined any claim of genuine contrition or remorse, which weighed heavily against a finding of genuine remorse. The Court concluded that the sentencing judge had adequately considered Dolovac's age and rehabilitation prospects and that the imposed sentence fell within the judge's discretion.

The application for permission to appeal was refused.

Orders

Orders of the court

Application for permission to appeal refused.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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