R v DONJERKOVIC

[2012] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DONJERKOVIC

[2012] SASCFC 68

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice David)

15 June 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

Application for permission to appeal against sentence - applicant pleaded guilty to five offences against Controlled Substances Act 1984 (SA) - sentencing Judge imposed an immediate custodial sentence of 9 years and 8 months with non-parole period of 6 years and 6 months – 20 per cent discount allowed for guilty plea – starting point for sentence therefore approximately 12 years and 1 month – whether sentencing Judge erred by sentencing applicant on wrong factual basis due to mistake in statement of agreed facts provided at sentencing submissions - whether sentencing Judge failed to apply, or misapplied, principle of totality – whether sentence was manifestly excessive – whether disparity between applicant’s sentence and co-offender’s sentence justifies Court’s interference with sentence.

Held: Application refused.  Factual mistake complained of is not fundamental and could have made no difference to sentence – the co-offender’s sentence is distinguishable – the sentence was appropriate in the circumstances – permission to appeal refused on all grounds.

Controlled Substances Act 1984 (SA) s 32(3), s 33B(2), s 33B(3), s 33LA, referred to.

R v DONJERKOVIC
[2012] SASCFC 68

Court of Criminal Appeal:  Nyland, Vanstone and David JJ

1. NYLAND J:          I agree that permission to appeal should be refused for the reasons expressed by David J.

2. VANSTONE J:     I would refuse permission to appeal.  I agree with the reasons of David J.

3. DAVID J:              This is an application for permission to appeal against sentence.  The applicant pleaded guilty to five separate offences against the Controlled Substances Act 1984 (SA) (the Act). Those offences related to two separate Informations. Two of the offences concerned his involvement in the cultivation of a commercial quantity of cannabis plants. The other three were less serious.

4. The sentencing judge imposed a term of imprisonment of nine years and eight months and fixed a non-parole period of six years and six months.  He indicated in his sentencing remarks that he allowed a 20 per cent discount from the head sentence for the applicant’s plea of guilty showing contrition.  His starting point before that reduction was therefore in the proximity of 12 years and one month. 

5. The applicant argues that that sentence is manifestly excessive.  In particular he argues that a starting point of 12 years is too high.  He also argues that there is a disparity between his sentence and that of a co‑offender who was dealt with by a separate judge.  The applicant puts that such a disparity has left him with a justifiable sense of grievance to such an extent that this Court should interfere.

   The charges and the facts

6. On one Information (the first Information) the applicant was charged with, and pleaded guilty, to three offences.  They were as follows:

   1.Cultivating eight cannabis plants for sale, contrary to s 33B(3) of the Act. The maximum term of imprisonment for this offence is 10 years.

   2.Possessing prescribed equipment which was used in the cultivation of those cannabis plants, contrary to s 33LA of the Act. The maximum term of imprisonment for this offence is two years.

   3.Trafficking in a controlled drug, namely cocaine, contrary to s 32(3) of the Act. The maximum term of imprisonment for this offence is 10 years.

7. On a separate Information (the second Information), the applicant was charged with, and pleaded guilty, to two further offences.  They were as follows:

   1.Cultivating a commercial quantity of cannabis plants at Allenby Gardens between 1 November 2009 and 30 April 2010, contrary to s 33B(2) of the Act. The maximum term of imprisonment for this offence is 25 years. It is noted that in the particulars the applicant was charged with three other people, namely AB, KB and CW. AB and KB have pleaded not guilty and are awaiting trial. CW had a minor role to play and has been sentenced. That sentence is of no concern in these appeals. A fourth person, namely GV, was also involved. He pleaded guilty before another judge of the District Court and has been sentenced.

   2.Cultivating a commercial quantity of cannabis at Gepps Cross between 1 January 2010 and 14 August 2010, contrary to s 33B(2) of the Act. The maximum term of imprisonment for this offence is also 25 years. The allegation was that this offending also occurred with AB and KB, who have pleaded not guilty and are awaiting trial, and GV, who has been dealt with.

8. In relation to the first Information, on Thursday 10 December 2009 police attended at a residential premises on Anzac Highway at Glenelg East in possession of a warrant.  On conducting a search, they found a passport in the applicant’s name, eight mature cannabis plants grown hydroponically, and two small packages which weighed a combined total of 28.7 grams and contained 13.72 grams of pure cocaine.  The cannabis plants were likely to yield well in excess of 300 grams of dry useable material and the value of the cocaine was between $5,000 and $12,000 if sold in a one ounce package on the street.  It would be substantially more if it were cut down into smaller amounts. 

9. The applicant pleaded guilty to those offences at a directions hearing.  His plea was on the basis that he knowingly stored the cocaine belonging to someone else, but knew it was destined for sale.  In relation to the cannabis, the applicant admitted that the house was rented to grow, cultivate and sell cannabis. 

10. In relation to the second Information, covert police investigations revealed that AB, KB, with the help of GV, located a premises at Allenby Gardens, which were inspected and thought to be suitable premises for the cultivation of a cannabis crop.  The applicant was involved in those discussions. 

11. In November 2009, KB signed a 12 month lease on the premises and the function of the applicant was to use his expertise of the methodology to set up a hydroponic cannabis crop.  The bulk of the purchasing for the hydroponic crop was done by the other three offenders, but the applicant did some minor purchasing.  The crop was a substantial one involving purchases of hydroponic equipment estimated to be in excess of $150,000.  That crop is represented by the first count on the second Information set out above. 

12. Another commercial property was located for the purposes of hydroponic cultivation after the establishment of the first crop at Allenby Gardens.  This property was located on Main North Road, Gepps Cross, and was selected by AB, GV and the applicant.  An elaborate hydroponic set up was built by GV, AB, KB and the applicant.  The applicant was heavily involved in that process.  Eventually there were 80 cannabis plants growing.  The applicant would spend most of his time at the Gepps Cross property and would sleep on the premises.  The police eventually attended at the property on 14 August 2010. 

13. At the time of sentence, the applicant was 43 years of age and had a history of breaches of the criminal law.  In particular, on 7 September 1995, in relation to an offence of producing cannabis, he was sentenced to 18 months imprisonment with a non-parole period of 12 months which term was suspended.  On 30 April 2004, in relation to an offence of possessing cannabis for supply and manufacture, the applicant was sentenced to three years’ imprisonment with a non‑parole period of 20 months which term was suspended.  

14. His submissions to the sentencing judge in present case, which were accepted, were that in about June 2009 the applicant lost about $4,000 in a private card game and owed money to an associate of AB.  That debt was then passed on to AB, who demanded immediate payment.  However, the applicant had no assets and no means of borrowing money and was told that interest of 25 per cent would be accruing on the debt each week if he did not repay it.  He was then told that by involving himself in the two crops at Allenby Gardens and Gepps Cross, and assisting in the way he did, the debt would be extinguished.  It was put to the sentencing judge that the appellant felt compelled to do so.

    Appeal

15. The grounds of appeal are as follows:

    1.The learned sentencing Judge erred by sentencing the Appellant, in relation to the charge of Cultivating a Commerical Quantity of Cannabis Plants at Allenby Gardens between 1 November 2009 and 30 April 2010, on the basis that the crop was commenced using cannabis clones purchased by AB from the Appellant.

    2.The learned sentencing Judge erred by failing to apply, or by misapplying, the principle of totality in sentencing the Appellant.

    3.The learned sentencing Judge erred by imposing a sentence which was manifestly excessive.

    Permission to appeal in relation to those three grounds was refused by a single Judge of this Court.  There was a successful application before this Court to amend the grounds of appeal to add a further ground, namely:

    4.The learned sentencing Judge erred by imposing a sentence on the Appellant which had a marked disparity to the sentence imposed on the co-offender [GV], leaving the Appellant with a justifiable sense of grievance.

    I deal with each count in turn.

    Ground 1

16. In his sentencing remarks, when referring to the Allenby Gardens crop, the judge said:

    This crop was commenced using cannabis clones purchased by AB from you, Donjerkovic.

    His Honour obtained that information from a document of agreed facts tendered at sentencing submissions.  One of the agreed facts was as follows:

    The first crop at Allenby Gardens was cultivated between 1 November 2009 and 30 April 2010.  It was commenced using cloned cannabis plants purchased by AB from the prisoner, according to [GV].

    Although both counsel at the sentencing submissions did not question that agreed fact, Mr Henchliffe, counsel for the applicant on appeal, argues that there has been a factual mistake. 

17. According to Mr Henchliffe, the agreed facts were based on a statement given by GV which statement said that the first crop at Allenby Gardens was started with clones brought in by the applicant who obtained them from someone else who was then paid by AB.  In other words, it was wrong to suggest that the clones were purchased from the applicant, and therefore the applicant received money.  Mr Henchliffe argues that this mistake is fundamental because it cuts across the submission that was put to the sentencing judge that the applicant received no money for his work, but was paid only by the extinction of his debt. 

18. I find no merit in the argument.  Looking at the whole of the enterprise, it is insignificant whether the applicant was paid in the sense that his debt was absolved or received some money directly.  Whatever the case, he received a benefit of a financial kind and the difference could have made no difference to the sentence.

19. I would refuse permission on this ground of appeal.

    Grounds 2 and 3

20. It is convenient to deal with these two grounds together as they concentrate on the severity of the sentence. 

21. Mr Henchliffe argues that a starting sentence of imprisonment for 12 years and one month was manifestly excessive.  He submitted that it is just too high and does not fairly reflect the amount of criminality involved. 

22. I cannot agree and, in my view, the argument has no merit.  This run of offences were serious drug offences involving a great deal of sophistication and outlay of finance committed over a period of nine months.  Not only his labour but his expertise in the area was called upon in relation to both enterprises.  It was very difficult for the sentencing judge to show any great leniency because of the quite significant and recent prior offending.  It was relevant that, on two previous occasions, the applicant had been given the benefit of suspended sentences and his abuse of that advantage was important when the sentencing judge was considering the question of personal deterrence.

23. In my view, the sentencing judge has not erred and the sentence was appropriate.

24. I would refuse permission on both of these grounds of appeal.

    Ground 4

25. GV pleaded guilty to the offences of cultivating the crops at Allenby Gardens and Gepps Cross.  He did that before another judge.  At the same time he pleaded guilty to a number of other offences, namely two counts of trafficking in methylamphetamine, two counts of trafficking in heroin, one count of trafficking in cocaine, a firearms offence, damaging property, and possessing prescribed equipment.  The sentencing judge in GV’s matters started with a head sentence of 16 years’ imprisonment.  GV provided information to the police in relation to the matter “in every possible way”, as described by the judge.  The judge further added that the cooperation provided credible and important information which put him and his family at serious risk.  As a result, the judge reduced the nominal starting point of 16 years to one of eight years and two months and fixed a non‑parole of three and a half years. 

26. Mr Henchliffe argues that the starting point of 16 years for GV compared with the starting point of 12 years and one month for the applicant indicates an appealable disparity.  Although there were only two common offences between the two, Mr Henchliffe puts that there were many more serious offences committed by GV.  He argues that the difference of some four years by way of a starting point does not reflect the difference in offending between the applicant and GV and gives rise to a justifiable sense of grievance by the applicant. 

27. It is to be noted that the applicant had been sentenced for two previous serious drug offences for which he was given suspended sentences.  GV had no relevant prior convictions.  GV’s cooperation with the police, as described by the sentencing judge in his case, was significant and on a reading of that judge’s reasons it is clear that such cooperation extended well beyond the Allenby Gardens and Gepps Cross offending.

28. The sentencing judge for GV was also faced with the problem that because of the number of offences involved in the sentencing process he had to deal with the question of totality.  Such issues did not arise in the sentencing of the applicant.  The two cases are clearly distinguishable.

29. I would refuse permission to appeal on this ground.

    Conclusion

30. In my view the sentence was appropriate.  I would refuse permission to appeal on all grounds.