R v Josipovic

[2016] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JOSIPOVIC

[2016] SASCFC 44

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)

22 April 2016

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

The appellant pleaded guilty to cultivating a commercial quantity of cannabis plants for sale. The sentencing Judge commenced with a notional head sentence of three years imprisonment. This was reduced by 20 per cent for the appellant’s guilty plea, leaving a head sentence of two years and five months imprisonment with a non-parole period of 12 months. The sentencing Judge declined to suspend the sentence.

The appellant appealed on the ground that the sentencing Judge erred in finding beyond reasonable doubt that the appellant played an ongoing role in the minding and cultivation of the cannabis plants, and hence in sentencing on this basis.

Held per Doyle J (Kelly and Blue JJ agreeing), dismissing the appeal:

1.       No error has been established.

2.       It was open and appropriate for the Judge to find beyond reasonable doubt that the appellant played an ongoing role in the minding and cultivation of the cannabis plants.

Controlled Substances Act 1984 (SA) s 33B(2), referred to.
R v Kreutzer (2013) 118 SASR 211, discussed.
House v The King (1936) 55 CLR 499; R v Olbrich (1999) 199 CLR 270; R v Nemer (2003) 87 SASR 168; Weininger v The Queen (21003) 212 CLR 269; R v Gjoni [2012] SASCFC 48; R v Wheeler [2015] SASCFC 83, considered.

R v JOSIPOVIC
[2016] SASCFC 44

Court of Criminal Appeal:       Kelly, Blue and Doyle JJ

1. KELLY J:             I agree that the appeal should be dismissed for the reasons given by Doyle J.

2. BLUE J:                I agree.

   DOYLE J:

3. This is an appeal against sentence.

4. The appellant, Nikica Josipovic, pleaded guilty to cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2) of the Controlled Substances Act 1984 (SA). The sentencing judge commenced with a notional head sentence of three years imprisonment. This was reduced by 20 per cent for the appellant’s guilty plea, leaving a head sentence of two years and five months imprisonment. Relying upon the appellant’s personal circumstances, including his previous good record, the Judge fixed a non-parole period of 12 months. The Judge declined to suspend the sentence.

5. The appellant contends that the Judge erred in failing to suspend the sentence of imprisonment. 

6. It is, of course, necessary on an appeal such as this to identify error of the kind described in House v The King.[1]  The only relevant error asserted by the appellant is a finding by the Judge that the appellant played an ongoing role in the minding and cultivation of the cannabis plants concerned.  It is contended that this was a process error which, if established, warrants this Court determining afresh whether the appellant’s sentence should be suspended.[2]

   [1]    House v The King (1936) 55 CLR 499 at 504-505, as recently applied in R v Wheeler [2015] SASCFC 83 at [19]-[20].

   [2]    R v Kreutzer (2013) 118 SASR 211 at [10].

7. While two other factual errors were asserted, it is not suggested on appeal that these are independently capable of constituting error sufficient to warrant this Court interfering with the Judge’s sentence. Nor is it suggested that the Judge’s discretion with respect to the sentence imposed, or the decision not to suspend that sentence, otherwise miscarried.

8. For the reasons set out below, I am not satisfied that the sentencing Judge erred in finding beyond reasonable doubt that the appellant played an ongoing role in the minding and cultivation of the cannabis plants concerned, and hence in sentencing on this basis.  It follows that the appeal must be dismissed.

   Factual Basis for Sentencing

9. The following matters relied upon by the Judge are not in dispute.

10. On 24 September 2013, police attended a West Croydon address, having received information from a utilities inspector that more power was being used than recorded on the electricity meter, and that it appeared there was someone inside the house who was not answering the door to the inspector.

11. When police attended, they found the house substantially devoted to the hydroponic growth and production of cannabis.  There were three grow rooms dedicated to hydroponic production, with a total of 32 cannabis plants.  There was a well organised set up with lined walls, integrated irrigation, suspended high wattage lamps and lamp shades, electrical transformers and other equipment.  The police also found dedicated air extraction ducting, pumps, buckets, and integrated electrical wiring.  Mains power was indeed being diverted to power the operation. 

12. While the appellant was not physically present when police attended, and was not named on the lease, nevertheless forensic evidence was located indicating his presence at the house.  His DNA was found on a glove, shoe and spoon found in a partly consumed bowl of food in the kitchen.  His fingerprints were found on a power board, hydroponic lamp shade and transformer, each of which were being used for the purpose of the operation. The evidence also revealed two other (unidentified) contributors to the forensic material located at the house, as well as the appellant’s then partner, Ms Cima Jusic.  There was no evidence linking the appellant to the bedding found at the house.

13. Some documents were found in the house, including a receipt relating to the appellant’s motor vehicle registration and other pieces of paper containing handwritten references to Cima Jusic and various numbers and amounts apparently relating to expenses incurred in producing the cannabis. There was no evidence to suggest that the handwriting on this latter group of documents was the appellant’s.

14. When the matter was called on for sentencing submissions, counsel for the appellant made submissions that the appellant only attended the premises on two occasions.  It was submitted that he agreed to assist in picking the crop because he was nominated by an associate to assist, and did not think that the unnamed people running the operation (whom he had not met) were the sort of people to whom he could say “no”.  It was submitted that the appellant’s only expectation of reward was that he would receive at least a pound of cannabis for his own use, but he never received this reward.  The Judge was also informed that the handwriting on the documents located at the house was not the appellant’s.

15. The Judge informed the parties that he was not satisfied that this version of events was able to be reconciled with the forensic evidence, and gave the appellant’s counsel an opportunity to consider whether to call evidence from the appellant.  In light of decisions such as R v Nemer,[3] the Judge was entitled, if not required, to take this approach given the reservations held as to the factual basis for the plea.

    [3]    R v Nemer (2003) 87 SASR 168.

16. The appellant then gave oral evidence.  While his evidence may have been affected to some extent by a limited command of English, it was nevertheless vague and confusing in several respects.

17. The effect of what the appellant said was that he went to the house on just two occasions, both in the company of his then partner, Ms Jusic, and at her instigation.  On the first occasion, he was present for about three hours and cut some branches.  On the second occasion, he was only there for about 10 or 15 minutes and did no more than place water in a bucket.  He said that he only helped out because he was blinded by his love for Ms Jusic.  He said that he was told by Ms Jusic that he would receive some cannabis for his assistance, but that this never happened.  He denied being a user of cannabis, and said that he was not sure what he would have done with the cannabis, save that he might have tried it.

18. The appellant’s evidence as to when he went to the premises was unclear.  He said that the first time was possibly in June or July, and the last time was maybe in August 2013.  When asked about the bowl of pasta in the kitchen (containing the spoon on which his DNA was located), he said that Ms Jusic cooked that for him on the second occasion.  He said that his fingerprints on the light shade, power board and transformer were explained by the fact that he had to move these items when he was cutting the plants on his first visit to the house.  He said that he wore the gloves for about 20 minutes when he was dealing with the plants, but took them off because he thought he was having an allergic reaction to the rubber.

19. As for the pair of shoes found by the police, which bore his DNA, the appellant said that he took his shoes off on the first occasion because he was sweating and put on some slippers (or, as he later described them, thongs) he found there.  He said that he forgot to take his shoes home.  Implicitly he must have also forgotten to collect them on the second occasion.

20. The appellant admitted that he lied to the police on two separate occasions when he told them that he had not been to the house and knew nothing about it.  He denied that the handwriting on the documents found at the house was his, or that he otherwise recognised them.  He was not asked about, and did not proffer any explanation for, the receipt linked to him being at the house.

21. The Judge rejected the appellant’s account of his limited involvement, and in particular his assertion that he only attended on two occasions.  He regarded that account as being “fundamentally inconsistent” with the “significant volume of forensic evidence” indicating his contact with the property.  After summarising the appellant’s oral evidence, the Judge reasoned:

    Regrettably your evidence was completely unconvincing.  The version of events you gave was inherently unlikely and inconsistent with the level of forensic evidence located.  A number of aspects of your version of events were not believable.  I will not go through all of those because these are sentencing remarks not a judgment.  For example … the explanation of your shoe being located there was that on one of the occasions you changed into slippers and left your shoes there. 

    It is agreed that the Court have regard to all of the declarations together with the tendered photographs in your evidence. 

    In the final analysis it is established beyond reasonable doubt that you were playing an ongoing role in the minding and cultivation of the plants concerned.  However, I do accept your counsel’s submission based on other forensic evidence located and the totality of the circumstances that you were only one of several people undertaking that role and that you were not solely responsible for the cultivation and maintenance or tending of the cannabis …

    I also accept his submission that there is no evidence that you were involved in the setting up or the sourcing of any of the hydroponic equipment.

22. The Judge went on to infer from the nature of the appellant’s involvement that he was paid for his role, albeit that it was not possible to determine how much. 

    Consideration

23. As mentioned, the only error relied upon by the appellant to warrant this Court interfering with the sentence imposed below is the Judge’s finding that the appellant played an ongoing role in the minding and cultivation of the cannabis plants concerned.  Before addressing this matter, it is convenient to address briefly two specific errors asserted by the appellant.

    Asserted Specific Errors

24. The first of the specific errors asserted by the appellant is the Judge’s reference to personal “documents” belonging to the appellant being located in the house.  The appellant contends that the evidence only enabled such a finding in respect of one document, namely the vehicle registration receipt.  The Judge’s reference to documents in the plural appears to be a slip given the absence of any reference to the appellant’s evidence on the topic.  However, it is not necessary to resolve this issue, because there is no submission on appeal that this asserted error would be sufficient to warrant interference with the sentence imposed.

25. The second error asserted by the appellant is the Judge’s reference in his sentencing remarks to the appellant having previously been in a relationship, but now being single.  The error was understandable because this is what the sentencing Judge was originally told by the appellant’s counsel.  On a subsequent occasion, however, the appellant’s counsel corrected himself and informed the Judge that the appellant had been in a relationship for about a year and that he and his partner were expecting a child in five weeks.  However, again, it is not contended that this error was sufficient (alone or in combination with the asserted error in relation to the reference to “documents”) to warrant this Court interfering with the Judge’s decision not to suspend the sentence imposed.

    The Finding of Ongoing Involvement

26. It is common ground on appeal that the Judge was required to, and did, find the adverse or aggravating circumstance of ongoing involvement beyond reasonable doubt.  Accordingly, it is not necessary for this Court to consider the issues which sometimes arise as to the burden and onus on sentencing, as recently considered by this Court in R v Kreutzer.[4]

    [4]    R v Kreutzer (2013) 118 SASR 211 at [21]-[36], applying R v Olbrich (1999) 199 CLR 270 and Weininger v The Queen (2003) 212 CLR 629.

27. The issue for this Court is whether, making proper allowance for the advantages of the sentencing Judge, error has been shown in the finding of ongoing involvement by the appellant.  While the finding of ongoing involvement necessarily required rejection of the appellant’s evidence that he only attended the premises twice, the Judge did not find that the appellant was the sole, or even primary, person responsible for minding or cultivating the cannabis.  His Honour acknowledged that the appellant was only one of several people involved.

28. The fact of fingerprints being found in three separate locations, together with DNA on a shoe and glove found at the premises are strongly suggestive of ongoing involvement.  The appellant’s explanation for his initial involvement and likely reward, for his shoes remaining at the premises, and for his being served a meal on the second occasion despite only being there for 10 to 15 minutes, are all implausible.  It is also implausible that the half eaten bowl of pasta would have remained where it was found, and in the state  in which it was found, had the appellant last visited the premises a month or more earlier, as he claimed.  The absence of any explanation for his motor vehicle registration receipt being at the premises is also relevant. 

29. It is important to bear in mind the advantage the sentencing Judge had in assessing the appellant’s oral evidence.  The Judge described his evidence as “seemingly evasive”, adding that his evidence in cross-examination was “no more convincing”.  Having read the transcript, there is no reason to interfere with the Judge’s assessment of the appellant’s evidence.  Indeed, I agree that his oral evidence was unsatisfactory in several respects.

30. In light of the objective evidence suggestive of ongoing involvement, the inherent implausibility of the appellant’s explanation for this evidence, and the Judge’s advantage in forming the view that the appellant’s evidence was unconvincing, I am satisfied that it was open and appropriate for the Judge to make the finding he did.  No error has been established.

    Conclusion

31. As earlier mentioned, it was not suggested that there was any other error within the meaning of House v The King.  It was not submitted that the sentence was manifestly excessive or that it was not open to the Judge to decline to suspend the sentence imposed.  Indeed, as the Director of Public Prosecutions points out, any such submission would have been problematic in light of the reasoning of this Court in R v Gjoni,[5] and in light of the Judge’s finding that the appellant lied as to the extent of his involvement in the cannabis operation in question.

    [5]    R v Gjoni [2012] SASCFC 48.

32. It follows that the appeal should be dismissed.

33. I would order:

    1.That the time within which to appeal be extended to 21 December 2015.

    2.That the appeal be dismissed.