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

KELLY J: I agree that the appeal should be dismissed for the reasons given by Doyle J.
BLUE J: I agree.
DOYLE J:
This is an appeal against sentence.
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.
The appellant contends that the Judge erred in failing to suspend the sentence of imprisonment.
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…

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 Josipovic

Details

AGLC: R v Josipovic [2016] SASCFC 44
Case: [2016] SASCFC 44
Decision Date: 22 April 2016

CaseChat Overview and Summary

This matter concerned an appeal against sentence by the appellant, R v Josipovic, before the Full Court of the Supreme Court of South Australia. The dispute centred on the sentencing judge's finding that the appellant had played an ongoing role in the cultivation and minding of cannabis plants.

The primary legal issue before the Full Court was whether the sentencing judge had erred in finding that the appellant was involved in an ongoing manner in the cannabis operation. The appellant also asserted two specific errors made by the sentencing judge: a reference to personal "documents" found at the premises, and a misstatement regarding the appellant's relationship status. However, the appellant did not contend that these specific errors, either individually or in combination, were sufficient to warrant interference with the sentence.

The Court noted that it was common ground that the sentencing judge was required to find the aggravating circumstance of ongoing involvement beyond reasonable doubt. The Court considered whether, allowing for the sentencing judge's advantages, error had been shown in this finding. While the finding necessarily rejected the appellant's evidence of limited involvement, the judge did not find the appellant to be the sole or primary person responsible, acknowledging he was one of several involved. The Court found that, in light of the objective evidence suggesting ongoing involvement, the implausibility of the appellant's explanation, and the sentencing judge's advantage in assessing the appellant's evidence as unconvincing, the finding of ongoing involvement was open and appropriate. No error was established.

Consequently, as no other errors were suggested, and it was not submitted that the sentence was manifestly excessive or that the judge erred in declining to suspend the sentence, the appeal was dismissed. The Court ordered that the time within which to appeal be extended to 21 December 2015, and that the appeal itself be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. It follows that the appeal should be dismissed. I would order:1.That the time within which to appeal be extended to 21 December 2015.2.That the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

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 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 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. 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 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. 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.