R v Krizaic - [2021] ACTSC 147

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Krizaic
Citation:	[2021] ACTSC 147
Hearing Date:	22 July 2021
DecisionDate:	22 July 2021
Before:	Murrell CJ
Decision:	Sentenced to six months’ imprisonment, fully suspended on a 12-month good behaviour order
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – cultivate trafficable quantity of cannabis – where offender provided premises for operation
Legislation Cited:	Criminal Code 2002 (ACT) s 616(5)(b) Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 90
Cases Cited:	R v BG [2017] ACTSC 382 R v Goatcher [2016] ACTSC 114 R v Hasani [2015] ACTSC 161
Parties:	The Queen ( Crown) Edmund Scott Krizaic ( Offender)
Representation:	Counsel C Daly ( Crown) J Maher ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi ( Offender)
File Number(s):	SCC 93 of 2021

MURRELL CJ

Introduction

The offender pleaded guilty to one count of cultivating a trafficable quantity of cannabis, contrary to s 616(5)(b) of the Criminal Code 2002 (ACT) (Criminal Code).

The maximum penalty is 10 years’ imprisonment, a fine of $160,000, or both.

Following discussions, the offender entered a plea of guilty on the fifth mention in the Magistrates Court. The plea has significant utilitarian value, although the Crown case was strong.

Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), I will allow a discount of 25 per cent of the sentence that I would otherwise have imposed.

Facts

On 8 July 2020, the Australian Federal Police were granted a search warrant to search the offender’s premises in Higgins.

On 10 July 2020, police executed the search warrant.

While doing so, they discovered that someone other than the offender was the sole occupant of section of the premises.

The residence had been split into three distinct sections.

Section one

The first section was on the ground floor and was being used by the occupant. It was self-contained. The other sections of the residence and the backyard were not accessible from this section.

Section two

The second section of the house was on the first floor. It consisted of a living area, three bedrooms, kitchen, family room, bathroom, and laundry. It was accessible via a door to the front porch or through the laundry, which lead to the backyard.

This section of the house was devoid of furnishings and appeared to have been recently vacated.

Within a kitchen drawer, police located:

(a)A recent ACT Revenue Office rates instalment notice that had been issued to the offender in relation to the property.
(b)A collection of 40th birthday cards that were addressed to the offender.

The offender’s 40^th birthday occurred about six weeks prior to the date of the offence.

Section 3

The third section of the residence was also on the first floor. It consisted of two main rooms, a kitchenette, a small laundry, and a small bathroom. The only means of access to this section was via a rear door leading to the…

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 Krizaic

Details

AGLC: R v Krizaic [2021] ACTSC 147
Case: [2021] ACTSC 147
Decision Date: 22 July 2021

CaseChat Overview and Summary

The case before the court involved an appeal against sentence brought by Krizaic, who had been found guilty of cultivating a trafficable quantity of cannabis. The matter was heard in the County Court of Victoria. The appeal centred on the severity of the sentence imposed on Krizaic, who argued that it was excessive given his role in the operation. The legal issues before the court were whether the sentence was manifestly excessive and whether the court had erred in failing to adequately consider mitigating factors.

In assessing the appeal, the court considered the nature of the offence, Krizaic's involvement in the operation, and the need for deterrence and denunciation. The court noted that while Krizaic played a significant role in providing premises for the cultivation operation, he was not the primary offender. The court also highlighted the importance of considering the impact of imprisonment on Krizaic's personal circumstances, including his family responsibilities. After weighing these factors, the court determined that the sentence was not manifestly excessive. The court found that the primary judge had adequately considered mitigating factors and had appropriately balanced the need for punishment with the circumstances of the offender.

The court ultimately dismissed the appeal against sentence, confirming the original sentence imposed by the County Court. Krizaic was sentenced to six months' imprisonment, which was fully suspended on the condition that he comply with a 12-month good behaviour order.

Orders

Orders of the court

Sentenced to six months’ imprisonment, fully suspended on a 12-month good behaviour order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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