R v Novakovic - [2004] NSWCCA 437

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Novakovic [2004] NSWCCA 437

FILE NUMBER(S):
2004/2385

HEARING DATE(S): 18 November 2004

JUDGMENT DATE: 06/12/2004

PARTIES:
Regina
Michael NOVAKOVIC

JUDGMENT OF: Sully J Hidden J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1108

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
G. Rowling - Crown
S. Odgers SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
M. Ricci (The Law Practice) - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:
Leave to appeal against sentence granted
Appeal against sentence allowed to extent: (a) of quashing sentence passed in connection with Count 6; and of re-sentencing appellant on that count to imprisonment for 3 years to commence on 28/10/03 and to expire on 27/10/06, with a non-parole period of 2 years to commence on 28/10/03 and expire on 27/10/05, upon which date it is ordered the applicant be released to parole; and (b) by varying the sentence passed in connection with Count 2 by appending to it a non-parole period of 2 years to commence on 28/10/03 and expire on 27/10/05, upon which date it is ordered that the applicant be released to parole.
Save as aforesaid, sentences passed in District Court confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2385
SULLY J
HIDDEN J
HOWIE J
6 December 2004

REGINA v Michael NOVAKOVIC

Judgment

SULLY J: In May and June 2004 his Honour Judge Woods QC, in the District Court at Sydney, passed various sentences and made various orders in the cases of four co-offenders of whom Mr. Novakovic, the present applicant, was one. The others were: Detlef Hansel; Frank Panebianco; and Frank Porreca. Mr. Hansel and Mr. Porreca were dealt with on 14 May 2004. The applicant and Mr. Panebianco were dealt with on 11 June 2004. It will become necessary to consider later herein the detail of the various sentences and penalties.
The co-offender Hansel pleaded guilty to two charges of having knowingly taken part in the manufacture of not less than the legally prescribed commercial quantity of methylamphetamine, a prohibited drug. He was sentenced to concurrent sentences of imprisonment for 12 months with a non-parole period of 9 months, the commencing date in each case being 14 May 2004. An order was made suspending the whole of that sentence upon his entering into a conventionally conditioned good behaviour bond, having a duration of 12 months. This morning the Court has handed down a reserved judgment dismissing a Crown appeal against these sentences. The Court has held that the sentences were erroneous in various respects; but that given exceptionally powerful subjective considerations, the Court ought, in the exercise of its residual discretion, not to intervene.
The co-offender Porreca pleaded guilty to a charge that between 25 and 26 August 2001 he had in his possession a quantity of pseudoephedrine, a precursor intended by him for use in the manufacture by Frank Panebianco of methylamphetamine, a prohibited drug. He was sentenced to imprisonment for 2 years with a non-parole period of 18 months. An order was made for the serving of that sentence by way of periodic detention. The commencement date of the sentence was set at 22 May 2004.
The co-offender Panebianco pleaded guilty to two counts in an indictment and asked that a further three matters be taken into account on sentence.
Count 1 charged that between 22 and 28 August 2001 he had manufactured not less than the legally prescribed commercial quantity of methylamphetamine, a prohibited drug. Count 2 charged a separate offence in identical terms.
The additional matters taken into account were: first, an offence of having incited the present applicant, Mr. Novakovic, to take possession of the precursor, pseudoephedrine; secondly, an offence of having incited Frank Porreca to take possession of the precursor, pseudoephedrine; thirdly, an offence of having supplied methylamphetamine, a prohibited drug.
Mr. Panebianco was sentenced, effectively, to imprisonment for 8 years commencing on 27 August 2001, with a non-parole period of 6 years commencing on the same date.
The present applicant, Mr. Novakovic, was called for trial upon an indictment dated 10 March 2004.
The indictment contained six counts. Count 1 charged the applicant with having manufactured between 1 and 28 August 2001 not less than the legally prescribed commercial quantity of methylamphetamine, a prohibited drug. Count 2, laid in the alternative to Count 1, charged the applicant with having taken part knowingly in the manufacture charged in Count 1. Count 3 charged the applicant with having supplied on 27 August 2001 not less than the legally prescribed commercial quantity of methylamphetamine, a prohibited drug. Count 4, laid in the alternative to Count 3, charged the applicant with having taken part knowingly in the supply of not less than the legally prescribed commercial quantity of methylamphetamine, a prohibited drug. Count 5 charged the applicant with having had in his possession on 27 August 2001, and for supply, not less than the legally prescribed commercial quantity of pseudoephedrine, a prohibited drug. Count 6, laid in the alternative to Count 5, charged the applicant with having had in his possession on 28 August 2001 pseudoephedrine, a precursor intended by him for the purpose of manufacture or production by him or by another person of methylamphetamine, a prohibited drug.
The Particulars of Trial which are included in the appeal book suggest that the applicant pleaded not guilty to Counts 1, 3, 4 and 5; that he pleaded guilty to Counts 2 and 6; and that the Crown accepted those two pleas of guilty in full satisfaction of the indictment. There is in the appeal book no transcript prior to 16 March 2004; and the learned sentencing Judge speaks in his remarks on sentence of the applicant’s having eventually pleaded guilty “on an indictment which was then before a jury, the trial having started”; and of the pleas having been “late”.
Be all of that as it may, what is clear from the available transcript is that on 16 March 2004 the applicant was re-indicted at his own request and before the jury. He was re-indicted upon, and he pleaded guilty to, the original Counts 2 and 6. The Crown accepted those pleas in full satisfaction of the original indictment; and the jury was thereupon discharged.
The applicant stood for sentence on 11 June 2004. He was dealt with simultaneously with Mr. Panebianco. On Count 2 he was sentenced to imprisonment for 3 years dating from 28 October 2003. No non-parole period was set because of the overall sentencing structure. On Count 6 he was sentenced to imprisonment for 4 years dating from 28 October 2003. A non-parole period of 3 years was set, it also dating from 28 October 2003.
The sentences thus passed in respect of Count 2 took into account four additional matters that had been scheduled pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those additional offences, all of which were dated as having occurred on 27 January 2004, were:
[1]an offence of supplying 23 grams of cocaine;
[2]an offence of having in custody goods reasonably suspected of having been unlawfully obtained;
[3]an offence of unlawful possession of a prohibited weapon;
[4]a further offence of unlawful possession of a prohibited weapon.
The applicant now applies for leave to appeal against the sentences thus passed upon him. His notified grounds of appeal are:
“1.In respect of the sentence imposed on count 2 in the indictment, the applicant has a legitimate sense of grievance in respect of the disparity of sentence imposed on Hansel.
2.The sentence imposed in respect of count 6 in the indictment is manifestly excessive.
3.In respect of the sentence imposed on count 6 in the indictment, the applicant has a legitimate sense of grievance in respect of the disparity of sentence imposed on Hansel (sic: but the reference to Hansel should be a reference to Porreca)
4.The sentencing judge erred in not finding “special circumstances”.
Before considering each of those grounds, it is convenient to note that the Count 2 offence attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years; and the Count 6 offence attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 10 years.
As to the scheduled additional offences, the first additional offence attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 15 years; the second additional offence attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 6 months; and each of the third and fourth additional offences attracts upon summary conviction a statutory maximum penalty of, relevantly, imprisonment for 2 years; and attracts upon conviction on indictment a statutory maximum penalty of, relevantly, imprisonment for 14 years.
The relevant facts are conveniently summarised, as follows, in the remarks on sentence of the learned primary Judge:
“The police, with the advantage of telephonic interception equipment, focused on Mr. Panebianco but caught up with various others, Mr. Novakovic and the other two I have mentioned. Transcripts of various telephone calls are in evidence before me setting out arrangements (principally by Mr. Panebianco, but involving all the others significantly) for what is colloquially called “cooking up” methylamphetamine and other related prohibited drugs. I will not go through the telephone calls in detail, except that I say that they explain and confirm the criminality to which the offenders have pleaded guilty. The Crown case, of course, was very strong.
…………………………………………………………………………….
Arising out of the various telephone calls, the police on 27 August raided premises at 22 Neville Street, Riverstone, a place where Mr. Panebianco met Hansel, and they were caught, in effect, with the drug “cooking up”. On the same day there was a search at Mr. Novakovic’s premises at Atlas Cleaning, his company at 3/202 Whyalla Place, Prestons. As well police recovered drugs subsequently from The Oaks, which was where Mr. Panebianco was located. On the 27th Mr. Panebianco was observed leaving The Oaks in his vehicle early in the morning and reaching Neville Road, Riverstone at 7.05 a.m. He walked towards the garage area and Hansel arrived in a Nissan Patrol vehicle. They together moved various items backwards and forwards. About four hours later the offender Panebianco left carrying a package and he was followed and arrested a short distance from his house. Hansel also was arrested. Chemical analysis was conducted by a scientist, who from outside the house at Riverstone, observed fumes arising out of a round vessel inside the garage. He got into his breathing apparatus and protective suit and turned the vessel off. The vessel was a three neck reaction flask with a capacity of five litres, placed on the heat source. The flask contained a brownish liquid boiling at about 120 degrees Centigrade. It was undoubtedly a process whereby pseudoephedrine was being converted to methylamphetamine. Located above the flask was a condenser with a glass vessel below its lower outlet, containing a two layer liquid, an oily layer above a milky white layer. The liquid was the product of steam distillation to purify the methylamphetamine. Various other items were found at those premises, precursor chemicals, manufactured or partially manufactured substances and laboratory equipment required for the manufacture of prohibited drugs.
Giving rise to the two counts on the indictment, analysis confirmed that the contents of the flask was an upper layer weighing 436 grams, consisting of 73.5 per cent methylamphetamine and P2P, and a lower layer of a milky substance weighing 477.8 grams, containing one per cent methylamphetamine and some other substances. The exercise had reached the point where as it were half of the job had been done, and the second count relates to the unfinished business.
In the related search of Prestons, various items were found there, including in particular a large quantity of empty boxes and blister packs which appeared to be packaging which had contained Sudafed tablets, a large quantity of tablets including Sudafed containing a percentage of pseudoephedrine. A document was found at the premises supporting the conclusion that I reach that tablets were sources for the chemical required to manufacture methylamphetamine or “speed”. At those premises, electronic scales, a funnel and a tub with traces of relevant chemicals were found relating to the extraction of pseudoephedrine, providing circumstantial evidence of having been used to prepare the tablets containing pseudoephedrine for extraction of a chemical. The police also found a quantity of pure pseudoephedrine powder, weighing 156 grams, which was consistent with the intercepted conversations on 25 August 2001 between Panebianco and Novakovic. That is relevant in relation to the form 1 which I have mentioned. A large quantity of methylamphetamine of very high purity was seized from the premises.
The police also found at the premises of Mr. Novakovic a variety of other items consistent with drug dealing. There was a very large quantity of money found in a safe in a room attached to Mr. Novakovic’s premises. There was unworn clothing, jewellery and electrical tools consistent with having been provided as payment for prohibited drugs.:
The foregoing statement of facts was provided by his Honour in particular connection with the sentencing of the co-offender Panebianco. When his Honour came, in the same remarks on sentence, to deal with the present applicant’s individual case, his Honour added the following observations and findings as to relevant facts:
“As with Mr. Panebianco, the telephone transcripts before the Court explain a connection between Mr. Panebianco and Mr. Novakovic as to the manufacture of drugs. It is unnecessary to dilate upon the terms of those telephone intercepts and transcripts. Obviously they are compelling and no doubt had an effect in provoking a plea of guilty.”
“There were several police raids: at The Oaks with Mr. Panebianco, at the property most closely connected with Hansel, Riverstone, and at 3/202 Whyalla Road, Prestons, which was part of an industrial complex housing Atlas Cleaning, Mr. Novakovic’s company. There is no doubt that Mr. Novakovic was a cleaner, had a cleaning business, and had been for many years a legitimate businessman. He has no prior convictions and that goes in his favour. The premises were under his control however, and when the police searched they found a large quantity of empty boxes with blister packs. These appeared to be packaging which had contained Sudafed tablets. There was a large quantity of actual tablets including Sudafed, which contained some proportion of pseudoephedrine; and there was documentation there which indicated that the tablets were sources for the chemical required to manufacture methylamphetamine”
“There is no evidence that Novakovic himself was a chemist or “cook”, and indeed the telephone conversations make it clear that he was an amateur. Nonetheless he was an enthusiastic amateur, and amateur who allowed his otherwise legitimate premises to be used for a place where the relevant drugs and precursors, scales, funnels, tubs and so on were found. There was found, as count 6 indicates, 156 grams of the prohibited drug, that is to say pseudoephedrine, a precursor intended by him for the purpose of manufacture or production by him or another person of methylamphetamine. This 156 grams of pure pseudoephedrine powder is very significant, and is a principal part of the criminality. Various other drugs were found at the premises.”
Its is convenient to begin a particular discussion of the grounds of appeal by looking first at Grounds 1 and 3, each of which raises issues of sentencing parity. For that purpose it is useful to tabulate some salient comparative features drawn from the remarks on sentence of the learned primary Judge.

Offence	Novakovic	Hansel	Porreca
Knowingly take part in the manufacture of not less than the prescribed commercial quantity of methylamphetamine	One offence. Four additional matters taken into account. Sentence of imprisonment for 3 years. No non-parole period.	Two offences. Concurrent sentences of imprisonment for 12 months; non-parole period 9 months; sentence wholly suspended upon the entering of a good behaviour bond.	Not applicable
Unlawful possession of pseudoephedrine	One offence. Sentenced to imprisonment for 4 years; non-parole period of 3 years.	Not applicable	One offence. Sentenced to imprisonment for 2 years; non-parole period of 18 months; order that the sentence be served by way of periodic detention.

Age at Date of Sentence	Novakovic	Hansel	Porreca
50 years and 4 months	12 days short of his 60th birthday	Not available

Criminality	Novakovic	Hansel	Porreca
“There is no evidence that Novakovic himself was a chemist or “cook”, and indeed the telephone conversations make it clear that he was an amateur. Nonetheless he was an enthusiastic amateur, an amateur who allowed his otherwise legitimate premises to be used for a place where the relevant drugs and precursors, scales, funnels, tubs and so on were found. There was found, as count 6 indicates, 156 grams of the prohibited drug, that is to say pseudoephedrine, a precursor intended by him for the purpose of manufacture or production by him or another person of methylamphetamine. This 156 grams of pure pseudoephedrine powder is very significant, and is a principal part of the criminality. Various other drugs were found at the premises.”	“Moral responsibility” significantly diminished by reason of powerful and unusual subjective case in connection with demonstrated medical history and demonstrated current medical conditions. Unusually disadvantaged background. “(A)t the lower end of the scale of culpability in this operation compared to” Novakovic and Panebianco	No precise assessment in the remarks on sentence; but treated, obviously, as a willing participant in an organised scheme for the unlawful manufacture of a prohibited drug. “(A)t the lower end of the scale of culpability in this operation compared to Novakovic and Panebianco

Criminal Antecedents	Novakovic	Hansel	Porreca
None	Prior drug-related offences in 1993 and 1989; imprisoned in 1993 for drug-related offending.	“Minor matters”. No serious criminal antecedents. No prior drug-related offending.

Subjective Matters	Novakovic	Hansel	Porreca
A good worker. Not a drug user or a drug addict. “(U)nlikely to be involved in this sort of thing again”.	Very powerful. “…… quite extraordinary …… representing a very exceptional case”.	A “good worker” and a “family man”.

As to Ground 1 it seems to me that the disparity between the two relevant sentences does not justify the intervention of this Court; except for the limited purpose of setting a non-parole period of 2 years, so that the sentence as thus re-cast would be compatible with, and concurrent with the sentence that I shall be proposing for Count 6.
The applicant’s sentence took account, at his request, of four additional offences all of which except, perhaps, the goods in custody offence were not insignificant matters. The co-offender, Hansel, had no additional scheduled matters. He had, of course, a second principal offence, albeit one arising out of the same facts as the first principal offence.
Hansel’s criminal antecedents were not insignificant, and the applicant, having no such antecedents, has of course the better of that particular comparison.
Where the cases really do differ is in the substance of what I might call the respective overall subjective cases. The applicant’s subjective case had genuine strengths, and the sentencing Judge seems to me to have identified them correctly. Hansel’s subjective case was, however, of a starkly different and more exigent kind.

As it happens, and as I have explained in my judgment in the Crown appeal in Hansel’s case, I believe that Hansel’s sentencing miscarried in a number of important respects; and that it is only a reluctant recourse to this Court’s residual discretion that justifies the dismissal of that Crown appeal.
That such a result leaves Hansel with what I consider to be an inappropriately lenient sentence does not at all entail that, more or less as of course, the applicant’s sentence must now be reduced. Cf Reg v Ismunander & Siregar [2002] NSWCCA 477 at para [38].
I am unpersuaded that the learned sentencing Judge’s conclusions as to the applicant’s objective criminality were not open to his Honour on the evidence before him. It is not contended that the sentence passed in connection with Count 2 is, in any event, manifestly excessive. If, as I believe, the cases of the applicant and of Hansel are, overall, significantly different, then either there is, strictly speaking, no parity point at all; or if there is theoretically some such point, then it does not have the weight necessary to justify the intervention of this Court.
I would not uphold Ground 1.
As to Ground 3, a practical comparison of the respective cases of the applicant and of the co-offender Porreca seems to me to indicate that, objective criminality apart, there is not anything of great substance to choose between the two cases.
As to objective criminality, there are, in my opinion, two relevant considerations.
First, the sentencing Judge found that the applicant’s culpable involvement in the relevant manufacturing process was greater than that of Porreca. There is nothing in the remarks on sentence either in the case of the applicant or in the case of Porreca that explains in any exact way quite how his Honour reached that conclusion. It is not controversial that the applicant had possession of a larger quantity of pseudoephedrine than did Porreca; but I cannot find in the appeal book any material that quantifies at all precisely the difference in amount.
I have concluded, therefore, that the only sound way of resolving the present point is by holding the applicant to the onus of proof which the applicant undoubtedly carries. In that connection I am not satisfied that the applicant has discharged the onus of establishing that the sentencing Judge could not properly have found that the applicant’s culpability was at a somewhat higher level than that of the co-offender Porreca.
Secondly, the sentencing Judge had to sentence Porreca for one offence only. His Honour had to sentence the applicant in a way which set a just sentence for each of two separate offences, on one of which his Honour had to take into account four additional matters. In the applicant’s case his Honour was required then to decide how to structure those two sentences into an effective overall sentencing result that reflected fairly the totality of the applicant’s criminality in connection with all of the offences for his which Honour was sentencing.
It seems to me that his Honour, when he came to set as part of that overall exercise a just and discrete sentence on Count 6, was obliged to take properly into account the very lenient sentence that he had himself passed upon the co-offender Porreca in connection with the very same offence. No doubt it was appropriate, given his Honour’s findings as to comparable criminal culpability, to sentence the applicant more severely than had been done with the co-offender. But the margin between a head sentence of 2 years to be served by way of periodic detention, and a head sentence of 4 years to be served by way of full-time custody, seems to me to be unsustainable if due effect is given to the principle of parity in sentencing.
In my opinion Ground 3 should be upheld. What should actually be done consequentially, cannot be decided until Grounds 2 and 4 have been resolved.
As to Ground 2, there are some Judicial Commission statistics, but the number of cases analysed is tiny, and so of no reliable assistance.
That seems to me to make the case one for a careful application of the so-called instinctive synthesis approach to sentencing; and on that approach I am not persuaded that the applicant has discharged the onus of proof of establishing that, the proper requirements of the principle of parity aside, the sentence passed is manifestly excessive.
As to Ground 4, the learned sentencing Judge was, to say the least, to the point in dealing with the applicant’s submission to his Honour that “special circumstances” should be found, and that a shorter than usual non-parole period should be set accordingly. His Honour said simply in his remarks on sentence: “I do not find special circumstances justifying the variation of the normal relationship between the head sentence and the non-parole period”.
The applicant contends, and I agree, that there were matters, established by credible evidence, and capable of amounting to “special circumstances”. The applicant’s written submissions summarise those matters thus:
“………… (T)he applicant was of prior good character, has never before been to prison, was contrite, is in his 50’s and has good prospects of rehabilitation.”
The applicant complains, and in my opinion justifiably, that his Honour, if intending to make either a specific finding that there were no circumstances capable of amounting in law to special circumstances; or that there were such circumstances available in principle, but that his Honour was not prepared to find them in fact; was obliged to give some explanation, however brief, of why he was not going to make such a finding in fact.
In my opinion there is some proper scope for some modest reduction in an otherwise appropriate non-parole period by reason of the aforesaid special circumstances. To that extent I would uphold Ground 4.
Conclusions and Orders
The applicant’s success on Grounds 2 and 4 should be implemented, in my opinion, by a suitable adjustment of the sentence passed in connection with Count 6. I think that practical justice would be done by reducing the head sentence on that count from one of imprisonment for 4 years to one of imprisonment for 3 years, with a non-parole period of 2 years, that non-parole period reflecting a finding, which I would make, of “special circumstances”, as previously herein identified. I would propose a complementary variation, as outlined in paragraph 20, of the sentence passed in connection with Count 2.
I propose, therefore, these orders:
[1] That leave to appeal against sentence be granted;
[2] That the appeal against sentence be allowed to the extent: (a) of quashing the sentence passed in connection with Count 6; and of re-sentencing the appellant on that count to imprisonment for 3 years to commence on 28 October 2003 and to expire on 27 October 2006, with a non-parole period of 2 years to commence on 28 October 2003 and to expire on 27 October 2005, upon which date it is ordered that the applicant be released to parole; (b) by varying the sentence passed in connection with Count 2 by appending to it a non-parole period of 2 years to commence on 28 October 2003 and to expire on 27 October 2005, upon which date it is ordered that the applicant be released to parole.
[3] That, save as aforesaid, the sentences passed in the District Court be confirmed.
HIDDEN J: I agree with Sully J.
HOWIE J: I agree with Sully J

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LAST UPDATED: 06/12/2004