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Court of Criminal Appeal 4 June 2009

CVITAN, Zdenko Stipe v R; R v Zdenko Stipe CVITAN

[2009] NSWCCA 156

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCE CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: CVITAN, Zdenko Stipe v R; R v Zdenko Stipe CVITAN [2009] NSWCCA 156
Court: New South Wales Court of Criminal Appeal
Date: 4 June 2009
Judge(s): McClellan CJ at CL, James J, Simpson J (Simpson J delivered the principal judgment; the others agreed)

Background

The offender was convicted, after a mid-trial guilty plea, of manufacturing not less than the large commercial quantity of MDMA (ecstasy) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. The offending took place between June and December 2005 at a sophisticated clandestine laboratory on a rural property at Colo Vale, NSW. The laboratory was capable of producing many times the large commercial quantity of the drug, and police located significant quantities of MDMA and precursor chemicals on the property.

The offender participated in converting a shed into the laboratory, purchasing equipment and ingredients, and facilitating the arrival in Australia of a foreign technical expert. He was one of several co-offenders, including a man named Suteski, whose relative culpability and sentences were central to both appeals.

The District Court sentenced the offender to 14 years and 3 months imprisonment, with a non-parole period of 9 years and 3 months. The offender appealed on the ground of manifest excess. The Crown separately appealed on the ground of manifest inadequacy. The Crown had initially appealed against Suteski's sentence as well, but abandoned that appeal before the hearing.

  • Whether the sentence of 14 years and 3 months (with a non-parole period of 9 years and 3 months) was manifestly excessive as contended by the offender
  • Whether the same sentence was manifestly inadequate as contended by the Crown
  • Whether the sentencing judge made a factual error in finding special circumstances (which justified a longer-than-standard balance of term)
  • Whether parity principles applied between the offender and his co-offender Suteski, including after a Crown appeal succeeds in establishing inadequacy
  • What orders should follow if the Crown established manifest inadequacy, given the abandoned appeal against Suteski's sentence

Decision

The Court of Criminal Appeal, accepting Simpson J's reasoning, found that the sentence was manifestly inadequate. The standard non-parole period for the offence was 15 years, and the sentencing judge imposed a non-parole period of only 9 years and 3 months. The Court concluded the offence fell in the mid-range of objective gravity, that there was no proper basis for such a substantial departure from the standard non-parole period, and that the magnitude of that departure itself indicated error. The Court also found a factual error in the finding of special circumstances: the sentencing judge had relied on the offender's need for supervision on release, but the Court held that such a need is inherent in every sentence and is not a legitimate basis for extending the balance of term beyond the standard ratio.

On the offender's own appeal, the Court rejected the argument of manifest excess. His sentence was proportionally greater than Suteski's, consistent with the finding that he was the more culpable participant. The relativities between the two sentences were described as "proportionally correct," and no parity grievance arose on that basis.

The more nuanced question concerned what orders should follow the Crown's successful demonstration of manifest inadequacy. The Court applied the reasoning in R v Borkowski [2009] NSWCCA 102, holding that parity principles remain relevant even after a Crown appeal succeeds. Because the Crown had abandoned its appeal against Suteski's sentence without explanation, increasing the offender's sentence would disrupt the proportional relationship between the two sentences and create in the offender a justifiable sense of grievance. The Court declined to intervene for that reason alone.

Accordingly, both appeals were dismissed: the offender's appeal because no excess was established, and the Crown appeal because, although inadequacy was established, parity considerations made it inappropriate to re-sentence.

Orders Made

  • Crown appeal dismissed
  • Leave granted to the offender to appeal against sentence
  • Appeal against sentence dismissed

Key Takeaways

  • Parity principles operate not only to prevent disparity between co-offenders at first instance, but also constrain the Court of Criminal Appeal from re-sentencing on a Crown appeal where that would create disproportionality with a co-offender whose sentence was not successfully challenged.
  • A Crown appeal abandoned without explanation against one co-offender's sentence can have direct consequences for a related Crown appeal against another co-offender, even where the court finds the sentence in question was manifestly inadequate.
  • The magnitude of departure from a standard non-parole period is itself capable of demonstrating sentencing error, particularly where the offence falls in the mid-range of objective gravity and no adequate reason for departure has been identified.
  • Applying R v Borkowski [2009] NSWCCA 102, the Court confirmed that a finding of manifest inadequacy does not automatically lead to re-sentencing: the court retains a discretion to dismiss a Crown appeal where intervention would produce unacceptable disparity.
  • A finding of special circumstances based on an offender's need for supervision on release was treated as factually erroneous, because such a need is a feature of all custodial sentences and cannot on its own justify extending the balance of term beyond the standard ratio.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 4, Division 1A (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal rights)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2) (manufacture of large commercial quantity of prohibited drug)

Cases
- R v Borkowski [2009] NSWCCA 102
- Carroll v The Queen [2009] HCA 13
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584
- R v HFW (Court of Criminal Appeal, 18 May 2007, unreported)