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Court of Criminal Appeal 8 July 2009

Kalemusic v R

[2009] NSWCCA 178

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING AGREED FACTS ASSESSMENT OF OFFENDERS ROLE WHETHER SENTENCE MANIFESTLY EXCESSIVE PARITY

Citation: Kalemusic v R [2009] NSWCCA 178
Court: New South Wales Court of Criminal Appeal
Date: 8 July 2009
Judge(s): Allsop P, Price J, Harrison J

Background

The appellant pleaded guilty in the District Court to serious drug offences arising from a large-scale MDMA and methylamphetamine manufacturing operation centred on a property at Colo Vale, NSW. Police stopped a van in which the appellant was travelling in the early hours of 1 December 2005 and found over 1,477 grams of MDMA, nearly 765 grams of methylamphetamine in liquid form, and a loaded handgun. A search of the Colo Vale property later that day uncovered an active drug laboratory containing 27.5 kilograms of MDMA and large quantities of precursor chemicals.

The appellant was convicted on four counts: manufacturing not less than the large commercial quantity of MDMA (27.5 kg), supplying not less than the large commercial quantity of MDMA (1,477.4 g), supplying not less than the commercial quantity of methylamphetamine (764.6 g), and possessing an unauthorised firearm. Two further matters were taken into account on a Form 1. The total effective sentence imposed by Freeman DCJ was a non-parole period of 12 years and 6 months, with a balance of term of 3 years and 9 months.

The appellant sought leave to appeal against those sentences on two grounds. He argued that the sentencing judge made factual findings not open on the evidence, producing a manifestly excessive sentence, and that he had a justifiable grievance arising from the sentences imposed on co-offenders, particularly Zdenko Cvitan.

  • Whether the sentencing judge made factual findings that were not open on the evidence and whether those findings rendered the sentence manifestly excessive
  • Whether the sentences imposed on co-offenders, particularly Cvitan, created a marked and unjustifiable disparity (the "parity" ground) entitling the appellant to a reduction

Decision

On the first ground, the Court of Criminal Appeal found no appealable error in the sentencing judge's factual findings or in the resulting sentence. The appellant had not given evidence at the sentencing hearing, which the Court noted limited his ability to challenge the judge's assessment of his role. The judge's findings about the appellant's involvement in the distribution of the manufactured drugs were supported by his guilty pleas to the supply counts.

On the parity ground, the appellant argued he had played a subordinate role to Cvitan and that Cvitan's lower sentence therefore created an unjustifiable disparity. The Court rejected this reasoning. When the appellant was sentenced, the judge accepted he played a subordinate role to Cvitan. However, when Cvitan was later sentenced, the sentencing court found that Cvitan's role was at a lower level than the appellant's, partly because there was no evidence Cvitan was involved in distributing the drugs. The Court noted that in a related Crown appeal against Cvitan's sentence (Cvitan v R; R v Cvitan [2009] NSWCCA 156), Simpson J had specifically identified the appellant's supply convictions as marking him out as more significantly involved in distribution than Cvitan.

The Court observed that Cvitan had been charged with one offence only, compared to the multiple counts faced by the appellant. Because Cvitan was sentenced on the basis of a lesser role than the appellant, and his sentence already reflected that distinction, no marked disparity existed to generate a justifiable sense of grievance. The Court declined to question the factual findings made at Cvitan's sentence, noting that had Cvitan been sentenced as occupying the top of the criminal hierarchy, his sentence would have been significantly longer.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A parity argument based on a co-offender's lower sentence will not succeed where that co-offender was sentenced on a factual basis placing their role below the appellant's, even if an earlier court had found the reverse ordering.
  • The Court of Criminal Appeal confirmed it will not revisit factual findings made at a co-offender's separate sentencing hearing when assessing whether a parity grievance is justifiable.
  • Where an appellant does not give evidence at a sentencing hearing, the sentencing court's capacity to make adverse factual findings about role and culpability remains unimpaired.
  • Under the Drug Misuse and Trafficking Act 1985, manufacturing or supplying not less than a large commercial quantity of a prohibited drug carries a maximum of life imprisonment and a standard non-parole period of 15 years, reflecting the serious view the legislature takes of large-scale drug production.
  • In dismissing the appeal, the Court reinforced that a guilty plea to supply charges is itself sufficient to establish a finding that an offender was involved in drug distribution, distinguishing their role from a co-offender charged only with manufacturing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 527(1)(a)
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 65(3)

Cases:
- Cvitan v R; R v Cvitan [2009] NSWCCA 156
- Hopley v R [2008] NSWCCA 105
- House v The Queen (1936) 55 CLR 499
- Postiglione v The Queen (1997) 189 CLR 295
- R v HFW (Court of Criminal Appeal, 18 May 2007, unreported)
- R v Khouzame [2000] NSWCCA 505
- R v Merritt (2004) 59 NSWLR 557
- The Queen v Olbrich (1999) 199 CLR 270