Citation: R v Cuzman & Bucataru [2012] NSWDC 274
Court: District Court of New South Wales
Date: 29 November 2012
Judge: Judge S Norrish QC
Background
Two accused, referred to here as the first offender and the second offender, were convicted by a jury following a trial in October 2012. They were found guilty of knowingly taking part in the supply of a commercial quantity of heroin between March and June 2010, contrary to section 25(2) of the Drug (Misuse and Trafficking) Act 1985. They were also convicted of participating in a criminal group under section 93T(1) of the Crimes Act 1900.
The offending centred on a Sydney-based drug supply operation run by a third person, now deceased, who had died in custody before the trial. That person operated across multiple Australian cities and maintained a network of couriers and associates. The two offenders, based in Adelaide, were identified as participants in that network through the evidence of a Crown witness who had herself been financially maintained by the organiser.
Both offenders were arrested in June 2010, granted bail in August 2010, and then remanded in custody again following the jury verdict in October 2012. Neither gave evidence at trial. Sentence proceedings involved psychological reports, character material, comparative sentencing cases, and submissions on the health of one offender while in custody.
Legal Issues
- What facts could the sentencing judge find, consistently with the jury's verdicts, and to what standard of proof?
- How should the court approach mitigating matters that the offenders bore the onus of establishing on the balance of probabilities?
- What weight should be given to the health of a prisoner in custody as a mitigating factor?
- How should the principle of parity apply where two co-offenders had different levels of involvement and different personal circumstances?
- What was the appropriate head sentence and non-parole period for each offender on the commercial drug supply and criminal group charges?
Decision
Judge Norrish confirmed that after a jury verdict the sentencing judge may form an independent view of the facts, provided those findings do not conflict with the jury's conclusions. Findings adverse to the offenders had to be established beyond reasonable doubt, while mitigating matters the offenders sought to rely upon had to be proved by them on the balance of probabilities, consistent with the principles in R v Olbrich [1999] HCA 54.
The court found, beyond reasonable doubt, that both offenders knowingly participated in the supply of a commercial quantity of heroin as part of a broader criminal operation. The organiser ran a substantial drug distribution enterprise across several Australian cities, and both offenders played roles in that network. The third person's death in custody and absence from the trial meant the court had to assess each offender's individual involvement from the trial evidence and the sentencing material.
The court acknowledged the serious nature of the offences. Commercial drug supply carries a maximum of 20 years imprisonment and a standard non-parole period of 10 years under the relevant legislation. The judge had regard to comparative cases, the personal circumstances of each offender including psychological material and character references, and the effect of custody on the health of one of the offenders. Parity between the two sentences was a live consideration, and the court applied the principle from Lowe v The Queen [1984] HCA 46 that sentences for co-offenders should not be disproportionate without good reason.
The court sentenced each offender on both the commercial supply count and the criminal group count, with sentences backdated to 12 August 2012 to account for time spent in pre-sentence custody.
Orders Made
First offender (Bucataru):
- Count 1 (commercial supply of heroin): Non-parole period of 5 years and 3 months, commencing 12 August 2012, expiring 11 November 2017; balance of sentence of 3 years and 3 months, expiring 11 February 2021.
- Count 4 (participating in a criminal group): 3 years imprisonment, commencing 12 August 2012, expiring 11 August 2015.
Second offender (Cuzman):
- Count 1 (commercial supply of heroin): Non-parole period of 5 years, commencing 12 August 2012, expiring 11 August 2017; balance of sentence of 3 years and 6 months, expiring 11 February 2021.
- Count 4 (participating in a criminal group): 3 years imprisonment, commencing 12 August 2012, expiring 11 August 2015.
Key Takeaways
- After a jury verdict, a sentencing judge may make independent factual findings for sentencing purposes, but those findings must be consistent with the verdict and any findings adverse to the offender must be established beyond reasonable doubt.
- Mitigating circumstances that an offender seeks to rely upon at sentence must be established by the offender on the balance of probabilities, following the approach confirmed in R v Olbrich.
- Under section 25(2) of the Drug (Misuse and Trafficking) Act 1985, commercial heroin supply carries a maximum of 20 years imprisonment and a standard non-parole period of 10 years, reflecting the legislature's assessment of the gravity of such offending.
- The parity principle requires that sentences for co-offenders not be grossly disproportionate without justification, though differences in individual culpability and personal circumstances can support differentiated outcomes.
- Health considerations and the particular hardship of custody can be relevant to the exercise of sentencing discretion, but the weight given to such factors depends on the specific evidence presented in each case.
Legislation and Cases Referenced
Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1) and s 25(2)
- Crimes Act 1900 (NSW), s 93T(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
Cases:
- R v Olbrich [1999] HCA 54
- Lowe v The Queen [1984] HCA 46
- R v Gipp (2006) 161 A Crim R 173
- R v Gu [2006] NSWCCA 104
- R v Kairauz [2005] NSWCCA 247
- R v Hemsley [2004] NSWCCA 228
- R v Badanjak [2004] NSWCCA 395
- Jimmy v R [2010] NSWCCA 60
- Kennedy v R [2010] NSWCCA 260