Citation: Cuzman v R; Bucataru v R [2014] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 17 October 2014
Judges: Hoeben CJ at CL; Garling J; RS Hulme AJ
Background
Two co-accused were tried jointly in the District Court before Norrish DCJ and a jury on charges arising from alleged drug supply activity in 2010. The Crown case centred on a courier who drove heroin from Sydney to Adelaide, where the two accused, both Adelaide residents, were alleged to have received the drugs as part of a joint criminal enterprise involving a deceased Sydney-based drug dealer.
The jury convicted both accused on Count 1 (knowingly taking part in the supply of a commercial quantity of heroin) and Count 4 (knowingly participating in a criminal group). They were acquitted on Count 3, which alleged involvement in a large commercial quantity of heroin, and no verdict was taken on the alternative Count 2 (supply of a prohibited drug, without the commercial quantity element).
Both accused were sentenced to substantial terms of imprisonment. They sought leave to appeal against their convictions on Count 1 on the sole ground that the verdicts were unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the jury's verdicts on Count 1 were unreasonable or unable to be supported having regard to the evidence, particularly whether the evidence was sufficient to establish that the quantity of heroin involved met the threshold for a "commercial quantity"
- Whether, if Count 1 was set aside, the Court of Criminal Appeal could substitute a conviction for the alternative offence in Count 2 (supply of a prohibited drug) where the evidence supported that lesser charge
- What consequences flowed for the Count 4 (criminal group participation) conviction, which depended on guilt of at least one of the drug supply counts
Decision
The Court accepted the applicants' primary ground of appeal. Hoeben CJ at CL found that the evidence was insufficient to establish beyond reasonable doubt that the quantity of heroin involved in the March 2010 transaction reached the threshold of a "commercial quantity." The Crown case on the quantity element depended heavily on the testimony of the courier, Ms Suto, and the intercepted communications, and that evidence did not adequately support the commercial quantity finding underpinning Count 1.
However, the Court was satisfied that the evidence was sufficient to support a conviction for the alternative offence in Count 2, namely knowingly taking part in the supply of a prohibited drug without the quantity element. In those circumstances, the Court exercised its power to substitute a conviction for that lesser offence rather than simply acquitting the applicants.
On Count 4, the participation in a criminal group conviction was confirmed. The Court noted that Count 4 required guilt of one of the drug supply offences as a prerequisite, and the substituted conviction on Count 2 satisfied that requirement.
As to sentencing, the Court quashed the original sentences imposed by Norrish DCJ and remitted both applicants to the District Court for re-sentencing on Counts 2 and 4. The Court noted that the jury's verdict carried with it an acceptance that the applicants paid approximately $206,000 for the drugs, and that this finding should be reflected in any new sentences, even though those sentences would likely be less than those originally imposed for the commercial quantity offence.
Orders Made
Christian Cuzman:
- Leave to appeal against conviction on Count 1 granted; verdict of guilty set aside
- Convicted in lieu of Count 1 of the offence in Count 2 (supply of a prohibited drug)
- Conviction on Count 4 (participating in a criminal group) confirmed
- Original sentence quashed
- Proceedings remitted to the District Court for re-sentencing on Counts 2 and 4
Georghe Bucataru:
- Leave to appeal against conviction on Count 1 granted; verdict of guilty set aside
- Convicted in lieu of Count 1 of the offence in Count 2 (supply of a prohibited drug)
- Conviction on Count 4 (participating in a criminal group) confirmed
- Original sentence quashed
- Proceedings remitted to the District Court for re-sentencing on Counts 2 and 4
Key Takeaways
- A conviction for supply of a commercial quantity of a prohibited drug requires the evidence to establish, beyond reasonable doubt, that the quantity of the drug met the applicable commercial quantity threshold. Where the evidence falls short of that threshold but establishes the elements of the lesser offence of supply, a substituted conviction for the lesser offence is available.
- The Court of Criminal Appeal confirmed it can substitute a conviction for an alternative offence when the evidence at trial was sufficient to support that alternative, even where no jury verdict was formally recorded on it.
- Upholding a conviction for participation in a criminal group depends on the underlying predicate offence being established. A substituted conviction on a lesser drug supply count can satisfy that prerequisite.
- When substituting a conviction and remitting for re-sentencing, the appellate court can identify factual findings from the jury's original verdict, such as the price paid for drugs, that remain available to inform the new sentencing exercise.
- The question of bail pending re-sentencing, following remittal, was expressly reserved for the District Court to determine.
Legislation and Cases Referenced
Cases:
- Cusack v Regina [2009] NSWCCA 155
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- M v The Queen [1994] HCA 63
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Spies v R [2000] HCA 43; 201 CLR 503
- Tonari v R [2013] NSWCCA 232
Legislation: Not specified in the judgment text, though the charges relate to provisions of the applicable NSW drug supply and criminal group legislation.