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Court of Criminal Appeal 15 July 2016

Mesterovic v R

[2016] NSWCCA 140

Drugs
CRIMINAL LAW APPEAL CONVICTION AND SENTENCE

Citation: Mesterovic v R [2016] NSWCCA 140
Court: Court of Criminal Appeal (NSW)
Date: 15 July 2016
Judge(s): Bathurst CJ, Ward JA, Payne JA

Background

The applicant was convicted in the District Court after a three-day trial on one count of knowingly taking part in the cultivation by enhanced indoor means, and for a commercial purpose, of cannabis plants. The number of plants (23) fell within the band of not less than the small quantity but less than the commercial quantity, engaging the aggravated offence under s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum of 15 years imprisonment.

Police had conducted surveillance at a Kingsford address and observed the applicant and an associate approach and leave the premises. A subsequent search of the premises uncovered the cannabis plants and extensive hydroponic cultivation equipment spread throughout almost every room. The only physical evidence directly linking the applicant to the interior of the premises was a fingerprint on a chin-up bar in the hallway.

At sentencing, the District Court found that anyone who entered the premises would have been overcome by the smell of cannabis. The judge described the case as sitting at the "very low end of the spectrum" and imposed a two-year good behaviour bond with no conditions, recording a conviction under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) rather than dismissing the charge under s 10.

  • Whether the trial judge gave undue weight to the Crown case and failed to adequately describe the defence case in the summing up
  • Whether expert evidence about the smell of cannabis should have been excluded because it was not foreshadowed before trial
  • Whether advice from the applicant's barrister that he not give evidence constituted a miscarriage of justice
  • Whether the primary judge erred in imposing a good behaviour bond under s 9 rather than making a non-conviction order under s 10
  • Whether fresh evidence, including psychiatric and character material, should be admitted on appeal and warranted a different sentence

Decision

Ground 1: Summing up. The applicant argued that the trial judge overwhelmed the jury by devoting roughly five times as many words to the Crown case as to the defence case. The Court rejected this argument. A numerical comparison of word counts does not itself establish error. The Court found that the trial judge had adequately described the defence case, which was that the applicant had not entered the premises, and that the summing up was not imbalanced in any legally significant way.

Ground 2: Smell evidence. The applicant submitted that evidence from an expert witness about the strong odour of cannabis inside the premises was improperly admitted because it had not been disclosed before trial. The Court rejected this ground. The applicant had not been denied an opportunity to meet the evidence, and the police witnesses had given inconsistent accounts of smell, which the trial judge had addressed in the summing up, leaving the weight of that evidence to the jury.

Ground 3: Failure to give evidence. The applicant contended that his barrister's advice not to give evidence constituted a miscarriage of justice. The Court rejected this ground, finding no basis on the material before it to conclude that the advice was improper or that it produced an unfair trial outcome.

Ground 4: Sentence and fresh evidence. The applicant challenged the recording of a conviction under s 9 rather than a dismissal under s 10, and sought to rely on fresh material including a psychiatric report, qualification certificates, and a reference letter. The Court admitted the fresh evidence subject to a limiting order under s 136 of the Evidence Act 1995 (NSW) in relation to the psychiatric report, restricting it to evidence of what the applicant told the doctor rather than the truth of those assertions. After examining all the fresh material, the Court found none of it established error by the sentencing judge and that none of it warranted a different sentence.

Orders Made

  • Leave to appeal refused under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on all grounds.

Key Takeaways

  • Because none of the grounds of appeal raised a question of law alone, the applicant required leave to appeal against conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW); the Court refused leave on all grounds after examining the substance of each ground.
  • A quantitative disparity in the number of words devoted to each party's case in a summing up does not, without more, establish that the trial judge failed to put the defence case adequately to the jury.
  • Where the defence had the opportunity to meet evidence at trial and the trial judge directed the jury appropriately on the weight of conflicting accounts, admission of that evidence does not constitute a basis for setting aside the conviction.
  • Under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court has a discretion to record a conviction and impose a good behaviour bond; a submission that a s 10 non-conviction order was more appropriate does not establish error where the judge addressed sentencing purposes and recorded reasons for recording the conviction.
  • Fresh evidence tendered on a sentence appeal will be admitted subject to appropriate conditions under s 136 of the Evidence Act 1995 (NSW) where necessary to limit its use, but admission of the evidence does not guarantee a different sentencing outcome if the material does not disclose error.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 43
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), s 136

Cases
- R v Birks (1990) 19 NSWLR 677
- Rasic v R [2009] NSWCCA 202