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Court of Criminal Appeal 14 December 2017

Petrovski v R

[2017] NSWCCA 309

Drugs
CRIMINAL LAW SENTENCING ROLE OF THE APPLICANT PARITY OFFENDERS WHERE THE SAME JUDGE SENTENCED THE CO

Citation: Petrovski v R [2017] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 14 December 2017
Judges: Hoeben CJ at CL, Davies J, Adamson J

Background

The applicant pleaded guilty in the District Court to one count of knowingly taking part in the cultivation of a commercial quantity of cannabis, and a related charge of participating in a criminal group for that purpose. The offending involved a large outdoor cannabis cultivation operation on a rural property called "Wilbertree," involving an area approximately 200 metres by 250 metres, with irrigation infrastructure, fertiliser, and hundreds of plants.

The applicant was one of five co-offenders investigated under Strike Force Avant. Surveillance evidence placed him at multiple key points in the operation, including transporting equipment to the property and communicating with co-offenders about the progress of the cultivation. Acting Judge Graham sentenced him in the District Court on 10 March 2017 to a non-parole period of 18 months with an additional term of one year for the principal offence, and a concurrent fixed term of nine months for the criminal group charge.

The applicant sought leave to appeal, arguing that the sentencing judge had mischaracterised his role and had failed to properly account for disparities with sentences imposed on co-offenders.

  • Whether the sentencing judge's finding that the applicant was a "principal" in the cultivation operation was open on the evidence
  • Whether the sentencing judge's assessment of the sophistication and scale of the cultivation was open on the evidence
  • Whether the sentencing judge failed to properly account for how the applicant became involved, including being recruited by a co-offender
  • Whether the applicant had a justifiable sense of grievance about the disparity between his sentence and those imposed on co-offenders, particularly Foti and Polimeni

Decision

The Court of Criminal Appeal, with all three judges in agreement, dismissed the appeal. On grounds one to four, Davies J concluded that the sentencing judge's characterisation of the applicant as a principal was supported by the agreed statement of facts and the evidence at the sentencing hearing. The surveillance material, telephone intercepts, and the applicant's direct involvement in transporting equipment and communicating about the progress of the operation all supported the conclusion that he played a significant and active role throughout his involvement.

On the sophistication and scale of the operation, the Court found no error in the sentencing judge's assessment. The scale of the physical infrastructure, including the fenced cultivation area, irrigation systems, and the logistics involved in establishing the site, plainly supported treating the offending as a serious and organised commercial enterprise.

On the parity ground, Davies J accepted that Foti had been involved earlier and had recruited the applicant. However, the Court found no marked or unjustified disparity between the sentences imposed on the applicant and Foti, noting that the same judge had sentenced both men at the same time and had carefully weighed their respective roles and subjective circumstances. The Court also noted that even if a justifiable grievance had been made out, a lesser sentence would not have been within the range of appropriate sentences given the maximum penalty, the extent of the cultivation, and the applicant's role.

Orders Made

  • Time for filing the Notice of Application for Leave to Appeal extended to 23 November 2017
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's characterisation of an offender's role as that of a "principal" will not be disturbed on appeal where the agreed facts and surrounding evidence reasonably support that conclusion, even if a co-offender's evidence suggested a different account.
  • Where the same judge sentences co-offenders and carefully considers their relative roles and subjective circumstances at the time of sentencing, demonstrating a justifiable sense of grievance for parity purposes is significantly more difficult.
  • In dismissing the parity ground, the Court affirmed the principle from Green v R; Quinn v R (2011) 244 CLR 462 that even where a justifiable grievance is established, a lesser sentence will not follow if it would fall outside the range of appropriate sentences given the objective seriousness of the offending.
  • The scale and infrastructure of a cannabis cultivation operation, including the size of the growing area, irrigation systems, and the logistics involved in establishing the site, are relevant factors in assessing sophistication and gravity for sentencing purposes.
  • A procedural error in filing an extension of time application with the wrong court will not necessarily be fatal to the application, particularly where the Crown does not oppose the extension.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Gill v R [2010] NSWCCA 236
- Hanh Thi Nguyen v Regina [2011] NSWCCA 92; 208 A Crim R 432
- Alkanaan v Regina [2017] NSWCCA 56
- Burrows v R [2017] NSWCCA 45
- Miles v R [2017] NSWCCA 266
- Wan v R [2017] NSWCCA 261
- Zhao v R [2016] NSWCCA 179
- Lam v R [2014] NSWCCA 50
- Loader v R; Dunn v R [2013] NSWCCA 215
- Mulato v R [2006] NSWCCA 282
- R v Clarke [2014] NSWDC 35
- R v Green; R v Quinn [2010] NSWCCA 313