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Court of Criminal Appeal 19 March 2018

Kresovic v R

[2018] NSWCCA 37

Drugs
CRIMINAL LAW SENTENCE APPEAL PLEA OF GUILTY WHETHER SENTENCE MANIFESTLY EXCESSIVE OFFENDER ACTING AS PRINCIPAL MID

Citation: Kresovic v R [2018] NSWCCA 37
Court: Court of Criminal Appeal, New South Wales
Date: 19 March 2018
Judge(s): Hoeben CJ at CL at [1]; Campbell J at [48]; N Adams J at [49]

Background

The appellant pleaded guilty in the Local Court to two drug offences: cultivating not less than a commercial quantity of cannabis plants (57 plants) by enhanced indoor means, and supplying a prohibited drug (6.708 kilograms of cannabis). Both pleas were entered in March 2017, and the matter was sentenced in the Campbelltown District Court by Judge Pickering SC in June 2017. An offence of consuming electricity without consent was taken into account on a Form 1, and an offence of organising drug premises was placed on a section 166 Certificate.

Police had attended the appellant's Mount Pritchard property and, with his consent, discovered a sophisticated hydroponic cannabis cultivation setup. The appellant had installed electrical bypasses, lighting rigs, transformers, and carbon filters himself, drawing on his own knowledge of electrics. He had grown the plants from cuttings of a previous crop and had already sold cannabis from a prior harvest for approximately $2,300 per bag.

The sentencing judge assessed both offences as falling between the low and mid-range of objective seriousness, noting the appellant was a principal in both the cultivation and the supply. The appellant had a strong subjective case: he was a 55-year-old man of previous good character who had experienced significant trauma during the Bosnian conflict, including a period as a prisoner of war, and showed genuine remorse.

  • Whether the aggregate sentence imposed by the District Court was manifestly excessive, having regard to the objective seriousness of the offences and the strength of the appellant's subjective case.

Decision

Hoeben CJ at CL, with whom Campbell J and N Adams J agreed, granted leave to appeal but dismissed the appeal. The court found no error of the kind required under House v The King to justify appellate intervention. The sentence was neither unreasonable nor clearly unjust.

The court accepted that the sentencing judge had properly identified the appellant's role as a principal in both offences. The scale and sophistication of the cultivation, the appellant's independent expertise in setting up the operation, and his intention to profit from supply were all properly weighed as factors increasing objective seriousness. The sentencing judge's finding that the offences sat between low and mid-range was consistent with the evidence.

On the subjective case, the court acknowledged the appellant's traumatic wartime history, his lack of prior convictions, his remorse, and the positive impact of his time in custody on his family relationships. However, the court confirmed there was no disconnect between those favourable findings and the sentence imposed. Drawing on R v Van Ryn and the proportionality principle, the court held that a strong subjective case cannot be permitted to produce a sentence that falls below what the objective gravity of the offence requires.

The court also affirmed the principle drawn from Andreata v Regina that the two most important factors in sentencing for cultivation offences are the scale and sophistication of the operation and the role of the offender. The sentencing judge had carefully applied both factors, and no appellate error was established.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a strong subjective case, however compelling, cannot produce a sentence below what the objective gravity of the offence requires under the proportionality principle.
  • Where an offender acts as a principal in drug cultivation and supply, assuming full responsibility for setup, maintenance, harvesting, and intended distribution, the sentencing court is entitled to assess objective seriousness as higher than for offenders in lesser roles such as "babysitters" of crops.
  • The scale and sophistication of the cultivation operation, together with the offender's role, remain the two central considerations in sentencing for commercial cannabis cultivation offences, as confirmed in Andreata v Regina [2015] NSWCCA 239.
  • Appellate intervention in sentence appeals requires establishment of error of the kind described in House v The King: it is not enough that a different sentence might have been imposed; the sentence must be unreasonable or clearly unjust.
  • A guilty plea, genuine remorse, significant personal trauma, and the absence of prior convictions are all legitimate mitigating factors, but their weight operates within the constraint that the sentence must remain proportionate to the objective circumstances of the offending.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(1)

Cases
- Andreata v Regina [2015] NSWCCA 239
- Bao v R [2016] NSWCCA 16
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v The King [1936] HCA 40; 55 CLR 499
- Kerr v R [2016] NSWCCA 218
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Owen v R [2017] NSWCCA 54
- Papworth v R [2011] NSWCCA 253
- R v Van Ryn [2016] NSWCCA 1
- Vaiusu v R [2017] NSWCCA 71
- Walker v R [2016] NSWCCA 213