Kalemusic v R

Court of Criminal Appeal (NSW)|2009-06-12|Before: Allsop P, Price J, Harrison J

The applicant has a justifiable sense of grievance arising out of the sentences imposed upon co-offenders.

Facts 9 A statement of agreed facts consisting of ten pages was tendered which for present purposes may be conveniently summarised.

At about midday on the same day, police executed a search warrant at the Colo Vale property. Inside a shed, they found a drug laboratory within which a number of chemical reactions were taking place. In the laboratory were: (a) 27.5 kilograms of MDMA (1.038 kilograms of pure MDMA) (b) 9.3 kilograms of MDP2P (capable of making a further 825 grams of MDMA) (c) 213.8 litres of liquid containing 184.8 litres of pure safrole (which could be used to produce about 101.6kg of MDMA as its hydrochloride salt). 10 The laboratory had been used to manufacture MDMA and for a few days prior to the execution of the search warrant approximately 1-2 litres of methylamphetamine oil was manufactured. 11 Tony Suteski, Benjamin Eady, Luke Jossey, Karl Plawtschak and Tibor Vestroczi were on that day arrested at the site. Some months later Zdenko Cvitan was arrested.

Subjective Circumstances 12 The applicant did not give evidence before the Judge. A Probation and Parole pre-sentence report dated 15 June 2007, a report from Tim Watson-Munro, a psychologist, dated 8 August 2007 and an affidavit of Milan Tonic were tendered. 13 At the time of the commission of the offences, the applicant was 35 years old. He had been born in Bosnia of Croatian heritage on 15 March 1970. His parents immigrated to Australia when he was two years old. After obtaining the Higher School Certificate, he undertook a five year part-time Associate Diploma in engineering which he almost completed. He worked with Telstra as a technical officer for about eight years. The applicant left this employment to commence work doing commercial fit outs and some self-employment in the building industry. At the time of his arrest, he was in a commercial fit out partnership. 14 The applicant at the time of sentence had been involved in a de facto relationship for nine years. He and his partner had six children whose ages ranged between one and five years. 15 The applicant's prior criminal history revealed that he had been sentenced in the District Court at Penrith on 15 November 2001 for knowingly taking part in the manufacture of a prohibited drug, namely methylamphetamine between 13 and 19 April 2000. Three matters of being in possession of goods reasonably suspected of having been stolen and two matters of possession of prohibited drugs were taken into account on sentence on a Form 1. O'Reilly DCJ imposed a sentence of 3 years imprisonment which was to be served by way of periodic detention. 16 When sentencing the applicant for the present offences, the Judge relevantly said (ROS at 18): "The Crown rather charitably it seems to me, did not suggest this conviction for a distressingly similar crime was an aggravating factor. But the submission is made and I accept that the prisoner's demonstrated failure to learn any lesson from that previous experience militates strongly against his prospects of rehabilitation and requires more weight to be given to retribution and deterrence." and (ROS at 20): "Finally I should note that despite his previous conviction of drug possession and involvement in the manufacture thereof, the prisoner has a strong history of employment. He has been a hardworking, perhaps too hard working father and provider for his wife and their six young children. The effect on his family is sad and no doubt impacts upon the prisoner himself. It is not suggested, however, that this effect should amount to extraordinary circumstances such as to have, in turn, an effect on the duration of his sentence." 17 The Judge noted that the applicant's former business partner would be prepared to take him back into the business which they jointly ran and said (ROS at 21): "It is important therefore that the sentences to be imposed be not crushing although weighty they must certainly be."

Ground 1: His Honour made findings of fact that were not open to him upon the evidence before him which resulted in a sentence that was manifestly excessive . 18 The applicant complains that the Judge made adverse findings of fact of which he could not have been satisfied beyond reasonable doubt. Specific complaint is made of the Judge's findings that the applicant's possession of the drugs at the time of his arrest showed that he had "a confidence in his own authority, his place in the hierarchy" (ROS at 14), that the applicant "seems to occupy a position of some authority or at least a place closer to the organisational centre of this group than the others" (ROS at 15) and it seemed "likely that [the applicant] did have some role in facilitating the gathering of the necessary personnel and the execution of the necessary construction" of the drug laboratory (ROS at 15). 19 Ms Davenport SC for the applicant submitted that there was no evidence in the agreed facts that could have satisfied the Judge beyond reasonable doubt of these matters. These findings of fact, it was submitted, were critical to the Judge's assessment of the applicant's role in the criminal enterprise, as well as his level of objective criminality and that the Judge fell into error in determining these matters in the manner that he did. Ms Davenport made specific reference to the description of the applicant in the agreed facts by BE (Benjamin Eady) at [36] as "the handyman". During oral submissions in this Court, Ms Davenport contended that the Judge improperly elevated that role as a handyman into something not consistent with the role described by BE. Further reference by Ms Davenport to parts of the agreed facts included at [38] that: "According to BE, [the applicant] came and left…sometimes he wasn't there for three or four days and then he came back."

and to BE's assertion that it was he and Tony Suteski who were involved in the manufacturing of the drug and that the applicant was sent on errands by "Steve" (Zdenko Cvitan). 20 As to the applicant's possession of the drugs at the time of his arrest, Ms Davenport referred to [43] of the agreed facts where it was stated that: "The night before the Police executed the search warrant [the applicant] arrived with his brother Tom Kalemusic. According to "BE" that was supposed to be the last day of operation. Everyone started taking things because nobody had been paid". 21 During the sentencing remarks, the Judge related at some length the facts as agreed in the statement. His Honour assiduously sought to determine the role that the applicant played in the joint criminal enterprise and carefully considered the question of parity of his sentence with those imposed on his co-offenders. His Honour observed that BE had been identified as a foreign-born expert chemist who was imported into Australia for the purpose of assisting in raising the yields from the manufacturing process being conducted at the plant. After BE arrived in Sydney, he contacted Steve and met him. The Judge said (ROS at 10): "For a period of about two weeks BE was put up in various hotels by both Steve and [the applicant] before moving to the Colo Vale property in October 2005. When [the applicant] booked BE into a hotel he used his own name and paid cash. After the hotel stays, Steve, BE, Suteski and the applicant lived in the house at Lot 5 Drapers Road Colo Vale. They then commenced converting an open shed adjoining the house into a closed shed and set up and installed the laboratory. This work on the shed continued until the end of October. The laboratory was constructed under the direction of Steve who had all the plans and layouts of what had to be done. BE described [the applicant] as a handyman." 22 The Judge recounted that according to BE, the applicant came and went, that he did things for Steve and that according to BE that everyone started taking things because nobody was paid. The Judge noted that:

(i) The applicant was involved from a very early stage in the criminal enterprise.

(ii) A possible interpretation of BE's description of the applicant as a handyman was limited to the applicant's physical involvement in the construction and equipping of the laboratory. He found that his ability to assert himself spoke more of his confidence in his own place in the hierarchy. This was consistent, his Honour said, " with the other extract from BE's description, that he was just sitting there taking a look at us. He clearly did not regard himself as simply one of the labourers " (ROS at 14)

(iii) The applicant had at the time of his arrest a very considerable amount of the two products made at the laboratory, namely MDMA and methylamphetamine. The Judge observed that the precise reason for the applicant having removed these quantities of illegal drugs had not been established. 23 The Judge stated that (ROS at 14): "He may have been taking the substances to the alleged principal, Steve. He may have been taking the liquid methylamphetamine to be further processed to bring it into powder, or the already powdered MDMA to be then made into tablets. He may, as his counsel asserts, have only been holding these drugs as some form of surety against his ultimate payment. Without his explanation it is not possible to be certain. But what his actions do convey, to me at least, is a confidence in his own authority, his place in the hierarchy which confidence enabled him to take possession of this very valuable cargo and whilst armed, to carry it away from the site of its manufacture." 24 His Honour went on to say (ROS at 14-15): "Whilst it is said that the laboratory was being closed down and that absent any cash payment, those who had been working there were taking possession of items as payment in kind, that is not universally true. Plawtschak had a quantity of equipment and unidentified, at least to me, liquids in his motor vehicle. He, however, as recorded earlier seems to occupy a position of some authority or at least a place closer to the organisational centre of this group than the others such as BE and the mere labourers Suteski, Vestroczi and Jossey. None of them appears to have taken any of the equipment and certainly none of the produce from the laboratory. For those reasons I would rank [the applicant] as more intimately involved with the organisation of this offence and manufacture than was the offender Suteski." 25 Ms Davenport who appeared for the applicant at first instance had submitted to the Judge that there was parity between the roles played by the applicant and Suteski, that he was a "foot soldier and not a lieutenant", which his Honour rejected. He considered that the applicant was "in general terms certainly no less culpable than BE". The Judge found that the applicant's role was of real significance in the execution of the criminal enterprise. His Honour accepted the Crown's submission that the objective seriousness of the applicant's offence of manufacturing not less than the large commercial quantity of a prohibited drug was not lower than the middle range of objective seriousness for offences of this nature. 26 The Crown submitted in this Court that the findings made by the Judge were open to him on the evidence and no error had been demonstrated. 27 The first ground of appeal raises the findings of fact made by the Judge. When findings of fact that were made by the judge at first instance are challenged, it is well established that this Court is bound by those findings unless they were not open on the evidence, or unless error is shown in the sense referred to in House v The Queen (1936) 55 CLR 499 at 504-505; R v Merritt (2004) 59 NSWLR 557 per Wood CJ at CL at [61]; R v Khouzame [2000] NSWCCA 505; Hopley v R [2008] NSWCCA 105. 28 The identification by the Judge of the applicant's involvement in the manufacture of the MDMA was an important part of the sentencing exercise. In making his assessment of the applicant's role, the Judge was not obliged to accept the description given by BE in the agreed facts that the applicant was the "handyman" nor was the Judge bound to accept that the applicant's possession of 1,477.4 grams of MDMA and 764.6 grams of methylamphetamine at the time of arrest resulted from him not being paid. An important distinction between the applicant and other co-offenders was that he was in possession of these prohibited drugs at the time of arrest. 29 The Judge was entitled to draw inferences from the agreed facts considered as a whole. A constraint upon his Honour's findings of fact was that those made against the applicant had to be arrived at beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270. His Honour expressly recognised this constraint when he excluded from his consideration the allegations contained in the statement of facts which were before the sentencing judge and the Court of Criminal Appeal in BE's case. His Honour said (ROS at 17): "In that statement allegations were made against this prisoner and clearly since they are not repeated before me, they could not be proved beyond reasonable doubt by the Crown." 30 His Honour's identification of the applicant's role arose from his consideration of the applicant's early involvement in the criminal undertaking, the assistance that he provided at Colo Vale and the large quantity of the prohibited drugs which he was taking away from the property. When all of the circumstances of the applicant's participation in the joint criminal enterprise were considered in combination the inferences drawn by the Judge which were adverse to the applicant were open to him on the evidence. The Judge was entitled to be satisfied beyond reasonable doubt that the applicant's role was of real significance in the criminal enterprise and I do not detect error in the assessment of his role. 31 It seems to me in any event that the applicant was treated with a degree of leniency by the Judge. The sentences for counts 2 and 3 were subsumed in the sentence for count 1. The maximum penalty for count 2 was life imprisonment and the standard non-parole period was 15 years. The quantity of MDMA (1,477.4 grams) in the applicant's possession was almost three times more than the amount prescribed for the large commercial quantity of MDMA (500 grams). The maximum penalty for count 3 was 20 years imprisonment and the standard non-parole period was 10 years. The quantity of methylamphetamine (764.6 grams) in the applicant's possession was more than three times the commercial quantity (250 grams) prescribed for that prohibited drug. These were serious offences which in my respectful opinion warranted some partial accumulation upon the sentence for count 1. The maximum penalty for count 4 (.22 calibre pistol) was 14 years imprisonment with a standard non-parole period of 3 years. The extent of accumulation for this offence upon the sentence for count 1 was 14 months. As to the applicant's sentence for count 1, the Judge had departed from the standard non-parole period of 15 years by 3 years 9 months because of the applicant's plea and considerations of totality. In my opinion, the total effective sentence was not manifestly excessive. 32 This ground of appeal has not been established.

Ground 2: The applicant has a justifiable sense of grievance arising out of the sentences imposed upon co-offenders. 33 The applicant's parity argument focussed on the sentences imposed upon Eady, Cvitan and Suteski. Ms Davenport submitted that the applicant was in a subordinate role to Cvitan and to Eady. It was pointed out that the Judge found when sentencing the applicant that Cvitan was the "head of the operation". Ms Davenport contended that Eady was an integral part of the manufacturing process and had been brought to Australia because of his expertise. Senior counsel argued that the applicant was entitled to feel a justifiable sense of grievance as the sentence imposed upon him was greater than the sentence imposed upon either Cvitan or Eady. The applicant's role, it was said, was akin to that of Suteski and that, apart from the possession of the firearm, there was no justification for the disparity in the sentences imposed on each offender. 34 The parity principle is "an aspect of equal justice": Postiglione v The Queen (1997) 189 CLR 295 at 301. As was pointed out by Dawson and Gaudron JJ "like should be treated alike, but that, if there are relevant differences, due allowance should be made for them".

Benjamin Eady 35 Eady was charged with one offence, that is, manufacturing not less than the large commercial quantity of MDMA to which he pleaded guilty. Maguire DCJ sentenced him to imprisonment for 6 years 8 months with a non-parole period of 5 years. A minor offence of possession of 2.7 grams of cannabis leaf was taken into account on sentence on a Form 1. Substantial assistance had been given by Eady to police and his sentence was reduced by a combined discount of 50 per cent for assistance and the plea of guilty. 36 The Crown successfully appealed and the sentence was quashed: R v HFW (Court of Criminal Appeal, 18 May 2007, unreported). James J (with whom Beazley JA and Hidden J agreed) assessed at [34] the objective seriousness of Eady's offence as being "in about the middle range of objective seriousness" and considered that an undiscounted starting point of the head sentence of 16 years was appropriate. After the reduction of the combined discount of 50 per cent, Eady was sentenced to 8 years imprisonment with a 6-year non-parole period. 37 The Judge's determination when sentencing the applicant that he was no less culpable than Eady, as I have previously indicated, was open to the Judge on the evidence. The undiscounted starting point, however, of Eady's sentence for the manufacture was 16 years whereas for that offence the undiscounted starting point of the applicant's sentence was 18 years. 38 There were relevant differences between the applicant and Eady. Eady was sentenced for a single count of manufacturing a large commercial quantity of MDMA. In addition to the offence of manufacture, the applicant's criminality extended to the two counts of supply and the possession of the pistol. When Eady was sentenced, one matter on a Form 1 (possession of cannabis leaf) was taken into account whereas two Form 1 offences (possession of methylamphetamine and possession of ammunition) were taken into account when the applicant was sentenced for count 1. Eady had pleaded guilty in the Local Court and provided assistance to authorities for which he received a combined discount of 50 per cent. Maguire DCJ found that Eady was contrite and had good prospects of rehabilitation. Because of the assistance that Eady had provided, he would serve the whole of the term of imprisonment in protective custody, subjecting him to more onerous custodial conditions. The applicant had pleaded guilty on the first day of his trial and received a discount of one sixth for his plea. The Judge neither found that the applicant had good prospects of rehabilitation nor that he had expressed remorse. His Honour considered in the passage quoted at [16] above that the applicant's criminal history of similar offending required more weight to be given to retribution and deterrence. The applicant had not provided assistance to authorities and would not be serving his sentence in protection. All things were not equal and I am not persuaded that the difference in the sentences imposed involves a marked disparity giving rise to a justifiable sense of grievance.

Tony Suteski 39 Suteski was charged with the one offence of manufacturing not less than the large commercial quantity of MDMA. He stood trial before the Judge (Freeman DCJ) sitting without a jury and was found guilty. Suteski was sentenced to imprisonment for 12 years with a non-parole period of 8 years. A Crown appeal against the leniency of the sentence was withdrawn. 40 When sentencing Suteski, the Judge characterised the offence as falling "just short of the mid range of objective seriousness". The Judge found that Suteski had no organisational or entrepreneurial role in the manufacture. When sentencing the applicant the Judge ranked him "as being more intimately involved with the organisation of this offence and manufacture than was the offender Suteski." 41 His Honour went on to say (ROS at 15): "There is no parity as Ms Davenport argued, between these two and that is so not just because [the applicant] is facing additional serious charges, but the real reason for parity not being established is that I find their roles were not exactly similar or indeed the same at all." 42 In determining the roles of the applicant and Suteski, the Judge had the advantage in each case of assessing the evidence first hand and I am not persuaded that his Honour erred in rejecting the applicant's parity argument. 43 There were other differences between the applicant and Suteski. Suteski unlike the applicant was found to have "more than reasonable prospects of rehabilitation" and the Judge was satisfied that he had demonstrated contrition and remorse. Suteski's prior criminal history did not require more weight to be given to considerations of retribution and deterrence. Furthermore, Suteski was charged with one offence. As in the case of Eady, all things were not equal and the difference in the sentences imposed upon the applicant and Suteski does not give rise to a justifiable sense of grievance.

Zdenko Cvitan 44 Cvitan was also charged with the one offence of manufacturing not less than the large commercial quantity of MDMA to which he pleaded guilty. Zahra DCJ sentenced him to a term of imprisonment of 14 years 3 months with a non-parole period of 9 years 3 months. The sentencing judge found that Cvitan was involved at an early stage in the criminal enterprise, was instrumental as the point of contact with Eady on his arrival in Australia and following, assisted in the construction of the laboratory, had purchased equipment and materials, was involved in the manufacturing process, had some management role as he received reports from Eady and was motivated by profit. Zahra DCJ characterised the offence as falling within the middle of the range of objective seriousness. 45 The Crown appealed against the manifest inadequacy of Cvitan's sentence. Cvitan sought leave to appeal against the severity of the sentence. In Cvitan v R; R v Cvitan [2009] NSWCCA 156, Simpson J (with whom McClellan CJ at CL and James J agreed) concluded that the sentence imposed was manifestly inadequate. 46 Simpson J said at [64]: " Once the finding that the offence was of mid-range severity is accepted (as here it must be) it is impossible to see any justification for any greater departure from the standard non-parole period than that allowed by the reduction in recognition of the plea of guilty. That would suggest that the sentence ought to have been one of a non-parole period of 14 years and 3 months." 47 The Court, however, declined to intervene and re-sentence Cvitan due to considerations of proportionality between the sentences imposed on Cvitan and Suteski. The Crown appeal was dismissed. 48 One of the grounds of appeal raised by Cvitan was that of parity relative to the sentences imposed on the applicant and Suteski. It seems that Cvitan's role had been distinguished from that of the applicant as there was no evidence that Cvitan was or was to be involved in the distribution of the drugs. Simpson J observed at [32]: "T his was in contrast to, for example, the role of David Kalemusic, whose pleas of guilty to the two offences of supply established that he was significantly involved in the distribution of the manufactured drug." 49 And said at [83-84]: "…I accept that parity considerations entitled Cvitan to a sentence below that imposed on Kalemusic. And that is precisely what was imposed. That being the case, the parity argument regarding Kalemusic avails Cvitan not at all." 50 Cvitan's role was held to be more significant that Suteski and the relativity between the sentences imposed upon these co-offenders was considered to be "proportionally correct". Leave to appeal was granted but the appeal was dismissed. 51 In the present appeal, the applicant's argument of disparity is founded upon the submission that the applicant was in a subordinate role to Cvitan. When sentencing the applicant the Judge accepted that to be the case. Cvitan was, however, sentenced upon the basis that his role in the criminal enterprise was at a lower level than that of the applicant. Cvitan's sentence for that reason alone does not give rise to a marked disparity such as to engender in the applicant a justifiable sense of grievance. It is not for this Court to question the factual findings that were made when Cvitan was sentenced. If Cvitan had been sentenced as being at the top level of the criminal hierarchy, I have no doubt that his sentence would have been significantly longer than that imposed. Furthermore, unlike the applicant Cvitan was charged with one offence. 52 Accordingly, I propose the following orders:

Leave to appeal against sentence granted.
Appeal dismissed. 53 HARRISON J: I agree with Price J. **********

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Cvitan v R; R v Cvitan [2009] NSWCCA 156 Hopley v R [2008] NSWCCA 105 House v The Queen (1936) 55 CLR 499 CASES CITED : Postiglione v The Queen (1997) 189 CLR 295 R v HFW (Court of Criminal Appeal, 18 May 2007, unreported) R v Khouzame [2000] NSWCCA 505 R v Merritt (2004) 59 NSWLR 557 The Queen v Olbrich (1999) 199 CLR 270

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