Zepina v Regina [2010] NSWCCA 155 | Case summary

1 HODGSON JA: I agree with Whealy J. 2 WHEALY J: Radovan Zepina ("the applicant") seeks leave to appeal against the sentence passed upon him in the District Court at Campbelltown on 8 December 2008. He had pleaded guilty in the Local Court to a charge of knowingly take part in the cultivation of prohibited plants, by enhanced indoor means. The number of plants was 39 cannabis plants, being not less than the prescribed small quantity (five) and less than the commercial quantity (50). This was a contravention of s 23(1)A of the Drug Misuse and Trafficking Act 1985. It carried a maximum penalty of 15 years and/or a fine of 3,500 penalty units. 3 The applicant was sentenced to a total sentence of two years and six months imprisonment with a non-parole period of 12 months. The sentencing Judge found special circumstances in that this would be the applicant's first custodial sentence, and, secondly, that he would benefit from an extended period of supervision to assist him to overcome his long standing psychological and other problems. His sentence had been discounted "in the order of 25%" because of the utilitarian value of his plea. 4 The sentencing Judge took into account four further offences on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. These included, in particular, an offence of knowingly deal with the proceeds of crime contrary to s 193B of the Crimes Act 1900 for which the maximum penalty was 15 years imprisonment. This related to a sum of $104,450.00 located by police at the applicant's premises. The applicant accepted this was the proceeds of an earlier harvest or harvests of cannabis plants. 5 The facts found by the sentencing Judge may be briefly stated. The police had kept the applicant under observation on a number of occasions. Ultimately, they executed search warrants at a property at Egret Place, Ingleburn (owned by the applicant and his brother) and at premises owned by the applicant at Copeland Street, Liverpool. At the first premises police located a sophisticated hydroponic operation being used to cultivate cannabis plants. Three rooms of this property had been entirely adapted for the purpose of hydroponic cannabis cultivation, and a fourth room was being used for extensive storage. The 39 cannabis plants seized included plants of a height greater than one metre. The premises had been extensively and significantly modified to facilitate the cultivation process. The operation was rightly described by the sentencing Judge as both extensive and sophisticated. 6 The search at the Liverpool premises resulted in the finding of the $104,450.00 the subject of the matter included on the Form 1. Police also found at these premises an extensive range of paraphernalia of the type used in the cultivation of cannabis such as lights, light shades, carbon filters, transformer pots etc. The police undertook an analysis of the value of the plants seized at the Egret Street premises and concluded that the operation would have yielded an average return of about $33,000.00 per month to the applicant. 7 The sentencing Judge examined the applicant's subject features at some length. He found that the applicant was 36 years of age with no prior criminal history. He had been born in Croatia and, after leaving school, he had been conscripted into the Army in that country, during which time he had accidentally shot his best friend. He spent four years as an Ambulance Driver in the War there witnessing a good deal of destruction, terror and death. He presently suffers from post traumatic stress disorder and an adjustment disorder with an anxious and depressed mood. The anxiety related particularly to his wife's health, she having been diagnosed with multiple sclerosis some ten years earlier. He was also anxious about his ability to financially provide for her and his children. The applicant was psychologically dependant on cannabis to manage these anxieties, according to a psychological report. He had migrated to Australia in 1998 and worked in a variety of occupations, most recently installing shower screens. The sentencing Judge took into account the hardship to his family, particularly to his wife, likely to occur because of his incarceration. His Honour held, however, that this hardship would not amount to "exceptional hardship". 8 The sentencing Judge found that the applicant had good prospects of rehabilitation and was unlikely to re-offend. It was accepted that the applicant had shown remorse.

Ground of appeal 9 The sole ground on which the court has been asked to revisit the applicant's sentence is that evidence of "real significance" to the sentencing proceedings was not brought to the attention of the sentencing Judge as a result of which a miscarriage of justice has occurred. 10 The simple matter at issue here is assistance that the applicant had provided to the authorities. It seems by a combination of mismanagement and oversight the sentencing court's attention was not drawn to a letter of assistance which had been prepared by the officer-in-charge of the investigation into the offence committed by the applicant. 11 The applicant sought to place before this court the letter of assistance (Exhibit 1 Confidential) and three affidavits which sought to explain the circumstances in which the letter of assistance had not been placed before the sentencing Judge. 12 The Crown opposed the admission of this material on the basis that no miscarriage of justice had occurred in the sentencing procedure, and that therefore the admission of the evidence was not justified. Alternatively, the Crown submitted that, should the material admitted, its reception ought not lead, in the particular circumstances of the matter, to a lessening of the sentence imposed. 13 In the event, the court ruled that the material should be admitted. The court did so on the basis that it would be unfair to the applicant to deny him the opportunity of arguing that a miscarriage of justice may have occurred because of the unfortunate circumstances that led to the material not being placed before the sentencing court. It was the Court's view that the interests of justice required that course to be followed. (Many v R (1990) 51 A Crim R 54) 14 Mr O'Sullivan argued that the assistance provided to the authorities was significant. However, the material placed before this Court suggests that the conviction of another person resulted and so far as it can be ascertained, the offence must have been of a relatively minor nature. The person concerned was sentenced to a nine month custodial sentence with a non-parole period of six months. I have difficulty in seeing that any discount allowed for assistance would have been any greater than 10%. Indeed, it is difficult to see that it would reach that level. This consideration, although not determinative, reflects the position that any further discount would have been of a very minor nature. In practical terms, given the structure of the sentence imposed on the applicant, it would have resulted in a reduction of no more than a few weeks. 15 A further question for determination in the present appeal is whether the public policy considerations dealing with assistance to the authorities require, in the present circumstances, that the applicant be allowed a further discount on sentence. There is no doubt that this is an important public policy consideration. In the present matter, however, it has the tendency to come into conflict with the fundamental statutory obligation of the court as directed in s 6(3) of the Criminal Appeal Act 1912. That section requires the court to dismiss the sentencing appeal unless it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. The Crown's ultimate submission, as I have indicated, is that the sentence imposed here was so lenient that any further reduction of it would result in a sentence which was, in fact, unreasonably disproportionate to the offence. 16 In my opinion, the Crown submission must carry the day in the present matter. This was undoubtedly an objectively serious offence carried out for a clear commercial purpose. It was a relatively large scale domestic operation. The sentencing Judge was correct in finding that the cultivation was a highly sophisticated one and that the offence was not an isolated instance or occurrence. There was a justification for the sentence ultimately imposed - two years and six months imprisonment with a non-parole period of 12 months - but it was a very lenient sentence indeed. 17 For these reasons, I would conclude that this is not a case in which the court should intervene to reduce the sentence. The circumstances of the case, especially the leniency of the sentence and the minimal nature of the discount that might be given, satisfy me that, even with the element of the assistance, no lesser sentence was warranted than that which has been imposed. 18 In those circumstances, I would grant leave to appeal but dismiss the appeal against sentence. Those are the orders I propose. 19 Buddin J: I agree with Whealy J

Zepina v Regina

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Judgment (12 paragraphs)

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