CVITAN, Zdenko Stipe v R; R v Zdenko Stipe CVITAN [2009] NSWCCA 156

CVITAN, Zdenko Stipe v R; R v Zdenko Stipe CVITAN [2009] NSWCCA 156

The sentencing judge erred by making an unwarranted and excessive departure from the 15 year standard non-parole period and by finding special circumstances on bases that could not support the reduction, so the sentence was manifestly inadequate. However, because Mr Cvitan’s sentence was proportionally correct relative to Suteski’s sentence and the Crown had abandoned its appeal against Suteski, increasing Mr Cvitan’s sentence would create unjustifiable disparity. Mr Cvitan’s appeal failed because the sentencing judge did not sentence him for the safrole as manufactured MDMA, and the sentence was not excessive by reference to parity with Kalemusic or Suteski.

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Crown Appeal Against Sentence and Offender Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentence Imposed by Zahra DCJ on 10 October 2008
Outcome
Crown appeal dismissed; leave granted to Mr Cvitan to appeal against sentence; appeal against sentence dismissed.
Legal Topics
['manufacture of Not Less Than Large Commercial Quantity of Prohibited Drug' 'manifest Excessiveness' 'manifest Inadequacy' 'standard Non Parole Period' 'special Circumstances' 'parity' 'crown Appeal Against Sentence']
['criminal Law' 'sentencing' 'drug Offences'] ['manufacture of Not Less Than Large Commercial Quantity of Prohibited Drug' 'manifest Excessiveness' 'manifest Inadequacy' 'standard Non Parole Period' 'special Circumstances' 'parity' 'crown Appeal Against Sentence']

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Procedural Posture

Crown Appeal Against Sentence and Offender Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From District Court Sentence Imposed by Zahra DCJ on 10 October 2008

Legal Issues

  1. 1 ['Whether the sentence imposed on Mr Cvitan was manifestly excessive.' 'Whether the sentence imposed on Mr Cvitan was manifestly inadequate.' 'Whether the sentencing judge gave insufficient weight to the standard non-parole period.' 'Whether the sentencing judge erred in finding special circumstances, including by relying on an erroneous view that Mr Cvitan had not previously served imprisonment and on a need for parole supervision.' 'Whether the sentencing judge erroneously took into account 213.8 litres of liquid containing safrole as part of the offending.' 'Whether parity with co-offenders David Kalemusic and Tony Suteski required a different sentence or affected the Crown appeal.']

Ratio Decidendi

The sentencing judge erred by making an unwarranted and excessive departure from the 15 year standard non-parole period and by finding special circumstances on bases that could not support the reduction, so the sentence was manifestly inadequate. However, because Mr Cvitan’s sentence was proportionally correct relative to Suteski’s sentence and the Crown had abandoned its appeal against Suteski, increasing Mr Cvitan’s sentence would create unjustifiable disparity. Mr Cvitan’s appeal failed because the sentencing judge did not sentence him for the safrole as manufactured MDMA, and the sentence was not excessive by reference to parity with Kalemusic or Suteski.

Court Disposition

Crown appeal dismissed; leave granted to Mr Cvitan to appeal against sentence; appeal against sentence dismissed.

Orders

  • ['Crown appeal dismissed.' 'Leave granted to Mr Cvitan to appeal against sentence.' 'Appeal against sentence dismissed.']