Cardaklija v R

1. [1]

   N ADAMS CJ at CL: I agree with Emmett J.

2. [2]

   HAMILL J: I agree with the orders proposed by Emmett J and with his Honour’s reasons.

3. [3]

   EMMETT J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed on 6 September 2024 for three offences:

   1. (1)

      possess unlawful firearm, an offence under s 7(1) of the Firearms Act 1996 (NSW) with a maximum penalty of 14 years’ imprisonment and a standard non-parole period of 4 years’ imprisonment (sequence 3);

   2. (2)

      manufacture large commercial quantity of prohibited drug – in this case 13,276g of methylamphetamine – an offence under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), an offence with a maximum penalty of a fine of 5,000 penalty units or life imprisonment or both, and a standard non-parole period of 15 years (sequence 14); and

   3. (3)

      deal with property suspected to be proceeds of crime, an offence under s 193C(1) of the Crimes Act 1900 (NSW) with a maximum penalty of 5 years’ imprisonment.

4. [4]

   The primary judge imposed an aggregate sentence of 8 years 11 months’ imprisonment with a non-parole period of 5 years 6 months, with indicative sentences as follows:

   1. (1)

      sequence 3: 3 years’ imprisonment with a non-parole period of 2 years, including taking into account the following offences on a Form 1:

   2. (2)

      sequence 14: 7 years 6 months’ imprisonment with a non-parole period of 5 years, including taking into account the following offence on a Form 1:

   3. (3)

      sequence 19: 5 years’ imprisonment with a non-parole period of 1 year 10 months.

5. [5]

   The sole ground of appeal, should leave be granted, is that the learned sentencing judge erred in assessing the objective seriousness of the manufacture prohibited drug charge (sequence 14).

6. [6]

   The application for leave to appeal was brought out of time and the applicant also requires leave to bring the application after the expiry of the applicable period.

Extension of time and leave to appeal

1. [7]

   The applicant filed a notice of intention to seek leave to appeal on 25 September 2024, which extended the time for bringing the application to 24 September 2025. The notice of application for leave to appeal was filed on 28 October 2028. The applicant has provided an explanation for the delay, including that the applicant did not have all relevant transcripts until 3 June 2025 and there was a delay in the applicant raising the necessary funds for legal representation. I am satisfied that there should be an extension of time by granting leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to bring the application for leave to appeal after the expiry of the time for filing a notice of application for leave to appeal.

2. [8]

   As to the question of leave to appeal, the sentence sought to be challenged on appeal is substantial. The circumstances of this case, including the length of the sentence and the interest in finality, warrant a grant of leave to appeal.

Background

1. [9]

   The agreed facts before the primary judge were as follows (AB 60-61).

2. [10]

   On 25 May 2022 the police executed a search warrant at the applicant’s address, following an investigation into the applicant’s involvement in the supply of methylamphetamine in the Southwest Sydney area. The outcome of the search warrant is partly detailed in paragraph 4 of the agreed facts:

3. [11]

   The police also located the following items:

   1. (1)

      a black bag containing resealable plastic bags that contained 246.35 grams of methylamphetamine;

   2. (2)

      a loaded .22 short calibre Beretta self-loading pistol, wedged into the bed head of the applicant’s bed;

   3. (3)

      two tasers and two cartridges;

   4. (4)

      one set of knuckle dusters;

   5. (5)

      $9,000 in Australian currency inside the front bedroom; and

   6. (6)

      $220,000 in Australian currency located in the second bedroom.

4. [12]

   Investigations into the financial affairs of the applicant revealed 23 electronic transfers between 1 March 2022 and 20 May 2022 in which an associate named Crosby transferred various amounts into the applicant’s bank account, totalling $129,000.

5. [13]

   The applicant gave sworn evidence in relation to sequence 14 and was cross-examined in relation to that evidence.

6. [14]

   In chief, on being asked about the manufacture offence, the offender said (AB 26), “all I – what I was doing was, so the product would come finished as ice already and I was just – I just put it into a bucket, pour acetone into it, give it a little rinse, pour it out and then dry it off”. The applicant was cross-examined about this evidence (AB 31):

7. [15]

   In the course of his evidence in chief, the applicant also said that he made every effort to tell the truth to the officer who prepared his Sentence Assessment Report, and to Dr Gerald Chew, a psychiatrist who examined the applicant and prepared a report which was before the sentencing judge.

8. [16]

   The Sentencing Report includes the following (AB 76):

9. [17]

   Dr Chew’s report records that the applicant told Dr Chew that he had allowed a “mate” who was a dealer to “start leaving stuff at his place” and that this escalated to helping him “‘acetone’ a batch” for which he was promised “payment.” The applicant also said to Dr Chew that he had agreed to invest some of his mate’s money in cryptocurrencies for him.

10. [18]

    In her sentencing remarks, which were delivered ex tempore, the primary judge said the following about the objective seriousness of sequence 14 (AB 12):

11. [19]

    Her Honour also made the following remarks about the applicant’s evidence as to his limited role in the manufacture (AB 18):

12. [20]

    The primary judge had foreshadowed during closing argument that she might not accept his evidence that he was only washing the product. The applicant’s counsel replied “Yes, your Honour” and proceeded to make submissions about the extent of the applicant’s involvement “if [her] Honour accepts” the applicant’s evidence (AB 35-36).

Applicant’s arguments on proposed appeal

1. [21]

   The applicant accepts that he must demonstrate error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

2. [22]

   The applicant advances three arguments said to establish such error:

   1. (1)

      first, the primary judge acted on a wrong principle by affording primary weight to the quantity of the drug;

   2. (2)

      second, the primary judge failed to assess the applicant’s specific role in the enterprise; and

   3. (3)

      third, to the extent that the primary judge made an assessment of the applicant’s role in the enterprise, the findings were inconsistent with (or not available on) the evidence.

3. [23]

   As to the first argument, the applicant contends that her Honour’s assessment of the objective seriousness of sequence 14 was “somewhat perfunctory” and that “it is plain” from the sentencing remarks that her Honour gave primacy to the quantity of methylamphetamine without engaging with the applicant’s “specific role” in any detail.

4. [24]

   As to the second argument, the applicant contends that the primary judge should have sentenced him on the basis of the limited role which he said he had in the manufacture of the drug (ie, washing it in acetone, rinsing it and drying it).

5. [25]

   As to the third argument, the applicant contends that it was never put to the applicant in cross-examination that his role was any greater than as described by him and that, in any event, it was not reasonably open to the primary judge to decline to accept the applicant’s version of events.

Consideration

1. [26]

   In the passage dealing with objective seriousness cited at [18] above, the primary judge identified four matters taken into account in assessing the objective seriousness, namely:

   1. (1)

      the quantity, being 26 times the threshold amount, is substantial even recognising that there is no upper limit;

   2. (2)

      the applicant was engaged in the manufacturing process in his own home;

   3. (3)

      the applicant was engaged in a successful exercise; and

   4. (4)

      the applicant was a trusted member of what must have been a drug syndicate.

2. [27]

   Authority is clear that the weight of the drug is not the only factor to consider when assessing the objective seriousness of a drug offence, nor should it be the chief factor: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70]. Other factors including the offender’s role and expected reward are important, although as explained below there will be many cases in which the Court has limited or imperfect information about other potentially relevant factors. In this case, the sentencing remarks, read fairly and without an eye for error, mindful that they were delivered ex tempore (Hancock v The King [2025] NSWCCA 213 at [77]), do not disclose a sole or even primary focus on the quantity. It was one of a number of factors which the primary judge took into account.

3. [28]

   There is no error in the primary judge’s treatment of the quantity of methylamphetamine.

4. [29]

   It is convenient to deal next with the applicant’s third argument.

5. [30]

   During oral argument, senior counsel for the applicant accepted that this argument amounted to a contention that it was not reasonably open to the primary judge to decline to accept the applicant’s evidence as to his limited role in the manufacture of the drug.

6. [31]

   While the applicant’s submissions rested in substantial part on a complaint that prosecuting counsel did not put to the applicant in cross-examination that his evidence was false, the applicant’s senior counsel conceded that there was no denial of procedural fairness. This concession was properly made.

7. [32]

   The relevant cross-examination, which is extracted at [14] above, was consistent with putting certain matters to the applicant which the applicant was invited to accept (and did accept) even if his version of events were otherwise accepted.

8. [33]

   During closing argument, the primary judge specifically noted that she did not have to accept his claim that he was just washing. The applicant’s counsel said, “Yes your Honour” and then made submissions about the applicant’s limited role prefaced by the qualification, “if your Honour accepts it”. Accordingly, this appeal does not give rise to the kind of situation addressed by Basten JA in O’Neill-Shaw v The Queen [2010] NSWCCA 42 at [26], where the Court of Criminal Appeal found that a judge may not be entitled to reject, or fail to act on, evidence that has not been challenged or disputed by the prosecution and was not inherently implausible. This case falls within the other qualification Basten JA stressed at [26], that is, where the primary judge gave proper notice to the applicant that the applicant’s evidence may not be accepted. It is not necessary to decide whether it is always necessary for a sentencing judge to give express notice to an offender who is legally represented that their evidence may not be accepted – in this case such notice was expressly given and acknowledged by the applicant’s counsel. Ultimately, the principal question for procedural fairness will be whether, in the particular circumstances of the case, practical injustice has been demonstrated: see, eg, Weir v The Queen [2011] NSWCA 123 at [64]-[67]. There was no practical injustice in this case.

9. [34]

   The primary judge, in the passage extracted at [19] above, gave reasons for not being prepared to accept the applicant’s evidence. Those reasons are not irrational. The transfer of $129,000 in 23 EFT payments over a period from 1 March 2022 to 20 May 2022 (as set out in the agreed facts) does not sit comfortably with the applicant’s evidence that there was a promise of payment, presumably at some time in the future, in return for washing the drug in acetone. As the primary judge observed during closing argument, the applicant had “a fairly exceptional amount of money”.

10. [35]

    Further, the applicant admitted in cross-examination that he “had a significant degree of control over what was going on in the garage”. The activity in the garage included not only acetone but iodine, as well as a reference to “brown liquids and slurry materials being heated by a torch”. (The drafting of the facts means that it is not clear whether the brown liquids were also being heated by a torch or only the slurry materials).

11. [36]

    The applicant submitted on appeal (but, with appropriate frankness, acknowledging that this was not advanced below) that these facts were consistent with the applicant’s evidence about only being involved in washing the product in acetone, rinsing it and drying it – the suggestion being that the torch may have been used to dry the product. This is not easy to reconcile with the way the applicant put it in cross examination – “I put it in the bucket and, just, like, shake it up and pour it out and then dry it off”. In any event, even if the applicant’s version of events were consistent with the materials being heated by a torch in his garage, that would not establish that the primary judge was obliged to accept the applicant’s version of events.

12. [37]

    The applicant’s version of events was self-serving and was not supported by objective or independently verifiable evidence. I am not persuaded that the primary judge was obliged to accept on the applicant’s version of events.

13. [38]

    Once the applicant’s version of events is put to one side, the primary judge’s findings were reasonably open. The only remaining specific challenge to the primary judge’s findings can be dealt with in the context of the applicant’s second argument, that is, the assessment of the applicant’s specific role in the manufacture.

14. [39]

    If there was no error in the primary judge declining to accept the applicant’s evidence as to his limited role, there could be no error in the primary judge’s approach to the applicant’s specific role.

15. [40]

    The primary judge’s finding was that the applicant was “engaged in” the manufacturing process, was engaged in a successful exercise, and was a trusted member of what must have been a drug syndicate. These are all matters relevant to the applicant’s specific role. They are inferences properly drawn beyond reasonable doubt from the evidence before the primary judge (ie, from the agreed facts, supported in certain respects by admissions made by the applicant in his sworn evidence).

16. [41]

    Having declined to accept the applicant’s evidence that he was “only” involved in washing the product, the primary judge was presented with the kind of situation that was addressed by Gleeson CJ, Gaudron, Hayne and Callinan JJ in R v Olbrich (1999) 199 CLR 270 at [14]-[16]:

17. [42]

    As is clear from their Honours’ conclusions at [24] and [28], if a judge does not accept an offender’s evidence as to his limited role, the judge is not required to sentence the offender on the basis of that limited role.

18. [43]

    Similarly, in this appeal, since the primary judge was not persuaded on the balance of probabilities of the applicant’s evidence, the primary judge necessarily made narrower findings based on the more limited evidence that was available. The lack of detail in the primary judge’s characterisation of the applicant’s role simply reflected the lack of detail in the evidence the primary judge was willing to accept.

19. [44]

    There was no error in the primary judge’s approach to the applicant’s role in the manufacture of the methylamphetamine.

20. [45]

    It follows that the appeal should be dismissed.

21. [46]

    The orders I propose are:

    1. (1)

       Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to bring an application for leave to appeal after the expiry of the applicable period for filing an application for leave to appeal;

    2. (2)

       Grant leave to the applicant to appeal against the sentence imposed on 6 September 2024;

    3. (3)

       Dismiss the appeal.