R v Costa [1998] VSCA 78

Court of Appeal (Vic)|1998-10-13|Before: WINNEKE, A.C.J., BROOKING and BATT, JJ.A.

The applicant, Dominic Costa, pleaded guilty in the County Court at Melbourne to one count of cultivating a narcotic plant, namely cannabis L, at Gymbowen between 20 March 1991 and 18 May 1992. Counts relating to trafficking in a drug of dependence and possession of cannabis were the subject of directed acquittals. On 15 April 1998 the applicant was sentenced to be imprisoned for a term of two-and-a-half years. The sentencing judge ordered that 18 months of that sentence be suspended for a period of three years. The applicant has now sought leave to appeal against the sentence upon a number of grounds, principally:

(1) that the judge acted upon incorrect facts, the significant one being the judge's assessment of the applicant's role in the offence;

(3) the learned judge gave insufficient weight to the rehabilitation prospects of the applicant;

(4) that the penalty imposed was manifestly excessive in all the circumstances.

It is unnecessary, we think, to refer in any great detail to the facts upon which the sentences were imposed. Those facts have been set out in full in the sentencing remarks made by the learned judge, which are before this Court and which have been canvassed in the course of argument before us. Suffice it to say that the cultivation to which the applicant pleaded guilty can be described as a large operation which involved the acquisition of some 1,600 acres of land at Gymbowen in the State of Victoria, the property being acquired in or about May 1991 upon the payment of a deposit of some $7,500, the purchase price being $75,000. At some stage shortly thereafter the facts indicated that a substantial crop of cannabis was planted and grown on 400 acres of uncleared land in the south-eastern corner of that property. It appears that attempts had been made to conceal the crop in the uncleared portion of the property, and indeed the existence of the crop had not been discovered until approximately May of 1992.

The applicant admitted his involvement in the cultivation of the crop but, as not infrequently happens in these cases, there was a substantial contest on the plea between the applicant and the Crown as to the applicant's degree of involvement in the venture.

There were two co-accused of the applicant, namely Glen Pope and John Zara, who had also ultimately admitted their involvement in the growing of the crop. It appeared from the material before the sentencing judge that Zara had been the person who tended the crop during its cultivation. The applicant had at some stage introduced Pope to Zara. The applicant was Zara's cousin, and during the course of the crop's cultivation the applicant attended the property where the crop was being grown from time to time but claimed that his attendance was simply to visit Zara, who was well known to him.

The judge took the view that the applicant's role was "more than a minor one" both in terms of supervision of the cultivation and the ultimate disposal of the crop. In coming to this conclusion he had before him the evidence of both Pope and Zara, who had been previously dealt with, and accordingly he had the opportunity of observing them and listening to their evidence. Pope's evidence tended to implicate the applicant as a "substantial player" in the enterprise, while Zara's evidence suggested that he was only a player "in the minor league". The applicant gave no evidence at all and, according to his counsel, was never going to be a witness on the plea. The judge did not regard Pope as a witness upon whose evidence he could wholly rely, but ultimately it seems that his Honour found a number of facts upon which he was able to take a view of the role which the applicant played. Amongst his findings, his Honour concluded, firstly, that the applicant provided the deposit moneys for the purchase of the property; secondly, that the applicant was intimately involved in the removal and disposal of the crop - for that purpose he relied upon certain conversations which were before him, that had been covertly recorded, between the applicant and one Raffoul in May of 1995 and between the applicant and one Newland; thirdly, that the applicant had introduced, as was conceded, Pope to Zara; and, finally, that Pope's evidence about the applicant's involvement was, as a whole, supported by surrounding indicia. The learned judge was prepared to make the findings as to the applicant's role to the required standard notwithstanding that the plea was as to cultivation only. The count of trafficking, as we have said, was the subject of a directed acquittal. His Honour, however, took the view that the applicant appeared to be involved to a degree "that should be at least equated with that of Pope", but he was not prepared to state that finding as a definite conclusion. He was, however, prepared to find that the applicant was "intimately involved in the planning and preparation of the crop" and that his role included a part in "the removal and disposition of the crop".

Upon the hearing of this application, Mr Crafti, who appeared for the applicant, has attacked the findings to which I have referred. In particular he argued that the judge's finding as to the payment of the deposit by the applicant was one that was not open to him on the evidence. We have listened carefully to the submissions made by Mr Crafti, but we are not persuaded that his Honour was not entitled to come to the conclusions which he did. His Honour heard the evidence, which included that of Pope, with all its imperfections, and we are not in a position ourselves to re-try the issues which arose from that evidence. In coming to the view which we have, we again note that no evidence was given on the plea by the applicant.

Pope had pleaded guilty in the County Court on 28 March 1996 to cultivation, trafficking and possession. He had been sentenced to three years on the cultivation count, four-and-a-half years on the trafficking count and one year on the possession count. The total effective sentence imposed upon him was five years and a minimum term of two years and nine months was fixed. On 16 April 1997, Zara pleaded guilty to one count of trafficking - a more significant charge than the one pleaded to by the applicant. He was sentenced to be imprisoned for a period of two years but the whole of that sentence was suspended. All of the matters relating to the sentences imposed upon the co-accused were before the learned sentencing judge when the applicant stood for sentence before him. Having regard to the findings which his Honour made, there is, in our view, no basis for the contention that the sentences between the applicant on the one hand and Pope and Zara on the other are manifestly disparate.

Nor can we say that the sentence upon the applicant is a manifestly excessive sentence. It is true that there was much evidence before the learned judge to show that the applicant had a good reputation in the area in which he lives. This evidence might on one view have seemed somewhat at odds with certain statements made by the applicant and recorded on the covert tape to which we have referred, but it was none the less evidence upon which his Honour was prepared to act. The judge noted that evidence and clearly took it into account in passing the sentence which he did.

It was not necessary, in the light of his Honour's findings, for the judge to have mentioned the applicant's prospects of rehabilitation. The fact that they were accepted is, we think, implicit in his Honour's sentencing remarks. Nor, in our view, can it be said that his Honour was unmindful of the very lengthy delay which occurred between the commission of the offences and the plea before him. His Honour had clearly taken that matter into account and, indeed, it was a matter that was heavily relied upon in the plea before him. The fact is that the applicant had for some time intended to plead not guilty and it was not until a time relatively late in the piece that he indicated a contrary view.

It must be remembered, as has often been said by this Court, that the cultivation of substantial and commercial crops of cannabis intended to make a significant profit is a serious offence in which the aspect of general deterrence must play a large part. People who engage in producing drug crops of substantial sizes can, and ought to, expect, if detected, condign punishment. The sentence which was imposed by the judge here was, in our view, well within the range of penalties available to him. Indeed it seems that Mr Crafti was at some pains before us to suggest that the only alteration in the sentence ought to be one which confined the actual custody to the six months which has so far been served, and that that should be achieved by extending the period of suspension from one of 18 months to one of two years. It is not suggested that the head sentence imposed by his Honour was beyond the range. However, it is our view that there is nothing to suggest that his Honour's discretion miscarried in fixing the period of 18 months' suspension rather than two years' suspension.

We are, accordingly, of the view that the application for leave to appeal against sentence should be dismissed.

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

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