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[2009] VSCA 277
appellant. Appeal allowed. The six-year sentence and four-year non-parole period were set aside and replaced with five years' imprisonment and a three-year non-parole period. A period of 465 days was declared...
The Court of Appeal accepted that the second child's birth with the same serious condition as the first child was new evidence. It showed that prison would be more emotionally difficult for Esposito than the sentencing judge could assess at the time. The Court reduced his sentence, but only modestly. It considered that the family circumstances did not meet the demanding exceptional-hardship threshold advanced for a much larger reduction, and that the seriousness of commercial drug cultivation and general deterrence required a substantial custodial sentence.
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2,190 words · generated 30/09/2026
Joe Esposito appealed his sentence for cultivating cannabis in not less than a commercial quantity. He pleaded guilty on 5 December 2008. On 12 December 2008, the County Court sentenced him to six years' imprisonment, with a non-parole period of four years ([2]). He obtained leave to appeal on 2 September 2009 ([3]).
No linked legislation citations have been extracted yet.
The appeal was not based on a claim of specific sentencing error or that the sentence was manifestly excessive. Instead, Esposito relied on developments after sentence that he said cast a new light on circumstances already considered by the sentencing judge ([4]).
At sentencing, Esposito's daughter was terminally ill. She had a neurodegenerative disease, required intensive care and had a range of serious associated conditions. The sentencing judge also knew that Esposito's wife was pregnant with their second child and that the second child faced a 20 per cent chance of having the same condition ([5]–[6]). The judge took the circumstances into account as a reason for some mercy, while recognising that imprisonment would prevent Esposito from supporting his wife and family.
After sentencing, the daughter died at two years of age. The second child was born with the same condition and was also expected to die at about two years of age ([7]). The appeal court had material about the emotional impact on both parents, including evidence that Esposito had lost significant weight and had been prescribed anti-depressant medication. His wife described the emotional effect of bringing their son to visit Esposito in prison and seeing them together in the restrictive prison environment ([8]).
The Court of Appeal, comprising Buchanan and Nettle JJA, allowed the appeal. Nettle JA gave the reasons, and Buchanan JA agreed ([1], [20]). The Court set aside the original sentence and imposed five years' imprisonment, with a three-year non-parole period. It also declared 465 days already served and confirmed the relevant orders under the Confiscation Act 1997 (Vic) and the Crimes Act 1958 (Vic) ([19]–[21]).
The first question was whether the new evidence could be considered as fresh evidence. The Crown argued that it was not fresh in the relevant sense, contending that it merely showed how events had unfolded after sentencing and that the general possibility had already been taken into account ([9]).
Nettle JA rejected that characterisation. At sentence, the second child was unborn and the available evidence gave only a 20 per cent chance of the condition. Although the sentencing judge had allowed for that possibility, the available information did not permit a proper assessment of what would follow if the child were affected. The later birth with the condition enabled a more accurate assessment of the hardship ([10]). The Court considered that the evidence demonstrated distress of greater seriousness and duration, and a more burdensome experience of imprisonment than had previously been understood ([10]).
The Court then asked whether a different sentence should be substituted to avoid a miscarriage of justice ([11]). Nettle JA was persuaded that Esposito would suffer greater emotional hardship in prison because of his son's condition than if his son had been born healthy. That warranted a reduction, although a fairly modest one ([12]).
Esposito sought a much larger reduction. His argument was that the second child's confirmed diagnosis, short life expectancy and need for intensive treatment made the circumstances exceptional ([13]). The Court stated a demanding test for exceptional family hardship: cogent evidence must establish hardship considerably more severe than is normal when a father is imprisoned, and circumstances so highly exceptional that refusing relief would be, in effect, inhuman ([14], citing R v Wirth).
The Court acknowledged the profound sadness and distress experienced by Esposito and his wife. However, it considered the child's age and condition relevant: the child could hardly, if at all, be aware of his father's position or concerned by his absence. The Court also accepted that Esposito's wife missed his support and was saddened that he could not spend more time with their son, but did not consider those circumstances sufficiently exceptional to meet the stated threshold ([14]).
Counsel also relied on R v Wong, a different commercial cultivation case in which the Court had imposed a lower sentence ([16]). Nettle JA distinguished Wong. The offender there had depression that caused the offending and had assisted authorities. His wife had myasthenia gravis, which significantly restricted her ability to lift the children and manage the household independently. The Court considered those circumstances, particularly the practical effects on childcare, materially different ([17]).
Finally, the Court balanced the increased hardship against the offence's gravity. Nettle JA said general deterrence must remain at the forefront for offences involving commercial quantities of narcotic plants cultivated for profit. Although fresh evidence allowed the Court to show some mercy, the sentence reduction had to remain limited ([18]). The result was a one-year reduction to the head sentence and a one-year reduction to the non-parole period ([19]).
The judgment addresses two related sentencing questions: when post-sentence events may qualify as fresh evidence, and how family hardship may affect sentence severity.
On fresh evidence, the Court's reasoning is that the fact an event occurred after sentence does not itself prevent it from being relevant. Here, the later birth and diagnosis provided information that had not been available when sentence was imposed. It enabled the Court to assess more accurately the significance of the possibility that the second child might have the same condition ([10]). Nettle JA related that approach to R v Eliasen and R v Alashkar, R v Tayar, describing the evidence as within the conception of fresh evidence discussed in those authorities ([10]).
The judgment does not purport to set out a comprehensive test for all fresh-evidence sentence appeals. Its application is tied to these facts: an identifiable risk was known at sentence, the possible outcome was uncertain, and the later event resolved that uncertainty in a way that materially affected the assessment of imprisonment's burden.
On family hardship, the Court stated the exceptional-circumstances threshold by reference to R v Wirth ([14]). It then applied that standard to the evidence before it. The decision illustrates that profound personal hardship does not automatically satisfy the exceptional threshold. The Court accepted the family's distress but did not regard it as sufficient to justify the substantially greater reduction sought ([14]).
The judgment also emphasises that mercy and general deterrence can operate together. The Court recognised increased hardship and reduced the sentence, but treated the seriousness of commercial cultivation and the need to deter similar offending as constraints on the extent of the reduction ([18]). The result did not replace the deterrent purpose of the sentence; it adjusted the sentence modestly to account for the newly established hardship.
The text does not provide a comprehensive account of the law before or after this decision beyond the authorities it cites and the principles it applies. It therefore supports a focused account of the Court's reasoning, not a claim that the decision changed the law generally.
At [10], Nettle JA says the later evidence “allows for a more accurate assessment” of the circumstances. In plain English, the relevant information was not simply that the family situation had become more difficult. The later event clarified a serious possibility that the sentencing judge could only assess on the basis of a 20 per cent risk.
At [10], the Court also says the evidence established that the distress was “more serious and of longer term” than contemplated, with a more burdensome period in prison as a consequence. This explains the connection between the new facts and the sentence: the evidence mattered because it changed the Court's assessment of the effect of custody on the appellant.
At [14], the Court states that exceptional hardship must be considerably more severe than normal for a family where the father is imprisoned, and so highly exceptional that refusing relief would be, in effect, inhuman. In plain English, the hardship argument required more than serious sadness or understandable difficulty. It had to meet a particularly high threshold.
At [18], the Court says that general deterrence “must remain at the forefront” for the relevant category of drug offence. In plain English, the personal circumstances could reduce the sentence, but could not be considered in isolation from the need for sentences to deter commercial cultivation.
At [19], Nettle JA concludes that the sentence should be reduced from six years to five years and the non-parole period from four years to three years. The outcome reflects a limited adjustment, rather than the substantial reduction sought.
The decision is relevant to sentence appeals where important events occur after sentencing and those events clarify, rather than merely repeat, the significance of a circumstance that was already relevant. In Esposito, the sentencing judge knew that the unborn child faced a 20 per cent risk of the condition. The subsequent birth with that condition transformed an uncertain risk into a known fact and allowed the appeal court to assess its practical and emotional consequences ([6]–[10]).
The case may be relevant where the later event bears directly on the hardship of imprisonment. Here, the Court linked the child's condition to the appellant's emotional suffering in custody and to the burden on his wife, supported by the material described at [8]. The case does not establish that every post-sentence deterioration or family event will qualify as fresh evidence. The Court's reasoning depended on the later event permitting a more accurate assessment of the relevant circumstances.
It may also be relevant where a sentencing argument depends on exceptional hardship to an offender's family. The judgment provides a demanding threshold and shows that serious family suffering, even where accepted by the Court, may not be enough to justify a substantial reduction ([14]). The specific assessment in this case included the child's very young age and the Court's view that the child could hardly be aware of or concerned by his father's absence.
The decision is also pertinent where an offender relies on comparison with a prior sentence. The Court's treatment of Wong shows that a numerical comparison alone was insufficient in this appeal. Nettle JA examined the different personal circumstances, including the causal relationship between depression and offending, assistance to authorities, and the wife's disability and resulting childcare difficulties ([16]–[17]).
The judgment text supplied here contains no decisions made after 30 November 2009. It therefore does not establish how later courts have treated R v Esposito, whether they have followed or distinguished it, or whether its reasoning has been developed in later cases.
The judgment itself refers to earlier authorities. It describes the fresh-evidence approach as consistent with R v Eliasen and the discussion in R v Alashkar, R v Tayar ([10]). It refers to R v Duy Duc Nguyen in identifying the question of whether a different sentence should be substituted to avoid a miscarriage of justice ([11]). It cites R v Wirth for the exceptional-hardship formulation and compares the circumstances with R v NAD ([14]). It distinguishes R v Wong on its facts ([16]–[17]). Those references show how Nettle JA positioned the reasoning in 2009, but they do not answer how later courts have treated Esposito.
Accordingly, a current account of subsequent judicial treatment cannot be given from the supplied judgment alone. The judgment supports the original court's reasoning and disposition, but not claims about later citation history.
The judgment leaves open how broadly its fresh-evidence reasoning applies to different kinds of post-sentence events. It decides that the second child's birth with the condition qualified because it resolved a specific, previously uncertain risk and enabled a more accurate assessment of hardship ([10]). It does not define every circumstance in which later developments can be admitted or explain the limits of that approach across other factual settings.
The decision also does not set out a method for measuring the amount by which a sentence should be reduced once fresh evidence is accepted. It concludes that a modest reduction was appropriate, and gives the offence's seriousness and general deterrence as important constraints ([12], [18]–[19]). The judgment does not provide a formula for translating particular degrees of emotional hardship into a particular sentence reduction.
The scope of the exceptional-hardship threshold is another question. The Court stated the threshold and applied it to the child's age and condition, and the wife's loss of support ([14]). The judgment does not determine how the threshold would apply where a child is older, more aware of a parent's absence, or dependent on the imprisoned parent for particular care. Those possibilities were not the facts before the Court.
Finally, the supplied text cannot resolve the decision's later precedential status. It contains no post-2009 authorities. Any assessment of subsequent treatment would require sources beyond this judgment and should not be inferred from its own citations to earlier cases.
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R v Esposito (Unreported, County Court of Victoria, Judge Howard, 12 December 2008)
CRIMINAL LAW - Sentencing - Cultivation of a narcotic plant in not less than a commercial quantity - Appellant sentenced to a total effective sentence of six years' imprisonment with a non-parole period of four years - Fresh evidence - Evidence of events occurring since appellant sentenced - Young son born while appellant incarcerated afflicted with similar affliction as that which caused death of daughter - Effect on both appellant and wife - Whether exceptional circumstances - Whether increased custodial hardship - Appeal allowed - Appellant resentenced to a total effective sentence of five years' imprisonment with a non-parole period of three years.
1 I will ask Justice Nettle to deliver the first judgment.
2 On 5 December 2008, the appellant, Joe Esposito, pleaded guilty before a judge of the County Court at Shepparton to one count of cultivating a narcotic plant, namely, Cannabis L, in not less than a commercial quantity and, after hearing a plea in mitigation of penalty, on 12 December 2008, the judge sentenced the appellant to six years' imprisonment with a non-parole period of four years.
3 This is an appeal against sentence which is brought by leave granted by a judge of this court on 2 September 2009.
4 The appellant does not allege specific sentencing error, or that the sentence was manifestly excessive, but relies on evidence of developments since he was sentenced which are said to cast a new and different light on matters taken into account by the sentencing judge.
5 The position at the time of sentencing was described by the sentencing judge as follows:
Next, and of great significance, is the fact that your only child is terminally ill. She is now almost two. In mid 2007 she was diagnosed with global development delay caused by a neuro-degenerative disease. She cannot sit, hold up her head or have any purposeful movements. Associated with this are multi-faceted conditions including uncontrolled seizures, blindness, a deficient swallowing capacity which requires her to be fed by a tube and an inability to speak. Since the diagnosis she has need 24 hour intensive care. The details of her condition and its effects upon you and your wife are set out in a number of medical reports that I have received.
Your wife gave moving evidence of the obvious stress and trauma you have suffered as a couple and as part of the wider family. She has, it would seem, changed from being a buoyant person and suffered from major depression. She explained how she, and you to a lesser extent, have spent countless hours at the Royal Children's Hospital trying to support your daughter. She spoke evocatively of the support that you have given her over this difficult time. Sadly, the position has been reached where your child has come home where she has been receiving respite care. But she is very unstable and a decision has now been reached not to revive her if she suffers from a serious collapse, which it would appear is imminent.
6 The judge regarded those circumstances as warranting a degree of mercy. His Honour said that:
... I acknowledge that your incarceration will mean that you will be unavailable to support your wife and family if your daughter dies and in the crucial period thereafter. This will cause additional stress and hardship to you and them. The position is made worse by the fact that your wife is now expecting another child and you have been told there is a 20 percent chance that it will suffer the same conditions that I have described which have befallen your daughter. I take all of this into account in your favour and I do think that this is a case where there should be some amelioration of sentence in the exercise of mercy of the kind I have referred to. It is fortunate that there are a number of strong family supports available to help your wife cope with these difficult prospects, as has been the case whilst you were in custody for a significant time prior to being granted bail.
7 The fresh evidence on which the appellant relies is that, since he was sentenced, his first child died at the age of only two years from an hereditary neurodegenerative affliction, and that his second child, with whom his wife was pregnant at the time of the appellant's sentencing, has been born with the same condition and is also likely to die of it at or about two years' of age.
8 The effect of all that on the appellant, and the burden which it imposes on the appellant's wife, may to some extent be inferred from material which was before the sentencing judge. It includes reports of Dr Mike Clifford of September 2008, Dr Stella Clifford, of 5 November 2008, Ms Jenny Peake, dated 27 November 2008, and Mr Tim Watson-Munro, of 4 December 2008, and Mrs Esposito's evidence on the plea. We have also been told, without objection, that appellant's wife now takes their son to visit the appellant in gaol every week, the child's health permitting; and in her affidavit in support of the appeal, she deposes that she suffers emotionally as a result of watching her husband play with their son in the restrictive prison environment, knowing that their son will die before the appellant's release. The appellant is suffering emotionally, too. He has lost significant weight and has been prescribed anti-depressant medication.
9 The Crown contends that the new evidence is inadmissible as 'fresh evidence'. Counsel for the respondent submitted that, in order to qualify as such for present purposes, evidence must be expositive of the true but unknown significance of a relevant circumstance extant at the time of sentencing, and that the material on which the appellant relies does no more than show the working out of matters that were in general terms recognised and taken into account.[1]
10 In my view, the evidence of the birth of the appellant's second son suffering from the same affliction as caused the death of the first child is 'fresh evidence'. At the time of sentencing, the applicant's son was en ventre sa mare with only a 20 per cent chance of being born with the disability. The judge quite rightly attempted to make allowance for that possibility, but the evidence which was then available to his Honour did not allow him to assess its true significance. The new evidence, which relates to events which have occurred since sentencing, allows for a more accurate assessment to be undertaken.[2] It establishes, among other things, that the distress suffered by the appellant and his wife is more serious and of longer term than was contemplated it would be and, as a consequence, that the appellant's time in prison will be more burdensome than was previously understood. As such, I consider that the evidence comes squarely within the conception of fresh evidence envisaged in R v Eliasen[3] and discussed more recently in greater depth in R v Alashkar, R v Tayar.[4]
11 The question then is whether, on all of the material now before the court, a different sentence should be substituted to avoid a miscarriage of justice.[5]
12 I think that there should be. The material before the court persuades me that the appellant will suffer greater emotional hardship in gaol because of his son's condition than if his son had been born a healthy child. For that reason, I consider that there should be some albeit fairly modest reduction in the sentence.
13 Counsel for the appellant argued that the court should substitute a substantially lesser sentence. He submitted that whereas it was not thought that there were exceptional circumstances when the matter was dealt with by the sentencing judge, the court now knows that the appellant's second child is afflicted in the same way as the appellant's first child; has the same life expectancy as the first child; and requires the same intensive treatment. All of that, he said, has and will continue to have a severe physical and emotional impact on the appellant and his wife. In counsel's submission, these are exceptional circumstances which warrant a significantly reduced sentence and non-parole period.
14 That submission cannot be accepted in the broad terms in which it was stated.[6] In order to establish exceptional circumstances, there must be cogent evidence that a prisoner's imprisonment would impose exceptional hardship upon his family, one which is considerably more severe than normal for a family where the father is imprisoned, and the situation must be so highly exceptional that 'it would be, in effect inhuman to refuse to do so'.[7] Here, the birth of the appellant's second child with the same affliction as killed the first no doubt causes the appellant and his wife profound sadness and emotional distress. But the age and condition of their child is such that the child could hardly if at all be aware of the appellant's position or concerned by his absence from home.[8] Further, although the appellant's wife no doubt misses the appellant and his support in dealing with their child, and is saddened that the appellant cannot spend more time with the child during his short life, in this context I do not think that to be so highly exceptional that 'it would be, in effect inhuman to refuse to do so'.
15 Counsel for the appellant emphasised that the appellant's son will turn two years of age on 12 January 2011 but that, as matters stand, the appellant will not be eligible for parole until the end of August or early September 2012. In those circumstances, counsel submitted, it would be appropriate to reduce the non-parole period from four years to two years and thereby make the appellant eligible for parole at about the end of August or early September 2010 - or about four months before the child turns two.
16 Counsel for the appellant also prayed in aid the decision of this court in R v Wong[9] where, upon a re-sentencing after finding error, the court imposed a sentence of three years' imprisonment on a count of commercial cultivation involving 308 plants valued at up to $804,000. After an order for cumulation of another sentence for theft of electricity, Wong received a total sentence of only three years and three months' imprisonment with a non-parole period of only one year and nine months. Counsel contended that, despite the seriousness of the offence involved in this case, the sentence imposed in Wong demonstrated that it was well open in this case to reduce the sentence substantially and thus to reduce the non-parole period to no more than two years.
17 I do not accept that contention. Wong's case was different. He suffered from depression which was causative of the offending and had given assistance to the authorities which warranted a significant sentencing discount. His wife suffered from a chronic neurological disorder, called myasthenia gravis, which restricted her physical capacities, causing her 'difficulty' in lifting her children and running a household without assistance, and she had 'significant weakness' which impacted on her ability to live independently and without assistance. Her medical disorders made the care of their children a particular concern and it was largely that which made the circumstances exceptional.
18 Here, although I am not insensitive to the appellant's plight and, other things being equal, would prefer that he could spend at least some time out of gaol with his
son before the child dies, the nature and gravity of the appellant's offending are just too serious to allow that to be done. For with drug offences of the kind with which we are here concerned, general deterrence must remain at the forefront of sentencing considerations, and thus, like other offenders who choose to engage in the criminal cultivation of commercial quantities of narcotic plants for profit, the appellant must serve a sentence which is adequate to deter would-be transgressors. In light of the fresh evidence, the court is in a position to reassess the impact of imprisonment on the appellant and in that respect to show some mercy to him in the exercise of the sentencing discretion.[10] But all things considered, the reduction should be limited.
19 For the reasons I have given, I would reduce the appellant's sentence from six years to five years' imprisonment and the non-parole period to three years.
The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of five years. A non-parole period of three years is fixed.
It is declared that a period of 465 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its contents be entered in the records of the Court.
The orders made below pursuant to s 78(1) of the Confiscation Act 1997 and s 464ZF(2) of the Crimes Act 1958 are confirmed.
[1] R v Ienco [2008] VSCA 17, [32] (Kellam JA).
[2] R v Kane [1974] VicRp 90; [1974] VR 759; R v Nagul [2007] VSCA 8.
[3] (1991) 53 A Crim R 391, 393.
[4] [2007] VSCA 182, [6] (Redlich JA).
[5] R v Duy Duc Nguyen [2006] VSCA 184, [36]-[37] (Redlich JA).
[6] See and compare R v Nagul [2007] VSCA 8, [44] (Chernov JA); R v NAD [2008] VSCA 192, [12]-[15] (Weinberg JA).
[7] R v Wirth [1976] 14 SASR 291, 296.
[8] Cf R v NAD [2008] VSCA 192.
[10] Cf R v Selcuk [2007] VSCA 143, [50]-[57].
R
Esposito [2009] VSCA 277
Appeal allowed. The six-year sentence and four-year non-parole period were set aside and replaced with five years' imprisonment and a three-year non-parole period. A period of 465 days was declared to have been served. The orders under s 78(1) of the Confiscation Act 1997 (Vic) and s 464ZF(2) of the Crimes Act 1958 (Vic) were confirmed ([19]–[21]).