R v Esposito [2009] VSCA 277

Court of Appeal (Vic)|2009-11-30|Before: BUCHANAN and NETTLE JJA

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).

[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].

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