Cardona v The Queen

[2011] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0023

FRANK MARTIN CARDONA
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and REDLICH JJA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2011
DATE OF JUDGMENT:	1 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 58
JUDGMENT APPEALED FROM:	R v Cardona [2010] VCC 1110 (Judge Coish)

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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence and cultivation of a narcotic plant – Whether error to sentence applicant as a ‘serious drug offender’ under Part 2A of the Sentencing Act 1991 – Whether incorrect classification of applicant as a ‘serious dug offender’ a material error – Fresh evidence concerning health of applicant – Applicant diagnosed with lung cancer – Life expectancy of three to six months much lower than understood at time of sentence – Non-parole period reduced to allow for immediate release.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Pappas SC	Garde-Wilson Lawyers
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I invite Redlich JA to deliver the first judgment.

REDLICH JA:

1. The applicant pleaded guilty in the County Court to one count of trafficking in a drug of dependence (pseudoephedrine) in not less than a commercial quantity (count 1), one count of trafficking in a drug of dependence (methylamphetamine) (count 2) and one count of cultivation of a narcotic plant, Cannabis L (count 5).[1] 

   [1]The applicant pleaded not guilty to a further two counts of trafficking in a drug of dependence (counts 3 and 4), but no evidence was led in relation to these grounds and acquittals were entered on the record for both those counts.

1. The facts of the applicant's offending are not disputed, and given the ground of appeal on which the applicant seeks to rely and the concessions made by the Crown, it is unnecessary for the disposition of the present application and the appeal itself to consider those facts in any detail. Suffice to say, the applicant controlled a sophisticated drug manufacture and distribution network through which pseudoephedrine was obtained and either sold or used to manufacture methylamphetamine.  He also organised a hydroponic set‑up for the cultivation of Cannabis L in two bedrooms at a property in Lancefield. 

1. The applicant was sentenced to four years and six months’ imprisonment on the count of trafficking in pseudoephedrine, to 18 months’ imprisonment on the count of trafficking in methylamphetamine, and 15 months' imprisonment on the count of cultivation of a narcotic plant. The sentencing judge directed that four months of the sentence imposed on the count 2 and two months of the sentence imposed on the count 5 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of five years' imprisonment.  A non‑parole period of three years' imprisonment was fixed.  These sentences were all moderated because of the medical prognosis as to the applicant's health.

1. On 14 February…