Cardona v The Queen

Case [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…

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Cardona v The Queen [2011] VSCA 58
Case
[2011] VSCA 58
Decision Date

CaseChat Overview and Summary

In the case of Cardona v The Queen, the applicant appealed against his sentence for trafficking in a drug of dependence and cultivation of a narcotic plant. The case was heard in the Supreme Court of Victoria. The applicant contended that the trial judge erred in sentencing him as a ‘serious drug offender’ under Part 2A of the Sentencing Act 1991. The applicant also argued that the trial judge incorrectly classified him as a ‘serious drug offender’. Fresh evidence was presented regarding the applicant’s health, which had deteriorated significantly since the sentencing hearing. The applicant was diagnosed with lung cancer and his life expectancy was much lower than previously understood.

The legal issues before the court were whether the trial judge erred in classifying the applicant as a ‘serious drug offender’ and whether this classification was a material error. The applicant argued that his health condition and prognosis should have been taken into account when determining his classification as a ‘serious drug offender’. The court considered the impact of the applicant’s health condition on his sentence and whether this was a material error that required the court to intervene. The court also considered whether the applicant’s health condition was a factor that should have been taken into account when determining his classification as a ‘serious drug offender’.

The court found that the trial judge erred in classifying the applicant as a ‘serious drug offender’ and that this classification was a material error. The court found that the applicant’s health condition was a relevant factor that should have been taken into account when determining his classification as a ‘serious drug offender’. The court found that the applicant’s life expectancy of three to six months was much lower than previously understood and that this should have been taken into account when determining his sentence. The court found that the non-parole period should be reduced to allow for the applicant’s immediate release. The court allowed the appeal in part and set aside the non-parole period, fixing a new non-parole period of two years and six months. The court also quashed the order made pursuant to s 6F of the Sentencing Act 1991 and confirmed all other ancillary orders made by the trial judge.

In summary, the court found that the trial judge erred in classifying the applicant as a ‘serious drug offender’ and that this classification was a material error. The court found that the applicant’s health condition and prognosis were relevant factors that should have been taken into account when determining his classification as a ‘serious drug offender’ and his sentence. The court allowed the appeal in part and set aside the non-parole period, fixing a new non-parole period of two years and six months. The court also quashed the order made pursuant to s 6F of the Sentencing Act 1991 and confirmed all other ancillary orders made by the trial judge. The applicant’s immediate release was ordered.

Orders

Orders of the court

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is treated as instituted and heard instanter and is allowed in part.

3.   The sentences imposed below are affirmed, but the non-parole period is set aside.  In lieu thereof a non-parole period of two years and six months is fixed.

4.   It is declared that the period of 939 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

5.   The order made pursuant to s 6F of the Sentencing Act 1991 is quashed.

6.   All other ancillary orders of his Honour Judge Coish made 16 August 2010 are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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