Licastro v R

[2008] NSWCCA 131

New South Wales
Court of Criminal Appeal

CITATION:	Tony LICASTRO v R [2008] NSWCCA 131
HEARING DATE(S):	6 June 2008
JUDGMENT DATE:	22 July 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Hidden J at 39
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - knowingly take part in the cultivation of not less than the large commercial quantity of prohibited plants - parity principle - whether applicant likely to re-offend - whether prior criminal convictions taken into account - whether sentence manifestly excessive - appeal dismissed
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Blair [2005] NSWCCA 78; 152 A Crim R 462 R v McKenna [2007] NSWCCA 113
PARTIES:	Tony LICASTRO (applicant) REGINA (respondent)
FILE NUMBER(S):	CCA 2006/5087
COUNSEL:	C Nash & D Kang (applicant) N Adams (respondent)
SOLICITORS:	CBD Legal Lawyers (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0325
LOWER COURT JUDICIAL OFFICER:	Boulton ADCJ

2006/5087

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J

22 July 2008

Tony LICASTRO v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 11 September 2006 by Boulton ADCJ following his conviction (after trial by judge alone) of a single count of knowingly taking part in the cultivation of not less than the large commercial quantity of prohibited plants (cannabis) contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. He has not appealed against the conviction.

3 By s 33 of the Drug Misuse and Trafficking Act the conviction exposed the applicant to a maximum custodial penalty of imprisonment for 20 years. Boulton ADCJ sentenced the applicant to a total term of imprisonment for 8 years made up of a non-parole period of 6 years and a balance of term of 2 years, commencing 4 July 2006.

Facts

4 In February 2003 a marijuana plantation was discovered on a property in Medowie. 3,831 cannabis plants were under cultivation, with a sophisticated irrigation system, machinery, fertiliser, living quarters and accommodation. It was described by the sentencing judge as “an organised, well-planned operation engaged in for commercial profit.” Evidence was given that the street value of the plants approximated eight million dollars.

5 The applicant was arrested and charged with being knowingly involved in the cultivation on 19 March 2003. Three other men were also arrested and charged – a man to whom I will refer as GB, another man identified in the Remarks on Sentence only as “Pasquale”, and Joseph Lucisano. Only Lucisano stood trial with the applicant. GB pleaded guilty and gave evidence in the trial. Pasquale absconded and, as far as can be ascertained, has never been brought to trial.

6 Having heard all the evidence in the trial, the sentencing judge was well placed to make an assessment of the relative involvement of the two accused. He found that the applicant was a “principal” in the enterprise; Lucisano “an aider pursuant to s 27 of [the Drug Misuse and Trafficking] Act.” His role was “much less” than that of the applicant or GB. He found that Lucisano visited the site four or five times in his own vehicle, bringing fertiliser on at least one occasion, cannabis seedlings on another; and was present when other relevant activities were being carried on. His Honour regarded this last as indicative of Lucisano’s knowledge of the magnitude of the operation.

7 His Honour found that the applicant recruited GB and gave him his instructions and that there was no evidence that the applicant and Pasquale received instructions from anybody else.

8 There is no challenge to any of these findings of fact.

9 GB was sentenced by Dodd DCJ to a total term of 2 years’ imprisonment, which was suspended. He had served 7 ½ months in pre-sentence custody and was allowed a sixty percent discount for the combined effect of his plea of guilty and the assistance he rendered to authorities in the prosecution of the applicant and Lucisano.

10 Boulton DCJ sentenced Lucisano to imprisonment for 2 years with a non-parole period of 6 months. Since parity of sentences is one of the grounds of the application it will be necessary to say some more about Lucisano, his role in the enterprise, and his subjective circumstances.

11 In respect of the applicant his Honour observed that, even after conviction, he continued to deny his involvement in the offence and found that this did not “bode well” for prospects of future rehabilitation. Although, in respect of Lucisano, he found that he was unlikely to re-offend, he did not make any parallel finding in relation to the applicant. This constitutes another ground of the application.

Subjective Circumstances

12 The applicant was born in Italy in 1967 and was 36 years of age at the time of the offence. He had what, at first sight, appears to be a lengthy criminal history, but, on examination, this proves to have been largely comprised of traffic offences, of which there are many (but several of them sufficiently serious to have resulted in the imposition of custodial sentences); and there are also some offences associated with possession and/or use of drugs, three of which date back to 1990 and 1991, and one to 1995.

13 A pre-sentence report recounted a long history of drug use on the part of the applicant. He began smoking cannabis at 19 years of age and his use escalated rapidly. In about 1998 (when he would have been about 31 years of age) the applicant began using methylamphetamine intravenously; he was said to have been using it daily at the time of the offence. In 2004 he attempted a rehabilitation programme but discharged himself after a few weeks.

14 Although he has been in an “on again off again” relationship since about 2001, at the time of the offence and up to his incarceration he was living with his parents and two younger brothers. His father is very ill, having suffered three strokes, and also suffers from dementia. The applicant’s mother is the primary carer for his father but until his incarceration, relied upon the applicant for assistance. The family relationship is supportive. His partner also is supportive, although concerned about his need to address drug issues.

15 I have already mentioned the salient findings of fact made in respect of the applicant by the sentencing judge.

The application for leave to appeal

16 The grounds of the application are specified as:

“(1) His Honour erred in failing to give sufficient weight to the principle of parity.
(2) His Honour erred in failing to find that the applicant was unlikely to re-offend.
(3) His Honour erred in failing to find that the applicant had good prospects of rehabilitation.
(4) His Honour erred in taking into consideration the applicant’s prior criminal convictions.
(5) The sentence was manifestly excessive.”

17 It is convenient to deal first with those grounds that can be disposed of quickly.

Ground 2: Failure to find that the applicant was unlikely to re-offend;

Ground 3: Failure to find that the applicant had good prospects of rehabilitation.

18 These grounds can be dealt with together. I have already set out the finding made about rehabilitation. This was based upon the applicant’s continued denial of his involvement. His Honour made no separate reference to the likelihood of re-offending – I perceive little, if any, difference between the two concepts.

19 In referring to the pre-sentence report, his Honour said:

“This report makes mention of your lengthy period of illicit drug use commencing with cannabis and then proceeding to methylamphetamine. You have apparently been given an opportunity to address this problem, but have not to date done so. The report emphasises that continued failure to do so will very likely involve you with further contact with the law.”

20 The precise terms of the pre-sentence report were:

“Despite a short period in residential rehabilitation, Mr Licastro has completed no other intervention and will require to do so to avoid further contact with the law.”

21 On behalf of the applicant it was submitted that his Honour overstated and misinterpreted the effect of that passage in the pre-sentence report. It was argued that the author of the pre-sentence report did not regard further offending as “an inevitable outcome should the applicant fail to avail himself of intervention”, although that was said to be the gloss placed upon the report by his Honour. I do not accept that this is so. “Very likely” is far removed from “inevitable”; in my opinion, given the applicant’s history of drug use, and his failure to complete a rehabilitation programme, together with the caution expressed by the author of the pre-sentence report, (also, no doubt, based upon significant experience), it was not wrong for the judge to conclude that failure by the applicant to deal with his drug problem was “very likely” to result in his further offending.

22 Reliance was also placed on behalf of the applicant on his short term involvement in the rehabilitation programme as evidence of his willingness to pursue rehabilitation. In my opinion, that evidence points in precisely the opposite direction. The applicant’s sole involvement with any rehabilitation programme ended after only a few weeks with his discharging himself. There is nothing in this that would justify a finding that he was willing to pursue rehabilitation, or likely to succeed in it.

23 In my opinion, it would not have been open, on the evidence, for his Honour to make any supportable finding that the applicant was unlikely to re-offend. All the evidence pointed to the opposite conclusion.

24 I would reject these grounds of the application.

Ground 4: Prior criminal convictions

25 This ground arises out of passages in the Remarks on Sentence in the following terms:

“Much of your criminal history concerns traffic matters. You have several instances of driving whilst disqualified which have resulted in short terms of imprisonment or home detention, along with what appear to be some minor drug offences in New South Wales and Queensland in the very early 1990’s … while your earlier drug convictions were minor and approximately 15 years ago, your traffic history since has been quite serious and your disregard for the law.”

26 On the basis of these passages it was submitted that to regard a history of traffic offences as indicative of a “disregard for the law” was erroneous and resulted in undue weight being given to those offences. The submission went on to assert that the error resulted in the imposition of a fresh penalty for the applicant’s past offences. This latter is seriously to overstate what his Honour said. All his Honour said was that the long (and continuing) history of traffic convictions indicated a disregard for the law. Analysis of the traffic convictions shows no less than six offences of driving whilst disqualified from holding a licence, and three of driving whilst his licence was cancelled. These are no mere “traffic” offences; they amply demonstrate a disregard for the law. There can be no quarrel with the proposition stated by his Honour. There is no indication that the traffic convictions were taken into account as an aggravating factor. It is therefore unnecessary to consider yet again the effect of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 which has been the subject of much discussion in this Court: see, for example, R v Blair [2005] NSWCCA 78; 152 A Crim R 462.

27 I would reject this ground of appeal.

Ground 1: Parity

28 There is, plainly, a marked – even vast – discrepancy between the sentence imposed upon the applicant and that imposed upon Lucisano. In written submissions filed on behalf of the applicant it was put that the applicant received a non-parole period ten times greater than did Lucisano; in fact, the divergence is even greater. The applicant’s non-parole period of 72 months is 12 times that of the non-parole period to be served by Lucisano.

29 The question is whether the difference in circumstances justified or permitted that very significant discrepancy.

30 The most important aspect is, of course, the difference in the participation of the two men in the enterprise. His Honour regarded the applicant as a principal – his remarks concerning the absence of any evidence that he and Pasquale received instructions from any other quarter indicate that he regarded them as the true entrepreneurs. The evidence established that the applicant was actively involved in the work necessary for the cultivation and on occasions slept overnight on the property. He recruited at least one other participant, GB.

31 By contrast, Lucisano was a “worker”, who was shown to have visited the property on four or five occasions and to have acted on instructions. There appears to have been no evidence of the anticipated distribution of the financial rewards.

32 The subjective cases also distinguish between the two. His Honour made an express finding in respect of Lucisano that he was unlikely to re-offend. Lucisano was 56 years of age at the time of the offence, 59 at sentencing. He had no prior criminal convictions or contact with the law; he had a stable work history, although by the time of his apprehension, he was in receipt of a disability pension, for undisclosed reasons.

33 I find it unnecessary to restate the principles upon which parity of sentence requires equality of treatment in sentencing. Equality of sentencing, of course, depends primarily upon there being equality in offending, as well as equality in subjective circumstances. There is here no such equality (in either respect).

34 The criminal justice system is assiduous to pursue those who stand to gain the most from drug offending. While recognising that those who labour, usually for small reward, facilitate the enterprise and must therefore be punished accordingly, it also recognises that it is the entrepreneurs who warrant the greater wrath of the criminal law. The applicant can gain no comfort from the principles of parity in sentencing; it was necessary that he be punished as the entrepreneur he was found to be.

35 In oral argument reliance was placed upon the decision of the Court in R v McKenna [2007] NSWCCA 113. There the disparity in sentence was held to be “irrational”. In this case, there is a perfectly rational explanation for the disparity. There is nothing in McKenna that assists the applicant. The exposition of the principles concerning parity of sentencing demonstrates that parity here was hardly an issue. That is because of the significantly different positions of the two offenders.

36 I would reject this ground of appeal.

Ground 5: Manifestly excessive

37 The only arguments advanced against this ground of appeal drew upon the propositions already put in respect of the grounds with which I have dealt. I find no basis for asserting that the sentence was manifestly excessive. I would reject this ground of appeal.

38 The orders I propose are that leave to appeal be granted but the appeal be dismissed.

39 HIDDEN J: I must say that the ground of disparity of sentence has troubled me. The disparity is certainly marked. However, for the reasons Simpson J has articulated, it cannot be said to be outside the bounds of the legitimate exercise of the sentencing judge’s discretion.

40 I agree with the orders proposed by Simpson J and with her Honour’s reasons.

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