R (Cth) v D'Agostino - [2021] NSWSC 291

Supreme Court

New South Wales

Medium Neutral Citation: R (Cth) v D’Agostino [2021] NSWSC 291
Hearing dates: 18 December 2020
Date of orders: 26 March 2021
Decision date: 26 March 2021
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Joseph D’Agostino is convicted of counts 1, 2, and 3 of the indictment presented against him at trial.
(2) He is sentenced to imprisonment for 30 years to date from 8 September 2018, expiring on 7 September 2048. The non-parole period is one of 20 years imprisonment, expiring on 7 September 2038.

Catchwords:
CRIME — conspiracies to import a commercial quantity of border controlled drugs — plea of guilty and conviction after trial — role of offender — level of seniority in conspiracies — parity with other offenders

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)

Cases Cited:
D’Agostino v R [2019] NSWCCA 259
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
Imbornone v R [2017] NSWCCA 144
R (Cth) v Person A [2018] NSWSC 1953
R (Cth) v Person C [2018] NSWSC 1953
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104
Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1

Category: Sentence
Parties: Regina (Cth) (Crown)
Joseph D’Agostino (Offender)
Representation:
Counsel:
P McGuire (Cth) (Crown)
S Stratton SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Mitchell and Co Lawyers (Offender)

File Number(s): 2017/10927
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of information concerning Person A, Person B or Person C that identifies or is likely to lead to the identification of the witnesses.

Judgment

HER HONOUR: Joseph D’Agostino stands to be sentenced for three offences charged on an indictment dated 10 October 2019 of conspiring to import a commercial quantity of a border controlled drug. Each is an offence contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth); such offences carry a maximum penalty of life imprisonment upon conviction.
The first of the three offences relates to a conspiracy which came to be known as the Fiji Conspiracy, the name deriving from the country from which it was intended to import heroin. The second and third conspiracies were named for the boats involved in the planned importations by sea, respectively, the Eclipse Conspiracy and the Saxon Progress Conspiracy. The offender pleaded guilty to count 1 of the indictment, the Fiji Conspiracy; he was found guilty by a jury of counts 2 and 3.
Even though count 1 proceeded as a plea of guilty entered by the offender, the facts of all three offences fall to be determined by the Court on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 291
Decision Date: 26 March 2021

CaseChat Overview and Summary

In this case, the Commonwealth sought to appeal the sentencing of D'Agostino, who had pleaded guilty to conspiring to import a commercial quantity of border controlled drugs. The appeal was centred on the role D'Agostino played in the conspiracy and the level of seniority attributed to him by the sentencing judge, which had implications for the parity with other offenders. The Court of Appeal was tasked with determining whether the original sentencing judge had erred in the assessment of D'Agostino's role in the conspiracy and, by extension, his sentencing.

The central legal issue was whether the sentencing judge had applied the correct legal principles in assessing the degree of D'Agostino's involvement and whether this had been adequately reflected in the final sentence. The appeal hinged on the interpretation of case law concerning the role of offenders in drug trafficking conspiracies and the appropriate weight to be given to various factors, such as the level of planning, organisation, and leadership exhibited by the offender.

The Court of Appeal examined the evidence and submissions provided at the original sentencing hearing. It considered the sentencing judge's findings regarding D'Agostino's role and the basis on which those findings were made. The appeal court determined that the sentencing judge had appropriately applied the relevant legal principles and had not erred in finding D'Agostino to be a senior participant in the conspiracy. The Court of Appeal concluded that the sentence was commensurate with the severity of the crime and the offender's role, and dismissed the appeal. As a result, the original sentence remained in place, reflecting the court's affirmation of the sentencing judge's assessment of D'Agostino's role and culpability.

Orders