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
Category: Sentence Parties: Regina (Cth) (Crown)
Joseph D’Agostino (Offender)Representation: Counsel:
Solicitors:
P McGuire (Cth) (Crown)
S Stratton SC (Offender)
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
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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.
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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.
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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…
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- Case
- [2021] NSWSC 291
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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