R v Bercolli - [1996] QCA 204

[1996] QCA 204

COURT OF APPEAL

PINCUS JA DAVIES JA McPHERSON JA

CA No 96 of 1996
THE QUEEN
v.

AGATINO BERCOLLIApplicant

BRISBANE

..DATE 20/05/96

JUDGMENT
200596 D.1 T/RB M/T COA119/96

DAVIES JA: The applicant was convicted in the Supreme Court on his own plea on 29 February last of trafficking in a dangerous drug namely cannabis sativa between 1 April 1994 and 27 April 1995. He was sentenced to six years imprisonment with a recommendation that he be eligible for parole after serving two years of that term. He seeks leave to appeal against that sentence.

The applicant is 38 years of age, having been born on 5 February 1958. He has no prior criminal history. He was at the relevant time a married man living with his family on a tobacco farm which he operated at Dimbulah.

The applicant's illegal operations were detected by telephone intercepts and observations made by undercover agents. These reveal sales of cannabis by the applicant generating in total the receipt by him of $50,000. When the police operation, during the course of which this detection took place, was concluded on 26 July 1995, the applicant's farm was searched. There the police located 61 cannabis plants growing and a further quantity of 2.24 kilograms of cut up material located in a shed.

The applicant's trafficking activities involved in part cannabis grown on his own property and also cannabis derived from other sources. These other sources were never identified. The applicant, although pleading guilty, did not otherwise cooperate with the police.

2 JUDGMENT

200596 D.1 T/RB M/T COA119/96

It appears from what I have said that this was a serious case of trafficking involving a substantial amount of money. Moreover, although the applicant pleaded guilty at an early stage thus saving the time and cost of a trial, given the strong evidence against him it would be difficult to contend that his early plea indicated any remorse on his part. Moreover he did not cooperate with the police, as I have said, in identifying his sources of supply other than from his own farm.

Mr Rafter, who appeared for the applicant submitted that the sentence imposed was outside the range of sentences imposed in comparable cases. He referred in particular to three decisions of this court. In the first, McFadden, CA No 132 of 1994, judgment delivered 12 August 1994, a sentence of five years imprisonment with no recommendation for early parole for trafficking in cannabis sativa, was reduced by this court to one of four years with the recommendation that the applicant be eligible for parole after serving 18 months of that term.

The applicant in that case was found in possession of a well- equipped marijuana plantation of 48 plants with an additional six plants growing in pots. He was also found in possession of $10,000 which, as it was found, came from selling marijuana. It was accepted that he had been growing marijuana commercially for about a year. He was 54 years…

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.

Continue reading R v Bercolli

Details

AGLC: R v Bercolli [1996] QCA 204
Case: [1996] QCA 204
Decision Date: 20/05/1996

CaseChat Overview and Summary

The case of R v Bercolli, heard by the Court of Appeal, involves the applicant, Agatino Bercolli, who was convicted of trafficking in cannabis sativa between April 1994 and April 1995. The applicant was sentenced to six years imprisonment with a recommendation for parole eligibility after two years. The applicant, who has no prior criminal history, was caught through telephone intercepts and undercover observations, leading to the discovery of cannabis plants and cut material on his farm. The court was tasked with determining whether the severity of the sentence imposed was justified given the nature and scale of the applicant's trafficking activities, his lack of cooperation with the police, and his early guilty plea.

The legal issues before the court were whether the sentence was appropriate and whether it was within the range of sentences typically imposed for similar offences. The applicant argued that the sentence was excessive compared to sentences in similar cases, citing precedents where lesser sentences were upheld. Conversely, the prosecution highlighted cases where higher sentences were upheld for offences deemed more severe. The court had to balance the principles of consistency in sentencing with the unique circumstances of each case.

The Court of Appeal considered the precedents cited by both parties and concluded that while the sentence was high, it was not manifestly excessive. The judges noted the substantial scale of the applicant's operations, his failure to cooperate with authorities, and the absence of remorse. They found that the sentence, including the recommendation for parole, was within the appropriate range for such serious drug trafficking activities. The judges unanimously agreed that the sentence was justified and refused the applicant's appeal.

The final order of the court was to refuse the application for leave to appeal against the sentence. The judges acknowledged that the sentence was at the upper end of the range but found no grounds to deem it manifestly excessive.

Orders