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
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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.

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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 of age with no relevant previous convictions. He pleaded guilty at an early stage and cooperated with the police.

There was in addition the conviction of official corruption

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arising out of a rather muddled and it appears drunken attempt to bribe two policemen. Although the scale of the applicant's operation in that case appears to be quite a lot less than the applicant here and he cooperated with the police, the additional conviction for official corruption must surely have added something to the sentence which would otherwise have been imposed. This case and the cases referred to in the judgment in it to some extent support the applicant's submission.

The second case relied on by the applicant is Clancy, CA No 142 of 1993, judgment delivered 18 August 1993. That involved a sentence of four years of trafficking in marijuana which was not disturbed on appeal. The applicant, who was 44 years of age, had pleaded guilty to some offences of possession and supply, but not guilty to trafficking. He was convicted after a trial.

He had earlier offences of being in possession of cannabis and of producing cannabis for which he had been sentenced to imprisonment for 12 months. The offences, the subject of the appeal, were committed whilst the applicant was on bail in respect of earlier charges. The fact that this court did not reduce the sentence imposed below does not materially assist the appellant's argument except to the extent that it represents a judgment at first instance.

The third case relied on by the applicant was Sergi, Trimboli and Zuchelli, CA Nos 49, 50 and 51 of 1996, judgment delivered 29 April 1996. In that case the court refused to interfere with sentences of six years imprisonment imposed in relation to the production of cannabis sativa which was described as a large and

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sophisticated production.

The applicant can derive, again, little benefit from this case except that for involvement in what appears to have been a larger and more sophisticated cultivation operation, the sentences below were only six years, though there was no recommendation for early parole, notwithstanding pleas of guilty.

The respondent, on the other hand, referred us to Haygarth, CA No 220 of 1995, judgment delivered 28 July 1995. In that case the learned sentencing Judge had imposed a sentence of four years for trafficking in cannabis sativa without any recommendation for early parole. This court allowed an appeal to the extent only of allowing a recommendation that the applicant be eligible for parole after serving 12 months of his sentence.

The applicant, who was 27 years old, had a number of previous convictions including one for dishonesty, assault occasioning bodily harm and possession of a prohibited plant. He was described as a small time trafficker. Plainly the criminality in that case was substantial less than this one.

To the extent that they are relevant, the above cases indicate that the sentence imposed here was a high one. Nevertheless I cannot be satisfied that it was outside the appropriate range. The extent of the applicant's trafficking was substantial and it was plain that he had sources of supply other than his own farm. He was thus a commercial dealer in marijuana on a substantial

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scale. Moreover, the recommendation which the learned sentencing Judge made could not in my view be said to be insufficient to take into account his early plea of guilty, bearing in mind as one must, his failure to further cooperate with the police. I would therefore refuse the application.

PINCUS J: I had thought initially that the sentence imposed was high and I notice that Mr Justice Davies is of the same view. It is, in my opinion, a sentence which is certainly at the top of the range. However, having considered the matter, I have been unable to conclude that the sentence is manifestly excessive and I agree with the order proposed.

McPHERSON JA: I agree with the remarks that have been made by both of my colleagues, and with the order that is proposed.

PINCUS J: The order of the court will be application refused.

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