R v Bozzetto - [2002] QCA 189

[2002] QCA 189

COURT OF APPEAL

McMURDO P
WILLIAMS JA
JONES J

CA No 64 of 2002

THE QUEEN

DAVID BOZZETTO Applicant

TOWNSVILLE

..DATE 27/05/2002

JUDGMENT

WILLIAMS JA: In this matter the applicant pleaded guilty to the offence of producing the dangerous drug cannabis between 1 January and 5 June 2001. He seeks leave to appeal against the sentence of two and a-half years' imprisonment which was imposed on him following that plea.

Though it was a plea of guilty, it arose in somewhat unusual circumstances. The applicant pleaded not guilty initially to the charge and the matter went to trial. During that trial the applicant gave evidence denying any involvement with the marijuana plants, the subject of the charge.

The jury was unable to agree upon a verdict, they were discharged and a retrial ordered. The retrial commenced a few days later before the same presiding Judge, but of course with a different jury. At that stage the prosecution were apparently in a position to lead some additional evidence linking the applicant with the marijuana plants in question on some two further occasions. Whether or not because of that additional evidence, the applicant changed his plea to that of guilty.

The Crown Prosecutor referred to the fact that the sentencing Judge, having sat through the earlier trial, was cognisant of all relevant facts, and in consequence not a lot of detail was formally placed before the Judge with respect to the facts on which the applicant was to be sentenced.
In the cultivation there were 30 mature female cannabis plants. It was obvious that the plants had been culled over the period of time so that the male plants had been removed; the female plants had been pruned from time to time. The wet weight, that is weight including root and stalks, was 42.5 kilograms.

Of more significance is the fact that the plants had been placed within a cane crop on a farm in the district in which the applicant lived, but owned by another person. By placing the crop amongst the cane, the applicant gained the benefit of irrigation and fertilisation of the cane crop. He also avoided having any direct link with the crop in the sense that it was not growing on land that he owned. But the corollary of that of course was that he placed the owner of the cane farm at considerable risk. That, in my view, is a relevant factor to take into account when it comes to the issue of sentence.

In the course of placing material before the sentencing Judge, the Crown Prosecutor referred to the fact that police officers had estimated the street value of the plants to be between $60,000 and $80,000. Courts are always reluctant to give significant weight to such unverified assessments of the value of a drug crop, but that statement was in no way challenged, and it was obvious to the Court that in this instance there had been careful production…

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 Bozzetto

Details

AGLC: R v Bozzetto [2002] QCA 189
Case: [2002] QCA 189
Decision Date: 27/05/2002

CaseChat Overview and Summary

In the case of R v Bozzetto, the applicant, David Bozzetto, was convicted of producing the dangerous drug cannabis and appealed against the two and a half year imprisonment sentence imposed on him. Bozzetto initially pleaded not guilty to the charge and the matter went to trial. However, during the trial, the applicant gave evidence denying any involvement with the marijuana plants, the subject of the charge. The jury was unable to agree upon a verdict, they were discharged and a retrial ordered. The retrial commenced a few days later before the same presiding Judge, but with a different jury. It was at this stage that the applicant changed his plea to that of guilty. The applicant argued that the sentence was manifestly excessive.

The central legal issue in this case was whether the sentence imposed on the applicant was manifestly excessive. The Court of Appeal had to consider the nature of the crime, the applicant's age, the absence of the benefit of an early plea of guilty, the applicant's prior conviction for trafficking, and the Judge's finding that the cannabis production involved a commercial element. The Court of Appeal also had to consider whether the sentence was within the range of sentences imposed in similar cases.

The Court of Appeal held that the sentence imposed on the applicant was not manifestly excessive. The Court considered the sophistication of the cannabis cultivation, the applicant's prior conviction for trafficking in cannabis, and the fact that the applicant had placed the owner of the cane farm at considerable risk. The Court also noted that the applicant's age and the absence of the benefit of an early plea of guilty were relevant factors to take into account when it came to the issue of sentence. The Court of Appeal held that the sentence was within the range of sentences imposed in similar cases, and the application for leave to appeal should be refused.

The Court of Appeal refused the application for leave to appeal against the sentence of two and a half years' imprisonment imposed on the applicant. The Court held that the sentence was not manifestly excessive and was within the range of sentences imposed in similar cases. The Court also noted that the applicant's age, the absence of the benefit of an early plea of guilty, the applicant's prior conviction for trafficking, and the Judge's finding that the cannabis production involved a commercial element were relevant factors to take into account when it came to the issue of sentence.

Orders