R v Cacopardo, D G - [1997] QCA 88

[1997] QCA 088

COURT OF APPEAL
DAVIES JA
McPHERSON JA
WHITE J

CA No 21 of 1997 CA No 560 of 1996

THE QUEEN
v.

DAVID GLENN CACOPARDO

and

CA No 20 of 1997 CA No 559 of 1996

THE QUEEN
v.

EMELIO CACOPARDO

and

CA No 1 of 1997

CA No 19 of 1997

THE QUEEN
v.

ANTONIO D'ORTONA	Applicant
020497 D.1 T1/JAP/20 M/T COA 47/97
CA No 19 of 1997
THE QUEEN
v.
ANTONIO D'ORTONA	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant
BRISBANE ..DATE 02/04/97
JUDGMENT
020497 D.1 T1/JAP/20 M/T COA 47/97

DAVIES JA: These are six matters which because they are related were heard together by this Court by consent. The first two are appeals against conviction by Emelio Cacopardo and David Cacopardo, a father and son.

Each was convicted of trafficking in cannabis sativa and two counts of producing cannabis sativa. Emelio was also convicted on three counts of supplying cannabis sativa and David on one count of supplying cannabis sativa. Emelio was sentenced to an effective term of eight years' imprisonment, that being the sentence imposed for trafficking and David was sentenced to an effective term of five years' imprisonment, that being the sentence imposed on him for trafficking.

The third and fourth matters are appeals by the Attorney-General against each of those sentences. The fifth and sixth matters are appeals against a sentence of eight years' imprisonment with a three and a half year non-parole period imposed on Antonia D'Ortona for trafficking in cannabis and money laundering and an application for leave by D'Ortona to appeal against that sentence. D'Ortona pleaded guilty to the offence of trafficking with which the Cacopardos were charged and convicted.

The appeals against conviction are, in each case, on the ground that the learned trial Judge was wrong in failing to leave to the jury a defence based on section 31(1)(c) of the Criminal Code. Section 31 relevantly provides:

(1)A person is not criminally responsible for an act or

3 JUDGMENT

020497 D.1 T1/JAP/20 M/T COA 47/97

omission, if the person does or omits to do the act under
any of the following circumstances, that is to say -

...

(c)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person's presence;
(d)When the person does or omits to do the act in order to save himself or herself from immediate death or grievous bodily harm threatened to be inflicted on the person by some person actually present and in a position to execute the threats, and believing unable otherwise to escape the carrying of the threats into execution.

(2)But this protection does not extend ... to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.

The prosecution case which was largely unchallenged was to the following effect. Philip Campagnolo who owned a 500 acre property on which he grew bananas…

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 Cacopardo, D G

Details

AGLC: R v Cacopardo, D G [1997] QCA 88
Case: [1997] QCA 88
Decision Date: 2/04/1997

CaseChat Overview and Summary

The case of R v Cacopardo, D G and others involved six related appeals heard by the Queensland Court of Appeal. The principal appellants were Emelio and David Cacopardo, convicted of trafficking in and producing cannabis sativa, and Antonio D'Ortona, convicted of trafficking in cannabis and money laundering. The appeals against conviction argued that the trial judge erred in not allowing a defence based on section 31(1)(c) of the Criminal Code, which exempts criminal responsibility when an act is reasonably necessary to resist actual and unlawful violence. The court held that section 31(1)(c) pertains to resisting violence, not complying with threats, and thus the defence was correctly rejected. The appeals against sentence argued that the sentences were too lenient, but the court found that the sentences were within the appropriate range, considering the gravity of the offences and the need for general and specific deterrence.

The court dismissed the appeals against conviction and sentence for Emelio and David Cacopardo, and the Attorney-General's appeals against their sentences. The court also dismissed the application by D'Ortona for leave to appeal against his sentence, finding it to be appropriate given his plea of guilty and the severity of his criminal history. The judges unanimously agreed on the reasoning and orders, affirming the convictions and sentences imposed by the lower court.

Orders