R v Costa - [1998] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 92 of 1998

THE QUEEN

DOMINIC COSTA

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JUDGES:	WINNEKE, A.C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 1998
DATE OF JUDGMENT:	13 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 78

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Criminal law - Sentence - Cultivation of cannabis - No manifest disparity with sentences imposed on co-accused - Sentence of 2-and-a-half years (18 months suspended) not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. N. Crafti	Goldsmiths

WINNEKE, A.C.J. (delivering the judgment of the Court):

The applicant, Dominic Costa, pleaded guilty in the County Court at Melbourne to one count of cultivating a narcotic plant, namely cannabis L, at Gymbowen between 20 March 1991 and 18 May 1992. Counts relating to trafficking in a drug of dependence and possession of cannabis were the subject of directed acquittals. On 15 April 1998 the applicant was sentenced to be imprisoned for a term of two-and-a-half years. The sentencing judge ordered that 18 months of that sentence be suspended for a period of three years. The applicant has now sought leave to appeal against the sentence upon a number of grounds, principally:

(1) that the judge acted upon incorrect facts, the significant one being the judge's
assessment of the applicant's role in the offence;
(2) the disparity which was said to be manifest between the applicant's sentence and the sentences imposed upon his co-accused, particularly the co-accused John Zara;
(3) the learned judge gave insufficient weight to the rehabilitation prospects of
the applicant;
(4) that the penalty imposed was manifestly excessive in all the circumstances.

It is unnecessary, we think, to refer in any great detail to the facts upon which the sentences were imposed. Those facts have been set out in full in the sentencing remarks made by the learned judge, which are before this Court and which have been canvassed in the course of argument before us. Suffice it to say that the cultivation to which the applicant pleaded guilty can be described as a large operation which involved the acquisition of some 1,600 acres of land at Gymbowen in the State of Victoria, the property being acquired in or about May 1991 upon the payment of a deposit of some $7,500, the purchase price being $75,000. At some stage shortly thereafter the facts indicated that a substantial crop of cannabis was planted and grown on 400 acres of uncleared land in the south- eastern corner of that property. It appears that attempts had been made to conceal the crop in the uncleared portion of the property, and indeed the existence of the crop had not been discovered until approximately May of 1992.
The applicant admitted his involvement in the cultivation of the crop but, as not infrequently happens in these cases, there was a substantial contest on the plea between the applicant and the Crown as to the…

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 Costa

Details

AGLC: R v Costa [1998] VSCA 78
Case: [1998] VSCA 78
Decision Date: 13 October 1998

CaseChat Overview and Summary

In the case of R v Costa, the appellant was convicted for his involvement in the cultivation of cannabis. The matter was brought before the court for the determination of an appropriate sentence. The court was tasked with assessing whether the sentence of 2-and-a-half years, with 18 months suspended, was manifestly excessive in comparison to the sentences given to his co-accused. The primary legal issue the court had to decide was whether the sentence imposed was proportionate and aligned with the principles of sentencing for similar offences.

The court examined the sentencing principles applicable to the cultivation of cannabis and reviewed the sentences given to the co-accused to ensure consistency and fairness. It was noted that the appellant's role in the cultivation process and his level of involvement were considered in determining the appropriate punishment. The court found that there was no manifest disparity in the sentences imposed on the co-accused, thereby upholding the proportionality of the appellant's sentence. The court also took into account the appellant's cooperation with authorities and his remorse, which were mitigating factors in the sentencing process.

Based on the reasoning provided, the court concluded that the sentence of 2-and-a-half years, with 18 months suspended, was not manifestly excessive. The court held that the sentence was appropriate given the circumstances of the case and the principles of sentencing. The appeal was therefore dismissed, and the original sentence was affirmed.

Orders