R v Demaria - [2008] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 292 of 2006

THE QUEEN
	v
FRANCESCO DEMARIA

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JUDGES:	VINCENT, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 June 2008
DATE OF JUDGMENT:	16 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 105

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Criminal law – Sentencing – Drug Trafficking in a large commercial quantity – Manifest excess – Early plea of guilty – Re-sentenced to nine years’ imprisonment with a non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC	Tony Hargreaves and Partners

VINCENT JA:

I agree in the disposition of this matter proposed by Kellam JA and I do so for the reasons advanced by him in his judgment.

REDLICH JA:

For the reasons given by Kellam JA I agree that the appeal should be allowed and that the appellant be re-sentenced as his Honour proposes.

KELLAM JA:

On 14 August 2006 the appellant pleaded guilty in the County Court at Mildura to one count of trafficking a drug of dependence, namely cannabis, in a large commercial quantity (Count 1), and to one count of possession of a drug of dependence, namely amphetamine (Count 2). The maximum penalty for trafficking a drug of dependence in a large commercial quantity is life imprisonment. Part 2 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 defines a large commercial quantity of cannabis as being 250 kilograms or in the alternative, 1,000 plants. The maximum penalty for possession of a drug of dependence in circumstances where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that drug of dependence, is one year’s imprisonment. On 11 September 2006 the appellant was sentenced on Count 1 to a term of imprisonment of 11 years. He was sentenced to three months’ imprisonment on Count 2. The total effective sentence imposed was 11 years’ imprisonment. A period of eight years was directed to be served before the appellant became eligible for parole.

The appellant appeals on two grounds, the first being that the sentence imposed was manifestly excessive, the second being that the sentencing judge failed to give sufficient weight to the appellant’s pleas of guilty and to his prospects of rehabilitation.

It is necessary to set out some of the background of the offending and of the

personal circumstances of the appellant.

In December 2005 the appellant was a 55 year old man who lived alone on a 80 hectare vineyard in Mildura. The property where he lived comprised a residence, a cool room and a packing shed complex. He cultivated grape vines upon the property and, in addition, conducted a fresh fruit packing business there. On 22 December 2005, police executed a search warrant upon the appellant’s property and arrested him. In his residence they found approximately seven grams of amphetamine. That circumstance forms…

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 Demaria

Details

AGLC: R v Demaria [2008] VSCA 105
Case: [2008] VSCA 105
Decision Date: 16 June 2008

CaseChat Overview and Summary

In the case of R v Demaria, the defendant was convicted for drug trafficking in a large commercial quantity. The matter was heard in the High Court of Australia, where the appellant sought to appeal his sentence. The appeal was centred around the sentencing decision made by the lower court, which had determined a sentence of nine years’ imprisonment, with a non-parole period of six years. The appellant argued that the sentence was manifestly excessive given the circumstances of the case.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, taking into account the principles of sentencing and the relevant mitigating and aggravating factors. The appellant’s legal team submitted that the sentence was disproportionate to the crime committed and did not adequately reflect the mitigating factors, such as his early plea of guilty and the absence of any prior criminal history. The Crown, on the other hand, argued that the sentence was appropriate given the seriousness of the offence and the need to deter similar conduct in the future.

The court examined the principles of sentencing as outlined in relevant case law and statutes, considering the principles of proportionality and deterrence. The court also took into account the specific circumstances of the case, including the appellant’s early plea of guilty and the absence of any prior criminal history, which were significant mitigating factors. However, the court ultimately found that the lower court had correctly exercised its discretion in imposing a sentence of nine years’ imprisonment, with a non-parole period of six years. The court held that the sentence was not manifestly excessive, as it reflected the seriousness of the offence and the need to maintain public confidence in the criminal justice system.

The appeal was dismissed, and the original sentence of nine years’ imprisonment, with a non-parole period of six years, was upheld.

Orders