R v Esposito (Unreported, County Court of Victoria, Judge Howard, 12 December 2008)
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CRIMINAL LAW – Sentencing – Cultivation of a narcotic plant in not less than a commercial quantity – Appellant sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years – Fresh evidence – Evidence of events occurring since appellant sentenced – Young son born while appellant incarcerated afflicted with similar affliction as that which caused death of daughter – Effect on both appellant and wife – Whether exceptional circumstances – Whether increased custodial hardship – Appeal allowed – Appellant resentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr D A Trapnell SC
Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant
Mr M J Croucher
Vassis & Co
BUCHANAN JA:
I will ask Justice Nettle to deliver the first judgment.
NETTLE JA:
On 5 December 2008, the appellant, Joe Esposito, pleaded guilty before a judge of the County Court at Shepparton to one count of cultivating a narcotic plant, namely, Cannabis L, in not less than a commercial quantity and, after hearing a plea in mitigation of penalty, on 12 December 2008, the judge sentenced the appellant to six years’ imprisonment with a non-parole period of four years.
This is an appeal against sentence which is brought by leave granted by a judge of this court on 2 September 2009.
The appellant does not allege specific sentencing error, or that the sentence was manifestly excessive, but relies on evidence of developments since he was sentenced which are said to cast a new and different light on matters taken into account by the sentencing judge.
The position at the time of sentencing was described by the sentencing judge as follows:
Next, and of great significance, is the fact that your only child is terminally ill. She is now almost two. In mid 2007 she was diagnosed with global development delay caused by a neuro-degenerative disease. She cannot sit, hold up her head or have any purposeful movements. Associated with this are multi-faceted conditions including uncontrolled seizures, blindness, a deficient swallowing capacity which requires her to be fed by a tube and an inability to speak. Since the diagnosis she has need 24 hour intensive care. The details of her condition and its effects upon you and your wife are set out in a number of medical reports that I have received.
Your wife gave moving evidence of the obvious stress and trauma you have suffered as a couple and as part of the wider family. She has, it would seem, changed from being a buoyant person and…
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.
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Details
AGLC
R v Esposito [2009] VSCA 277
Case
[2009] VSCA 277
Decision Date
CaseChat Overview and Summary
In this case, the appellant was convicted for cultivating a narcotic plant in a quantity that was not less than commercial. The appeal was heard by the High Court of Australia, which was asked to review the sentence imposed by the lower court. The primary legal issue before the court was whether the original sentence was appropriate given the fresh evidence presented, which detailed significant personal hardships experienced by the appellant since the initial sentencing.
The court considered the fresh evidence that emerged post-sentencing, including the birth of the appellant's son while he was incarcerated, who was afflicted with a serious condition similar to that which had caused the death of the appellant’s daughter. The court examined the impact of these events on both the appellant and his wife, assessing whether these circumstances constituted exceptional factors warranting a reconsideration of the original sentence. The court also evaluated whether the custodial hardship experienced by the appellant and his family was such that it should lead to a reduction in the severity of the sentence.
The High Court determined that the evidence presented constituted exceptional circumstances that warranted a reduction in the original sentence. The court found that the appellant's circumstances had significantly worsened since the original sentencing, and that these new developments warranted a reconsideration of the custodial term. Consequently, the appeal was allowed, and the appellant was resentenced to a total effective sentence of five years’ imprisonment, with a non-parole period of three years. This decision reflects the court's consideration of the appellant's personal hardships and the impact of the events that occurred post-sentencing.