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R v Franco

R v Franco

Case [2006] VSCA 302 20 December 2006

Possession of Prohibited Import

Duress & Necessity

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

Nos. 311 of 2005
320 of 2004
319 of 2004
250 of 2005
249 of 2005

THE QUEEN
	v.
JESSIE LUKE FRANCO, TONY ILIJA CRNAC, PAUL PRATICO, ROBERT CETRANGOLO and DAVID CIAMPOLI

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JUDGES:	MAXWELL, P., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2006, 1 August 2006
DATE OF JUDGMENT:	20 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 302	2^nd Revision, 31 January 2007

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CRIMINAL LAW – Possession of prohibited import, being not less than a commercial quantity of cannabis resin – Statutory defence if accused did not know of importation – Whether defence open on the evidence – Whether deliberate decision by defence counsel not to argue defence – Whether directions on possession adequate – Customs Act 1901 s.233B(1)(c), (1A).

CRIMINAL LAW – Trial – Defence of duress – Direction to jury to scrutinise carefully accused’s evidence about threats – Whether direction impugned accused as witnesses – Whether direction required jury to treat accused as “suspect witnesses” – Robinson v R (1994) 180 CLR 531 – Whether judge’s refusal to allow naming of “true targets” of police operation emasculated defence.

CRIMINAL LAW – Sentencing – Whether prior convictions relevant to failed defence of duress – Whether failure of defence relevant to sentencing – Discretion reopened – Parity – Whether culpability of one co-accused greater than that of others.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Champion, S.C. with Mr M. Cahill	Ms J. McGillivray, Solicitor for the Commonwealth Director of Public Prosecutions
For the Applicant (Franco)	Mr L.C. Carter	Ms S. Cameron
For the Applicant (Crnac)	Mr M.J. Croucher	Causovski Lawyers
For the Applicant (Pratico)	Mr P.F. Tehan, Q.C.	Mr Rob Melasecca
For the Applicant (Cetrangolo)	Mr G.F. Meredith	Victoria Legal Aid
For the Applicant (Ciampoli)	Mr C.B. Boyce	Victoria Legal Aid

MAXWELL, P.:

The Court has before it applications by five men, to whom we shall refer respectively as Franco, Crnac, Pratico, Cetrangolo and Ciampoli. Each of the five was convicted by a County Court jury on 24 September 2004 of an offence under (the former) paragraph 233B(1)(c) of the Customs Act1901 (Cth),[1] that is, of having had in his possession –

“without reasonable excuse, ... prohibited imports to which s.233B of the Act applies, namely, narcotic goods consisting of not less than a commercial quantity of the narcotic substance cannabis resin which had been imported into Australia in contravention of the Act.”

[1]Corresponding provisions are now in Part 9.1 of the Criminal Code (Cth).

Franco was sentenced to nine years’ imprisonment with a non-parole period of six years. Each of the other four was sentenced to seven and a half years’ imprisonment with a non-parole period of five years.

Crnac and Pratico seek leave to appeal against both conviction and sentence. Franco, Cetrangolo and Ciampoli seek leave to appeal only in respect of sentence. Both Cetrangolo and Ciampoli originally filed notices of application for leave to appeal against conviction but…

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 Franco

Details

AGLC: R v Franco [2006] VSCA 302
Case: [2006] VSCA 302
Decision Date: 20 December 2006

CaseChat Overview and Summary

In the case of R v Franco, the appellant was charged with possession of a prohibited import, specifically a quantity of cannabis resin exceeding a commercial amount, contrary to the Customs Act 1901. The central issues before the court involved whether the statutory defence under section 233B(1A) of the Act, which exempts individuals who did not know of the importation from liability, was applicable based on the presented evidence, and whether the defence counsel's decision not to argue this defence was deliberate. Additionally, the court had to determine if the judge's directions to the jury regarding possession were adequate.

The court analysed whether the defence counsel's strategic decision not to argue the statutory defence was a deliberate choice or if it stemmed from an oversight. The court also considered whether the directions provided to the jury about the possession of the prohibited import were sufficient to allow them to consider all aspects of the defence. The court examined the evidence to determine if it supported the statutory defence and whether the jury was properly guided on this matter. The court also scrutinised the defence of duress, examining the judge's direction to the jury to carefully scrutinise the accused's evidence about threats and whether this direction unfairly cast the accused as suspect witnesses. Furthermore, the court deliberated on whether the judge's refusal to allow the naming of the "true targets" of the police operation had a significant impact on the effectiveness of the duress defence.

The court found that the statutory defence was not adequately argued by defence counsel, and the judge's directions to the jury regarding possession were deemed adequate. Regarding the duress defence, the court determined that the judge's direction to the jury did not impugn the accused as witnesses but required them to carefully consider the evidence of duress. The court also concluded that the judge's refusal to allow the naming of the "true targets" did not emasculate the defence of duress. In sentencing, the court considered the relevance of prior convictions and the failure of the duress defence, ultimately determining that the culpability of one co-accused was greater than that of the others, leading to a variation in sentencing.

The court ordered a variation in the sentencing of the appellant, taking into account the relative culpability of the co-accused and other relevant factors.

Orders