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 | 2nd 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…
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- AGLC
- R v Franco [2006] VSCA 302
- Case
- [2006] VSCA 302
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Legal Principle Established
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