R v Riscuta - [2018] QCA 177

[2018] QCA 177

COURT OF APPEAL

SOFRONOFF P HENRY J BROWN J

CA No 293 of 2017
SC No 492 of 2012

THE QUEEN

RISCUTA, Doru Applicant

BRISBANE

THURSDAY, 2 AUGUST 2018 JUDGMENT

SOFRONOFF P: This is an application for leave to appeal against a sentence. By an indictment presented on 28 September 2012, the applicant was charged with one count of trafficking in the dangerous drug cocaine. By the same indictment, one Rosario Baffi was also charged with trafficking in cocaine, as well as four counts of possession of drugs, cash being the proceeds of trafficking and possession of drug trafficking equipment. On 30 May 2013, Baffi pleaded guilty to all charges and Justice Mullins sentenced him to imprisonment for nine years and six months and fixed a parole eligibility date of 29 July 2016. Convictions were recorded on the other charges but no further penalty was imposed.

On 31 July 2013, the applicant, who was on bail, failed to appear when required. On 15 August 2013, he again failed to appear and a warrant was issued for his arrest. He finally surrendered

himself on April 2015. On 29 September 2017, the applicant pleaded guilty and Justice Applegarth sentenced him to 10 years imprisonment which carried an automatic serious violent offender declaration. He now seeks leave to appeal that sentence and submits that the sentencing judge erred in imposing a sentence that was excessive.

The applicant has a significant criminal history. In New South Wales in August 1984 he was convicted of supplying and possessing heroin. He was released on condition that he be of good behaviour for three years. He failed to meet that condition. On November 1985 he was convicted of supplying heroin and was sentenced to six months imprisonment. In May 1989 he was convicted in Victoria of trafficking and sentenced to eight years imprisonment to be released on parole in February 1992. In September 1994 he was convicted of trafficking in heroin and sentenced to two years to be suspended for two years. On 12 April 2002 he was again convicted in New South Wales of supplying heroin and sentenced to eight years imprisonment with a non-parole period of six years. He was then released on parole and while still on parole committed this offence for which he is now imprisoned.

In summary, the applicant was given the opportunity of a good behaviour bond in 1984 and he breached it. He then served six months imprisonment. Within four years he had reoffended and was sentenced to eight years imprisonment. Within two years of his release he had reoffended and was sentenced to two years imprisonment, wholly suspended. Within six years he was imprisoned again and released on parole and while on parole he committed this offence. After being arrested for this offence and charged he showed no contrition but instead absconded and was at large for two years.

As to the current offence, the applicant was detected supplying cocaine on multiple occasions. One of…

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 Riscuta

Details

AGLC: R v Riscuta [2018] QCA 177
Case: [2018] QCA 177
Decision Date: 2 AUGUST 2018

CaseChat Overview and Summary

The case of R v Riscuta involved the applicant, Doru Riscuta, who was appealing against his sentence for trafficking in dangerous drugs, specifically cocaine. The applicant had a substantial criminal history, with multiple convictions for drug-related offences over a period of several years. He was eventually charged with trafficking in cocaine and pleaded guilty, but only after absconding from bail for two years. The sentencing judge, Justice Applegarth, imposed a sentence of 10 years imprisonment, with an automatic serious violent offender declaration. The applicant sought leave to appeal against this sentence, arguing that it was excessive.

The primary legal issue before the court was whether the sentencing judge erred in imposing a sentence that was considered excessive. The applicant argued that his rehabilitation efforts and guilty plea should have been given more weight, while the Crown submitted that the sentence was appropriate. The court had to consider the relevant aggravating and mitigating factors, including the applicant’s criminal history, the nature and scale of the current offence, and his lack of remorse prior to his guilty plea.

The Court of Appeal found that Justice Applegarth had correctly exercised his discretion in imposing the sentence. The judges considered that the applicant’s significant criminal history and persistent offending, despite lengthy previous sentences, justified a more severe penalty. The court acknowledged the applicant’s efforts at rehabilitation and his guilty plea but found that these mitigating factors did not outweigh the aggravating factors, particularly his extensive history of drug trafficking and failure to be deterred by prior sentences. The Court found no error in the sentencing judge’s approach and dismissed the application for leave to appeal.

The Court of Appeal dismissed the application for leave to appeal against the sentence. The judges unanimously agreed that the sentence was just and appropriate, considering all relevant factors. The applicant’s extensive criminal history and persistent drug trafficking warranted a severe penalty, and the sentence imposed by Justice Applegarth was consistent with similar cases in Queensland.

Orders