R v Scarfo - [2002] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 307 of 2001

THE QUEEN
	v.
SALVATORE SCARFO

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JUDGES:	PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2002
DATE OF JUDGMENT:	2 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 56

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CRIMINAL LAW – Application out of time to appeal conviction and sentence – Trafficking in a commercial quantity of cannabis L – Plea of guilty – No exceptional circumstances for change of plea – Evidence supported plea of guilty.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K.E. Judd	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C.	C & H Lawyers

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of O’Bryan, A.J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

PHILLIPS, J.A.:

I too agree with Mr. Justice O’Bryan.

O'BRYAN, A.J.A.:

Between 7 July and 28 December 2000 the applicant and four other persons were conducting a business trafficking a commercial quantity of cannabis at 13 Salisbury Street, Coburg. The applicant was also engaged in cultivating cannabis at his home at 83 Middle Street, Glenroy between 1 September and 28 December 2000. At the premises in Coburg and Glenroy cannabis plants were hydroponically grown using electricity stolen from the supplier.

The prosecutions of the applicant and his four partners followed a police investigation into the trafficking of cannabis which culminated in a raid of the premises in Coburg and Glenroy on 28 December 2000 and seizure of cannabis plants and hydroponic materials from each house. Following the arrest of the applicant he made and signed a statement on 30 December in which he made detailed admissions to growing 45-50 plants of cannabis from seeds at Coburg in August and cutting the first crop about September. He further admitted to growing a second crop before the first crop was harvested and to cutting the second crop comprising 45-50 plants about five weeks after the first crop was cut. He further admitted to growing a third crop before the second crop was harvested.

When the police raided the Coburg premises they seized 36 plants in the garage and four plastic bags containing cannabis in the house. The applicant said in

his statement: “While one crop was growing another lot of seedlings would be started so that we always had two crops growing at one time” and “All up we grew probably about 150 plants at Salisbury St.” He made the confessional statement at his own instigation because he wanted to tell the truth.

The applicant was initially charged with six offences and committed for trial on 5 June 2001 in the Magistrates’ Court at Melbourne. The first offence was cultivating cannabis at Glenroy, the second was cultivating cannabis at Coburg, the third was trafficking cannabis at Coburg between 7 July 2000 and 28 September 2000, the fourth was possession of cannabis at Glenroy, the…

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 Scarfo

Details

AGLC: R v Scarfo [2002] VSCA 56
Case: [2002] VSCA 56
Decision Date: 2 May 2002

CaseChat Overview and Summary

The case of R v Scarfo involved the appellant, Scarfo, appealing against his conviction and sentence for trafficking in a commercial quantity of cannabis. Scarfo had pleaded guilty and was subsequently sentenced. The application to appeal was made out of time, and Scarfo sought to challenge the conviction and sentence on the basis that there were exceptional circumstances warranting a change of plea. The court was required to determine whether there were exceptional circumstances that justified permitting the out-of-time appeal, and whether the evidence supported the plea of guilty.

The court considered whether there were exceptional circumstances that warranted permitting the out-of-time appeal. It was noted that Scarfo had pleaded guilty to the charge of trafficking in a commercial quantity of cannabis and that the evidence supported this plea. The court found that Scarfo had failed to demonstrate any exceptional circumstances that would warrant a change of plea. The evidence against Scarfo included his admissions to law enforcement, the quantity of drugs found, and other incriminating evidence. The court held that the evidence was compelling and Scarfo’s plea of guilty was well-founded. Consequently, the application to appeal out of time was dismissed.

Given the compelling evidence and the absence of exceptional circumstances, the appeal was dismissed. The court confirmed that the conviction and sentence imposed on Scarfo were appropriate and just. The court emphasised the importance of the timeliness of appeals and the principle that exceptional circumstances must be demonstrated to permit an out-of-time appeal. The decision underscored the weight given to guilty pleas supported by substantial evidence.

The final orders of the court were that the appeal be dismissed and that Scarfo remain subject to the original conviction and sentence. The court reiterated the significance of the evidence and the need for any applications to appeal to be made within the prescribed time limits, unless exceptional circumstances are clearly established.

Orders