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  • {solid} Appeal Determined (QCA)

R v Riscuta

 

[2018] QCA 177

COURT OF APPEAL

SOFRONOFF P

HENRY J

BROWN J

CA No 293 of 2017

SC No 492 of 2012

THE QUEEN

v

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 his customers was Baffi, to whom I have referred. The applicant sold at least 46 ounces to Baffy. This involved the applicant travelling from New South Wales to the Gold Coast on occasion and this was, of course, a breach of his parole order in New South Wales. When his premises were searched, police in Queensland found $28,000 in cash and financial analysis proved that the applicant had a substantial amount of unsourced income which, it is to be inferred, was the revenue from his cocaine trafficking. Baffi, to whom he sold some of his cocaine, was himself a dealer and so the applicant was a significant figure in a drug trafficking system. Justice Applegarth said that the applicant was an accomplished drug trafficker. Having regard to the regularity with which his trafficking was uncovered by police, I would respectfully disagree. He was certainly a persistent drug trafficker and sentences of eight years and six years did not deter him.

There are some mitigating features in this case. The applicant pleaded guilty but this, of course, was a late plea and after he had run away. He is said to have insight into his offending and has taken steps to rehabilitate himself and his Honour appreciated that. That is all to the good but it is, of course, at a very late point in the applicant’s history of trafficking in addictive drugs and it is a development that has occurred long after he should have learned from the successive attempts made by the Courts to deter him.

The applicant was 52 years old when he committed these offences and was certainly old enough to know that what he was doing in spreading addictive drugs into the community was not only criminal but that it was evil. Baffi, who was, to a degree, a co-offender, was sentenced to nine years and six months with a parole eligibility date that would arise after three years and two months. Baffi had pleaded guilty to four other counts associated with this trafficking. Baffi was an addict. The applicant was a cocaine user himself during the period of his offending but his trafficking was on a large scale and well beyond what an addict would need to do in order to stay supplied. The applicant had a bad criminal history, as I have said, and he absconded when he was trusted to be released on bail.

At sentence, the Crown submitted that a sentence of nine and a-half years was appropriate with parole eligibility after six years. The applicant’s counsel agreed with the head sentence but submitted that an appropriate parole eligibility date would be one of five years. The learned sentencing Judge rejected  these  submissions,  as  he  was  entitled  to  do.  It  is  the  duty of a sentencing Judge to impose a just sentence and a Judge is not controlled by the submissions of the prosecutor or defence counsel in arriving at that judgment, nor does an indication by a prosecutor to an accused person about the level of sentence that will be advocated vitiate or impinge upon a plea of guilty made in reliance upon such an indication.

Justice Applegarth took into account all the relevant factors in this case, both the ones in aggravation and the ones in mitigation, including the applicant’s guilty plea and his successful efforts at rehabilitation, but he also rightly took into account the bad criminal history, including a history of offences of the same kind and the failure of lengthy sentences to deter the applicant’s further offending. The applicant’s case was in this way significantly different from Baffi’s case. I see no error in his Honour’s exercise of discretion, which is also consistent with the sentences imposed in Feakes [2009] QCA 376, Abbott [2017] QCA 57 and Markovski [2009] QCA 299. I would dismiss this application.

HENRY J: I agree.

BROWN J: I agree.

SOFRONOFF P: The order of the Court is that the application is dismissed. Adjourn the Court.

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Editorial Notes

  • Published Case Name:

    R v Riscuta

  • Shortened Case Name:

    R v Riscuta

  • MNC:

    [2018] QCA 177

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Henry J, Brown J

  • Date:

    02 Aug 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment SC492/12 (No Citation) 29 Sep 2017 Date of Sentence.
Appeal Determined (QCA) [2018] QCA 177 02 Aug 2018 Application for leave to appeal against sentence refused: Sofronoff P, Henry J, Brown J.

Appeal Status

{solid} Appeal Determined (QCA)