The Queen v Cacopardo[1997] QCA 88

COURT OF APPEAL

DAVIES JA

McPHERSON JA

WHITE J

CA No  21 of 1997

CA No 560 of 1996

THE QUEEN

v.

DAVID GLENN CACOPARDO

and

CA No  20 of 1997

CA No 559 of 1996

THE QUEEN

v.

EMELIO CACOPARDO

and

CA No 1 of 1997

CA No 19 of 1997

THE QUEEN

v.

ANTONIO D'ORTONA Applicant

CA No 19 of 1997

THE QUEEN

v.

ANTONIO D'ORTONA Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 02/04/97

JUDGMENT

DAVIES JA:  These are six matters which because they are related were heard together by this Court by consent. The first two are appeals against conviction by Emelio Cacopardo and David Cacopardo, a father and son.

Each was convicted of trafficking in cannabis sativa and two counts of producing cannabis sativa. Emelio was also convicted on three counts of supplying cannabis sativa and David on one count of supplying cannabis sativa. Emelio was sentenced to an effective term of eight years' imprisonment, that being the sentence imposed for trafficking and David was sentenced to an effective term of five years' imprisonment, that being the sentence imposed on him for trafficking.

The third and fourth matters are appeals by the Attorney-General against each of those sentences. The fifth and sixth matters are appeals against a sentence of eight years' imprisonment with a three and a half year non-parole period imposed on Antonia D'Ortona for trafficking in cannabis and money laundering and an application for leave by D'Ortona to appeal against that sentence. D'Ortona pleaded guilty to the offence of trafficking with which the Cacopardos were charged and convicted.

The appeals against conviction are, in each case, on the ground that the learned trial Judge was wrong in failing to leave to the jury a defence based on section 31(1)(c) of the Criminal Code. Section 31 relevantly provides:

(1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say -

...

(c) When the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person's presence;

(d) When the person does or omits to do the act in order to save himself or herself from immediate death or grievous bodily harm threatened to be inflicted on the person by some person actually present and in a position to execute the threats, and believing unable otherwise to escape the carrying of the threats into execution.

(2) But this protection does not extend ... to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.

The prosecution case which was largely unchallenged was to the following effect. Philip Campagnolo who owned a 500 acre property on which he grew bananas and ran cattle was approached by a man called Mavridoglu, known as 'Alex the Greek', who suggested to him the growing of marijuana.

He was accompanied by some other men who included, at least, Emelio Cacopardo. Campagnolo agreed and a few weeks later the Cacopardos came to the farm and discussed with him where the marijuana would be grown and what his share of the profits would be. They later returned to plant the seeds and stayed two and a half to three weeks.

The first planting was a failure but a later planting was successful, the operation being supervised by the Cacopardos. Later D'Ortona was engaged to supervise the growing of the crop so that the Cacopardos could leave. Nevertheless, whilst D'Ortona was there Emelio Cacopardo returned several times to look at the crop in order to see how it was developing. Sometimes David accompanied him.

The cannabis was harvested, dried, placed in bags and transported away. It involved over 6,000 plants and about 3,000 kilograms of marijuana was sold. The gross return was $1.2 million and the Cacopardos each received $200,000. None of this was seriously disputed by the Cacopardos at the trial. Their defence was that they had been threatened by a man called Bercolli and a man known only as Frank who Emelio Cacopardo suspected was a member of the Mafia. He was, he said, initially threatened with death if he did not participate in the venture and later he was told that his wife and son would also be killed if he did not participate.

For this reason he said he participated and involved his son in the venture and David Cacopardo said he took part in the venture because of the threat which was conveyed to him by his father.

The learned Judge directed the jury in terms of section 31(1)(d) in respect of some of the charges and no complaint is made about that direction. However, His Honour after hearing the argument ruled that a defence under section 31(1)(c) was not available and refused to direct in terms of that section. The argument advanced to the learned trial Judge and to this Court was that to comply with the request to be involved in order to avoid violence threatened to him was, in each case, an act reasonably necessary in order to resist that violence.

In other words, to succumb to the threat is to resist it.

The learned trial Judge said that section 31(1)(c) and section 31(1)(d) deal with two antithetical matters. Section 31(1)(c) deals, he said, with the situation where a person resists threatened, actual and unlawful violence. Section 31(1)(d) deals with the position where a person succumbs to a threat made and complies with it in order to avoid its execution.

That seems to me plainly to be correct. One cannot resist violence by succumbing to it. To submit, or succumb, is the antonym of to resist. There is, in my view, therefore no substance in this ground of appeal. I should add that the respondent advanced other reasons why this ground must fail,  one of them relying on the words which I have quoted from subsection 2, an involvement at least by Emelio Cacopardo in what may have been an unlawful association before any alleged threats were made. However, it is unnecessary, in my view, to deal with these other matters and the appeals against conviction should each be dismissed.

Emelio Cacopardo is 58 years of age having been born on 8 February 1939 and David is 32 having been born on 12 August 1964. Each has previously been convicted of drug offences. Both were convicted in August 1984 for cultivating marijuana and Emelio also of possession. On that occasion Emelio was sentenced to five years' imprisonment with a recommendation for parole after two years and David was sentenced to three years' imprisonment with a recommendation after one year and in November 1984 Emelio was, again, convicted of producing a dangerous drug for which he was sentenced to two years' imprisonment.

It is plain that Emelio was involved in this operation from its outset and played a substantial role in the selection of the appropriate site and the supervision of the plantation. However, it may be inferred that Bercolli was in charge of that part of the operation which involved the organisation and sale of the cannabis.

David Cacopardo was at a lower level than his father. He became involved because of his father and his principal role appeared to be tending the crops, participating in harvesting, and some transportation and hiring of vehicles. There is no doubt that this was a very substantial operation. The amounts of cannabis and especially the amount of money involved established this. Moreover, it is a case in which both general and specific deterrence was an important factor. There do not appear to be any mitigating factors.

It was submitted to the Attorney that the sentence imposed on each of the respondents was below the proper sentencing range and that the learned sentencing Judge failed to adequately reflect the gravity of the offences or to take into account sufficiently the aspects of personal and general deterrence.

A large number of sentences were referred to us some by way of schedule. However, that schedule of sentences which was produced by the Attorney shows, in my view, that the sentences imposed here were within the range of a sound sentencing discretion. In particular, Romeo and Zucchelli (CA Nos. 352 and 371 of 1994, 4 November 1994) and Sergi Trimbole and Zucchelli (CA Nos. 49, 50 and 51 of 1996, 26 April 1996) in my view show that the sentences imposed here were within the range of a sound sentencing discretion.

Nor did those sentences, in my view, lack parity with those imposed on Campagnolo or Mavridoglu which were referred to us. I would, in each case, dismiss the Attorney's appeal against sentence.

D'Ortona pleaded guilty in the Supreme Court on 19 December 1995 to trafficking and money laundering. He was sentenced to eight years' imprisonment with a non-parole period of three and a half years on the first of those and six years' imprisonment on the second, the sentences to be served concurrently. He is 64 years of age, having been born on 13 January 1933.

He has a substantial criminal history over a period of more than 30 years. During that period he was convicted on 16 separate occasions, almost all involving offences of dishonesty. Some indication of the magnitude of his criminal conduct over that period should be given.

He had seven offences of house breaking, 26 of breaking and entering, two of attempted house breaking, four of being unlawfully on premises, two of possession of house breaking implements, one of unlawful possession, one of possession of tainted property, nine of stealing or receiving, one of being found in a common gaming house, one of breach of parole and one of being unlawfully at large. He was imprisoned on 13 occasions for terms of imprisonment up to six years.

The trafficking was, as I have said, the offence of which the Cacopardos were also convicted. D'Ortona also received $200,000 from the proceeds of the sale of the crop. The money laundering involved an attempt by D'Ortona to conceal the proceeds of his illegal activity by giving associates cash in return for personal cheques which were then converted into bank cheques. He was rightly sentenced, as one of the principal offenders, in equal degree with Emelio Cacopardo.

Immediately after this operation he and one of the other original partners commenced upon the growing of a second crop, again, on a substantial scale. The farm on which the crop was growing was raided by police before that crop was harvested. It is true that the respondent pleaded guilty but this took place after protracted negotiations. His plea seems to be more an acceptance of the strength of the case against him than any indication of remorse.

To a very large extent this appeal by the Attorney against sentence depended on the success of the Attorney's appeal against sentence in respect of the Cacopardos. It was submitted that their sentences were artificially low and that this consequently distorted the sentencing process for this respondent. However, as I have already indicated, I think that their sentences were within the appropriate range for the offences of which they were convicted. It follows, in my view, that so was this sentence.

On the other hand, the respondent was entitled to some mitigation of sentence because of his plea of guilty thus saving the cost of what would have been a long and expensive trial. The sentence imposed therefore, in my view, was within the range of a sound sentencing discretion and was also, as I think was accepted by the appellant, appropriate in relation to those imposed on the Cacopardos. It follows, in my view, that the Attorney's appeal should be dismissed and so also should the application by D'Ortona for leave to appeal against that sentence.

McPHERSON JA:  I agree with the reasons given by Justice Davies and with the orders he has proposed.

WHITE J:  I agree also.

McPHERSON JA:  The orders are as follows:

The appeals by Emelio and David Cacopardo against their convictions are dismissed. The Attorney-General's appeals against sentence are dismissed. The application by D'Ortona for leave to appeal against sentence is refused.