R v Costi[2001] QCA 404

COURT OF APPEAL

WILLIAMS JA

CHESTERMAN J

MULLINS J

CA No 144 of 2001

THE QUEEN

v.

PHEDON COSTI

BRISBANE

DATE 25/09/2001

JUDGMENT

WILLIAMS JA: The applicant pleaded guilty on 21 May 2001 to one count of accessory after the fact to manslaughter, and one count production of cannabis with a circumstance of aggravation. He was also dealt with at the time for the summary offence of possession of tainted property.

It appears that the applicant, his brother-in-law, a man named Ioannu, and another man by the name of Theodoridis commenced a marijuana cultivating project in the year 1999.

At the time the police ultimately raided the plantation they found 1,341 cannabis plants which were growing in 300 separate plots.  The use of the separate plots enabled the marijuana plants to be concealed by vegetation. The plants were tied, staked and pruned. 

It appears from all the material before the Court that each of those three persons was involved in labouring on the plantation and that included the work I have just referred to of staking and pruning and also fertilising, culling the male plants and disguising the plants. A statement was made to the effect that on occasions up to 17 hours a day was worked on the cultivation. The three were, it appears, to share the profits equally.

The learned sentencing Judge described the plantation as a large sophisticated operation and he said that the three had engaged in the venture for profit. That is sufficient to indicate the evidence relating to the offence of production with a circumstances of aggravation.

What adds significantly in my view to the overall criminality of the applicant's conduct are the events which resulted in his pleading guilty to the offence of accessory after the fact to manslaughter.

It appears that there was some falling out between Theodoridis and the other two. That resulted in Theodoridis leaving the plantation, and subsequently returning with a man named Smerdon.  It appears that when Smerdon arrived on the plantation he was armed with a knife and a gun.

When the applicant and Ioannu saw Smerdon and Theodoridis arrive Ioannu proceeded to get the shot gun which was kept on the plantation. There was then a confrontation between the two groups; Smerdon apparently put on the ground both the knife and the gun that he had.  Thereafter the shot gun discharged and Smerdon fell to the ground wounded.

The Crown case against both Ioannu and the applicant proceeded on the basis that the gun discharged through criminal negligence on the part of Ioannu. In consequence he was dealt with for manslaughter.

Shortly after the shooting incident Theodoridis took the injured Smerdon from the scene seeking medical attention. The applicant drove off with his brother-in-law, Ioannu, heading for New South Wales in the motor vehicle with five kilograms of cannabis also on board.

It is clear that the applicant knew that Smerdon had been shot and was either dead or dying when he left the scene.  It is in those circumstances that he pleaded guilty to the offence of accessory after the fact to manslaughter.

The learned sentencing Judge accepted that the pleas of guilty were timely and indicative of some remorse. He discussed the sentencing options of either imposing concurrent sentences, or cumulative sentences for the offences.

He indicated that ordinarily cumulative sentences would have been the preferable procedure to adopt.  But in the end he decided to opt for concurrent sentences.

In determining what was the appropriate sentence to impose he took into account the fact that in 1992 the applicant had been convicted in the Melbourne County Court of trafficking in cannabis and had been sentenced to three years imprisonment with a minimum parole period of 12 months.

Apart from that offence the applicant had what could be referred to as a minor criminal history. But the fact that he had been previously convicted for trafficking in cannabis called for a heavier sentence than may have been imposed on a person without a prior similar conviction.

Indeed, the sentence which was imposed by the learned sentencing Judge was described by that Judge as lenient in view of the prior conviction.

The matter which was relied on heavily before the sentencing Judge, and was the major submission by counsel for the applicant today, was the applicant's family situation.

The two youngest children in the family suffer from a neuro-degenerative disorder and that is a serious debilitating illness which in all probability will have a marked effect on the life expectancy of those two children. The applicant is not married to the mother of those children but they have been living in what the material describes as a marriage- like relationship for a number of years. 

The mother has now an arthritic back condition which apparently makes it difficult for her to care for the children.  In consequence at the time of sentence the applicant was described as the carer of the young children. There are six children in all of the relationship ranging in age from about 15 years to about one year.

Based on those considerations it was submitted that the learned trial Judge failed to give due weight to the impact on the applicant's family situation in imposing the sentence.  In the course of his sentencing remarks (it must be borne in mind that at the same time the Judge was dealing with the applicant and Ioannu) he said:

"In both your cases it will be expected that your families may suffer considerably as a consequence of your confinement, but that is just one of the considerations to be taken into account in forming a view about what the circumstances considered as a whole require."

The Court of Criminal Appeal in the matter of Tilley (1991) 53 Australian Criminal Reports 1, dealt with the relevance of family circumstances when a court is considering the appropriate penalty to impose where a serious offence has been committed. I would indicate without quoting the passage my agreement with what was said by Justice Thomas in that case at pages 3 and 4.

Theodoridis had pleaded guilty to cultivation of cannabis prior to the applicant pleading guilty.  In Theodoridis' sentence the Crown indicated to the sentencing Judge that a sentence of four years was appropriate. That was reduced to three years because of the plea of guilty and because of the cooperation that Theodoridis indicated he would give to prosecuting authorities.

Ioannu was sentenced to eight years for the manslaughter of Smerdon. He was then sentenced to three years for the cultivation. I should say that neither Ioannu or Theodoridis had a prior conviction for the cultivation of cannabis. In so far as Ioannu is concerned the three years for the cultivation is not significant for comparative purposes because one must have regard to the head sentence of eight years as indicative of the appropriate sentence given the overall criminality of his conduct.

Here the learned sentencing Judge, after referring to all the matters I have mentioned, indicated that a sentence of five years' imprisonment would ordinarily reflect the overall criminality of the applicant's conduct. That was then reduced to four years because of the plea of guilty and the other relevant circumstances. 

That sentence of four years was imposed with respect to the production of cannabis. A sentence of 12 months was imposed with respect to the offence of being an accessory after the fact to manslaughter and that sentence was made concurrent.

In all the circumstances it appears to me that a total sentence of five years would be in range for overall criminality of this kind.  I do not regard five years as being at the top of the range. Discounting that to four years for the plea of guilty was, in my view, appropriate. In my view that also takes into account, to the extent that it was legitimate to do so, the impact of the sentence on the applicant's family.

In all the circumstances, I am not persuaded that the sentences in fact imposed were manifestly excessive. I have had regard to the cases to which reference was made in the course of argument but all of them can, in my view, be distinguished.  In the circumstances, I would refuse the application for leave to appeal against sentence.

CHESTERMAN J: I agree that the application should be refused for the reasons given by the presiding Judge.

MULLINS J: I also agree.

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