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Court of Criminal Appeal 30 May 2008

Raso v Regina

[2008] NSWCCA 120

Drugs
CRIMINAL LAW WHETHER VERDICT UNREASONABLE WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Raso v Regina [2008] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 30 May 2008
Judge(s): Beazley JA, Barr J, Hoeben J

Background

The appellant was convicted by jury in the District Court of being knowingly concerned in the cultivation of 60 cannabis plants at a residential property in Eastwood between April and August 2003. The property had been purchased by a company controlled by a co-accused, Angus Menniti. When police searched the house in August 2003, they found an extensive indoor cultivation setup across six rooms, with no one present.

The prosecution case rested on fingerprint and DNA evidence linking both the appellant and Menniti to the property and its equipment. The appellant did not give evidence at trial, but called Menniti as a witness. Menniti testified that the cultivation was the work of a tenant named "Peter Deloris," and that any forensic traces were left when he and the appellant visited the house to retrieve tools and had to move equipment during that visit.

The appellant was self-represented on appeal. He challenged both his conviction and the sentence imposed by Coorey DCJ in the District Court.

  • Whether the jury's verdict of guilty was unreasonable, given that the Crown's case rested substantially on circumstantial forensic evidence and Menniti's evidence offered an innocent explanation
  • Whether the sentence imposed was manifestly excessive in all the circumstances
  • Whether the sentencing judge erred in amending the sentence to remove a non-parole period in the appellant's absence

Decision

On the conviction appeal, the Court applied the test from M v The Queen and related High Court authorities: the question was whether it was open to the jury, acting on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. Barr J reviewed the transcript and concluded that the fingerprint evidence was particularly significant. The appellant's prints were found not only on doors and door frames but on items of cultivation equipment that appeared to have been set up specifically for growing cannabis. This evidence, in combination with DNA traces on a shared soft drink bottle, was capable of supporting the Crown's case.

The jury was entitled to reject Menniti's explanation. Barr J found the account of a cash-paying tenant named Deloris, for whom no official records existed, implausible on its face. He also found it implausible that Menniti had formed a near-certain suspicion that cannabis was being cultivated, yet continued to collect rent for two further months. The Court emphasised that the jury had the advantage of seeing and hearing Menniti give evidence, an advantage the Court of Criminal Appeal lacked, and there was no basis to conclude the jury was obliged to accept his account.

On sentence, the District Court had imposed a two-year suspended sentence, taking into account the appellant's serious injuries in a motor vehicle accident after the offending, his resulting orthopaedic disabilities, and his need for assistance with daily tasks. Barr J noted that a suspended sentence might appear lenient given the nature of the offending, but held that no proper complaint could be made that it was manifestly excessive. On the procedural ground regarding the amendment removing the non-parole period, the Court found the correction was required by statute and involved no judicial discretion. The outcome would have been identical had the appellant been present, so no error arose.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence granted, but the appeal dismissed

Key Takeaways

  • Fingerprint evidence found on cultivation equipment, not merely general surfaces, can carry substantial evidential weight when considered alongside other forensic material in a drug cultivation prosecution.
  • Where a jury rejects a witness's explanation for the presence of forensic evidence at a crime scene, the Court of Criminal Appeal will be slow to interfere, particularly where the jury had the benefit of observing the witness firsthand.
  • A trial court's power to amend a sentence to correct a legal error (under s 43 of the Crimes (Sentencing Procedure) Act 1999) can be exercised in a defendant's absence where the correction is mandatory, involves no discretion, and the defendant is subsequently notified of the amended order.
  • Serious post-offending health consequences, including significant orthopaedic disability, can be taken into account as mitigating circumstances at sentencing even where an offender has a substantial prior record including drug supply convictions.
  • In dismissing the conviction appeal, the Court confirmed that the relevant question is not whether the appellate court itself would have convicted, but whether it was open to the jury to reach that verdict on the evidence as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12(3), 43

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen [2002] HCA 53
- Azzopardi v The Queen (2001) 205 CLR 50
- Green v The Queen (1971) 126 CLR 28