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Court of Criminal Appeal 22 July 2008

Tony LICASTRO v R

[2008] NSWCCA 131

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY PRINCIPLE WHETHER APPLICANT LIKELY TO RE OFFEND WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Tony Licastro v R [2008] NSWCCA 131
Court: New South Wales Court of Criminal Appeal
Date: 22 July 2008
Judge(s): McClellan CJ at CL, Simpson J, Hidden J

Background

The applicant was convicted after a judge-alone trial in the District Court of knowingly taking part in the cultivation of not less than the large commercial quantity of cannabis, contrary to the Drug Misuse and Trafficking Act 1985. The offence related to a marijuana plantation discovered in February 2003 at a property in Medowie, where 3,831 cannabis plants were being cultivated using a sophisticated irrigation system, machinery, fertiliser, and on-site accommodation. The sentencing judge described it as an organised, commercially motivated operation with an estimated street value of approximately eight million dollars.

Four men were arrested in connection with the plantation. One co-accused (referred to as GB) pleaded guilty and gave evidence for the prosecution; a second (Lucisano) stood trial alongside the applicant; a third (Pasquale) absconded. The sentencing judge found that the applicant was a principal in the enterprise who had recruited GB and given him instructions, while Lucisano played a significantly lesser role as an aider.

The District Court sentenced the applicant to eight years' imprisonment with a non-parole period of six years. Lucisano received two years with a six-month non-parole period. GB, who pleaded guilty and assisted authorities, received a two-year suspended sentence. The applicant sought leave to appeal against his sentence, not against his conviction.

  • Whether the sentencing judge failed to give sufficient weight to the parity principle, given the substantially lighter sentences received by co-accused GB and Lucisano
  • Whether the sentencing judge erred in failing to find that the applicant was unlikely to re-offend and had good prospects of rehabilitation
  • Whether the sentencing judge erred in taking into account the applicant's prior criminal convictions
  • Whether the sentence of eight years was manifestly excessive

Decision

Parity (Ground 1): The Court found no breach of the parity principle. Parity requires equality in treatment only where there is equality in offending and in subjective circumstances. Neither condition was met here. The applicant was found to be the principal entrepreneur of the operation, whereas Lucisano was a peripheral aider who visited the site only four or five times. Their subjective circumstances also differed markedly: Lucisano was 56 at the time of the offence, had no prior convictions, and was found unlikely to re-offend. The Court held that the disparity was rationally explicable and was not outside the legitimate exercise of the sentencing judge's discretion. Hidden J noted that the disparity was "certainly marked" but ultimately agreed it could not be characterised as impermissible.

Re-offending and Rehabilitation (Grounds 2 and 3): The sentencing judge found that the applicant's continued denial of involvement did not bode well for rehabilitation. The pre-sentence report indicated that further contact with the law was "very likely" without intervention, and the applicant had already failed to complete a rehabilitation programme. The Court rejected the submission that the sentencing judge had overstated the report's effect, finding that "very likely" was a reasonable reading of its terms. No error was established in the judge's assessment of rehabilitation prospects or likelihood of re-offending.

Prior Convictions (Ground 4): The applicant's criminal history included numerous traffic offences, some serious enough to attract custodial sentences, and several drug possession or use offences. The Court found no error in the sentencing judge's treatment of this history.

Manifest Excess (Ground 5): The Court found no basis for concluding the sentence was manifestly excessive. The arguments advanced in support of this ground relied entirely on the propositions raised under the other grounds, all of which were rejected.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle in sentencing requires genuine equality in both the nature of the offending and subjective circumstances before disparity in sentences can be characterised as impermissible. A markedly lighter sentence for a co-accused who played a substantially lesser role does not of itself establish a parity error.
  • In dismissing the ground concerning re-offending, the Court of Criminal Appeal confirmed that a sentencing judge may draw a negative inference about rehabilitation prospects from a convicted person's continued denial of the offending, particularly where a pre-sentence report raises concerns about future contact with the law.
  • Where an offender is found to be the commercial organiser of a drug cultivation enterprise, courts will treat that role as attracting greater culpability than that of labourers or peripheral participants, regardless of any disparity in resulting sentences.
  • No error arises from taking into account a prior criminal history that includes serious traffic offences and earlier drug-related matters, even where those matters are dated.
  • The Court affirmed the observations in R v McKenna [2007] NSWCCA 113 that irrational disparity is required before parity principles require intervention, distinguishing that case on the basis that a rational explanation existed here for the difference in sentences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 27, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Blair [2005] NSWCCA 78; 152 A Crim R 462
- R v McKenna [2007] NSWCCA 113