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Azzopardi v R

Azzopardi v R

Case [2019] NSWCCA 306 20 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Azzopardi v R [2019] NSWCCA 306
Hearing dates: 25 October 2019
Decision date: 20 December 2019
Before: Bathurst CJ at [1];
Fullerton J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence dismissed.

Catchwords: CRIME – application for leave to appeal against sentence – drug supply offences – whether error to reject applicant’s evidence of no financial reward for supplies – consideration of correct approach to asserted errors of fact finding on sentence – rejection of applicant’s evidence soundly based on available inferences and well open to be made – whether error in misapplication of reasoning in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 – consideration of non-custodial sentence not available where sentence of imprisonment required and length of sentence set at 5 years – whether sentence was manifestly excessive – sentence not unreasonable or plainly unjust
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 68(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases Cited: AB v R [2014] NSWCCA 339
Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
EF v R [2015] NSWCCA 36
Gibson v R [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v O'Donoghue (1988) 34 A Crim R 397
R v Peter Francis Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
Robertson v R [2017] NSWCCA 205
TH v R [2019] NSWCCA 184
Yin v R [2019] NSWCCA 217
Category: Principal judgment
Parties: Joseph Charles Azzopardi (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr J Stratton SC with Mr B Vasic (Applicant)
Mr D Patch (Crown)
Solicitors:
V L Macri Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/363736
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

31 October 2018

Before:

Sweeney DCJ

File Number(s):

2014/363736

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Azzopardi (the applicant) applied for leave to appeal against his sentence for drug supply offences. The offences were detected during the course of a controlled police operation using an undercover officer. The applicant had pleaded guilty to three offences of supply methylamphetamine in varying quantities from 82g (count 2), 92.29g (79.9g + 4.07g + 8.32g) (count 3) to 138.94g (count 1), and asked that an offence of supplying amphetamine (61.49g) be taken into account on a Form 1. His strong subjective case had consisted of testimonials from work colleagues, family, and friends. During the sentencing hearing, the applicant gave evidence that he was simply “moving gear” by dropping bags of drugs off to a man called Mr Malouf in order to assist his brother-in-law as a favour, for no monetary reward. The sentencing judge rejected the applicant’s account…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azzopardi v R

Details

AGLC: Azzopardi v The Queen [2019] NSWCCA 306
Case: [2019] NSWCCA 306
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of Azzopardi v R, the applicant sought leave to appeal against his sentence for drug supply offences. The primary issue before the court was whether the sentencing judge erred by rejecting the applicant’s evidence that he received no financial reward for his drug supply activities. The court was also required to determine if the sentencing judge misapplied the reasoning from the case of Parente v R. Additionally, the court considered whether the sentence of five years imprisonment was manifestly excessive or otherwise unreasonable.

The court examined the approach to factual errors in sentencing, noting that the rejection of the applicant’s evidence was soundly based on the available inferences and well open to be made by the sentencing judge. The court found that the sentencing judge had correctly applied the principles from Parente v R, and that the sentence was not manifestly excessive. The court held that the non-custodial sentence was not an available option given the nature of the offence and the requirement for a custodial sentence. Ultimately, the court determined that the sentence was not unreasonable or plainly unjust, and dismissed the application for leave to appeal.

Orders