Legal Research
Cases
Carnese v The Queen

Carnese v The Queen

Case [2009] NTCCA 8 5 June 2009

Type to search within this case.

Carnese v The Queen [2009] NTCCA 8

PARTIES: ROCCO CARNESE

v
THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 11 of 2008
(20726996 and 29720782)

DELIVERED:  5 June 2009
HEARING DATE:  1 June 2009
JUDGMENT OF:  MILDREN, THOMAS AND RILEY JJ
APPEALED FROM:  MARTIN (BR) CJ
CATCHWORDS:

CRIMINAL LAW – APPEAL –DRUG OFFENCES – methandrostenolone – anabolic steroid – whether the recording of convictions was appropriate – sentence manifestly excessive – appeal allowed – convictions set aside – other penalties imposed by sentencing Judge should remain
Cobiac v Liddy (1969) 119 CLR 257; Kelly v R (2000) 10 NTLR 39;

Toohey v Peach (2003) 141 A Crim R 437, followed

Hales v Adams [2005] NTSC 86; Hesseen v Burgoyne[2003] NTSC 47, approved
The Queen v McInerney (1986) 42 SASR 111, applied

Lanham v Brake (1983) 34 SASR 578, considered

Fox and Freiberg, Sentencing State and Federal Law in Victoria 2nd Ed., referred to

Misuse of Drugs Act (NT); Private Security Act(NT); Sentencing Act (NT) s 6, s 7, s 8
REPRESENTATION:
Counsel:
Appellant:P Elliott
Respondent:  N Rogers
Solicitors:
Appellant:Withnalls
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril0907
Number of pages:  15

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Carnese v The Queen [2009] NTCCA 8

No. CA 11 of 2008 (20726996 and 20720782)
BETWEEN:

ROCCO CARNESE

Appellant

AND:

THE QUEEN

Respondent

CORAM: MILDREN, THOMAS AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 5 June 2009)
The Court:

On 27 October 2008 the appellant was sentenced in relation to two offences under the Misuse of Drugs Act. The first was that, on 15 September 2005, he unlawfully possessed a commercial quantity of methandrostenolone, a dangerous drug. The maximum penalty for the offence was imprisonment for 14 years. The second was that just over a year later, on 19 September 2006, he possessed a trafficable quantity of the same drug. The maximum penalty for that offence was imprisonment for five years. He was convicted on each count and fined $2000 on the first count and $1000 on the second.
The major thrust of the appellant's submissions to this Court was that a conviction should not have been recorded in either case. There were five grounds of appeal with the principal ground being that the sentence imposed was manifestly excessive in all the circumstances.
Prior to the hearing the appellant had been granted leave to appeal in relation to two of the grounds of appeal and the appellant sought leave to appeal in relation to the remaining grounds. It will be necessary to address each of the grounds of appeal and proposed grounds of appeal and then return to the principal ground. Before doing so it is convenient to relate the facts of the case and then consider the law in relation to…

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 Carnese v The Queen

Details

AGLC: Carnese v The Queen [2009] NTCCA 8
Case: [2009] NTCCA 8
Decision Date: 5 June 2009

CaseChat Overview and Summary

Carnese appealed against convictions for possessing a prohibited substance, namely methandrostenolone, an anabolic steroid. The appeal was heard by the Court of Criminal Appeal of the Supreme Court of Queensland.

The central legal issues before the Court were whether the recording of convictions for the drug offences was appropriate in the circumstances, and if the sentence imposed by the sentencing judge was manifestly excessive.

The Court reasoned that while the appellant was guilty of the offences, the recording of convictions was not a necessary or just outcome. Applying principles of sentencing discretion, the Court determined that the circumstances did not warrant the imposition of a criminal record, particularly given the nature of the substance and the appellant's personal circumstances. The Court found the sentence to be manifestly excessive due to the inclusion of recorded convictions.

Consequently, the appeal was allowed, the convictions were set aside, and the other penalties imposed by the sentencing judge were ordered to remain.

Orders