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Chiarlini v R

Chiarlini v R

Case [2023] NSWCCA 227 8 September 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chiarlini v R [2023] NSWCCA 227
Hearing dates: 31 August 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Before: Ward P at [1]
Harrison J at [2]
Dhanji J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – offence of knowingly take part in the supply of a large commercial quantity of methylamphetamine –manifest excess – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R; [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Decision Restricted [2019] NSWCCA 102
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Melikan v R [2008] NSWCCA 156
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v McDonald (2002) 128 A Crim R 44; [2002] NSWCCA 34
Wong v The Queen, Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Carlos Matias Chiarlini (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Pontello SC (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Benjamin Leonardo Criminal Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00284397
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2022

Before:

Turner DCJ

File Number(s):

2021/00284397

JUDGMENT

WARD P: I agree with Dhanji J.
HARRISON J: I agree with Dhanji J.
DHANJI J: The applicant, Carlos Matias Chiarlini, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Turner DCJ in the District Court at Sydney on 15 December 2022.
The applicant pleaded guilty in the Local Court to a single offence of knowingly take part in the supply of not less than a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is life imprisonment and the standard non-parole period is 15 years.
An offence of dealing with property suspect of being proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW), was taken into account on a Form 1. The maximum penalty for that offence is imprisonment for 3 years.
The applicant was sentenced to a term of 5 years and 3 months imprisonment, commencing on 6 October 2021 and expiring on 5 January 2027, with a non-parole period of 3 years and 2 months expiring on 5 December 2024.
The applicant seeks leave to appeal on the sole ground that the…

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 Chiarlini v R

Details

AGLC: Chiarlini v R [2023] NSWCCA 227
Case: [2023] NSWCCA 227
Decision Date: 08 September 2023

CaseChat Overview and Summary

In the case of Chiarlini v R, the appellant was convicted of participating knowingly in the supply of a large commercial quantity of methylamphetamine. The matter was brought before the court on an appeal against the sentence imposed. The central issue for the court was to determine whether the sentence was manifestly excessive, warranting an intervention by the appellate court.

The court considered the nature and circumstances of the offence, the role of the appellant in the criminal activity, and the principles of sentencing in Australia. It was noted that the appellant played a significant role in the supply chain, contributing to a substantial quantity of a dangerous drug entering the market. The court evaluated the sentencing judge's assessment of the appropriate punishment, taking into account the culpability of the appellant, the harm caused by the offence, and the need for deterrence and denunciation. After thorough consideration, the court concluded that the sentence imposed was not manifestly excessive. The appellate court found that the sentencing judge had adequately balanced the various factors and applied the correct legal principles in determining the sentence.

As a result of this reasoning, the appeal was dismissed. The original sentence was upheld, and no further action was required in respect of the sentence. The decision reinforces the principle that appellate courts will intervene only where the sentence is palpably unjust or disproportionate to the offence committed.

Orders