Legal Research
Cases
Cicciarello v R

Cicciarello v R

Case [2009] NSWCCA 272 11 November 2009

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: Cicciarello v Regina [2009] NSWCCA 272
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 October 2009

JUDGMENT DATE:
11 November 2009

JUDGMENT OF: Allsop P at 1; Fullerton J at 1; McCallum J at 1

DECISION: 1. Extend time for the applicant to give notice of intention to appeal or to give notice of intention to apply for leave to appeal to 2 July 2009.
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the sentences imposed on the applicant by Sorby DCJ in the District Court on 22 August 2008 and in lieu thereof:
(a) As to count one, imprisonment for a non-parole period of three years commencing on 12 October 2007 and concluding on 11 October 2010; balance of term of one and a half years commencing on 12 October 2010 and concluding on 11 April 2012.
(b) As to count two, imprisonment for a fixed term of 12 months commencing 12 April 2007 and expiring 11 April 2008.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – drug supply – supply of not less than a commercial quantity – Drug Misuse and Trafficking Act 1985 (NSW), s25(2) - objective criminality of the offence – aggravating factor – whether dealing for financial gain - proceeds of supply went to support own drug addiction – dealing not for financial gain – less severe sentence warranted in law - CRIMINAL LAW – appeal against sentence – aggravating factor - Crimes Sentencing Procedure Act 1999 (NSW) s 21A(2)(m) - series of criminal acts – series of acts leading to more serious criminal charge – prohibition against double counting – error to take same facts into account as aggravating factor that lead to more serious criminal charge – less severe sentence warranted in law - Crimes Sentencing Procedure Act 1999 (NSW) - s 21A(2)(m) - Drug Misuse and Trafficking Act 1985 (NSW) - s25(2)

LEGISLATION CITED: Crimes Sentencing Procedure Act (1999) (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

CATEGORY: Principal judgment

CASES CITED: Bowden [2009] NSWCCA 45
Day (1998) 100 A Crim R 275
Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
Way [2004] NSWCA 131; 60 NSWLR 168

PARTIES: Carmelo Cicciarello
The Crown

FILE NUMBER(S): CCA 4577/08

COUNSEL: S Odgers SC (Applicant)
V Lydiard (Crown)

SOLICITORS: M Blair (Applicant)
S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 0288/2008

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 22 August 2008

4577/08

ALLSOP P
FULLERTON J
McCALLUM J
Wednesday 11 November 2009

CICCIARELLO v REGINA

HEADNOTE

Mr Cicciarello pleaded guilty to two charges, namely supplying not less that a commercial quantity of methylamphetamine based on Drug Misuse and Trafficking Act1985 (NSW), s25(2) and possession of an unlicensed firearm based on Firearms Act1996 (NSW), s7A(1).

The sentencing judge assessed…

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 Cicciarello v R

Details

AGLC: Cicciarello v R [2009] NSWCCA 272
Case: [2009] NSWCCA 272
Decision Date: 11 November 2009

CaseChat Overview and Summary

The appellant, Cicciarello, appealed against his sentence for drug supply, arguing it was excessive given the circumstances. The case reached the court following a conviction for supplying a commercial quantity of a prohibited drug, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW). The legal issues in the case centred on whether the trial court had erred in sentencing by not adequately considering the objective criminality of the offence and by double counting aggravating factors.

The court examined whether the appellant's dealing was for financial gain, a significant factor in sentencing. It was determined that the proceeds from the supply primarily supported the appellant's own drug addiction rather than being for financial gain. The court found that this aspect warranted a less severe sentence. Additionally, the court considered the prohibition against double counting as per the Crimes Sentencing Procedure Act 1999 (NSW). It concluded that the trial court had improperly taken into account the same facts as an aggravating factor that led to a more serious criminal charge, which also justified a reduction in sentence.

In light of these findings, the appeal was allowed, and the appellant's sentence was reduced. The court held that the trial judge had not appropriately balanced the objective criminality of the offence and had improperly considered the same facts in multiple aggravating contexts, leading to an excessive sentence. The court mandated a reassessment of the sentence to reflect these errors.

Orders