Cicero Olivares v The Queen - [2016] NSWCCA 270

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cicero Olivares v R [2016] NSWCCA 270
Hearing dates: 24 October 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Before: Ward JA
Fagan J
N Adams J
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL Law – appeal against sentence – drug trafficking – methamphetamine – whether sentence manifestly excessive – comparative cases
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code (the Schedule to the Criminal Code Act 1995) (Cth)
Criminal Code Regulations 2002 (Cth)
Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58; [2014] HCA 2
Halac v R [2015] NSWCCA 121
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Le v R (Cth) [2010] NSWCCA 285
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
Markarian v The Queen [2006] 228 CLR 357; [2005] HCA 25
Sergi v Director of Public Prosecutions (Cth) [2005] VSCA 181
Shen, David Ying v R [2009] NSWCCA 251
The Queen v Tin Yu Ng; The Queen v Yik Lun Siu [2009] VSCA 218
The Queen v Pham [(2015) 90 ALJR 13, 325 ALR 400, 244 A Crim R 280 [2015] HCA 39
Category: Principal judgment
Parties: Matias Eduardo Cicero Olivares (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr Lester Fernandez (Applicant)
Mr David Jordan (Respondent)
Solicitors:
Ms Sarah Burke, Legal Aid Commission (Applicant)
Ms Stacey Hatch, Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2014/198435
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

09 October 2015

Before:

Culver DCJ

File Number(s):

2014/198435

Judgment

THE COURT: Matias Cicero Olivares applies for leave to appeal against the longer of two sentences imposed upon him in the District Court at Sydney on 9 October 2015. The offences to which he had pleaded guilty and the sentences imposed were as follows:

Trafficking in a commercial quantity of the controlled drug methamphetamine contrary to s 302.2(1) of the Criminal Code (the Schedule to the Criminal Code Act 1995 (Cth)): imprisonment for 15 years.

Dealing with money suspected to be proceeds of crime (money laundering) contrary to s 400.9(1A) of the Criminal Code: imprisonment for 12 months.

Both offences were committed on 4 July 2014. The applicant had been arrested that day. The learned sentencing judge ordered that the sentence for the money laundering offence should commence on the date of arrest and that the sentence for trafficking should commence 6 months later, on 4 January 2015. In accordance with s 19AB of the Crimes Act 1914 (Cth), her Honour fixed a single non-parole period of 9 years 6 months to commence on 4 July 2014 and to expire on 3 January 2024. Effectively, for the s 302.2(1) count the sentence was 15 years with…

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.

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Details

Case: [2016] NSWCCA 270
Decision Date: 02 December 2016

CaseChat Overview and Summary

The case of Cicero Olivares versus The Queen was an appeal against the sentence imposed by the lower court on the respondent for drug trafficking involving methamphetamine. The respondent was found guilty of trafficking in a commercial quantity of the drug and was sentenced to imprisonment by the trial court. The appeal focused on whether the sentence was manifestly excessive in light of the circumstances of the case and by comparison with other similar cases.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The appeal argued that the sentence did not take into account the respondent's personal circumstances and was disproportionately harsh when compared to sentences in similar cases. The court needed to consider the principles of sentencing, particularly the need for proportionality and consistency, and assess whether the trial judge had adequately considered these principles.

The court carefully reviewed the sentencing principles and the evidence presented. It noted the significant quantity of methamphetamine involved but also considered the respondent's personal circumstances and the comparative sentences in similar cases. The court found that while the quantity of drugs warranted a substantial sentence, the sentence imposed was not manifestly excessive. It concluded that the trial judge had properly exercised their discretion and had considered all relevant factors, including the need for deterrence and denunciation. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders