D'Ambrosio v The Queen - [2010] NSWCCA 120

New South Wales
Court of Criminal Appeal

CITATION: D'Ambrosio v R [2010] NSWCCA 120

HEARING DATE(S): 15 April 2010

JUDGMENT DATE:
8 June 2010

JUDGMENT OF: Handley AJA at 1; Grove J at 2; Hislop J at 3

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence appeal - drug offences - discount for assistance.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v El Hani [2004] NSWCCA 162
The Queen v Hoar (1981) 148 CLR 32
R v Borkowski [2009] NSWCCA 102
R v Sukkar [2007] NSWCCA 298
Markarian v R [2005] HCA 25; (2005) 228 CLR 357

PARTIES: James Pasqual D'AMBROSIO v Regina

FILE NUMBER(S): CCA 2008/8547

COUNSEL: In person (Applicant)
J. Dwyer (Crown)

SOLICITORS: Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0499

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 13 February 2009

2008/8547

HANDLEY AJA
GROVE J
HISLOP J
Tuesday 8 June 2010

JAMES PASQUAL D’AMBROSIO v REGINA

Judgment

1 HANDLEY AJA: I agree with Hislop J.

2 GROVE J: I agree with Hislop J.

: The applicant pleaded guilty on indictment to the following counts:

Drug Misuse and Trafficking Act

4 The applicant also pleaded guilty in the Local Court to a charge that he supplied a prohibited drug, namely methylamphetamine [ice] contrary to s 25(1) Drug Misuse and Trafficking Act 1985. He was committed to the District Court for sentence on this charge.

5 On 13 February 2009 the applicant was sentenced in the District Court as follows in respect of those matters:

Count 1: Imprisonment for a non parole period of 3 years to date from 9 October 2008 and expire on 8 October 2011 with a balance of term of 2 years to expire on 7 October 2013.

Drug Misuse and Trafficking Act

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 D'Ambrosio v The Queen

Details

AGLC: D'Ambrosio v The Queen [2010] NSWCCA 120
Case: [2010] NSWCCA 120
Decision Date: 8 June 2010

CaseChat Overview and Summary

The case of D'Ambrosio v The Queen involved the appellant, D'Ambrosio, who was convicted of various drug-related offences. D'Ambrosio appealed against the severity of the sentence imposed by the lower court, arguing that the sentence was excessive and that he was entitled to a discount for providing assistance to law enforcement. The appeal was heard by the High Court of Australia.

The primary legal issues that the court had to address were whether the sentence imposed was manifestly excessive and whether the appellant was entitled to a discount for his assistance to the police. The court needed to consider the principles of sentencing, the nature and extent of the appellant's assistance, and whether the lower court had correctly applied the relevant sentencing principles.

In its judgment, the court found that the sentence imposed was not manifestly excessive and that the lower court had properly considered the relevant sentencing principles. The court also held that the appellant's assistance did not warrant a significant discount in the sentence. The High Court emphasised the importance of ensuring that sentences reflect the seriousness of the offences and that any discount for assistance must be carefully considered in the context of the overall sentence. The appeal was ultimately dismissed.

The final orders of the court confirmed the sentence imposed by the lower court and rejected the appellant's claim for a discount for his assistance. The High Court's decision underscores the importance of appropriate sentencing and the need for careful consideration of any factors that may warrant a discount.

Orders