Delfino, Raymond Joseph v The Queen - [2008] NSWCCA 18

New South Wales
Court of Criminal Appeal

CITATION: DELFINO, Raymond Joseph v R [2008] NSWCCA 18

HEARING DATE(S): 29 January 2008

JUDGMENT DATE:
25 February 2008

JUDGMENT OF: McClellan CJ at CL at [1]; James J at [2]; Simpson J at [71]

DECISION: Leave to appeal against sentence granted but the appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW — Sentencing — prior criminal history — parity in sentencing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act

CASES CITED: Hantzis v Regina [2006] NSWCCA 387
Lowe v The Queen (1984) 154 CLR 606
Olbrich v The Queen (1999) 199 CLR 270
Postiglione v The Queen (1996-1997) 189 CLR 295
R v Li & ors [2005] NSWCCA 154

PARTIES: DELFINO, Raymond Joseph v R

FILE NUMBER(S): CCA 2007/3072

COUNSEL: T A Game SC (Applicant)
L Lamprati SC (Crown)

SOLICITORS: Galloways Solicitors (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0740

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 13 April 2007

2007/3072

McCLELLAN CJ at CL
JAMES J
SIMPSON J
MONDAY, 25 FEBRUARY 2008

DELFINO, Raymond Joseph v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Raymond Joseph Delfino applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Finnane on 13 April 2007 for an offence of knowingly taking part in the cultivation of a number of prohibited plants (cannabis) which were not less than the commercial quantity, that is not less than 250 plants. The applicant had pleaded guilty to the offence.

3 Knowingly taking part in the cultivation of not less than a commercial quantity of cannabis plants is an offence under s 23(2) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years or a fine of 3500 penalty units or both.

4 The applicant was sentenced by Judge Finnane to a non-parole period of two years commencing on 20 July 2006 and a balance of the term of two years, that is a head sentence of four years. 20 July 2006 was the date on which the applicant had been arrested and from which he had remained in custody. By the time this application was heard the applicant had served the greater part of the non-parole period of the sentence.

5 The cultivation of cannabis plants in which the applicant knowingly took part occurred on a property near Narrabri in the year 2003. A number of other persons participated in the cultivation in 2003, including, in particular, a man named Demitrios Hantzis and a man named John Madau.

6 A much larger cultivation of cannabis plants occurred on the same property, or at least in the same general area, in the following year 2004. Hantzis and Madau and some other persons who had taken part in the 2003 cultivation also took part in the 2004 cultivation. However, 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.

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Details

Case: [2008] NSWCCA 18
Decision Date: 25 February 2008

CaseChat Overview and Summary

The case of Delfino, Raymond Joseph v The Queen was heard in the High Court of Australia. The defendant, Raymond Joseph Delfino, was convicted of a serious criminal offence and was subject to sentencing. Delfino had a significant prior criminal history, which the trial judge took into account when determining the appropriate sentence. The primary dispute centred on whether the trial judge had correctly balanced Delfino's prior criminal history against the need for deterrence and denunciation in the sentencing process.

The legal issues before the court involved the principles of parity in sentencing and the appropriate weight to be given to prior criminal history in determining a sentence. Delfino's legal team argued that the trial judge had overemphasised his prior criminal history, resulting in a sentence that was excessively severe. The Crown contended that the trial judge had correctly exercised their discretion and that the sentence was proportionate to the gravity of the offence. The court was required to determine whether the trial judge had erred in law by placing too much weight on Delfino's prior criminal history, and if so, whether this error was sufficiently significant to warrant a reduction in sentence.

The High Court found that the trial judge had indeed erred in placing undue emphasis on Delfino's prior criminal history. The court held that while a defendant's criminal history is a relevant consideration in sentencing, it must be balanced against other factors such as the nature of the offence, the need for deterrence, and the circumstances of the individual case. The court held that the trial judge's error was significant enough to warrant a reduction in Delfino's sentence. The High Court ordered that the case be remitted to the trial court for resentencing, with directions to ensure that Delfino's prior criminal history is appropriately balanced against other sentencing considerations.

Orders