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 2008JUDGMENT 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 ActCASES 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 154PARTIES: 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
MONDAY, 25 FEBRUARY 2008McCLELLAN CJ at CL
JAMES J
SIMPSON J
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…
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- Case
- [2008] NSWCCA 18
- Decision Date
CaseChat Overview and Summary
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.
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