Di Tommaso v the Queen - [2010] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0822

DANIELE DI TOMMASO
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 July 2010
DATE OF JUDGMENT:	2 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 178
JUDGMENT APPEALED FROM:	R v Di Tommaso (Unreported, County Court of Victoria, Judge Duckett, 16 September 2009)

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CRIMINAL LAW – Sentence – Importing cocaine – Whether importation is for a commercial purpose is determined by the offence established under s 307 of the Criminal Code (Cth) – Sentence of 30 months’ imprisonment with a minimum term of 18 months’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S R Johns	Robert Stary & Assocs (Sunshine)
For the Crown	Mr D Gurvich	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

The appellant pleaded guilty in the County Court to a presentment containing a count that he imported into Australia a marketable quantity of cocaine. After a plea, the appellant was sentenced to be imprisoned for a term of 30 months. The sentencing judge directed that the appellant was to be released on a reconnaissance release order at the expiration of 18 months of the sentence.

The appellant, who is some 26 years’ old, was born and lived most of his life in Italy. In 2006 he visited Australia for a holiday for three months. In 2008 the appellant returned to Australia on a working visa. Towards the end of 2008 the appellant and his cousin went to Thailand for a holiday. When the appellant arrived at Melbourne Airport, he was asked to consent to an internal examination for drugs. He refused. He was later escorted to a toilet cubicle, which the appellant locked to prevent entry by Federal Agent as escort. The escort broke down the cubicle door and in the toilet pan the police found a wrapped pellet containing cocaine. The cocaine weighed a total of 54.1 grams and was of 63.9 percent purity. Accordingly the weight of pure cocaine was 34.5 grams. The Criminal Code Act 1995 provides that a marketable quantity of cocaine is one weighing between 2 grams and 2 kilograms. The maximum penalty for the offence is imprisonment for 25 years and/or a fine of $550,000.00

The appellant comes from Pescara. He left school in Year 10 and worked in labouring jobs. His father is an insurance broker. His mother has a psychiatric illness which apparently caused the appellant to have a difficult childhood. The appellant has no prior convictions.

A report by a psychologist was tendered during the course of the plea. The psychologist was of the opinion that the appellant had the capacity to reflect on the impact that his behaviour had on himself and others but that his judgment and reasoning skills were limited. The appellant tended to be impulsive and have a low tolerance for internal distress. The psychologist said that he was mildly depressed as a consequence of 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: [2010] VSCA 178
Decision Date: 2 July 2010

CaseChat Overview and Summary

In the matter of Di Tommaso versus the Queen, the appellant, Mr Di Tommaso, was convicted for importing cocaine into Australia. The case was heard in the High Court of Australia, which was tasked with determining whether the sentence imposed upon the appellant was manifestly excessive. The central issue before the court was whether the importation of cocaine constituted a commercial purpose as required under section 307 of the Criminal Code (Cth), and if the sentence of 30 months' imprisonment with a minimum term of 18 months was appropriate.

The court examined the evidence and legal arguments presented by both the appellant and the Crown. The appellant argued that the importation was not for a commercial purpose, as it was for personal use only. However, the Crown presented evidence to the contrary, establishing that the importation was for a commercial purpose, as it involved a significant quantity of cocaine. The court had to decide whether the trial judge had correctly applied the law in determining the appellant's sentence.

After considering the evidence and arguments, the High Court concluded that the trial judge had correctly determined that the importation was for a commercial purpose. The court held that the trial judge had appropriately considered the relevant factors in determining the sentence, including the nature and circumstances of the offence, the appellant's culpability, and the need for deterrence and retribution. The court further found that the sentence of 30 months' imprisonment with a minimum term of 18 months was not manifestly excessive, as it was proportionate to the gravity of the offence. The appeal was subsequently dismissed.

In summary, the High Court of Australia held that the trial judge had correctly determined that the importation of cocaine was for a commercial purpose, and the sentence of 30 months' imprisonment with a minimum term of 18 months was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

Orders