Emiliano BUONOCORE v REGINA - [2006] NSWCCA 159

CITATION: Emiliano BUONOCORE v REGINA [2006] NSWCCA 159
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 May 2006

JUDGMENT DATE:
18 May 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Latham J at 3

DECISION: Leave granted to appeal Appeal dismissed.

CATCHWORDS: Sentence only - Armed Robbery and Form 1 offence - weight to be given to personal deterrence arising out of Form 1 offence - whether manifestly excessive.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Elfar [2003] NSWCCA 358
R v Qutami (2001) 127 A Crim R 369
R v McGourty [2002] NSWCCA 335
R v Henry & Ors. (1999) 46 NSWLR 346; [1999] NSWCCA 111
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 ; [2002] NSWCCA 518

PARTIES: Emiliano BUONOCORE - Applicant
REGINA - Crown

FILE NUMBER(S): CCA 2006/257

COUNSEL: S Flood - Applicant
JA Girdham - Crown

SOLICITORS: S Kavanagh - Applicant
S O'Connor - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1163

LOWER COURT JUDICIAL OFFICER: Marien SC DCJ

LOWER COURT DATE OF DECISION: 08/07/2005

2006/257

McCLELLAN CJ at CL
HALL J
LATHAM J
18 May 2006

EMILIANO BUONOCORE v R

JUDGMENT

1 McCLELLAN CJ at CL: I agree with Latham J

2 HALL J: I agree with Latham J

3 LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him by Marien DCJ SC on 8 July 2005 in respect of one count of Armed Robbery under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The applicant asked that a further offence of Armed Robbery be taken into account on a Form One when sentenced for the principal offence. The applicant received a sentence of 7 years imprisonment with a non parole period of 4 years 6 months.

The Offences

4 A statement of agreed facts which was before his Honour was largely reproduced in the course of the remarks on sentence. The circumstances surrounding the commission of the offence on indictment were that at about 3:15 p.m. on Monday 9 December 2002, two female employees of a large pharmacy at Silverwater went to the National Australia bank in Silverwater to deposit the weekend takings of the business. The driver of the vehicle, a Ms Osores, was a co-offender, having discussed with the applicant over a period of two weeks prior to 4 December 2002 the means by which they would rob the business of a sum of money. The applicant had been employed on a casual basis between June 2000 and early December 2002 and knew of Ms Osores’ responsibility for the banking. Ms Osores told the applicant how and when she did the banking and that the largest amount of cash was banked on a Monday. The applicant's girlfriend, a Ms…

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: [2006] NSWCCA 159
Decision Date: 18 May 2006

CaseChat Overview and Summary

The applicant, Emiliano Buonocore, sought leave to appeal against his sentence on the grounds that the primary judge failed to give appropriate weight to the personal deterrence arising out of a Form 1 offence, and that the sentence was manifestly excessive. The respondent argued that the sentence was appropriate and within the bounds of the applicable legal principles. The court had to determine whether the sentence imposed was appropriate and whether the weight given to the personal deterrence arising out of the Form 1 offence was correct.

The court considered the nature of the offences, the severity of the punishment, and the circumstances of the offender. The court noted that the applicant had a history of offending, and that the offences committed were serious. The court also considered the personal deterrence arising out of the Form 1 offence, which was one of the factors considered by the primary judge in determining the sentence. The court concluded that the primary judge had given appropriate weight to the personal deterrence arising out of the Form 1 offence, and that the sentence was not manifestly excessive. The court further noted that the sentence imposed was within the bounds of the applicable legal principles.

The court dismissed the application for leave to appeal, finding that the sentence was appropriate and within the bounds of the applicable legal principles. The court found that the primary judge had given appropriate weight to the personal deterrence arising out of the Form 1 offence, and that the sentence was not manifestly excessive. The court further noted that the sentence imposed was within the bounds of the applicable legal principles.

No orders for costs were made.

Orders