Fato v The Queen - [2017] NSWCCA 190

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Fato v R [2017] NSWCCA 190
Hearing dates: 2 August 2017
Date of orders: 11 August 2017
Decision date: 11 August 2017
Before: Johnson J at [1]
Davies J at [2]
Lonergan J at [56]
Decision:
Extension of time to seek leave to appeal against sentence is refused.

Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant sentenced for supply large commercial quantity of methamphetamine – whether trial judge erred in finding offending above the mid-range of objective seriousness – whether low purity of drugs required a finding that offending was below the mid-range – extension of time required – where ground of appeal has little merit - leave to appeal refused
Legislation Cited: Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lorraway v R [2010] NSWCCA 46
Lowe v R [2013] NSWCCA 141
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Ninness v R [2014] NSWCCA 288
O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38
R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Luigi Gino Fato (Applicant)
Crown (Respondent)
Representation:
Counsel:
I Lloyd QC & M Gelbert (Applicant)
N Adams (Respondent)
Solicitors:
N Long (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/45240
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 April 2017

Before:

Conlon DCJ

File Number(s):

2014/45240

Judgment

JOHNSON J: I agree with Davies J.
DAVIES J: On 28 July 2014 the applicant pleaded guilty to the following offences:

Count 1: Supply a prohibited drug being 23 pounds of cannabis leaf. The maximum penalty for this offence is ten years’ imprisonment.

Count 2: Supply a large commercial quantity of methamphetamine being 1.4kgs. The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 15 years.

Count 3: Supply a large commercial quantity of methamphetamine being 9.5kgs.

Count 4: Cultivate a large commercial quantity of a prohibited plant being 2750 cannabis plants. The maximum penalty for this offence is 20 years’ imprisonment and there is a standard non-parole period of 10 years.

Count 5: Knowingly direct the activities of a criminal group. The maximum penalty for this offence is 15 years’ imprisonment.

Attached to count 4 there was a Form 1 containing the following offences:

(1) Conspiracy to manufacture a prohibited drug.

(2) Cultivate by enhanced indoor means cannabis plants for commercial purposes.

(3) Receiving stolen goods being 6 Denyo brand generators.

Attached to count 2 was a Form 1 containing the following offences:

(1) Supply a prohibited drug being 13.5 pounds cannabis leaf.

Attached to count 3…

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 Fato v The Queen

Details

AGLC: Fato v The Queen [2017] NSWCCA 190
Case: [2017] NSWCCA 190
Decision Date: 11 August 2017

CaseChat Overview and Summary

The appeal in Fato v The Queen involved the applicant, Fato, who had been sentenced for supplying a large commercial quantity of methamphetamine. Fato sought to appeal against his sentence, arguing that the trial judge erred in finding that the offending was above the mid-range of objective seriousness. The applicant contended that the relatively low purity of the drugs should have resulted in a finding that the offending was below the mid-range. The High Court of Australia was required to determine whether the trial judge's assessment of the objective seriousness of the offending was correct and whether the purity of the drugs warranted a different classification of the severity of the crime.

The court examined the objective seriousness of the offending, focusing on the nature and scale of the crime. The court considered that the supply of a large commercial quantity of methamphetamine, regardless of its purity, constituted a serious offence. The court found that the trial judge was entitled to consider the overall impact of the supply on the community and the potential harm caused by the drugs. The court rejected the argument that the low purity of the drugs should automatically result in a finding that the offending was below the mid-range. The court held that the purity of the drugs was only one factor to consider in determining the objective seriousness of the offending.

In reaching its decision, the court emphasised the importance of a balanced and holistic approach to sentencing. The court recognised that the trial judge had considered all relevant factors and had exercised their discretion appropriately. The court found that the trial judge's assessment of the objective seriousness of the offending was sound, and that the sentence imposed was commensurate with the seriousness of the crime. Consequently, the appeal against sentence was dismissed. The court also noted that the applicant had not demonstrated that the ground of appeal had sufficient merit to warrant an extension of time or leave to appeal.

Orders