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Frigiani v R

Frigiani v R

Case [2007] NSWCCA 81 30 March 2007

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New South Wales
Court of Criminal Appeal

CITATION: Frigiani v R [2007] NSWCCA 81

HEARING DATE(S): 22/03/2007

JUDGMENT DATE:
30 March 2007

JUDGMENT OF: Simpson J at 1; Barr J at 2; Howie J at 3

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: Criminal Law - Sentencing - application of R v Way - taking into account a prior offence dealt with under s 10 of the Crimes (Sentencing Procedure) Act.

LEGISLATION CITED: Crimes Act 1900 - s 33
Crimes (Sentencing Procedure) Act 1999 - ss 10, 21A(2)(d), 21A(2)(j), 54B

CASES CITED: R v Way [2004] 60 NSWLR 168
R v AJP (2004) 150 A Crim R 575
R v Ancuta [2005] NSWCCA 275
R v Sangalang [2005] NSWCCA 171
R v Zegura [2006] NSWCCA 230
MLP v R [2006] NSWCCA 271
R v Price [2005] NSWCCA 285
Veen v R (No. 2) (1988) 164 CLR 465
R v Palmer [2005] NSWCCA 349

PARTIES: Enzo Frigiani v Regina

FILE NUMBER(S): CCA 2007/145

COUNSEL: R. Herps - Crown
P. Lange - Applicant

SOLICITORS: S. Kavanagh - Crown
Mark Klees & Associates - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3205

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 24/03/2006

2007/145

SIMPSON J
BARR J
HOWIE J
FRIDAY 30 MARCH 2007

Enzo FRIGIANI v REGINA

Judgment

1 SIMPSON J: I agree with Howie J.

2 BARR J: I agree with Howie J.

3 Howie J This is an application for leave to appeal against a sentence imposed upon the applicant in the District Court by Marien DCJ (the Judge). On 21 October 2005 the applicant pleaded guilty in the District Court to an offence of malicious wounding with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act 1900. This is an offence for which a maximum penalty of 25 years imprisonment is prescribed and to which a standard non-parole period of 10 years applies.

4 On 24 March 2006 the applicant was sentenced to a term of imprisonment comprising a non-parole period of 5 years 6 months and a balance of term of 3 years 6 months. The sentence commenced on 8 December 2004 and the applicant is eligible to be released to parole on 7 June 2010.

5 The victim was the estranged wife of the applicant. They separated in August 2004 and the applicant moved away from the family home. The victim had continued to have contact with a former husband, the father of her child, but was not in an intimate relationship with him. However, the applicant was suspicious of this relationship.

6 On 6 October 2004 the applicant came to the house and demanded to know what was going on between the victim and her ex-husband and told her that he had heard rumours they were going to go back together. The applicant became angry and assaulted the victim by slapping her on the face and grabbing her throat. As a result the victim took out…

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 Frigiani v R

Details

AGLC: Frigiani v R [2007] NSWCCA 81
Case: [2007] NSWCCA 81
Decision Date: 30 March 2007

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, Frigiani, against a conviction for possessing a firearm, which was charged under section 13 of the Firearms Act 1996 (NSW). The respondent, the Crown, was represented by the Director of Public Prosecutions. The appeal centred on the sentencing phase of the trial, specifically focusing on the consideration of a prior offence that was dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The legal issues revolved around the application of R v Way, which provides a framework for determining whether a prior offence should be taken into account when sentencing a defendant for a subsequent offence.

The court was required to decide whether the trial judge erred in considering the prior offence when determining the sentence for the current offence. The appellant argued that the trial judge had misapplied the principles set out in R v Way by giving undue weight to the prior offence, thereby affecting the overall sentence. The Crown, on the other hand, contended that the trial judge had correctly applied the principles and that the sentence was appropriate given the circumstances of the case.

In its decision, the court examined the trial judge's reasons and the principles outlined in R v Way. It was noted that the trial judge had considered the nature and circumstances of both the current and prior offences, as well as the relevant aggravating and mitigating factors. The court found that the trial judge had appropriately balanced these factors and had not erred in taking the prior offence into account when determining the sentence. The court concluded that the sentence was within the appropriate range and that there was no miscarriage of justice that would warrant an appeal. The appeal was therefore dismissed.

The final orders of the court were that the appeal against conviction and sentence be dismissed, and that the original sentence imposed by the trial judge be upheld. The appellant was to remain subject to the original sentence, which included a term of imprisonment and a non-parole period.

Orders