GAGLIARDI -v- R [1999] WASCA 126

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 126
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:90/1999	Heard:	5 AUGUST 1999
Coram:	IPP J WHITE J HEENAN J	Delivered:	18/08/99
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for leave to appeal grantedAppeal dismissed
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Parties:	FRANCESCO GAGLIARDI THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Possession of heroin Reasonably suspected of having been imported Not less than trafficable quantity Relatively large quantity of heroin of high purity Imprisonment for eight years with four and a half years minimum not excessive
Legislation:	Customs Act 1901 s 233B(1)(ca)
Case References:	Heryadi v The Queen (1998) 98 A Crim R 578 R v Cottrell (1989) 42 A Crim R 31 R v Oancea (1990) 51 A Crim R 141 Vasich v The Queen (1998) 99 A Crim R 262 Bailey v The Queen (1988) 35 A Crim R 458 Eliasen v The Queen (1991) 53 A Crim R 391 Lam v The Queen (1991) 53 A Crim R 118 Laurentiu and Becheru v The Queen (1992) 63 A Crim R 402 R v Calabria (1982) 31 SASR 423 R v Foster and D'Anna (1992) 59 A Crim R 14 Langridge v R (1996) 17 WAR 346 R v Smith (1987) 44 SASR 587 R v Wong (1995) 16 WAR 219 Salisbury v The Queen (1994) 12 WAR 452 Thiagarajah v The Queen (1989) 41 A Crim R 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GAGLIARDI -v- R [1999] WASCA 126 CORAM : IPP J

WHITE J

HEENAN J

HEARD : 5 AUGUST 1999 DELIVERED : 18 AUGUST 1999 FILE NO/S : CCA 90 of 1999 BETWEEN : FRANCESCO GAGLIARDI

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Sentencing - Possession of heroin - Reasonably suspected of having been imported - Not less than trafficable quantity - Relatively large quantity of heroin of high purity - Imprisonment for eight years with four and a half years minimum not excessive

Legislation:

Customs Act 1901 s 233B(1)(ca)

Result:

Application for leave to appeal granted

Appeal dismissed

(Page 2)

Representation:

Counsel:

Applicant : Mr M E Dean

Respondent : Mr J A Scholz

Solicitors:

Applicant : Williams Ellison

Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Heryadi v The Queen (1998) 98 A Crim R 578
R v Cottrell (1989) 42 A Crim R 31
R v Oancea (1990) 51 A Crim R 141
Vasich v The Queen (1998) 99 A Crim R 262

Case(s) also cited:

Bailey v The Queen (1988) 35 A Crim R 458
Eliasen v The Queen (1991) 53 A Crim R 391
Lam v The Queen (1991) 53 A Crim R 118
Laurentiu and Becheru v The Queen (1992) 63 A Crim R 402
R v Calabria (1982) 31 SASR 423
R v Foster and D'Anna (1992) 59 A Crim R…

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 Gagliardi v The Queen

Details

AGLC: Gagliardi v The Queen [1999] WASCA 126
Case: [1999] WASCA 126
Decision Date: 18 AUGUST 1999

CaseChat Overview and Summary

In the case of Gagliardi v The Queen, the appellant was convicted of possessing a quantity of heroin that was reasonably suspected of having been imported. The matter was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed on the appellant, who was found guilty of possessing a relatively large quantity of heroin of high purity, was excessive.

The court was required to determine if the punishment of imprisonment for eight years, with a non-parole period of four and a half years, was disproportionate to the crime committed. The appellant argued that the sentence was excessive given the nature of the offence and the personal circumstances of the offender. The Crown, on the other hand, maintained that the sentence was appropriate and reflected the seriousness of the offence.

The High Court, in its judgement, found that the sentence imposed on the appellant was not excessive. The court considered the amount and purity of the heroin, the likelihood that the heroin had been imported, and the appellant's criminal history. The court held that the sentence was within the range of penalties that could be imposed for such an offence, taking into account the relevant principles of sentencing and the need for general deterrence. Therefore, the appeal was dismissed, and the application for leave to appeal was granted.

Orders

Orders of the court

Application for leave to appeal grantedAppeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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