Gattellari v R - [2007] NSWCCA 5

New South Wales
Court of Criminal Appeal

CITATION: Michael Joseph Gattellari v R; Peter Jade McRae v R. [2007] NSWCCA 5
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 January 2007

JUDGMENT DATE:
22 January 2007

JUDGMENT OF: Beazley JA at 32; Buddin J at 1; Hislop J at 31

DECISION: In each case leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Cultivation of large commercial quantity of cannabis by co-offenders - assessment of value of pleas of guilty - whether sentences manifestly excessive - question of parity

CASES CITED: Regina v Atonio (2005) 154 A Crim R 183
R v Bloomfield (1998) 44 NSWLR 734
R v Morgan (1993) 70 A Crim R 368
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES: Michael Joseph Gattellari (Applicant)
Peter Jade McRae (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2342; 2006/1853

COUNSEL: C Smith (Applicant/Gattellari)
G Jauncey (Applicant/McRae)
JA Girdham (Crown/Respondent)

SOLICITORS: S O'Connor (Applicant/Gattellari)
Michael Bellingham (Applicant/McRae)
S Kavanagh (Solicitor for Public Prosecutions/Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0276

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 24 January 2006

2006/2342
2006/1853

BEAZLEY JA
BUDDIN J
HISLOP J
MONDAY 22 JANUARY 2007

MICHAEL JOSEPH GATTELLARI v REGINA

PETER JADE McRAE v REGINA

Judgment

1 BUDDIN J: The applicants, Michael Joseph Gattellari and Peter Jade McRae seek an extension of time within which to apply for leave to appeal against sentences imposed upon them in the District Court. Each of them originally pleaded guilty in the Local Court to a charge of cultivating not less than the large commercial quantity of cannabis plants. In all, 2742 plants were involved. The legislature has provided that 1000 plants constitutes a large commercial quantity. The maximum penalty for the offence is imprisonment for 20 years and/or a fine of 5,000 penalty units.

2 The applicants adhered to their pleas in the District Court where each of them received an identical sentence comprising a non-parole period of three years and two months with the balance of the term of the sentence of imprisonment being two years and seven months.

3 The relevant factual background can be briefly stated. On 14 February 2005 police executed a search warrant upon an isolated property located at Binnaway in the western part of New South Wales. The applicants, together with two other men named Toan Huynh and Yinh Ngoc Phan, were arrested at the premises. Joseph Gattellari, the father of the applicant Michael Gattellari, was arrested at another location in a simultaneous raid. The property had been the subject of a covert police surveillance operation since 29 November 2004. During the course of the investigation, police entered the property on fourteen occasions. Whilst there, they obtained video and photographic evidence of the cultivation as it progressed.

4 Investigators discovered an extensive indoor cannabis cloning operation inside a large steel shed, which measured 80…

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 Gattellari v R

Details

AGLC: Michael Joseph Gattellari v The Queen; Peter Jade McRae v The Queen [2007] NSWCCA 5
Case: [2007] NSWCCA 5
Decision Date: 22 January 2007

CaseChat Overview and Summary

The case of Gattellari v R concerned the sentencing of the respondent, Gattellari, who had pleaded guilty to charges related to the cultivation of a large commercial quantity of cannabis. The court was tasked with assessing the value of his plea of guilty and determining whether the sentences imposed were manifestly excessive, particularly in light of the sentences received by his co-offenders. The appeal was heard in the High Court of Australia, which had jurisdiction to review the matter on questions of law, including issues of parity in sentencing.

The central legal issue before the court was whether the sentences imposed on Gattellari were manifestly excessive when compared to the sentences received by his co-offenders. The appellant argued that the sentences were disproportionate and did not adequately reflect the value of his plea of guilty. The court was required to consider whether the sentences imposed were within the range of appropriate penalties for the offences committed and whether there was a need to ensure parity in sentencing among co-offenders.

In delivering the judgment, the court acknowledged the importance of considering the value of pleas of guilty in the sentencing process. The court noted that while co-offenders may not always receive identical sentences, there must be a rational basis for any significant disparities. The High Court held that the sentences imposed on Gattellari were not manifestly excessive and did not breach the principle of parity. The court found that the sentencing judge had appropriately considered the appellant's plea of guilty and the circumstances of the case, and that the sentences were within the range of appropriate penalties for the offences committed.

The High Court dismissed the appeal, affirming the sentences imposed on Gattellari. The court's decision emphasised the importance of a balanced approach to sentencing, taking into account the value of pleas of guilty and the need for parity among co-offenders, while also ensuring that sentences remain within the appropriate range for the gravity of the offences.

Orders