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 2007JUDGMENT 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 383PARTIES: 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
2006/1853MONDAY 22 JANUARY 2007BEAZLEY JA
BUDDIN J
HISLOP J
MICHAEL JOSEPH GATTELLARI v REGINA
PETER JADE McRAE v REGINA
Introduction
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.
The evidence
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…
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- AGLC
- Michael Joseph Gattellari v The Queen; Peter Jade McRae v The Queen [2007] NSWCCA 5
- Case
- [2007] NSWCCA 5
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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