Greco v Regina - [2010] NSWCCA 268

New South Wales
Court of Criminal Appeal

CITATION: GRECO v REGINA [2010] NSWCCA 268

HEARING DATE(S): Monday 23 August 2010

JUDGMENT DATE:
25 November 2010

JUDGMENT OF: Beazley JA at 1; James J at 2; Hall J at 3

DECISION: Leave to appeal granted. Appeal dismissed

CATCHWORDS: Sentence for offence under s.23(2) of the Drug Misuse and Trafficking Act – applicant had a significant role in a cannabis cultivation plantation – estimated wholesale value of crop approximately $18.74 million – applicant arrested five years after police executed search warrant – applicant “disappeared” for about two years – order made against applicant under Criminal Assets Recovery Act for forfeiture of $407,084 – no financial benefit received by applicant from cannabis plantation, the crop not having reached harvesting stage – forfeiture order under s.27 made in respect of illegal activities of applicant in relevant six year period which were unrelated to the establishment and maintenance of the cannabis plantation – sentencing judge not required to reduce sentence having regard to the detriment to the applicant by reason of the forfeiture order – there were no exceptional circumstances requiring the s.27 order to be taken into account and no evidence of “a disproportionate or exceptional effect” on the applicant – not issue of parity established with respect to sentences imposed on co-offenders – the issue under Criminal Assets Recovery Act was of no relevance to the question of parity – sentencing judge took into account the issue of delay – no error demonstrated

LEGISLATION CITED: Criminal Assets Recovery Act 1990
Criminal Assets Recovery Regulations 2000
Drug Misuse & Trafficking Act 1985

CASES CITED: Regina v Brough [1995] 1 NZLR 419
Regina v Kalache [2000] NSWCCA 2
Regina v Mangano [2006] NSWCCA 35
Regina v Reeves [2002] NSWCCA 33

PARTIES: Antonio GRECO
v REGINA

FILE NUMBER(S): CCA 2009/3342

COUNSEL: C: J Pickering
A: Dr B Glennon

SOLICITORS: C: S Kavanagh
A: D Cohen

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/3342`

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 17 September 2009

2009/3342

BEAZLEY JA
JAMES J
HALL J
THURSDAY 25 NOVEMBER 2010

ANTONIO GRECO v REGINA

Judgment

1 BEAZLEY JA: I agree with Hall J.

2 JAMES J: I agree with Hall J.

3 HALL J: The applicant, by application for leave to appeal dated 13 April 2010, seeks leave to appeal against a sentence imposed on him on 17 September 2009 by the District Court of New South Wales at Dubbo (Tupman DCJ) in respect of a charge pursuant to s.23(2) of the Drug Misuse and Trafficking Act 1985.

4 The Crown case was that the applicant knowingly took part in the cultivation of cannabis plants (9,995 plants in all) being not less than the commercial quantity for that plant.

5 Pursuant to s.33(3)(b) of the Act, the offence carries a maximum penalty of 20 years imprisonment and/or a fine of 5,000 penalty units.

6 It was noted in the Crown submissions that a…

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 Greco v Regina

Details

AGLC: Greco v Regina [2010] NSWCCA 268
Case: [2010] NSWCCA 268
Decision Date: 25 November 2010

CaseChat Overview and Summary

Greco was the appellant in this case, which was heard by the High Court of Australia. The matter involved the appellant's sentence for a drug-related offence under section 23(2) of the Drug Misuse and Trafficking Act. The appellant had been involved in a cannabis cultivation operation with an estimated wholesale value of approximately $18.74 million. The appellant was arrested five years after a police search warrant was executed, and he had been absent from the jurisdiction for about two years. An order was made against the appellant under the Criminal Assets Recovery Act for the forfeiture of $407,084. However, the appellant did not receive any financial benefit from the cannabis plantation as the crop had not yet reached the harvesting stage.

The legal issues before the court included whether the sentencing judge was required to reduce the appellant's sentence considering the detriment to the appellant due to the forfeiture order. Another issue was whether there were exceptional circumstances that required the forfeiture order to be taken into account, and if there was evidence of a disproportionate or exceptional effect on the appellant. Furthermore, the court had to determine if the issue of parity, in relation to sentences imposed on co-offenders, was relevant to the forfeiture order under the Criminal Assets Recovery Act. Lastly, the court needed to consider whether the sentencing judge took into account the issue of delay in the appellant's arrest and trial.

The High Court held that the sentencing judge was not required to reduce the appellant's sentence based on the detriment caused by the forfeiture order. There were no exceptional circumstances that necessitated the forfeiture order to be taken into account, and there was no evidence of a disproportionate or exceptional effect on the appellant. The issue of parity established with respect to sentences imposed on co-offenders was not relevant to the forfeiture order under the Criminal Assets Recovery Act. The court found that the sentencing judge had taken into account the issue of delay, and no error was demonstrated in the decision.

Orders