Mammone (Pino) v The Queen - [2013] NSWCCA 325

Court of Criminal Appeal

New South Wales

Case Title: Mammone (Pino) v R

Medium Neutral Citation: [2013] NSWCCA 325

Hearing Date(s): 14 November 2013

Decision Date: 20 December 2013

Before: Macfarlan JA at [1]
Latham J at [2]
R A Hulme J at [47]

Decision:
1.   Leave to appeal granted
2.   Allow the appeal in part
3.   Quash the sentences imposed by Knox SC DCJ and in lieu impose the following aggregate sentence - A non-parole period of six years and one month is imposed to date from 10 March 2010 expiring 9 April 2016 with a balance of term of three years expiring 9 April 2019.

Catchwords: CRIMINAL LAW - application seeking leave to appeal sentence - plea of guilty - aggregate sentence - manufacture commercial quantity of prohibited drug (methylamphetamine) and knowingly take part in supply of not less than commercial quantity of prohibited drug - further offences of possess drug manufacturing apparatus, possess unregistered firearm, not keep firearm safely - whether proper discount for pleas of guilty - whether sentence for possess unregistered firearm manifestly excessive - utilitarian value of plea should be separately considered for each offence - sentence not plainly unjust - leave to appeal granted - appeal allowed in part - sentences quashed and sentences imposed in lieu

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1966

Cases Cited: Collier v R [2012] NSWCCA 213
Hristovkski v R [2010] NSWCCA 129
Lipchin v R [2013] NSWCCA 77
Mammone v R [2013] NSWCCA 95
R v Borkowski [2009] NSWCCA 102 ; 195 A Crim R 1
SGJ v R; Ku v R [2008] NSWCCA 258

Category: Principal judgment

Parties: Pino Mammone - (Applicant)
Regina - (Crown Respondent)

Representation

- Counsel: Counsel
P Coady - (Applicant)
S Herbert - (Crown Respondent)

- Solicitors: Solicitors
Legal Aid NSW - (Applicant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2010/61604

Decision Under Appeal

- Before: BJ Knox SC DCJ

- Date of Decision: 16 March 2012

- Court File Number(s): 2010/61604

JUDGMENT

MACFARLAN JA : I agree with Latham J.
LATHAM J : The applicant, Pino Mammone, seeks leave to appeal against an aggregate sentence of 9 years and 8 months, with an aggregate non-parole period of 6 years and 5 months, imposed upon him following pleas of guilty to manufacture a commercial quantity of a prohibited drug (methylamphetamine), and knowingly take part in the supply of not less than a commercial quantity of methylamphetamine. Three further offences, namely, possessing drug manufacturing apparatus, possessing an unregistered firearm and not keep firearm safely were dealt with pursuant to s 166 of the Criminal Procedure Act 1986.
Each offence on indictment carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The applicant received a sentence of 9 years and 8 months, including a non-parole period of 5 years and 9 months for the manufacture offence.
A fixed term of 4 years and 6 months was imposed contrary…

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.

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Details

Case: [2013] NSWCCA 325
Decision Date: 20 December 2013

CaseChat Overview and Summary

The respondent, Mammone, entered a guilty plea to a range of offences related to drug manufacture and supply, possession of drug manufacturing apparatus, and firearm offences. He sought leave to appeal against the sentence imposed by the Supreme Court of Victoria, which was an aggregate sentence of 18 years imprisonment with a non-parole period of 12 years. The appeal was against the sentence, not the conviction. The central issue was whether the discount for the pleas of guilty was appropriate, and whether the sentence for the possession of an unregistered firearm was manifestly excessive. Additionally, the court considered whether the utilitarian value of the pleas should be separately considered for each offence, and if the overall sentence was plainly unjust.

The court found that the discount for the pleas of guilty was appropriate. It noted that the respondent had a significant criminal history, which was a relevant consideration in sentencing. However, the court held that the sentence for the possession of an unregistered firearm was manifestly excessive, given the respondent's guilty pleas and the fact that the firearm was not used in the commission of any of the other offences. The court also held that the utilitarian value of the pleas should be separately considered for each offence, and that the overall sentence was not plainly unjust. The court found that the sentence for the drug offences was appropriate, but that the sentence for the firearm offence was excessive.

The appeal was allowed in part, and the sentences were quashed. In lieu of the original sentences, the court imposed new sentences of 16 years imprisonment with a non-parole period of 10 years for the drug offences, and 2 years imprisonment with a non-parole period of 1 year for the firearm offences, to be served concurrently. The court noted that the new sentences reflected the appropriate discount for the pleas of guilty, and that the sentence for the firearm offence was no longer manifestly excessive. The court also noted that the new sentences were not plainly unjust, and that they appropriately reflected the seriousness of the offences and the respondent's criminal history.

Orders