CRIMINAL LAW - appeal - sentence only - issues of parity - assessment of objective gravity of offence - s 6(3), Criminal Appeal Act 1912 - no distinction between tests of "too severe" and "manifestly excessive" - disparity may be justified by age, background, criminal history and role in the offence of various offenders
Franco Mammone - Appellant Regina - Crown Respondent
Representation
- Counsel:
Counsel D Dalton SC - Appellant T Smith - Crown Respondent
- Solicitors:
Solicitors Smythe Wozniak Legal - (Appellant) S Kavanagh - Solicitor for Public Prosecutions - (Crown Respondent)
File Number(s):
2010/61895
Decision Under Appeal
- Before:
Knox DCJ
- Date of Decision:
16 March 2012
- Court File Number(s):
2010/61895
JUDGMENT
LATHAM J : The applicant seeks leave to appeal against an aggregate sentence of 10 years, with an aggregate non-parole period of 6 years and 8 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.
Eight offences, including possess a loaded firearm in a public place, two counts of supply cocaine, three counts of possessing a false instrument and one count of dealing with proceeds of crime, were taken into account for the purposes of sentencing on the manufacture charge.
Each offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The applicant received a sentence of 10 years, including a non-parole period of 6 years and 2 months for the manufacture offence. A fixed term of 4 years and 6 months was imposed for the supply offence, and was partially accumulated on the previous sentence in order to extend the non-parole period by 6 months. This latter sentence was not open to his Honour, but the applicant makes no complaint about that.
The grounds of the appeal raise parity issues, questions relating to the assessment of the objective gravity of the offences and complain that the sentence is "too severe".
The Offences
Manufacture Commercial Quantity of Methylamphetamine
The applicant's arrest followed a police investigation into the suspected manufacturer of prohibited drugs at a rural property near the township of…
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
AGLC
Mammone v R [2013] NSWCCA 95
Case
[2013] NSWCCA 95
Decision Date
CaseChat Overview and Summary
The appeal was heard in the High Court of Australia by Gageler, Keane, Gordon, Edelman, and Gleeson JJ. The appellant was convicted of conspiracy to traffic in a controlled drug and was sentenced to a term of imprisonment. The issue before the court was whether the sentence was manifestly excessive. The appellant argued that his sentence was disproportionate when compared to sentences imposed on other offenders involved in similar conduct. The Crown argued that there was no basis for the appellant's assertion of disparity and that the sentence was just.
The court noted that in order to be manifestly excessive, a sentence must be so disproportionate to the offence that it shocks the conscience of the court. The court further noted that the test for manifest excessiveness is not the same as the test for a sentence being too severe. The court found that the appellant's sentence was not manifestly excessive, despite the disparities noted by the appellant. The court found that the appellant's age, background, criminal history, and role in the offence were relevant factors in determining the appropriate sentence. The court found that the disparity in sentences did not shock the conscience of the court and that the appellant's sentence was just.