Mauceri v Regina - [2007] NSWCCA 262

New South Wales
Court of Criminal Appeal

CITATION: Mauceri v Regina [2007] NSWCCA 262

HEARING DATE(S): 10 August 2007

JUDGMENT DATE:
4 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Harrison J at 2; Fullerton J at 49

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - leave to appeal against sentence - conspiracy to import commercial quantity of MDMA - whether sentence manifestly excessive having regard to applicant's involvement in offence and early guilty plea - whether appropriate sentencing discounts allowed having regard to applicant's advanced age, poor health and the combined effect of an early guilty plea and applicant's willingness to assit authorities - question of parity with co-offender - appeal dismissed

LEGISLATION CITED: Customs Act 1901 - ss 233(1)(b), 235(2)(c)(i)

CASES CITED: R v Gallagher (1991) 23 NSWLR 220
R v Olbrich (1999) 199 CLR 270
R v Shepherd 142 A Crim R 101; [2003] NSWCCA 287
R v Joseph Sukkar [2006] NSWCCA 92
R v Si ThanhTo [2007] NSWCCA 200
SZ v Regina 168 A Crim R 249; [2007] NSWCCA 19

PARTIES: Antonio Mauceri (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/4658 (formerly 2007/1219)

COUNSEL: Mr P Byrne SC (Applicant)
Mr M Wigney (Respondent)

SOLICITORS: Gregory J Goold (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0269

LOWER COURT JUDICIAL OFFICER: Andrew A-DCJ

LOWER COURT DATE OF DECISION: 20 December 2005 (date of sentence)

2006/4658 (formerly 2007/1219)
McCLELLAN CJ at CL
HARRISON J
FULLERTON J

4 September 2007

Antonio Mauceri v Regina

Judgment

1 McCLELLAN CJ at CL: I agree with Harrison J.

2 HARRISON J: The applicant pleaded guilty on 1 December 2005 to an indictment charging that between about 19 June 2004 on 15 December 2004 at Sydney and elsewhere he conspired to commit an offence against s 233B(1)(b) of the Customs Act 1901 to import into Australia a quantity of 3,4 methylenedioxymethylamphetamine (commonly referred to as MDMA or ecstasy) being not less than the commercial quantity applicable to that drug.

3 The maximum penalty prescribed by s 235(2)(c)(i) of the Customs Act 1901 for this offence is life imprisonment or a fine not exceeding $825,000 or both.

4 The applicant adhered to his plea before his Honour Andrew A-DCJ on 20 December 2005. His Honour determined that the starting point for an offence of this seriousness was imprisonment for a period of 16 years. This was reduced by 50 per cent due to the applicant’s plea of guilty and assistance to the authorities. He was sentenced to a non-parole period of 5 years commencing on 15 December 2004 and expiring on 14 December 2009 with a balance of term of 3 years commencing on 15 December 2009 and expiring on 14 December 2012.

5 The applicant seeks leave to appeal to this Court against the sentence imposed. There are three grounds of appeal: -

5.1 The starting point at which the sentencing judge commenced the calculation of sentence prior to allowing…

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 Mauceri v Regina

Details

AGLC: Mauceri v Regina [2007] NSWCCA 262
Case: [2007] NSWCCA 262
Decision Date: 4 September 2007

CaseChat Overview and Summary

In the matter of Mauceri v Regina, the respondent, Regina, sought leave to appeal against a sentence imposed on the applicant, Mauceri, who had been convicted of conspiracy to import a commercial quantity of MDMA. The application for leave to appeal was heard in the High Court of Australia. The primary issue before the Court was whether the sentence imposed on Mauceri was manifestly excessive, taking into account his level of involvement in the offence, his early guilty plea, and other mitigating factors such as his advanced age, poor health, and willingness to assist the authorities. Another significant legal question was whether the sentence appropriately reflected the discounts that should have been applied due to Mauceri's cooperation with the authorities and his early guilty plea.

The Court considered the principles of sentencing in relation to conspiracy offences and the importance of ensuring sentences are proportionate to the offender's culpability and the circumstances of the case. It was noted that Mauceri had played a significant role in the conspiracy but had also shown remorse and cooperated with the authorities. The Court assessed the discount for the early guilty plea and Mauceri's assistance in light of these factors. The Court further examined the question of parity with co-offenders, considering whether the sentence was consistent with those received by others involved in the same criminal activity. Ultimately, the Court found that the sentence imposed was not manifestly excessive and that the sentencing discounts appropriately reflected Mauceri's level of involvement, his cooperation, and other mitigating factors.

The Court dismissed the application for leave to appeal, affirming the sentence imposed by the lower court. The reasoning and analysis provided by the Court highlight the importance of considering the totality of circumstances in sentencing, including the offender's culpability, the nature of their involvement, and any mitigating factors such as cooperation with authorities. The outcome of the case underscores the Court's approach to ensuring sentences are just and proportionate, while also taking into account the broader principles of criminal justice and the need for consistency in sentencing similar offences.

Orders