Oliveri v The Queen - [2011] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Oliveri v R [2011] NSWCCA 38
Hearing dates: 7 February 2011
Decision date: 10 March 2011
Before: McClellan CJ at CL at [1]
Buddin J at [71]
Schmidt J at [72]
Decision:
1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss that appeal.

Catchwords:
CRIMINAL - appeal against conviction- Shepherd direction not required on facts - failure to issue s 165 Evidence Act warning did not render the verdict of the jury unreasonable - Edwards direction not required - appeal against conviction dismissed
CRIMINAL - appeal against sentence - sentence was not disproportionate to appellant's criminality - sentence of co-offender did not indicate a lesser sentence for appellant - leave to appeal granted but appeal against sentence dismissed
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act
Cases Cited: Dhanhoa v The Queen (2003) 217 CLR 1
Edwards v R (1993) 178 CLR 193
Pham v R (2009) NSWCCA 25; 193 A Crim R 190
R v Bartle (2003) NSWCCA 329; 181 FLR 1
R v Birks (1990) 19 NSWLR 677
R v Johnstone (2004) NSWCCA 58
R v Olbrich (1999) 199 CLR 270
Shepherd v The Queen (1990) 170 CLR 573
Webb v The Queen (1994) 1 CLR 41
Wood v The Queen (2001) NSWCCA 228
Zoneff v The Queen (2000) 220 CLR 234
Category: Principal judgment
Parties: Antonio Oliveri (appellant)
The Crown
Representation: Counsel:
G Nicholson QC (appellant)
I Bourke (Crown)
Solicitors:
William Whitby Solicitors (appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2008/5502
Decision under appeal

Date of Decision:

2009-07-03 00:00:00

Before:

Williams DCJ

Judgment

McCLELLAN CJ at CL: The appellant was convicted of knowingly taking part in the supply of a commercial quantity of pseudoephedrine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is life imprisonment. There is a standard non-parole period of 15 years. The appellant was sentenced to a minimum term of 6 years with an additional term of 2 years imprisonment.

The appellant stood trial with three co-accused. The appellant and two of the three co-accused were found guilty. One of the co-accused (Phuong Nguyen) was found not guilty. Another co-accused (Thanh Dinh Phan) had earlier pleaded guilty to importing the prohibited substance.

The Crown case was that three cardboard boxes were imported through Sydney International airport, arriving on 14 March 2007. The boxes had come from Vietnam and were addressed to Phuong Nguyen at an address in Tempe.

The boxes were x-rayed by customs and when further examined two of them were found to contain pseudoephedrine with a total gross weight of 43.9 kilograms. The police removed the drugs from the boxes and substituted an inert powder to facilitate a controlled delivery. A listening device was also placed in one of the boxes.

A police officer, posing as a delivery driver, delivered 3 boxes to the Tempe address. Phuong Nguyen took…

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 Oliveri v The Queen

Details

AGLC: Oliveri v The Queen [2011] NSWCCA 38
Case: [2011] NSWCCA 38
Decision Date: 10 March 2011

CaseChat Overview and Summary

The case of Oliveri v The Queen involved an appeal against both conviction and sentence by the appellant, Mr Oliveri. The dispute arose from his conviction for drug trafficking and related charges, with the appellant challenging the trial judge's handling of certain evidentiary matters and the proportionality of his sentence. The High Court of Australia was tasked with reviewing the decisions made by the lower courts.

The primary legal issues addressed by the Court were whether the trial judge should have issued a Shepherd direction, whether the failure to issue a s 165 Evidence Act warning rendered the jury's verdict unreasonable, and whether an Edwards direction was necessary. Additionally, the Court considered whether the sentence imposed on the appellant was disproportionate to his criminality and whether the sentence of his co-offender warranted a different outcome for the appellant.

In its reasoning, the Court found that the trial judge was not required to issue a Shepherd direction as the circumstances did not necessitate it. Furthermore, the Court held that the failure to issue a s 165 Evidence Act warning did not make the jury's verdict unreasonable, and an Edwards direction was also not required. As for the sentence, the Court determined that it was not disproportionate to the appellant's criminality, and the sentence of the co-offender did not indicate that a lesser sentence should have been imposed on the appellant.

Consequently, the Court dismissed the appeal against conviction and upheld the trial judge's decisions. However, while granting leave to appeal on the sentence, the Court dismissed the appeal against sentence, maintaining that the sentence imposed was appropriate.

Orders