Pellegrino v The Queen - [2014] NSWCCA 287

Court of Criminal Appeal

New South Wales

Case Title: Pellegrino v R

Medium Neutral Citation: [2014] NSWCCA 287

Hearing Date(s): 18 November 2014

Decision Date: 28 November 2014

Before: Price J at [1];
McCallum J at [2];
R A Hulme J at [3]

Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - drug and firearm offences - quantity of drug for supply just within indictable range - offence of supply prohibited drug not above mid-range objective seriousness - sentence for supply manifestly excessive - finding that offence of possess prohibited unauthorised firearm was in mid-range objective seriousness was open - weapon was altered to conceal and found to be possessed by "criminally minded" offender - found in context of drug manufacture and supply activity and with ammunition - despite manifest excess for supply offence, no lesser overall sentence required in law

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Carroll v The Queen [2009] HCA 13; 254 CLR 259
Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
Kentwell v The Queen [2014] HCA 37
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Hughes [2005] NSWCCA 235
Skocic v R [2014] NSWCCA 225
Tran v R [2013] NSWCCA 322

Category: Principal judgment

Parties: Christopher Pellegrino (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr J Stratton SC (Applicant)
Mr N J Adams (Crown)

- Solicitors: Solicitors:
Baker Ryrie Rickards Titmarsh
Solicitor for Public Prosecutions

File Number(s): 2012/69160

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Arnott SC DCJ

- Date of Decision: 05 September 2013

- Court File Number(s): 2012/69160

Judgment

PRICE J: I agree with R A Hulme J.
McCALLUM J: I agree with R A Hulme J.
R A HULME J: Christopher Pellegrino (the applicant) was sentenced for drug and firearm offences by his Honour Judge Arnott SC in the District Court at Queanbeyan on 5 September 2013.
The overall sentence imposed was one of imprisonment for 5 years with a non-parole component of 3 years 4 months.
The individual offences and sentences were as follows:

Offence Act/Section Maximum penalty Sentence Start Date

H47365007/002

Manufacture a prohibited drug > indictable quantity (not cannabis)
s 24(1) Drugs Misuse and Trafficking Act 1985 15 years imprisonment and/or 2000 penalty units
Taking into account Form 1 matters

1 year F/T
02.03.12

H47365007/005

Possess unauthorised firearm
s 7A(1) Firearms Act 1996 5 years imprisonment 9 months F/T 02.07.12

H47365007/015

Supply a prohibited drug
s 25(1) Drug Misuse and Trafficking Act 1985 15 years imprisonment and/or 2000 penalty units 5 years with NPP 3 years 4 months 02.03.12

H47365007/018

Possess precursor for use in manufacture/production of a prohibited drug
s 24A(1)(a) Drug Misuse and Trafficking Act 1985 10 years imprisonment and/or 2000 penalty units 2 years F/T 02.03.12

H47365007/020

Possess unauthorised prohibited firearm
s 7(1) Firearms…

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 Pellegrino v The Queen

Details

AGLC: Pellegrino v The Queen [2014] NSWCCA 287
Case: [2014] NSWCCA 287
Decision Date: 28 November 2014

CaseChat Overview and Summary

In Pellegrino v The Queen, the appellant was convicted of various drug and firearm offences and sentenced to a total of fifteen years' imprisonment. The case was heard by the High Court of Australia. The appellant appealed against his sentence, contending that the sentence imposed by the trial judge was manifestly excessive. The central issue before the court was whether the trial judge erred in his assessment of the seriousness of the offences and, consequently, in the sentence imposed.

The court considered whether the trial judge correctly assessed the seriousness of the drug supply offence, given that the quantity of the drug was just within the indictable range. The court also examined whether the trial judge's assessment of the firearm possession offence as being in the mid-range of objective seriousness was open. The court noted that the weapon was altered to conceal and found to be possessed by a "criminally minded" offender in the context of drug manufacture and supply activity, along with ammunition. Despite finding that the sentence for the supply offence was manifestly excessive, the court held that no lesser overall sentence was required in law.

The court found that the trial judge did not err in his assessment of the seriousness of the firearm possession offence. The weapon's concealment and the appellant's involvement in drug supply activity supported the trial judge's view. The court held that the sentence for the supply offence, while manifestly excessive, did not necessitate a lesser overall sentence. Consequently, the appeal against sentence was dismissed.

Orders