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Picciolo v The Queen

Picciolo v The Queen

Case [2011] NSWCCA 180 10 August 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Picciolo v R [2011] NSWCCA 180
Hearing dates: 1 August 2011
Decision date: 10 August 2011
Before: McClellan CJ at CL at [1]
Simpson J at [52]
Fullerton J at [61]
Decision:
1. Grant leave to appeal.
2. Appeal upheld in part.
3. Quash the sentence imposed in the District Court in relation to the offence of aggravated break and enter and for that offence sentence the applicant to an non-parole period of 2 years commencing 14 August 2009 and expiring on 13 August 2011 and to a total term of 4 years expiring on 13 August 2013.

Catchwords: CRIMINAL - sentence appeal - effect of mental illness on applicant's reasoning capacity and culpability - responding to treatment - appeal upheld - sentence adjusted.
Legislation Cited: Crimes Act 1900
Crime (Domestic and Personal Violence) Act 2007
Crimes Sentencing Procedure Act 1999
Cases Cited: Ali & Hussain v R (2010) NSWCCA 184
Bajouri v R [2009] NSWCCA 125
Crook v R [2008] NSWCCA 84
Fajloun & Fajloun v R [2011] NSWCCA 41
Palijan v R [2010] NSWCCA 142
The Queen v Heine [2008] NSWCCA 61
R v Pham [2005] NSWCCA 314
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Kai Daniel Picciolo (Applicant)
The Crown
Representation: K H Averre (Applicant)
C Maxwell QC (Crown)
Legal Aid Commission of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/198257
Decision under appeal

Date of Decision:

2010-10-28 00:00:00

Before:

English DCJ

File Number(s):

2009/198257

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to three counts on an indictment. They were:

1. Break and enter a dwelling house and commit a serious indictable offence whilst armed with an offensive weapon contrary to s 112(2) of the Crimes Act 1900.

2. Taking or detaining a person without their consent and with the intention of obtaining an advantage namely psychological satisfaction contrary to s 86(1) of the Crimes Act 1900.

3. Common assault contrary to s 61 of the Crimes Act 1900.

Prior to committing these offences the applicant had been apprehended and charged with an offence of stalking or intimidating his estranged wife contrary to s 13 of the Crime (Domestic and Personal Violence) Act 2007. He pleaded guilty and was sentenced for this offence at the same time as he was sentenced for the other matters.

The offence of stalking or intimidating occurred on 21 May 2009. The other offences all occurred on 14 August 2009.

The applicant was sentenced to an overall term of 5 years imprisonment with a non-parole period of 3 years. For the offence contrary to s 13 of the Crime (Domestic and Personal Violence) Act 2007 the applicant received a bond to be of good behaviour for 3 years. In respect of the offence contrary to s 112(2) of the Crimes Act the applicant was sentenced to 5 years imprisonment with a non-parole period of 3 years. The maximum penalty…

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 Picciolo v The Queen

Details

AGLC: Picciolo v The Queen [2011] NSWCCA 180
Case: [2011] NSWCCA 180
Decision Date: 10 August 2011

CaseChat Overview and Summary

In the case of Picciolo v The Queen, the appellant, Mr. Picciolo, sought to appeal his sentence on the basis that his mental illness significantly impaired his reasoning capacity and culpability at the time of the offence. The appeal was heard in the High Court of Australia. Mr. Picciolo argued that his mental health condition, which was in remission at the time of sentencing, had not been adequately considered, leading to an inappropriate assessment of his culpability and an overly harsh sentence.

The legal issues before the court were whether the trial judge had erred in not sufficiently considering the impact of Mr. Picciolo's mental illness on his capacity for reasoning and culpability, and whether this omission warranted an adjustment of the sentence. The court examined whether the evidence of mental illness and its effects on Mr. Picciolo's reasoning and culpability at the time of the offence was properly assessed and weighed in the sentencing process. The court also considered the extent to which the appellant's mental health condition, which was in remission at the time of sentencing, influenced his culpability and deserved to be reflected in the sentence.

The High Court found that the trial judge had not adequately considered the effect of Mr. Picciolo's mental illness on his reasoning capacity and culpability. The court held that the trial judge's failure to sufficiently account for the appellant's mental health condition at the time of the offence constituted a significant error in the sentencing process. Consequently, the appeal was upheld, and the sentence was adjusted to more appropriately reflect Mr. Picciolo's circumstances, taking into account his mental health condition and its impact on his culpability.

Orders