R v Andrea Rocco - [2001] NSWCCA 124

CITATION: R v Andrea Rocco [2001] NSWCCA 124

FILE NUMBER(S): CCA 60213/00

HEARING DATE(S): 06/03/01

JUDGMENT DATE:
6 March 2001

PARTIES :

Regina
v
Andrea Rocco

JUDGMENT OF: Meagher JA at 1; Hulme J at 27; Smart AJ at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0084

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : Applicant: G J Drake
Crown: C O'Donnell

SOLICITORS: Applicant: Peter Ash & Associates
Crown: Commonwealth Director of Public Prosecutions

CATCHWORDS: Criminal law - importation of prohibited substance - appeal against conviction - direction to jury - circumstantial case - appeal against severity of sentence - principle of parity - appeal dismissed.

LEGISLATION CITED: Customs Act (1901) s 233B (1) (d)
Proceeds of Crime Act (1987)

CASES CITED:
Chamberlain (No 2) 153 CLR521 at 606-7

DECISION: Application dismissed both as to sentence and as to conviction.

SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL COURT OF APPEAL

CCA 60213/00

MEAGHER JA

HULME J

SMART AJ

Tuesday, 6 March 2001

REGINA v ANDREA ROCCO

JUDGMENT

1 MEAGHER JA: The appellant, Mr Andrea Rocco, was found guilty by a jury on 30 March 2000 of a charge under s 233B (1) (d) of the Customs Act (1901) in that he was knowingly concerned in the importation into this country of a commercial quantity of MDMA or ecstasy. The maximum sentence for such an offence is life imprisonment. The commercial quantity applicable to MDMA is 0.5 kilograms. The gross weight of the tablets involved was 17.224 kilograms (approximately 70,135 tablets). The net weight was calculated to be 4.027 kilograms.

2 On 14 April 2000 the appellant was sentenced by his Honour Judge Shillington QC to thirteen years imprisonment with a non-parole period of nine years, both to date from 21 October 1998. An order was also made under the Proceeds of Crime Act (1987) that $US3,100 in his possession was an asset to be forfeited.

3 The appellant arrived in Australia on 13 October 1998. On 15 October 1998 he and one Mordechai Cohen visited Control Customs at Mascot, a suburb of Sydney, and showed them paperwork in respect of a shipment of water pumps which were consigned from France to a firm at Mona Vale. The crates containing two boxes, each of which had a water pump, arrived on 18 October and were loaded at the Ansett Bond Store.

4 On 17 October the appellant went to a storage unit at Hornsby. On 19 October he and Mordechai Cohen attended the Thrifty Car Rental office at Hornsby and hired a Mitsubishi van in the appellant’s name.

5 On 20 October the crate was inspected by customs officers, who located inside the water pumps 17.2224 kilograms of MDMA tablets. They were replaced with substitute tablets in a small controlled delivery sample. On 21 October the crates containing the two boxes of pumps were taken from Ansett to Control Customs. The appellant went there and loaded the crates onto the Thrifty van.

6 At about 11.15…

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 R v Andrea Rocco

Details

AGLC: R v Andrea Rocco [2001] NSWCCA 124
Case: [2001] NSWCCA 124
Decision Date: 6 March 2001

CaseChat Overview and Summary

The case of R v Andrea Rocco involved the appellant who was convicted by a jury of charges related to the importation of a prohibited substance. The trial took place in the Supreme Court of Victoria, and the appellant subsequently appealed against both the conviction and the severity of the sentence. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issues the court needed to address were whether the trial judge correctly directed the jury on the principles of circumstantial evidence in relation to the appellant's conviction, and whether the sentence imposed was appropriate in light of the principle of parity. The court considered whether the evidence was sufficient to support the jury's verdict and if the judge's instructions were adequate. Additionally, the court examined if the sentence was commensurate with similar cases under the principle of parity.

The Court of Appeal found that the trial judge had properly directed the jury on the necessary principles for evaluating circumstantial evidence, and that the jury's conclusion was adequately supported by the evidence presented. The court also determined that the sentence was neither manifestly excessive nor inadequate, taking into account the principle of parity and the circumstances of the case. Consequently, the appeal against both the conviction and the sentence was dismissed.

The final orders of the Court of Appeal were that the conviction and sentence imposed by the trial judge were upheld, and the appeal was dismissed in its entirety.

Orders