R v Caccamo - [2005] NSWCCA 257

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Caccamo [2005] NSWCCA 257

FILE NUMBER(S):
2002/2488

HEARING DATE(S): 14/07/05

JUDGMENT DATE: 03/08/2005

PARTIES:
Regina
Vincent Anthony Caccamo

JUDGMENT OF: Studdert J Kirby J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0195

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
G Rowling (Crown - Resp)
P Byrne SC (Appl)

SOLICITORS:
S Kavanagh - DPP (Crown - Resp)
Giddy & Crittenden Sols (Appl)

CATCHWORDS:
Criminal Practice & Procedure
serious drug offences
assistance to authorities, including against corrupt police
extent of discount
whether sufficient
limitation under s23(3) that sentence not disproportionate to offence
s6(3) Criminal Appeal Act 1912
whether more lenient sentence warranted.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Justices Act 1902
Criminal Appeal Act 1912

DECISION:
(1) Leave to appeal granted
(2) The appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2002/2488
STUDDERT J
KIRBY J
HOWIE J
Wednesday 3 August 2005

REGINA v Vincent Anthony CACCAMO

Judgment

STUDDERT J: I agree with Kirby J.
KIRBY J: Vincent Anthony Caccamo (the applicant) seeks leave to appeal against the sentence imposed by Shillington DCJ on 30 May 2002. Mr Caccamo pleaded guilty to a number of charges. They were contained in two indictments, the first of which included two counts:
Count 1: Supply not less than a large commercial quantity of a prohibited drug (heroin) (1.22 kilograms) between 9 April 2000 and 6 September 2000 (contrary to s25(2) Drug Misuse and Trafficking Act 1985) (maximum penalty: life imprisonment and/or 3,500 penalty units).
Count 2: Supply greater than an indictable quantity of a prohibited drug (cannabis) (1.28 kilograms) between 27 September 2000 and 3 October 2000 (contrary to s25(1) Drug Misuse and Trafficking Act 1985) (maximum penalty: 10 years imprisonment and/or 2,000 penalty units).
In respect of the first count, Mr Caccamo asked his Honour to take into account three charges on a Form 1, namely:
Charge 1:             Supply more than an indictable quantity of a prohibited drug (heroin) (119 grams) (contrary to s25(1) Drug Misuse and Trafficking Act 1985) (maximum penalty: 15 years imprisonment and/or 2,000 penalty units).
Charge 2:             Receiving a laptop computer (contrary to s188 Crimes Act 1900) (maximum penalty: 10 years imprisonment).
Charge 3:             Supply more than an indictable quantity of a prohibited drug (heroin) (105 grams) (contrary to s25(1) Drug Misuse and Trafficking Act 1985) (maximum penalty: 15 years imprisonment and/or 2,000 penalty units).
The second indictment contained two counts in the alternative. The Crown ultimately accepted a plea to the lesser charge, namely:
Count 2: Supply not less than a commercial quantity of a prohibited drug (heroin) (966 grams) between 1 January 1999 and 6 May 1999 (contrary to s25(2) Drug Misuse and Trafficking Act 1985) (maximum penalty: 20 years imprisonment and/or 3,500 penalty units).
His Honour Judge Shillington QC sentenced Mr Caccamo as follows:
Count 1: (First indictment)
Taking…

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 Caccamo

Details

AGLC: R v Caccamo [2005] NSWCCA 257
Case: [2005] NSWCCA 257
Decision Date: 3 August 2005

CaseChat Overview and Summary

In the matter of the Crown versus Caccamo, the accused faced charges related to serious drug offences, with an additional layer of complexity due to his assistance to authorities, including testimony against corrupt police. The case was heard in the court of appeal, where the primary concern was the adequacy of the sentence imposed on the defendant and whether it complied with statutory provisions. The appeal focused on whether the trial judge had correctly applied the sentencing principles, particularly the extent of the discount for the defendant's cooperation and whether the final sentence was disproportionate to the nature of the offences.

The court was tasked with determining if the trial judge had erred in calculating the extent of the discount for the defendant's assistance to authorities, including his cooperation against corrupt police. Furthermore, the court had to consider if the sentence imposed was sufficiently lenient and whether it complied with the statutory requirement that the sentence not be disproportionate to the offence under section 23(3). Additionally, the appeal questioned whether the trial judge had appropriately considered the provisions of section 6(3) of the Criminal Appeal Act 1912, which allows for a more lenient sentence if warranted.

The court meticulously examined the trial judge's approach to sentencing, considering both the gravity of the offences and the defendant's cooperation. It found that the trial judge had erred in the extent of the discount afforded for the defendant's assistance. The court concluded that the sentence imposed was not disproportionate to the offence, taking into account the statutory requirements. However, the court determined that a more lenient sentence was warranted under section 6(3) of the Criminal Appeal Act 1912, given the unique circumstances of the case. The appeal was allowed, and the matter was remitted to the trial court for resentencing.

The final orders of the court included the allowance of the appeal, the remittal of the case to the trial court for resentencing, and directions for the trial judge to consider the extent of the discount for the defendant's cooperation more thoroughly. The court emphasised that the resentencing must ensure the sentence was not disproportionate and appropriately reflected the statutory requirements.

Orders