R v Calderoni - [2000] NSWCCA 511

CITATION: Regina v Fabrizio Calderoni [2000] NSWCCA 511

FILE NUMBER(S): CCA 60498/2000

HEARING DATE(S): 22 November 2000

JUDGMENT DATE:
22 November 2000

PARTIES :

Regina
Fabrizio Calderoni

JUDGMENT OF: Sully J at 1; Bell J at 30; Whealy J at 31

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70034/97

LOWER COURT JUDICIAL
OFFICER : Greg James J

COUNSEL : R. Cogswell SC - Crown
P. Hamill - Respondent

SOLICITORS: S. E. O'Connor - Crown
Russo & Coburn - Respondent

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION: Crown appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60498/00
SULLY J
BELL J
WHEALY J
22 November 2000

REGINA v Fabrizio CALDERONI
JUDGMENT

1 SULLY J:: This is a Crown appeal against sentence. It challenges a sentence passed upon Mr Fabrizio Calderoni ("the respondent") by his Honour Greg James J of this Court on 16 June last year. 2 The material facts are these. The respondent was tried and acquitted on a charge of murder. During the course of his trial he gave sworn evidence. Some of the evidence thus given was capable of amounting to admission evidence of his inculpation in a robbery in company. 3 Following his acquittal on the murder charge, that acquittal having occurred on 24 March last, an ex officio indictment charging robbery in company was preferred by the Attorney General against the respondent; and in due course the respondent pleaded guilty before James J to that charge. 4 Such an offence contravenes section 97 of the Crimes Act 1900; and it attracts upon conviction a statutory maximum penalty of imprisonment for twenty years. His Honour dealt with the respondent, effectively, by sentencing him to two years' imprisonment without a non-parole period, and by thereupon suspending in manner provided by the recently enacted Crimes (Sentencing Procedure) Act 1999, the operation of the whole of that two year sentence. That is the essential background against which the present Crown appeal is brought. 5 So far as concerns the relevant objective facts surrounding the robbery in company, they are sufficiently stated in the following extracts from his Honour's remarks on sentence.

"The offender met Graeme Brown in Alice Springs about the end of 1986 when he and his then partner, Sandy Hamilton, stayed at a house occupied by Brown and one 'Roslyn Rogers ('Ros') also known as 'Patricia Adams'. He returned to Brisbane in November 1987 and his relationship with Ms Hamilton ceased in late 1990. The offender started seeing a Karen Skinner. At the beginning of 1991, he and Ms Skinner went to Long Jetty and stayed with 'Ros' for a while before renting a place next door.

About June 1991, Brown visited 'Ros' a couple of times. The offender saw him about three to four days prior to 11 June 1991 and again on 11 June 1991.

At the earlier meeting, Brown told the offender that 'someone had ripped him off ... he wanted it back ... and might want me…

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 Calderoni

Details

AGLC: R v Calderoni [2000] NSWCCA 511
Case: [2000] NSWCCA 511
Decision Date: 22 November 2000

CaseChat Overview and Summary

Regina v Fabrizio Calderoni is a Crown appeal against the sentence imposed on Fabrizio Calderoni by his Honour Greg James J of the Supreme Court. Calderoni was acquitted of murder but pleaded guilty to a charge of robbery in company. The appeal challenges the sentence passed upon Calderoni, which was two years' imprisonment without a non-parole period, suspended under the Crimes (Sentencing Procedure) Act 1999. The primary legal issue before the Court of Criminal Appeal was whether the primary Judge erred in his perception of the scope and operation of section 23 of the Crimes (Sentencing Procedure) Act 1999, which deals with the discount a court may grant for assistance given to the authorities. The Court held that unwitting assistance given to the authorities could not come within the purview of section 23, and thus his Honour's perception was incorrect. The Court also considered whether the sentence imposed was appellably lenient, given the statutory maximum penalty for robbery in company is imprisonment for twenty years. Although the sentence was considered extremely lenient, the Court decided not to intervene due to Calderoni's demonstrated ongoing rehabilitation and the delay in the proceedings. The Court of Criminal Appeal dismissed the Crown appeal.

Orders