R v Canino - [2002] NSWCCA 76

CITATION: Regina v Canino [2002] NSWCCA 76

FILE NUMBER(S): CCA 60914/01

HEARING DATE(S): 6/3/02

JUDGMENT DATE:
8 March 2002

PARTIES :

Regina
Charles Canino

JUDGMENT OF: O'Keefe J at 1; Stein JA at 26; Buddin J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Coorey DCJ

COUNSEL : Crown - Ms Woodburne
Respondent - Odgers SC

SOLICITORS:

CATCHWORDS: Criminal Law - Sentencing - Crown appeal - Knowingly take part in supply of prohibited drugs - Cannabis - Sentence manifestly inadequate - Parity - Definition of involvement of offender - Comparison of objective involvement in criminal enterprise - Comparison of subjective situation of offenders - Custodial sentence appropriate - Special circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 44(2)
Criminal Appeal Act 1912, s 5D

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606

DECISION: 1. Crown appeal allowed ; 2. Existing sentence quashed ; 3. Respondent, Charles Canino, sentenced to imprisonment for two years to commence on 6 March, 2002 and to expire on 5 March, 2004 ; 4. Respondent, Charles Canino, is to become eligible for parole on 6 December, 2002.

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60914/01

Stein JA
O’Keefe J
Buddin J

8 March 2002

Regina v CHARLES CANINO

Judgment

1 O’KEEFE J: This appeal was heard on 6 March, 2002. On that date the Court made orders as follows:

1. Crown appeal allowed.

2. Existing sentence quashed.

3. Respondent, Charles Canino, sentenced to imprisonment for two years to commence on 6 March, 2002 and to expire on 5 March, 2004.

2 This is an appeal pursuant to s 5D of the Criminal Appeal Act 1912 by the Crown against a sentence imposed in the District Court on 23 October, 2001 on Charles Canino (the respondent) on the basis that it was manifestly inadequate. The respondent had pleaded guilty to a charge of knowingly taking part in the supply of a prohibited drug. The prohibited drug was cannabis. The amount involved was 17.3 kg. Its street value was $200,000. The maximum penalty provided for the offence is ten years imprisonment or a fine of 2000 penalty units or both.

3 The cannabis in question had been brought from South Australia, where it had been accumulated or stockpiled by the respondent for the purposes of satisfying an order which had been placed for New South Wales. The District Court Judge imposed a sentence of two years imprisonment, but suspended the execution of the sentence conditionally on the respondent entering into a good behaviour bond.

4 Other persons had been engaged in the enterprise which involved the bringing into New South of the 17.3 kg of cannabis for distribution in this State. One was a relative of the respondent (Gligora). Another was…

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 Canino

Details

AGLC: R v Canino [2002] NSWCCA 76
Case: [2002] NSWCCA 76
Decision Date: 8 March 2002

CaseChat Overview and Summary

The case involved a Crown appeal against the sentence given to Canino, who had been found guilty of knowingly taking part in the supply of prohibited drugs, specifically cannabis. The trial judge had sentenced Canino to a non-custodial sentence, which the Crown deemed manifestly inadequate. The matter was heard in the Court of Appeal. The primary legal issue before the court was whether the sentence imposed was manifestly inadequate and whether the trial judge had failed to consider the principles of parity in sentencing similar offenders. The court also had to determine the appropriate sentence for the offence and whether the special circumstances of the case warranted a custodial sentence.

The court found that the trial judge had not adequately considered the principles of parity and had failed to sufficiently justify the non-custodial sentence. In particular, the court emphasised the importance of considering the objective involvement of the offender in the criminal enterprise and the subjective situation of the offender in determining the appropriate sentence. The court noted that Canino's involvement in the supply of prohibited drugs was significant and that a non-custodial sentence did not reflect the seriousness of the offence. The court also considered the need for general deterrence and the protection of the community. As a result, the court found that the sentence was manifestly inadequate and allowed the Crown's appeal.

The court re-sentenced Canino to a custodial sentence of imprisonment for a period to be determined by the trial judge upon re-sentencing. The court emphasised the importance of considering the principles of parity in sentencing and the need to ensure that sentences reflect the seriousness of the offence and the circumstances of the offender. The court also noted that special circumstances of the case, including Canino's significant involvement in the supply of prohibited drugs, warranted a custodial sentence. The final orders of the court included the quashing of the original sentence and the re-sentencing of Canino to a term of imprisonment.

Orders