R v D'Amico - [2020] NSWDC 344

District Court

New South Wales

Medium Neutral Citation: R v D’Amico [2020] NSWDC 344
Hearing dates: 27 March 2020
Decision date: 27 March 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
The offender is sentenced to a term of imprisonment of 7 years comprising a NPP of 4 years and 6 months to commence on 13 May 2019 and to expire on 12 November 2023, and a balance of term of 2 years and 3 months to commence on 13 November 2023 and to expire on 12 May 2026.
To be released to parole on or about 12 November 2023.

Catchwords:
CRIME – Sentence - aid, abet, counsel or procure an attempt to possess a commercial quantity of a border controlled drug – offender’s role – seriousness of offence - specific and general deterrence – subjective matters

Legislation Cited:
Criminal Code Act (Cth) 1995
Crimes Act (Cth) 1914

Cases Cited:
R v Chen, Siregar, Ismunandar and Lau [2002] NSWCCA 174
R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported)
R v Nguyen, R v Pham [2010] 205 A Crim R 106
Wong v The Queen (2001) 207 CLR 584

Category: Sentence
Parties: Regina
D’Amico, Antonio
Representation:
Counsel:
Defence: Mr J Davidson
Solicitors:
Crown: Ms L Hancock
Defence: Mr A Herring

File Number(s): 2019/00106513

Judgment

Antonio D’Amico appears for sentence in respect of an offence that he did aid, abet, counsel or procure an attempt to possess a commercial quantity of a border controlled drug, 3.4 methylenedioxymethamphetamine (MDMA). That offence is contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth). The maximum penalty provided is life imprisonment.
The offender was committed for sentence on 22 January 2020 at the Central Local Court. He is entitled to a discount on sentence for the utility of the plea and also for facilitating the course of justice. I will discount the sentence in the order of 25%, being slightly more to round the matter down to even years.
The facts are agreed and are as follows:

BACKGROUND

Antonio D’Amico is a dual citizen of Italy and Australia. He is a self-employed disc jockey.
Diego Ardimento is an Italian national who arrived in Australia in 2013 and is currently on a de facto visa which expires in June 2020. He is employed as a café manager.
Ardimento has been committed to stand trial with respect to the same offence as this offender.

THE CONSIGNMENT

On 11 March 2019, two air cargo consignments, purportedly consisting of water filters, arrived in Australia from Switzerland by the Deutsche postal service. The details of the consignor and consignee are as follows:

Consignor: Pierre Straub, CH Eduard Olivet 36, Geneve, Switzerland, Consignee: Frantz Carol, 33 Bent Street, Paddington, NSW, 2021.

On 12 March 2019, the Australian Border Force randomly selected the consignments for X-ray. Upon examination, each consignment revealed the following:

Consignment 1 contained three water filters
Consignment 2 contained nine water filters

Each water filter was deconstructed and found to contain…

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 D'Amico

Details

AGLC: R v D'Amico [2020] NSWDC 344
Case: [2020] NSWDC 344
Decision Date: 27 March 2020

CaseChat Overview and Summary

In the case of R v D’Amico, the defendant was convicted of aiding, abetting, counselling, or procuring an attempt to possess a commercial quantity of a border controlled drug. The matter was heard and determined in the relevant court. The primary issue for the court to decide was the appropriate sentence to be imposed on the offender, taking into account the nature and circumstances of the offence, as well as the principles of specific and general deterrence. Additionally, the court was required to consider the offender's role in the offence and the seriousness of the crime.

The court thoroughly examined the evidence presented and the arguments advanced by both parties. In reaching its decision, the court considered the offender's role in the offence, the seriousness of the crime, and the need for specific and general deterrence. The court also took into account the subjective matters relevant to the offender's background and circumstances. Ultimately, the court determined that a sentence of imprisonment was appropriate, and imposed a term of 7 years, comprising a non-parole period of 4 years and 6 months, followed by a balance of term of 2 years and 3 months. The offender is to be released to parole on or about 12 November 2023.

Orders

Orders of the court

Convicted.

The offender is sentenced to a term of imprisonment of 7 years comprising a NPP of 4 years and 6 months to commence on 13 May 2019 and to expire on 12 November 2023, and a balance of term of 2 years and 3 months to commence on 13 November 2023 and to expire on 12 May 2026.

To be released to parole on or about 12 November 2023.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v D’Amico [2020] NSWDC 344
Hearing dates:	27 March 2020
Decision date:	27 March 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. The offender is sentenced to a term of imprisonment of 7 years comprising a NPP of 4 years and 6 months to commence on 13 May 2019 and to expire on 12 November 2023, and a balance of term of 2 years and 3 months to commence on 13 November 2023 and to expire on 12 May 2026. To be released to parole on or about 12 November 2023.
Catchwords:	CRIME – Sentence - aid, abet, counsel or procure an attempt to possess a commercial quantity of a border controlled drug – offender’s role – seriousness of offence - specific and general deterrence – subjective matters
Legislation Cited:	Criminal Code Act (Cth) 1995 Crimes Act (Cth) 1914
Cases Cited:	R v Chen, Siregar, Ismunandar and Lau [2002] NSWCCA 174 R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported) R v Nguyen, R v Pham [2010] 205 A Crim R 106 Wong v The Queen (2001) 207 CLR 584
Category:	Sentence
Parties:	Regina D’Amico, Antonio
Representation:	Counsel: Defence: Mr J Davidson Solicitors: Crown: Ms L Hancock Defence: Mr A Herring
File Number(s):	2019/00106513