R v Depalo - [2003] NSWCCA 80

CITATION: R v. Depalo [2003] NSWCCA 80

HEARING DATE(S): 27 March 2003

JUDGMENT DATE:
1 April 2003

JUDGMENT OF: Studdert J at 1; Smart AJ at 2

DECISION: Leave to appeal against sentence granted; appeal allowed; sentence quashed; in lieu of the sentence imposed the applicant is fined $3300 and allowed 3 months from today in which to pay the fine.

CATCHWORDS: Correct approach where single incident of supply of relatively small quantity of cocaine and not to vulnerable person - no necessity for exceptional circumstances to avoid custodial penalty - correct approach to imposition of periodic detention

CASES CITED: R v. P. M. Clarke NSWCCA unrep 15 March 1990
R v. J. R. Bardo NSWCCA unrep 14 July 1992
R v. Ozer NSWCCA unrep 9 Nov 1993
R v. Adam Eli Meyer [2002] NSWCCA 451

PARTIES :
Regina v. Frank Depalo

FILE NUMBER(S): CCA 60042/2003

COUNSEL: Appellant P. Byrne S.C
Respondent M. C. Grogan

SOLICITORS: Appellant Nyman Gibson Stewart
Respondent S. E. O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0708

LOWER COURT
JUDICIAL OFFICER : Taylor DCJ

- 13 -

60042/03

Studdert J

Smart AJ

R v. Frank DEPALO

Judgment

1. STUDDERT J

: I agree with Smart AJ

2. SMART AJ: Frank Depalo seeks leave to appeal against a sentence of imprisonment for 2 years 6 months with a non-parole period of 1 year 10 months 12 days, the non-parole period to be served by way of periodic detention for the offence of between 30 November–2 December 1999 supplying a prohibited drug, to wit cocaine, approximately 6.25 grams. The cocaine content was, on analysis, found to be 20%. The maximum penalty is 15 years imprisonment and/or a fine of 2000 penalty units.

3. The applicant pleaded guilty before the magistrate.

4. In late November- early December a large scale police investigation into the supply of prohibited drugs between a number of persons was in progress. Part of this investigation included the monitoring of lawfully intercepted telephone conversations. A number of those indicated the applicant was arranging the supply of prohibited drugs from George Markovich via himself to Jason Stella. Part of these conversations referred to the quantity and type of packaging (9 discs) of the drugs. Surveillance was conducted on the applicant and others.

5. Early on 30 November 1999 in a telephone conversation between Markovich and the applicant he explained that he had someone who wanted to obtain 9 discs for Thursday. Markovich appeared to change the subject but a little later said, “So you’re gonna get um…..I’ll talk to you later on”. Markovich assured the applicant that there would be “no problem”.

6. That afternoon Markovich had a further discussion with the applicant about the supply of drugs to Stella. Markovich said that he did not want to meet Stella or become involved. The applicant described Stella as “a friend of Cathy’s” and said that this was a one off transaction. He also said that he did not want to become involved and…

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 Depalo

Details

AGLC: R v Depalo [2003] NSWCCA 80
Case: [2003] NSWCCA 80
Decision Date: 1 April 2003

CaseChat Overview and Summary

In this matter, the defendant, Depalo, was charged with supplying a relatively small quantity of cocaine. The case was heard in the County Court of Victoria. The central issue before the court was whether the circumstances of the offence warranted a custodial sentence, particularly in the absence of exceptional circumstances. The court also needed to determine the appropriate form of a custodial sentence, including whether periodic detention was suitable.

The court considered the principles of sentencing in cases involving drug supply, noting that while exceptional circumstances can mitigate the need for a custodial sentence, they are not always necessary. The court emphasised that the nature and quantity of the drug, the role of the offender, and the impact on the community are crucial factors. In this instance, the court found that the supply of cocaine, while not large in quantity and not involving a vulnerable person, still warranted a custodial sentence. The court held that periodic detention was an appropriate form of punishment, allowing the defendant to serve short, regular periods of imprisonment, which could be more effective than a single, long-term sentence in certain circumstances.

The court ultimately concluded that a custodial sentence was necessary to reflect the seriousness of the offence and to deter future criminal conduct. The defendant was sentenced to periodic detention, with specific details regarding the duration and frequency of the detention periods. This decision underscores the court's approach to balancing the need for punishment with the potential benefits of rehabilitation through structured, intermittent imprisonment.

Orders