R v Fiorenza - [2000] NSWCCA 264

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Fiorenza [2000] NSWCCA 264

FILE NUMBER(S):
60065/2000

HEARING DATE(S): 12/07/2000

JUDGMENT DATE: 12/07/2000

PARTIES:
Regina v Guy Bruno Fiorenza

JUDGMENT OF: James J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0395

LOWER COURT JUDICIAL OFFICER: Howie DCJ

COUNSEL:
A Leary - Applicant
P Hock - Crown

SOLICITORS:
- Applicant
SE O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60065/00
JAMES J
BELL J

Wednesday 12 July 2000

REGINA v GUY BRUNO FIORENZA

JUDGMENT

JAMES J: Guy Bruno Fiorenza has applied for leave to appeal against sentences imposed on him in the District Court on 20 January 2000 by his Honour Judge Howie QC, after he had been committed for sentence on charges of supplying a prohibited drug, amphetamine, between 1 January 1999 and 27 March 1999, supplying amphetamine on 26 March 1999 (2.2 grams) supplying amphetamine on 25 March 1999 (10.9) grams and of supplying amphetamine on 25 March 1999 (11.5 grams). His Honour also took into account in sentencing the applicant, on the first charge in the committal for sentence papers, three offences of being in possession of separate small quantities of amphetamine on 25 March 1999.
On each of the first, third and fourth charges, his Honour imposed a sentence of imprisonment of two and a half years, consisting of a minimum term of twelve months and an additional term of eighteen months. On the second charge, his Honour imposed a fixed term of imprisonment of six months. His Honour made all of the sentences commence from 20 January 2000, the date of sentencing.
The applicant had been arrested on 26 March 1999 and had been granted bail, pending being sentenced. He has been continuously in custody since being sentenced on 20 January 2000.
In his remarks on sentence Judge Howie summarised the objective facts of the offences. On 25 March 1999 police went to the applicant's girlfriend's premises. They found in a refrigerator in the kitchen two resealable bags containing powder, which, on later analysis, was found to contain 10.9 grams of amphetamine. This gave rise to the third charge in the committal for sentence papers. In a drawer in the bedroom of the premises police found a plastic bag containing tablets, which, on analysis, were found to contain the drug ecstasy. This gave rise to the fourth charge in the committal for sentence papers. The finding in the premises of two other plastic bags containing ecstasy tablets gave rise to one of the charges of possession of a prohibited drug, which Judge Howie took into account in sentencing the applicant.
On the following day, 26 March 1999, police stopped a vehicle the appellant was driving. When asked whether he had any drugs, the applicant produced a bag which contained four plastic bags containing white powder, which was amphetamine, and a pouch containing tablets. The production of the four plastic bags gave rise to the second charge in the committal for sentence papers. The production of the pouch gave rise to one of the charges of possession of a prohibited drug which were taken into account in sentencing the applicant.
The last of the charges which were taken into account in sentencing the applicant related to the finding on 25 March of a small plastic bag containing amphetamine in the applicant’s girlfriend’s premises.
The first charge in the committal for sentence papers of supplying amphetamine between 1 January 1999 and 27 March 1999 was based on admissions made by the applicant to the police in an interview of the applicant conducted by police on 26 March 1999, after he had been arrested.
In his remarks on sentence his Honour found that the applicant had been engaged from time to time in the business of supplying both amphetamine and ecstasy. His Honour also found that the applicant was not selling drugs merely in order to finance his own addiction. His Honour found that the applicant had been a street dealer, supplying partly for profit to himself. His Honour found that the plastic bags containing amphetamine in the applicant's motor vehicle had been put there for the purpose of actually supplying them to customers.
In his remarks on sentence his Honour referred to the decisions of this Court in R v Clarke (unreported, 15 March 1990) and R v Cacciola (1998) 104A Crim R 178. From these cases his Honour took the principles that it is only in exceptional cases that a person who has been guilty of trafficking in a prohibited drug should not receive a full time custodial sentence and that a distinction is to be drawn between a case which is exceptional and a case which merely has strong subjective features. His Honour was satisfied that the present case was a case where the applicant had been trafficking to a substantial degree, partly for his own profit. Accordingly, his Honour addressed the question whether the present case was an exceptional case such as would warrant a departure from the general rule requiring the imposition of a full time custodial sentence.
His Honour found that a number of unusual features were present. These features included the conduct of the applicant since his arrest, including that he had voluntarily undergone a program of urine analysis between May 1999 and the date of sentencing and no trace of any drug had been found in his samples, the applicant had voluntarily attended Narcotics Anonymous and had sought counselling, the applicant was contrite, the applicant had “continued with full time employment” while on bail pending being sentenced, he had completed an apprenticeship as a mechanic, he was well regarded by his current and former employers, a pre-sentence report from a Probation and Parole officer indicated that the applicant had made a genuine attempt to rehabilitate himself and that there had been a considerable turnaround in the applicant's lifestyle.
His Honour also noted that at the time of sentencing the applicant was only twenty two years old, that he had no previous criminal history at all, that the period of the applicant's involvement with drugs was an aberration from his general conduct in the community, that the applicant had the support of his parents and of a young woman with whom he had had a long relationship and whom he intended to marry, that the first count was based upon admissions which the applicant had freely made to police, that he had participated in an electronically recorded interview, which his Honour found to be remarkable so far as the applicant's forthright attitude was concerned, that the applicant had provided assistance to police, not only in relation to his own criminality but also in providing information about a person who had supplied drugs to him and that the applicant had pleaded guilty at the first opportunity.
However, after taking all of these matters into account, his Honour concluded "I still cannot come to the view that this is a truly exceptional case".
In reaching this conclusion his Honour took into account inter alia the objective facts of the offences, that the applicant had been supplying two separate kinds of drugs, namely amphetamine and ecstasy, that he had been supplying drugs over a period of two to three months, that he had been supplying drugs at least partly for profit to himself and that he had had in his possession a number of quantities of amphetamine which exceeded the trafficable quantity for amphetamine. His Honour considered that he was constrained to impose a sentence of full time custody. His Honour did, however, find that there were special circumstances within s 5(2) of the Sentencing Act, notwithstanding the steps towards his rehabilitation which had already been taken by the applicant. His Honour found that it could not be said with confidence that rehabilitation had yet been achieved and the process of rehabilitation would be interrupted by the sentence of full time custody which the applicant would have to serve.
In his submissions counsel for the applicant did not dispute the principles which the sentencing judge had taken from the decisions of this Court in Clarke and Cacciola. It was not submitted that his Honour had applied the wrong test. Nor was it suggested by counsel for the applicant that his Honour had omitted to take into account any relevant consideration which ought to have been taken into account in deciding whether exceptional circumstances were present.
What was submitted was that in the present case the favourable subjective features, which I have already referred to and which were listed by the sentencing judge in his remarks on sentence, amounted in the aggregate to exceptional circumstances, such as to take the present case out of the general rule enunciated by this Court in Clarke. Alternatively, it was submitted that, if a full time custodial sentence had properly been imposed, the favourable subjective features of the applicant were such that a lesser sentence should have been imposed than was imposed by his Honour.
In Cacciola Priestley JA said at page 182:-
"A combination of subjective circumstances each strong in itself does not add up to exceptional circumstances, unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases that come before the courts."
Priestley JA observed that there is no clear positive definition of exceptional circumstances to be found in the authorities.
In Cacciola the sentencing judge, in finding that exceptional circumstances were present, had taken into account the prisoner's youth, that he had no previous criminal convictions, his pleas of guilty, his remorse, his promising prospects of rehabilitation and his readiness to assist police.
On the Crown appeal Priestley JA, with the concurrence of the other members of the court, held that a distinction had to be drawn between a strong subjective case and exceptional circumstances which would justify a non-custodial sentence and his Honour proceeded to hold that the favourable subjective features in Cacciola's case, even in combination, did not amount to exceptional circumstances.
It is true that the Court of Criminal Appeal ultimately dismissed the Crown appeal in Cacciola but the Court did so on the grounds of the double jeopardy involved in a Crown appeal.
In the present case, the sentencing judge, after making findings about the objective seriousness of the offences the applicant had committed and after listing the favourable subjective features of the applicant, concluded that the favourable subjective features, even when considered in the aggregate, did not amount to exceptional circumstances.
This Court is a court of error only. It would have jurisdiction to interfere with the sentences passed by Judge Howie, only if it was satisfied that in setting these sentences Judge Howie had erred. It does not seem to me to be possible to say that the sentencing judge, in reaching the conclusion that he did reach, erred; in other words, that the favourable subjective features of the applicant were such that his Honour was required to find that they amounted to exceptional circumstances and that any other conclusion would have involved an error on his Honour's part. Nor do I consider that it is possible to say that, in imposing sentences of the length his Honour imposed, his Honour exceeded the proper limits of his sentencing discretion.
An argument was put in written submissions that according to the sentencing statistics kept by the Judicial Commission which were referred to in Cacciola many sentences have been imposed in the District Court in which sentencing judges would appear not to have observed the sentencing principle stated in Clarke. However, the fact, if it be a fact, that in other cases sentencing judges have not complied with the sentencing principles stated in Clarke, or for that matter Cacciola, cannot assist the applicant.
In my opinion, while leave to appeal should be granted, the appeal against sentence itself should be dismissed.
BELL J: I agree.
JAMES J: The orders of the Court will be as proposed by me.

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LAST UPDATED: 14/08/2000