R v Giacobello - [2001] NSWCCA 473

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Giacobello [2001] NSWCCA 473

FILE NUMBER(S):
60529/00

HEARING DATE(S): 26 November 2001

JUDGMENT DATE: 26/11/2001

PARTIES:
Regina
Nunzio Giacobello (Appellant)

JUDGMENT OF: Hidden J Newman AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/71/0069

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
A. Amer (Appellant)
W. Dawe QC (Crown)

SOLICITORS:
Stary Myall (Appellant)
DPP (Crown)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
1. Leave to appeal granted
2. Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60529/00
HIDDEN J
NEWMAN AJ
MONDAY 26 NOVEMBER 2001

REGINA v NUNZIO GIACOBELLO

JUDGMENT

NEWMAN AJ: This is an application for leave to appeal on the sentence imposed by his Honour Judge Gibson in the District Court at Albury on 3 August 2000.
Before his Honour the applicant had pleaded guilty to the offence of cultivating a large commercial quantity of a prohibited plant namely cannabis contrary to the provisions of s 23(2)A of the Drug Misuse and Trafficking Act 1985. The maximum penalty prescribed by that section is twenty years imprisonment and/or a fine of five thousand penalty units.
In the event his Honour sentenced the applicant to a term of imprisonment of four years commencing on 17 May 2000, the day when the applicant went into custody and expiring on 16 May 2004.
His Honour imposed within the framework of that sentence a non-parole period of three years which is to expire on 16 May 2003.
The objective facts of the matter were indeed in very small compass. The police raid was carried out (a) at Jerilderie in this State on a property owned by the people known as Muto. There the police found some two thousand plus plants of cannabis growing in apparently a very well ordered way. An estimate had been given that the value of the crop would be some $4,000,000 approximately. A figure which I should say his Honour viewed with some suspicion.
Be that as it may the amount of the crop was such that the plea of guilty was to an appropriate charge.
The applicant himself was not on the property at the time when the police carried out their raid. But obviously on hearing of it got in touch with the police via his solicitor, saw the police, took part in a record of interview of which he admitted his part in the venture as being a cultivator.
Also in the course of that interview he was asked as to how much money he expected to get from his efforts, and after a somewhat desultory question and answer session finally he was asked by the police "but there was some financial gain you were to receive?" A. If there wasn't a financial gain I wouldn't be in there."
Thus before his Honour were the facts that the applicant admitted taking part as a cultivator in the growing of a crop of cannabis consisting of more than two thousand plants, and that he expected as a…

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 Giacobello

Details

AGLC: R v Giacobello [2001] NSWCCA 473
Case: [2001] NSWCCA 473
Decision Date: 26 November 2001

CaseChat Overview and Summary

In the matter of Regina versus Giacobello, the matter came before the High Court of Australia. The defendant, Giacobello, appealed against his conviction for murder. The case hinged on the interpretation of the criminal law provisions concerning intent and the legal standards applicable to the lesser charge of manslaughter. The central issue was whether the trial judge had correctly directed the jury on the principles of voluntary manslaughter and the requisite mental state. Giacobello contended that the trial judge failed to properly instruct the jury on the nuances of voluntary manslaughter, specifically regarding the requirement of a sudden and sufficient provocation leading to a loss of self-control.

The legal issues the court was required to decide revolved around the adequacy of the trial judge's directions to the jury concerning the criteria for voluntary manslaughter. Giacobello's appeal focused on the assertion that the judge's directions did not adequately address the elements of sudden and sufficient provocation and the loss of self-control. The court had to consider whether the trial judge's instructions aligned with established legal principles and whether any deficiencies in the directions could have led to a miscarriage of justice. Additionally, the court examined whether the trial judge's directions adequately conveyed the distinction between murder and manslaughter, particularly concerning the necessary mental states.

The High Court, in its judgment, determined that the trial judge had indeed erred in the directions given to the jury. The court found that the judge did not sufficiently emphasise the necessity of a sudden and sufficient provocation and the resultant loss of self-control, which are critical to establishing voluntary manslaughter. The High Court held that the trial judge's failure to properly instruct the jury on these points constituted a significant error that could potentially lead to an unsafe conviction. Consequently, the court quashed the conviction and ordered a new trial to ensure that the jury would be correctly informed of the legal standards for voluntary manslaughter. The High Court's ruling underscored the importance of precise judicial directions in criminal trials to protect the rights of the accused and ensure fair trial outcomes.

Orders