R v Ienco - [2008] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 337 of 2007

THE QUEEN
	v
CARMELLO IENCO

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JUDGES:	VINCENT, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2008
DATE OF JUDGMENT:	14 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 17

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Criminal law – Sentencing – Trafficking in amphetamines – Appellant the manager of large family farming enterprise – Alleged failure by judge to conclude that circumstances of hardship suffered by appellant’s family were ‘exceptional’ – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Theo Magazis and Associates

VINCENT JA:

I will invite Kellam JA to deliver the first judgment.

KELLAM JA:

This is an appeal against sentence, leave having been granted by a judge, pursuant to s 582 of the Crimes Act 1958. On 3 October 2007, in the County Court at Mildura, the appellant pleaded guilty to one count of trafficking in a drug of dependence and one count of handling stolen goods. He was sentenced as follows:

· Count 1 - trafficking in a drug of dependence – 21 months’ imprisonment;

· Count 2 - handling stolen goods - nine months’ imprisonment.

His Honour directed that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, thus producing a total effective sentence of two years’ imprisonment. He directed that a non-parole period of nine months’ imprisonment be fixed.

Before addressing the grounds of appeal, it is necessary to say something about the facts. The appellant, who was then aged 37 years, was arrested by police on 6 April 2006 at his home in Robinvale. On that date, police executed a search warrant of the appellant’s home. In the kitchen refrigerator they located 1,413 tablets together with a foil packet containing powder. The appellant declined to tell police what the tablets were, but stated that they were his and that he used them to keep awake whilst he was driving trucks. Upon analysis, the 1,413 tablets were found to comprise 405.8 grams of substance which had an approximate purity of 1.6 per cent methylamphetamine. Thus, the total amount of methylamphetamine found in the tablets was slightly in excess of 6.5 grams. The foil packet was found to contain half a gram of powder with an approximate purity of six per cent methylamphetamine. There was evidence before his Honour that the street value of the tablets varied between $35 and

$50 per tablet or between $49,455 and $70,650 in total. Presumably this evidence related to the street value of tablets containing methylamphetamine without any consideration of the actual amount of methylamphetamine contained in those tablets. These matters form the factual background to count 1.

On the same day, a search warrant was executed at the nearby home of the appellant’s parents. Police found a Stihl chainsaw. The police search of a nearby shed used by the appellant as…

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 Ienco

Details

AGLC: R v Ienco [2008] VSCA 17
Case: [2008] VSCA 17
Decision Date: 14 February 2008

CaseChat Overview and Summary

In the case of R v Ienco, the appellant was convicted of trafficking in amphetamines and was sentenced to a term of imprisonment. The appeal focused on the sentencing phase, with the appellant arguing that the trial judge did not adequately consider the exceptional hardships faced by his family, which included the management of a large family farming enterprise. The High Court of Australia was tasked with reviewing the decision of the lower court and determining whether the sentencing was appropriate.

The primary legal issue before the court was whether the trial judge erred in failing to adequately take into account the appellant's family circumstances as a mitigating factor in sentencing. The court needed to assess the trial judge's handling of the evidence presented regarding the appellant's family hardships and determine whether these hardships were indeed exceptional, warranting a lesser sentence.

The High Court concluded that the trial judge had properly considered the appellant's family circumstances, including the operation of the large family farming enterprise. The court found that the judge had appropriately weighed the evidence of hardship against the seriousness of the offence and the need for deterrence. The High Court held that the trial judge did not err in the manner in which he assessed the mitigating factors and found that the sentence imposed was neither excessive nor manifestly inadequate. As such, the appeal was dismissed.

Orders