R v Mammone - [2006] NSWCCA 138

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Giuseppe MAMMONE [2006] NSWCCA 138

FILE NUMBER(S):
2005/2550 CCAP

HEARING DATE(S): 24/04/06

DECISION DATE: 24/04/2006
EX TEMPORE DATE: 24/04/2006

PARTIES:
REGINA v Giuseppe MAMMONE

JUDGMENT OF: McClellan CJ at CL James J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0352

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:
P Miller - Crown
D Marr - Respondent

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
-

CATCHWORDS:
CRIMINAL LAW – CROWN APPEAL – guilty plea – offence of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants – whether sentence manifestly inadequate

LEGISLATION CITED:
Confiscation of Proceeds of Crime Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act
Drug Misuse and Trafficking Act

DECISION:
Appeal allowed. Respondent re-sentenced [par 55].

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2005/2550
McCLELLAN CJ at CL
JAMES J
HALL J
Monday 24 APRIL 2006

REGINA v Giuseppe MAMMONE

JUDGMENT

McCLELLAN CJ at CL: The Court is in a position to deliver judgment and I will ask Justice James to deliver the first judgment.

JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent, Giuseppe Mammone, in the District Court on 3 November 2005 by his Honour Judge Puckeridge QC, for an offence to which the respondent had pleaded guilty of knowingly taking part, between 1 August 2002 and 15 March 2003, in the cultivation of not less than a large commercial quantity of cannabis plants.

Judge Puckeridge sentenced the respondent to a non-parole period of imprisonment of two and one half years, commencing on 17 December 2003, the date on which the respondent had been arrested and from which he had remained in custody, and a balance of the term of two years eight months and twelve days.

Knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act, for which the maximum penalty under

s 33(3)(b) of the Act is imprisonment for a term of twenty years or a fine of five thousand penalty units, or both. Under the Act a large commercial quantity of cannabis plants is a thousand plants.

I have already noted that the respondent was arrested on 17 December 2003. He was then charged with the offence for which he was ultimately sentenced. On 27 April 2005 the respondent was committed for trial in the District Court. When he was arraigned in the District Court on 6 May 2005, he pleaded not guilty to the charge. His trial was fixed to commence on 22 August 2005. On 22 August 2005, the date fixed for the commencement of his trial, he pleaded guilty. As already noted, the respondent was sentenced by Judge Puckeridge on 3 November 2005. A notice…

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 Mammone

Details

AGLC: R v Mammone [2006] NSWCCA 138
Case: [2006] NSWCCA 138
Decision Date: 24 April 2006

CaseChat Overview and Summary

The appellant, Mammone, was convicted for his involvement in cultivating a significant number of cannabis plants. Following a guilty plea, he was sentenced to a term of imprisonment. The Crown sought an appeal on the grounds that the sentence was manifestly inadequate. The appeal was heard by the court, which was tasked with determining whether the sentence imposed was insufficient in light of the nature and circumstances of the offence.

The court was required to consider the appropriate weight to be given to the plea of guilty and whether the sentence was manifestly inadequate. The court had to evaluate the seriousness of the offence and the role played by the appellant, in addition to the overall context of the case. The appeal hinged on whether the punishment imposed was sufficiently severe to reflect the gravity of the crime and whether there were any compelling reasons for leniency.

The court acknowledged the appellant's guilty plea as a factor that could warrant a reduction in sentence. However, it also emphasised the significant nature of the offence, involving a large commercial quantity of cannabis plants. The court found that the sentence imposed did not adequately reflect the seriousness of the crime and the appellant's involvement. Consequently, the court allowed the appeal and ordered a new sentencing hearing to be conducted, ensuring that the sentence imposed would appropriately reflect the nature of the offence and the appellant's role in it.

Orders