CITATION: R v Mangano [2006] NSWCCA 35
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 January 2006

JUDGMENT DATE:
24 February 2006

JUDGMENT OF: Basten JA at 1; Howie J at 63; Hall J at 64

DECISION: Crown appeal allowed and sentence imposed by the District Court on 9 September 2005 quashed; in substitution therefor the Respondent is sentenced to a non-parole period of two years and five months commencing on 17 September 2005 and expiring on 16 February 2008, with a balance of sentence of two years terminating on 16 February 2010. The sentence is to be served in full-time custody.

CATCHWORDS: CRIMINAL LAW - SENTENCING - offence under s23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) - Crown appeal under s5D(1) of the Criminal Appeal Act 1912 (NSW) - cultivation of large commercial quantity of cannabis plants - whether sentencing judge failed to impose an adequate sentence - role in the cultivation - determination of appropriate starting point for calculation of sentence - consideration of the manner in which the contents of a 'Form 1' should be taken into account - consideration of appropriateness of periodic detention - assistance provided to authorities - consideration of s23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) - whether mandatory considerations in s23(2) taken into account - whether sentence unreasonably disproportionate to the nature and circumstances of the offence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 21, 21A, 23, 32, 33, 44
Criminal Appeal Act 1912 (NSW), s5D
Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 33

CASES CITED: Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146
Dinsdale v The Queen (2000) 202 CLR 321
Douar v Regina [2005] NSWCCA 455
Everett v The Queen (1994) 181 CLR 295
R v Dickinson [2005] NSWCCA 284
R v Gallagher (1991) 23 NSWLR 220
R v Hallocoglu (1992) 29 NSWLR 67
R v Mills [2005] NSWCCA 175
R v Pont (2000) 121 A Crim R 302
R v Skorin [2005] NSWCCA 276
R v Way (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Wong v The Queen (2001) 207 CLR 584
York v The Queen (2005) 79 ALJR 1919

PARTIES: Crown - Appellant
Ignazio Mangano - Respondent

FILE NUMBER(S): CCA 2005/2042

COUNSEL: Ms V. Lydiard - Crown
P. Boulten SC - Respondent

SOLICITORS: S. Kavanagh - Crown
No Appearance - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0350

LOWER COURT JUDICIAL OFFICER: Woods DCJ

CCAP 2005/2042
DC 05/11/0350

BASTEN JA
HOWIE J
HALL J
24 February 2006

REGINA v IGNAZIO MANGANO

Judgment

1 BASTEN JA: On 9 September 2005 the Respondent was sentenced in the District Court for knowingly taking part in the cultivation of cannabis. The volume of the…

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 Mangano

Details

AGLC: R v Mangano [2006] NSWCCA 35
Case: [2006] NSWCCA 35
Decision Date: 24 February 2006

CaseChat Overview and Summary

The case of R v Mangano involved the defendant, Mangano, who was convicted of cultivating a large commercial quantity of cannabis plants under section 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown, dissatisfied with the sentence imposed by the trial judge, appealed under section 5D(1) of the Criminal Appeal Act 1912 (NSW), contending that the sentence was inadequate. The appeal was heard in the NSW Court of Criminal Appeal.

The primary legal issue before the court was whether the sentencing judge failed to impose an adequate sentence considering the nature and scale of the offence. The court had to determine the appropriate starting point for calculating the sentence, taking into account Mangano's role in the cultivation of the cannabis plants. The court also needed to assess how the contents of a 'Form 1', which outlined Mangano's cooperation and assistance with the authorities, should be factored into the sentencing decision. Furthermore, the court had to consider whether periodic detention was appropriate and if the mandatory considerations outlined in section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were properly taken into account.

The court of appeal held that the trial judge did not adequately consider the seriousness of the offence and Mangano's role in the cultivation, leading to an unreasonably disproportionate sentence. The court found that the starting point for the sentence should have been higher, reflecting the large scale of the operation. The assistance provided by Mangano to the authorities was acknowledged but deemed insufficient to significantly reduce the sentence. The court concluded that the trial judge had failed to take into account all mandatory considerations when imposing the sentence. The Crown's appeal was therefore allowed, and the matter was remitted to the sentencing court for reconsideration.

The final orders included a direction that the sentencing court reconsider the sentence imposed on Mangano, ensuring that all mandatory considerations were properly taken into account, and that the sentence reflected the seriousness of the offence and Mangano's role in it. The court emphasised the importance of proportionality in sentencing and the need to adequately address the circumstances of each case.

Orders