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R v Saldaneri

R v Saldaneri

Case [2001] NSWCCA 480 19 November 2001

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CITATION: REGINA v SALDANERI [2001] NSWCCA 480

FILE NUMBER(S): CCA 60136/01

HEARING DATE(S): 19 November 2001

JUDGMENT DATE:
19 November 2001

PARTIES :

Regina
Paul Italo Saldaneri

JUDGMENT OF: Spigelman CJ at 1, 25; Sully J at 23; Greg James J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/2109

LOWER COURT JUDICIAL
OFFICER : Luland DCJ

COUNSEL : P Byrne SC / R C Nichol (Applicant)
W G Dawe QC (Crown)

SOLICITORS: Costa and Associates (Applicant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - appeal against sentence - supply of prohibited drug - where sentencing judge required to direct that applicant be released at expiration of non-parole period - whether adequate discount on sentence for plea of guilty - whether appropriate weight given to subjective features - whether sentencing judge determined whether sentence should be suspended - special circumstances.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Blackman and Walters [2001] NSWCCA 121
Dinsdale v The Queen (2000) 202 CLR 321
R v JCE [2000] NSWCCA 498
R v Keong [2001] NSWCCA 416

DECISION: 1. Leave to appeal against sentence granted; 2. Applicant to be released on parole on 22 May 2002; 3. Appeal otherwise dismissed.

60136/01

SPIGELMAN CJ
SULLY J
SPERLING J

Monday 19 November 2001

REGINA v Paul Italo SALDANERI

JUDGMENT

1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of supplying a prohibited drug, namely cannabis, contrary to ss25(1) and 29 of the Drug Misuse and Trafficking Act 1985. He was sentenced by his Honour Judge Luland QC in the Campbelltown District Court on 23 February 2001. He asked that another offence of cultivating a prohibited plant be taken into account on a Form 1. His Honour sentenced the Applicant to imprisonment for twenty months to commence on 23 February 2001 and to expire on 22 October 2002. His Honour fixed a non-parole period of fifteen months to expire on 26 May 2002.

2 His Honour did not make a direction that the Applicant be released at the expiration of the non-parole period. It was common ground that he was required to do so pursuant to s50(1) of the Crimes (Sentencing Procedure) Act 1999. Accordingly it will be necessary for this Court to vary the trial judge’s orders by making a direction in accordance with that section.

3 On 26 November 1999 police attended the premises of the Applicant at Fairfield. Those premises were divided into three flats in one of which he resided with his family. When the police entered the other flats they found a significant operation of cultivating cannabis. In one flat they found a room divided into three smaller areas each containing artificial lighting, a fan and a power system as well as watering systems and a number of pots containing cannabis plants. In the second flat the room was also divided into three separate areas. Again there were…

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 Saldaneri

Details

AGLC: R v Saldaneri [2001] NSWCCA 480
Case: [2001] NSWCCA 480
Decision Date: 19 November 2001

CaseChat Overview and Summary

The appellant in this case was convicted of the supply of a prohibited drug, and he appealed against his sentence. The appeal was heard in the Court of Appeal of the Supreme Court of South Australia. The appellant contended that the sentencing judge did not adequately discount the sentence for his plea of guilty, did not appropriately weigh the subjective features of the case, and did not determine whether the sentence should be suspended.

The central legal issues revolved around the adequacy of the sentence discount for the plea of guilty, the consideration of subjective features, and the assessment of whether the sentence should be suspended. The court examined the sentencing judge's approach to these matters and whether they complied with the relevant legal principles.

The court found that the sentencing judge appropriately considered the discount for the plea of guilty but did not adequately weigh the subjective features of the case. The court held that the sentencing judge failed to determine whether the sentence should be suspended, as required by the statutory provisions. The court also found that there were no special circumstances that would warrant a departure from the usual sentencing principles. As a result, the appeal was allowed, and the sentence was quashed and remitted for resentencing.

The final orders included the quashing of the original sentence and the remission of the case to the sentencing judge for resentencing, with directions to appropriately discount the sentence for the plea of guilty, adequately weigh the subjective features, and determine whether the sentence should be suspended.

Orders