Crown: SE O'Connor Appellant: Jeffreys & Associates
DECISION:
Leave to appeal granted; Appeal dismissed.
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IN THE COURT OF
CRIMINAL APPEAL
No 60456 of 1999
SHELLER JA HULME J DOWD J
Friday, 14 April 2000
REGINA -v-Shane Anthony SMIROLDO
JUDGMENT
1 SHELLER JA: I have had the benefit of reading the reasons for judgment of Hulme J. For the reasons his Honour gives, with which I agree, I joined in the orders made on 16 March 2000.
IN THE COURT OF CRIMINAL APPEAL
No 60456 of 1999
SHELLER JA HULME J DOWD J
Friday 14 April 2000
REGINA -v-Shane Anthony SMIROLDO
JUDGMENT
2 HULME J: On 30 July 1999 Shane Smiroldo was sentenced to imprisonment for a minimum term of 2½ years from that date and an additional term of 2 years commencing on 30 January 2002 for an offence under Section 25A of the Drug Misuse and Trafficking Act. On 16 March last this Court granted leave to appeal but dismissed his appeal. These Reasons are directed to explaining why I joined in that decision.
3 So far as is relevant s25A provides:-
(1) A person who, on three or more separate occasions during any period of thirty consecutive days, supplies a prohibitive drug (other than cannabis) for financial or material reward is guilty of an offence.
Maximum penalty: 3,500 penalty units or imprisonment for 20 years or both.
(2) A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence.
(3) If, on the trial of a person for an offence under this section, more than three occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same three occasions in order to find the person guilty of the offence.
4 Subsequent subsections provide that a jury not satisfied as to the commission of an offence under s25A may convict of offences of supply, deal with the topic of double jeopardy and contain other provisions not presently relevant.
5 The circumstances of the incidents of supply in the instant case were as follows:-
(i). On 28 January 1998 an undercover police officer went to the garage area of the premises in which the Applicant lived, informed the Applicant that he was “after some stuff’. The Applicant said that he had…
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.
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Details
AGLC
R v Smiroldo [2000] NSWCCA 120
Case
[2000] NSWCCA 120
Decision Date
CaseChat Overview and Summary
Regina v Smiroldo was a case heard by the New South Wales Court of Criminal Appeal where Shane Anthony Smiroldo was appealing his conviction and sentence for drug supply offences. The legal issues the court had to decide were whether the appeal against conviction and sentence should be allowed and if not, why. The court had to consider the evidence of the drug supply transactions and the sentencing principles applicable under the Drug Misuse and Trafficking Act. The court found that the evidence was sufficient to support the conviction and that the sentence, while harsh, was within the appropriate range given the nature of the offence. The appeal was dismissed as the court found no error in the District Court's handling of the case. The reasoning of the court was that while the quantity of drugs supplied was relevant, it was not the sole factor in determining the severity of the sentence. The court also noted that the sentences for drug offences in New South Wales had generally been lenient, which may have influenced the District Court's decision.