Regina v Gidaro - [2005] NSWCCA 18

CITATION:
Regina v Gidaro [2005] NSWCCA 18
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7/2/05

JUDGMENT DATE:

7 February 2005

JUDGMENT OF:
Grove J at 32; Hidden J at 33; Bell J at 1

DECISION:
Leave to appeal granted; Appeal dismissed.

LEGISLATION CITED:

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

CASES CITED:
R v Maessen [2004] NSWCCA 160
R v Mason (unreported) 22 March 2000
R v Selim, unreported, 19 May 1998

PARTIES:
Paul Gidaro (Applicant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2004/2632

COUNSEL:
Ms E Wilkins (Crown)
Ms L Flannery (Applicant)

SOLICITORS:
S Kavanagh
SE O'Connor (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0134

LOWER COURT JUDICIAL OFFICER:
Shillington DCJ

2004/2632

GROVE J
HIDDEN J
BELL J
Monday 7 February 2005

Regina v Paul Gidaro

Judgment

1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour Judge Shillington QC sitting in the District Court at Parramatta on 16 April 2004.

2 The applicant pleaded guilty to an indictment to two counts. The first charged him with supplying a prohibited drug, namely, 3,4 methylenedioxymethamphetamine (commonly known as ecstasy) at Ashfield on 31 October 2002 in an amount not less than the trafficable quantity. The second count charged him with supply of a prohibited drug, namely, amphetamine, in an amount not less than the trafficable quantity on the same date and at the same place. Each offence is provided by s 25 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years’ imprisonment and/or a fine of 2,000 penalty units.

3 In relation to the first count on the indictment, the applicant asked the Judge to take into account three matters on a Form 1 pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. These comprised one offence of possession of cannabis, one offence of possession of heroin and one offence of possession of methylamphetamine, each being an offence proffered contrary to s 23(1)(c) of the Drug Misuse and Trafficking Act.

4 The applicant was sentenced in respect of each count to a term of three years’ imprisonment to date from 2 April 2004. A non-parole period of 18 months was specified. His Honour directed the applicant’s release on parole on 1 October 2005.

5 The facts upon which the Judge sentenced the applicant are set out in his reasons:

“ The facts are that on 31 October 2002 the offender was observed by police to be driving at speed in Croydon when stopped. He was noticed to be smelling of cannabis. On being searched, seven clear plastic bags of cannabis were found in his pockets and they are the subject of the form one. His wallet contained one foil of heroin weighing .33 grams also to be found on the form one, two plastic bags of…

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 Regina v Gidaro

Details

AGLC: Regina v Gidaro [2005] NSWCCA 18
Case: [2005] NSWCCA 18
Decision Date: 7 February 2005

CaseChat Overview and Summary

The case of Regina v Gidaro involved an application by the applicant, Paul Gidaro, for leave to appeal against the severity of sentences imposed on him by the District Court at Parramatta. Gidaro pleaded guilty to two counts of supplying prohibited drugs, specifically ecstasy and amphetamine, in quantities exceeding the trafficable amount. The maximum penalty for each offence under the Drug Misuse and Trafficking Act 1985 was 15 years’ imprisonment and/or a fine of 2,000 penalty units. The District Court sentenced Gidaro to three years' imprisonment for each count, with a non-parole period of 18 months. The central legal issue before the Court was whether the sentences imposed by the District Court exceeded the bounds of judicial discretion. Gidaro's counsel argued that the sentences were manifestly excessive given the relatively small quantities of drugs involved and the finding that Gidaro's drug dealing was driven by his addiction.

The Court examined the circumstances of the case, including the applicant’s history of drug use and dealing, and the evidence presented at the sentencing hearing. The District Court had rejected Gidaro's account that the money found on him was inherited from his deceased grandfather, finding instead that it was the proceeds of drug sales. The Court noted that while the sentences were at the higher end of the range, they did not exceed the bounds of judicial discretion. The Court found that personal deterrence was a significant consideration in the sentencing, particularly given Gidaro's ongoing drug use and his involvement in the supply of drugs for profit. The Court held that the sentences did not fall outside the range of judicial discretion and dismissed the appeal, while granting leave to appeal.

Orders