REGINA v Guiliano Di Gregorio - [2004] NSWCCA 9

CITATION: REGINA v Guiliano DI GREGORIO [2004] NSWCCA 9

HEARING DATE(S): 12/2/04

JUDGMENT DATE:
19 March 2004

JUDGMENT OF: Beazley JA at 1; O'Keefe J at 2; Bell J at 3

DECISION: Appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912 (NSW)
Pawnbrokers and Second-hand Dealers Act 1996

CASES CITED: Attorney-General's Application [No. 1] under s 26 of the Criminal Appeal Act; R v Ponfield & ors [1999] NSWCCA 435; 48 NSWLR 327
Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen (1977) 137 CLR 293
R v Duncombe [2001] NSWCCA 483
R v Eastway (unreported) NSWCCA, 19 May 1992
R v Miles [2001] NSWCCA 274
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Richards [1981] 2 NSWLR 464
R v Tindall & Gunton (1994) 74 A Crim R 275
R v Trindall [2002] NSWCCA 364; 133 A Crim R 119

PARTIES :
REGINA (Appellant)
Guiliano DI GREGORIO (Respondent)

FILE NUMBER(S): CCA 60430/03

COUNSEL: P Power SC (Crown)
AP Cook (Respondent)

SOLICITORS: S Kavanagh
B Duchen (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0054

LOWER COURT
JUDICIAL OFFICER : Coorey DCJ

60430/03

BEAZLEY JA
O’KEEFE J
BELL J
Friday 19 March 2004

REGINA v Guiliano Di Gregorio

Judgment

1 BEAZLEY JA: I agree with Bell J.

2 O'KEEFE J : I agree with Bell J .

3 BELL J: This is an appeal by the Director of Public Prosecutions against the inadequacy of a sentence pronounced by his Honour Judge Coorey (the Judge) on 17 October 2003 when the Respondent appeared for sentence in respect of one charge of breaking, entering and stealing and one charge of being carried in a conveyance without the consent of the owner. His Honour adjourned the proceedings to 25 June 2004 pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (the Act).

4 This Court has the power to entertain an appeal brought by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) from an order made by a Judge adjourning proceedings under to s 11 of the Act: R v Trindall [2002] NSWCCA 364; 133 A Crim R 119.

5 The notice of appeal was signed on 22 October 2003 and was served on the Respondent on 27 October 2003. No question of delay in bringing this appeal arises.

The history of the proceedings

6 On 8 April 2003 the Respondent pleaded guilty before the Judge to two counts on indictment: (i) breaking, entering and stealing contrary to s 112(1) of the Crimes Act 1900 (NSW); and (ii) drive conveyance taken without the consent of the owner contrary to ss 154A(1)(b) and 117 of the Crimes Act. He asked the Judge to take into account one offence on a Form 1 pursuant to the mechanism provided by ss 32 and 33 of the Act. This was an offence of making a false statement…

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

Case: [2004] NSWCCA 9
Decision Date: 19 March 2004

CaseChat Overview and Summary

Regina v Guiliano Di Gregorio involved an appeal by the Director of Public Prosecutions against the inadequacy of a sentence imposed by Judge Coorey on Guiliano Di Gregorio, who had pleaded guilty to charges of breaking, entering, and stealing, as well as being carried in a conveyance without the consent of the owner. The appeal centred on the sentence's leniency, given Di Gregorio's extensive criminal history and the fact that the offences were committed while he was on parole. The Crown argued that the judge had not adequately considered the aggravating circumstances and that a full-time custodial sentence was necessary to achieve general deterrence and punishment. Di Gregorio's legal team contended that the judge's decision to adjourn sentencing to assess his rehabilitation progress was within the statutory discretion.

The court examined whether the judge's decision to adjourn sentencing under section 11 of the Crimes (Sentencing Procedure) Act 1999 was an appropriate exercise of discretion. The court noted that while adjournments should be avoided where they do not serve a clear purpose, the judge had reasons to believe Di Gregorio might be at a turning point in his rehabilitation. The court acknowledged the significance of Di Gregorio's progress in remaining crime-free and drug-free since his release on parole. The lengthy adjournment was seen as an attempt to allow Di Gregorio to further demonstrate his rehabilitation efforts. The court concluded that the judge's decision was not manifestly wrong, and the appeal was dismissed. The judges found that the circumstances justified a delay to assess Di Gregorio's rehabilitation, especially given his history of drug addiction and criminal behaviour.

Orders