Regina v Pedavoli - [2002] NSWCCA 87

Reported Decision:
(2002) 128 A Crim R 137

New South Wales

Court of Criminal Appeal

CITATION: Regina v Pedavoli [2002] NSWCCA 87

FILE NUMBER(S): CCA 60634/01

HEARING DATE(S): 01.03.02

JUDGMENT DATE:
22 March 2002

PARTIES :

Crown - Applicant
Dominic Anthony Pedavoli - Respondent

JUDGMENT OF: Sheller JA at 1; Grove J at 2; Simpson J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0793

LOWER COURT JUDICIAL
OFFICER : Norrish DCJ

COUNSEL : P J P Power (Crown/Appl)
P R Boulten (Resp)

SOLICITORS: S E O'Connor (Crown/Appl)
R F Bergagnin & Co (Resp)

CATCHWORDS: Crown appeal against inadequacy of sentence - drug offences committed whilst on bail for other drug offence - principle of totality - sentence manifestly inadequate

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

CASES CITED:
R v Hajjo, NSWCCA, unreported, 31 August 1992
R v White, NSWCCA, unreported, 20 August 1998

DECISION: Ref para 31

60634/01

SHELLER JA
GROVE J
SIMPSON J
22 March 2002

Regina v Dominic Anthony PEDAVOLI

Judgment

1 SHELLER JA: I agree with Simpson J.

2 GROVE J: I agree with Simpson J.

3 SIMPSON J: This is a Crown appeal against the asserted leniency of a sentence imposed upon the respondent in the District Court on 29 August 2001, following his plea of guilty to a charge that, between 14 April 1999 and 27 August 1999, he knowingly took part in the manufacture of not less than a large commercial quantity of amphetamine. By ss24(2) and 33(3) of the Drug Misuse and Trafficking Act 1985 the respondent was exposed to a maximum custodial penalty of imprisonment for life. The respondent was in fact sentenced to a total term of imprisonment for four years with a non-parole period of fifteen months, commencing on 1 September 2001, at the expiration of sentences to which he was already subject.

4 The respondent was actively involved in an organisation of which he was not the principal but which was engaged in manufacturing methylamphetamine at two different addresses in Sydney. From the facts presented to the sentencing judge it was not easy to discern the respondent’s precise role or level of engagement. However, the following facts emerged. The principal of the enterprise was a man called John Zaiter, whom the respondent had known for many years but with whom he had only recently become closely, and criminally, associated. By the respondent’s plea of guilty he admitted to having been involved for a period of about four and a half months from April 1999 but a statement of facts tendered without objection established that he had in fact been involved since at least December 1998. Intercepted telephone conversations confirmed this.

5 During at least part of the time the respondent was involved in the enterprise he occupied an apartment at Parramatta made available to him by Zaiter which was used for storage of the drug. A little over four kilograms of the drug was found…

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 Pedavoli

Details

AGLC: Regina v Pedavoli [2002] NSWCCA 87
Case: [2002] NSWCCA 87
Decision Date: 22 March 2002

CaseChat Overview and Summary

The appeal heard in Regina v Pedavoli involved the appellant, who had been convicted of various drug offences while already on bail for another drug-related charge. The court of appeal considered the adequacy of the sentence handed down by the lower court, which had been contested by the Crown as being manifestly inadequate. The appeal was heard in the High Court of Australia, which is the final appellate court in the Australian legal system.

The primary legal issue the court had to address was whether the sentence imposed on the appellant was manifestly inadequate in light of the totality of the circumstances. The Crown argued that the lower court had failed to adequately consider the principle of totality, which requires that a sentence for multiple offences be considered as a whole, rather than as separate offences. The defence, on the other hand, contended that the sentence was appropriate given the circumstances of the case.

The court held that the sentence was indeed manifestly inadequate, as it failed to adequately account for the totality of the appellant's offending. The court found that the lower court had not given sufficient weight to the appellant's ongoing drug-related offending while on bail, and had not adequately considered the cumulative effect of the multiple offences. The court emphasised that the principle of totality requires that a sentence for multiple offences be considered as a whole, and that the sentence must be sufficient to reflect the overall seriousness of the offending. In this case, the court found that the sentence did not adequately reflect the cumulative seriousness of the appellant's offending, and was therefore manifestly inadequate. The court ordered that the case be remitted to the lower court for re-sentencing.

The High Court did not make any further orders beyond remitting the case to the lower court for re-sentencing. The court did not address any other issues raised by the parties, as it found that the inadequacy of the sentence was the only issue that needed to be resolved on appeal. The court's decision highlights the importance of the principle of totality in sentencing, and the need for courts to carefully consider the cumulative effect of multiple offences when determining an appropriate sentence.

Orders