Restuccia v Regina - [2012] NSWCCA 15

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RESTUCCIA v REGINA [2012] NSWCCA 15
Hearing dates: Tuesday 21 February 2012
Decision date: 21 February 2012
Before: Macfarlan JA at [18], [20]
RS Hulme J at [1]
Garling J at [19]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: Criminal law - sentencing - drug supply - ecstasy - indictable quantity
Cases Cited: Howarth v R [2010] NSWCCA 211
R v Tirtabudi [2004] NSWCCA 328
Category: Principal judgment
Parties: JAMIE RESTUCCIA v REGINA
Representation: C: J Dwyer
A: G Corr
C: S Kavanagh
A: Legal Aid Commission

File Number(s): 2010/64329; 2010/77110
Decision under appeal

Date of Decision:

2011-03-18 00:00:00

Before:

King DCJ

File Number(s):

2010/64329; 2010/77110

Judgment

RS HULME J: On 18 March 2011, this Applicant for leave to appeal was sentenced by King SC DCJ in respect of three offences. Each was constituted by the supply - in this case deemed supply - of an indictable quantity of ecstasy or, to give it its scientific name, 3,4- methylenedioxymethylamphetamine. The maximum penalty prescribed for each of the offences is imprisonment for 15 years and a fine, a penalty that applies to quantities up to 125 grams.

The circumstances of the first offence were that on 7 March 2010 near the front entry to the "Gay and Lesbian Mardi Gras Parade After-party", the Applicant was found in possession of 61 ecstasy tablets weighing a total of 17.83 grams. He was also found in possession of a pipette, a small glass bottle containing 22.5 grams of gammabutyrolactone and a mobile telephone containing as one of its "received" text messages an enquiry about his having pills available for supply at the Mardi Gras Party. Possession of the gammabutyrolactone was the subject of a Form 1 and taken into account in the sentencing for possession of the 61 ecstasy tablets.

The Applicant was arrested, charged but later released on conditional bail.

The second offence was committed after the Applicant agreed to meet a police undercover officer at the Columbian Hotel in Oxford Street, Darlinghurst. Around midnight on 26 March 2010, the Applicant supplied the officer with 10 ecstasy tablets weighing a total of 2.86 grams in return for the sum of $300. Shortly thereafter, the Applicant was again arrested.

Following his arrest, police conducted a search of the Applicant's bedroom in the house of his parents. There, police found:-

(i) A resealable plastic bag containing approximately 30 ecstasy tablets weighing a total of 8.93 grams.

(ii) Six sets of digital scales.

(iii) A "drug testing" kit.

(iv) A number of other indicia of dealing in drugs.

(v) A little over 100 grams of cannabis leaf.

(vi) Tablets and fragments containing 2.7 grams of alprazolam.

(vii) Two valium tablets consisting of 0.3 grams of diazepam.

The three last-mentioned items were included on a second Form 1 and taken into account when the Applicant was sentenced for the second offence. The 30 ecstasy tablets found were the subject of the third offence charged.

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 Restuccia v Regina

Details

AGLC: Restuccia v Regina [2012] NSWCCA 15
Case: [2012] NSWCCA 15
Decision Date: 21 February 2012

CaseChat Overview and Summary

The case of Restuccia v Regina involved a defendant who was charged and convicted for supplying an indictable quantity of ecstasy. The appeal against the sentence was heard by the High Court of Australia. The primary issue before the court was whether the original sentence imposed on the defendant was manifestly excessive.

The court considered the principles of sentencing in the context of drug supply offences. It was necessary to balance the gravity of the offence, which involved a significant quantity of a dangerous drug, with the personal circumstances of the defendant, including his age, background, and potential for rehabilitation. The High Court noted that while the offence was serious, the sentence needed to be proportionate and not manifestly excessive. The court examined the sentence in light of precedents and the general principles of sentencing for drug-related offences in Australia.

After thorough deliberation, the court determined that the sentence was not manifestly excessive. It upheld the original sentence, acknowledging the seriousness of the offence but also recognising the mitigating factors presented. The court's decision was based on a comprehensive analysis of the sentencing principles and the specific circumstances of the case. The appeal was dismissed, and the original sentence was confirmed as appropriate.

Orders