Riggio v R - [2015] NSWCCA 223

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Riggio v R [2015] NSWCCA 223
Hearing dates: 13 August 2015
Date of orders: 19 August 2015
Decision date: 19 August 2015
Before: Bathurst CJ at [1]
R A Hulme J at [3]
Garling J at [6]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – appeal – sentence – supply prohibited drug – guilty plea – aggregate sentence imposed – where two similar offences with identical indicative sentences – whether ‘blanket assessment’ – whether error in use of applicant’s prior offending – leave to appeal refused
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Cases Cited: JM v R [2014] NSWCCA 297
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Brown [2012] NSWCCA 199
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270,
Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Fernando Riggio (Applicant)
The Crown
Representation:
Counsel:
K Averre (Applicant)
M Cinque (Crown)
Solicitors:
B Duchen (Applicant)
C Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/259280
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 July 2014

Before:

McClintock DCJ

File Number(s):

2011/259280

___________________________________________________________________

Judgment

BATHURST CJ: I have had the benefit of reading the judgment of Garling J in draft. I agree with the order proposed by his Honour and with his reasons.
I also agree with the additional remarks of R A Hulme J.
R A HULME J: The first ground of appeal is concerned with the process whereby the learned sentencing judge imposed an aggregate sentence. It asserts an error in the assessment of indicative sentences for the individual offences. But the indicative sentences are not amenable to appeal. Identification of error in the assessment of indicative sentences may be of some utility if it supports a contention that the aggregate sentence is excessive. However, the applicant does not assert that the aggregate sentence is excessive. In any event, I agree with Garling J that the asserted error is not established.
The second ground of appeal asserts that the judge took into account the applicant's criminal history in his assessment of the objective seriousness of the offences. It involves a misinterpretation of the judge's remarks on sentence: a confusion of his comparison of the applicant's case with that of the co-offender on the one hand and his later and separate discussion of the objective seriousness of the offences on the other. Again, I agree with Garling J that no error is established.
In my view, the proposed appeal is devoid of merit. I agree that leave should be refused.
GARLING J: This is an application for leave to appeal from a sentence imposed in the District Court of NSW by McClintock DCJ on 25 July 2014.
The applicant, Fernando Riggio, pleaded…

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 Riggio v R

Details

AGLC: Riggio v R [2015] NSWCCA 223
Case: [2015] NSWCCA 223
Decision Date: 19 August 2015

CaseChat Overview and Summary

The appellant, Riggio, appealed against the aggregate sentence imposed by the Supreme Court of Queensland for two charges of supplying a prohibited drug. The court found Riggio guilty of both charges, which involved similar offences with identical indicative sentences. Riggio challenged the sentence, arguing that the trial judge had made errors in assessing his prior offending and had applied a 'blanket assessment' to his aggregate sentence. The appeal centred on whether the trial judge's approach to sentencing was flawed and whether this impacted the fairness of the aggregate sentence imposed.

The legal issues in the appeal were whether the trial judge erred in his approach to sentencing, particularly in relation to the assessment of Riggio's prior offending and the application of a 'blanket assessment' to the aggregate sentence. The appellant argued that the trial judge did not properly consider the individual circumstances of each offence and the principles set out in relevant authorities. The respondent contended that the trial judge correctly exercised his discretion in imposing the aggregate sentence and that there was no error in the assessment of Riggio's prior offending.

The court found that the trial judge had not erred in his approach to sentencing. The court held that the trial judge had properly considered the individual circumstances of each offence and the relevant principles. The court found that the trial judge did not apply a 'blanket assessment' to the aggregate sentence but rather considered the totality of Riggio's offending and his prior history. The court held that the aggregate sentence imposed was appropriate and reflected the seriousness of the offences and Riggio's criminal history. The appeal was dismissed, and leave to appeal to a higher court was refused.

No final orders were made in this text as the appeal was dismissed and leave to appeal refused.

Orders