Romano v The Queen; Romano v The Queen - [2009] NSWCCA 63

New South Wales
Court of Criminal Appeal

CITATION: Romano v R; Romano v R [2009] NSWCCA 63

HEARING DATE(S): 11 February 2009

JUDGMENT DATE:
13 March 2009

JUDGMENT OF: Grove J at 1; Blanch J at 66; Kirby J at 67

DECISION: Appeals dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Offenders engaged in major cannabis cultivation - One offender engaged in two crops - Taking offence into account on Form 1 - Asserted errors by sentencing judge rejected - Parity - No particular point of principle - Sentences well within appropriate range

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) 2002 56 NSWLR 146
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Bavadra [2000] 115 A Crim R 152
R v Morgan [1993] 70 A Crim R 368
R v Skorin [2005] NSWCCA 276
R v Sutton 2004 41 MVR 40
R v Thomson & Houlten (2000) 49 NSWLR 383
The Queen v Olbrich (1999) 199 CLR 270

PARTIES: Nicola ROMANO - Applicant
Luigi ROMANO - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/3122; 2007/2955

COUNSEL: A J Bellanto QC with J Ghabrial - Nicola Romano/Applicant
T A Game SC - Luigi Romano/Applicant
P Miller - Crown/Respondent

SOLICITORS: Aldo Mexxanotte - Nicola Romano
Angelo Bilias - Luigi Romano
Solicitor for Public Prosecutions - Crown/Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0494

LOWER COURT JUDICIAL OFFICER: McGuire A/DCJ

LOWER COURT DATE OF DECISION: 27 July 2007

CCA 2007/3122
CCA 2007/2955

GROVE J
BLANCH J
KIRBY J
13 March 2009

Nicola ROMANO v R
Luigi ROMANO v R

Judgment

1 GROVE J: There are before the Court applications for leave to appeal against severity of sentence imposed by McGuire A/DCJ on Nicola Romano and Luigi Romano. The applicants are brothers. They were jointly indicted upon a charge that between 1 September 2003 and 5 April 2004 they knowingly took part in the cultivation at Glen Davis of a large commercial quantity of the prohibited plant cannabis. It was specified to amount to in excess of 8,000 plants. It will avoid much repetition if the applicants are referred to, without meaning any disrespect, by their forenames.

2 Nicola pleaded guilty on 26 February 2007, the day upon which the trial was listed to begin. This was mistakenly stated in his Honour’s remarks on sentence to have been 11 May 2007. To follow the intended joint trial was a further trial in which Nicola was charged with a similar offence committed between 1 January 2004 and 4 February 2004 at Torrington. Nicola originally declined a suggestion that, if he acknowledged his guilt, this offence might be taken into account when he was sentenced on the charge to which he had pleaded guilty in accordance with the Form 1 procedure, however, on 11 June 2007 he signed a Form 1…

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: [2009] NSWCCA 63
Decision Date: 13 March 2009

CaseChat Overview and Summary

In the case of Romano v The Queen, the appellant challenged his sentence for engaging in the cultivation of a significant quantity of cannabis. The High Court of Australia was tasked with reviewing the sentence imposed by the sentencing judge. The central issue was whether the sentencing judge erred in taking into account the appellant's previous cannabis cultivation offence on Form 1, and if the sentences imposed were appropriate in light of the principles of parity and the overall circumstances of the case.

The High Court examined the sentencing principles and found that the sentencing judge did not make any errors in considering the previous offence. The Court highlighted that the sentencing judge had carefully weighed the relevant factors, including the nature and extent of the current and previous offences, and the appellant's criminal history. The Court also noted that there was no particular point of principle that required the sentences to be equal, and that the sentences imposed were well within the appropriate range for such offences. The Court concluded that the sentencing judge had exercised their discretion appropriately and that the sentences were just and proportionate.

The High Court rejected the appellant's arguments and affirmed the sentences imposed by the sentencing judge. The Court held that the sentences were not manifestly excessive or disproportionate, and that there were no grounds for interference. The Court also found that the sentencing judge had adequately considered the principles of parity and had not erred in taking the previous offence into account. The Court's decision upheld the importance of judicial discretion in sentencing and reinforced the need for courts to consider the totality of the circumstances in each case.

Orders