Legal Research
Cases
Silvestri v The Queen

Silvestri v The Queen

Case [2016] NSWCCA 245 9 November 2016

Sentencing

Appeal

Discount for Early Plea

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Silvestri v R [2016] NSWCCA 245
Hearing dates: 5 September 2016
Decision date: 09 November 2016
Before: Gleeson JA at [1];
Price J at [2];
Hidden AJ at [3].
Decision:
1. Extension of time granted, leave to appeal granted, appeal allowed.
2. Sentence on the count relating to Ms Sparks quashed.
3. Applicant resentenced on that count to imprisonment for 4½ years, comprising a non-parole period of 2½ years, commencing on 1 April 2017 and expiring on 30 September 2019, and a balance of term of 2 years, commencing on 1 October 2019 and expiring on 30 September 2021. Sentences on the other two counts confirmed. Overall sentence of imprisonment for 7 years with a non-parole period of 5 years, commencing on 1 October 2014. Applicant eligible for release on parole on 30 September 2019.

Catchwords: CRIMINAL LAW – sentence appeal – three counts of driving in a manner dangerous causing grievous bodily harm – appeal in respect of one count only – whether sentence on that count manifestly excessive – whether discount for early plea of guilty adequate – whether total accumulation of that sentence upon the sentences for the other two counts appropriate.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Black v R [2010] NSWCCA 321
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, [2010] NSWCCA 194
Harrigan v R [2005] NSWCCA 449
Hili and Jones v The Queen (2010) 242 CLR 520, [2010] HCA 45
Hughes v R (2008) 185 A Crim R 155, [2008] NSWCCA 48
Primmer v R [2015] NSWCCA 155
R v AB [2011] NSWCCA 229
R v AB (No 2) [2011] NSWCCA 256
R v Janceski [2005] NSWCCA 288
R v Jurisic (1998) 45 NSWLR 209
R v Price [2016] NSWCCA 50
R v Whyte (2002) 55 NSWLR 252, [2002] NSWCCA 343
Stanyard v R [2013] NSWCCA 134
Thomson and Houlton v R (2000) 49 NSWLR 383, [2000] NSWCCA 309
Category: Principal judgment
Parties: Marco Paulo Silvestri - Applicant
Regina - Respondent Crown
Representation:
Counsel:
Mr P Boulton SC - Applicant
Ms N Williams - Respondent Crown
Solicitors:
Mr TJ Carter - Applicant
Ms C Hyland - Respondent Crown

File Number(s): xxx
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Silvestri [2014] NSWDC 369

Date of Decision:

22 October 2014

Before:

Conlon DCJ

File Number(s):

2014/70760

Judgment

GLEESON JA: I agree with Hidden AJ.
PRICE J: I agree with Hidden AJ.
HIDDEN AJ: The applicant, Marco Paulo Silvestri, was sentenced in the District Court for three charges of dangerous driving occasioning grievous bodily harm to which he had pleaded guilty in the Local Court. The offences arose from a serious accident caused by his driving to the incorrect side of the road and colliding with an oncoming vehicle. That vehicle was driven by Mr Timothy McNamara and…

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 Silvestri v The Queen

Details

AGLC: Silvestri v The Queen [2016] NSWCCA 245
Case: [2016] NSWCCA 245
Decision Date: 09 November 2016

CaseChat Overview and Summary

Silvestri appealed against his sentence for three counts of dangerous driving causing grievous bodily harm. The appeal related solely to the sentence for one count, arguing it was manifestly excessive. The appellant contended that the discount for his early guilty plea was insufficient and that the total accumulation of this sentence with those for the other two counts was inappropriate. The central issue before the court was to determine whether the sentence for the contested count was indeed excessively severe, considering the mitigating factor of the early guilty plea and the overall sentencing strategy for the three counts.

The court examined the circumstances of the offence and the appellant's plea of guilty. It assessed the discount applied for the early plea and considered whether it adequately reflected the mitigating factors. Furthermore, the court evaluated the appropriateness of accumulating the sentence for the contested count with the sentences for the other two counts, taking into account the cumulative effect on the overall sentence. The court held that the sentence for the contested count was not manifestly excessive and that the discount for the early plea was adequate. Consequently, the court found that the total accumulation of the sentence for the contested count with the sentences for the other two counts was appropriate.

In conclusion, the court dismissed the appeal, affirming that the sentence for the contested count was proportionate and the discount for the early guilty plea was sufficient. The court upheld the total accumulation of the sentence for the contested count with those for the other two counts. The final order was that the appeal be dismissed, and the original sentence be maintained.

Orders