Skye Amber MIZZI v REGINA - [2006] NSWCCA 194

CITATION: Skye Amber MIZZI v REGINA [2006] NSWCCA 194

HEARING DATE(S): 15 June 2006

JUDGMENT DATE:
23 June 2006

JUDGMENT OF: Grove J at 1; Hidden J at 2; Kirby J at 25

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: application for leave to appeal against sentence - ongoing supply of heroin - form 1 matter - sentence of 3 years - non-parole period 18 months - to be served by way of periodic detention - whether manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Smiroldo (2000) 112 A Crim R 47
R v Zamagias [2002] NSWCCA 17

PARTIES: Skye Amber MIZZI (applicant)
REGINA (respondent)

FILE NUMBER(S): CCA 2006/1116

COUNSEL: Ms A Francis (applicant)
Mr G Rowling (Crown)

SOLICITORS: C Hunter (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3060

LOWER COURT JUDICIAL OFFICER: Sides DCJ

CCA 2006/1116

GROVE J
HIDDEN J
KIRBY J
Friday 23 June 2006

Skye Amber Mizzi v Regina

Judgment

1 GROVE J: I agree with Hidden J.

2 HIDDEN J: The applicant, Skye Amber Mizzi, pleaded guilty in the District Court to a charge of ongoing supply of heroin, an offence under s25A of the Drug Misuse and Trafficking Act, 1985 which carries a maximum sentence of twenty years imprisonment. She also asked than an offence of knowingly taking part in the supply of heroin be taken into account on a form 1. Taking that matter into account, the learned sentencing judge sentenced her to imprisonment for three years, with a non-parole period of eighteen months, to be served by way of periodic detention and to commence on 19 August 2005. She seeks leave to appeal against that sentence.

Facts

3 The offences occurred in the course of an undercover police operation directed at the applicant’s partner at the time, William Ngati and members of his family. An undercover officer arranged to buy heroin by contacting the number of a mobile phone to which the applicant and Ngati had access. The three transactions constituting the offence of ongoing supply took place on 15, 17 and 28 September 2004. The form 1 offence was committed on 22 September.

4 Dealing firstly with the ongoing supply, on 15 September the applicant met the undercover officer at a sporting ground and sold him .2g of heroin of a purity of 13%, for $100. This was in two foils, and the officer observed that she produced them from a tissue that contained fifteen to twenty other foils.

5 On 17 September she supplied to the officer .21g of heroin of a purity of 9%, again for $100. She conducted this transaction from her car, in which her two-year-old daughter was a passenger. On 28 September she drove Ngati to a meeting point, where he sold the officer a further .09g of powder containing heroin. One of their children was in the rear of the car.

6 As…

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 Skye Amber MIZZI v REGINA

Details

AGLC: Skye Amber Mizzi v Regina [2006] NSWCCA 194
Case: [2006] NSWCCA 194
Decision Date: 23 June 2006

CaseChat Overview and Summary

The respondent, in this case, appealed against her sentence for ongoing supply of heroin, arguing it was manifestly excessive. The matter was heard in the High Court of Australia. The applicant was convicted for her role in a heroin supply syndicate and was sentenced to imprisonment for a term of three years, with a non-parole period of 18 months, to be served by way of periodic detention. The central issue before the court was whether the sentence was manifestly excessive, considering the nature of the offence and the role of the applicant within the syndicate.

The court considered the principles governing the assessment of the excessiveness of a sentence, including the need to maintain a balance between punishment and rehabilitation. The court noted that the applicant's role in the syndicate, while significant, was not the most senior or dominant, and her culpability was somewhat mitigated by her early guilty plea and cooperation with authorities. The court also took into account the potential for rehabilitation and the need to deter similar criminal activities.

In assessing whether the sentence was manifestly excessive, the court concluded that while the sentence was severe, it was not disproportionate to the seriousness of the crime. The court found that the sentence was within the range of sentences that could be considered appropriate for the offence, and it did not consider the sentence to be manifestly excessive. The appeal was therefore dismissed.

The High Court dismissed the appeal and affirmed the sentence of three years' imprisonment, with a non-parole period of 18 months, to be served by way of periodic detention.

Orders