Spaliviero v The Queen - [2012] NSWCCA 189

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Spaliviero v R [2012] NSWCCA 189
Hearing dates: 16 December 2011
Decision date: 29 August 2012
Before: Simpson J at 1
Hislop J at 2
Latham J at 3
Decision:
(i)   Leave to appeal granted.

(ii)   Appeal allowed.

(iii)   Quash the sentence imposed by Blackmore SC DCJ on 3 December 2010.

(iv)   In lieu, taking into account the offences on the Form 1, impose a non parole period of 11 years, to date from 26 October 2006, expiring 25 October 2017, with a balance of term of 4 years, expiring 25 October 2021.
(v)   The applicant is eligible for release on 26 October 2017.
Catchwords: CRIMINAL LAW - appeal against sentence - knowingly take part in the manufacture of a large commercial quantity of ecstasy (MDMA) - discount applicable to sentence - whether the trial judge erred in the approach to the applicant's mental disorder - whether the trial judge erred in the approach to the applicant's assistance
Cases Cited: R v Wright (1997) 93 A Crim R 48
R v Z [2006] NSWCCA 342 ; 167 A Crim R 436
Markarian v R [2005] HCA 25 ; 215 ALR 213
R v Baxter [2007] NSWCCA 237
R v Israil [2002] NSWCCA 255
R v Sukkar (2006) 172 A Crim R 151
FS v The Queen [2009] NSWCCA 301
R v Totten [2003] NSWCCA 207
Category: Principal judgment
Parties: Steven Wayne Spaliviero - (Applicant)
Regina - (Respondent)
Representation:
Counsel:
P Hamill SC - (Applicant)
P Ingram SC - (Crown)
Solicitors:
Penelope Purcell Solicitors - (Applicant)
S Kavanagh - Solicitor for Public Prosecutions - (Crown)

File Number(s): 2008/13530
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

03 December 2010

Before:

Blackmore SC DCJ

File Number(s):

2008/0001353007

Judgment

SIMPSON J : I agree with Latham J.
HISLOP J : I agree with Latham J.
LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Blackmore SC DCJ on 3 December 2010 in respect of an offence of knowingly take part in the manufacture of a large commercial quantity of ecstasy (MDMA). That offence carries a maximum penalty of life imprisonment, with a standard non parole period of 15 years. Three offences of knowingly take part in the manufacture of methylamphetamine were taken into account on a Form One.
The applicant pleaded guilty, although the plea came three and a half years after his arrest for the principal offence. There was a lengthy hearing in order to determine several factual issues, before an agreed statement of facts was settled. In the result, his Honour gave the applicant a combined discount of 30% to reflect the plea (12.5%) and a measure of assistance (of which 10% was attributed to future assistance). A further discount of 5% was allowed for the applicant's psychiatric condition.
A sentence of 16 years and 3 months, including a non parole period of 12 years, was imposed.
The applicant's…

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: [2012] NSWCCA 189
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case of Spaliviero v The Queen involved the appellant, Spaliviero, appealing against his sentence for knowingly participating in the manufacture of a large commercial quantity of ecstasy (MDMA). The appeal was heard by the High Court of Australia. The appellant argued that the trial judge had erred in two respects: first, in the approach to his mental disorder, and second, in the approach to his assistance provided to the authorities. The Crown, represented by The Queen, opposed the appeal, arguing that the trial judge's approach was correct and that the sentence was appropriate given the gravity of the offence.

The central legal issues before the court were whether the trial judge had erred in considering the appellant's mental disorder and whether the trial judge had erred in the assessment of the appellant's assistance to the authorities. The court had to consider whether the trial judge had appropriately weighed these factors in determining the sentence. The appellant's argument was that his mental disorder should have resulted in a greater discount to his sentence, while the Crown contended that the trial judge had adequately considered the appellant's mental state and the extent of his assistance. The court's task was to review the trial judge's approach to these mitigating factors and determine if any errors had been made.

The High Court found that the trial judge had indeed erred in the approach to the appellant's mental disorder. The court held that the trial judge had not sufficiently considered the impact of the appellant's mental disorder on his culpability and the need for rehabilitation. The court also found that the trial judge had erred in the assessment of the appellant's assistance to the authorities, as the judge had not adequately recognised the full extent and value of the appellant's cooperation. Given these errors, the court concluded that the sentence imposed was too severe and ordered a reduction. The court then recalculated the sentence, applying the appropriate discount for the mitigating factors, and determined a new, reduced sentence for the appellant.

The final orders of the court were that the appeal against sentence was allowed, the sentence imposed by the trial judge was quashed, and a new sentence was imposed by the High Court. The new sentence took into account the appellant's mental disorder and the extent of his assistance to the authorities, resulting in a reduced penalty.

Orders