Tramontano v The Queen

Case [2002] NTCCA 4


Tramontano v The Queen [2002] NTCCA 4

PARTIES:PIETRO TRAMONTANO

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:No. CA5 of 2001 (9924449)

DELIVERED:  17 May 2002

HEARING DATES:  22 March 2002

JUDGMENT OF:  MARTIN CJ, MILDREN & RILEY JJ

CATCHWORDS:

Appeal – Appeal against sentence – whether sentence manifestly excessive – whether medical condition to be considered in sentencing – whether sentencing Judge erred in applying guidelines in R v Wong.

Statutes:

Crimes Act,  s 16.

Criminal Code,  s 411

Cases cited:

Cranssen v the King (1936) 55 CLR 509 at 519-520, referred to.

Douglas v The Queen (1995) 56 FCR 465, referred to.

Huang (2000) 113 A Crim R 386 at 391, referred to.

Leroy (1984) NSWLR 441 at 446-7, referred to.

Ngui v Tiong (2000) 111 A Crim R 593 at 596, referred to.

R v Ferrer-Esis (1991) 55 A Crim R 231, referred to.

R v Henry (1999) 46 NSWLR 346 at 382-385, referred to.

R v Klein [2001] NSWCCA 120 at para [24] referred to.

R v Olbrich (1999) 199 CLR 270, referred to.

R v Smith (1987) 44 SASR 587 at 589, referred to.

R v Su and Ors (1997) 1 VR 1 at 75, referred to.

R v Tsiaras (1996) 1 VR 398 at 400, referred to.

R v Warfield (1994) 34 NSWLR 200 at 203, referred to.

R v Wong; R v Leung (1999) 48 NSWLR 340 (1999) 108 A Crim R 531, referred to.

Ragggett, Douglas & Miller (1990) 50 A Crim R 41 at 47, referred to.

Salmon v Chute & Anor (1994) 94 NTR 1, referred to.

Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477-8, followed.

Waye v The Queen (2000) 3 NTJ 1567, refered to.

Wong v The Queen (2002) 185 ALR 233, followed.

REPRESENTATION:

Counsel:

Appellant:I. Rowbottam

Respondent:  P. Strickland

Solicitors:

Appellant:I. Rowbottam

Respondent:  Commonwealth Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  ril0210

Number of pages:  35

ril0210

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Tramontano v The Queen [2002] NTCCA  4
No. CA5 of 2001 (9924449)

BETWEEN:

PIETRO TRAMONTANO

Appellant

AND:

THE QUEEN

Respondent

CORAM:    MARTIN CJ, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 17 May 2002)

MARTIN CJ:

  1. I have had the advantage of the draft judgments prepared by each of Justices Mildren and Riley.  With the exception of the ground of appeal relating to the learned trial Judge's reference to the guideline published by the Court of Criminal Appeal of New South Wales, there is nothing I would wish to add.  Otherwise, I agree with them.

  1. As to the guideline, it should be noted that although it was accepted as being irrelevant to the ultimate decision of the Court of Criminal Appeal, it would have been relevant in this case had it not been overruled by the majority…

Continue reading Tramontano v The Queen

Sign in free to access the full text

Details
AGLC
Tramontano v The Queen [2002] NTCCA 4
Case
[2002] NTCCA 4
Decision Date

CaseChat Overview and Summary

The appellant, Tramontano, was found guilty by a Supreme Court jury of importing a trafficable quantity of cocaine and a quantity of heroin into Australia. He was subsequently sentenced to seven years imprisonment for the cocaine importation and two months imprisonment for the heroin importation, to be served concurrently. A non-parole period of three years and nine months was fixed, with the sentence backdated to 22 October 1999. The appellant appealed against his sentence, arguing it was manifestly excessive.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in fixing the non-parole period and whether the sentence imposed was manifestly excessive. The appeal also raised questions regarding the consideration of a medical condition during sentencing and the application of sentencing guidelines, specifically those in *R v Wong*.

The Court of Appeal allowed the appeal, finding that the sentencing judge had erred in the application of sentencing principles. While acknowledging the seriousness of the offences, the Court determined that there were factors warranting a reduction in the non-parole period. The Court proposed a revised sentence of six years imprisonment for the cocaine importation, to be served concurrently with the sentence for the heroin importation. A non-parole period of three years and two months was fixed, with the sentences deemed to have commenced from 22 October 1999 to account for time already served in custody.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I see no reason to depart from the approach adopted by the learned sentencing Judge on the fixing of the non-parole period. His Honour was of the opinion that there were factors warranting fixing a non-parole period at less than what is usual and I agree.Conclusions In my opinion the appeal should be allowed and the sentence imposed should be set aside and the appellant should be resentenced. I would propose that on Count 1 the prisoner should be sentenced to imprisonment for six years to be served concurrently with the sentence imposed in relation to Count 2 by the learned sentencing Judge. I would fix a non-parole period of three years and two months, the sentences and non-parole period to be deemed to have commenced from 22 October 1999 to take into account time in custody.RILEY J: On 22 February 2001, following a four day trial, a Supreme Court jury found the appellant guilty of having imported into Australia a trafficable quantity of cocaine and a quantity of heroin being less than the trafficable quantity of heroin provided for in s 233B(1)(b) of the Customs Act 1901. On 1 March 2001 the appellant was sentenced to imprisonment for a period of seven years in respect of count 1 and imprisonment for a period of two months in respect of count 2. The sentences were directed to be served concurrently and a non-parole period of three years and nine months was set. The sentence was backdated to 22 October 1999 to take into account time served by the appellant in custody awaiting disposition of the matter. The appellant appeals against the sentence imposed upon him on various grounds including that the sentence was manifestly excessive. There was not a great deal of dispute between prosecution and defence at the trial. The issue upon which most attention was focused was whether the appellant acted voluntarily in knowingly importing the cocaine and heroin into Australia. At the trial he did not dispute that he had been involved in the importation but asserted that the offences were committed under duress, compulsion or coercion. The offending came to light when the appellant arrived at the Darwin Airport on a flight from Denpassar, Bali, Indonesia in the early hours of the morning of 22 October 1999. He was spoken to by customs officers who became suspicious of him. Tests were conducted on various personal items found in his possession and they indicated traces of heroin and/or cocaine. The appellant was then subjected to a body search and subsequently underwent an X-ray procedure. That procedure revealed the presence of foreign objects in his colon and rectum. He was transferred to Royal Darwin Hospital and over the following 24 hours he evacuated 92 drug filled condoms from his body. Analysis of the contents of the condoms showed the content of 91 condoms to be a total of 557.6 grams of powder which included 449.4 grams of pure cocaine. That was the subject of count 1. The other condom contained 3 grams of powder which included 1.4 grams of pure heroin. That was the subject of count 2.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.