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Tramontano v The Queen

Tramontano v The Queen

Case [2002] NTCCA 4 17 May 2002

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Sentencing

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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:

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.

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…

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 Tramontano v The Queen

Details

AGLC: Tramontano v The Queen [2002] NTCCA 4
Case: [2002] NTCCA 4
Decision Date: 17 May 2002

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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

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Citations

AGLC Citation

Tramontano v The Queen [2002] NTCCA 4

Most Recent Citation

R v Tran [2007] QCA 221

Cases citing this decision · 2 of 2 shown

R v Tran
[2007] QCA 221 Para 1

…only to the length of the sentence imposed.[17] [17] Wong v The Queen (2001) 207 CLR 584 at [59], [78]; see also R v Tramontano (2002) 131 A Crim R; [2002] NTCCA 4.…
Clavell v Burgoyne
[2003] NTSC 29 Para 10

…nces of the appellant. I rely on the authority referred to ( Dinsdale v The Queen (1999) 202 CLR 321 Kirby J at 346). See also Tramontano v The Queen [2002] NTCCA 4 delivered 17 May 2002 Riley J at par [56].…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Leroy
[2023] NSWDC 457 Para 8

…g importations, usually select such persons as couriers as they are likely to attract less attention with customs and immigration officers: see Leroy (1984) 2 NSWLR 441 at 446-7; R v Warfield (1994) 34 NSWLR 200 at 203; R v Klein [2001] NSWCCA 120 at par [24]. This may be a logical approach if one starts with sentenc…
R v Wong
[2015] NSWSC 1612 Para 7

…Judge said that he had adopted as a starting point the guideline laid down by the Court of Criminal Appeal of New South Wales in R v Wong; R v Leung (1999) 48 NSWLR 340; (1999) 108 A Crim R 531. That guideline was said to be based on existing sentencing patterns and intended to apply to couriers and persons low in th…
Wong v The Queen
[2001] HCA 64 Para 8

…Subsequently, the High Court held by a majority ( Wong v The Queen (2002) 185 ALR 233) that the Court of Criminal Appeal had erred in a number of material respects. For present purposes it is sufficient to note that the amount of the drugs involved is not the chief factor to be selected in fixing sentence: Gleeson CJ at […
R v Klein
[2001] NSWCCA 120 Para 8

…tract less attention with customs and immigration officers: see Leroy (1984) 2 NSWLR 441 at 446-7; R v Warfield (1994) 34 NSWLR 200 at 203; R v Klein [2001] NSWCCA 120 at par [24]. This may be a logical approach if one starts with sentencing parameters such as were introduced in R v Wong . However, in truth, such an…
Waye v The Queen
[2000] NTCCA 5

…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:…
R v Olbrich
[1999] HCA 54 Para 3

…was a matter put in mitigation of punishment; as such it needed to be proven by the accused only on the balance of probabilities: see R v Olbrich (1999) 199 CLR 270.…
R v Henry
[1999] NSWCA 111 Para 5

…pen to him or her is relevant in evaluating the extent to which the offender should be punished: see Douglas v The Queen (1995) 56 FCR 465; R v Henry (1999) 46 NSWLR 346 at 382-385. No submissions were made on the appellant's behalf to suggest that his addiction was a matter which should be taken into account in mitig…
Warfield v The Queen
[1995] HCATrans 84 Para 8

…s as couriers as they are likely to attract less attention with customs and immigration officers: see Leroy (1984) 2 NSWLR 441 at 446-7; R v Warfield (1994) 34 NSWLR 200 at 203; R v Klein [2001] NSWCCA 120 at par [24]. This may be a logical approach if one starts with sentencing parameters such as were introduced in R…
Douglas v The Queen
[1995] FCA 411 Para 5

…she became addicted and the degree of judgment open to him or her is relevant in evaluating the extent to which the offender should be punished: see Douglas v The Queen (1995) 56 FCR 465; R v Henry (1999) 46 NSWLR 346 at 382-385. No submissions were made on the appellant's behalf to suggest that his addiction was a matter w…
Veen v The Queen (No 2)
[1988] HCA 14 Para 8

…he same type of offending is relevant. In my view, there is no basis for departing from the principles expressed in Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477-8 on this topic. That is not to say that lack of prior convictions or previous good character should be given such weight as to lead to a disp…
Cranssen v the King
[1936] HCA 42 Para 18

…ifferent sentence. There must be some reason for regarding the sentencing discretion as having been improperly exercised: Cranssen v The King (1936) 55 CLR 509 at 519-520.…
R v McDonnell
(1997) 1 SCR 948 Para 5

…of factors peculiar to the case and the offender (see the reference by Gleeson CJ to what was said by McLachlin J in R v McDonnell (1997) 1 SCR 948 at 989. See also the reference to “starting point” in R v Wurramara (1999) 105 A Crim R 512 at 523. Notwithstanding the debate concerning the validity of the “two stag…

Legislation cited in this decision · 1

Customs Act 1901 (Cth)
1 mention (from Para 1)