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Trimarchi v Regina

Trimarchi v Regina

Case [2019] NSWCCA 189 14 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Trimarchi v Regina [2019] NSWCCA 189
Hearing dates: 24 June 2019
Decision date: 14 August 2019
Before: Simpson AJA [1]
Harrison J [2]
N Adams J [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW — appeals — appeal against sentence —misapplication of principle—objective seriousness of the offence—assessment for each individual offence— whether application of Clarke principle— “smorgasbord” of drugs— whether no penalty other than imprisonment was appropriate
CRIMINAL LAW — appeals — appeal against sentence — manifest excess
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Firearms Act 1996 (NSW), s 65(3)
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Daher v R [2018] NSWCCA 287
Delaney v R; R v Delaney [2013] NSWCCA 150
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 228 CLR 357
Parente v R [2018] 96 NSWLR 633; [2017] NSWCCA 284
R v Brown [2012] NSWCCA 199
R v Campbell [2014] NSWCCA 102
R v Campbell; R v Smith [2019] NSWCCA 1
R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
R v Van Ryn [2016] NSWCCA 1
Sponberg v R [2017] NSWCCA 120
Tepania v R [2018] NSWCCA 247
Texts Cited: Macquarie Dictionary
Category: Principal judgment
Parties: Stefano Trimarchi (Applicant)
Regina (Respondent)
Representation:
Counsel:
C O’Donnell SC (Applicant)
H Roberts (Respondent)
Solicitors:
S Tully (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00177072
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

3 August 2018

Before:

King DCJ SC

File Number(s):

2017/00177072

Judgment

SIMPSON AJA: I agree with N Adams J.
HARRISON J: I agree with N Adams J.
N ADAMS J: Stefano Trimarchi seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act1912 against the aggregate sentence imposed upon him on 3 August 2018 by his Honour King DCJ SC. The sentence comprised a non-parole period of two years and a head sentence of three years to commence on 25 July 2018. The non-parole period will expire on 24 July 2020.
The aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) (the Sentencing Act) in relation to the following five separate offences:

Supply a prohibited drug, namely cocaine (1.75 grams) contrary to s 25(1) of the Drug Misuse and Trafficking Act1985 (NSW) (DMTA). That offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.00. His Honour provided an indicative sentence for this offence of six months imprisonment;

Supply a prohibited drug, namely methorphan (15.64 grams) contrary to s 25(1) of the DMTA. That offence carries a maximum penalty of 15 years imprisonment…

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 Trimarchi v Regina

Details

AGLC: Trimarchi v Regina [2019] NSWCCA 189
Case: [2019] NSWCCA 189
Decision Date: 14 August 2019

CaseChat Overview and Summary

Trimarchi appealed against his sentence, arguing that the primary judge misapplied sentencing principles. The nature of the dispute was the sentence imposed by the Supreme Court of New South Wales. The appeal was heard by the New South Wales Court of Criminal Appeal. The central legal issue was whether the primary judge appropriately applied the principle from Clarke, which relates to the cumulative assessment of multiple drug offences. The appeal also questioned if the sentencing was a manifest excess.

The Court of Criminal Appeal examined whether the primary judge correctly applied the principle from Clarke, which mandates an assessment of the objective seriousness of each individual offence in cases involving multiple drug offences. The appeal further considered if the application of this principle led to an inappropriate "smorgasbord" of drugs being considered as a single cumulative offence. The court also assessed whether the sentence imposed was a manifest excess and if there were any grounds for a reduction in the sentence. The Court of Criminal Appeal concluded that the primary judge did not adequately apply the principles from Clarke, leading to an inappropriate cumulative assessment of the offences. Consequently, the appeal was allowed, and the sentence was reduced.

Orders