Regina v Giacobello [2001] NSWCCA 473

New South Wales Court of Criminal Appeal

CITATION : Regina v Giacobello [2001] NSWCCA 473 FILE NUMBER(S) : CCA 60529/00 HEARING DATE(S) : 26 November 2001 JUDGMENT DATE : 26 November 2001

PARTIES : Regina Nunzio Giacobello (Appellant) JUDGMENT OF : Hidden J at 20; Newman AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/71/0069 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : A. Amer (Appellant) W. Dawe QC (Crown) SOLICITORS : Stary Myall (Appellant) DPP (Crown)

DECISION : 1. Leave to appeal granted; 2. Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60529/00

HIDDEN J NEWMAN AJ

MONDAY 26 NOVEMBER 2001

REGINA v NUNZIO GIACOBELLO

JUDGMENT

1 NEWMAN AJ: This is an application for leave to appeal on the sentence imposed by his Honour Judge Gibson in the District Court at Albury on 3 August 2000. 2 Before his Honour the applicant had pleaded guilty to the offence of cultivating a large commercial quantity of a prohibited plant namely cannabis contrary to the provisions of s 23(2)A of the Drug Misuse and Trafficking Act 1985. The maximum penalty prescribed by that section is twenty years imprisonment and/or a fine of five thousand penalty units. 3 In the event his Honour sentenced the applicant to a term of imprisonment of four years commencing on 17 May 2000, the day when the applicant went into custody and expiring on 16 May 2004. 4 His Honour imposed within the framework of that sentence a non-parole period of three years which is to expire on 16 May 2003. 5 The objective facts of the matter were indeed in very small compass. The police raid was carried out (a) at Jerilderie in this State on a property owned by the people known as Muto. There the police found some two thousand plus plants of cannabis growing in apparently a very well ordered way. An estimate had been given that the value of the crop would be some $4,000,000 approximately. A figure which I should say his Honour viewed with some suspicion. 6 Be that as it may the amount of the crop was such that the plea of guilty was to an appropriate charge. 7 The applicant himself was not on the property at the time when the police carried out their raid. But obviously on hearing of it got in touch with the police via his solicitor, saw the police, took part in a record of interview of which he admitted his part in the venture as being a cultivator. 8 Also in the course of that interview he was asked as to how much money he expected to get from his efforts, and after a somewhat desultory question and answer session finally he was asked by the police "but there was some financial gain you were to receive?" A. If there wasn't a financial gain I wouldn't be in there." 9 Thus before his Honour were the facts that the applicant admitted taking part as a cultivator in the growing of a crop of cannabis consisting of more than two thousand plants, and that he expected as a consequence of his efforts to receive some financial reward. As I said facts in a very small compass indeed, but subjectively very little was put before his Honour. 10 He did have a prior criminal record including a decision and sentence in Victoria for trafficking cannabis of relevance. He was 46 years of age at the time he came before his Honour. He was an uneducated man when he arrived in Australia at the age of seventeen; worked here for about six years before developing peritonitis; lived with his parents from the age of twenty-three onwards; and had not taken part in very much by way of paid employment. 11 The attack mounted on his Honour's sentence principally involved two propositions. One, that his Honour did not give sufficient weight to the fact that the co-operation extended by the applicant resulted in the speedy disposition of the matter. And secondly, that his Honour did not give sufficient weight to the fact that the applicant in fact received no financial reward for his part in the venture. 12 Dealing with the first of the arguments, his Honour in fact said, "But he is entitled to discount for his plea, and the fact that it is an early plea, one assumes that there is some remorse by the very fact that the plea is entered, and I take that into consideration." 13 Now the proposition that the fact that the matter was basically resolved as a consequence of the applicant admitting his participation in the venture, and pleading guilty at all appropriate times is in my view well and truly taken into account by his Honour's statement that he is entitled to a significant discount, and the fact it was an early plea. 14 In my view that argument pales and fails with his Honour's taking into account of the early and proper plea of guilty and early admission of guilt by the applicant. 15 As far as the argument mounted that the applicant received no financial reward, and his Honour should have given that more weight in considering sentence, I make this observation. There is no doubt on the matter contained in the record of interview, and to which his Honour referred that the applicant expected to receive some reward. 16 It may have been in the applicant's best interests if he had been a bit more forthcoming (a) with the police when interviewed and (b) in evidence before his Honour. 17 However, be that as it may, the fact is that he was expecting to receive a financial reward for his part in the cultivation of a considerable criminal venture. In my view his Honour dealt with both the objective and subjective features of the matter in an appropriate way. 18 Having regard to the head penalty available in the matter I am of the view that the sentence imposed by his Honour was well within the discretion available in this particular case. 19 Because of the serious nature of the case as far as the applicant is concerned, I would grant leave to appeal, but would dismiss the appeal. 20 HIDDEN J: I agree. The orders of the Court will be those as proposed by his Honour.