R v. Depalo [2003] NSWCCA 80

New South Wales Court of Criminal Appeal

CITATION : R v. Depalo [2003] NSWCCA 80 HEARING DATE(S) : 27 March 2003 JUDGMENT DATE : 1 April 2003

JUDGMENT OF : Studdert J at 1; Smart AJ at 2 DECISION : Leave to appeal against sentence granted; appeal allowed; sentence quashed; in lieu of the sentence imposed the applicant is fined $3300 and allowed 3 months from today in which to pay the fine.

CATCHWORDS : Correct approach where single incident of supply of relatively small quantity of cocaine and not to vulnerable person - no necessity for exceptional circumstances to avoid custodial penalty - correct approach to imposition of periodic detention R v. P. M. Clarke NSWCCA unrep 15 March 1990 CASES CITED : R v. J. R. Bardo NSWCCA unrep 14 July 1992 R v. Ozer NSWCCA unrep 9 Nov 1993 R v. Adam Eli Meyer [2002] NSWCCA 451 PARTIES : Regina v. Frank Depalo FILE NUMBER(S) : CCA 60042/2003 COUNSEL : Appellant P. Byrne S.C Respondent M. C. Grogan SOLICITORS : Appellant Nyman Gibson Stewart Respondent S. E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0708 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

- 13 - IN THE COURT OF CRIMINAL APPEAL 60042/03

Studdert J Smart AJ Tuesday, 1 April 2003 R v. Frank DEPALO Judgment

1. STUDDERT J: I agree with Smart AJ

2. SMART AJ: Frank Depalo seeks leave to appeal against a sentence of imprisonment for 2 years 6 months with a non-parole period of 1 year 10 months 12 days, the non-parole period to be served by way of periodic detention for the offence of between 30 November–2 December 1999 supplying a prohibited drug, to wit cocaine, approximately 6.25 grams. The cocaine content was, on analysis, found to be 20%. The maximum penalty is 15 years imprisonment and/or a fine of 2000 penalty units.