DELFINO, Raymond Joseph v R [2008] NSWCCA 18

New South Wales Court of Criminal Appeal

CITATION: DELFINO, Raymond Joseph v R [2008] NSWCCA 18

HEARING DATE(S): 29 January 2008

JUDGMENT DATE: 25 February 2008

JUDGMENT OF: McClellan CJ at CL at [1]; James J at [2]; Simpson J at [71]

DECISION: Leave to appeal against sentence granted but the appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW — Sentencing — prior criminal history — parity in sentencing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act

Hantzis v Regina [2006] NSWCCA 387 Lowe v The Queen (1984) 154 CLR 606 CASES CITED : Olbrich v The Queen (1999) 199 CLR 270 Postiglione v The Queen (1996-1997) 189 CLR 295 R v Li & ors [2005] NSWCCA 154

PARTIES: DELFINO, Raymond Joseph v R

FILE NUMBER(S): CCA 2007/3072

COUNSEL: T A Game SC (Applicant) L Lamprati SC (Crown)

SOLICITORS: Galloways Solicitors (Applicant) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0740

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 13 April 2007

IN THE COURT OF CRIMINAL APPEAL 2007/3072

McCLELLAN CJ at CL JAMES J SIMPSON J

MONDAY, 25 FEBRUARY 2008 DELFINO, Raymond Joseph v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Raymond Joseph Delfino applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Finnane on 13 April 2007 for an offence of knowingly taking part in the cultivation of a number of prohibited plants (cannabis) which were not less than the commercial quantity, that is not less than 250 plants. The applicant had pleaded guilty to the offence. 3 Knowingly taking part in the cultivation of not less than a commercial quantity of cannabis plants is an offence under s 23(2) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years or a fine of 3500 penalty units or both. 4 The applicant was sentenced by Judge Finnane to a non-parole period of two years commencing on 20 July 2006 and a balance of the term of two years, that is a head sentence of four years. 20 July 2006 was the date on which the applicant had been arrested and from which he had remained in custody. By the time this application was heard the applicant had served the greater part of the non-parole period of the sentence. 5 The cultivation of cannabis plants in which the applicant knowingly took part occurred on a property near Narrabri in the year 2003. A number of other persons participated in the cultivation in 2003, including, in particular, a man named Demitrios Hantzis and a man named John Madau. 6 A much larger cultivation of cannabis plants occurred on the same property, or at least in the same general area, in the following year 2004. Hantzis and Madau and some other persons who had taken part in the 2003 cultivation also took part in the 2004 cultivation. However, the applicant did not take part in the 2004 cultivation. 7 Having regard to some of the grounds of appeal against sentence and some of the submissions in support of those grounds, it will be convenient, at this stage, to outline the history of the criminal proceedings against Hantzis, Madau and the applicant. Later in the judgment it will be necessary to examine the history of the proceedings in more detail. 8 In 2004 Hantzis and Madau and some other persons were arrested and charged for taking part in the 2004 cultivation. 9 On 10 June 2005 Judge Finnane sentenced Hantzis for taking part in the 2004 cultivation, his Honour not being aware of the 2003 cultivation. An appeal by Hantzis to the Court of Criminal Appeal against the sentence imposed by Judge Finnane was successful, the Court of Criminal Appeal re-sentencing Hantzis (Hantzis v Regina [2006] NSWCCA 387) 10 As I have already noted, the applicant was arrested for taking part in the 2003 cultivation on 20 July 2006 and was sentenced by Judge Finnane on 13 April 2007. On the same day 13 April 2007 Hantzis was sentenced by Judge Finnane for taking part in the 2003 cultivation. 11 On 1 May 2007 Judge Finnane sentenced Madau for the separate offences of taking part in the 2003 cultivation and taking part in the 2004 cultivation. 12 Judge Finnane sentenced the applicant on the basis of a brief set of agreed facts. According to those agreed facts the applicant's role in the cultivation was that of a harvester. He was also a party to a number of intercepted telephone calls in which he spoke with co-offenders about the progress of the harvesting and packing of the crop. Records showed that the applicant was on the property where the plants were being cultivated for a short period only between 30 March 2003 and 2 April 2003. The total value of the cannabis leaf being cultivated was approximately $700,000. 13 In his remarks on sentence his Honour referred to the criminal history of the applicant and the applicant's motivation for taking part in the cultivation. What his Honour said about these matters was made the subject of grounds of appeal and I will examine what his Honour said later in this judgment. 14 The applicant did not himself give evidence in the proceedings on sentence. The information which the sentencing judge had about the applicant was largely derived from a pre-sentence report and statements made by his legal representative from the Bar table. 15 His Honour found that the applicant had had some legitimate employment and before being arrested had been undergoing training to himself become a physical fitness trainer. While in custody he had worked in the making and assembling of pieces of computer equipment, a kind of work which was only made available to prisoners who had volunteered and who were regarded by the prison authorities as reliable. 16 His Honour allowed the applicant a discount of 20 per cent for his plea of guilty. His Honour concluded that the applicant had some possibility of rehabilitation and that that possibility would be increased if the applicant was supervised for an extended period while on parole. Accordingly, his Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. 17 In his remarks on sentence his Honour referred to the fact that other persons had been sentenced by him for taking part in either or both of the 2003 cultivation and the 2004 cultivation and it will be necessary to refer to those parts of his Honour's remarks in more detail in dealing with one of the grounds of appeal against sentence. 18 There were four grounds of appeal against sentence, namely:- 1. The sentencing judge erred in applying or failing to apply the parity principle 2. The sentencing judge erred in finding that the applicant had involved himself in the cultivation for monetary gain 3. The sentencing judge erred in the significance given by him to the applicant's prior criminal history 4. The sentence is manifestly excessive 19 In counsel for the applicant's written submissions it was asserted that the errors were related and could be dealt with "in a narrative form", that is together rather than separately. However, it seems to me that, while some of the grounds of appeal are interrelated, there is utility in giving at least some separate consideration to the individual grounds of appeal. It is convenient to deal with the individual grounds of appeal in a different order from that in which they are set out in the formal statement of the grounds of appeal.