Cicciarello v Regina [2009] NSWCCA 272

New South Wales Court of Criminal Appeal

CITATION: Cicciarello v Regina [2009] NSWCCA 272 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 October 2009

JUDGMENT DATE: 11 November 2009

JUDGMENT OF: Allsop P at 1; Fullerton J at 1; McCallum J at 1

1. Extend time for the applicant to give notice of intention to appeal or to give notice of intention to apply for leave to appeal to 2 July 2009. 2. Grant leave to appeal. DECISION: 3. Allow the appeal. 4. Quash the sentences imposed on the applicant by Sorby DCJ in the District Court on 22 August 2008 and in lieu thereof: (a) As to count one, imprisonment for a non-parole period of three years commencing on 12 October 2007 and concluding on 11 October 2010; balance of term of one and a half years commencing on 12 October 2010 and concluding on 11 April 2012. (b) As to count two, imprisonment for a fixed term of 12 months commencing 12 April 2007 and expiring 11 April 2008.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – drug supply – supply of not less than a commercial quantity – Drug Misuse and Trafficking Act 1985 (NSW), s25(2) - objective criminality of the offence – aggravating factor – whether dealing for financial gain - proceeds of supply went to support own drug addiction – dealing not for financial gain – less severe sentence warranted in law - CRIMINAL LAW – appeal against sentence – aggravating factor - Crimes Sentencing Procedure Act 1999 (NSW) s 21A(2)(m) - series of criminal acts – series of acts leading to more serious criminal charge – prohibition against double counting – error to take same facts into account as aggravating factor that lead to more serious criminal charge – less severe sentence warranted in law - Crimes Sentencing Procedure Act 1999 (NSW) - s 21A(2)(m) - Drug Misuse and Trafficking Act 1985 (NSW) - s25(2)