Dicianni v R; Pintabona v R [2015] NSWCCA 201

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dicianni v R; Pintabona v R [2015] NSWCCA 201 Hearing dates: 25 June 2015 Decision date: 31 July 2015 Before: Hoeben CJ at CL at [1] Price J at [258] Davies J at [265] Decision: (1) In the application by Giuseppe Dicianni for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed. (2) In the application by Giuseppe Dicianni for leave to appeal against sentence, leave to appeal is granted but the appeal is dismissed. (3) In the application by Josephine Pintabona for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed. (4) In the application by Josephine Pintabona for leave to appeal against sentence, leave to appeal is granted and the appeal is allowed. (5) The sentence imposed on 13 September 2013 is quashed and in lieu thereof Ms Pintabona is sentenced as follows: (a) For the offence of being an accessory after the fact to the murder of Mario Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 March 2013 and expiring 12 March 2015 with an additional term of 12 months expiring 12 March 2016; (b) For the offence of being an accessory after the fact to the murder of Albert Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 June 2013 and expiring 12 June 2015 with an additional term of 12 months expiring 12 June 2016. (c) Direct that the co-applicant be released to parole forthwith. Catchwords: CRIMINAL LAW – Dicianni – CONVICTION APPEAL – two murder offences – whether verdict unreasonable and could not be supported by evidence – strong Crown circumstantial case – motive – DNA evidence – actions of co-offender as accessory – evidence of flight – whether co-offender drove him from murder scene – appeal dismissed – SENTENCE APPEAL – whether sentences manifestly excessive – appeal dismissed – Pintabona – CONVICTION APPEAL – accessory after the fact to two murders – whether evidence of statements admissible – whether verdict unreasonable and could not be supported by evidence – whether open to jury to be satisfied beyond reasonable doubt that co-offender drove offender from murder scene – strong circumstantial case – DNA evidence – conviction appeal dismissed – SENTENCE APPEAL – whether manifestly excessive – sentence appeal allowed – co-offender resentenced. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) – s 6(1) Criminal Procedure Act 1986 – s 281 Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 House v R [1936] HCA 40; 55 CLR 499 M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Mallet v Mallet [1984] HCA 21; 156 CLR 605 McKenzie v R [1996] HCA 35; 190 CLR 348 R v Dileski [2002] NSWCCA 345; 1323 A Crim R 408 R v Hillier [2007] HCA 13; 228 CLR 618 R v Tan Do (Unreported – Court of Criminal Appeal – 7 May 1997 R v Taouk [2005] NSWCCA 155; 154 A Crim R 69 R v Ward [2004] NSWSC 420 R v XX [2009] NSWCCA 115; 195 A Crim R 38 SKA v R [2011] HCA 13; 243 CLR 400 Shepherd v R [1990] HCA 56; 170 CLR 573 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Giuseppe Dicianni – Applicant Josephine Pintabona – Co-applicant Regina – Respondent Crown Representation: Counsel: D Dalton SC – Applicant Dicianni D Dalton SC – Co-applicant Pintabona J Girdham SC – Respondent Crown