Citation: Romano v R; Romano v R [2009] NSWCCA 63
Court: New South Wales Court of Criminal Appeal
Date: 13 March 2009
Judge(s): Grove J, Blanch J, Kirby J
Background
Two brothers, referred to here as Nicola and Luigi, were jointly charged with knowingly taking part in the cultivation of a large commercial quantity of cannabis at Glen Davis between September 2003 and April 2004, involving more than 8,000 plants. Nicola also faced a separate charge relating to a second cannabis crop at Torrington in early 2004, which was later taken into account at sentencing by way of a Form 1 (a procedure under the Crimes (Sentencing Procedure) Act 1999 that allows additional offences to be acknowledged and considered without a separate conviction being recorded).
Nicola pleaded guilty on the day the trial was listed to begin. Luigi contested the charge, was convicted by a jury, and was sentenced separately. Both were sentenced in the District Court by McGuire A/DCJ. Nicola received a total sentence of 10 years imprisonment, with a non-parole period of 6 years. Luigi received a total sentence of 8 years 11 months, with a non-parole period of 5 years.
Both brothers sought leave to appeal against the severity of their respective sentences. Nicola raised multiple grounds relating to errors in sentencing, while Luigi's primary complaint centred on parity with co-offenders, including Nicola and others who had been sentenced separately.
Legal Issues
- Whether the sentencing judge correctly calculated pre-sentence custody when fixing the commencement date of Nicola's sentence
- Whether the discount applied for Nicola's guilty plea was sufficient, particularly given the guideline judgment in R v Thomson and Houlten
- Whether the sentencing judge was entitled to take the Torrington offence into account on a Form 1 when Nicola had initially declined to acknowledge that offence
- Whether the sentencing judge made errors in assessing Nicola's subjective circumstances, including age, health, cooperation with authorities, and remorse
- Whether Luigi's sentence was disproportionate compared to sentences imposed on co-offenders, raising a parity concern
Decision
The Court rejected all eleven grounds advanced by Nicola. On the question of pre-sentence custody, the Court found that the two-day discrepancy alleged by Nicola was based on an incorrect assumption about his arrest date. He had voluntarily attended a police station on 25 May 2004, not 22 May as his submissions assumed, and this ground therefore failed.
On the guilty plea discount, the Court acknowledged that the guideline in R v Thomson and Houlten does not operate as a legislated minimum. The sentencing judge's reduction from a notional 11 years to 10 years (approximately a 9.9 per cent discount) was open to him given the lateness of the plea, and no error was established. The Form 1 procedure was also properly applied: Nicola had voluntarily signed the Form 1 for the Torrington offence, and no basis existed to challenge the sentencing judge's approach to that acknowledgment.
On Luigi's parity argument, the Court examined the sentences imposed on various co-offenders, including Bonfiglio, Foti, and Caporale, who had been dealt with in separate proceedings. The Court found that Luigi's role was more substantial than that of Bonfiglio, the co-offender whose sentence Luigi sought to use as a comparator. Luigi had been found to have participated directly in the operation, including organising the property transfer, hiring vehicles, providing irrigation equipment, giving horticultural instructions, and making two trips to Griffith to collect seedlings. That level of involvement placed him squarely as a principal, not a subordinate, and any perceived disparity with co-offenders was explicable by those differences in culpability.
The Court also rejected the suggestion that the Form 1 offence for Nicola and the absence of a guilty plea discount for Luigi should effectively cancel each other out and produce equivalent sentences. Luigi's sentence lay well within the range of a sound exercise of sentencing discretion and no lesser sentence was warranted.
Orders Made
- Leave to appeal granted to both Nicola Romano and Luigi Romano
- Both appeals dismissed
Key Takeaways
- The guilty plea discount guideline from R v Thomson and Houlten does not function as a mandatory minimum. A discount of approximately 10 per cent was open to the sentencing judge where the plea was entered on the day the trial was listed to commence.
- A Form 1 acknowledgment remains valid where the offender voluntarily signs it, even if they initially declined to do so. No error arose from taking the Torrington offence into account on that basis.
- Parity in sentencing requires a justifiable grievance to arise from the comparison. Differences in the nature, extent, and directness of co-offenders' involvement can legitimately explain sentencing differences without creating such a grievance.
- In dismissing Luigi's parity challenge, the Court of Criminal Appeal confirmed that a finding of principal involvement, supported by detailed factual findings about conduct, can place an offender in a higher sentencing category than co-offenders whose roles were more limited, regardless of formal hierarchy.
- No particular point of principle was established. The Court's conclusions rested on the application of established sentencing discretion principles to the specific facts, and both sentences were found to sit well within the appropriate range.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Thomson and Houlten (2000) 49 NSWLR 383
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- The Queen v Olbrich (1999) 199 CLR 270
- R v Bavadra [2000] 115 A Crim R 152
- R v Morgan [1993] 70 A Crim R 368
- R v Skorin [2005] NSWCCA 276
- R v Sutton (2004) 41 MVR 40