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Carabott v The King

Carabott v The King

Case [2025] VSCA 118 28 May 2025

Appeal

Sentencing

Family Hardship

Exceptional Circumstances

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0223

MATTHEW CARABOTT	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2025
DATE OF JUDGMENT:	28 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 118
JUDGMENT APPEALED FROM:	[2024] VCC 1619 (Judge Chambers)

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CRIMINAL LAW – Appeal – Sentence – Pleaded guilty to 11 drug‑related offences – Charge 2 for possession of substances, materials, documents and equipment for drug trafficking – Sentence on charge 2 (base) of 2 years and 4 months – Whether sentencing discretion on charge 2 miscarried by treatment as ‘rolled‑up charge’ comprising 26 instances – Was open to style charge 2 as ‘rolled‑up charge’ – Applicant pleaded guilty to ‘rolled‑up charge’ – No miscarriage – Leave to appeal refused.

Drugs, Poisons and Controlled Substances Act 1981, ss 71A, 71D.

Lipp v The Queen [2013] VSCA 384, considered.

CRIMINAL LAW – Appeal – Sentence – Pleaded guilty to 11 drug‑related offences – Total effective sentence of 3 years and 6 months – Non‑parole period of 1 year and 9 months – Whether judge failed to regard effect of family hardship on the applicant – Absence of explicit reference in judge’s reasons does not mean failure to consider effect of family hardship on applicant – Leave to appeal refused.

Markovic v The Queen (2010) 30 VR 589; R v Panuccio (Court of Appeal of the Supreme Court of Victoria, Winneke P, Brooking and Charles JJA, 4 May 1998), discussed.

R v Koumis (2008) 18 VR 434; Bleakley v The King [2024] VSCA 88, considered.

CRIMINAL LAW – Appeal – Sentence – Pleaded guilty to 11 drug‑related offences – Total effective sentence of 3 years and 6 months – Non‑parole period of 1 year and 9 months – Whether individual sentences, orders for cumulation and non‑parole period manifestly excessive – Whether exercise of mercy as consequence of exceptional family hardship established – Markovic v The Queen (2010) 30 VR 589 – Applicant’s son suffering from non‑verbal autism – Applicant’s wife suffering from mental and physical health conditions – Exceptional family hardship on family members established – Sentence on charge 2 wholly outside range – Combination of mitigating factors especially exceptional family hardship – Leave to appeal granted – Appeal allowed – Applicant resentenced to 16 months with 8‑month non‑parole period.

DPP v Miceli (1997) 94 A Crim R 327; DPP v Milson [2019] VSCA 55; DPP v Snow (a pseudonym) [2020] VSCA 67.

Clarkson v The Queen (2011) 32 VR 361; Karam v The King [2024] VSCA 164; Lai v TheKing [2023] VSCA 151, considered.

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Counsel
Applicant:		Mr T Kassimatis KC with Mr M Allen
Respondent:		Mr J Dickie
Solicitors
Applicant:	Definition Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
T FORREST JA:

The applicant pleaded guilty to 11 charges of offences under the Drugs, Poisons and Controlled Substances Act 1981

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carabott v The King

Details

AGLC: Carabott v The King [2025] VSCA 118
Case: [2025] VSCA 118
Decision Date: 28 May 2025

CaseChat Overview and Summary

In the case of Carabott v The King, the applicant appealed against his sentence following a guilty plea to 11 drug-related offences. The appeal was heard by the Court of Appeal in Victoria, which had to decide on several legal issues concerning the appropriateness and fairness of the sentence imposed. The first issue pertained to the treatment of a particular charge as a 'rolled-up charge', which comprised multiple instances. The court had to determine whether the sentencing discretion was miscarried by treating the charge in this manner. The second issue was whether the judge failed to adequately consider the effect of family hardship on the applicant, despite the absence of explicit references in the judge's reasons. The third issue was whether the overall sentence, including the non-parole period, was manifestly excessive in light of the mitigating circumstances, particularly the exceptional family hardship experienced by the applicant's family.

The court examined the first issue by considering the principles of sentencing and the discretion available to the trial judge. It found that the style of charging did not lead to a miscarriage of justice, as the applicant had pleaded guilty to the 'rolled-up charge'. The court noted that it was open to the trial judge to charge the offence in this way and that the applicant's plea of guilt to the charge was decisive. The second issue was addressed by examining whether the absence of explicit references in the judge's reasons necessarily meant that the judge failed to consider the family hardship. The court concluded that the absence of such references did not indicate a failure to consider the issue, as the mitigating factors were inherently included in the overall assessment of the sentence. The third issue was resolved by examining the totality of the circumstances, including the exceptional family hardship. The court found that the combination of mitigating factors, especially the exceptional family hardship, warranted a reduction in the sentence. As a result, the leave to appeal was granted, the appeal was allowed, and the applicant was resentenced to a term of 16 months with an 8-month non-parole period.

Orders