Carabott v The King

Case [2025] VSCA 118


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:

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

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Carabott v The King [2025] VSCA 118
Case
[2025] VSCA 118
Decision Date

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.

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Evidence Before The Court

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