Carmona v The Queen - [2020] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0048

FERNANDO TOVAR CARMONA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2020
DATE OF JUDGMENT:	23 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 295
JUDGMENT APPEALED FROM:	[2019] VCC 1148 (Judge Carmody)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Two charges of importation of commercial quantity of border controlled drug – Dealing in proceeds of crime worth $10,000 or more – Total effective sentence of 14 years and 6 months’ imprisonment with non-parole period of 10 years – Whether sentences infringed totality principle – Co-offender sentenced to total effective term of 9 years and 3 months’ imprisonment with non-parole period of 6 years and 3 months – Whether unjustifiable disparity in sentence between applicant and co-offender – Whether sentencing judge erred by assessing objective seriousness of the offending – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Galbally Parker Criminal Lawyers
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA:

On 19 July 2019, the applicant, Fernando Tovar Carmona, pleaded guilty in the County Court at Melbourne to two charges of importing a commercial quantity of a border controlled drug (cocaine), and one charge of dealing in proceeds of crime worth $10,000 or more.

On 26 July 2019, the applicant was sentenced by his Honour Judge Carmody as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) — Criminal Code (Cth)] Life 10 years
Base

Commenced 26 July 2019

2

Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) — Criminal Code (Cth)]

Life

10 years

4 years
(on charge 1)

To commence 26 July 2023

3

Dealing in proceeds of crime worth $10,000 or more [s 400.6(1) — Criminal Code (Cth)]

10 years

1 year

6 months
(on charge 2)

To commence 26 January 2033

Total effective sentence: 14 years and 6 months’ imprisonment

Non-parole period: 10 years

Pre-sentence detention declared: 504 days

Section 6AAA Statement: 18 years’ imprisonment with a non-parole period of 14 years

By notice dated 26 March 2020, the applicant seeks leave to appeal against that sentence on three grounds. They are as follows:

Ground 1:The orders made in relation to the commencement of the sentences imposed on charges 2 and 3 contravened the totality principle.
Ground 2:The disparity between the sentence imposed on the applicant on charge 2 and the base sentence imposed on Javier Caro Munoz contravened the parity principle.
Ground 3:The sentencing judge erred by assessing the seriousness of the individual importation charges by reference to the aggregate weight of the cocaine that informed both charges.

Four other co-offenders were also charged in relation to the importations.…

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 Carmona v The Queen

Details

AGLC: Carmona v The Queen [2020] VSCA 295
Case: [2020] VSCA 295
Decision Date: 23 November 2020

CaseChat Overview and Summary

In the case of Carmona v The Queen, the applicant appealed against the sentence imposed by the Supreme Court of New South Wales. The applicant was convicted on two charges of importing a commercial quantity of a border controlled drug, as well as dealing in proceeds of crime worth $10,000 or more. The applicant was sentenced to a total effective term of 14 years and 6 months’ imprisonment, with a non-parole period of 10 years. The applicant’s co-offender was sentenced to a total effective term of 9 years and 3 months’ imprisonment, with a non-parole period of 6 years and 3 months.

The legal issues before the court were whether the sentences imposed by the sentencing judge infringed the totality principle, whether there was an unjustifiable disparity in the sentences between the applicant and the co-offender, and whether the sentencing judge erred in assessing the objective seriousness of the offending. The applicant argued that the sentences imposed on them were excessive and disproportionate to the sentences imposed on their co-offender, and that the sentencing judge had erred in assessing the objective seriousness of the offending.

The court held that the sentences imposed by the sentencing judge did not infringe the totality principle, and that there was no unjustifiable disparity in the sentences between the applicant and their co-offender. The court found that the sentencing judge had properly assessed the objective seriousness of the offending and had taken into account all relevant factors in imposing the sentences. The court held that the applicant had not demonstrated that the sentences imposed on them were manifestly excessive or disproportionate to the sentences imposed on their co-offender.

The court refused the applicant’s application for leave to appeal. The court found that the applicant had not made out a compelling case for leave to appeal, and that there were no grounds upon which the appeal could succeed. The court held that the sentences imposed by the sentencing judge were within the range of sentences that could be imposed for the offences committed, and that there was no error in the assessment of the objective seriousness of the offending.

Orders