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La Bianca v The King

La Bianca v The King

Case [2023] WASCA 109 17 July 2023

Personal Circumstances

Cystic Fibrosis

General Deterrence

Criminal Law

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LA BIANCA -v- THE KING [2023] WASCA 109
CORAM:   QUINLAN CJ
MAZZA JA
HALL JA

HEARD:   3 APRIL 2023
DELIVERED          :   17 JULY 2023
FILE NO/S:   CACR 49 of 2022
BETWEEN:   DAVIDE CALOGERO LA BIANCA
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   FLYNN DCJ
File Number            :   IND 1035 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of one count of attempting to possess a commercial quantity of cocaine - Appellant sentenced to 9 years' imprisonment with non-parole period of 5 years 3 months - Where appellant suffers from serious medical condition - Whether sentence manifestly excessive - Whether parity principle infringed

Legislation:

Criminal Code (Cth), s 11.1, s 307.5
Crimes Act (Cth), s 16A

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Representation:

Counsel:

Appellant	:	D Grace KC
Respondent	:	D Renton SC

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Awraham v The Queen [2021] NSWCCA 241
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ljuboja v The Queen (2011) 210 A Crim R 374
Martellotta v The Queen [2021] NSWCCA 168
Ng v The Queen [2010] NSWCCA 232
Ngo v The Queen [2017] WASCA 3
O'Shaughnessy v The Queen [2020] NSWCCA 124
R v Boimah [2017] QCA 50
R v Calis [2013] QCA 165
R v Karan [2013] NSWCCA 53
R v Tran; Tran; Nguyen [2013] NSWCCA 136
Salazar v The Queen [2021] VSCA 125
Webber v The Queen [2014] NSWCCA 111

JUDGMENT OF THE COURT:

This is an appeal against sentence.
On 25 January 2022, the appellant and his co‑offender, Justin Edward Natale, were each convicted after trial of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine, contrary to s 307.5 and s 11.1 of the Criminal Code Act 1995 (Cth) (the Commonwealth Code).
On 3 June 2022, Flynn DCJ imposed a sentence of 9 years' imprisonment with a non‑parole period of 5 years 3 months on the appellant, and a sentence of 8 years' imprisonment with a non‑parole period of 4 years 3 months on Mr Natale. Both sentences were backdated to commence on 23 January 2022.
The appellant appeals to this court on three grounds. In substance, ground 1 alleges that the sentence imposed on the appellant was manifestly excessive. Ground 2 alleges that the sentence infringed the parity principle. Ground 3 alleges that the learned sentencing judge erred in finding that the co‑offender took guidance from the appellant.
The question of leave to appeal on these grounds has been referred to the hearing of the appeal.
For the reasons that follow, we would allow the appeal and resentence the appellant.

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 La Bianca v The King

Details

AGLC: La Bianca v The King [2023] WASCA 109
Case: [2023] WASCA 109
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Davide Calogero La Bianca appealed against the sentence imposed on him by the District Court following his conviction for attempting to possess a commercial quantity of cocaine. The Court of Appeal allowed the appeal and resentenced La Bianca to 7 years' imprisonment with a non-parole period of 3 years 3 months. The court held that the original sentence of 9 years' imprisonment with a non-parole period of 5 years 3 months was manifestly excessive and that the parity principle was infringed by imposing a longer sentence on La Bianca than on his co-offender, Mr Natale, despite their equal objective criminality. The court found that La Bianca's serious medical condition and reduced life expectancy warranted a degree of mercy in sentencing. The court also held that the sentencing judge erred in finding that Mr Natale took guidance from La Bianca in the absence of any evidence. The court resentenced La Bianca, taking into account the relevant sentencing principles and the mitigating factors applicable to him.

Orders