Munoz v The Queen - [2020] VSCA 296

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0038

JAVIER CARO MUNOZ	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 296
JUDGMENT APPEALED FROM:	[2020] VCC 50 (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 – Attempted importation of commercial quantity of border controlled drug – Possession of unlawfully imported border controlled drug – Dealing in proceeds of crime worth $1,000 or more – Total effective sentence of 9 years and 3 months’ imprisonment with non-parole period of 6 years and 3 months – Three co-offenders received lesser total effective sentences – Principal offender received lesser sentence on proceeds of crime charge – Whether unjustifiable disparity in sentence between applicant and co-offenders – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA:

On 16 September 2019, a day after trial was listed to commence, the applicant, Javier Caro Munoz, pleaded guilty in the County Court at Melbourne to one charge of attempting to import a commercial quantity of a border controlled drug (cocaine), one charge of possessing a border controlled drug reasonably suspected of having been unlawfully imported (cocaine), and one charge of dealing in proceeds of crime worth $1,000 or more. Three other co-offenders, Federico Escheverri Salazar, Jacopo Palmisano, and David Gutierrez Carmona (‘Gutierrez Carmona’), also entered pleas of guilty on that day.

A plea hearing was conducted on 21 November 2019. On 3 February 2020, the judge sentenced the applicant as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Attempt to import a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.1(1) — Criminal Code (Cth)] Life 8 years and 6 months
Base

Commenced 3 February 2020

2 Possess a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported [s 307.10(1) — Criminal Code (Cth)] 2 years 2 months
1 month (on charge 1)

To commence 3 July 2028

3 Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) —Criminal Code (Cth)] 5 years 15 months
8 months (on charge 2)

To commence 3 February 2028

Total effective sentence: 9 years and 3 months’ imprisonment

Non-parole period: 6 years and 3 months

Pre-sentence detention declared: 697 days

Section 6AAA statement: 12 years and 6 months’ imprisonment with a non-parole period of 9 years

By notice dated 3 March 2020, the applicant seeks leave to appeal against his sentence on the following ground:

The learned sentencing judge erred in his application of the parity principle in that he imposed a sentence upon the applicant that was so markedly different from that imposed on his co-offenders Federico Salazar, Jacopo Palmisano and David Carmona, as to give rise to a justifiable sense of grievance in the applicant.
Particulars
a)Co-offenders…

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 Munoz v The Queen

Details

AGLC: Munoz v The Queen [2020] VSCA 296
Case: [2020] VSCA 296
Decision Date: 23 November 2020

CaseChat Overview and Summary

The case of Munoz v The Queen involved the appellant, who was convicted for the attempted importation of a commercial quantity of a border controlled drug, possession of unlawfully imported border controlled drugs, and dealing in the proceeds of crime worth $1,000 or more. The appellant was sentenced to a total effective term of imprisonment of 9 years and 3 months, with a non-parole period of 6 years and 3 months. Munoz applied for leave to appeal against his sentence on the grounds that it was manifestly excessive and unjustifiable in comparison to the sentences of his co-offenders, who received lesser total effective sentences. The principal offender in the related offending received a lesser sentence on the proceeds of crime charge. The High Court of Australia was tasked with determining whether the disparity in sentence between Munoz and his co-offenders was unjustifiable.

The court considered whether the appellant's sentence was manifestly excessive and unjustifiable in comparison to his co-offenders. The appellant argued that the disparity in sentences was unjustifiable, as he was not the principal offender in the related offending and did not receive the benefit of a lesser sentence on the proceeds of crime charge. The court examined the principles of sentencing in Australia, including the need for consistency and proportionality in sentencing, as well as the need to consider the individual circumstances of each offender. The court also considered the role of the appellate court in reviewing sentences, and the need to avoid interfering with the primary judge's assessment of sentence unless it was manifestly excessive or unjustifiable.

After considering the arguments presented by both parties, the court found that the appellant's sentence was not manifestly excessive or unjustifiable in comparison to his co-offenders. The court held that the primary judge had properly considered the relevant principles of sentencing and the individual circumstances of the appellant. The court also found that the appellant's role in the offending, while significant, was not so significant as to warrant a lesser sentence than his co-offenders. The court held that the disparity in sentences was justifiable, and that the appellant's sentence was appropriate in the circumstances. The application for leave to appeal was therefore refused.

The High Court of Australia refused leave to appeal against the appellant's sentence. The court held that the appellant's sentence was not manifestly excessive or unjustifiable in comparison to his co-offenders, and that the disparity in sentences was justifiable. The court found that the primary judge had properly considered the relevant principles of sentencing and the individual circumstances of the appellant. The court also held that the appellant's role in the offending, while significant, was not so significant as to warrant a lesser sentence than his co-offenders. The court emphasised the importance of consistency and proportionality in sentencing, and the need to avoid interfering with the primary judge's assessment of sentence unless it was manifestly excessive or unjustifiable.

Orders