Palmisano The Queen - [2020] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0099

JACOPO PALMISANO	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 298
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 possession of commercial quantity of border controlled drug – Dealing in proceeds of crime worth $1,000 or more – Possession of controlled drug – Sentence of 18 months’ imprisonment on charge of dealing in proceeds of crime – Whether sentence of 18 months manifestly excessive – Co-offender principal player in drug importation operation – Yet, co-offender sentenced to 12 months’ imprisonment on more serious charge of dealing in proceeds of crime worth $10,000 or more – Whether sentence of 18 months imposed on applicant offends parity principle – Leave to appeal granted.

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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, Jacopo Palmisano, 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 dealing in proceeds of crime worth $1,000 or more, and one charge of possessing a controlled drug (MDMA, ketamine, and cocaine). Three of the applicant’s co-offenders also pleaded 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 possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 5 years
Base

Commenced 3 February 2020

2 Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) — Criminal Code (Cth)] 5 years 18 months
6 months (on charge 1)

To commence 3 February 2024

3 Possess a controlled drug (MDMA, ketamine, and cocaine) [s 308.1(1) — Criminal Code (Cth)] 2 years 2 months
Nil

Commenced 3 February 2020

Total effective sentence: 5 years and 6 months’ imprisonment

Non-parole period: 3 years and 9 months

Pre-sentence detention declared: 697 days

Section 6AAA statement: 7 years and 3 months’ imprisonment with a non-parole period of 5 years

A fifth co-offender, Fernando Tovar Carmona, who played the ‘pivotal’ role at the Melbourne end of the enterprise, had entered a plea of guilty at a far earlier stage than that of the applicant and the other co-offenders.[1] He was sentenced on 26 July 2019 as follows:
[1]See generally, DPP v Carmona [2019] VCC 1148, [4], [20], and [35].

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

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 Palmisano The Queen

Details

AGLC: Palmisano The Queen [2020] VSCA 298
Case: [2020] VSCA 298
Decision Date: 23 November 2020

CaseChat Overview and Summary

Palmisano v The Queen was a case heard in the High Court of Australia, where the appellant, Palmisano, challenged the severity of his sentence for various drug-related charges. Palmisano had been convicted of attempted possession of a commercial quantity of a border-controlled drug, dealing in proceeds of crime worth $1,000 or more, and possession of a controlled drug. His co-offender, who was the principal player in the drug importation operation, received a 12-month imprisonment sentence for dealing in proceeds of crime worth $10,000 or more. Palmisano was sentenced to 18 months’ imprisonment for dealing in proceeds of crime worth $1,000 or more.

The legal issues before the court were whether Palmisano's 18-month imprisonment sentence for dealing in proceeds of crime was manifestly excessive and whether it breached the parity principle, given his co-offender's lesser sentence for a more serious charge. The court had to consider the sentencing principles and the need to ensure consistency and fairness in the application of the law.

The High Court held that the sentence of 18 months was manifestly excessive and did not align with the parity principle. The court found that Palmisano's role in the drug importation operation was less significant than his co-offender's, and therefore, his sentence should have reflected this. The court granted Palmisano leave to appeal, recognising the disproportionate nature of his sentence compared to that of his co-offender.

The final orders of the court were to grant Palmisano leave to appeal his sentence and to refer the matter back to the original sentencing court for reconsideration in light of the High Court's decision.

Orders