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Palmisano v The Queen

Palmisano v The Queen

Case [2021] VSCA 124 12 May 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0099

JACOPO PALMISANO	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2021
DATE OF JUDGMENT:	12 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 124
JUDGMENT APPEALED FROM:	[2020] VCC 50 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Parity – Money laundering – Dealing in proceeds of crime worth $1,000 or more – Appellant in possession of $6,150 – Sentenced to 18 months’ imprisonment – Co-offender in possession of $30,000 – Sentenced to 12 months’ imprisonment – Whether differential between co-offenders’ sentences reasonably open – Crown concession – Differential not reasonably open – Resentencing – Assessing offence gravity – Whether resentencing should affect total effective sentence and non-parole period – Appeal allowed – Criminal Code 1995 (Cth) s 400.7(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Ternovski	Michael J Gleeson & Associates
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P

McLEISH JA:

On 16 September 2019, the appellant pleaded guilty, before a judge of the County Court, to:

(a) one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine);[1]

(b) one charge of dealing in proceeds of crime worth $1,000 or more;[2] and

(c) one charge of possessing a controlled drug (MDMA, ketamine and cocaine).[3]

[1]Criminal Code 1995 (Cth) ss 11.1 and 307.5.

[2]Ibid s 400.7(1).

[3]Ibid s 308.1.

The three charges carried maximum penalties of life imprisonment, 5 years’ imprisonment, and 2 years’ imprisonment, respectively.

On 3 February 2020, the judge sentenced the appellant to a total effective term of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 9 months. On the second charge, dealing in proceeds of crime worth $1,000 or more, the appellant was sentenced to 18 months’ imprisonment, 6 months of which were cumulated on the base sentence of 5 years’ imprisonment for the first charge.

One of the appellant’s co-offenders, Fernando Tovar Carmona (‘Tovar Carmona‘), pleaded guilty at an earlier stage to charges arising from the same enterprise. He was sentenced by the same judge some six months before the appellant.[4] Tovar Carmona received a total effective term of 14 years and 6 months’ imprisonment, with a non-parole period of 10 years. On a charge of dealing in proceeds of crime worth $10,000 or more, he received a sentence of 12 months’ imprisonment, 6 months of which were cumulated. This charge related to $30,000 in cash found in Tovar Carmona’s possession.
[4]R v Carmona [2019] VCC 1148. Leave to appeal against sentence was refused: Carmonav The Queen [2020] VSCA 295 (Weinberg JA).

The appellant now appeals his sentence on the charge of dealing in proceeds of crime worth $1,000 of more. He was earlier given leave to appeal on two grounds:[5] first, that the sentence on that charge infringes the parity principle because the differential between…

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 v The Queen

Details

AGLC: Palmisano v The Queen [2021] VSCA 124
Case: [2021] VSCA 124
Decision Date: 12 May 2021

CaseChat Overview and Summary

In the matter of Palmisano v The Queen, the appellant was convicted of various charges related to money laundering and dealing in proceeds of crime. The appellant was found in possession of $6,150, while a co-offender was found in possession of $30,000. The appellant was sentenced to 18 months’ imprisonment, whereas the co-offender was sentenced to 12 months’ imprisonment. The appellant appealed the sentence, arguing that the differential between the sentences was not reasonably open. The central legal issue was whether the differential between the sentences was reasonably open in light of the disparity in the amounts of money involved and the Crown's concession that the differential was not reasonably open.

The court considered the principles of parity in sentencing and the factors relevant to assessing the gravity of an offence. The court noted that the Crown had conceded that the differential between the sentences was not reasonably open. The court agreed, stating that the disparity in the amounts of money involved and the Crown's concession were significant factors in determining that the differential was not reasonably open. The court also considered the need for consistency in sentencing and the importance of ensuring that sentences reflect the gravity of the offence. The court concluded that the differential between the sentences was not reasonably open and that the appellant's sentence should be reconsidered.

In light of the court's findings, the appellant's sentence was set aside, and the matter was remitted to the sentencing court for resentencing. The court emphasised the importance of considering the principles of parity in sentencing and the need for consistency in assessing the gravity of an offence. The court also noted that the resentencing should take into account the total effective sentence and the non-parole period. The appeal was allowed, and the matter was remitted to the sentencing court for resentencing in accordance with the court's directions.

Orders