R v Belbruno - [2000] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 192 of 1999

THE QUEEN

CARMELO BELBRUNO

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2000
DATE OF JUDGMENT:	19 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 201

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Criminal law – Sentence – Trafficking in commercial quantities of heroin and cannabis – Respective sentences imposed of 10½ years and 7 years – Sentence of 10½ years for trafficking in heroin not beyond range, but sentence of 7 years for cultivation manifestly excessive – Sentence of 5 years substituted – Meaning of “commercial quantity” in cases of “cultivation” discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.G. Hicks	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. R.A.R. Lewis	Amad & Amad

WINNEKE, P.:

In September 1998 the appellant, Carmelo Belbruno, who was born in 1940, was part of a syndicate trafficking at a high level in heroin. He, together with a confederate Tony Lopiccolo, procured large quantities of heroin from his suppliers (two men called Farrello and Gatea) and on-sold in bulk to mid-range dealers in the drug. Their transactions were carried out under cover of a retail jewellery business - called "Steffaninos" - conducted by Lopiccolo in Lygon Street, Brunswick. Their activities became known to members of a task force, comprising officers of the Victoria Police and the National Crime Authority, in August and September 1998. Between 4 September and 16 September they were placed under close surveillance. During those twelve days the appellant, with the assistance of Lopiccolo, procured for and sold to an undercover operative (who went by the name of Karelis) seven blocks of heroin totalling in weight nearly 2.5 kgs., and comprising in excess of 1.75 kgs. of pure heroin at a total purchase price of $480,000. The volume of heroin which they trafficked was in excess of seven times the commercial quantity prescribed by the Drugs, Poisons and Controlled Substances Act 1981. The evidence was that the street level value of such a quantity of heroin could be between $2.2m. and $4m. They procured their heroin through Farrello and Gatea, who have been arrested but are yet to be tried. There were three transactions: a sale of one block for $70,000 on 4 September 1998; another sale of one block for $70,000 on 15 September 1998; and a final sale of five blocks for $340,000 on 16 September 1998. Following the final transaction, the police moved in and arrested the appellant and Lopiccolo. The arrests of Farrello and Gatea followed soon after, together with a man named Wilson who had couriered the five blocks sold in the last transaction from Sydney. It is not surprising that, before the court, the appellant accepted the description of a "high-level heroin trafficker to mid-range dealers".

Following the appellant's arrest on 16 September 1998, police executed a search warrant at his residential address at 12 Lily Street, Hamlyn Heights. Those premises were in fact owned by…

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 R v Belbruno

Details

AGLC: R v Belbruno [2000] VSCA 201
Case: [2000] VSCA 201
Decision Date: 19 October 2000

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Belbruno, the defendant was convicted for trafficking in commercial quantities of heroin and cannabis, with sentences of 10 1/2 years and 7 years respectively. The appeal centred on the proportionality of these sentences, particularly the sentence imposed for the cultivation of cannabis. The Full Court of the Federal Court of Australia was tasked with determining whether the sentences were within the appropriate range.

The court had to examine whether the 10 1/2-year sentence for trafficking in heroin was commensurate with the seriousness of the crime, and whether the 7-year sentence for the cultivation of cannabis was excessive. The court noted that the sentence for trafficking in heroin was within the appropriate range, but found the sentence for cultivation to be manifestly excessive. The court also considered the definition of "commercial quantity" in the context of cannabis cultivation, concluding that the original sentence did not adequately reflect the lesser culpability associated with such activity.

The Full Court substituted a sentence of 5 years for the cultivation charge, considering it to be more appropriate. This decision highlighted the need for sentencing courts to carefully consider the nature of each offence when determining sentences, particularly where multiple charges involve different levels of culpability. The court's decision provided clarity on the interpretation of "commercial quantity" in cases of cultivation, guiding future sentencing practices.

Orders