R v Bellino - [1999] QCA 106

IN THE COURT OF APPEAL [1999] QCA 106
SUPREME COURT OF QUEENSLAND
C.A. No. 416 of 1998
Brisbane
[R v Bellino]
THE QUEEN
v
TONY VINCENT BELLINO

(Applicant) Appellant
Davies JA
Thomas JA
Muir J

Judgment delivered 9 April 1999.
Judgment of the Court.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SENTENCE ON THE TRAFFICKING COUNT SET ASIDE AND REPLACED WITH SENTENCE OF SIX YEARS IMPRISONMENT. CONCURRENT SENTENCE ON THE COUNT OF SUPPLYING HEROIN SET ASIDE AND REPLACED WITH SENTENCE OF TWO YEARS IMPRISONMENT.
CATCHWORDS: CRIMINAL LAW - Drugs - trafficking and supply of Schedule 2 drug over period of two months - appropriate sentence to be imposed - whether eight years imprisonment manifestly excessive - sentence reduced to six years.
R v Morrison (CA No 391 of 1997, 26 June 1998).
R v Chan ex parte Attorney-General (1993) 67 A Crim R
545.
R v Sebez (CA No 100 of 1994, 17 May 1994).
R v Pascoe (CA No 184 of 1997, 22 July 1997).
R v O'Grady (CA No 185 of 1996, 11 July 1996).
R v Le [1996] 2 Qd R 516.
R v Rhodes & Kissling (CA Nos 347, 349 & 386 of 1998, 5
March 1999).
R v Walton (CA No 257 of 1989, 20 November 1989).
R v Vinall (CA No 162 of 1995, Derrington J, 29 May 1995).

Counsel: Mr S Di Carlo for the applicant/appellant.
Mr T Winn for the respondent.
Solicitors: McLaughlin & Associates for the applicant/appellant.
Director or Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 15 March 1999.
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 9 April 1999

The applicant pleaded guilty to trafficking in MDMA (ecstasy) over a period of approximately two months commencing in September 1997. He also pleaded guilty to five counts of supply, four of them being of ecstasy and one of heroin. He was sentenced to eight years imprisonment on the trafficking count and to concurrent terms of two years on the supplies of ecstasy and to three years on the supply of heroin. In addition a pecuniary penalty order of $22,400.00 was made. That sum was the total amount of money which had been paid by the undercover agent to the applicant with respect to all the counts.
Broadly speaking the issue is whether eight years imprisonment was manifestly excessive for the combination of the above offences.
The applicant was 29 years old when the offences were committed. Apart from a drink driving offence committed 12 years previously (when he was 17), which is quite irrelevant in the present context, the applicant has no prior convictions.
The learned sentencing judge described the applicant, on his interpretation of the material presented to him, as "an experienced commercial operator conducting a cold-blooded commercial business to exploit the market for the illegal drug in which you trafficked". His Honour went on to observe that "it was a cold-blooded, commercial enterprise which, during the relatively short period in which you were…

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 Bellino

Details

AGLC: R v Bellino [1999] QCA 106
Case: [1999] QCA 106
Decision Date: 9/04/1999

CaseChat Overview and Summary

The appeal by Tony Vincent Bellino against his sentence was heard in the Supreme Court of Queensland. Bellino had pleaded guilty to trafficking in MDMA (ecstasy) over a two-month period and to multiple counts of supplying ecstasy and heroin. He was sentenced to eight years imprisonment on the trafficking count and concurrent terms for the supply counts, along with a pecuniary penalty order. The key issue before the Court was whether the eight-year imprisonment term was manifestly excessive.

The Court considered the nature and extent of Bellino's involvement in drug trafficking and his previous criminal history, which was limited to a single minor offence when he was a teenager. The sentencing judge characterized Bellino as a "cold-blooded commercial operator" exploiting the illegal drug market, though the Court found that Bellino's role was more peripheral than portrayed. The evidence suggested that while Bellino was willing to supply drugs, he did not have extensive control over the supply chain and often exaggerated his capabilities to the undercover officers.

The Court compared Bellino's case with other relevant decisions, particularly R v Chan, where a similar sentence was deemed appropriate for more extensive drug trafficking activities. The Court found that Bellino's sentence, when adjusted for the mitigating factor of his early guilty plea, was disproportionate compared to other cases. Consequently, the Court concluded that a sentence of six years imprisonment for the trafficking count and two years for the heroin supply count was more appropriate.

The Court allowed the appeal, set aside the original sentence, and imposed a new sentence of six years for the trafficking count and two years for the heroin supply count. The pecuniary penalty order was maintained.

Orders