R v Carbone

Case [2012] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CARBONE & ORS

[2012] SASCFC 34

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Kourakis and The Honourable Justice Stanley)

13 April 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - GENERALLY

Appeal against sentence by three co-accused – co-accused sentenced in the District Court in relation to drug trafficking charges and related offences.

Anna Carbone: pleaded guilty to two counts of trafficking in methylamphetamine or amphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA) ("the Act") - the two counts were representative counts - appellant previously charged with four additional counts which were withdrawn - appellant admitted the offending in respect of two of the withdrawn counts - whether the Judge erred by taking into consideration all six counts when sentencing the appellant.

Rocco Carbone: pleaded guilty to 14 counts of trafficking in methylamphetamine or amphetamine - the sentencing Judge erroneously referred to one of the counts to which the appellant pleaded guilty as a count of trafficking in a commercial quantity of methylamphetamine - whether this error caused the sentencing discretion to miscarry - whether the sentencing Judge had regard to offences which the appellant did not admit.

Kirk: pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine - the Judge sentenced Kirk on the basis that he pleaded guilty, among other counts, to two counts of trafficking in a commercial rather than a basic quantity of methylamphetamine - whether the Judge started with the wrong maximum penalty for the two offences  - whether the head sentence imposed is manifestly excessive. 

Held: 

Anna Carbone: Appeal allowed - the Judge was in error in regarding six occasions as relevant to the sentence imposed as two of the occasions were not admitted by the appellant - the head sentence and non-parole period imposed by the Judge were appropriate - there was good reason to suspend the appellant's sentence.

Rocco Carbone: Appeal dismissed – while the Judge erred in his description of one of the charges to which the appellant pleaded guilty, the sentence ultimately imposed was within an appropriate range of sentences given the level of offending.

Kirk: Appeal dismissed – while the Judge proceeded on the basis that the appellant was liable to the higher maximum penalty in relation to the two wrongly described counts, the sentence and head sentence imposed were appropriate in the circumstances.  

Controlled Substances Act 1984 (SA) s 32(2), s 32(3); Criminal Law Consolidation Act 1935 (SA) s 138, s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(b), s 18A, referred to.
R v Beary (2004) 151 A Crim R 388; Norris v AT (a child) (2003) 138 A Crim R 497, discussed.
Richardson v Police [2009] SASC 297; Field v Police [2009] SASC…

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R v Carbone [2012] SASCFC 34
Case
[2012] SASCFC 34
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CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Sulan, Kourakis, and Stanley JJ, heard appeals against sentences imposed in the District Court on three co-accused: Anna Carbone, Rocco Carbone, and Kirk. The appeals concerned sentences handed down for drug trafficking and related offences. Anna Carbone pleaded guilty to two representative counts of trafficking methylamphetamine or amphetamine, admitting offending in respect of two additional withdrawn counts. Rocco Carbone pleaded guilty to 14 counts of trafficking, but the sentencing judge erroneously referred to one count as involving a commercial quantity. Kirk pleaded guilty to 12 counts of trafficking, and the sentencing judge stated he pleaded guilty to two counts of trafficking a commercial quantity, among others.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in considering all six counts when sentencing Anna Carbone, despite her pleading guilty to only two representative counts and admitting offending in respect of two withdrawn counts. For Rocco Carbone, the court had to determine if the judge's error in describing one count as involving a commercial quantity, and potentially considering offences not admitted by Rocco Carbone, caused the sentencing discretion to miscarry. In Kirk's case, the appeal raised whether the judge commenced sentencing with the wrong maximum penalty for two offences by treating them as commercial quantities, and whether the head sentence imposed was manifestly excessive.

The Court of Appeal found that the sentencing judge erred in Anna Carbone's case by taking into consideration all six counts when she had only pleaded guilty to two representative counts and admitted offending in respect of two further withdrawn counts. The judge should have confined the sentencing to the counts to which she pleaded guilty, or at least made it clear that the additional counts were not being treated as admitted offending. Regarding Rocco Carbone, the court held that the sentencing judge's misstatement about a commercial quantity was an error, but it did not necessarily cause the sentencing discretion to miscarry, as the judge had regard to the overall scale of Rocco Carbone's offending. For Kirk, the court determined that the sentencing judge had indeed started with the wrong maximum penalty for two of the offences, as they were not commercial quantities. This error was significant and required the Court of Appeal to reassess the sentence.

The Court of Appeal allowed Anna Carbone's appeal, quashed the sentence, and remitted the matter for resentencing. Rocco Carbone's appeal was dismissed. Kirk's appeal was allowed, his sentence was quashed, and the matter was remitted for resentencing.

Orders

Orders of the court

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Background

Background to the litigation

The Court now provides its reasons in respect of the three appeals.Background Over many months, the police had been conducting a covert investigation into the conduct of a number of people, including Rocco Carbone who was the central figure in the investigation. Multiple telephone intercepts of conversations between Carbone and a number of other people were recorded. Eventually, 14 people were charged with various offences of trafficking in methylamphetamine or amphetamine. One of the defendants was charged with trafficking in cocaine. The Information charged offences from March 2008 to June 2008. Rocco Carbone, who was charged in every count, was the central organiser of the distribution of the drugs, both to middle-level dealers and to other street dealers. He was also charged with offences of money laundering, which were alleged to be the proceeds of drug-related dealings. In all, Rocco Carbone was charged with 75 counts of trafficking in methylamphetamine or amphetamine, and three counts of money laundering contrary to s 138 of the Criminal Law Consolidation Act 1935 (SA). In each case, Rocco Carbone was jointly charged with one or more defendants, but not all defendants were charged with each count. The matters were all listed before a District Court Judge who was to preside over the trial. Over a period of approximately one year, each defendant entered pleas of guilty to various counts, having agreed with the DPP the factual basis of those pleas of guilty. Throughout the hearings in 2010, the Judge informed the defendants that the amount of reduction in sentence would be graduated according to the stage at which their plea was entered and that the amount of discount for a plea entered a short time before trial would be virtually nil. All 14 defendants were originally charged on an Information dated 2 November 2009, and each pleaded not guilty. On 31 March 2010, their trial was listed to commence on 7 February 2011. In April 2010, two of the defendants were arraigned on a fresh Information and pleaded guilty. On 25 May 2010, another defendant pleaded guilty on a fresh Information and was remanded for sentencing submissions. On 31 May 2010, a further and new Information was filed, which is the Information upon which the three appellants pleaded guilty. In December 2010, the appellant, Anna Maria Carbone, indicated through her counsel that she would eventually be pleading guilty after discussions with the DPP were completed. On 7 February 2011, she pleaded guilty to two counts of trafficking in methylamphetamine or amphetamine in April and June 2008. She also agreed that the two counts were representative of a course of conduct that included two further counts of trafficking in the drug in April 2008. On 20 December 2010, the appellant, Kirk, pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine, contrary to s 32(3) of the Act. In sentencing Kirk, the Judge stated:Kevin Allen Kirk, on 20 December 2010 you pleaded guilty to two counts of trafficking in a commercial quantity of methylamphetamine (counts 1 and 63), and nine counts of trafficking methylamphetamine (counts 7, 12, 19, 25, 29, 34, 42, 43 and 50). It was agreed between you and the DPP that the pleas would be accepted in satisfaction of the information on the basis that they formed part of a course of conduct that included all of the other counts with which you had been charged. Those other charges comprised one count of trafficking in a commercial quantity of methylamphetamine and 37 counts of trafficking in methylamphetamine.I will return to those remarks later in these reasons.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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