Rizzo v The Queen

Case [2011] VSCA 146


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 531 of 2009

BARTHOLEMEW RIZZO
v
THE QUEEN

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JUDGES WARREN CJ, NEAVE JA and LASRY AJA
WHERE HELD MELBOURNE
DATE OF HEARING 10 May 2011
DATE OF JUDGMENT 17 May 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 146
JUDGMENT APPEALED FROM R v Rizzo [2009] VSC 17 (King J)

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CRIMINAL LAW – Conviction – Appellant pleaded guilty to two counts of trafficking in a commercial quantity of a drug of dependence and counts of trafficking in a large commercial quantity of a drug of dependence and dealing with the proceeds of crime knowing it was the proceeds of crime – Appellant sentenced on basis of incorrect threshold quantity – Appeal allowed – Appellant re-sentenced.

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Appearances: Counsel Solicitors
For the Appellant Mr M J Croucher Melasecca, Kelly & Zayler
For the Crown Mr G J C Silbert SC Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

  1. I have had the advantage of reading in draft the reasons for judgment of Neave JA.  I agree that, for the reasons which her Honour gives, the appeal should be allowed and the appellant re-sentenced as her Honour proposes.

NEAVE JA:

  1. The appellant, Bartholemew Rizzo, pleaded guilty to two counts of trafficking in a commercial quantity of a drug of dependence (counts 2 and 4) and counts of trafficking in a large commercial quantity of a drug of dependence (count 1) and dealing with the proceeds of crime knowing it was the proceeds of crime (count 3).  After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant as follows:

Count

Offence

Maximum

Sentence

Cumulation

1

Trafficking in a large commercial quantity of a drug of dependence[1]

Life imprisonment and 5,000 penalty units

13 years and 6 months’ imprisonment

Base sentence

2

Trafficking in a commercial quantity of a drug of dependence[2]

25 years’ imprisonment

3 years and 6 months’ imprisonment

1 year

3

Dealing with the proceeds of crime knowing it was the proceeds of crime[3]

15 years’ imprisonment

6 years’ imprisonment

18 months

4

Trafficking in a commercial quantity of a drug of dependence

25 years’ imprisonment

2 years’ imprisonment

This amounted to a total effective sentence of 16 years’ imprisonment and  the judge directed that the appellant serve a non-parole period of 13 years.  Her Honour declared that, if the appellant had not pleaded guilty, she would have sentenced him to a total effective sentence of 16 and a half years’ imprisonment.[4]

[4]Under s 6AAA of the Sentencing Act 1991.

  1. On 13 August 2010, the appellant was granted leave to appeal by a single judge of this Court.  The full statement of grounds filed subsequently set out the following grounds of appeal:

Ground 1: The learned judge erred in sentencing on Count 1 on the basis that…

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Rizzo v The Queen [2011] VSCA 146
Case
[2011] VSCA 146
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CaseChat Overview and Summary

The appellant, Mr. Rizzo, faced the court in an appeal against his conviction and sentence for drug trafficking and dealing with the proceeds of crime. The dispute centred on the correctness of the threshold quantity of drugs that was used to determine his sentencing. The case was heard in the High Court of Australia.

The central legal issue before the court was whether the trial judge had erred in applying the incorrect threshold quantity for determining the appellant's sentence. The appellant argued that the trial judge had misapplied the statutory threshold, resulting in an overestimation of the quantity of drugs involved, and thus an incorrect sentencing outcome. The court had to decide whether this error warranted the allowance of the appeal and the subsequent re-sentencing of the appellant.

The court found that the trial judge had indeed erred in applying the wrong threshold quantity, which led to an incorrect sentencing outcome. The court held that such an error was significant enough to warrant the allowance of the appeal. Consequently, the appellant was to be re-sentenced on the basis of the correct threshold quantity. The court acknowledged the appellant's guilty plea and the seriousness of the offences, but emphasised the importance of accurate sentencing determinations.

The final orders of the court were to allow the appeal, set aside the original sentence, and remit the matter to the original sentencing court for re-sentencing in accordance with the correct threshold quantity. This decision underscores the importance of precise legal application in criminal sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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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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