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Rizzo v The Queen

Rizzo v The Queen

Case [2011] VSCA 146 17 May 2011

Criminal Liability

Sentencing

Criminal Law

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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:

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:

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

[1]Drugs, Poisons and Controlled Substances Act 1981, s 71.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AA.
[3]Crimes Act 1958, s 194(2).

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.

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…

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 Rizzo v The Queen

Details

AGLC: Rizzo v The Queen [2011] VSCA 146
Case: [2011] VSCA 146
Decision Date: 17 May 2011

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