Salazar v The Queen - [2021] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0036

FEDERICO ECHEVERRI SALAZAR	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2021
DATE OF JUDGMENT:	12 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 125
JUDGMENT APPEALED FROM:	[2020] VCC 50 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Parity – Attempting to possess a commercial quantity of a border controlled drug – Sentenced to 7 years’ imprisonment – Co-offender sentenced to 5 years’ imprisonment – Whether differential between co-offenders’ sentences reasonably open – Co-offender played substantially identical role – Personal circumstances of co-offenders virtually indistinguishable – Differential not reasonably open – Roe v The Queen [2021] VSCA 54, applied – Appeal allowed – Criminal Code 1995 (Cth) ss 11, 307.5.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Smallwood	JK Legal Barristers & Solicitors
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
McLEISH JA:

On 16 September 2019, the appellant pleaded guilty, before a judge of the County Court, to:

(a) one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine);[1] and

(b) one charge of possessing a marketable quantity of a border controlled drug reasonably suspected of having been unlawfully imported (cocaine).[2]

[1]Criminal Code 1995 (Cth) ss 11.1 and 307.5.

[2]Ibid s 307.9.

The two charges carried maximum penalties of life imprisonment and 25 years’ imprisonment, respectively.

On 3 February 2020, the judge sentenced the appellant to a total effective term of 7 years and 3 months’ imprisonment, with a non-parole period of 5 years and 6 months (representing approximately 76 per cent of the total effective sentence).[3] On the first charge, attempting to possess a commercial quantity of a border controlled drug, the appellant was sentenced to 7 years’ imprisonment.
[3]DPP v Caro Munoz [2020] VCC 50 (‘Sentencing Remarks’).

On the same day, the judge sentenced several of the appellant’s co-offenders, including Jacopo Palmisano (who pleaded guilty at the same time as the appellant). Palmisano was sentenced to a total effective term of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 9 months (representing approximately 68 per cent of the total effective sentence). Relevantly, on the charge of attempting to possess a commercial quantity of a border controlled drug, Palmisano was sentenced to 5 years’ imprisonment.

The appellant now appeals against his sentence. He was given leave to appeal on a single ground: that the judge infringed the parity principle.[4] The parity principle was infringed, it is said, because neither the differential of two years between the appellant’s and Palmisano’s sentences for the common ‘attempting to possess’ charge, nor the differential of one year and nine months between their respective non-parole periods, was reasonably open.
[4]Salazar v The Queen [2020] VSCA 297 (‘Leave Reasons’).

For the reasons that follow, the appeal will be allowed.

Circumstances of offending

The…

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 Salazar v The Queen

Details

AGLC: Salazar v The Queen [2021] VSCA 125
Case: [2021] VSCA 125
Decision Date: 12 May 2021

CaseChat Overview and Summary

In the case of Salazar v The Queen, the appellant was convicted of attempting to possess a commercial quantity of a border controlled drug. The co-offender was sentenced to five years’ imprisonment, while the appellant was sentenced to seven years. The appellant appealed against his sentence on the basis that the difference between the sentences of the co-offender and himself was not reasonably open. The appeal was heard by the Supreme Court of Victoria.

The central issue before the court was whether the disparity in sentencing between the appellant and his co-offender was justified, given their roles in the offence were substantially identical and their personal circumstances were virtually indistinguishable. The court needed to determine if the sentence imposed on the appellant was manifestly excessive or inadequate in comparison to the sentence imposed on the co-offender.

The court considered the principle of parity in sentencing and examined the decision in Roe v The Queen [2021] VSCA 54, which held that where co-offenders play a substantially identical role and have virtually indistinguishable personal circumstances, the difference in their sentences must be reasonably open. The court found that the difference in sentences in this case was not reasonably open, as the roles and circumstances of the appellant and his co-offender were similar. Therefore, the appeal was allowed, and the matter was remitted for re-sentencing.

The court ordered that the appeal be allowed and the sentence be quashed. The matter was to be remitted to the trial judge for re-sentencing, taking into account the principle of parity in sentencing and the decision in Roe v The Queen.

Orders