Salazar v The Queen - [2020] VSCA 297

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0036

FEDERICO ECHEVERRI SALAZAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 297
JUDGMENT APPEALED FROM:	[2020] VCC 50 (Judge Carmody)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Attempted possession of commercial quantity of border controlled drug – Possession of marketable quantity of border controlled drug – Total effective sentence of 7 years and 3 months’ imprisonment with non-parole period of 5 years and 6 months – Co-offender received total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years and 9 months – Whether unjustifiable disparity in sentence between applicant and co-offender – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA:

On 16 September 2019, a day after his trial was listed to commence, the applicant, Federico Echeverri Salazar, pleaded guilty in the County Court at Melbourne to one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine), and one charge of possessing a marketable quantity of a border controlled drug reasonably suspected of having been unlawfully imported (cocaine). A co-offender, Jacopo Palmisano, also entered a plea of guilty on that day.

A plea hearing was conducted on 21 November 2019. On 3 February 2020, the judge sentenced the applicant as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) — Criminal Code (Cth)] Life 7 years
Base

Commenced 3 February 2020

2 Possess a marketable quantity of a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported [s 307.9(1) — Criminal Code (Cth)] 25 years 9 months
3 months (on charge 1)

To commence 3 August 2026

Total effective sentence: 7 years and 3 months’ imprisonment

Non-parole period: 5 years and 6 months

Pre-sentence detention declared: 697 days

Section 6AAA statement: 9 years’ imprisonment with a non-parole period of 7 years

By notice dated 28 February 2020, the applicant seeks leave to appeal against his sentence on the following ground:

The learned sentencing judge erred in his application of the parity/disparity principle in relation to the sentence and non-parole period imposed for Charge 1:
(a)which was not reasonably open with the sentence imposed on the co- offender Jacopo Palmisano for Charge 1; and

(b) which engendered into the applicant a justifiable sense of grievance.
Particulars
The co-offender, Jacopo Palmisano, was charged with:
(i)Charge 1 — Attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to s 11.1 and s 307.5(1) of the Criminal Code (Cth) (Code);
(ii)Charge 2 — Dealing with the proceeds of crime worth $1,000 or more, contrary to…

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 [2020] VSCA 297
Case: [2020] VSCA 297
Decision Date: 23 November 2020

CaseChat Overview and Summary

The applicant in this case, Salazar, appealed against the sentence imposed by the Supreme Court of Victoria for his involvement in drug trafficking offences. Salazar was convicted of attempting to possess a commercial quantity of a border controlled drug and possessing a marketable quantity of the same drug. The Supreme Court sentenced him to a total effective term of 7 years and 3 months’ imprisonment, with a non-parole period of 5 years and 6 months. The co-offender in the case received a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years and 9 months. Salazar argued that the disparity in sentences between himself and his co-offender was unjustifiable.

The primary legal issue before the court was whether the disparity in sentences between Salazar and his co-offender was unjustifiable. Salazar contended that the disparity in sentences was so significant that it amounted to an error in principle, warranting the grant of leave to appeal. The court had to consider whether the disparity in sentences was unjustifiable, and whether it warranted the grant of leave to appeal. The court was required to balance the circumstances of each offender and the principles of sentencing, including proportionality and deterrence.

The court granted the applicant leave to appeal, finding that the disparity in sentences between Salazar and his co-offender was unjustifiable. The court held that the disparity in sentences was so significant that it amounted to an error in principle, warranting the grant of leave to appeal. The court found that the disparity in sentences was unjustifiable because the co-offender had a lesser role in the offence and had shown remorse, while Salazar had a more significant role and had not shown remorse. The court held that the disparity in sentences was so significant that it warranted the grant of leave to appeal.

The court's decision to grant leave to appeal means that the case will now proceed to the Court of Appeal, where the sentence imposed on Salazar will be reviewed. The Court of Appeal will consider the arguments presented by both parties and determine whether the sentence imposed on Salazar was appropriate in the circumstances. The final orders of the court were to grant the applicant leave to appeal against the sentence imposed by the Supreme Court of Victoria.

Orders