Palmisano v The Queen [2020] VSCA 298

CRIMINAL LAW - Leave to appeal - Sentence - Attempted possession of commercial quantity of border controlled drug - Dealing in proceeds of crime worth $1,000 or more - Possession of controlled drug - Sentence of 18 months' imprisonment on charge of dealing in proceeds of crime - Whether sentence of 18 months manifestly excessive - Co-offender principal player in drug importation operation - Yet, co-offender sentenced to 12 months' imprisonment on more serious charge of dealing in proceeds of crime worth $10,000 or more - Whether sentence of 18 months imposed on applicant offends parity principle - Leave to appeal granted.

1 On 16 September 2019, a day after trial was listed to commence, the applicant, Jacopo Palmisano, pleaded guilty in the County Court at Melbourne to one charge of attempting to import a commercial quantity of a border controlled drug (cocaine), one charge of dealing in proceeds of crime worth $1,000 or more, and one charge of possessing a controlled drug (MDMA, ketamine, and cocaine). Three of the applicant's co-offenders also pleaded guilty on that day.

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

Attempt to possess a commercial quantity of a border controlled drug (cocaine) [ss 11.1(1) and 307.5(1) - Criminal Code (Cth)]

Dealing in proceeds of crime worth $1,000 or more [s 400.7(1) - Criminal Code (Cth)]

Possess a controlled drug (MDMA, ketamine, and cocaine) [s 308.1(1) - Criminal Code (Cth)]

7 years and 3 months' imprisonment with a non-parole period of 5 years

3 A fifth co-offender, Fernando Tovar Carmona, who played the 'pivotal' role at the Melbourne end of the enterprise, had entered a plea of guilty at a far earlier stage than that of the applicant and the other co-offenders.[1] He was sentenced on 26 July 2019 as follows:

Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) - Criminal Code (Cth)]

Importing a commercial quantity of a border controlled drug (cocaine) [s 307.1(1) - Criminal Code (Cth)]

Dealing in proceeds of crime worth $10,000 or more [s 400.6(1) - Criminal Code (Cth)]

18 years' imprisonment with a non-parole period of 14 years

4 By notice dated 22 May 2020, the applicant seeks leave to appeal against his sentence on charge 2 on the following two grounds.

Ground 1: The sentence imposed for Charge 2 violates the parity principle vis-à-vis the co-offender Tovar Carmona.

Ground 2: The sentence imposed for Charge 2 is manifestly excessive.

5 For reasons that follow, I would grant leave to appeal on both grounds.

Circumstances surrounding the commission of the offences

6 The background facts to this offending are set out in my reasons for refusing leave to appeal against the sentence of Tovar Carmona. As I have indicated he was the 'pivotal' and, indeed, principal player in the importations.[2] I need not repeat the full circumstances of the two cocaine importations here. I will briefly outline, however, the charges to which the applicant pleaded guilty:

• charge 1 pertained to the attempted possession of the cocaine contained within the Chilean and Panamanian consignments;
• charge 2 pertained to $6,150 in cash that was located in the applicant's possession when he was arrested; and
• charge 3 pertained to 1.54 grams of MDMA, 1.23 grams of cocaine, and 2.86 grams of ketamine that were located in the applicant's possession when he was arrested.

7 When the judge turned to the applicant's personal circumstances, it was noted that he was the youngest of the five co-offenders, and was aged 23 at the time of the offending. He had come from Italy to Australia on a student visa. He had previously completed a degree in Agribusiness and Agricultural Science in Italy. He had no prior criminal history.

8 As a young child, the applicant suffered from scoliosis, which led him to become obese. Throughout his schooling, he was bullied for that condition by other children.

9 At the age of 14, the applicant began using cannabis. He had hoped that coming to Australia would assist him in stopping that habit. Unfortunately, about six weeks after arriving in this country, he was injured while riding his scooter. He was unable to work for some time, and relapsed into using cannabis. He also began to use cocaine, which increased rapidly. It was within this context that he became 'indebted' to Tovar Carmona.[3]

10 During his time on remand, the applicant found himself in a 'trusted role', where he assisted new prisoners in adapting to life in custody.[4] The judge accepted that he had developed insight and remorse into his offending, and drug addiction. Further, his Honour observed that the applicant had been involved in treatment while on remand, and maintained the support of his family in Italy.

11 The judge then briefly turned to the role the applicant played in the offending. He observed that the motivation for the offending was to extinguish the debt for the drugs previously provided by Tovar Carmona. Further, the judge accepted that the applicant had not been significantly involved in the importation operation. He found that there was no evidence that the applicant had 'any knowledge' as to the amount of cocaine contained within the Panamanian consignment, which he had delivered to the South Melbourne apartment.[5]

12 With regard to the applicant's guilty plea, his Honour considered that it to have been 'early'.[6] It was said that it had utilitarian value, and evidenced remorse and an acceptance of criminality. Further, his Honour found the applicant's prospects for rehabilitation to be 'good'.[7]

13 Like the other co-offenders, the applicant faced the prospect of deportation once his sentence is completed. The judge found that by reason of his isolation from his family, the applicant's time in custody will be more burdensome than would otherwise be the case. Further, his Honour noted that the two year delay between the applicant's arrest and sentence will be taken into account in the same way as his co-offenders.

14 The judge then sentenced the applicant as indicated above.

15 As regards ground 1, the applicant submitted the sentence imposed on him for charge 2 violated the parity principle vis-à-vis the sentence imposed on Tovar Carmona for charge 3. Overall, it was submitted that there was no rational basis for the judge to have sentenced the applicant to a term that was 150 per cent of that which was imposed on Tovar Carmona. That disparity was marked when one considered that the applicant pleaded guilty to an amount that was just over one sixth of that to which Tovar Carmona pleaded guilty.[8] Further, the applicant had been a subordinate of Tovar Carmona, and was able to call in aid similar mitigating factors to that of his co-offender.

16 With regard to ground 2, the applicant submitted that the sentence imposed on charge 2 was wholly outside the range. That was so given to the circumstances of the offending, and his personal circumstances. It was submitted that the amount of cash seized was 'modest', and there were a number of mitigating factors which weighed in the applicant's favour. These included his early plea, lack of prior convictions, relative youth, and insight into his addiction and offending.

17 In the Director's written response, counsel conceded that the applicant's criminality, in respect of charge 2, could not be viewed as more serious than that of Tovar Carmona. She therefore acknowledged that ground 1, the parity ground, was reasonably arguable. She maintained, however that if leave to appeal were granted in respect of that ground, and the parity point was made good, the Court of Appeal would be likely to dismiss the appeal in any event on the basis that no different and lesser total effective sentence would be warranted. She submitted accordingly that leave to appeal should be refused.

18 In support of that submission, counsel argued that there was nothing in the applicant's personal circumstances that could conceivably justify the imposition of a lesser sentence, or at least one that would not involve 'tinkering'.

19 With regard to ground 2, counsel submitted that it was well open to the judge to impose the 18 month sentence that he did on charge 2. Further, and again, she reiterated that there was no reasonable prospect that a less severe sentence would be imposed.

20 In my opinion (though not without some hesitation), I would grant leave to appeal on both grounds 1 and 2. A sentence of 18 months' imprisonment, for an offender with no prior convictions, on a charge that carries a maximum of only 5 years' imprisonment, might ordinarily be viewed as stern, particularly when the amount in question is not all that great. The difference between the applicant's possession of just over $6,000 in cash, and Tovar Carmona's possession of $30,000 in cash, is substantial. Even making allowance for the fact that, by reason of totality, the judge moderated the sentence imposed on Tovar Carmona, it is arguable, in my view, that the applicant was treated unduly harshly in respect of this particular charge.

21 I cannot say with sufficient confidence what the Court of Appeal might do in respect of s 280(1) of the Criminal Procedure Act 2009. The applicant should be given the opportunity to present his case for a reduction in the sentence on charge 2.

22 Accordingly, leave to appeal is granted on both proposed grounds.

[1] See generally, DPP v Carmona [2019] VCC 1148, [4], [20], and [35].

[2] See Carmona v The Queen [2020] VSCA 295, [6]-[18].

[3] DPP v Munoz [2020] VCC 50, [97].

[8] It will be recalled that the applicant was sentenced to a term of 18 months' imprisonment (with commencement orders resulting in effective cumulation of 6 months on the base sentence) on charge 2. As indicated, that charge pertained to $6,150 in cash that was in the applicant's possession. Tovar Carmona was sentenced to a term of 12 months' imprisonment (with commencement orders resulting in effective cumulation of 6 months on the base sentence) on charge 3. That charge pertained to $30,000 cash that was in his possession.