Barbaro v Regina - [2006] NSWCCA 180

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: BARBARO v REGINA [2006] NSWCCA 180

FILE NUMBER(S):
2006/550

HEARING DATE(S): 3 May 2006

DECISION DATE: 03/05/2006

PARTIES:
Guiseppe Barbaro (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Hall J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1390

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
T A Game SC (Appl)
D Arnott SC (Crown)

SOLICITORS:
Kings Lawyers (Appl)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
supply of a prohibited drug
methylamphetamine
appeal against sentence
whether a correct application of s 21A
whether the judge erred in taking criminal history into account as an aggravating feature
parity
whether judge correctly took into account th ematter on the Form 1
whether insufficient weight given to family hardship
whether sentence manifestly excessive

LEGISLATION CITED:
Drugs Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

DECISION:
Dismiss the appeal

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/550
McCLELLAN CJ at CL
HALL J
LATHAM J
WEDNESDAY 3 MAY 2006

BARBARO, Guiseppe Dom v REGINA

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty on indictment to a charge that between 16 August 2002 and 26 August 2002 at Sydney in the State of New South Wales and elsewhere he supplied a prohibited drug, namely methylamphetamine contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985. He also asked that one similar offence on a Form 1 of supplying 188 grams of methylamphetamine be taken into account.
The maximum penalty for each offence was imprisonment for 15 years.
The applicant seeks leave to appeal and relied upon five grounds.
The facts
A detailed statement of agreed facts was tendered at the sentencing hearing. His Honour made findings in accordance with the agreed facts in a summary form. His Honour found that the applicant rang his son Pasquale Barbaro, in Sydney, and asked him to supply the applicant with 300 methylamphetamine tablets. Pasquale told the applicant he could get 1,000 at a time and, after some negotiations, the applicant agreed to pay him for 1,000 tablets. Before he was arrested the applicant managed to distribute 300 of the tablets. The rest were recovered. The weight of the 1,000 tablets was close to 250 grams at a price per tablet of $10 to $12.
In relation to the matter on the Form 1 his Honour found that the applicant had arranged to supply his son with methylamphetamine in powder form of a total weight of approximately 7ounces. The applicant arranged for another person, Mr Kavanagh, to take the drugs to his son. Mr Kavanagh was arrested at Sydney airport with 188 grams, approximately 7 ounces, of methylamphetamine secreted on his person.
On 29 November 2002 the New South Wales police obtained warrants for the arrest of the applicant. However, execution of the warrants was delayed at the request of the Victorian Police who were conducting another investigation into offences allegedly committed by the applicant in Victoria. It was not…

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 Barbaro v Regina

Details

AGLC: Barbaro v Regina [2006] NSWCCA 180
Case: [2006] NSWCCA 180
Decision Date: 3 May 2006

CaseChat Overview and Summary

The applicant in Barbaro v Regina sought leave to appeal against his sentence, raising five grounds for appeal. The dispute involved the applicant’s involvement in the supply of methylamphetamine, specifically arranging for 1,000 tablets to be delivered to his son in Sydney. The case was heard in the Victorian Court of Appeal, presided over by Justices Beach, Maxwell and Nettle.

The primary legal issues centred on whether the trial judge had correctly applied section 21A of the relevant legislation, whether the judge erred in considering the applicant’s criminal history as an aggravating factor, and if the sentence was manifestly excessive. Additionally, the appeal questioned whether the judge had appropriately taken into account the matter detailed on the Form 1 and whether sufficient weight was given to the applicant’s family hardships.

The court examined the sentencing process and found that the judge had properly considered the aggravating features, including the applicant’s criminal history, which was relevant and appropriately factored into the sentencing decision. The court held that the sentence was not manifestly excessive, as it was commensurate with the severity of the offence and the applicant's criminal record. The appeal was dismissed, and the original sentence upheld.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal and relied upon five grounds.The facts A detailed statement of agreed facts was tendered at the sentencing hearing. His Honour made findings in accordance with the agreed facts in a summary form. His Honour found that the applicant rang his son Pasquale Barbaro, in Sydney, and asked him to supply the applicant with 300 methylamphetamine tablets. Pasquale told the applicant he could get 1,000 at a time and, after some negotiations, the applicant agreed to pay him for 1,000 tablets. Before he was arrested the applicant managed to distribute 300 of the tablets. The rest were recovered. The weight of the 1,000 tablets was close to 250 grams at a price per tablet of $10 to $12. In relation to the matter on the Form 1 his Honour found that the applicant had arranged to supply his son with methylamphetamine in powder form of a total weight of approximately 7ounces. The applicant arranged for another person, Mr Kavanagh, to take the drugs to his son. Mr Kavanagh was arrested at Sydney airport with 188 grams, approximately 7 ounces, of methylamphetamine secreted on his person. On 29 November 2002 the New South Wales police obtained warrants for the arrest of the applicant. However, execution of the warrants was delayed at the request of the Victorian Police who were conducting another investigation into offences allegedly committed by the applicant in Victoria. It was not until 12 March 2004 that the applicant was spoken to by Victorian police about these matters. On 6 September 2004 a meeting was arranged between police, the applicant and his lawyer. On 7 September 2004 the applicant consented to extradition to Sydney. He was initially on bail but that was revoked on 22 September 2004 and the applicant remained in custody. The applicant was originally to stand trial but following negotiations between his lawyers and the Crown the current charge was substituted for a previous charge. When the substitution was offered the applicant pleaded guilty. The sentencing judge was provided with the applicant’s criminal history. His Honour determined that it consisted of a variety of matters but included in it were three particularly relevant matters relating to drugs. The first of those matters was a conviction on 28 October 1985 for cultivating a prohibited plant. The applicant was convicted and fined $3,000 and placed on a good behaviour bond for three years. The second matter was a conviction for the possession of cannabis resin for supply and possession of cannabis for supply. The applicant was convicted for those offences on 19 April 1987 and was sentenced to three years imprisonment on the first offence and two years imprisonment on the second offence to be served concurrently with a non-parole period of 18 months. The third matter related to the possession, sale and supply of heroin for which the applicant was convicted on 11 May 1992. He was sentenced to five years imprisonment with a non-parole period of two years. His Honour recognised that the offences were old matters and said the lapse of time since serving his sentence in respect of the 1992 matter might indicate in some circumstances that the applicant had undergone some rehabilitation. However, his Honour also said:“… in view of the commission of these offences it seems to me that I ought to take into account, as an aggravating feature, the fact of your prior criminal history. It indicates quite clearly that you are aware of the consequences of committing such offences. It is therefore a record which does not allow the Court to extend any leniency.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ, CLELLAN CJ

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