Barbaro v The King - [2024] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0182

MICHAEL BARBARO	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 54
JUDGMENT APPEALED FROM:	[2023] VCC 1546 (Judge O’Connell)

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CRIMINAL LAW – Appeal – Sentence – One charge of trafficking drug of dependence in commercial quantity – Base sentence 7 years and 6 months – Other drug and firearm offences – Total effective sentence 8 years and 1 month – Non-parole period 5 years – Whether sentencing judge erred in approach to delay – Over five years between charge and sentencing – Sentencing judge did not refer in terms to two limbs of delay – Sentencing judge considered both punitive effect of delay and applicant’s rehabilitative efforts – Leave to appeal refused.

R v Merrett (2007) 14 VR 392; R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239; Rodriguez v Director of Public Prosecutions (Cth) (2013) 40 VR 436, referred to.

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Counsel
Applicant:		Ms C Boston SC with Mr D Zajd
Respondents:		Mr R Gibson KC
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA:

The applicant seeks leave to appeal against a sentence of 8 years and 1 month’s imprisonment imposed upon him in the County Court for drug and firearm offences. The base sentence of 7 years and 6 months’ imprisonment was imposed for trafficking in a commercial quantity of a drug of dependence contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981. Six months’ cumulation was ordered on a charge of being a prohibited person in possession of a firearm, contrary to s 5(1) of the Firearms Act 1996.[1] A non-parole period of 5 years was fixed.
[1]The remaining month of the total effective sentence was attributable to two drug possession charges (methylamphetamine and cannabis) and two offences against the Bail Act 1977.
The applicant pleaded guilty to the charges. The judge indicated under s 6AAA of the Sentencing Act 1991 that, had it not been for the plea of guilty, he would have sentenced the applicant to a total effective sentence of 11 years and 6 months’ imprisonment, with a non-parole period of 8 years.
The trafficking took place in the nine months between 15 September 2017 and 13 June 2018, involving up to 1 kilogram of a mixed substance containing methylamphetamine. The applicant supplied 476 grams of the substance to covert operatives in eight sales that took place between 15 September 2017 and 27 December 2017. In addition, he sold a further 371 grams to persons who attended his home at various times in the day and night for that purpose.
On 13 June 2018, search warrants were executed at the applicant’s property. A total of 152 grams of the mixed substance containing methylamphetamine was found either in his bedroom or…

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 The King

Details

AGLC: Barbaro v The King [2024] VSCA 54
Case: [2024] VSCA 54
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the matter of Barbaro v The King, the appellant Barbaro sought to appeal his sentence on the basis that the sentencing judge had erred in their consideration of the delay between the commission of the offence and sentencing. The appellant was convicted of trafficking a drug of dependence in commercial quantities, along with other related drug and firearm offences. The trial judge imposed a total effective sentence of eight years and one month, with a non-parole period of five years. The appellant contended that the sentencing judge did not appropriately account for the delay in sentencing, which exceeded five years. The appellant argued that the judge did not explicitly address the two limbs of delay – the punitive effect of delay and the appellant's rehabilitative efforts. The Court of Appeal examined the sentencing judge's remarks to determine if there was an error in the approach to delay.

The central issue before the Court of Appeal was whether the sentencing judge had erred in their consideration of the delay between the offence and sentencing. The Court of Appeal noted that the sentencing judge did consider both the punitive effect of the delay and the appellant's rehabilitative efforts. Although the judge did not explicitly refer to the two limbs of delay, the Court found that the sentencing remarks demonstrated an understanding of both aspects. The Court further held that the sentencing judge had appropriately exercised their discretion in determining the sentence, taking into account all relevant factors, including the delay. Consequently, the Court of Appeal found no error in the sentencing judge's approach to delay and dismissed the appeal.

The Court of Appeal concluded that the sentencing judge had appropriately exercised their discretion in determining the sentence, taking into account all relevant factors, including the delay. The Court found that the sentencing judge had considered both the punitive effect of delay and the appellant's rehabilitative efforts, even if not explicitly stated in terms of the two limbs. As such, there was no error in the sentencing judge's approach to delay, and the appeal was dismissed. No further orders were made by the Court of Appeal.

Orders