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Barbaro v The Queen

Barbaro v The Queen

Case [2021] VSCA 277 7 October 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0167

PASQUALE BARBARO	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 September 2021
DATE OF JUDGMENT:	7 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 277
JUDGMENT APPEALED FROM:	[2020] VCC 1176 (Judge McInerney)

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CRIMINAL LAW – Appeal pursuant to leave – Sentence – Appellant pleaded guilty to trafficking in a commercial quantity of a drug of dependence (MDMA), trafficking in a drug of dependence (cannabis), trafficking in a drug of dependence (methylamphetamine), possessing a registered general category handgun without a licence, and related summary charges – Total effective sentence 7 years and 10 months’ imprisonment with non-parole period of 5 years – Error by judge as to applicability of provisions of Sentencing Act 1991 – Error by judge as to size of commercial quantity of Cannabis L – Whether errors materially affected exercise of sentencing discretion – Whether judge erred in not taking into account appellant’s dysfunctional upbringing and limited intellect as relevant mitigating circumstances – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 5 years’ imprisonment non-parole period of 2 years and 9 months – Bugmy v The Queen (2013) 249 CLR 571, Director of Public Prosecutions v Drake [2019] VSCA 293 applied – Sentencing Act 1991 ss 5(2H), 5(2HC).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Sarah Tricarico Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA:

The appellant pleaded guilty, in the County Court of Victoria, to one charge of trafficking in a drug of dependence in a commercial quantity (MDMA), one charge of trafficking in a drug of dependence (cannabis), a second charge of trafficking in a drug of dependence (methylamphetamine) and one charge of possessing a registered general category handgun without a licence. He also pleaded guilty to related summary charges of possess an unregistered Category A longarm, being an unlicensed person store ammunition in an insecure manner, and possession of property reasonably suspected of being the proceeds of crime.

After a plea made on his behalf, the appellant was sentenced to a total effective sentence of 7 years and 10 months’ imprisonment, with a non-parole period of 5 years. That sentence was constituted as follows:

Charges

Offence

Maximum

Sentence

Cumulation

1

Trafficking in a drug of dependence (commercial quantity) — MDMA[1]

25 years’ imprisonment

7 years’ imprisonment

Base

2

Trafficking in a drug of dependence — Cannabis L[2]

15 years’ imprisonment

2 years’ imprisonment

6 months

3

Trafficking in a drug of dependence — Methylamphetamine

15 years’ imprisonment

19 months’ imprisonment

3 months

4

Possessing a registered general category handgun without a licence[3]

4 years’ imprisonment

1 year imprisonment

1 month

Summary Charge 4

Non-prohibited person possess a Category A Longarm without a licence[4]

2 years’ imprisonment

2 months’ imprisonment

Nil

Summary Charge 5

Unlicensed person store ammunition in an insecure manner[5]

40…

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 Queen

Details

AGLC: Barbaro v The Queen [2021] VSCA 277
Case: [2021] VSCA 277
Decision Date: 7 October 2021

CaseChat Overview and Summary

The appellant, Barbaro, appealed against his sentence to the Court of Appeal of Victoria. He had pleaded guilty to multiple drug trafficking charges, possession of a firearm without a licence, and related summary offences. The trial judge sentenced the appellant to a total effective term of 7 years and 10 months’ imprisonment, with a non-parole period of 5 years. Barbaro argued that the trial judge erred in applying the provisions of the Sentencing Act 1991, miscalculated the commercial quantity of cannabis, failed to consider mitigating factors such as his upbringing and intellect, and that the sentence was manifestly excessive.

The court considered whether the errors made by the trial judge in sentencing materially affected the exercise of discretion and whether the sentence was manifestly excessive. The court examined the sentencing principles and the relevant statutory provisions. The court noted that the trial judge had not taken into account the appellant's dysfunctional upbringing and limited intellect as mitigating factors, which are relevant under section 5(2H) of the Sentencing Act 1991. The court also found that the trial judge had erred in applying the provisions of the Sentencing Act 1991. Additionally, the court found that the calculation of the commercial quantity of cannabis was incorrect, which affected the overall sentence.

In light of the errors, the Court of Appeal allowed the appeal and resentenced the appellant. The court considered the principles in Bugmy v The Queen and Director of Public Prosecutions v Drake, and determined that the appropriate sentence should be 5 years’ imprisonment, with a non-parole period of 2 years and 9 months. The court found that the original sentence was manifestly excessive given the mitigating factors and the errors in the trial judge’s calculations. The appeal was therefore allowed, and the sentence was reduced accordingly.

Orders