CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Conspiracy to traffick in commercial quantity of controlled drug – Trafficking in commercial quantity – Attempt to possess commercial quantity – Additional offences taken into account – Sentenced to life imprisonment, non-parole period 30 years – Whether manifestly excessive – Whether crushing because of appellant’s age – Crown submission on sentencing range – Judge declined to entertain submission – Whether breach of natural justice – Application for leave to appeal refused – Crimes Act 1914 (Cth) s 16BA, Criminal Code 1995 (Cth) ss 11.1(1), 11.2(1), 302.2(1), 307.5(1), 307.11(1), 400.3(1), 400.9(1).
CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Conspiracy to traffick in commercial quantity of controlled drug – Trafficking in commercial quantity – Attempt to possess commercial quantity – Sentenced to 26 years’ imprisonment, non-parole period 18 years – Whether manifestly excessive – Whether crushing because of appellant’s age – Crown submission on sentencing range – Judge declined to entertain submission – Whether failure to take into account relevant consideration – Appeal dismissed – Renewed application for leave to appeal refused – Criminal Code 1995 (Cth) ss 11.1(1), 11.2(1), 302.2(1).
CRIMINAL LAW – Sentence – Crown submission on sentencing range – Sentencing judge declined assistance – No risk of appealable error – Whether breach of natural justice – Whether failure to take into account relevant consideration – No obligation to receive Crown submission – No error of law – R v MacNeil-Brown (2008) 20 VR 677 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant (Barbaro)
Mr P G Priest QC with Mr T Kassimatis
Theo Magazis & Associates
For the Appellant (Zirilli)
Mr M Croucher SC with Ms F Todd
Aquaro & Co
For the Crown
Mr B Young
Commonwealth Director of Public Prosecutions
MAXWELL P HARPER JA T FORREST AJA:
Introduction
On 28 June 2007, 4.4 tonnes of tablets containing a drug generally referred to as MDMA,[1] and popularly known as ‘ecstasy’, were imported into Melbourne, concealed in a shipment of tinned tomatoes. The drugs were discovered by Australian Customs when the shipment was selected for x-ray examination.
[1]The full name is methylenedioxymethamphetamine.
Over 15 million tablets were seized by authorities, which contained more than 1.4 tonnes of pure MDMA. The wholesale price of the shipment, based on a sale of each tablet for $7, was estimated to be approximately $122 million. Under Commonwealth legislation, a ‘commercial quantity’ of the drug is 500 grams. The container, accordingly, held approximately 2,900 times the minimum statutory commercial quantity.
Between 13…
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.
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Details
AGLC
Barbaro v The Queen [2012] VSCA 288
Case
[2012] VSCA 288
Decision Date
CaseChat Overview and Summary
The appellant, Barbaro, appealed against his sentence of life imprisonment with a non-parole period of 30 years, imposed by the Supreme Court of Victoria for drug trafficking offences. The court had to decide if the sentence was manifestly excessive and whether the appellant's age should be considered as a mitigating factor. The Crown had provided a submission on the sentencing range, which the judge declined to entertain. The appellant argued this was a breach of natural justice and that the sentence was crushing due to his age.
The court examined whether the sentence was manifestly excessive, considering the severity of the crimes and the appellant's age. The court found that the sentence was not manifestly excessive and that the judge's refusal to entertain the Crown's submission on the sentencing range did not constitute a breach of natural justice. The court held that there was no obligation for the sentencing judge to receive such submissions and no error of law was made. The court applied the decision in R v MacNeil-Brown, confirming that the refusal to consider the Crown's submission did not amount to a failure to take into account a relevant consideration.
The appeal was dismissed, and the appellant's renewed application for leave to appeal was also refused. The Supreme Court upheld the sentence as appropriate given the gravity of the offences and the appellant's age, which did not render the sentence crushing.