Director of Public Prosecutions v Barbaro

[2020] VCC 1176

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02046

DIRECTOR OF PUBLIC PROSECUTIONS

v

PASQUALE BARBARO

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2020
DATE OF SENTENCE:	3 August 2020
CASE MAY BE CITED AS:	DPP v BARBARO
MEDIUM NEUTRAL CITATION:	[2020] VCC 1176

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords: Sentence – Plea of guilty – Trafficking in a drug of dependence – Commercial quantity – Possessing a registered general category handgun without a licence – Three summary charges – s. 5(2H) argument - Excellent steps taken to rehabilitate – Imprisonment

Legislation Cited: s.71AC(1) Drugs, Poisons and Controlled Substances Act 1981 – s.12A, s6(1), s.7(1) Firearms Act 1996 – S5(2H) Sentencing Act 1991 -

Cases Cited:R vPidoto & O’Dea [2006] 14 VR 269 - DPP v Fatho & Ors [2019] VSCA 311 – The Queen vFalzon [2018] HCA 29 - Akoka v The Queen [2017] VSCA 214 – Markovic v The Queen [2010] VSCA 105 - Nguyen v R [2017] VSCA 198 – DPP v Condo [2019] VSCA 181 – Farmer v The Queen [2020] VSCA 140 - Huynh [2019] VSCA 311 – Azzopardi v The Queen [2011] VSCA 372 – The Queen vMerrett [2007] 14 VR 392

Sentence:Total effective sentence of 7 years and 10 months imprisonment with a non-parole period of 5 years imprisonment. Convicted and ordered to pay a fine in the sum of $1,652.20.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	Office of Public Prosecutions
For the Accused	Mr J. Dickinson QC	Melasecca Kelly & Zayler (Plea) Sarah Tricarico Lawyers (Sentence)

HIS HONOUR:

1Mr Pasquale Barbaro comes before the Court, he is now 30, he was 28 at the time of these offences.  He was born on 29 October 1999 and is a carer by occupation and in fact, at the time of this offending, was apparently the carer of his father. 

2Mr Dickinson of her Majesty’s Counsel appeared on the plea, as he does today, Mr Hardjadibrata appeared for the Director.  The plea was made on 20 July of this year to Indictment number J11562238, which involves four charges.  The first of those is trafficking in a commercial quantity of MDMA, or ice.  In this case, the trafficking is by having the drug in possession for sale.  The actual date in regard to that possession was 13 June 2018, which was the day when the warrant was executed upon the Mr Barbaro’s premises at 15 Nepean Highway, Taylors Hill.  Insofar as this being a weight based scheme, see in particular the principles set out in Pidoto [2006] 14 VR 269, [5] and indeed, in the case that I have discussed with Mr Dickinson, DPP v Fatho & Ors [2019] VSCA 311, [70].

3The possession involved, 212.82 grams of a pure quantity and/or 925 grams of mixed quantity.  It is to be noted that the level for commercial quantity, as set out under the Act, has a starting figure at 100 grams for pure and 500 grams for mixed. Hence, both values are almost double. It is also appropriate to make the point that the next level up, that is a large commercial quantity is 750 grams for pure and 1 kilogram for mixed, hence approximately insofar as mixed, about halfway of the large commercial quantity and in regard to the pure, about a quarter. All this is set out in Schedule 11, Part 3. Of course the seriousness of this offence is defined by the Act itself, which provides for a maximum penalty of 25 years imprisonment for such offence. 

4The second charge was of trafficking in a drug of dependence, Cannabis L. Again, the circumstances of such trafficking is by being in possession for sale. The amount was 186.6 grams. It is to be pointed out that the next level for commercial quantity begins at 1 kilogram. Again, the seriousness of this offence is demonstrated by the fact that pursuant to s.71AC(1), the maximum sentence is 15 years.

5Charge 3 was also a trafficking simpliciter charge.  This involved methamphetamine, again the trafficking was by being in possession for sale.  The pure quantity was 841.48 grams, the amount that qualifies for commercial quantity is 50 grams.  The mixed quantity of methamphetamine was 1.002 kilograms, the amount that qualifies for a mixed quantity is 250 grams.

6It is important to note therefore that despite those quantities, which would otherwise qualify as being commercial quantity, the plea to Charge 3, was made on the basis, I would think generously, that such drug was Mr Barbaro’s father's drug and that it would not be possible to prove that he was fully aware of the amounts involved.  Hence the deal was done between the prosecution and the defence, despite the amounts of which he was found in possession, otherwise qualifying as a commercial quantity. I make it very clear that I am only sentencing Mr Barbaro for an offence simpliciter.

7The fourth charge is possession of a pistol without a licence, a breach of s.7(1) of the Firearms Act 1996. The maximum penalty is four years imprisonment and/or 240 penalty units. It is important to make the point, as was accepted by the prosecutor, that such gun was not loaded, although as the prosecutor remarked, compatible ammunition was located nearby, and makes up Summary Charge 5.

8In addition to the indictable four charges, Mr Dickinson on behalf of his client entered a plea of guilty to three summary matters. The first is Charge 4, possession of a longarm, an air rifle in this instance, an offence against s.6(1) of the Firearms Act, for which the maximum penalty is prescribed of two years imprisonment and/or 120 penalty units. Charge 5, possession of ammunition without a licence, breach of s.129A of the Firearms Act for which the maximum penalty is 40 penalty units. Charge 6, deal in proceeds of crime, this related to watches and jewellery.  The maximum penalty that can be imposed in regard to such matter is a maximum of two years imprisonment.

Circumstances of the Offending

9Exhibit A was tendered. the prosecutor's summary as to the circumstances of this matter, Mr Dickinson accepted the facts set out.  I will come back to this acceptance because it is important to talk about certain matters raised by
Mr Dickinson, but as to the facts in the prosecutor's summary, Mr Dickinson accepted those facts as the matters upon which I am to sentence Mr Barbaro.

10The prosecution sought disposal and forfeiture orders which I have signed, and were unopposed, as has been confirmed today.  The pre-sentence detention prior to this plea was three days. In addition the period
Mr Barbaro's been on remand, it has been accepted that the period now by way of pre-sentence detention is 16 days. 

11As to the initial three days, it is somewhat surprising to the Court, given these offences, that Mr Barbaro only served a pre-plea detention of three days. He was apparently bailed, despite Charge 1 being a Schedule 1 offence under the Bail Act and the combination of charges two and three, Schedule 2 offences. The circumstances of him originally getting bail may well relate to the fact that the amendments to the Bail Act did not apply till 21 May 2018.  But of course, that has had a beneficial effect insofar as the steps he has taken as to his rehabilitation.  Coming then to Mr Barbaro's priors, they are of essentially of no relevance.  They relate to driving matters only.  Mr Barbaro has served no gaol before, and has no criminal convictions either before or since. 

12The prosecution filed its submission as to sentencing, Exhibit B, dated 19 July 2020, and submitted that the only sentence applicable, given the seriousness of these charges, in particular, Charge 1, was a sentence involving immediate imprisonment with parole.  Specifically, insofar as the prosecution was aware of the submission Mr Dickinson was to make, the prosecution submitted that a sentence involving a community corrections order was outside the range applicable. 

Plea of Mr Pasquale Barbaro

13Coming then to Mr Dickinson's plea, he raised some preliminary issues.  The first was that albeit he accepted the facts in the opening, he submitted that all of the facts, outside the actual results of the warrant on
13 June 2018, were not relevant under s.55 of the Evidence Act.  In particular, he detailed [4], [7], [12], [13], [14] and [15], and referred to Falzon [2018] HCA 29, [42].

14The prosecution submitted that the additional facts detailed were put in the opening for the purpose of background and context.  As I said, when talking about this matter, it may well be that they may qualify as original transactional evidence and further may be relevant on the basis of being necessary to understand appropriate submissions by either the prosecution, or the defence.  However, standing back and looking at how the plea has proceeded, there does not seem to be any relevance of such evidence insofar as the prosecution has presented the case, save as a matter of background.  I accept the submission of Mr Dickinson, that it is necessary to sentence Mr Barbaro for his admitted criminality.  I do not intend to take into account other matters, which I made clear during the plea, and confirm.

15Clearly, Mr Barbaro has enough issues by way of the charges before the Court, without me worrying about other matters.  I did discuss during the hearing, that I would be interested in the transcript of the conversation of 23 May 2018, referred to at [14](d) of the opening.  However, as I also said during the plea, having read such during the lunchtime of the plea, there was no relevance whatsoever in such remarks.

16In the plea, Mr Dickinson tendered as Exhibit 1, his written submission dated 16 July 2020. Exhibit 2, the report of the psychologist Mr Armstrong of
14 July 2020.  Exhibit 3, the medical summary of Mr Barbaro's GP.  Exhibit 4, character references.  Exhibit 5, urine analysis screens of Mr Barbaro, taken over almost one year, being from 22 June 2019 to 21 May 2020.  Exhibit 6, a letter from Mr Jackson Oppy, general manager of the Raymond Hader Clinic, and Exhibit 7, medical information as to Mr Barbaro's partner, as to her current position as to pregnancy and the arrangements made for her to give birth, by induction on 31 August 2020.

17Albeit perhaps not clear from Exhibit 1, that is Mr Dickinson's submissions,
Mr Dickinson submitted that in all the circumstances, especially the steps taken in regard to rehabilitation by his client, the Court could order a community corrections order as part of any sentence. The first issue of course with such, apart from the opposition by the prosecution, is the provision of s.5(2H) of the Sentencing Act. Charge 1 is a Category 2 offence and as such, s.5(2H) mandates immediate gaol unless one of the exceptions therein is met. Mr Dickinson indicated in oral submissions he sought to establish the exception in s.5(2H)(e). In such regard, he relied upon the totality of the following facts:

a.The excellent steps taken by Mr Barbaro as to laying down the bases of rehabilitation being:

(i)     The fact that he was bailed to the Raymond Hader Clinic.  Exhibit 6 details that such was from 16 June 2018 to 17 September 2018.  In support of the comments in such letter, Mr Oppy gave evidence that in that time, he was a three months inhouse residential resident who received the treatment provided by that clinic during that time.  That Mr Barbaro engaged well, that while in that clinic he was drug free, having been tested twice a week.  That insofar as the enquiries he made of all relevant clinicians, Mr Barbaro had satisfied the requirements of the clinic, which Mr Oppy as to rigour, described as 'worse than prison'.

(ii)  the psychological evidence of Mr Armstrong.  Mr Armstrong not only in his report, but by way of oral evidence to the Court, said Mr Barbaro had borderline cognition ability, and had developed longstanding, personal and development issues, owing to the parental dysfunction in his home.  That longstanding issue had led to circumstances where he developed anxiety and depression, both of which had been untreated.  It was the opinion of Mr Armstrong that as a result of, to use his term, parentification, that had led to psychological damage, leading to psychological dependence on drugs for Mr Barbaro and that indeed, such dependence became biological by the time he was 17.  That for a period of 10 years before this criminality, he had been addicted to ice. This had occurred despite the more recent strong support of his partner in this regard. 

Mr Armstrong said that in his discussions with Mr Barbaro he had seen the arrest ‘as a blessing’.  Since the Raymond Hader Clinic, he had participated in counselling with Ms Brown of Lamberti & Associates, on a weekly basis since 16 September 2018. In particular, I take note of both Exhibit 4(a) and 4(b) which are the two reports. It is noted that unfortunately she is not, because of her medical condition, capable of talking to those reports, however, as I have said to Mr Dickinson today, I accept those reports fully.

Since 19 September 2018, Ms Brown states that Ms Barbaro has been drug free, he has made quite remarkable changes to his life and in particular, he now is working as a concreter and renderer.  To use her words, in Exhibit 4(a) at p.2 he is 'beginning the process of rehabilitation and the process of reclaiming his life, both from his untreated conditions, but most importantly, from the drug addiction that he has had’.  In regard to all of those circumstances, supported by Ms Brown, Mr Armstrong concluded that insofar as Mr Barbaro was concerned, he was firstly a good candidate for recovery from addiction, and secondly, that he will continue to need assistance with treatment for depression and anxiety and thirdly of course, to effect recovery and for such treatment to be successful, he must remain off drugs, albeit that he certainly has set up a very good basis for those circumstances.

Mr Armstrong said to the Court that Mr Barbaro presented a good prospect for recovery, consistent with the views expressed by
Ms Brown in the Lamberti & Associates report.  Mr Armstrong did not question Ms Brown's opinion that relevant treatment for his anxiety and depression could be given in gaol, although his view was that the progress would be, to use his words, 'stunted'.  However, recovery could continue.  See in particular the views in this regard by Ms Brown, Exhibit 4B, p.3.

b.The second matter relied upon was the asthmatic condition of Mr Barbaro.  Exhibit 3, was the letter from the general practitioner of 9 September 2019, demonstrating that Barbaro suffers from severe asthma. It was the general practitioner's opinion that Mr Barbaro would therefore suffer, if COVID-19 ever gets into the gaol, an increased risk of transmission of such and I would understand an increased risk of greater consequences.  Again, I note that the Court has been advised by Mr Dickinson that from the time of the last hearing of this plea, steps have been taken to obtain expert opinion in this regard, however, because of the crisis, it has not been possible.

c.Thirdly, Mr Dickinson relied upon the excellent compliance to the original bail conditions by his client, in particular, the three months residential rehabilitation at Raymond Hader Clinic and the principles set out in Akoka v The Queen [2017] VSCA 214, especially when such is a clinic of this type and has the restrictions detailed.

d.The next factor relied upon was that his client has no relevant priors. 

e.The next factor was what Mr Dickinson described as the exceptional family circumstances.  As I have already said, his partner is to give birth to a child at the end of this month.  There are already four children in the home, three of which, as I understand Mr Barbaro is the father.  This Court had no evidence in regard to those circumstances, of any inability of the mother to cater for the family, nor any suggestion that she could not get assistance in that regard.  Clearly the Court understands for the immediate period of the giving of birth, assistance would be necessary.

Having considered the requirements of Markovic [2010] VSCA 105, [12] and [16]. I do not consider exceptional circumstances, are established requiring the exercise of mercy as detailed in Markovic.  However, as a matter of humanity, I obviously take into account the impact in gaol upon,
Mr Barbaro, and his family during the time that a new child is to be born. 

f.The final factor relied upon was the issue of COVID-19, the fact that to this stage, in the last fourteen days, his client has been subject to restrictions and limitations within the gaol environment

18As to the aspect of rehabilitation, and the steps taken to date, upon consideration of Mr Dickinson's submission, I do accept that such can be taken into account in his application, despite s.5(2HC)(c)(iii), albeit that the prospects of rehabilitation cannot be considered by this Court. 

19As I discussed with Mr Dickinson, I must also consider s.5(2HC)(a) and (b). In this instance, of course, the nature and gravity of the Charge 1 is serious by any assessment.

20Here as to a sentence for such charges, that is charges with a 25 year maximum, albeit that the case was actually a cultivation charge of a commercial quantity of a drug, pursuant to s.72A, it involved equally a 25 year maximum sentence, the Court of Appeal in Nguyen v R [2017] VSCA 198, [140] said that where you have a crime of this type in the drug milieu, that immediate imprisonment is virtually unavoidable, given the forefront in sentencing which general deterrence must have. Insofar as the particular charge that Mr Barbaro faces in Charge 1 in this indictment, such was specifically looked at by the Court of Appeal in Condo [2019] VSCA 181, [28] and [30], the same statement is made when taking into account the maximum sentence involved in this case.

21I have also had to consider of course s.5(2I), being Parliament's clear intent in this regard, and also s.5(2I)(b) as to whether the cumulative effect of all of the circumstances referred to by Mr Dickinson justifies a departure from a sentence of imprisonment.

22I have concluded, having given effect and consideration to all of the enumerated facts and statutory considerations, that the high hurdle, as referred to in Farmer [2020] VSCA 140, [51], has not being surmounted.

23Given the gravity of the offence in Charge 1, and the sentencing principles related thereto, not only do I find the hurdle not surmounted, but the consequence is that immediate imprisonment must be imposed, as provided for by Parliament. 

24Of course in sentencing, all of the factors which have been referred to in this application by Mr Dickinson must be taken into account, in rendering individualised justice to Mr Barbaro.  Mr Dickinson's emphasis on the role of rehabilitation, as evidenced in Huynh [2019] VSCA 311, loses much of its impetus, given my determination.

25As I said, in reading Huynh, I must say with respect, initially I had some concerns as to how this particular section under the Sentencing Act had not been mentioned. Having sought advice from both counsel as to why s.5(2H) was not mentioned in Huynh, the explanation provided was that the charge Mr Huynh was a conspiracy to traffic in a commercial quantity, being therefore not a defined Category 2 offence. While the matter is obviously not necassary to further consider, I must say my own reading of s.49 of the Drugs, Poisons and Controlled Substances Act, and indeed s.321 of the Crimes Act, casts great doubt upon why such section does not apply.

26Coming then to Mr Dickinson's sentencing submissions, I do take account firstly of the guilty plea.  I accept that it was made at the earliest time possible, given the make up of this indictment.  I accept that it is utilitarian.  I accept that it assists the attainment of justice and demonstrates remorse by Mr Barbaro. 

27I further note the excellent steps taken as to his rehabilitation.  I note that he is still relatively young at the age of 30.  However, as detailed in Azzopardi [2011] VSCA 372, [42], where the degree of criminality of an offence is such, as it is here, rehabilitation must give way in the sentencing calculus, where such requires objects of deterrence, denunciation and just punishment and protection of the community to have more prominence. I want to stress, however, that I have just used the word give way ‘in the balance'. I do not use the word 'obliterated'. The excellent steps taken by Mr Barbaro are matters are very much to his credit and have been taken into my account in the sentence that I have imposed.

28Coming then to his role.  In the submissions, there was no suggestion in regard to the commercial quantity of drug, Charge 1, particularly given where it’s weight stands in comparison to the next level, that Mr Barbaro was not the principal or that, given the volume, his criminality was not for the purpose of financial gain.  Albeit that I accept that he was drug addicted at the time.

29In regard to Charge 3 as I said, I accept the arrangements made between the parties prior to plea, that his role, albeit still serious, was reduced in culpability owing to him storing the drugs on behalf of his father. 

30As to Charge 4, albeit there was no explanation for the possession of the pistol, I accept such as being an accoutrement accompaning drug trafficking.  I also in regard to sentencing take into specific account, paragraphs 3(e), (f) and (g) of the prosecution submission on sentence. 

31Thirdly, I accept that he has no priors and no subsequent matters. 

32Fourthly, I accept as Mr Dickinson put, that remorse has been demonstrated and is genuine, as demonstrated by the steps taken as to his rehabilitation.  That he has shown by his inhouse treatment for three months and the ongoing treatment and therapy that continued, and was he free to do so, I accept would continue at Lamberti's.

33Fifthly, the powerful mitigating factor of delay, albeit only two years, which is not unusual in charges of this degree, especially when one takes into account that all of the other persons arrested that day are standing trial.  However, in the particular circumstances of Mr Barbaro, he has used those two years, to lay down appropriate steps for his rehabilitation.  As detailed in Merrett [2007] 14 VR 392, [36], as submitted to the Court by Mr Dickinson, I intend to provide all the leniency which is appropriate in the circumstances of this case, having taken into account the actions undertaken by his client during this two years.

34The sixth factor is his health status, the effect of parentification which has both led to his addiction to the level that I have already detailed and to his, according to Mr Armstrong, emulation of his father in criminal behaviour.  I also note, albeit untreated, his undiagnosed longstanding issues of anxiety and depression, at the time of the offending, again its relation to the parentification.  While I do not find such to be mitigatory, I do find such circumstances to be an explanation and the background to this criminality.

35Seventhly, I accept on the evidence that he will need treatment for such anxiety and depression while in gaol and that as a result, gaol will impact upon him.  However, I note the comments of Ms Brown, which was acceded to by
Mr Armstrong, that there is no reason why he would not get appropriate treatment, but I accept, that as against the general population, this aspect will make the service of his sentence harder.

36Eighthly, I also take into account firstly the stress to his own family from his gaoling, in particular, the circumstances about to overcome that family with the birth of a new child, and the loss that the family as a whole feel from the fact that their father is in gaol.  In addition, I accept the impact upon him, and worry upon him, from being sentenced to gaol, not only the immediate impact which I take into account, but the ongoing issues associated with his absence from the family. 

37The next factor put to me by Mr Dickinson was the issue of the COVID-19 risks and the circumstances.  There are numerous authorities now which have been established this year, predominantly in bail applications, the risk of COVID-19 in prisons clearly is a matter that is accepted as increasing the stress of being in prison.  In Mr Barbaro's case, of course that stress is enhanced by the evidence as to his serious asthma.  In addition, one has the issue of isolation.  Mr Barbaro has already had to go through a period, of 14 days isolation and while we are in this COVID-19 situation, as I understand, all units of prisons are having at least a half day lockdown. Of course there will be no visits whatsoever from any family for some period.  I take all those matters into account in regard to the sentence I pronounce.

38Finally, I said, Mr Barbaro will obviously need treatment asthma, no doubt for his depression and anxiety.  I accept insofar as treatment to assist him in continuing his recovery from drug addiction may well be somewhat limited by the current circumstances. 

39Taking all those matters into account, I intend to pronounce the sentence as follows.  Mr Barbaro, as I said, you do not need to stand, I will pronounce sentence in regard to the offending as follows.

40On the first charge of trafficking in a commercial quantity of a drug of dependence, Mr Barbaro you will be sentenced to imprisonment for seven years.  In regard to traffic simpliciter in drug of dependence, Charge 2, imprisonment for two years.  In regard to trafficking in a drug of dependence, Charge 3, imprisonment for 19 months.  In regard to Charge 4, the firearms charge, imprisonment for one year.

41I order that the base sentence be the sentence on Charge 1, being the seven years.  I cumulate the following amounts of time upon each other and upon the base sentence, firstly six months in regard to Charge 2, three months in regard to Charge 3 and one month in regard to Charge 4, making a total effective sentence of seven years and ten months.  I order that the minimum period to be served before being eligible for parole is five years.

42Pursuant to s.18, I declare that the amount of time served by way of pre-sentence detention of 16 days, be declared service of such sentence and a declaration to such effect be made in the records of this Court. 

43In regard to the summary charges, Charge 4, I sentence Mr Barbaro to imprisonment for two months.  In regard to Charge 5, a payment of 10 penalty units which amounts to $1652.20, and grant a stay until 4 August 2025.  In regard to Charge 6, imprisonment for three months.  I make no order as to cumulation in regard to such charged.

44Mr Barbaro, it is not probably something that you need to hear at this stage, but I am required by Parliament to tell you what was the impact of you pleading guilty.  As you have just heard, I have sentenced you to a period of imprisonment of seven years and ten months and ordered that you must serve five years before you are eligible for parole, less the 16 days you have already served.  Can I tell you that had you not pleaded guilty, given the multitude of factors I have had to take into account, but doing as best I can to concentrate simply on the plea of guilty as Parliament asks me to, had you not pleaded guilty, the sentence I would have sentenced you to would be eleven years and three months, with a non-parole period of six years and eight months. 

45I have signed the disposal and forfeiture orders.  Mr Prosecutor, any matters I need to attend to?

46MR HARDJADIBRATA:  No Your Honour.

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