Pasquale Barbaro v The Queen - [2021] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0167

PASQUALE BARBARO	Applicant
v
THE QUEEN	Respondent

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JUDGE:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2021
DATE OF JUDGMENT:	16 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 61
JUDGMENT APPEALED FROM:	[2020] VCC 1176 (Judge McInerney)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant 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 failed to take into account time in drug rehabilitation as additional punishment – Whether judge failed to take mitigating circumstances into account – Whether sentence manifestly excessive – Leave to appeal granted – Sentencing Act 1991 ss 5(2H), 5(2HC), Akoka v The Queen [2017] VSCA 214 considered.

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

KAYE JA:

The applicant 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, one charge of being an unlicensed person store ammunition in an insecure manner, and one charge of possession of property reasonably suspected of being the proceeds of crime.

After a plea made on his behalf, the applicant 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…

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 Pasquale Barbaro v The Queen

Details

AGLC: Pasquale Barbaro v The Queen [2021] VSCA 61
Case: [2021] VSCA 61
Decision Date: 16 March 2021

CaseChat Overview and Summary

Pasquale Barbaro sought leave to appeal against his sentence from the Supreme Court of Victoria. The respondent, The Queen, was represented by the Director of Public Prosecutions. The applicant had pleaded guilty to trafficking in commercial quantities of MDMA, cannabis, and methylamphetamine, possessing a handgun without a licence, and related summary charges. The Court was asked to determine whether the trial judge erred in applying the provisions of the Sentencing Act 1991 and whether the sentence was manifestly excessive.

The Court needed to determine if the trial judge had erred in applying the provisions of the Sentencing Act 1991 by not recognising that Barbaro was eligible for a discount under s 5(2H) and by not considering the appropriate discount under s 5(2HC) in relation to the commercial quantity of cannabis. The Court also needed to determine whether the trial judge failed to take into account the time Barbaro had spent in drug rehabilitation as additional punishment and whether the sentence was manifestly excessive.

The Court found that the trial judge had erred by not recognising Barbaro's eligibility for a discount under s 5(2H) and by not applying the appropriate discount under s 5(2HC) in relation to the commercial quantity of cannabis. The Court also found that the trial judge had failed to take into account the time Barbaro had spent in drug rehabilitation as additional punishment and that the sentence was manifestly excessive. Therefore, leave to appeal was granted.

The Court ordered that leave to appeal be granted.

Orders