R v Barbaro - [2009] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 973 of 2008

THE QUEEN
	v
DOMENIC BARBARO

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JUDGES:	VINCENT and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2009
DATE OF JUDGMENT:	4 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 89

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CRIMINAL LAW – Sentence – Conspiracy to traffick in a commercial quantity of a drug of dependence – Parity – Appeal allowed – Sentence of 2 years with 15 months suspended for 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson QC	Valos Black & Associates

VINCENT JA:

The appellant was sentenced in the County Court at Melbourne, on 5 November 2008, on one count of conspiracy to traffic in a commercial quantity of a drug of dependence, namely phenyl-2-propanone. This material is used in the manufacture of methylamphetamine.

For present purposes, the circumstances relating to his involvement in what must be regarded as extremely serious criminal activity have been sufficiently set out in the judge's sentencing remarks:

George Peters was an experienced manufacturer of methylamphetamine. His usual method of manufacture of methylamphetamine involved the conversion of phenyl-2-propanone into methylamphetamine using another chemical, methylamine.
Shane Moran was known to Peters as a supplier of chemicals. He agreed to supply Peters with methylamine and with phenyl ascetic acid for Peter to convert into phenyl-2-propanone and use the methylamine to convert phenyl-2-propanone into methylamphetamine. A quantity of the finished product would be provided to Moran.
You were an associate of Shane Moran. On 15 April 2006, you met with Peters at the Waterloo Hotel in Maribyrnong. You attended the meeting on behalf of Moran and you had with you a 20 litre tub of phenyl ascetic acid and a 20 litre drum of methylamine.
These chemicals were loaded into Peters' car and you went with Peters to premises at 12 Lloyd Street, Strathmore. Peters had taken possession of the premises on that day with the intention of establishing a clandestine laboratory there. For the remainder of the day, you assisted Peters to obtain necessary tools, fittings and equipment to set up the laboratory.
The agreement was that Peters would use the methylamine supplied by Moran to convert the phenyl ascetic acid, also supplied by Moran into phenyl-2-propanone.
You were a party to this agreement. Your role pursuant to the agreement was to deliver the two chemicals to Peters and then to nurse it or guard it while the manufacturing took place to ensure that Moran, as it was said, was not ripped off. You were instructed to say until the phenyl acetic acid had been converted to phenyl-2-propanone. You knew that Peters was a drug manufacturer and that he was setting up a laboratory in the Strathmore premises.
Peters worked setting up the laboratory over the following week. He was assisted by Frank Ahec. You also assisted them, unloading glassware, chemicals and equipment.
By 21 April 2006,…

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 R v Barbaro

Details

AGLC: R v Barbaro [2009] VSCA 89
Case: [2009] VSCA 89
Decision Date: 4 May 2009

CaseChat Overview and Summary

The case of R v Barbaro before the Court of Appeal involved the appellant, Barbaro, who was convicted of conspiracy to traffic in a commercial quantity of a drug of dependence. The sentence imposed by the lower court was appealed by the appellant, asserting that it was manifestly excessive. The appeal was heard in the Court of Appeal, which was tasked with determining whether the sentence was appropriate in the circumstances of the case.

The legal issues that the court had to decide were whether the sentence imposed by the lower court was manifestly excessive, and if so, whether a more lenient sentence should be imposed. The appellant's counsel argued that the sentence was disproportionate to the offence, and that the lower court had not adequately considered the principles of parity in sentencing similar offenders. The Crown, on the other hand, contended that the sentence was appropriate and reflected the seriousness of the offence.

The Court of Appeal found that the sentence imposed by the lower court was manifestly excessive and did not accord with the principles of parity. The court held that the sentence should reflect the culpability of the offender, the gravity of the offence, and the need for general deterrence. The court found that the lower court had not adequately considered these factors and had imposed a sentence that was disproportionate to the offence. The Court of Appeal allowed the appeal and imposed a sentence of two years imprisonment, with fifteen months suspended for three years.

The Court of Appeal's decision highlights the importance of considering the principles of parity in sentencing, and the need for courts to carefully consider the factors that should be taken into account when imposing a sentence. The outcome of this case serves as a reminder to lower courts to ensure that sentences imposed are proportionate to the offence, and that they take into account the relevant principles of sentencing.

Orders