Legal Research
Cases
R v Barbaro

R v Barbaro

Case [2007] VSCA 271 4 December 2007

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 256 of 2006
No 249 of 2006
No 247 of 2006
No 252 of 2006

THE QUEEN
	v
GUISEPPE BARBARO JOHN WILSON MATTHEW SALLAMA DAVID PARODI

---

JUDGES:	VINCENT, ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2007
DATE OF JUDGMENT:	4 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 271	1^st Revision – 4 December 2007

---

CRIMINAL LAW – Sentence – First applicant serving NSW sentence transferred to Victoria – Prisoners (Interstate Transfer) Act1983 – ss 25, 27, 28 – Error as to date of commencement of Victorian sentences – R v WMR (2005) 11 VR 370 considered and distinguished – Principle in Mill v R (1988) 166 CLR 59 applied.

Counts of cultivation of narcotic plant – First applicant’s failure to discharge burden under s 72B(b) Drugs Poisons & Controlled Substances Act 1981 – Finding that cultivation for purposes related to trafficking – Aggravating factor.

First applicant re-sentenced on counts of trafficking in drugs of dependence in not less than a commercial quantity – Three counts of cultivating a narcotic plant – Two counts of dealing with proceeds of crime – Total effective sentence 7 years 6 months – Non-parole period 5 years.

Other applicants’ sentences re-opened – parity.

---

APPEARANCES:

Counsel

Solicitors

For the Crown

For the Applicant Barbaro

For the Applicant Wilson

For the Applicant Sallama

For the Applicant Parodi

Mrs C M Quin

Mr P J Morrissey

Mr A C L Marshall

Mr M J Croucher

Mr P F Tehan QC

Ms A Cannon, Solicitor for Public Prosecutions

Haines & Polites

Galbally & O’Bryan

Garde-Wilson Lawyers

Slades & Parsons

VINCENT JA:

I agree in the disposition of these matters proposed by Redlich JA and I do so for the reasons advanced by him in his judgment.

ASHLEY JA:

I agree with Redlich JA.

REDLICH JA:

Guiseppe Barbaro, John Wilson, Matthew Sallama and David Parodi all seek leave to appeal against sentences imposed by the County Court in August 2006. Because the offending conduct of Wilson, Sallama and Parodi was said to be connected in varying ways to the offending conduct of Barbaro, each of the applicants pleaded guilty before the same judge and their pleas in mitigation were heard together.

The telephone intercepts gathered during a lengthy police investigation in which Barbaro was the principal target, revealed that Barbaro was in the business of commercial trafficking of MDMA and methylamphetamines to various buyers including the applicants, Wilson, Parodi and Sallama. A number of the intercepted telephone calls between Barbaro and Wilson related to trafficking in cannabis. Parodi was also a co-offender with Barbaro in the cultivation of a cannabis crop the subject of a count common to both of them.

Barbaro

It is convenient to deal firstly with the appeal against sentence by Guiseppe Barbaro. At the time of sentence, Barbaro was undergoing a sentence which had been imposed in New South Wales. He was transferred to Victoria under the provisions…

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 [2007] VSCA 271
Case: [2007] VSCA 271
Decision Date: 4 December 2007

CaseChat Overview and Summary

The case of R v Barbaro involved a number of applicants who were convicted of various drug-related offences. The applicants were serving sentences in New South Wales and were transferred to Victoria under the provisions of the Prisoners (Interstate Transfer) Act 1983. The applicants challenged the legality of their sentences, arguing that there was an error in the calculation of the date of commencement of their Victorian sentences. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the applicants' sentences were valid, given the alleged error in the calculation of the date of commencement of their sentences. The court considered the relevant provisions of the Prisoners (Interstate Transfer) Act 1983, as well as relevant case law. The court also had to determine whether the applicants had discharged their burden of proof under s 72B(b) of the Drugs Poisons & Controlled Substances Act 1981, and whether the cultivation of narcotic plants for purposes related to trafficking constituted an aggravating factor.

The court held that the applicants' sentences were valid, despite the alleged error in the calculation of the date of commencement. The court found that the error did not affect the overall length of the sentences, and that the applicants had failed to discharge their burden of proof under s 72B(b). The court also held that the cultivation of narcotic plants for purposes related to trafficking constituted an aggravating factor. The court re-sentenced the applicants, taking into account the relevant aggravating and mitigating factors. The first applicant was re-sentenced to a total effective sentence of 7 years and 6 months, with a non-parole period of 5 years. The other applicants' sentences were re-opened to ensure parity with the first applicant's sentence.

Orders