R v Barbaro
[2007] VSCA 271
•4 December 2007
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 |
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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 | 1st Revision – 4 December 2007 |
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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.
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| 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 of the Prisoners (Interstate Transfer) Act1983 (‘the Act’). The sentencing judge, in accordance with the submissions of counsel, fixed as the
commencement date of the sentences to be imposed, the commencement date of the New South Wales sentence which Barbaro was still serving. In doing so the sentencing judge fell into error and failed to give effect to the principle of totality.[1] His appeal must be allowed and he must be re-sentenced.
[1]His Honour was also invited by Senior Counsel for the applicant to fix a sentence that included the New South Wales sentence.
Barbaro had pleaded guilty to one count of trafficking in a quantity of two or more drugs of dependence in not less than a commercial quantity, three counts of cultivating a narcotic plant and two counts of dealing with the proceeds of crime.
The learned sentencing judge summarised the facts relating to counts 1, 2 and 3, in the following terms:
You, Mr Barbaro, were the principal target of a major police operation then being conducted by officers of the Major Drug Investigation Division of the Victoria Police. You were suspected by the officers of having a significant involvement in the trafficking of proscribed drugs in the State of Victoria. That initial suspicion was to prove very much correct.
Pursuant to a warrant obtained by police your telephone calls were intercepted. Three persons have already been sentenced by this court for drug related offences resulting from evidence obtained by police over the period of call interception. Other persons are still awaiting trial. There would appear essentially to be no dispute in relation to the following set of facts.
Count 1: This count relates to you at Melbourne in the State of Victoria between 13 June 2003 and 11 March 2004 trafficking in a quantity of two or more drugs of dependence namely methylamphetamine and MDMA that was not less than the commercial quantity applicable to those drugs of dependence. This is a particularly serious offence with a maximum prescribed penalty being set by Parliament in respect of such an offence at 25 years’ imprisonment. It is important for the court to take recognition of the will of Parliament in this regard.
There appears to be no dispute that over the relevant period we are here concerned with in Count 1, you were very significantly involved in the daily business of trafficking in a commercial quantity of MDMA and methylamphetamine to known co-accused and to other unknown persons. You also trafficked in such drugs to covert police officers. By way of example, you sold 27.8 grams of methylamphetamine with a purity of 80 per cent to a covert operative on 21 November 2003 for $3,500 and you sold on 19 February 2004, 939 ecstasy tablets with a 20 per cent purity to the same covert operative for $12,250.
The available evidence suggests that you were most closely involved with the co-offender who is yet to stand trial in the production of tablets by means of a pill press located at your co-offender’s premises.
On 11 March 2004 during the execution of a search warrant at your home at 6 Wattletree Drive, Taylors Hill, a number of items associated with the commercial distribution of illegal drugs were there located. These items included scales, a number of mobile phones, a plastic container with 456.2 grams of amphetamines and a snaplock plastic bag with 40 grams of cannabis. Also found was a large quantity of cash namely $7,500 on your person and $13,100 in a cabinet in the loungeroom.
There is no dispute that the quantity of drugs involved in respect of Count 1 well satisfied the definition of “commercial quantity” as it appears in s.70 of the Drugs Poisons and Controlled Substances Act 1981. A study of the transcripts of telephone intercepts between you and other persons clearly demonstrated the extent of your operation and your significant involvement. The transcripts also serve to give a clear insight into you as a person at the relevant times. The Crown case against you was a strong one.
Count 2: This count relates to the cultivation of a crop of cannabis at a residential property at 592 Troups Road South, Mount Cottrell between 25 September 2002 and 7 July 2003. You held a lease over the subject property. That lease commenced on 25 September 2002. As a result of rental arrears you vacated the premises on 7 July 2003. At the time of your vacation of the subject property damage was found to have been caused to it. This damage was consistent with a hydroponic system having been set up at the property and used for the cultivation of Cannabis L. Further a number of intercepted telephone calls between you and a co-offender named Wilson relate to the crop of Cannabis L that you were then growing at the subject property.
The Crown is unable to lead evidence either as to the quantity of the crop cultivated or as to the quality or quantity of the crop harvested at 692 Troups Road. This court is satisfied on the balance of the probabilities that this offence was committed by you for a purpose related to trafficking in that plant. In such a situation the maximum period of imprisonment imposed by Parliament in respect of such offence is 15 years.
Count 3: This count relates to a further cultivation of a crop of Cannabis L, this time at a residential property situated at 668-690 Troups Road, Mount Cottrell. You were joined in this venture by a man named Parodi. Parodi has already been dealt with by this court. The Crown is unable to lead evidence either as to the size of the crop so cultivated or the size and quality of the crop so harvested. In any event, the crop was allegedly stolen as it reached maturity. Parodi believed that you had stolen the subject crop. Telephone intercepts seemed to suggest that you may have indeed been the person responsible but whether you were responsible or not, the fact that the crop was so stolen served little by way of mitigation.
This court is satisfied on the balance of the probabilities that this offence was committed by you for a purpose relating to trafficking in that plant. In such a situation a maximum of [sic] period of imprisonment imposed by Parliament in respect of such offence is 15 years.
On count 1 Barbaro was sentenced to 8 years and 6 months’ imprisonment. He was sentenced to 4 years and 6 months on count 2. He was sentenced to 4 years and 6 months on count 3. He was fined $750.00 on each of the remaining counts on the presentment. One year of the sentence on count 2 was to be served cumulatively upon the sentence on count 1 making a total effective sentence of 9 years and 6 months. The judge ordered that the sentence be served concurrently with the New South Wales sentence Barbaro was serving and fixed a new single non-parole period of 7 years to run from the commencement of the New South Wales sentence. The individual sentences and the order for cumulation and the resulting total effective sentence and the non-parole period were said to be manifestly excessive and in breach of totality.
Barbaro had previously been sentenced at the District Court in New South Wales on 17 March 2005 to a term of imprisonment of 6 years with a minimum non-parole period of 4½ years on one count that he had between 16 August 2002 and 26 August 2002 at Sydney in the State of New South Wales and elsewhere supplied a prohibited drug namely methylamphetamine (the New South Wales sentence). Having been arrested by Victorian Police on 11 March 2004 in relation to the matters the subject of the present appeal, he was extradited to New South Wales before the Victorian proceedings were concluded. The prisoner’s sentence in New South Wales was back-dated to commence on 22 September 2004 being the date when he was remanded in custody in New South Wales following his extradition from Victoria.
On 9 September 2005 while serving the New South Wales sentence, he was transferred to Victoria pursuant to the Act. In his reasons for sentence the sentencing judge stated that he had taken into account the provisions of the Act and in particular ss 25, 27 and 28 and had also considered the decision of the High Court in Mill v The Queen[2] and the decision of this court in R v WMR.[3] After referring to the circumstances of Barbaro’s offending the sentencing judge said:
For present sentencing purposes, this court has taken the clear view that your offending in the State of New South Wales and in this State particularly in respect of the offence the subject of count 1, forms as it were a continuous chain of offending related in time and character. You will be sentenced by this court on that basis. All sentences to be imposed by this court in this State will have a commencement date of 22 September 2004 being the date you were taken into custody in New South Wales.
In fixing the effective head sentence, this court has taken into consideration what would be likely to have been the effective head sentence imposed if you had committed all the offences in the one jurisdiction and had been sentenced in respect of all of offences at the same time.
[2](1988) 166 CLR 59.
[3](2005) 11 VR 370.
During the course of oral argument the Court enquired as to the source of the sentencing judge’s power to fix as the commencement date of these sentences, the date of the New South Wales sentence. Argument then focussed upon whether the provisions of the Act authorised a course which was inconsistent with the provisions of s 17(1) of the Sentencing Act1991.
Sections 25, 27 and 28 of the Act are in these terms:
25. Transfer of sentence with prisoner
(1)Where pursuant to an order of transfer a prisoner is conveyed to a participating State or a Territory specified in the order, then from the time the prisoner arrives in the participating State or the Territory every State sentence of imprisonment[4] imposed upon the prisoner including a translated sentence,[5] ceases to have effect in Victoria except –
[4]A sentence imposed in respect of an offence against a law of Victoria: s 4.
[5]A sentence of imprisonment deemed by s 27 to have been imposed on a person by a court of Victoria: s 4.
(a)for the purpose of any appeal against or review of any conviction, judgment or sentence made, imposed or fixed by a court of Victoria;
(b)in relation to any period of imprisonment served by the prisoner in Victoria; or
(c)in relation to the remittance of money to the Minister which is paid in discharge or partial discharge of a sentence of default imprisonment originally imposed upon the prisoner by a court of Victoria.
(2)Sub-section (1) does not apply to a sentence of imprisonment imposed on a person if the person has completed serving that sentence.
27.Sentence deemed to have been imposed in this State
(1)Where under an interstate law an order is issued for the transfer to Victoria of a person imprisoned in a participating State and the person is brought into Victoria pursuant to the order, then from the time the person arrives in Victoria –
(a)any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed on the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed on the person; and
(b)any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made –
by a corresponding court of Victoria and, except as otherwise provided in this Act, shall be given effect to in Victoria, and the laws of Victoria shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.
(2)Sub-section (1) does not apply to or in respect of a sentence of imprisonment imposed on a person if the person has completed serving that sentence.
The relevant part of s 28 is in these terms:
28. Provisions relating to translated sentences
(1)Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a non-parole period (being a shorter period than the translated sentence), during which non-parole period the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that non-parole period shall be deemed likewise to have been fixed by the corresponding court of Victoria.
…
(6)A person who is subject to a translated sentence –
(a)shall be deemed to have served in Victoria such period of the translated sentence as, up to the time of his transfer to Victoria, he had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in a participating State and any period spent in custody while being transferred to a prison in Victoria); and
(b)shall, subject to sub-section (7), be credited, in respect of the part of the translated sentence served in a participating State, with such entitlements to remission as may be specified in the order of transfer;
(c)shall, in accordance with the law of Victoria, be credited with further reductions of that sentence as from the date of the person’s arrival in Victoria.
Counsel for Barbaro had expressly abandoned ground 2 which alleged that the sentencing judge had erred in his approach to totality and to the operation of the Act and in particular in fixing sentences on the basis that they would commence on the date the applicant was taken into custody in New South Wales. During the course of the appeal it became apparent that counsel for the other applicants intended to rely upon the asserted error in the commencement date of Barbaro’s sentence in support of their respective grounds of appeal that the learned sentencing judge had failed to properly apply principles of parity between them and Barbaro. Although with some initial reluctance, counsel for Barbaro joined with counsel for the other applicants in submitting that the sentencing judge had fallen into error in fixing the commencement date by reference to the commencement date of the sentence in New South Wales and had erred in his application of the principle of totality. Counsel for the Director conceded that the sentencing judge had fallen into error in these respects.
On the plea before the sentencing judge, counsel for the Director initially contended by way of a written submission, that the sentences which were to be imposed should commence on the date of imposition of those sentences in accordance with s 17(1) of the Sentencing Act1991 and that the provisions of the Act did not affect the date of commencement of the sentences. It was also submitted that the decision of WMR was distinguishable on the facts.
On the plea senior counsel for Barbaro submitted that the commencement date for the sentences to be imposed should be the commencement date of 22 September 2004 being the date of the New South Wales sentences. It was said that followed from the plain reading of the Act and from the decision of the Court of Appeal in WMR. It was also submitted that in commencing the sentence from the date of the New South Wales sentence his Honour had to impose a total effective sentence for Barbaro’s offending which included the New South Wales matters so that he should be sentenced as though the presentment contained an additional count concerning the New South Wales offence. Nothing further was said by the learned prosecutor to dissuade the sentencing judge from following such a course.
It was conceded by all parties on the appeal that the passages from his Honour’s reasons for sentence which I have last referred to are to be understood as giving effect to the submissions that had been advanced on Barbaro’s behalf. As a consequence his Honour fell into error in fixing the commencement date of the sentences that he imposed.
In the case where a prisoner is transferred from another state to Victoria and is to be sentenced by a Victorian judge, there are no provisions of the Act which displace the operation of s 17 of the Sentencing Act1991. The sentences must commence on the day that they are imposed. In R v Cook[6] a prisoner serving a sentence in Western Australia was transferred to Victoria pursuant to the Act and was sentenced to a term of imprisonment for the Victorian offence. The Court comprising Winneke P, Callaway JA and Hampel AJA observed that
in fact the effect of the legislation is that when a request is made for the transfer of a person already undergoing sentence in another State and the prisoner is then transferred pursuant to the request, the sentence which is being served pursuant to the interstate order becomes notionally a sentence of a Victorian court and the sentence is then served in Victorian custody.[7]
[6](1996) 2 VR 658.
[7]Ibid 660.
In Cook the prisoner commenced the sentence on the date that the sentence was imposed. That sentence was ordered to be cumulative upon the interstate sentence being served. A sentencing error (of no relevance to the present circumstances) having been identified by the Court of Appeal, it was necessary for the Court of Appeal to re-sentence the applicant, the commencement date fixed being the date upon which the sentence was imposed.
The Crown submitted that the decision in WMR could be distinguished as a case in which the offender, after being sentenced in Victoria, was to be returned to the state in which the initial sentence was imposed. In that case the offender, having been sentenced in New South Wales for an offence, was transferred to Victoria and was sentenced in the County Court in Victoria. Following that sentence he was returned to New South Wales to serve his sentence for the New South Wales offence. The appeal against sentence was allowed and the offender was re-sentenced. Eames JA, with whom the Chief Justice and Batt JA agreed, concluded that by virtue of s 25 of the Act, upon the offender’s transfer back to New South Wales, the Victorian sentence would cease to have effect in Victoria and that the combined effect of s 27(1) and s 25(1) was that the commencement date for the sentence which the Court of Appeal imposed had to be the commencement date of the original sentence fixed in New South Wales.[8] WMR appears to rest upon the view that as the sentence of imprisonment in Victoria ceases to have effect in Victoria, upon the offender being transferred to New South Wales, the date of the New South Wales sentence became the commencement date. No such circumstances exist in the present case. The conclusion reached in WMR is, with great respect, open to serious doubt but any determination as to its validity must await an occasion when a prisoner, to be sentenced by a Victorian court, is then to be transferred to another State where he is already undergoing a sentence.
[8][28].
In sentencing Barbaro as though he were being sentenced for the New South Wales offence, the sentencing judge sought to apply the principle stated by the High Court in Mill v R[9] in which the Court in a joint judgment said:
In our opinion the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.[10]
[9](1988) 166 CLR 59.
[10]Ibid 66.
This exercise is a notional one undertaken where the later sentencing court is unable to back-date the new sentence so as to impose concurrent sentences.[11] In such circumstances as the joint judgment in Mill states:
the only course open to the later sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.[12]
[11]Ibid 67.
[12]Mill, 67.
This principle will have application only where the offences are relatively close in time or character.[13] In such circumstances the sentencing court must consider whether the sentence that is proposed to be imposed by it, when notionally combined with the earlier sentence, would offend the principle of totality, having regard to the offender's overall criminality and taking into account mitigating factors.[14]
[13]Mill v R, 63-4, 66; R v Mann (2005) VSCA 141, [7]. For an illustration of the application of the notional exercise that the sentencer consider what sentence would have been imposed had all offences fallen for consideration at the same time see R v Beck (2005) VSCA 11, [22] (Nettle JA).
[14]R v Quinn [2005] VSCA 100, [12] (Chernov JA).
The approach discussed in Mill was applied by Eames JA in WMR.[15] The impugned passage from the sentencing judge’s reasons is in identical terms to the question which Eames JA said must be asked by the sentencing judge in fixing an effective head sentence. The submissions of all parties, including the Crown, proceeded upon the assumption that the sentencing judge, in adopting that approach, had given literal effect to Eames JA’s observations by not merely treating it as a notional exercise, and had fixed sentences which included Barbaro’s offending conduct in New South Wales. His Honour had been invited by senior counsel who appeared for Barbaro on the plea to do so. It had been suggested that His Honour fix a sentence which included the New South Wales sentence. It is not clear from his Honour’s reasons whether his Honour gave effect to that suggestion. It is a question that need not be resolved. On appeal all parties have accepted that the sentencing discretion must in any event be re-opened because his Honour incorrectly fixed as the commencement date for the sentences he imposed, the date of commencement of the New South Wales sentence.
[15]374 [19].
As to the sentences which should be imposed, it is necessary to deal with a specific argument that was advanced as to why we should not re-impose the same terms of imprisonment on the two counts of cultivation. Strictly speaking, the Court, if re-sentencing, has no need to examine the question whether a particular sentence ismanifestly excessive, but it will often do so, if only to see whether the original sentence can fairly form a basis for re-sentencing in respect of matters which are not the subject of specific complaint.[16]
Failure to discharge burden of proof under s.72B Drugs, Poisons and Controlled Substances Act1981
[16]R v Coukoulis [2003] 7 VR 45, [38] (Ormiston JA).
The plea was conducted on the basis that the maximum sentence of 15 years was applicable to the two counts of cultivation. His Honour applied the higher sentencing regime under s 72B(b) of the Drugs, Poisons and Controlled Substances Act1981 because he was ‘satisfied on the balance of probabilities that this offence was committed by [Barbaro] for a purpose related to trafficking in that plant.’ Not only did the judge find that Barbaro had failed to discharge the burden placed upon him by s 72B(a) but his Honour stated he was affirmatively satisfied as to that purpose. His Honour was entitled to express himself in the manner in which he did. In R v
Pavlovski[17] the sentencing judge expressed himself in identical terms, the applicant, having failed to discharge the onus of proof. Thus the offence is removed from the lower sentencing regime because of the finding that on the balance of probabilities it was committed for a purpose related to trafficking.[17]Supreme Court of Victoria, Court of Appeal, 7 May 1998 (Winneke P, Brooking and Charles JJA).
Cultivation for a purpose related to trafficking
In fixing the sentences on these counts his Honour further stated that ‘trafficking in a drug of dependence and drug cultivation for purposes related to trafficking’ are crimes in which ‘the issue of public protection must also rank as an important sentencing consideration.’ His Honour said he was ‘well satisfied’ that Barbaro was motivated by ‘greed rather than need’.
In his written submissions, Counsel abandoned the ground of appeal which had alleged that the sentencing judge had erred in taking into account as an aggravating factor that the offences of cultivation were committed for a purpose related to trafficking or that he applied the wrong standard of proof. Despite the absence of a ground alleging such specific error, he maintained that the evidence did not support such a finding, at least not to the criminal standard and that it was impermissible to take any trafficking motive into account. He further contended, under the umbrella of manifest excess, that Barbaro should have been sentenced and should now be re-sentenced for cultivation simpliciter and not upon the basis that it was for a purpose related to trafficking. ‘It was a bare bones cultivation’ according to counsel for the applicant.
If the evidence is able to satisfy the sentencing judge beyond reasonable doubt that the offender had the drug for a purpose ‘relating to trafficking’ rather than solely for personal use, it may be regarded as an aggravating factor.[18] The sentencing judge made clear in his reasons that in fixing the sentences on counts 2 and 3 he took such a purpose into account as an aggravating factor but his Honour did not explicitly state that he was satisfied beyond reasonable doubt as to that purpose. As the sentencing discretion has been reopened, it is necessary for this Court to consider whether the surrounding circumstances establish this factor to the criminal standard.
[18]R v Wylie [1989] VR 21, [32]-[33] (Tadgell J with whom O’Bryan AJ agreed); R v Doble [2007] VSCA 47, [16], [22] and [24] and [25] (Eames JA with whom Maxwell P and Kellam AJA agreed).
It was not suggested on the plea or on the appeal that Barbaro was a user of drugs or that the cultivation was for his personal use. All of the evidence including that tendered by the defence on the plea leads to the conclusion that the cultivation on both properties was a commercial activity with the object of financial gain. In R v Kingston[19] Batt JA observed:
To have regard to the profit-making purpose does not, in my view, transgress the principle enunciated in The Queen v De Simoni. It merely facilitates characterisation of the offending conduct, the cultivation. It does of course aggravate that conduct, but it does not involve that the appellant is being sentenced for trafficking. It would be strange if the fact that cultivation was for personal use could be relied on in mitigation, but profit-making purpose could not be relied on in aggravation.
[19][2002] VSCA 41, [17].
It is unnecessary to make particular reference to further authority. It has now been stated on numerous occasions that cultivation of a crop of cannabis as a commercial activity and for the purpose of making substantial financial gain is an aggravating factor.[20] The contention that such a motive may not be taken into account on a charge of cultivation is without merit.
[20]R v Costa [1998] VSCA 78, [10]; R v Pavlovski (Supreme Court of Victoria, Court of Appeal, 7 May 1998 (Winneke P, Brooking and Charles JJA)); R v Draper [2002] VSCA 63, [7]; R v Stones, 10 September 1997; DPP v Reid [2004] VSCA 105, [12]; DPP v Rzek [2003] VSCA 97, [28]-[29]; R v Spirakos (Supreme Court of Victoria, Court of Appeal, 15 April 1998 (Winneke P, Brooking and Charles JJA)); R v Burgess [2004] VSCA 187; R v Mason [2006] VSCA 55; R v Tabone [2006] 167 A Crim R 18.
Counsel for Barbaro contended that the sentences on the cultivation counts were too high. In substance it was argued that the typical features of a sophisticated commercial cultivation such as the level of investment and the volume and quality of crop were absent. Thus it was said that the conclusion could not be drawn that it was a commercial profit making business. While conceding that count 2 and 3 involved separate criminal activity from count 1, it was also submitted that they were part of the continuous course of conduct reflected in count 1 so that no order for cumulation of any parts of those sentences on count 1 should have been ordered.
The period of Barbaro’s offending on the present charges extended between September 2002 and March 2004. During that period he was the principal in the drug business that was being carried out. The telephone intercepts demonstrated the frequency and volume of the business conducted. It involved different kinds of drugs. The sentencing judge adopted the description of Barbaro contained within a psychologist’s report tendered on the plea, which described him ‘as being very streetwise and well versed with the criminal justice system.’
Although the Crown was unable to establish the precise quantity or quality of the crop grown at either of the premises, the nature and extent of the cultivation on both of the properties leads inescapably to the conclusion that the cultivations were undertaken for the purpose of financial gain. The circumstantial evidence pointed to the use of a hydroponic setup on the properties and the relevant telephone intercepts were typical of the business of trafficking. The pleas of Barbaro and Parodi, Barbaro’s co-offender on count 3, were conducted on the basis that the cultivation was one to which s 72B(b) applied and that it was a commercial activity. Barbaro was involved in the rental of both properties and entered into arrangements with others including some of the other applicants for the purpose of growing the crops. Both cultivations were plainly commercial activities for profit making purposes which constituted an aggravating circumstance.
Some comparison was made by counsel for Barbaro with sentences imposed in cases of cultivation of commercial quantities of cannabis in an attempt to demonstrate that the sentences on count 2 and 3 were too high and outside the range. It has been said often enough that because of the differences in the manner in which offences are committed and the circumstances personal to the offender, that sentences imposed in other cases can only be of limited assistance. The exercise undertaken in the present case illustrates the point. Barbaro had significant and relevant prior convictions in New South Wales for the supply of drugs which had resulted in lengthy terms of imprisonment.[21] With one exception, none of the cases cited involved an offender who had prior convictions for the supply of drugs.
[21]The last was a sentence in 1992 of five years imprisonment with a minimum of three years before he was eligible for parole.
There was no issue taken with the sentencing judge’s summary of the facts nor was it suggested that there were mitigating circumstances which had not been referred to by the sentencing judge. He took into account in mitigation of sentence, Barbaro’s plea of guilty, his apparent remorse and insight into his offending, his prospects of rehabilitation and the effect on him and his family of the kidnapping of his young baby in August 2004.
On the plea, it had been submitted that by reason of his wife’s psychological condition as a result of the kidnapping and the real hardship that would be caused to her and the children by reason of his incarceration, the court should exercise mercy in sentencing him. The same submission had been made by Barbaro and rejected by the New South Wales Court of Appeal earlier in 2006 which did not view these circumstances as exceptional so as to justify particular leniency in the sentencing process.[22] The sentencing judge reached a similar conclusion. His Honour was not satisfied that exceptional circumstances had been made out that would warrant the application of “a heightened degree of mercy on the grounds of particular hardship” to Barbaro’s wife and children. That conclusion was not challenged on this appeal.
[22]Barbaro v R [2006] NSWCCA 180, [39], (McLellan CJ at CL with whom Hall and Latham JJ agreed).
In fixing the new sentences, an allowance must be made for the New South Wales sentence which Barbaro is presently serving. Having regard to the principle of totality, I would fix the following new sentences:
On count 1 6 years and 6 month’s imprisonment
On count 2 3 years and 6 month’s imprisonment
On count 3 3 years and 6 months’ imprisonment
I would order that six months of the sentence on count 2 and 6 months of the sentence on count 3 be served cumulatively upon each other and upon the sentence fixed on count 1 making a total effective sentence of 7 years and 6 months’ imprisonment. For the avoidance of any doubt, I record my intention that these sentences are to be served concurrently with the uncompleted portion of the New South Wales sentence pursuant to s 16 of the Sentencing Act 1991. Pursuant to s 14 of that Act, I would fix a new non-parole period of 5 years. I would affirm all of the other orders made by the sentencing judge.
Consequence of re-sentencing Barbaro
As already mentioned, the pleas in mitigation for each of the applicants were heard together. Although Barbaro was the last of the applicants to be sentenced, it was accepted by all parties on the appeal that the learned sentencing judge had used the sentences which he intended to impose on Barbaro as a yardstick in fixing the sentences of Wilson, Sallama and Parodi on counts which were connected to the offending conduct of Barbaro. Consequently it was submitted on their behalf, supported by counsel for the Director, that as Barbaro would have to be re-sentenced, the sentencing discretion in relation to each of the other applicants must also be reopened primarily for reasons of parity.[23] This is so because the principle discussed in Postiglioni v R[24] rests primarily on an aspect of equal justice which requires that if there is no material difference in the degree of culpability or the personal circumstances of co-offenders, they should be treated alike. While it does not follow that the re-sentencing of one offender must result in a consequential alteration in the sentence imposed on other co-offenders[25] counsel for the Director made the concession, very early in the appeal, that each of the other applicants would have to be re-sentenced as a consequence of the need to re-sentence Barbaro. The appeal was thereafter conducted on that basis. I therefore do not stay to consider whether the degree of connection between the offending conduct of Barbaro and each other applicant gave rise to questions of parity. As the sentencing discretion in relation to Wilson, Parodi and Sallama must be re-exercised, it will be unnecessary to examine the grounds of their appeal save to the extent that the matters raised there under are relevant to the exercise of that discretion.
[23]R v Guthrie and Nuttal [2006] VSCA 192, [87]; R v Sibic and Sibic (2006) 168 A Crim R 305, [50]; R v Moroz and Mendelis [2007] VSCA 30, [57]; R v Nguyen & Ors [2007] VSCA 165, [38].
[24](1997) 189 CLR 295.
[25]R v Huynh & Ors [2004] VSCA 128, 102; R v Zayden & Ors [2004] VSCA 245, 102.
Wilson
Wilson pleaded guilty to four counts of trafficking in a drug of dependence and one count of cultivating a narcotic plant. He admitted four prior convictions, the relevance of which was to show that he has been and was at the time of the commission of the present offence, suffering from drug addiction. The sentencing judge was satisfied that evidence gathered during the course of the major drug investigation into Barbaro established that Wilson was involved in drug trafficking in a very significant manner and that he had a clear association for a period of time with Barbaro. It is convenient to refer to the facts as they were set out by the sentencing judge:
Count 1 relates to your trafficking in a drug of dependence namely MDMA (ecstasy) in the period 13 June 2003 to 26 June 2003. You entered into two transactions with a covert police officer. In the first transaction of 13 June 2003, you supplied the covert operative with 25 tablets of what you purported to be ecstasy for $500. Upon complaint made to you by the covert operative that the supplied tablets were not of suitable quality you replaced the tablets on 26 June 3003 with you again purporting them to be ecstasy. It should be noted that a subsequent scientific analysis demonstrated that the subject tablets were indeed not ecstasy tablets but were rather ketamine based tablets.
Count 2 relates to you trafficking in a drug of dependence namely methylamphetamine in the period between 13 June 2003 and 11 March 2004. In that period you entered into four transactions with another covert police officer. On 13 July 2003, you sold the officer six grams of methylamphetamine for $1,000; on 11 August 2003, 27.9 grams of methylamphetamine for $4,500; on 8 September 2003, 26.66 grams of methylamphetamine for $4,400; 10 and 11 October 2003, a total of 143.31 grams for $16,000. Telephone intercepts at the relevant times revealed that you were involved in trafficking methylamphetamine on a regular basis to both named and to unknown customers.
Count 3 relates to you trafficking in heroin in the period between 13 June 2003, and 11 March 2004, to both named and unknown customers. The Crown case is based in part on telephone intercepts. On one known occasion you posted the heroin to a customer in Horsham. You were arrested by officers of the police on 5 February 2004. At the time of your arrest, you had in your possession a quantity of heroin, scales and cash totalling $2,695. On 11 March 2004, a search warrant was executed at your then premises in Sunshine. A quantity of heroin was found and seized at those premises, namely seven grams with a purity upon scientific analysis of between 5 per cent and 70 per cent.
Count 4 relates to your trafficking in a drug of dependence namely cannabis L, in the period between 13 June 2003, and 11 March 2004. The Crown case is based upon telephone intercepts, they include conversations between you and a known drug trafficker by the name of Barbaro. On one occasion there was a discussion between you and Barbaro concerning a pound of marijuana (depositions p.2141). Again, when the search warrant was executed at your premises in Sunshine, a total of 674.8 grams of cannabis L, was seized.
Count 5 relates to your cultivation of a narcotic plant namely cannabis L on 11 March 2004. When the warrant was executed on that date at your premises, 13 cannabis plants were found totalling by weight, 33.7 grams.
Mr Wilson it is probably trite for me to say that trafficking in drugs of dependence is a most serious offence. In the periods we are here concerned with, you actively plied the trade of a drug trafficker ready and able to supply MDMA, as you believed the tablets involved in count 1 to be methylamphetamine, heroin and cannabis L. By your own actions you have clearly identified yourself as a consistent major trafficker of drugs in this city over the periods we are concerned with in respect of counts 1 to 4.
You stand to be sentenced as a principal offender and it would seem to be that you were very much the “captain” as it were of your own drug trafficking operation.
Wilson was sentenced to three years’ imprisonment on count 1, six years’ imprisonment on count 2, six years’ imprisonment on count 3, three years and six months’ imprisonment on count 4 and was fined $500 on count 5, making a total effective sentence of six years’ imprisonment. A period of four years and six months’ imprisonment was fixed before Wilson would become eligible for parole. The sentencing judge explained that he did not propose to order cumulation as he took the view that counts 1 to 4 were similar counts of trafficking in a drug of dependence each of which demonstrated the significant nature of the applicant’s trafficking operation.
The applicant had become a heroin user in the early 1990s and following the death of his father his usage increased. In 1999 he embarked upon a detoxification program and was diagnosed as being HIV positive. As a consequence he fell into deep depression and recommenced heavy drug use. At some undetermined stage thereafter he became actively involved in the drug trade as a trafficker, being described on the plea by his then counsel as ‘a very active trafficker but at a retail level’.
In addition to reconsideration of his sentence in the light of Barbaro’s sentences, the primary argument advanced on appeal was that the sentencing judge had erred in finding that Wilson consistently trafficked in a major or significant fashion, and had thereby elevated his role to a level of seriousness that equated with trafficking in commercial quantities at a wholesale level. It was accepted on appeal that Wilson’s conduct would properly be described as trafficking ‘at a consistent but largely retail level.’ I do not discern that the learned sentencing judge fell into error in concluding that Wilson was trafficking at a high level given the frequency of the transactions and the different drugs that he was capable of providing. The inference was plainly open that Wilson not only obtained drugs from Barbaro but had access to drugs through other sources. When he was requested by the covert, he was able to meet demands for wholesale amounts of drugs. The evidence warranted the conclusion that the applicant was a consistent and major trafficker of drugs who was essentially in charge of his operation.
It was not suggested that the sentencing judge had failed to sufficiently identify the relevant mitigatory factors in his reasons for sentence. These factors were relied upon without need for any further amplification on appeal. The sentencing judge took into account in mitigation of sentence, Wilson’s early plea of guilty, the fact that there had been a substantial delay between the detection of the offences and the imposition of sentence, his significant progress towards rehabilitation during that time, his family history and the medical reports concerning his HIV condition. The sentencing judge took into account that prison life would be more difficult for the applicant because of his underlying HIV condition which could be controlled on medication available within the prison system.
The sentencing judge accepted that the applicant had made significant improvements to his life in the two years preceding sentence and had overcome his drug habit. Part of the applicant’s rehabilitation had involved his relocation from Melbourne to Wangaratta where he was employed as a dog trainer in the greyhound industry. In the reasons for sentence, his Honour devoted considerable attention to the issue of Wilson’s prospects for rehabilitation which he described as cautiously optimistic.
I would re-sentence the applicant as follows:
Count 1
2 years’ imprisonment
Count 2
5 years’ imprisonment
Count 3
5 years’ imprisonment
Count 4
3 years’ imprisonment
I would order that three months of the sentence on count 1, six months of the sentence on count 3 and three months of the sentence on count 4 be served cumulatively upon the sentence imposed on count 2 and upon each other, making a total effective sentence of six years. I would order that the applicant serve a minimum period of three years and nine months’ imprisonment before he was eligible for parole. I would affirm the order made on count 5.
Parodi
The applicant, David Parodi, pleaded guilty to one count of trafficking in a drug of dependence, one count of cultivating a narcotic plant namely cannabis L and two counts of cultivating a narcotic plant, namely cannabis L.
The circumstances of each offence were described by the sentencing judge in these terms:
You first came to the attention of the authorities in 2003 as a result of a major police operation then being conducted by officers of the Major Drug Investigation Division of the Victoria Police. The principal target of this operation was a man by the name of Barbaro who was suspected to then have a major involvement in the trafficking of proscribed drugs in the State of Victoria.
Pursuant to a warrant, police intercepted telephone calls to Barbaro. Your involvement in drug trafficking activities was revealed in a number of intercepted calls.
In respect of count 1 which count relates to your trafficking in a drug of dependence, namely MDMA (ecstasy), the court notes that it has been agreed by the parties that there were a total eight calls made over the relevant period namely between 2 December 2003 and 10 December 2003 which relate to your involvement with Barbaro.
As to the quantity of MDMA tablets involved, the Crown allege that in total there were a couple of hundred tablets. At the committal haring on 31 January 2006 the informant most fairly conceded in cross-examination that in terms of involvement of the various persons we are here concerned with, your level of involvement was at the very bottom end of the scale in respect of the circumstances surrounding count 1.
In respect to count 2, it came to the attention of police that you and Barbaro were involved in what appeared to be a large scale cultivation of cannabis L at 668-690 Troups Road, Mount Cottrell. The crop was grown hydroponically in what must have been a complex and professional operation. Details of the equipment used can be seen in the booklet of coloured photographs, Exhibit A on plea.
The Crown is unable to provide evidence as to the extent of the cannabis L crop or as to the weight of the harvested crop. It would seem that as the crop reached maturity and was ready for harvesting, persons then unknown entered the premises at Troups Road and stole the entire crop. In this regard, it would appear that you may have been double crossed in effect by Barbaro who on balance may well have been the person responsible for the stealing of the crop. In regard to this offence, you are sentenced as it were as a principal offender and not as a mere labourer tending to the cultivation of the crop.
As to count 3, police executed a search warrant at your residence at Fawkner where a small amount of cannabis from a total of nine plants was discovered being cultivated by you. Of these nine plants, only three were mature enough to be scientifically identified as being cannabis L with a total weight on analysis of 2.7 grams. The Crown concedes that your method of cultivation of these plants was unsophisticated.
On count 1 he was sentenced to two years and three months’ imprisonment. His Honour noted that he had sentenced Parodi on the basis that his involvement was at the very bottom end of the scale of offending for that particular offence. On count 2, being the first count of cultivation, he was sentenced to three years and six months’ imprisonment. On count 3 he was fined $500. It was ordered that nine months of the term of imprisonment imposed in respect of count 1 be served cumulatively upon the term of imprisonment imposed in respect of count 2 making a total effective sentence of four years and three months’ imprisonment. It was ordered that Parodi serve two years and ten months’ imprisonment before becoming eligible for parole.
Count 2 is in almost identical terms to count 3 of the presentment to which Barbaro pleaded guilty. Parodi was a co-offender with Barbaro in the cultivation of the cannabis crop at Troups Road, Mount Cottrell. As to the sentence imposed on count 2, it was submitted by counsel for Parodi that as it was the same sentence as that imposed on Barbaro for the same offence, the sentencing judge must have assumed, wrongly, that he was bound to impose the same sentence between Parodi and Barbaro as a matter of parity.[26] Further, it was submitted that Count 1 was a very heavy sentence which did not accord with his Honour’s view that Parodi’s involvement was at the very lowest end of seriousness for offending of this type.
[26]Counsel for Parodi also adopted the erroneous argument advanced on behalf of Barbaro that the sentencing judge had wrongly taken into account that the cultivation was for purposes related to trafficking.
The respondent having conceded that the sentencing discretion must be reopened it is convenient to deal with other grounds of appeal which bear upon the sentences which were and which should be imposed.
The applicant relies upon the delay of approximately two-and-a-half years between the time that he was apprehended for this offending in March 2004 and the time of his sentence in August 2006. In that intervening period whilst the applicant was on bail, he had largely reordered his life. It had been submitted both on the plea and on appeal without demur from the respondent that this was demonstrated by his lack of involvement in further offending, his employment and his treatment for drug use. In plea mode on the appeal it was submitted that the applicant had demonstrated during the period of delay that he had taken positive steps towards his rehabilitation.[27] What ever the cause of the delay, its effect upon the applicant both on issues of rehabilitation and fairness constituted a powerful mitigating factor.[28] But the course of the plea in mitigation strongly suggests that the learned sentencing judge was well aware of the manner in which the delay was relevant for the purposes of sentencing. Both the prosecutor and counsel for the applicant submitted that it was relevant for the purpose of considering the prospects of the applicant’s rehabilitation and because it had been ‘hanging over the head’ of the applicant during that substantial period.
[27]See R v Miceli [1998] 4 VR 588; DPP v Taylor [2005] VSCA 222; R v Carmody (2006) 163 A Crim R 212, 215.
[28]R v Schwabegger [1998] 4 VR 649, 659, (Vincent AJA); R v Merrett Piggott and Ferrari [2007] 14 VR 392, 400 [35] (Maxwell P).
At the time of sentence Parodi was 41 years of age and was by occupation an aeronautical structural maintenance engineer. His Honour considered that the applicant’s prospects of rehabilitation were ‘cautiously good’ and that during his period on bail he had stopped smoking both nicotine and marijuana. He had been re-employed within the aviation industry. It was said on Parodi’s behalf that the sentences imposed upon him and in particular the non-parole period that was fixed which was in excess of two-thirds of the total effective sentence failed to reflect the extent of his reformation since he had been charged with these offences or his plea of guilty. It was not suggested that the sentencing judge had failed to make reference to these mitigating factors. The complaint was that they had received insufficient weight.
There were aggravating features of the applicant’s offending. The crop the subject of count 2 was at a residential rural property which had been specifically leased for the purpose of its cultivation. The house had been modified and the applicant had been actively involved in the renovations. Parodi also conceded on the plea that he had been heavily involved in the planting and cultivation of the marijuana crop and that his involvement was for commercial purposes as well as to obtain a supply of cannabis for his own personal use. The cultivation was, as I have observed in dealing with Barbaro’s role, a commercial activity for the purpose of profit. The applicant was properly to be regarded as a ‘significant player’ in the commission of that offence. Moreover he had indicated a willingness to be involved in other aspects of Barbaro’s drug business as indicated by count 1
I would resentence Parodi as follows:
Count 1
1 year and 6 months’ imprisonment
Count 2
2 years and 6 months’ imprisonment
I would order that six months of the sentence on count 1 be served cumulatively upon the sentence imposed on count 2 making a total effective sentence of three years’ imprisonment. I would order that he serve one year and nine months’ imprisonment before he is eligible for parole. I would otherwise confirm the fine imposed on count 3 and the other orders pronounced by his Honour.
Sallama
Matthew Sallama pleaded guilty to one count of trafficking in a drug of dependence and two counts of possession of a drug of dependence. On the count of trafficking in a drug of dependence he was sentenced to three years’ imprisonment. On the two counts of possession of a drug of dependence he was fined $750 and $250 respectively. He was ordered to serve a period of two years’ imprisonment before he was eligible for parole.
The applicant came to the attention of authorities as a result of the police operation in which Barbaro was the principal target. The circumstances of Sallama’s offending were conveniently set out in his Honour’s reasons for sentence in these terms:
On 9 December 2003 you telephoned Barbaro and you placed an order with him for 1,000 MDMA tablets (Ecstasy). You had apparently received a sample of 20 tablets at an earlier point in time and it would seem that you were satisfied with the sample. You agreed to meet with Barbaro at his premises, which you did. (depositions p.4128).
This court most comfortably draws the inference that at the time of your attendance at Barbaro’s premises you received from him a large quantity of MDMA tablets. It appears to be agreed that you did not receive the 1,000 MDMA tablets as ordered but rather some 500 MDMA tablets.
On 11 December 2003 you again telephoned Barbaro and you placed a further order for 2000 MDMA tablets. (Depositions p.4151).
On 13 December 2003 you telephoned Barbaro and agreed to meet him on that day at his premises. (depositions p.4152). Again this court most comfortably draws the inference that your purpose in attending at Barbaro’s premises was for the purpose of collecting the ordered MDMA tablets. The precise quantity of MDMA tablets so collected by you remains unknown save and except that it would appear to have been a large quantity given that your order for was for 2000 tablets.
By telephone call to Barbaro on 15 December 2003 you informed him that you had moved half of them and that you would bring him the cash. (depositions p.4168). Again the court most comfortably draws the inference that your reference to moving half of them refers to the MDMA tablets that you had earlier ordered and received from Barbaro.
On 23 December 2003 you again telephoned Barbaro and you placed an order this time for 5,000 MDMA tablets. You made a request for those tablets to be supplied to you as soon as possible, essentially before the New Year celebrations took place. You also had a discussion with Barbaro about some of the earlier MDMA tablets breaking up. You had a discussion with him about the logo to appear on the tablets. (depositions p.4221).
On 23 December 2005 (sic) you and Barbaro met at the Epping Plaza shopping centre. You had further telephone conversations with Barbaro on 24 December 2003. It would seem that the Crown concedes that Barbaro was unable to provide you with the ordered 5,000 MDMA tablets.
The Crown relies upon the evidence provided by the telephone intercepts in support of Count 1.
At all times relevant you resided at your present parents’ residence at 22 Apollo Road, Taylors Lakes. Police executed a warrant at those premises on, it would seem, 19 March 2004. A search of those premises demonstrated that you were in possession of a drug of dependence, namely, anabolic steroids. (Count 2). The anabolic steroids so seized were in the form of tablets, patches and liquid. The total weight of the substances so seized was 156 grams, a part thereof being the active ingredient.
The search of the premises also found you to be in possession of a very small amount of cannabis, namely .6 of a gram. (Count 3).
The applicant was 24 at the time of his offending. He had no prior convictions. It was submitted that when these facts were considered in conjunction with the applicant’s early plea of guilty, his remorse, his prospects of rehabilitation, the short period of his offending and the fact that he had ceased trafficking some three months before his arrest, his work history and the extensive support of his family, the sentence imposed was manifestly excessive. Reliance was also placed upon the delay between the offending and his sentence, counsel adopting the submission as to the significance of delay which had been advanced on behalf of other applicants and in particular, Parodi. These factors, it was said, also demonstrated that the non-parole period was manifestly excessive.
Each of the matters advanced in mitigation of penalty had been referred to by the learned sentencing judge but it was contended that insufficient weight had been given to these factors and that in fixing the sentence, the sentencing judge had been unduly influenced by the sentence which he was proposing to impose upon Barbaro on count 1.
Under ground 3 the applicant complained that the learned judge erred in finding that he collected a large quantity of the 2000 tablets which he ordered from Barbaro on 13 December 2003. The basis for his Honour’s reasoning is self-evident when one has regard to the transcripts which were relied upon in the course of the plea. They show that that the applicant in fact ordered two large quantities of MDMA tablets from Barbaro, that the applicant collected at least some part of the first order of 2000 tablets from Barbaro and made some payment, and that Barbaro had difficulty in obtaining Sallama’s second order which was for 5000 tablets. Counsel drew attention to another passage from his Honour’s remarks in which it had been said:
On your behalf [counsel] stated that you only received 527 MDMA tablets from Barbaro, being one lot of 500 and two sample lots of 20 and 7 respectively. Whether this was indeed the true situation this Court is quite unable to say.
His Honour’s findings to which I earlier referred, reflected the prosecutor’s opening of the facts upon which the Crown submitted that the applicant should be sentenced. It was only during the plea in mitigation that it was submitted from the Bar table that the applicant had only obtained 527 tablets from Barbaro. No evidence was called in support of this assertion. The respondent submits that there is no necessary inconsistency between the two statements made by the sentencing judge. I do not regard it as necessary to resolve this issue. Even if there was an inconsistency in the sentencing judge’s finding, the applicant by his own admission trafficked in a substantial quantity of the tablets and the telephone intercepts provide ample evidence that the applicant intended to traffick in and ordered even larger quantities of MDMA tablets.
In relation to count 3 it appears that the learned judge was misinformed as to the maximum penalty which applies to possession of .6 of a gram of cannabis, the sentencing judge having been told that the maximum penalty for count 3 was the same as count 2 – namely one year’s gaol or 30 penalty units or both. Under ground 6 it is alleged that the penalty should have been fixed by reference to the appropriate maximum penalty which was only five penalty units as the amount was not more than a ‘small quantity’.[29] The respondent agrees that his Honour fell into error and that the applicant should be resentenced on this count.
[29]See s 70(1), s 73(1)(a) and column 4 of Part 2 of Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981.
The applicant was engaged in the business of drug trafficking in a significant manner during December 2003. Although his supplier was Barbaro, the applicant was in charge of his own operation. No question of parity of sentence arises with that imposed upon Barbaro but the applicant falls to be sentenced on the basis that he trafficked in a substantial quantity of a drug of dependence and had sought to obtain even larger quantities of MDMA. His level of culpability must be assessed accordingly. Having regard to the various factors in mitigation of penalty which were referred to on the plea and were repeated on appeal I would sentence Sallama on count 1 to two years and nine months’ imprisonment and would fix a non-parole period of one year and six months before he is eligible for parole. I would confirm the fine imposed upon count 2 and would fine the applicant $100 on count 3 and would otherwise confirm the orders made by the sentencing judge.
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