R v Barkho - [2005] NSWCCA 211

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Barkho [2005] NSWCCA 211

FILE NUMBER(S):
2005/342

HEARING DATE(S): 1 June 2005

JUDGMENT DATE: 09/06/2005

PARTIES:
Regina v Joseph Barkho

JUDGMENT OF: Studdert J Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0248

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
V. Lydiard (Crown)
P. Boulten SC (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
The Law Practice (Appellant)

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act, ss 21A, 44
Drug Misuse and Trafficking Act, s 33

DECISION:
Leave to appeal granted; appeal allowed; the sentence imposed upon the applicant is quashed and bringing into account the Form 1 offence, the applicant is sentenced to a term of imprisonment of five years three months to commence on 17 November 2003 and to expire on 16 February 2009, with a non parole period of three years six months to commence on 17 November 2003 and to expire on 16 May 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/342
STUDDERT J
HOWIE J
LATHAM J
Thursday 9 June 2005

REGINA v JOSEPH BARKHO

Judgment

STUDDERT J: On 2 June 2004 the applicant, Joseph Barkho, who had earlier pleaded guilty to one count of supplying a prohibited drug, namely methylamphetamine, in a quantity not less than the commercial quantity, was sentenced to six years imprisonment with a non parole period of four years. The applicant seeks leave to appeal against this sentence.
The offence is one in a category for which s 33(2) of the Drug Misuse and Trafficking Act provides for a maximum penalty of twenty years imprisonment or a fine of $350,000 or both. In addition to the offence charged in the indictment, the sentencing judge was asked to take into account a Form 1 offence of possession of cannabis.
The applicant was arrested on 15 May 2002 and was detained in custody until granted bail on 23 September 2002. He returned to custody on 26 March 2004. Hence there were 198 days spent in custody before the applicant was sentenced, and it was for this reason that the sentencing judge backdated the sentence he imposed on 2 June 2004 to commence on 17 November 2003. It is not contended that there was any error in this approach.
The objective facts relating to the offence charged were presented in summary form in a statement of facts, and the sentencing judge drew upon that statement in his outline set out in the remarks on sentence. I do not understand there to be any complaint made about the facts as summarised on pp 2-5 of the remarks on sentence, which I here incorporate:
“I now turn to the facts of this offence. I refer to these facts in summary. They were agreed as part of exhibit A tendered on behalf of the Crown under tabulation 2 in that exhibit. On 11 April 2002 a warrant was granted for the interception of mobile phone calls to a co-offender, William Odisho. A number…

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 Barkho

Details

AGLC: R v Barkho [2005] NSWCCA 211
Case: [2005] NSWCCA 211
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the case of R v Barkho, the defendant was convicted of drug trafficking offences under the Drug Misuse and Trafficking Act. The matter was heard in the Supreme Court of New South Wales. The central issue in this appeal was whether the trial judge correctly exercised his discretion in sentencing the defendant, taking into account the mandatory minimum sentencing provisions under the Crimes (Sentencing Procedure) Act. Specifically, the court had to determine whether the judge erred in failing to adequately consider the mitigating factors presented by the defence before imposing the mandatory minimum sentence.

The court examined whether the trial judge had correctly applied the principles set out in the legislation, particularly focusing on the balancing of aggravating and mitigating factors as required by section 21A of the Crimes (Sentencing Procedure) Act. The appeal also considered the applicability of section 44 of the same Act, which deals with the overall proportionality of the sentence to the crime. Additionally, the court reviewed the operation of section 33 of the Drug Misuse and Trafficking Act, which mandates a minimum sentence for certain drug trafficking offences, to ensure it was consistent with the principles of justice and proportionality.

The Supreme Court found that the trial judge had indeed erred in his sentencing approach by not adequately weighing the mitigating factors before imposing the mandatory minimum sentence. The court held that the trial judge should have considered the totality of the circumstances, including the defendant’s personal background and the potential for rehabilitation, before concluding that the mandatory minimum sentence was the appropriate response. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter to the trial judge for resentencing. The court emphasised the importance of a balanced and comprehensive sentencing process that takes into account all relevant factors, particularly in cases involving mandatory minimum sentences.

Orders