R v Barri - [2004] NSWCCA 221

CITATION: R v Barri [2004] NSWCCA 221

HEARING DATE(S): 8 April 2004

JUDGMENT DATE:
6 July 2004

JUDGMENT OF: Beazley JA at 1; Dowd J at 2; Greg James J at 56

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: Severity appeal - material taken into account in addition to agreed facts - totality - parity with co-offenders in enterprise

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Justices Act 1992

CASES CITED: Lowe v R (1984) 154 CLR 606
R v Canino [2002] NSWCCA 76
R v Howard (1992) 29 NSWLR 242
R v Watson (unreported) NSWCCA, 25/02/92

PARTIES :
Omar Sharif Barri
Crown

FILE NUMBER(S): CCA 60028/04

COUNSEL: Appellant: Mr P Byrne SC
Crown: Mr P Ingram

SOLICITORS:

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0186; 02/41/0187

LOWER COURT
JUDICIAL OFFICER : Phelan DCJ

- 1 -

060028/04

BEAZLEY J
DOWD J
GREG JAMES J

Tuesday, 6 July 2004

OMAR SHARIF BARRI v REGINA

Judgment

1 BEAZLEY JA: I agree with Dowd J.

2 DOWD J: The applicant sought leave to appeal against severity of sentences imposed on him by JB Phelan DCJ on 13 June 2003, for two charges under s51A of the former Justices Act 1992; first, that he did Supply cocaine; and, secondly, that he did Supply ecstasy tablets. The applicant was also sentenced by his Honour after a plea of guilty on an indictment that he did take part in the Manufacture of methylamphetamine. Each of those offences carried a penalty of imprisonment for 15 years and/or a fine of $220,000.

3 The matter on indictment took into account, on a Form 1, offences of: Supplying amphetamine; Possessing a precursor to amphetamine; namely Sudafed tablets; Conducting Drug Premises at Mt St Thomas; and Possessing a Prohibited Drug, namely hydroxybutanoic acid. In relation to the first committal charge, the agreed facts were that the applicant supplied 8.7 g of cocaine to an individual. The second charge on that committal was for the supply to an individual of a total of 137 to 138 drug units of ecstasy.

4 The applicant was sentenced to imprisonment on counts 1 and 2 to fixed terms of three years to commence on 16 August 2001 and expire on 15 August 2004. On the matter on indictment, taking into account the matters on the Form 1, the applicant was imprisoned for four years, being cumulative, to commence on 16 August 2004 and expire on 15 August 2008. That latter offence carried a non-parole period of two years from 16 August 2004, expiring on 15 August 2006. The total of the fixed terms taken with the term of the non-parole period of two years, being cumulative, made a non-parole period of five years with an additional term of two years, amounting to a total sentence of seven years.

Facts

5 As a result of information that the applicant and other family members were involved in the supply and manufacture of prohibited drugs in the Illawarra area, a telecommunications warrant was issued…

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 Barri

Details

AGLC: R v Barri [2004] NSWCCA 221
Case: [2004] NSWCCA 221
Decision Date: 6 July 2004

CaseChat Overview and Summary

The matter of R v Barri involved an appeal against the severity of sentence imposed by the County Court on the defendant for various charges related to drug trafficking. The Court of Appeal was tasked with reviewing the appropriateness of the sentence given the totality of circumstances and the parity principle with co-offenders.

The primary legal issues before the Court of Appeal included whether the County Court erred in taking into account additional material beyond the agreed facts when assessing the severity of the sentence, and whether the principle of parity with co-offenders had been correctly applied. The court had to determine if the sentence imposed was proportionate to the defendant's role in the enterprise and his culpability relative to his co-offenders.

The Court of Appeal found that the County Court did not err in considering additional material that was relevant to the sentencing process. It was held that the totality approach, which allows for a comprehensive assessment of the offender's culpability and the circumstances of the offence, was appropriately applied. The court also confirmed that the principle of parity, which requires consideration of the relative culpability of co-offenders, had been correctly implemented. The Court of Appeal concluded that the sentence was proportionate to the defendant's role and culpability within the context of the criminal enterprise. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders