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Court of Criminal Appeal 6 July 2004

R v Barri

[2004] NSWCCA 221

Drugs
SEVERITY APPEAL TOTALITY PARITY WITH CO OFFENDERS IN ENTERPRISE

Citation: R v Barri [2004] NSWCCA 221
Court: Court of Criminal Appeal, New South Wales
Date: 6 July 2004
Judge(s): Beazley JA, Dowd J, Greg James J

Background

The appellant was convicted on two charges under the former Justices Act 1992 of supplying cocaine and ecstasy, and pleaded guilty on indictment to taking part in the manufacture of methylamphetamine. The offences arose from an investigation into drug supply and manufacture in the Illawarra region, during which police intercepted over 8,000 telephone calls across a five-month period and executed search warrants on multiple premises.

The appellant operated as part of a family enterprise, using nephews to deliver drugs and working alongside a co-offender named Ayoub. The supply network reached more than 30 purchasers and involved cocaine, ecstasy, amphetamines, and precursor substances. Additional offences, including possession of a drug precursor and conducting drug premises, were taken into account on a Form 1 at sentencing.

In the District Court, Phelan DCJ imposed fixed terms of three years for the two supply charges, to be followed by a cumulative four-year term for the manufacture offence, with a non-parole period of two years. The total effective sentence was seven years with a non-parole period of five years. The appellant sought leave to appeal against the severity of these sentences.

  • Whether the sentencing judge impermissibly took into account material beyond the agreed statement of facts, including statements potentially additional to or inconsistent with those agreed facts
  • Whether the sentence satisfied the principle of totality, particularly the relationship between the non-parole period and the head sentence
  • Whether parity required a lesser sentence given the sentences imposed on co-offenders involved in the same enterprise

Decision

On the question of additional material, the Court found that while the Crown tendered a substantial volume of statements and other documents alongside the agreed facts, the sentencing judge had made clear that this material was received as background factual context rather than as evidence in support of the charges. The Court was satisfied that his Honour's sentencing remarks were consistent with the agreed facts and that no material error arose from the receipt of this additional material.

On totality, the Court held that the structure of the aggregate sentence was appropriate. The individual sentences, though cumulative, reflected the serious nature of the offences and the principles of denunciation and condemnation. The Court noted that section 44 of the Crimes (Sentencing Procedure) Act 1999, which governs the ratio of non-parole periods to head sentences, applies to individual sentences rather than to an accumulation of sentences, and therefore no error arose in the overall proportionality of the non-parole period.

On parity, the Court was not persuaded that the sentences imposed on co-offenders required any reduction in the appellant's sentence. The appellant's role in the enterprise was assessed on its own circumstances, and no unjustifiable disparity was established.

Greg James J added a separate observation about a practice that had caused difficulty in this case: the Crown tendering agreed facts by consent and then also tendering large volumes of additional primary material. His Honour noted that this practice creates a real risk of conflict between the agreed facts and the additional material going undetected, and expressed the view that material should only be tendered if it is to be used, and if it departs from agreed facts, the sentencing judge should be assisted with an explanation of how any difference is to be reconciled.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that additional material tendered at sentencing beyond an agreed statement of facts does not automatically result in appealable error, provided the sentencing judge's reasons remain consistent with the agreed facts and the material is not impermissibly relied upon.
  • Section 44 of the Crimes (Sentencing Procedure) Act 1999, governing the proportion between non-parole periods and head sentences, applies to individual sentences and does not operate to constrain the overall non-parole period resulting from an accumulation of sentences.
  • No error was established in the application of the totality principle where cumulative sentences reflected the serious and sustained nature of drug supply and manufacture offences involving multiple participants and a large number of purchasers.
  • Parity with co-offenders does not automatically entitle an appellant to a lesser sentence; the appellant's individual role and circumstances must justify any reduction before a disparity becomes unjustifiable.
  • Greg James J's separate observations put courts and practitioners on notice that the practice of tendering voluminous primary material alongside agreed facts is inconvenient, risks subverting appropriate admissions and pleas, and is unlikely to assist a busy sentencing judge in identifying and resolving conflicts in the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Justices Act 1992 (NSW), s 51A

Cases:
- 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 February 1992)