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Court of Criminal Appeal 3 May 2006

BARBARO v REGINA

[2006] NSWCCA 180

Drugs
CRIMINAL LAW SUPPLY OF A PROHIBITED DRUG METHYLAMPHETAMINE APPEAL AGAINST SENTENCE WHETHER A CORRECT APPLICATION OF S 21A PARITY

Citation: Barbaro v Regina [2006] NSWCCA 180
Court: New South Wales Court of Criminal Appeal
Date: 3 May 2006
Judge(s): McClellan CJ at CL; Hall J; Latham J

Background

The appellant pleaded guilty in the District Court to supplying approximately 250 grams of methylamphetamine, just under the commercial quantity threshold. A separate supply offence involving 188 grams of methylamphetamine was taken into account on a Form 1 (a document listing related offences to be considered at sentencing without being the subject of a separate conviction). The appellant had arranged for a courier to carry the drugs to his son in Sydney, and the courier was arrested at Sydney airport.

The appellant had a significant criminal history involving drug offences dating back to 1985, including prior convictions for cultivation, supply of cannabis, and the possession, sale, and supply of heroin. He was sentenced in the District Court by Dodd DCJ and sought leave to appeal against the sentence imposed.

At the time of sentencing, the appellant's partner was severely traumatised following the kidnapping of their daughter, and the couple's two young children were in her care. The family was based in Melbourne, while the appellant was serving his sentence in New South Wales.

  • Whether the sentencing judge correctly applied section 21A of the Crimes (Sentencing Procedure) Act 1999 in identifying aggravating and mitigating factors
  • Whether the sentencing judge erred by treating the appellant's prior criminal history as an aggravating feature
  • Whether there was a parity issue arising from the sentence imposed on the appellant's son for related offending
  • Whether the sentencing judge correctly took into account the Form 1 offence
  • Whether insufficient weight was given to the family hardship caused by the kidnapping of the appellant's daughter
  • Whether the sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed all five grounds. On the criminal history point, the Court found no error in the sentencing judge treating the appellant's prior drug convictions as an aggravating feature. Although the convictions were old, they were directly relevant and indicated the appellant was well aware of the consequences of drug offending.

On parity, the Court found no relevant disparity between the appellant's sentence and that of his son. The two offenders were not in materially comparable positions, and any difference in sentencing outcomes was explicable by their differing circumstances.

On the Form 1 matter, the Court found the sentencing judge had correctly followed the guideline judgment approach, keeping the Form 1 offence in mind as context without allowing it to distort the overall sentencing exercise.

Regarding family hardship, the Court accepted the appellant's partner and children had suffered significantly. However, the circumstances did not rise to the level of exceptional hardship required by the authorities to justify particular leniency in sentencing. The Court also noted that, by the time of the appeal, the appellant had been transferred to a Victorian prison, which reduced the impact of his geographical separation from his Melbourne-based family. On manifest excess, the Court was not persuaded the sentence was outside the appropriate range, noting the seriousness of the offending, the need for personal deterrence, and the weight of the criminal history.

Orders Made

  • Appeal dismissed (leave granted but appeal dismissed on all grounds)

Key Takeaways

  • Prior drug convictions, even if dated, may legitimately be treated as aggravating factors at sentencing where they demonstrate ongoing awareness of the consequences of drug offending.
  • A 25% discount for the utilitarian value of a guilty plea was described by McClellan CJ at CL as "generous" in circumstances where the plea arose only after charge negotiation, suggesting the appropriate discount in such cases may be closer to 20%.
  • Family hardship must reach a level of exceptional circumstances before it will justify appreciable mitigation of sentence; distress caused by the imprisonment itself, and even significant trauma to a partner, will not ordinarily suffice.
  • In dismissing the parity ground, the Court confirmed that sentencing comparisons require material similarity between offenders, and differences in role, background, and criminal history can justify different outcomes.
  • Where a Form 1 offence is taken into account at sentencing, the correct approach is to have regard to it as contextual information without allowing it to impermissibly inflate the sentence for the principal offence.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- R v Hathaway [2005] NSWCCA 368
- Postiglione v The Queen (1997) 189 CLR 295
- R v Wickham [2004] NSWCCA 193
- R v Edwards (1996) 98 A Crim R 510