BARBARO v REGINA

R v Hathaway [2005] NSWCCA 368 CASES CITED: Postiglione v The Queen (1997) 189 CLR 295 R v Wickham [2004] NSWCCA 193

PARTIES: Guiseppe Barbaro (Appl) The Crown

COUNSEL: T A Game SC (Appl) D Arnott SC (Crown)

SOLICITORS: Kings Lawyers (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/550

McCLELLAN CJ at CL HALL J LATHAM J

WEDNESDAY 3 MAY 2006 BARBARO, Guiseppe Dom v REGINA Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty on indictment to a charge that between 16 August 2002 and 26 August 2002 at Sydney in the State of New South Wales and elsewhere he supplied a prohibited drug, namely methylamphetamine contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985. He also asked that one similar offence on a Form 1 of supplying 188 grams of methylamphetamine be taken into account. 2 The maximum penalty for each offence was imprisonment for 15 years. 3 The applicant seeks leave to appeal and relied upon five grounds.

The facts 4 A detailed statement of agreed facts was tendered at the sentencing hearing. His Honour made findings in accordance with the agreed facts in a summary form. His Honour found that the applicant rang his son Pasquale Barbaro, in Sydney, and asked him to supply the applicant with 300 methylamphetamine tablets. Pasquale told the applicant he could get 1,000 at a time and, after some negotiations, the applicant agreed to pay him for 1,000 tablets. Before he was arrested the applicant managed to distribute 300 of the tablets. The rest were recovered. The weight of the 1,000 tablets was close to 250 grams at a price per tablet of $10 to $12. 5 In relation to the matter on the Form 1 his Honour found that the applicant had arranged to supply his son with methylamphetamine in powder form of a total weight of approximately 7ounces. The applicant arranged for another person, Mr Kavanagh, to take the drugs to his son. Mr Kavanagh was arrested at Sydney airport with 188 grams, approximately 7 ounces, of methylamphetamine secreted on his person. 6 On 29 November 2002 the New South Wales police obtained warrants for the arrest of the applicant. However, execution of the warrants was delayed at the request of the Victorian Police who were conducting another investigation into offences allegedly committed by the applicant in Victoria. It was not until 12 March 2004 that the applicant was spoken to by Victorian police about these matters. 7 On 6 September 2004 a meeting was arranged between police, the applicant and his lawyer. On 7 September 2004 the applicant consented to extradition to Sydney. He was initially on bail but that was revoked on 22 September 2004 and the applicant remained in custody. 8 The applicant was originally to stand trial but following negotiations between his lawyers and the Crown the current charge was substituted for a previous charge. When the substitution was offered the applicant pleaded guilty. 9 The sentencing judge was provided with the applicant's criminal history. His Honour determined that it consisted of a variety of matters but included in it were three particularly relevant matters relating to drugs. The first of those matters was a conviction on 28 October 1985 for cultivating a prohibited plant. The applicant was convicted and fined $3,000 and placed on a good behaviour bond for three years. 10 The second matter was a conviction for the possession of cannabis resin for supply and possession of cannabis for supply. The applicant was convicted for those offences on 19 April 1987 and was sentenced to three years imprisonment on the first offence and two years imprisonment on the second offence to be served concurrently with a non-parole period of 18 months. 11 The third matter related to the possession, sale and supply of heroin for which the applicant was convicted on 11 May 1992. He was sentenced to five years imprisonment with a non-parole period of two years. 12 His Honour recognised that the offences were old matters and said the lapse of time since serving his sentence in respect of the 1992 matter might indicate in some circumstances that the applicant had undergone some rehabilitation. However, his Honour also said: "… in view of the commission of these offences it seems to me that I ought to take into account, as an aggravating feature, the fact of your prior criminal history. It indicates quite clearly that you are aware of the consequences of committing such offences. It is therefore a record which does not allow the Court to extend any leniency." 13 The sentencing judge gave consideration to relevant subjective matters. These included a report from a psychologist, Anna Robilliard, which concluded that the applicant does not suffer any psychological dysfunction and is at an age and stage in life where the more active elements of anti-social personality tend to remit. She found that the applicant is committed to his current partner and their two children. The psychologist records that the applicant was sincerely remorseful. 14 Notwithstanding the advice from Ms Robilliard the sentencing judge found that although the applicant had expressed remorse "that is not a particularly mitigating factor as it does not indicate any particular remorse for the offence committed, but rather indicates only that you feel sorry for the circumstances that you have got yourself into by reason of the commission of the offence." 15 His Honour also had a report in relation to the applicant's partner, Ms Anita Ciancio, who was aged 27 at the date of sentence. She has the care of their two young daughters and was the victim of an assault and kidnapping of the daughter Montana. Ms Ciancio was severely traumatised and apparently became fearful of strangers, of being away from home and of hearing sudden or loud noises. She has become hyper-vigilant and experiences problems sleeping, including nightmares, and her eating patterns have changed. A psychological report on Ms Ciancio indicates that her recovery from the trauma is being hindered by the applicant's absence which she finds very distressing. 16 In relation to these matters his Honour concluded that although the applicant's "family circumstances are more difficult and perhaps considerably more difficult than many of the families whose husbands, fathers and other relatives are imprisoned, it does not amount to hardship in the sense referred to in the authorities which would justify any appreciable mitigation of sentence." Nevertheless his Honour indicated that he would take that matter into account. His Honour also indicated that he would have regard to the fact that the applicant will spend at least part orf his prison sentence in New South Wales prisons away from Victoria and in particular, Melbourne where his family reside. 17 The evidence before the sentencing judge indicated that the applicant had committed the offences because of financial and other pressures from his family. He has a history of prior relationships and has financial responsibilities for a number of children. Having regard to the conclusion he had expressed in relation to the matter of remorse and conscious that the offences had been committed because of family pressures, his Honour expressed doubts as to whether the applicant had good prospects of rehabilitation. His Honour noted that the applicant was 48 years of age and although the evidence suggested that persons generally reduce their criminal activity as they age, his Honour concluded that "whether you decide to rehabilitate yourself is yet to be seen." 18 His Honour accepted that the applicant had pleaded guilty to this offence at the earliest opportunity. This was of course, true but only because, following negotiations in relation to another charge, the applicant was offered the opportunity to plead to the offence for which he was then being sentenced. His Honour accepted that the plea entitled the applicant to a reduction of 25% having regard to its utilitarian value. To my mind that conclusion was generous. 19 His Honour also had before him the remarks on sentence of Stewart ADCJ in the matter of Kavanagh. Stewart ADCJ imposed a suspended two year prison term. His Honour was satisfied that there was no question of parity with Kavanagh. 20 His Honour also had the remarks on sentence of his son Pasquale Barbaro who was sentenced by Sides DCJ on 30 September 2004. He was sentenced in respect of a number of offences of which the matters involving the applicant were only two. In respect of those matters Pasquale Barbaro was sentenced to six years imprisonment with a non-parole period of three years and in relation to the Form 1 matter was sentenced to imprisonment for 4½ years with a non-parole period of three years. Sides DCJ made the sentences for those matters and a number of other offences partially concurrent and partially cumulative with the effect that Pasquale Barbaro was sentenced to a head sentence of nine years with a non-parole period of six years. 21 The sentencing judge recognised differences between the applicant and his son. Pasquale Barbaro had no prior convictions for like matters although he did have an extensive criminal record. At the time of the commission of the offences Pasquale was on bail for offences in the Australian Capital Territory and Sides DCJ concluded that the offences that were revealed suggested a significant involvement in the drug trade. 22 The sentencing judge accepted that the overall criminal culpability of the applicant was less than that demonstrated by his son but that in relation to the particular offences their criminal culpability was equivalent. 23 In relation to the matter on the Form 1 the sentencing judge said: "The Court of Criminal Appeal has said in respect to matters to be taken into account on a Form One that where the offence or offences are serious the penalty imposed should reflect an increase over and above that which would have been appropriate had the Form One offence not been taken into account. I intend to implement that principle." 24 His Honour indicated that but for the plea of guilty the starting point for the non-parole period which he would have imposed was six years imprisonment with a head sentence of eight years. Having regard to the plea of guilty his Honour imposed a non-parole period of four years and six months with an overall term of six years. 25 There are five grounds of appeal.

Ground 1: The sentencing judge erred in treating the applicant's criminal history as an "aggravating feature" 26 I have related the sentencing judge's remarks in relation to the previous offences. 27 There are now a number of decisions which have discussed potential problems with the correct application of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. That section provides that an aggravating factor to be taken into account in determining the appropriate sentence for an offence includes "the offender has a record of previous convictions." 28 The difficulty identified in some decisions is the effective reconciliation of that requirement with subs (4) which provides that "the Court is not to have regard to any such aggravating … factor in sentencing if it would be contrary to any Act or rule of law to do so." 29 I discussed these difficulties in R v Hathaway [2005] NSWCCA 368. I need not repeat that discussion in these reasons but note that a five member bench has been convened later this month to consider the issues. 30 The applicant submitted that his Honour's reference to the criminal history as an "aggravating feature" is in error because of the manner in which some decisions of this Court have confined the influence which a prior criminal record may have in the sentencing process. In R v Wickham [2004] NSWCCA 193 Howie J indicated that the impact of s 21A(4) was to confine the relevance of a prior criminal record to the common law rule which is "that the prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and protection of the community." 31 Whatever be the ultimate resolution of the role which s 21A(2)(d) in the sentencing process I am not persuaded that in the present case his Honour has erred. Although his Honour remarked that he would have regard to prior offences as an aggravating feature, his Honour confined its influence to being "a record which does not allow the court to extend any leniency." In this respect, whatever the correct understanding of s 21A(2)(d) his Honour has not fallen into error.

Ground 2: The sentencing judge erred in his application of parity as it related to the sentences imposed on Pasquale Barbaro 32 His Honour expressly acknowledged that when sentencing the applicant he intended to ensure parity between the sentence he imposed and that which was imposed on his son, Pasquale Barbaro. As I have indicated Pasquale was sentenced for a number of matters which included the matter for which the applicant was sentenced and the count on the Form 1. The applicant received exactly the same head sentence as his son received in relation to one only of the matters for which the latter was sentenced, being count 3. On that matter Pasquale received a term of imprisonment of six years with a fixed non-parole period of three years. The ultimate sentence imposed on the applicant maintained a head sentence of six years but imposed a non-parole period of 4½ years. Of course, when sentencing the applicant, his Honour had regard to the matter on the Form 1 and also to the applicant's prior criminal history. 33 The overall sentence imposed on Pasquale was significantly greater than that imposed on the applicant, the head sentence being nine years with an effective non-parole period of six years. Although the son was sentenced for a greater number of offences, in my opinion, his Honour was correct to mark out the sentence imposed on the applicant by reference to the sentences imposed on his son in relation to the same matters. I am not persuaded that the sentence imposed on the applicant was in any way disproportionate to that imposed on his son: (see Postiglione v The Queen (1997) 189 CLR 295 at 301-302) or that the applicant is entitled to maintain a justifiable grievance.

Ground 3: The sentencing judge erred in how he dealt with the offence on the schedule 34 As I have related, the sentencing judge said when considering the matter on the Form 1: "The Court of Criminal Appeal has said in respect to matters to be taken into account on a Form One that where the offence or offences are serious the penalty imposed should reflect an increase over and above that which would have been appropriate had the Form One offence not been taken into account. I intend to implement this principle." 35 The applicant's complaint is that his Honour has not made clear the principles which he applied when giving consideration to the Form 1. The statement that the sentence should reflect an increase is said to be a statement devoid of principle. It is submitted that his Honour may have thought that he was sentencing for both offences. 36 In Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 this Court identified and explained the principles which are appropriate when a court is sentencing, having regard to a matter on a Form One. Spigelman CJ said at 159: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they might otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle totality is another. … The manner and degree to which the form on offences can impinge upon elements relevant to sentencing for the principle offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect of the sentence of taking into account Form One offences." 37 Further, at 162: "The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed. In my opinion, the issues that arise are broadly equivalent to those involved in the Crown deciding not to prosecute for the full range of offences open to it or to accept a plea to a lesser charge, albeit in the context of multiple, and often divergent, criminal offences.

By reason of the express statutory power, a sentencing judge must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences. There will be cases in which, for example, the administration of justice could be brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis. I do not intend the previous sentence to constitute a comprehensive statement of the circumstances in which the broad discretion vested in the sentencing judge by s 33(1)(b) can be exercised. Nevertheless, the role of the Court must be constrained, to ensure that the independence of the judicial office in an adversary system is protected. (Cf Maxwell v The Queen (1995) 184 CLR 501 at 513-514 and 534-535 .)

Striking the appropriate balance between overloading an indictment and ensuring that the indictment - leading to conviction and to sentence for, and only for, matters on the indictment - adequately reflects the totality of the admitted criminality, is primarily a matter for the Crown. The decision of the Crown in this regard will, no doubt, be guided by the determination in this case that, when matters are "taken into account" on a Form 1, the sentencing judge does not, in any sense, impose sentences for those offences. " 38 Although the sentencing judge in the present matter did not explain in any detail how he proposed to incorporate consideration of the Form One in the ultimate sentence, I am not persuaded that error has occurred. His Honour correctly identified that when having regard to matters on a Form 1 it may be expected that the sentence will be increased above that which would otherwise have been appropriate. In formulating the task in this way I am satisfied that his Honour had in mind the appropriate elements identified by the Chief Justice in the guideline judgment which I have referred to above.

Ground 4: The sentencing judge gave insufficient weight to the circumstances flowing from the kidnapping of the applicant's daughter 39 I am satisfied, as was the sentencing judge, that the applicant's partner and his children have suffered significantly from the kidnapping of their daughter. His Honour said that he would have regard to these matters and also take into account that the applicant would be required to serve part of his sentence in New South Wales when his family were living in Melbourne. However, I am not satisfied that the circumstances were such as to require a finding of exceptional circumstances justifying particular leniency in the sentencing process: (see R v Edwards (1996) 98 A Crim R 510). 40 Furthermore, the Court has today been informed that the applicant has now been moved to Victoria, where he continues to serve the current sentence, which thereby ameliorates the impact of the geographical separation from his family.

Ground 5: The sentence is manifestly excessive 41 I am not persuaded that the sentence which his Honour imposed was excessive. The offence to which the applicant pleaded guilty related to an amount of drug, "close to 250 grams" which was an indictable amount, although just under the commercial quantity. The matter on the Form One was also a serious offence and his Honour was required to have appropriate regard to the applicant's criminal history. Apart from the need to punish the applicant, it was necessary for the sentence to adequately meet the obvious need for personal deterrence and the protection of the community. 42 As I have already indicated, although the sentencing judge found that the applicant was entitled to a discount of 25% for the utilitarian value of his plea, it was not appropriate, in my opinion, to find that he pleaded guilty "at the earliest opportunity." He bargained to that position and a discount of no more than 20% as was applied by Sides DCJ when sentencing his son was well within the appropriate range. 43 I am not persuaded that any sentence other than that which was imposed was appropriate. 44 Although I would grant leave to appeal I would dismiss the appeal. 45 HALL J: I agree. 46 LATHAM J: I also agree. 47 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have indicated. **********

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