R v Barbaro [2009] VSCA 89

Court of Appeal (Vic)|2009-05-04|Before: VINCENT and WEINBERG JJA and COGHLAN AJA

CRIMINAL LAW - Sentence - Conspiracy to traffick in a commercial quantity of a drug of dependence - Parity - Appeal allowed - Sentence of 2 years with 15 months suspended for 3 years.

1 The appellant was sentenced in the County Court at Melbourne, on 5 November 2008, on one count of conspiracy to traffic in a commercial quantity of a drug of dependence, namely phenyl-2-propanone. This material is used in the manufacture of methylamphetamine.

2 For present purposes, the circumstances relating to his involvement in what must be regarded as extremely serious criminal activity have been sufficiently set out in the judge's sentencing remarks:

George Peters was an experienced manufacturer of methylamphetamine. His usual method of manufacture of methylamphetamine involved the conversion of phenyl-2-propanone into methylamphetamine using another chemical, methylamine.

Shane Moran was known to Peters as a supplier of chemicals. He agreed to supply Peters with methylamine and with phenyl ascetic acid for Peter to convert into phenyl-2-propanone and use the methylamine to convert phenyl-2-propanone into methylamphetamine. A quantity of the finished product would be provided to Moran.

You were an associate of Shane Moran. On 15 April 2006, you met with Peters at the Waterloo Hotel in Maribyrnong. You attended the meeting on behalf of Moran and you had with you a 20 litre tub of phenyl ascetic acid and a 20 litre drum of methylamine.

These chemicals were loaded into Peters' car and you went with Peters to premises at 12 Lloyd Street, Strathmore. Peters had taken possession of the premises on that day with the intention of establishing a clandestine laboratory there. For the remainder of the day, you assisted Peters to obtain necessary tools, fittings and equipment to set up the laboratory.

The agreement was that Peters would use the methylamine supplied by Moran to convert the phenyl ascetic acid, also supplied by Moran into phenyl-2-propanone.

You were a party to this agreement. Your role pursuant to the agreement was to deliver the two chemicals to Peters and then to nurse it or guard it while the manufacturing took place to ensure that Moran, as it was said, was not ripped off. You were instructed to say until the phenyl acetic acid had been converted to phenyl-2-propanone. You knew that Peters was a drug manufacturer and that he was setting up a laboratory in the Strathmore premises.

Peters worked setting up the laboratory over the following week. He was assisted by Frank Ahec. You also assisted them, unloading glassware, chemicals and equipment.

By 21 April 2006, the laboratory was ready and Peter commenced producing methylamphetamine. He used phenyl-2-propanone that he had produced in a previous laboratory in Preston. Ahec assisted him in the manufacturing process. You were present in order to take care of the chemicals supplied by Moran but did not take part in the manufacture of the methyl amphetamine.

On the morning of the following day, 22 April 2006, you left the premises taking with you the phenyl acetic acid but leaving the methylamphetamine. Later that day, Peters and Ahec were arrested, you were interviewed and arrested on 17 May 2006 and detained in custody until 29 May 2006, some 13 days.

In the very thorough plea made on your behalf by your counsel, Mr Korn, one matter that has not been explained is how you came to be involved in this crime and why you became involved. Apparently you had known Shane Moran for much of your life. However, the commission of this offence was not an impulsive error of judgment. It was a chosen involvement by a 32 year old man in a serious criminal venture.

While no material has been placed before me as to your motivation or of any benefit that you received or expected to receive, you were under no misconception about what Peters was doing and what you agreed to be involved in. This was not a small venture. The 20 litre tub of phenyl acetic acid that you agreed to deliver to Peters and to watch over was capable of being converted to approximately 14 litres of phenyl-2-propanone, the equivalent of approximately six or seven times the quantity of two kilograms defined as a commercial quantity of the drug.

3 The appellant was aged 32 years at the time of the commission of the offence. He had no prior convictions, and, it appears, apart from a period of disability occasioned by serious leg injuries, has worked regularly as a qualified spray painter. He completed a four-year apprenticeship in that trade. In short, prior to the commission of this offence, there was nothing to suggest that he was other than a person of good character. It is also to be noted that, in the period of approximately two-and-a-half years that he was at liberty on bail following his arrest, the appellant married and established a quite successful spray-painting and panel-beating business which, by the date of sentencing, had five staff.

4 The judge accepted that the appellant was a hard-working, quiet-natured person and a good-quality tradesman who was committed to his work and his family. His Honour found that his statement that 'I will never be in trouble again' was likely to be true and took into account the appellant's plea of guilty, which he considered was consistent with the presence of genuine remorse in the circumstances.

5 With respect to the appellant's motivation for becoming involved in this extremely serious form of criminal conduct, his Honour accepted that, although no explanation was proffered, it may have been due to what he called 'an error of judgment', but he also pointed out that if that was the case, it was neither a momentary or impulsive lapse.

6 After consideration, his Honour imposed a sentence of imprisonment for two years and nine months, the service of two years of which was suspended for an operative period of three years. He stated that, but for the entry of a plea of guilty, he would have imposed a term of imprisonment of three years with a non-parole period of two years.

7 It will be seen that in the narrative of the circumstances set out above, there was reference by his Honour to the role played in the activities by a man named Frank Ahec. This person had already been sentenced by the judge for his participation in this and other offences. His role and the sentence imposed in his case were, accordingly, the subject of a deal of attention in the course of the plea hearing. In written submissions opening the matter before the sentencing judge, the prosecutor stated:

Frank Ahec pleaded guilty to two counts of trafficking a commercial quantity of a drug of dependence, namely methylamphetamine. The counts related to his involvement in the Strathmore laboratory, and the earlier Preston laboratory. He was sentenced to a total effective sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months, with two years of the overall sentence referable to the Strathmore laboratory. It is acknowledged by the prosecution that Ahec fell to be sentenced for substantially more serious offending than does the prisoner in this case.

8 Then, in the course of the hearing, the judge was reminded that he had earlier sentenced Ahec, the prosecutor pointing out that:

He did have a substantial history and furthermore his offending occurred when he was actually on parole for other offences. He pleaded guilty to two counts of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, one count for each of the laboratories, Preston and Strathmore, so his overlap with this prisoner is in relation to the Strathmore laboratory, but he, Ahec, pleaded guilty to trafficking a commercial quantity of methylamphetamine in relation to the one amount of methylamphetamine that was produced at that laboratory, and I have already mentioned that in the opening. In respect of the Preston laboratory, he had involvement in a number of cooks that occurred at that laboratory.

9 Counsel for the appellant also provided the judge with a written submission, and he too dealt with the sentence handed down upon Ahec. In his document, he argued:

I rely upon the concession by the learned Crown that 'it is acknowledged by the Prosecution that Ahec fell to be sentenced for substantially more serious offence than does the prisoner in this case'.

Accordingly with the greatest of respect to Your Honour, we would submit that the starting point for any starting sentence for this prisoner must be substantially less than the starting point for the sentence imposed by your honour upon the prisoner Ahec.

One understands immediately that sentence is not and cannot ever be arrived at as a result of a mathematical exercise. The High Court has made this position abundantly clear that a Judge's first task in approaching sentence is to approach that task from the intuitive perspective.

On that basis, Your Honour, two years out of the effective sentence of four years was referable to the Strathmore laboratory.

If Your Honour accepts that this is a relevant line of reasoning, Your Honour may well consider that the starting point for maximum sentence might therefore be a sentence of two years imprisonment.

Further, Your Honour might take the view, accepting the concession from the Crown, that this prisoner stands to be sentenced for substantially less serious offending than the prisoner Ahec did, that in those circumstances, the head sentence in respect of this prisoner for his involvement in the Strathmore laboratory should be a figure or indeed, must be a figure, of less than two years.

Again, unassisted by the transcript of the sentencing remarks from Your Honour in respect of the Ahec decision, I nevertheless understand that Ahec had a significant prior criminal record. If that in fact be the case, that might assist Your Honour in coming to the view that the approach that I have urged upon your honour, is not without merit.

If this process of reasoning finds favour with Your Honour, then I would respectfully suggest that there must be a discernable diminution in the head sentence as between Ahec and this prisoner, for the Strathmore laboratory.

If Ahec's sentence in effect for the Strathmore laboratory was a head sentence of two years, then an appropriate recognition of the differing levels of criminality between the two person might well take Your Honour to the point of view that a sentence by way of head sentence of 18 months or less is the appropriate starting point for the prisoner in this case, in respect of his involvement in the Strathmore laboratory.

10 These propositions were repeated orally in the hearing, with the prosecutor responding ultimately to the judge that:

... because you passed a sentence on that count relating to Strathmore of two years doesn't mean that that represents a ceiling for the sentence to be passed on the prisoner in this case, although I'm not suggesting that you shouldn't carefully take it into account.

11 Surprisingly, apart from the mention of Ahec in the narrative set out earlier, his Honour made no reference to any of these submissions or to the need to address the principle of parity of co-offenders in the circumstances.

12 In this Court, counsel for the Crown has conceded that his Honour appears to have overlooked this aspect, and he accepts that the appellant should be re-sentenced. In my view, those concessions were properly made. In a matter in which no reference was made by his Honour to the parity principle, and allowing for the possibility that there may have been some moderation of the sentence imposed by him on Ahec in order to arrive at an appropriate total effective sentence in his case, it is difficult to see that his Honour directed attention to it or how its proper application could ever have resulted in the imposition of a longer term of imprisonment upon the appellant than that handed down on Ahec for the Strathmore offending, given the respective backgrounds and levels of involvement of the two men.

13 Nevertheless, as the sentencing judge pointed out, the appellant's participation arose from what could euphemistically be designated as 'an error of judgment'. As he stated it was

an error of a very serious kind. It involved entering into an agreement to deliver chemicals to a manufacturer of illicit drugs, and then remaining with him and the chemicals in order to safeguard the interests of Moran.

14 In my view, the sentences imposed upon both Ahec and the appellant were very lenient indeed, and, were it not for the necessity to apply the principle of parity,

I would have proposed that this appeal should be dismissed. I should also add that I consider that the sentence that his Honour would have imposed, had not the appellant pleaded guilty, was an appropriate one in the circumstances. However, bearing in mind the necessity to apply the parity principle, I would set the sentence aside and substitute one of imprisonment for two years, the service of 15 months of which would be suspended for an operative period of three years from the date of sentence in the court below. Notwithstanding that the sentence of two years proposed would be the same as that handed down in the case of Ahec, any lesser sentence would, I consider, be manifestly inadequate in the circumstances.

15 I agree. I would add that any sentence that required the appellant to serve a term of less than nine months' actual imprisonment would rightly be regarded as derisory and utterly fail to give effect to the dominant sentencing principle applicable in this case, that of general deterrence.

The sentence imposed in the court below is quashed and in lieu thereof the appellant is sentenced to imprisonment for a period of two years, the service of 15 months of which it is directed be suspended for an operative period of three years from the date of sentence in the court below.

It is declared that the period of 153 days that the appellant has undergone to date be reckoned as having been served under the sentence and it is directed that this declaration and its details be entered in the records of the Court.

At a glance

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Judgment (26 paragraphs)

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