R v Barri [2004] NSWCCA 221

New South Wales Court of Criminal Appeal

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 Lowe v R (1984) 154 CLR 606 CASES CITED : 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 COURT District Court JURISDICTION : LOWER COURT 02/41/0186; 02/41/0187 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

- 1 - IN THE COURT OF CRIMINAL APPEAL 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.