R v Barbaro

Judgment

1. [1]

   HIS HONOUR: Pasquale Barbaro ("the applicant") applies for bail. The Crown opposes the application. The charges he faces are the manufacture of not less than the commercial quantity applicable to a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMT Act") and participation in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW).

2. [2]

   The details of the charge contrary to s 24(2) DMT Act provided in the court attendance notice are: "...that Pasquale Timothy Barbaro between the 1st day of October 2010, and the 16th day of November 2011, at Cobbitty and Parkesbourne, in the State of New South Wales, did manufacture an amount of a prohibited drug, to wit, two kilograms of amphetamine which was not less than the commercial quantity applicable to that prohibited drug."

3. [3]

   Apart from the provisions of s 32 Bail Act 1978 (NSW) that apply to all bail applications, an offence contrary to s 24(2) DMT Act falls within s 8A of the Bail Act. Section 8A(2) of the Bail Act provides: "A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the ...court that bail should not be refused."

4. [4]

   The court was informed that should the applicant be granted bail, he has two acceptable persons who are prepared to provide security in an amount in the vicinity of $1,000,000. In ex 2, Cheryl Gilroy, the applicant's mother, states that she is willing to provide surety with a house in Canberra that is valued at $870,000 with a mortgage of $300,000. Relevant principle

5. [5]

   It is well established that s 8A places a heavy burden upon an applicant to satisfy the court that bail should be granted: Commonwealth Director of Public Prosecutions v Germakian [2006] NSWCA 275; (2006) 166 A Crim R 201. Considerations under s 32 are generally given less weight and more weight is placed upon the strength of the Crown case, which is the prime consideration: R v Kissner (Supreme Court of New South Wales, Hunt CJ at CL, 17 January 1992, unreported). The Crown Case

6. [6]

   The Crown alleges that the applicant was one of the principal financiers and organisers of a syndicate that manufactured amphetamine - type substances, including methylamphetamine at "Lord Ben Farm", a race-horse training facility at Cobbitty and a property at Parkesbourne owned by Giuseppe Fedele. Other than the applicant, the Crown alleges that Giuseppe Fedele, Carmelo Micalizzi, Stefano Labbozzetta, the applicant's brother Rossario Barbaro and Paul Papavasiliou were participants in the criminal enterprise. A summary of evidence that is said to be specific to the applicant includes:

7. [1]

   The applicant asking Papavasiliou to crystallise litres of methylamphetamine oil for him.

8. [2]

   Micalizzi informing Papavasiliou that the applicant needed a quick turn-over of product as he had borrowed $400,000 or $600,000 and needed to repay the debt. The applicant had informed Papavasiliou that he had borrowed $600,000.

9. [3]

   During a meeting at the Bringelly shops, the applicant informed Papavasiliou that he and Micalizzi had been trying to obtain a litre of hypophosphorous acid but that a male person had only been willing to sell 20 litres at a time and the applicant did not wish to be stuck with a large amount of low quality hypophosphorous acid.

10. [4]

    During a meeting with Micalizzi, Papavasiliou and Rossario Barbaro, the applicant explained that he had mixed the "gas" (methylamphetamine) with the "ice" (crystal methamphetamine) and had lowered the quality by doing so. The applicant and Rossario Barbaro stated that they were pleased with the quality of the amphetamines which they had made at Fedele's property at Parkesbourne.

11. [5]

    The applicant provided two or three bags of a white sugar-like substance labelled with the letters "SNS" or " S and S" or similar whilst stating "this is what we use to cut it with" to Papavasiliou. The applicant instructed Papavasiliou to take the bags of the cutting agent to show them to Fedele. When Papavasiliou did so, Fedele showed him other similar bags and said that the applicant had sold these bags to him. It is the Crown case that the bags contained methylsulfonyl -methane, a white crystalline substance that is commonly used as a cutting agent in the manufacture and sale of methylamphetamine. During the same meeting with the applicant, the applicant weighed two separate square containers of pseudoephedrine and stated that the total weight was 1,116 grams, for which he had paid $110,000 - $120,000.

12. [6]

    The applicant, whilst with his brother Rossario, made the decisions in relation to payment of the drug proceeds to the "cooks" for their work. These payments included part of the manufactured drugs.

13. [7]

    At a night time meeting in Papavasiliou's unit, the applicant provided a printed document with instructions in relation to the method for manufacturing hypophosphorous acid, which is a precursor chemical used in the manufacture of amphetamines. The applicant manufactured the hypophosphorous acid, assisted by Micalizzi, on a portable stove provided by Fedele and the mixture was put into a freezer.

14. [8]

    The applicant, with his brother Rossario and Micalizzi attended Papavasiliou's unit with a 20 litre container of hypophosphorous acid. The applicant said that it was worth around $3000 per litre and tested it using flakes of iodine. He poured the hypophosphorous acid into glass flagons with the assistance of Rossario.

15. [9]

    A manufacture took place in the shed inside the round-yard at the Lord Ben Farm during which 1,116 grams of pseudo was "cooked". Micalizzi informed Papavasiliou that he had taken the resultant uncrystallised methylamphetamine oil to the applicant. Micalizzi later alleged that there was only 774 millilitres of oil and that the applicant was unhappy with this.

16. [10]

    The applicant with his brother Rossario and Micalizzi attended the farm with a substance that looked like pseudoephedrine powder. They tested the powder and found that it was not pseudoephedrine. Micalizzi subsequently told Papavasiliou that the applicant had "taken care of" the person who had supplied the powder.

17. [11]

    Micalizzi told Papavasiliou that an unknown male had completed an unsuccessful "cook" for the applicant, who had chased and bashed the male. Micalizzi produced a piece of paper, with a series of steps in a manufacture process and stated that was the process used by the person, the applicant had chased.

18. [12]

    The applicant, with Rossario and Micalizzi requested that Papavasiliou hand over any iodine or hypophosphorous acid that he had in his possession. Fedele had told him that the wife of an associate was speaking to police about their criminal activities.

19. [7]

    The Crown also places reliance on the location at the Lord Ben Farm and at Parkesbourne of items alleged to be laboratory equipment for the manufacture of prohibited drugs and upon the statement of Peter Ballard, an analytical chemist.

20. [8]

    In his statement at paragraphs 20-21, Mr Ballard calculates the total weight of pure pseudoephedrine in the items seized by police at the Lord Ben Farm to be 120g. Seized item H001 which contained a thin layer of toluene, containing pseudoephedrine, over a quantity of strongly alkaline liquid was in Mr Ballard's opinion, waste product that was likely to have been generated from the extraction of at least several hundred grams of pseudoephedrine. Mr Ballard expresses the opinion that "several hundred grams of pseudoephedrine would, in theory, be capable of manufacturing several hundred grams of methylamphetamine." He opines at paragraph 28 that "in theory, 120.5g of pure pseudoephedrine could manufacture 108.8g of pure methylamphetamine."

21. [9]

    Mr Ballard mentions at paragraph 30 that the items seized from Parkesbourne consisted of three 20 litre Handypails containing a total of more than 64kg of strongly alkaline liquid that was the waste product from the extraction of pseudoephedrine from cold and flu medication. The liquid in each Handypail was found to contain less than 0.05% pseudoephedrine. Mr Ballard is of the opinion that this amount of waste product is likely to be generated from the extraction of at least several hundred grams of pseudoephedrine which would, in theory, be capable of manufacturing several hundred grams of methylamphetamine.

22. [10]

    When a search warrant was executed at the applicant's Leichhardt unit on 16 November 2011, documents pertaining to the properties of and safe handling of methylamine and 4-methoxyphenylacetone were found. The documents were issued by a chemical company in India. It is the Crown case that methylamine is commonly used in the manufacture of methylamphetamine and that both of these chemicals can be combined to manufacture other prohibited drugs. Submissions on the Crown case

23. [11]

    Peter Hastings QC for the applicant submitted that the Crown case depends entirely on Papavasiliou's evidence and there was nothing, which corroborated his evidence against the applicant. Mr Hastings said that Papavasiliou's evidence was inherently weak as he had originally given a lengthy statement to police during which he did not incriminate the applicant.

24. [12]

    Mr Hastings contended that there is a real issue as to whether there is a commercial quantity of the prohibited drug involved and whether this is truly a case to which s 8A Bail Act applies. He argued that the Crown case is weak and the evidence demonstrates that bail should not be refused.

25. [13]

    The Crown accepted that the strength of the Crown case predominately depended upon Papavasiliou's evidence and referred to the summary in ex A of evidence that is said to corroborate Papavasiliou. Although much of that material did not specifically corroborate the evidence of the applicant's involvement, the Crown submitted that it supported Papavasiliou's general credibility. The Crown also referred to the documents found in the applicant's unit at Leichhardt when the search warrant was executed. Assessment of the Crown case

26. [14]

    As this is a bail application my assessment of the strength or otherwise of the Crown case is limited to an examination of the material tendered by the Crown in ex A, the statement (ex B) and oral evidence of Detective Senior Constable Davis and the transcript of Papavasiliou's electronically recorded interview (ERISP) that was conducted on 16 November 2011. A copy of the ERISP transcript was forwarded to me in chambers by the applicant's solicitor with the consent of the Crown on 22 October 2012. It is now marked ex 6.

27. [15]

    Other than Detective Senior Constable Davis, no witnesses have been called and most of the material is untested. However, I am obliged to make an assessment upon the material before me. Having regard to the early stage of proceedings, it is inappropriate that my assessment of the evidence is provided in detail.

28. [16]

    Central to the Crown case is the evidence of Papavasiliou. The Crown case can only succeed if the jury accepts his testimony. As he is a person who might reasonably be supposed to have been criminally concerned in the manufacture of the prohibited drugs, the trial Judge will be required to give a warning to the jury that his evidence may be unreliable and for that reason alone, the jury must approach his evidence with caution: s 165(1)(d) Evidence Act 1995 (NSW).

29. [17]

    A matter impacting upon the reliability of Papavasiliou's evidence is his denial of knowledge of the applicant in the ERISP. Other matters include the lack of police surveillance confirming the applicant's presence near the Lord Ben Farm and the limited number of telephone intercepts that involve him. I should mention that transcripts of telephone intercepts are not in evidence before me.

30. [18]

    On the other hand, the following material is capable of providing independent support for Papavasiliou's evidence that specifically incriminates the applicant: (i)the police surveillance material and telephone intercepts that establish a close association between Micalizzi and the applicant; (ii)the intercepted telephone calls on 20 July 2011 that are said to confirm the meeting at the Bringelly shops; (iii)the seizure by police of the four bags containing methylsulfonyl methane at the Lord Ben Farm; and (iv)the location of the printed document providing instructions for the manufacture of hypophosphorous acid and the container labelled "Weak hypo" in Papavasiliou's unit.

31. [19]

    Although much of the material relied upon by the Crown as corroborating Papavasiliou's statement does not specifically support his evidence against the applicant, it is capable of underpinning his overall credibility. Another circumstance that does not assist the applicant is the location of the documents relating to methylamine in the applicant's Leichhardt unit.

32. [20]

    The commercial quantity of methylamphetamine is 0.25kg which is the same as the commercial quantity of amphetamine. In addition to the opinions expressed by Mr Ballard to which I have referred at [8]-[9] above, there is in Papavasiliou's statement detailed references to quantities of iodine, pseudoephedrine, hypophosphorous acid and methyl oil. There is, in my view, much evidence that supports the Crown's contention that more than a commercial quantity was manufactured.

33. [21]

    On the material before me, I conclude that the Crown case can neither be described as strong nor weak. There is, however, a reasonable prospect of a jury being satisfied beyond reasonable doubt that the applicant committed the offence contrary to s 24(2) DMT Act and the offence contrary to s 93T(1) Crimes Act. The interests of the applicant

34. [22]

    Mr Hastings told me that a date for a committal hearing had not been fixed and it was unlikely that there would be a trial until next year. He referred to Mrs Barbaro's medical evidence of the difficulties that she had experienced since the birth of her second child and the burden that had been imposed upon her by the applicant's incarceration.

35. [23]

    Section 32(1)(b) Bail Act provides that in making a determination as to a grant of bail, the court is to have regard to the interests of the person, having regard, relevantly, only to: "(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and (ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and (iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii)..."

36. [24]

    The applicant was arrested on 18 July 2012 and has been in custody since that time. There is nothing, however, that suggests that the progress of these proceedings is unduly slow. I do take into account the time that the applicant will be in custody, in combination with my assessment of the strength of the Crown case and the other matters under s 32 Bail Act that are relevant to the present application.

37. [25]

    Melinda Barbaro, the applicant's wife gave evidence that after the birth of Dominic, who is 6 months old, she suffered from post natal depression. She also suffered from a rare blood disorder called Thalassemia and during her most recent pregnancy was diagnosed with another blood disorder called Thrombocytopenia. In her statement (ex 5), Mrs Barbaro recounted that the applicant had been a large source of support throughout this difficult time and her depression had amplified due to his incarceration which impacted negatively on her ability to care for the children and her physical and mental health. Annabella, their 3 year-old child has shown signs of distress. The applicant had been the sole provider and without his income, she would not have any other choice, but to give up the family home.

38. [26]

    In a report dated 14 October 2012 (ex 3), Tim Watson-Munro, a forensic psychologist expressed the opinion that Mrs Barbaro was suffering from a "Major Depression" with features of "Anxiety Disorder" and low self esteem. He noted "Post Partum Depression". Mr Watson-Munro observed that Mrs Barbaro's condition had been aggravated by the applicant's incarceration and expressed grave concerns regarding Mrs Barbaro's mental state if bail is declined. The psychologist predicted "with a fair degree of confidence that there will be a severe deterioration in her overall mood state" and she would experience substantial despair: ex 3 p5.

39. [27]

    A report from Istvan Schreiner, forensic psychologist, dated 12 September 2012 (ex 1) confirms that Mrs Barbaro has received psychological treatment between 9 August 2012 and 12 September 2012. The psychologist notes that Mrs Barbaro "presented with symptoms consistent with 309.28 Adjustment Disorder with Mixed Anxiety and Depressed Mood following the recent arrest and incarceration of her husband." Mrs Barbaro had attended 4 treatment sessions with the overall treatment plan including 10 sessions "primarily targeting presenting symptoms and aiming to improve Mrs Barbaro's coping strategies."

40. [28]

    Mr Schreiner is Mrs Barbaro's treating psychologist whereas Mr Watson-Munro was asked by the applicant's solicitor to prepare a report for the bail application. Mr Schreiner is more optimistic about Mrs Barbaro's future condition than Mr Watson-Munro when he states: "My impression is that Mrs Barbaro is highly motivated to overcome her difficulties and will find the presented information and skills based approach beneficial."

41. [29]

    The psychologist, however, notes that her condition remains moderate to severe and the reduction of external stressors and improvement of her support network would likely benefit her progress.

42. [30]

    I accept that Mrs Barbaro's mental health has suffered adversely as a consequence of the applicant's inability to obtain bail, that it impacts upon their young children and some reduction in the severity of her condition might be provided if bail is granted. I take into account the applicant's need to be free so that he might support his wife and young family. Flight risk

43. [31]

    The Crown submitted that the applicant is a flight risk, being a person who had the available means and overseas connections to assist him to leave the country. He was associated with questionable companies that were said to be "front companies for his criminal activities." Mr Hastings submitted, on the other hand, that the applicant has his wife and two children in the jurisdiction, has never had a passport and had made no attempt to flee even though he was aware that he was in the spotlight for the offences since 16 November 2011.

44. [32]

    Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the person will appear having regard, relevantly, only to: "(i) the person's background and community ties, as indicated...by the history and details of the person's residence, employment and family situations and the person's prior criminal record..., and ... (iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and ... (iv) any specific evidence indicating whether or not it is probable that the person will appear in court..."

45. [33]

    Detective Senior Constable Davis, the officer in charge of the "Firearms and Organised Crime Squad Strike Force Wonoona" expresses in ex B the belief that the applicant is a flight risk "by reason of his access to wealth, family criminal and other criminal connections overseas and interstate and the likelihood of a custodial sentence, particularly given the applicant's criminal history in relation to drug matters." Detective Davis refers to the applicant's displays of "ostentatious wealth" and to his having been spoken to by police at St Marys, where he was driving a late model Lamborghini, which the applicant told the police officer he owned. Detective Davis states that police are possessed of information that indicates that the applicant owns the Illuminati Bar and Grill in Glebe and documents seized pursuant to a search warrant demonstrate the applicant's control of the business.

46. [34]

    The police statements (ex C and D) disclose that the applicant was seen by Senior Constable Page and Constable Lee to be in the driver's seat of a black Lamborghini that was parked in a 'No Stopping' zone in Queen Street, St Mary's on 30 May 2012. He told the police officers that the motor vehicle was worth $2 million and that it was the only one in Australia. He further stated he had plenty of money because his family owned mines in the Philippines and he had a company in the city that hired out cranes. A registration check of the vehicle revealed that it had a purchase value of $600,000. Senior Constable Withers (ex E) observed the applicant driving a black Lamborghini in Potts Point on 14 July 2012. The police officer completed two infringement notices arising from the applicant's breaches of traffic regulations.

47. [35]

    The Crown tendered various documents that include an ASIC search for Global Commodity Exchange Pty Ltd (ex H), the criminal history of Arlo Selby (ex J), a shareholder in that company, an ASIC search for Global Commodities Group Pty Ltd (ex K) and the criminal history of Gustavo Araya (ex M), a director and secretary of that company. The ASIC search (ex K) discloses that the applicant is a director and secretary of and sole shareholder in Global Commodities Group Pty Ltd.

48. [36]

    Melinda Barbaro gave evidence that her husband had never owned a Lamborghini, although a few luxurious vehicles had been provided to him for business purposes by his employer. The applicant was employed by Global Commodities Group Exchange Pty Ltd and was expected to entertain clients at "a high level of prestige." Mrs Barbaro said that she and the children live in a rented unit at a cost of $700 per week. The applicant had been a joint director of the Illuminati Bar and Grill for about six months some three years ago. Mrs Barbaro said that her husband never intimated to her that he would flee the jurisdiction, that he was born in Australia, had neither applied for a passport nor had been outside Australia. Mrs Barbaro understood that the Global Commodities Group was a commodity trader and had overseas transactions.

49. [37]

    Frank Bruzzano, an accountant, whose services the applicant had used for two years, prepared a letter (ex G) that states that "the [applicant's] taxable income for the year ended 2011 is $55,986." I give little weight to the contents of this letter as Mr Bruzzano gave evidence that the sole basis for this figure was the applicant's advice that was his income. In any event, Mrs Barbaro's current weekly rent would be particularly burdensome if the applicant's income was confined to the amount provided to the accountant.

50. [38]

    The material before me as to the applicant's financial position is very unsatisfactory. The applicant has not demonstrated that he does not have the financial means or overseas contacts to enable him to leave Australia.

51. [39]

    It is plain that he has strong family ties in Sydney and made no attempt to flee before he was arrested. He is, however, now charged with an offence which carries with it a maximum penalty of 20 years imprisonment.

52. [40]

    With some hesitation, I conclude on the balance of probabilities because of the presence of his wife and children in Sydney and the security offered that he will appear if granted bail. However, I do not make an affirmative finding that the applicant is not a flight risk. The protection of the community

53. [41]

    In considering this bail application, the court is obliged to take into account the protection and welfare of the community having regard relevantly, only to: (a) the likelihood of the applicant interfering with evidence, witnesses or jurors: s 32(c)(iii); (b)whether or not it is likely that the applicant will commit any serious offence whilst on bail: s 32(c)(iv); and (c)if the offence for which bail is being considered is a serious offence, whether at the time the applicant is alleged to have committed the offence, the applicant had been released on parole, in connection with any other serious offence; s 32(c)(v).

54. [42]

    Detective Davis expressed the opinion that the applicant will attempt to influence the testimony of other witnesses. She referred to an attempt by the applicant's solicitor to gain access to Papavasiliou. It seems that the police officer's cause for concern was a telephone call made by the applicant's solicitor to the solicitor for Papavasiliou. Should the police officer's account of the conversation be accurate, the telephone call was inappropriate, but that falls short of establishing that contact was made for an improper purpose.

55. [43]

    A major impediment to the grant of bail is that the offences are alleged to have been committed whilst the applicant was on parole for offences involving the supply of prohibited drugs. His prior criminal history reveals that he was convicted and sentenced at Campbelltown District Court for 11 counts of supply. The total term of the sentence was 6 years with a non-parole period of 3 years. It is agreed between the parties that the applicant was released to parole on 23 October 2008 and the parole period did not expire until 23 October 2011. Another difficulty is that the applicant was placed on a s9 bond to be of good behaviour for 18 months at the Downing Centre Local Court on 6 May 2010 for an offence of obtaining credit by fraud.

56. [44]

    At the time of the offences alleged, the applicant was at conditional liberty being both on parole and subject to the s 9 bond.

57. [45]

    The applicant's criminal history in the Australian Capital Territory does not assist him. This prior record includes, inter alia, armed robbery for which he was sentenced to 5 years imprisonment commencing on 3 July 2002, possession of a prohibited weapon (1999), armed robbery (1998), theft and burglary (1996-1997).

58. [46]

    I am not at all persuaded that it is unlikely the applicant will commit serious drug related offences if he is granted bail. In my opinion, there is a real prospect that he will. Decision

59. [47]

    Taking into account all of the matters that must be considered, I am not satisfied that the applicant has discharged the heavy onus of satisfying the court that bail should not be refused.

60. [48]

    Accordingly, bail is refused.