High Court Decides Drug Smugglers' Sentence Appeal [2014] HCA 2
Wednesday 12 February 2014 @ 1.12 p.m. | Crime
Today, the High Court handed down its decision in Pasquale Barbaro v The Queen; Saverio Zirilli v The Queen [2014] HCA 2 . Their Honours rejected the argument of the applicants Mr Barbaro and Mr Zirilli who sought to claim that they were unfairly treated at their sentencing hearing because the judge declined to hear submissions from the prosecution about the range of sentences that could be imposed on each applicant.
By majority, the High Court held that the practice of Victorian judges allowing or requiring the prosecution, in some instances, to make a submission as to the available range of sentences for an offence is wrong in principle and should stop immediately.
Importing Commercial Quantities
The case involved the confiscation of 15 million MDMA tablets – at the time, the biggest ever seizure of MDMA by law enforcement officers in the world. It followed an extensive investigation by the AFP including the electronic monitoring and surveillance of a large drug trafficking/money laundering syndicate.
On 28 June 2007 a shipping container arrived in Melbourne from Naples, Italy, containing 15 million MDMA tablets (weighing 4.4 tonnes) concealed in tins of tomatoes. Barbaro, the head of the trafficking syndicate and Zirilli, his trusted associate travelled to Melbourne from Griffith 2 days before the arrival of the container with the intention to receive and transport the narcotics and traffic the MDMA tablets either personally or in combination with other parties.
The defendants were also prosecuted in connection with a separate trafficking of 1.2 million MDMA tablets and attempting to possess 150kg of cocaine from South America.
Pleading Guilty
Barbaro pleaded guilty and was convicted on:
- 1 count of conspiracy to traffic a commercial quantity of a controlled drug;
- 1 count of trafficking a commercial quantity of a controlled drug; and
- 1 count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine.
Barbaro also admitted involvement in a conspiracy to import a commercial quantity of pseudoephedrine from India to Australia in addition to money laundering offences (admissions which were also taken into account on sentencing.)
Zirilli pleaded guilty and was convicted on:
- 1 count of conspiracy to traffic a commercial quantity of a controlled drug;
- 1 count of trafficking a commercial quantity of a controlled drug; and
- 1 count of aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine.
The Sentencing
On 23 February 2012 Barbaro was sentenced to life imprisonment with a non-parole period
of 30 years in the Supreme Court of Victoria, with the sentencing judge noting that
had Barbaro not pleaded guilty he would have received a sentence of life imprisonment
with no minimum term.
Zirilli was sentenced to 26 years imprisonment with a non-parole period of 18 years.
The sentencing judge indicated that Zirilli would have received a sentence of 30 years
imprisonment with a non-parole period of 24 years had he not pleaded guilty.
In handing down the sentence King J said:
“It is my view that it falls into the highest possible category of offending. The amount that you sought to possess was the largest amount of ecstasy ever seized in this country...You Barbaro were at the apex of that criminality – the very top of the tree in this country...To conclude that this crime fell anywhere other than at the highest level of criminality for offending of this nature would be absurd and insulting and, accordingly, I make that finding in respect of this offence in relation to you Barbaro. The nature and categorisation of the offending does not change for you Zirilli and the offence itself remains in the most serious offence category, but your involvement is a lesser involvement than that of Barbaro and the sentences will reflect that.”
Misguided Expectations?
The pleas of guilty were entered into following conferences between the defendants’ lawyers and the prosecution. During those discussions, the prosecution conveyed its view as to the range of sentences that might be imposed on each applicant.
Nevertheless at the sentencing hearing, the sentencing judge clearly communicated that she did not intend to ask any party for submissions about sentencing range. Thus Counsel for the prosecution made no submission about what range of sentences could be imposed.
The Appeals
Both the Court of Appeal and the High Court, by special leave, dismissed the claim that it was procedurally unfair for the sentencing judge to have refused to hear submissions on the available range of sentences in light of the discussions between the defendants and the prosecution.
The court considered the case of R v MacNeil-Brown (2008) 20 VR 677 in which the Court of Appeal of the Supreme Court of Victoria held that if a sentencing judge asked, the prosecution was obliged to submit what the prosecution considered to be the available range of sentences in the circumstances of the case.
The High Court held, by majority, that it is neither the role nor the duty of the prosecution to volunteer some statement of the bounds within which a sentence may be levied. It is for the sentencing judge alone to resolve what sentence will be imposed.
The practice which resulted from the decision in MacNeil-Brown was therefore wrong in principle and should terminate. The Court held that because the prosecution's proposal as to an available sentencing range is a mere statement of opinion, it was not unfair for the sentencing judge to refuse to hear such a submission. The Court held that this refusal did not constitute a failure to take into account a relevant consideration in sentencing.
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