Barbaro v The Queen
[2012] VSCA 288
•30 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0139
| PASQUALE BARBARO | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2012 0065
| SAVERIO ZIRILLI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, HARPER JA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 August 2012 |
| DATE OF JUDGMENT | 30 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 288 |
| JUDGMENT APPEALED FROM | Director of Public Prosecutions (Cth) v Barbaro & Zirilli [2012] VSC 47 (King J) |
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CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Conspiracy to traffick in commercial quantity of controlled drug – Trafficking in commercial quantity – Attempt to possess commercial quantity – Additional offences taken into account – Sentenced to life imprisonment, non-parole period 30 years – Whether manifestly excessive – Whether crushing because of appellant’s age – Crown submission on sentencing range – Judge declined to entertain submission – Whether breach of natural justice – Application for leave to appeal refused – Crimes Act 1914 (Cth) s 16BA, Criminal Code 1995 (Cth) ss 11.1(1), 11.2(1), 302.2(1), 307.5(1), 307.11(1), 400.3(1), 400.9(1).
CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Conspiracy to traffick in commercial quantity of controlled drug – Trafficking in commercial quantity – Attempt to possess commercial quantity – Sentenced to 26 years’ imprisonment, non-parole period 18 years – Whether manifestly excessive – Whether crushing because of appellant’s age – Crown submission on sentencing range – Judge declined to entertain submission – Whether failure to take into account relevant consideration – Appeal dismissed – Renewed application for leave to appeal refused – Criminal Code 1995 (Cth) ss 11.1(1), 11.2(1), 302.2(1).
CRIMINAL LAW – Sentence – Crown submission on sentencing range – Sentencing judge declined assistance – No risk of appealable error – Whether breach of natural justice – Whether failure to take into account relevant consideration – No obligation to receive Crown submission – No error of law – R v MacNeil-Brown (2008) 20 VR 677 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant (Barbaro) | Mr P G Priest QC with Mr T Kassimatis | Theo Magazis & Associates |
| For the Appellant (Zirilli) | Mr M Croucher SC with Ms F Todd | Aquaro & Co |
| For the Crown | Mr B Young | Commonwealth Director of Public Prosecutions |
MAXWELL P
HARPER JA
T FORREST AJA:
Introduction
On 28 June 2007, 4.4 tonnes of tablets containing a drug generally referred to as MDMA,[1] and popularly known as ‘ecstasy’, were imported into Melbourne, concealed in a shipment of tinned tomatoes. The drugs were discovered by Australian Customs when the shipment was selected for x-ray examination.
[1]The full name is methylenedioxymethamphetamine.
Over 15 million tablets were seized by authorities, which contained more than 1.4 tonnes of pure MDMA. The wholesale price of the shipment, based on a sale of each tablet for $7, was estimated to be approximately $122 million. Under Commonwealth legislation, a ‘commercial quantity’ of the drug is 500 grams. The container, accordingly, held approximately 2,900 times the minimum statutory commercial quantity.
Between 13 June and 3 October 2007, Pasquale Barbaro and his first cousin and co-accused, Saverio Zirilli, conspired to traffick in the contents of the container. Mr Barbaro was to possess, transport, store, prepare and distribute the drugs, while Mr Zirilli was to possess and transport them ‘with a view towards sale by another, with ultimately a view to distribution’.[2] On a number of occasions during June and July 2007, the two travelled to Melbourne from their home town in Griffith. They met with other persons allegedly involved in the conspiracy to discuss how they would obtain the contents of the shipment and profit from their distribution.
[2]DPP (Cth) v Barbaro & Zirilli [2012] VSC 47 (King J) (‘Reasons’), [15].
Those profits were anticipated to be massive. The sentencing judge described the offence as falling into ‘the highest possible category of offending’ of this nature.[3] She said that the amount seized was the largest amount of ecstasy ever seized in Australia — and, at the time it was seized, in the world — and that the profits, if realised, would have run into the hundreds of millions.[4]
[3]Ibid [30].
[4]Ibid.
The sentencing judge accepted the Crown submission that Mr Barbaro was ‘at the apex of the criminal group that was operating within Australia’.[5] Although she accepted that Mr Zirilli’s involvement was less than that of Mr Barbaro, she described him as ‘Barbaro’s right‑hand man and trusted lieutenant’.[6]
[5]Ibid [22].
[6]Ibid [31].
Mr Barbaro pleaded guilty to one charge of conspiracy to traffick a commercial quantity of MDMA. He also pleaded guilty to one count of trafficking in a commercial quantity of MDMA, and one count of attempting to possess a commercial quantity of cocaine. Pursuant to s 16BA of the Crimes Act 1914 (Cth), he also admitted his guilt of three further offences, and asked that they be taken into account.
Mr Barbaro was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Conspiracy to traffick in a commercial quantity of a controlled drug, namely MDMA Life
[Criminal Code 1995 (Cth), ss 11.5(1) and 302.2(1)]Life All sentences served concurrently 2 Trafficking in a commercial quantity of a controlled drug, namely MDMA Life
[Criminal Code 1995 (Cth),
s 302.2(1)]23 y 3 Attempting to possess a commercial quantity of a border controlled drug, namely cocaine Life
[Criminal Code 1995 (Cth), ss 11.1(1), 307.5(1)]20 y Total Effective Sentence: Life Non-Parole Period: 30 y Pre-sentence Detention Declared: 1249 days 6AAA Statement: Life with no minimum term
Mr Zirilli pleaded guilty to the same offences as Mr Barbaro, save that charge 3 was aiding and abetting an attempt to possess a commercial quantity of cocaine. He was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Conspiracy to traffick in a commercial quantity of a controlled drug, namely MDMA Life
[Criminal Code 1995 (Cth), ss 11.5(1) and 302.2(1)]20 y 9 y 2 Trafficking in a commercial quantity of a controlled drug, namely MDMA Life
[Criminal Code 1995 (Cth),
s 302.2(1)]15 y 4 y 3 Aiding and abetting an attempt to possess a commercial quantity of a border controlled drug, namely cocaine Life
[Criminal Code 1995 (Cth), ss 11.1(1), 11.2(1), 307.5(1)]13 y Base Total Effective Sentence: 26 y Non-Parole Period: 18 y Pre-sentence Detention Declared: 102 days 6AAA Statement: 30 y with a NPP of 24 y
Mr Barbaro’s application for leave to appeal was referred for hearing by a court of three. Mr Zirilli was granted leave to appeal by a single judge on one ground only, contending that his sentence was manifestly excessive. He has elected to renew his application for leave on two other grounds in respect of which the judge refused leave. (For convenience we will refer to them collectively as the ‘appellants’.)
For reasons which follow, we would refuse each application for leave to appeal, and dismiss Mr Zirilli’s appeal.
Refusal to hear submissions on sentencing range
The ground of appeal to which most attention was addressed at the hearing, on behalf of both appellants, concerned the sentencing judge’s refusal to entertain a submission from the Crown on sentencing range. The submission which the Crown had proposed to advance was as follows: Mr Barbaro — head sentence of 33–37 years, non‑parole period of 24–28 years; Mr Zirilli — head sentence of 21–25 years, non‑parole period of 16–19 years.
In R v MacNeil-Brown,[7] this Court reaffirmed the appropriateness of a Crown prosecutor making a submission to a sentencing judge about the sentencing ‘range’ applicable to the case at hand. The majority (Maxwell P, Vincent and Redlich JJA) pointed out that in Victoria, since at least the 1980s, the making of submissions on sentencing range has been viewed as an aspect of the duty of the prosecutor to assist the sentencing court.[8] The Court said:
It is only reasonable, in our view, for the sentencing court to expect the prosecutor to make a submission on sentencing range if:
(a)the court requests such assistance; or
(b)even though no such request has been made, the prosecutor perceives a significant risk that the court will fall into error regarding the applicable range unless such a submission is made.[9]
[7](2008) 20 VR 677 (‘MacNeil-Brown’).
[8]Ibid 682–684 [16]–[21].
[9]Ibid 678 [3].
The sentencing judge in the present case stated clearly, at the commencement of the plea hearing, that she did not require any assistance with sentencing range. She said:
Can I make it clear that I do not seek and will not seek any indication of sentencing range from anyone … I don’t consider it appropriate … Unless you think I’m about to fall into appealable error, I believe that my indication should be sufficient.
When the prosecutor pointed out that the documentation before the judge included the Crown’s range submissions with respect to each of the co‑offenders, her Honour said:
Can I say I will not take them into account. I will presume they have not been given. I did not ask for them and unless I ask for them, there is no basis for you to put them before me.
On the appeal, senior counsel for Mr Barbaro submitted that it was a breach of natural justice for her Honour to refuse to hear what the Crown had proposed to submit was the applicable sentencing range. Senior counsel for Mr Zirilli submitted that the error was of a different kind, namely, a failure to take into account a relevant consideration. These contentions — which were not advanced before the sentencing judge — were unsupported by authority.
In our view, her Honour committed no error of law. Put simply, the function of a Crown submission on range is to assist the sentencing judge. Nothing said by the majority in MacNeil-Brown suggested that a judge who declined such assistance should nevertheless be compelled to receive it, still less that the decision whether or not to entertain such a submission rested on considerations of procedural fairness.
As the majority said, the function of Crown submissions on range is to promote consistency of sentencing and reduce the risk of appealable error.[10] Hence the ‘second limb’ of MacNeil-Brown, to the effect that the judge can reasonably expect a submission on range if the prosecutor perceives a risk that the judge may otherwise fall in error. Once again, the informing notion is the reasonable expectation of the judge that assistance will be offered.
[10]Ibid 679 [4].
If, for example, it became apparent during the course of plea submissions that a sentencing judge had a mistaken view about appropriate sentences for the offending under consideration, it would be the duty of the prosecutor to raise the matter with the judge and offer to provide a submission on range. But, should the judge decline to entertain the submission, that would be the end of the matter. While it might be thought prudent for a judge in that situation to hear the submission, there is no obligation to do so. If the decision on sentence proved to be erroneous, that would be corrected on appeal in the ordinary way.
In the present case, as the sentencing judge pointed out to counsel, there was nothing to engage the ‘second limb’. Nothing said by her Honour to counsel in the course of lengthy argument on the plea suggested any risk of sentencing error. That being so, the prosecutor’s duty to make a submission could only have been enlivened if the judge had requested such assistance. Given, however, that her Honour had made clear that she did not require assistance, nothing further was required of the prosecutor.
The appeal submissions placed heavy reliance on the statement in MacNeil‑Brown that a submission on sentencing range is a submission of law. As the majority said, a submission on range
identifies the ambit within which — according to the submitting party — the sentencing discretion may lawfully be exercised in the circumstances of the particular case. It is a submission explicitly formulated to assist the sentencing judge to avoid appealable error, that is, error of law.[11]
[11]Ibid 691 [42].
No question of procedural fairness arises if a judge declines to hear a submission of law which he or she adjudges to be unnecessary or unhelpful. If, for example, counsel wished to make a submission on a legal issue by reference to authorities with which the judge was entirely familiar, it would be wholly unexceptionable for the judge to decline to hear it. Taking that course carries with it the risk that the judge may fall into error, but that again is not a question of procedural fairness.
The hearing rule is, of course, directed at ensuring that a person whose rights may be affected by a decision has a reasonable opportunity to know, and to meet, the case against him/her.[12] The rule focuses attention on adverse matters on which the decision‑maker will be relying, and requires that the person affected be given proper notice of all such matters and a reasonable opportunity to respond to them.[13] Self‑evidently, a matter which the decision‑maker expressly declines to consider — in this case, a submission on sentencing range — does not attract the rule.[14] In the present case, the appellants had full notice of all of the adverse matters which the prosecution wished the judge to take into account. No question of natural justice arose.
[12]Kioa v West (1985) 159 CLR 550, 582 (‘Kioa’); Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57, 86 [99].
[13]Kioa (1985) 159 CLR 550, 628; Applicant V E A L v Minister of Immigration (2005) 225 CLR 88, 95 [15].
[14]See McLachlan v ASIC (1999) 85 FCR 286.
For similar reasons, a submission on sentencing range is not a ‘relevant consideration’ in the public law sense. Such a submission addresses the legal conclusion reasonably open to the decision‑maker once all of the relevant factual matters — the ‘legitimate considerations’[15] — have been taken into account and evaluated in the light of the applicable sentencing principles. And, as we have made clear, the view of the Crown as to the available sentencing range is not a matter which a sentencing judge is bound to take into account.[16]
[15]Kioa (1985) 159 CLR 550, 585.
[16]Cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
There was, of course, nothing to prevent counsel for the appellants making their own submissions to the judge on sentencing range. Senior counsel for Mr Barbaro (who did not appear on the appeal) did not make a range submission. Nor did he raise any question about the judge’s rejection of the Crown submission, saying instead that he could ‘understand [her Honour’s] reluctance to talk about the Crown range’. Senior counsel for Mr Zirilli (who also appeared on the appeal) did make a submission on range and, for this purpose, was permitted to make reference to the Crown submission. Accordingly, no question arises of any failure to consider submissions advanced by the appellants.[17]
[17]Cf Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1122, 1130; Comcare v Rowe (2002) 35 AAR 410, 412 [12]; Australian Postal Corporation v Sellick (2008) 245 ALR 561, [89].
Complaint was made about the following statement made by the sentencing judge during the plea:
Generally as a Court, we have a policy that we tend not to ask for any sentencing indications or ranges. … I am unaware of any judge of this Court who requests it.
The submission for Mr Barbaro was that, if such a ‘policy’ were in force, it would conflict with what was said in MacNeil-Brown. With respect, we take her Honour to have done no more than state what she understood to be the practice of judges in the Criminal Division of the Supreme Court. It was a passing comment, without significance for the case at hand.
As we have sought to emphasise, no sentencing judge is under an obligation to receive assistance on range if that is not desired. The approach taken by individual trial judges, whether in this Court or in the County Court, is entirely a matter for them. The experience of this Court in reviewing plea transcripts is that range submissions are routinely made by prosecutors, and are found by many sentencing judges to be of assistance. But if assistance is not required, that is the end of the matter.
On the plea, senior counsel for Mr Zirilli told the judge that the proposed Crown submission on range was ‘part of a plea agreement’ between the appellants and the Crown. Her Honour correctly pointed out, however, that such an agreement ‘does not bind the Court in any way, shape or form’. Counsel conceded at the time that this was so.[18] We note the recent announcement by the Director of Public Prosecutions that the Crown’s position on sentencing range will henceforth play no part in plea negotiations.[19]
[18]See Talbot v The Queen [2012] VSCA 118, [55]–[57].
[19]Director of Public Prosecutions (Vic), Director’s Policy 9 — Crown’s Role on Plea and Sentence, 2 October 2012, 14–18 [67]–[79].
Remorse
Under this proposed ground of appeal, Mr Zirilli contends that:
The learned judge erred in her approach to and findings on remorse, and in particular her Honour erred:
(a) in treating the evidence of remorse in the report of Associate Professor Woods and in the character references as merely evidence of the applicant’s regret for consequences his actions would have for him and his family;
(b) in failing to pay any regard to the prosecution’s concessions that the pleas of guilty reflected the applicant’s remorse and that no issue was taken with the report of Associate Professor Woods or the character references;
(c) in discounting a finding of remorse by reason of the applicant’s reluctance to discuss the details of his offending with Associate Professor Woods, despite his fear that to do so would jeopardise his family’s safety; and
(d) in failing to find that the applicant was remorseful given his pleas of guilty, the report of Associate Professor Woods, the character references and the concession by the prosecution that the applicant was remorseful.
During the course of the plea, counsel for Mr Zirilli submitted that the sentencing judge ‘should be satisfied that there’s remorse’. Her Honour’s initial response was to say that, apart from the plea, there was nothing in the evidence to indicate the existence of remorse. The following exchange then took place:
HER HONOUR: One of the ways in which you can demonstrate remorse is by being helpful. There’s just nothing helpful at all in respect of any of this.
[DEFENCE COUNSEL]: It’s very helpful that he’s pleaded guilty, your Honour.
HER HONOUR: No, no. That’s a plea of guilty in relation to a case in which it is very strong evidence against them.
[DEFENCE COUNSEL]: It doesn’t change the fact that it’s …
HER HONOUR: It is still absolutely still a very important thing. Have no doubt about that, the utilitarian value of it. But in relation to the issue of remorse, I don't have anything that indicates real remorse.
[DEFENCE COUNSEL]: Your Honour, the other two things that you do have — you do have the observations of the psychologist, who makes observations about his state of mind in that regard. He says, yes, he won't talk about it for fear of reprisals, but he is clearly remorseful. So you have that.
HER HONOUR: I have to say, I don’t think a psychologist can tell me that. I’ve never thought that.
[DEFENCE COUNSEL]: In my submission, he can. Thirdly, your Honour has the observations of those who are the character referees who say what he said about it to them. At the moment, your Honour, I’m just listing these things. I’ll come back and deal with these things in more detail.
When counsel did return to the topic, another exchange took place between bench and Bar:
[DEFENCE COUNSEL]: Can I move to the question of remorse. Because of that plea of guilty, as I say, made in the face of others pleading not guilty, made in the circumstances in which it is made, that plea of guilty in and of itself is ordinarily considered evidence of remorse and should be regarded as such in this case.
HER HONOUR: I have to say I don’t think that that's right.
[DEFENCE COUNSEL]: The Crown accepts that insofar as the plea acknowledges expressly his guilt that is a matter that goes to his remorse and …
HER HONOUR: It’s a matter that goes to remorse but a court can say that by itself and looking at other factors it doesn't necessarily indicate remorse.
[DEFENCE COUNSEL]: Your Honour, in the Crown’s submission, as I understand it, it’s not a matter of little consequence in this case with a man of his age.
HER HONOUR: Sorry I don’t follow that.
[DEFENCE COUNSEL]: That on the question of remorse it's true to say that he is remorseful in as much as his plea acknowledges expressly his guilt which is not a matter of little consequence in this case with a man of Mr Zirilli’s age. That’s what the Crown say about it.
HER HONOUR: That’s very nice of the Crown.
[DEFENCE COUNSEL]: Well, the matters …
HER HONOUR: The Crown — and I think this really needs to be made pretty clear to people, the Crown do not sentence people.
[DEFENCE COUNSEL]: Yes, your Honour, I understand that.
HER HONOUR: The issue of remorse is a matter for me and not for the Crown.
[DEFENCE COUNSEL]: Yes. Yes, it is but their view …
HER HONOUR: No, don’t read their view out to me, I don’t care what their view is.
[DEFENCE COUNSEL]: Your Honour, their view does matter because …
HER HONOUR: Not to the issue of remorse it doesn’t.
[DEFENCE COUNSEL]: Well in my submission …
HER HONOUR: It’s a matter that’s entirely within the province of the court. It goes to the issue of sentence.
[DEFENCE COUNSEL]: Your Honour, can I move onto the next point?
HER HONOUR: Yes, indeed.
[DEFENCE COUNSEL]: As part of the remorse Professor Woods, as I say, takes the view in his report …
HER HONOUR: I have to say I do not believe psychologists are entitled to express opinions as to remorse.
[DEFENCE COUNSEL]: Pages 2, 3, 7 and 11, your Honour, you’ll see that he takes that view. Similarly the character references of — the joint one of Pasquale, Giovanni and Francesco Zirilli, three of his brothers. That’s 3 January this year. Frank Zirilli which is, it’s undated, that’s his elder son or eldest son. His daughter Marianne Zirilli, his youngest son Saverio Zirilli and Theresa Zirilli, his wife and Sam Katanziriti they all speak of his remorse as well. They are matters, in my submission, that Your Honour can have regard to on the question of remorse.
In her reasons for sentence, the sentencing judge dealt at some length with the evidence of remorse, and its place in the exercise of the sentencing discretion. Her Honour said:
I have no information provided by you or your counsel as to your actual role in this matter, what if anything you were to receive, what if anything you contributed financially. It is my view that like Barbaro, you are remarkably silent about what you did in relation to these offences for which you have pleaded guilty. Not one piece of material additional to what the Crown can prove has been put forward by either of you. So whilst I accept a plea of guilty can be indicative of a degree of remorse, I have nothing really in this case on behalf of either of you that indicates your plea of guilty is anything other than a utilitarian plea which will save the court a great deal of time and the community a great deal of money.
There may be other factors indicative of remorse and I will examine that when I turn to your individual background and circumstances. What must be understood of course is that the cases against each of you were significant and extremely strong cases. If you are remorseful and there is any evidence to that effect, then despite the overwhelming nature of the case, you would still receive the benefit of that remorse, additional to the substantial benefit of your plea of guilty.[20]
[20]Reasons, [66]–[67].
Having considered the personal background of each offender and the assistance to be derived from a report of a forensic psychologist (Adjunct Associate Professor Stephen Woods), her Honour continued:
Upon examining the report tendered on your behalf, prepared by Mr Woods, together with the many testimonials tendered it appears to me that the remorse that you feel and express is one that is regretful of the consequence of your actions — that is, your impeding incarceration and the effect that it will have upon you and your family. The material before me does not disclose that you have any real remorse to society in general for your involvement in the criminal activity. There is no sense of moral blame, no sense of horror or extreme shame at what you have done. It is all personal and relates to the consequences that you and your family will suffer. That is not remorse for your involvement in criminality, it is regret for being caught and the punishment that will follow. So, although there is a reference to some remorse in the materials I find it to be of a very limited nature.[21]
[21]Ibid [90] (emphasis added).
The place which remorse should take as a sentencing consideration has been the subject of recent judgments in this Court.[22] As was emphasised by Redlich JA and Curtain AJA in their joint judgment in Phillips, the utilitarian value of a plea of guilty will — in all but the most exceptional cases — entitle the offender to a reduction in what would otherwise be an appropriate sentence; and specific error may arise where the sentencing judge fails to accord either that entitlement, or the reduction which ought to be allowed for the subjective factors of remorse, acceptance of responsibility and a willingness to facilitate the course of justice. The sentencing judge gave full recognition to this principle.
[22]Phillips v The Queen [2012] VSCA 140 (‘Phillips’); and Saab v The Queen [2012] VSCA 165 (‘Saab’).
In their joint judgment, Redlich JA and Curtain AJA (with whom Maxwell P agreed) also emphasised that the sentencing process must be informed by intellectual rigour.[23] That, of course, applies when considering the weight to be given to remorse as an important sentencing consideration.
[23]Phillips [2012] VSCA 140, [73].
It is true, as Redlich JA and Curtain AJA state, that ‘[t]he common law has long recognised the sentencing principle that a plea of guilty is an expression of real contrition’.[24] That principle was established, however, at a time when the offender would almost certainly not know — when the decision to plead was made — whether it would result in a discernible discount from the sentence which would otherwise be imposed. Now, given the role of s 6AAA of the Sentencing Act 1991, that discount will always be known; and because it is known that it will be known, there is an incentive to plead guilty — if only to attract the discount which, as the judgments in Phillips make clear, must be allowed for its utilitarian benefit.
[24]Ibid [68].
It follows that such a plea may have little, if any, component of remorse. Yet it seems regularly to be assumed by defence counsel that the sentencing judge will simply accept that, because a plea of guilty has been entered, the fact of remorse is established. That assumption is unsound.
A distinction must be drawn between the anguish of being caught and punished, on the one hand, and — on the other — the determination to change one’s behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is. This is clear when one goes to dictionary definitions of the word ‘remorse’ and words associated with it. ‘Remorse’ is defined in, respectively, the New Shorter Oxford Dictionary[25] and the Macquarie Dictionary[26] as ‘deep regret and repentance for a wrong committed’ and ‘deep and painful regret for wrongdoing; compunction’. The word ‘compunction’ in turn is defined in those two works, again respectively, as ‘pricking or stinging of conscience or the heart; uneasiness of mind after wrongdoing; remorse’ and ‘uneasiness of conscience or feelings; regret for wrongdoing or giving pain to another; contrition’.
[25]Lesley Brown (ed), The New Shorter Oxford English Dictionary (Clarendon Press Oxford, 4th ed, 1993).
[26]Delbridge, Bernard, Blair, Peters & Butler (eds), The Macquarie Dictionary (Macquarie Library, 2nd ed, 1996).
For its part, ‘contrition’ bears the following respective definitions: ‘The condition of being distressed in mind for some fault or injury done’ and ‘sincere penitence’; while ‘contrite’ is defined, again respectively, as ‘crushed or broken in spirit by a sense of wrongdoing; sincerely penitent’ and ‘broken in spirit by a sense of guilt; penitent’. Finally, ‘penitence’ and ‘penitent’ are defined, respectively, as ‘the fact or state of being penitent’ and ‘that repents, with serious desire and intention to amend the sin or wrongdoing; repentant, contrite’ (New Shorter Oxford Dictionary) and ‘the state of being penitent; repentance; contrition’ and ‘repentant; contrite; sorry for sin and fault and disposed to atonement and amendment’ (Macquarie Dictionary).
It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.
If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due.
But sentencing discounts, and especially significant sentencing discounts, should not be given unless remorse is established by proper evidence, or unless on a proper basis the judge is content to relieve the offender of the need to discharge that burden. In adopting the necessary ‘precision of approach … in complying with the obligation to take the plea of guilty into account’,[27] sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse is present, warranting a discount over and above that which is to be granted on the basis of utility. As Redlich JA and Curtain AJA point out in Phillips, ‘[t]he conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists’.[28]
[27]Phillips [2012] VSCA 140, [73] (Redlich JA and Curtain AJA).
[28]Ibid [69].
We respectfully agree with Redlich JA and Curtain AJA that ‘[i]n every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court’.[29] These considerations lead us to conclude that, far from there being any error in the way in which the judge dealt with the issue of remorse in Mr Zirilli’s case, her Honour’s approach was impeccable.
[29]Ibid [72].
The remaining grounds concern manifest excess (Barbaro and Zirilli) and parity (Barbaro only). We deal first with the question of manifest excess.
The sentences were not manifestly excessive
As has often been stated, the ground of manifest excess is difficult to make good. It must be established that it was not reasonably open to the sentencing judge to impose the sentence she did if proper weight had been given to all relevant sentencing factors.[30] In our view, that proposition was not reasonably arguable in Mr Barbaro’s case, and we would therefore refuse leave to appeal on that ground. Mr Zirilli was granted leave to appeal on this ground, but we would dismiss the appeal. Our reasons are as follows.
[30]DPP v Karazisis (2010) 206 A Crim R 14, 44 [127].
The judge concluded that the first count, the conspiracy to traffick, ‘overwhelmingly falls into the worst category for an offence of this nature’.[31] With respect, this conclusion was plainly right. Indeed, it was the only conclusion reasonably open. Her Honour cited the following statement from Wong v The Queen:[32]
[31]Reasons, [104].
[32](2001) 207 CLR 584, 608 [64] (‘Wong’). Cited in Reasons, [30].
In general, … the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.
Her Honour said:
What is important for present purposes is that it is all of the matters mentioned [in Wong], including the amount, the level of involvement, the sophistication of the planning, and others, including some mentioned in Part 1B of the Commonwealth Crimes Act should be taken into account in determining where this falls in terms of categorisation of level of offending/criminality.
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. It was, at the time of the seizure, the highest amount of ecstasy seized in the world. The cost of the tablets was multiple millions. The profit expected to be garnered from the possession and sale of those drugs ran into the hundreds of millions.
You Barbaro, were at the apex of that criminality — the very top of the tree in this country. Whilst others may possibly be at a level just below you, it is clear that you were the one that took on the debt and gave the orders. Your purpose in attempting to possess the goods was to ensure financial riches of a quite astronomical order. The offence and the manner in which it was prepared was exceedingly professional and difficult in terms of detection. The money trail involved was sophisticated and bespoke a very professional worldwide organised criminal group. 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. The sentence must also reflect that you were Barbaro’s right‑hand man and trusted lieutenant, such that he would send you to represent him in Europe in his dealings with the syndicate.[33]
These findings were not challenged.
[33]Reasons, [30]–[31].
Her Honour continued:
The maximum penalty that Parliament has established for these offences is life imprisonment. It is a reflection of the seriousness with which Parliament views offending of this nature. It is equally true that this is offending that the community as a whole sees as very serious. You are not either of you low‑level people in this undertaking. You are neither of you persons who are addicted to illegal substances and desperately trying to keep yourselves supplied with an illegal narcotic substance. Neither of you were under any obligation to be involved in trafficking at this extraordinarily high level. The only explanation for your involvement is one of massive greed. You were playing for extraordinarily high stakes. Hundreds of millions of dollars. You were both successful farmers with significant landholding in the Griffith area. You had success, you had wealth, you had loving and loyal families. You were, according to the references I have seen, well thought of and well respected in the local area. You risked all of those things, to make obscene amounts of money at the expense of the community of which you were a member. Your moral culpability is high, your behaviour despicable, it is a cynical exploitation of members of our community. The community will not tolerate, and the courts will reflect that, massive commercial exploitation of the younger members of our community to enable you or others like you to accumulate vast amounts of money. This is what is referred to as organised crime, it has international links, it is professional, it is contemptuous of our police, our laws and our society, and it cannot and will not be tolerated by our society, as demonstrated by Parliament or the courts. It merits punishment appropriate to the level of criminality and demonstrated attitude to this society by those involved in this very cynical money making exercise.
In relation to the first charge on the indictment, you were attempting to distribute over 15 million ecstasy tablets into our community of teenagers and young adults. You had children the age that would have been the targets of these drugs. It is not for this Court to say whether or not a particular drug is serious, more serious, or less serious than another; it is Parliament who determines the seriousness of the drug by the quantities that they nominate as a commercial quantity; here it is 500 grams that has been nominated — you were seeking to possess and traffick thousands of times that amount. You took the risks, you took the chance that you would be successful, that you would make vast, unheard of sums of money by obtaining and trafficking the amount of ecstasy involved in the first and second counts.[34]
[34]Ibid [56]–[57].
In explaining her decision to impose on Mr Barbaro the maximum penalty of life imprisonment, her Honour cited the following statement from Veen v The Queen (No 2):[35]
[T]he maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen. That does not mean that a lesser penalty must be imposed if it is possible to envisage a worst case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worse category.[36]
[35](1988) 164 CLR 465, 478. Cited in Reasons at [103].
[36]See also Hudson v The Queen (2010) 30 VR 610, 619 [38].
Addressing Mr Barbaro, her Honour said:
It is my view that despite your plea of guilty the maximum penalty must be imposed upon you Barbaro in light of the various factors to which I have earlier referred including, but not limited to, your role as the Australian principal, the quantity of the drug, the value of the drug, the sophistication of the arrangement, the true international nature of the conspiracy, your relevant prior history, the stage at which your plea was entered, the lack of real or true remorse for your offending together with the purely commercial motive for your involvement in the offending.[37]
[37]Reasons, [104].
Addressing Mr Zirilli, her Honour said:
I will not impose the maximum penalty for a number of reasons including your plea of guilty, your lack of prior offending, your comparative lower position in the hierarchy of the organisation. However, you remain at a reasonably high level within the organisation and will be dealt with as such. There is no doubt that the position occupied by the persons within the criminal conspiracy is a major factor in determination of the appropriate penalty to be applied to the individual.[38]
[38]Ibid [105].
We respectfully agree with her Honour’s analysis.
Manifest excess —Barbaro
The appeal submission for Mr Barbaro laid particular emphasis on his plea of guilty and his age. As to the plea of guilty, the prosecutor acknowledged on the plea that its utilitarian benefit was ‘enormously substantial’. So much may be accepted. Her Honour stated that, in each case, she would accord ‘significant weight’ to the plea of guilty.[39] At the same time, her Honour noted that each appellant was ‘remarkably silent’ about what he had done in relation to the offences and concluded that the plea of guilty was not indicative of remorse.[40]
[39]Ibid [62].
[40]Ibid [66].
In the course of argument on the plea, senior counsel for Mr Barbaro submitted that there had to be ‘an incentive to others to plead guilty’. Her Honour responded that the plea of guilty could be reflected in the setting of a minimum term. As her Honour made clear in her statement for the purposes of s 6AAA of the Sentencing Act, had it not been for Mr Barbaro’s plea of guilty she would have sentenced him to life imprisonment with no minimum term.
The sentence of life imprisonment was entirely appropriate, in our view, for the reasons which her Honour gave. Specific deterrence was ‘a matter of real significance’ in Mr Barbaro’s case, as her Honour found.[41] He had a prior conviction for drug offending, for which he had been imprisoned. In addition, her Honour properly treated as relevant the period 1990–2000, when Mr Barbaro was initially convicted of substantial offences of cultivating cannabis and sentenced to 14 years’ imprisonment. Her Honour said:
This is not a prior conviction and I do not treat it as such, but it is relevant in terms of your history, character, antecedents, specific deterrence and particularly your prospects of rehabilitation. There were at least two appeals in relation to these matters, and prior to the granting of the first retrial you had served a period of over of two years imprisonment. Ultimately after a number of retrials and many appeals to the Court of Appeal, and many appearances in relation to this matter, the Director of Public Prosecutions finally determined to not proceed with the matter any further.
Whilst it is not a prior conviction, it shows that you have previously been involved in lengthy criminal litigation, over a 10‑year period including spending at least 2 years of your life in gaol, in relation to narcotic offences of which you were ultimately acquitted. Despite that ordeal having occurred and obviously substantially separating you from your family and your work on the farm, it was not something that deterred you from the next matter of trafficking cannabis or the matters that have ultimately brought you before this court. Ten years involvement to clear your name did not have any impact upon you in terms of personal deterrence. Neither, it would appear, did the sentence imposed for the trafficking in cannabis in Queensland.[42]
[41]Ibid [62].
[42]Ibid [72]–[73].
Mr Barbaro was aged 50 at the time of sentence. His appeal submission was that, unless the non‑parole period of 30 years was reduced, it was likely that he would die in gaol. It was said that the period fixed had ‘obliterate[d] any real hope for a meaningful life post‑release’.
The relevant part of the sentencing reasons was in these terms:
I need to ensure that the sentences imposed upon you are not crushing, and I have been urged to take into account your respective ages of 50 and 55 years. Whilst I will do that, I cannot impose an inappropriate and inadequate sentence because of your age, you will not be young or middle‑aged men when released.[43]
[43]Ibid [100].
Her Honour’s approach accorded with orthodox and well‑established principle. The age of an offender is always a relevant consideration and may, in particular cases, be of considerable significance. But it will never be determinative.[44] Recently, in R v R L P,[45] this Court was considering the case of an offender who was 77 when sentenced. The Court summarised the applicable propositions as follows:
[44]DPP v Kien (2000) 116 A Crim R 339, 343 [17].
[45][2009] VSCA 271.
We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[46]
That approach has been applied in a number of subsequent cases.[47]
[46]Ibid [39] (footnotes omitted).
[47]See, eg, Collins v The Queen [2012] VSCA 163; Brennan v The Queen [2012] VSCA 151; R S J v The Queen [2012] VSCA 148. See also R v Moran [2011] VSC 375.
In R v Gregory,[48] the offender was 54 when he was sentenced for murder and intentionally causing serious injury. The head sentence was 27 years’ imprisonment, which meant that if the offender were to serve the full term, he would not be released from prison until he was 80. The majority of the court rejected the argument that his age required a lesser sentence.
[48][2000] VSCA 212.
Winneke P said of the fact that the offender would be in prison until an advanced age:[49]
Furthermore, even if the sentences can be regarded as ‘crushing’, in the sense of destroying prospects of useful life after release, I am not persuaded that, in the circumstances of this case, they are manifestly excessive. The appellant’s counsel acknowledged during the hearing of the plea that his client ‘expected a significant gaol sentence’ which would leave ‘no real prospect that he is going to have many pieces to pick up after he is released. His life is very much at an end’. That submission seems to me to reflect the reality of the situation where a 53 year old man commits crimes as serious as these. Those who commit such crimes at an advanced age cannot expect to escape the consequences of what they have done simply because of their age. Age, in many cases, will be a relevant sentencing consideration, whether it be youthful or advanced. But age, alone, cannot be permitted to justify the imposition of an unacceptably inappropriate sentence. As Crockett J said in R v Crowley & Garner:[50]
It does not follow that every sentence which justifiably deserves the epithet [ie ‘crushing’] must on that account, and on that account alone, be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope or expectation.
What was said there is directly applicable to both of the appellants, in our view.
[49]Ibid [21] (some footnotes omitted).
[50](1991) 55 A Crim R 201, 206 (Crockett J).
The non‑parole period of 30 years was properly viewed as the minimum which justice required be served, for all the reasons which her Honour gave.
Manifest excess —Zirilli
The submission for Mr Zirilli accepted that his offending was very serious, but contended that both the total effective sentence and the non‑parole period were manifestly excessive having regard to:
(a)his role in the offending;
(b)his reasons for becoming involved initially and then for remaining involved in the subsequent offending;
(c)his pleas of guilty;
(d)his remorse;
(e)the absence of prior convictions;
(f)the delay between his being charged and sentenced, the strain of that delay, and the ‘wise way’ in which he had used his time;
(g)his low risk of reoffending;
(h)his age (55 at the time of sentence);
(i)his prospects of rehabilitation; and
(j)the prosecution’s submission on range.
As with Mr Barbaro, particular emphasis was placed on Mr Zirilli’s age. He will be 73 before he is eligible for parole, and 81 when the sentence expires. According to the submission:
The applicant should not be crushed by the sentence but rather should be given the hope of returning to his family and having a useful life after release. The present sentence will extinguish that hope.
These submissions must be rejected, in our view. We set out earlier her Honour’s description of the gravity of the offending and of Mr Zirilli’s role. We have also set out the approach to be adopted to the sentencing of someone of Mr Zirilli’s age. When those considerations are brought to account, it can be seen that both the total effective sentence and the non‑parole period were entirely appropriate.
The fact that the head sentence imposed fell outside the Crown range is immaterial.
Parity
A ground complaining about disparity in the treatment of co‑offenders is to be approached within the same analytical framework as the ground of manifest excess. That is, the question for consideration is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co‑offenders in the way he/she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances. The answer to that question determines whether — in the accepted terminology — the person making the complaint has a ‘justifiable sense of grievance’.[51]
[51]Teng v The Queen (2009) 22 VR 706, 710 [17].
In the present case, it was well open to her Honour to differentiate between Mr Barbaro and Mr Zirilli in the way that she did. We do not regard the contrary as reasonably arguable, and we would refuse Mr Barbaro leave on this ground also.
The case against Mr Barbaro was that he was ‘at the apex’ of the criminal organisation behind all three offences. As her Honour correctly pointed out, there was no challenge to this on the plea. Senior counsel for the Crown argued on the appeal that there was a very clear difference between Mr Barbaro and Mr Zirilli as to their respective roles. Throughout the period, and in all of the offending, Mr Barbaro was the driving force, the controller, the decision‑maker, the person giving the instructions. When not getting others to do things, he was doing them himself.
As the Crown summarised the position in its appeal submission:
Zirilli was, indeed, relatively ‘high in the hierarchy of offending’ in the sense that his close, long and trusted association with the applicant often elevated his personal importance above other charged co‑conspirators.
But the applicant was the essential figurehead —in constant contact with his international, interstate and local criminal associates. He gave directions to everyone, including Zirilli. His revealed levels of energy and resilience commanded respect — and it was forthcoming from all. Little was done in Barbaro’s absence, or at least not without his unrelenting vigilance when elsewhere.
No issue was taken with these characterisations. There was, moreover, a material difference between the appellants with respect to specific deterrence. We have already referred to the matters which were properly taken into account in relation to Mr Barbaro.
Furthermore, as noted earlier, Mr Barbaro had asked the sentencing judge, pursuant to s 16BA of the Crimes Act 1914 (Cth), to take into account three additional offences. The offences were described as follows:
1.Between 14 May and 8 August 2008, conspiring with others to import a precursor (pseudoephedrine) in a commercial quantity (contrary to ss 11.51 and 307.11.1 of the Commonwealth Criminal Code (the ‘Code’) — maximum penalty 25 years’ imprisonment).
2.Between February and August 2008, dealing with money to the value of $7 million, being the proceeds of crime (contrary to s 400.3.1 of the Code — maximum penalty 25 years’ imprisonment).
3.Between July and August 2008, receiving, possessing and disposing of money which it was reasonable to suspect was the proceeds of crime (contrary to s 400.9 of the Code — maximum penalty 2 years’ imprisonment).
As to item 2 — the money laundering count — the Crown summary stated:
The majority of the cash dealings comprised in the more serious money laundering offence relate to the proceeds of crime derived from the between dates MDMA trafficking offence to which Mr Barbaro (and Mr Zirilli) pleaded guilty. This amount is $5,658,120.00.
The additional criminality characterising these cash dealings (ie beyond being a mere ordinary incident of trafficking) arises in consequence of the delivery of the cash to local third party cash dealers for money laundering by use of the ‘cuckoo smurfing’ method whereby the cash delivered does not physically or electronically leave Australia and an equivalent amount of cash (less commission) is soon afterwards physically delivered to the European narcotics suppliers in Europe.
Barbaro’s money laundering involvement also extended to regularly communicating and sometimes meeting with a person in Singapore … who was involved as an intermediary between the international money dealers based in Singapore and the European narcotics supplier syndicate.[52]
Her Honour described the processes used by Mr Barbaro to launder money as ‘sophisticated, clever and above all successful’.[53]
[52]Emphasis in original.
[53]Reasons, [52].
Depending on the (relative) seriousness of the offence(s) taken into account under s 16BA of the Crimes Act 1914 (Cth), it may be necessary for the sentencing court to include a ‘significant additional component’ in the sentence being imposed for one or other of the primary offences — that is, the offences of which the offender has been convicted — to reflect the criminality involved in the offences taken into account.[54] In the present case, the judge would have been entitled to take that course, as the additional offences were very serious, but she did not do so. Her Honour said:
[54]R v Nguyen (2010) 205 A Crim R 106, 134 [118].
You shall not be punished additionally for the offences taken into account, but they are capable of informing the Court in relation to your conduct overall during the relevant times and may well go to the issue of remorse and prospects of rehabilitation.[55]
[55]Reasons, [48].
On any view, the additional offences represented a most material point of difference between the co‑offenders.
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