Barbaro v The Queen

Case [2012] VSCA 288


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

  1. 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.

  1. 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.

  1. Between 13…

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AGLC
Barbaro v The Queen [2012] VSCA 288
Case
[2012] VSCA 288
Decision Date

CaseChat Overview and Summary

The appellant, Barbaro, appealed against his sentence of life imprisonment with a non-parole period of 30 years, imposed by the Supreme Court of Victoria for drug trafficking offences. The court had to decide if the sentence was manifestly excessive and whether the appellant's age should be considered as a mitigating factor. The Crown had provided a submission on the sentencing range, which the judge declined to entertain. The appellant argued this was a breach of natural justice and that the sentence was crushing due to his age.

The court examined whether the sentence was manifestly excessive, considering the severity of the crimes and the appellant's age. The court found that the sentence was not manifestly excessive and that the judge's refusal to entertain the Crown's submission on the sentencing range did not constitute a breach of natural justice. The court held that there was no obligation for the sentencing judge to receive such submissions and no error of law was made. The court applied the decision in R v MacNeil-Brown, confirming that the refusal to consider the Crown's submission did not amount to a failure to take into account a relevant consideration.

The appeal was dismissed, and the appellant's renewed application for leave to appeal was also refused. The Supreme Court upheld the sentence as appropriate given the gravity of the offences and the appellant's age, which did not render the sentence crushing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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