Director of Public Prosecutions & CDirector of Public Prosecutions v Marrogi & Mannella
[2023] VCC 280
•24 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01753 & CR-22-01757; CR-22-01518 & CR-22-01519
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & DIRECTOR OF PUBLIC PROSECUTIONS (Vic) |
| v |
| George Marrogi & Anonietta Mannella |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2023 | |
DATE OF SENTENCE: | 24 February 2023 | |
CASE MAY BE CITED AS: | DPP & CDPP v Marrogi & Mannella | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 280 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Guilty plea - Co-accused – Offending while in custody - State drug trafficking offences -1,4-Bd - Commonwealth importation offences – Heroin and methamphetamine – Very onerous conditions in jail - Solitary confinement - Totality having regard to existing state sentence – Parity
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:DPP v George Marrogi [2022] VSC 210; Lowe v The Queen (1984) 154 CLR 606; R v Mangelen (2009) 23 VR 697; Obian v The Queen [2023] VSCA 18; Quah v The Queen [2021] VSCA 164; Gregory v The Queen 2017] VSCA 151.
Sentence: George Marrogi – Total effective sentence of 22 years; new State non-parole period of 33 years. Section 6AAA – 30 years.
Antonietta Mannella – Total effective sentence of 13 years; non-parole period of 6 years and 10 months. Section 6AAA – 17 years.
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APPEARANCES: | Counsel | Solicitors |
For the DPP (Vic) For the CDPP | Ms D Caruso Ms SJ Holmes | Abbey Hogan, OPP Office of the CDPP |
| For George Marrogi For Antonietta Mannella | Mr P Morrisey SC Mr C Mandy SC | Malasecca, Kelly and Zayler Giorgianni and Laing, Lawyers |
HIS HONOUR:
1George Marrogi and Antonietta Mannella (‘the offenders’) have each pleaded guilty to one State offence and one Commonwealth offence.
2The State offence is attempting to traffick in a drug of dependence, namely 1,4-Butanediol, in a quantity that was not less than a large commercial quantity contrary to s 71(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic) between 20 December 2021 and 24 January 2022. This offence carries a maximum penalty of imprisonment for life.
3The Commonwealth offence is importing substances which were border controlled substances namely heroin and methamphetamine in quantities which were no less than a commercial quantity contrary to s 307.1(1) of the Criminal Code (Cth) on 18 February 2022. This offence carries a maximum penalty of imprisonment for life.
4The offenders are to be sentenced on the basis of two summaries of prosecution opening which were filed with the Court:
(a) A State summary of prosecution opening for plea (Amended) dated 17 January 2023;[1] and
(b) A Commonwealth Summary of opening for Plea.[2]
[1] Exhibit P1.
[2] Exhibit P2.
5The summaries are appended to these reasons for sentence.
6The following is a factual summary of the State and Commonwealth offending by the offenders starting with some background information common to both sets of charges.
Background
7At all relevant times, Mr Marrogi was on remand at Barwon prison awaiting trial for murder in the Supreme Court of Victoria. He was in a romantic relationship with Ms Mannella, who lived in Mickleham.
8Prisoner calls at Barwon prison are monitored and recorded by prison authorities unless they are calls to lawyers which are privileged. On 27 July 2021 a landline number was connected in the name of a personal assistant working for the law firm providing legal services to Mr Marrogi. This occurred without the personal assistant’s knowledge. Two days later this landline was added to Mr Marrogi’s phone number list as the number of his lawyers (without their knowledge). That number was then set to automatically divert to Ms Mannella’s mobile number when it was called by Mr Marrogi.
9Mr Marrogi used this service to call Ms Mannella who would answer the phone by impersonating ‘Cassie’ a legal assistant at the law firm. Her usual greeting was ‘Melasecca, Kelly and Zayler, this is Cassidy speaking’. The offenders would then pretend to have a legal conversation for about 30 seconds before commencing their real conversation.
10Through this simple arrangement, the offenders were able to circumvent the monitoring of prisoner phone calls. During the calls, Mr Marrogi coordinated drug-related activities by giving instructions to Ms Mannella. She in turn ensured that his instructions were followed by others. They spoke using code words, nicknames and Assyrian words.
11Ms Mannella used the following techniques to avoid law enforcement detection:
(a) The use of encrypted communications such as Ciphr, Wickr, Signal and WhatsApp;
(b) The use of numerous different handsets and falsely subscribed SIM cards;
(c) Leaving messages in draft emails in an email account which could be logged into by criminal associates; and
(d) Using Virtual Private Networks to conceal Internet Protocol addresses and Virtual machines to conceal her digital footprint.
12In the various conversations, the offenders used a number of code words. For example, the word ‘Shula’ meant drug related work; the word ‘Zuze’ meant cash; and ‘kittens’ were live drug imports. A full list of the code terms is included at paragraph 17 of the Commonwealth Summary.
The State Offending
13In 2021, Mr Marrogi was owed a debt of $1.5 million by Zachary Katalanos. Ms Mannella was aware of this debt and that it arose from criminal activity. Ms Mannella’s role was to help Mr Marrogi recover the debt by sourcing drugs and arranging for them to be sold by others. Katalanos was to source the 800 litres of 1,4-Butanediol. Katalanos left Australia in February 2022 and has not returned. He has not been charged.
14Kurt Opray was living in South Australia. His role was to source the drugs and organise transport to Victoria. He organised for his Uncle, Scott Edwards to transport the drugs. Opray faces court on 28 February 2023.
15Edwards was to transport the drugs to Victoria for which he was to be paid $8,000 by Opray. Edwards was arrested in Horsham driving the vehicle which contained the drugs. He faced court on 21 February 2023.
16Zacharia Amouche was to traffick the drugs once received in Victoria. He is no longer living in Australia and has not been charged.
17Australian Federal Police intercepted coded conversations between Ms Mannella, Opray and Katalanos between 20 December 2021 and 24 January 2022.
18Those intercepts revealed that between December 2021 and January 2022, Opray and Edwards discussed transporting the drugs.
19On 4 January 2022, Ms Mannella requested a meeting with Katalanos to discuss how he would deliver the 4 drums to her.
20The next day she had coded conversations with Mr Marrogi in which they discussed that Katalanos (referred to as ‘Atlas’) owed them money. Ms Mannella told Mr Marrogi that she was meeting Katalanos. Mr Marrogi told her to have Amouche (referred to as ‘Parra’ or ‘Fave’) at the meeting.
21Ms Mannella, Amouche and Katalanos met at the Crème Café in Keilor on 5 January 2022. Ms Mannella reported to Mr Marrogi that the meeting went well.
22The following day, Ms Mannella and Mr Marrogi discussed providing Amouche with a dedicated encryption device so that he could communicate with Katalanos.
23On 16 and 17 January 2022, the offenders discussed an agreement that had been made with Katalanos which was that he would have a driver deliver the 800 l of 1,4-Butanediol to pay off the debt. They discussed that they could sell the drugs for $2,000 per litre and that Amouche would traffick the drugs. They also discussed that Katalanos would provide them with $525,000 worth of heroin. Extracts from these coded conversations are reproduced at paragraph 21 of the State summary.
24There were further discussions between the offenders on 17 and 18 January about delivery arrangements. Delivery was to take place on 24 January 2022. Ms Mannella was added to an encrypted chat group with Opray.
25On 23 January 2022, Edwards’ truck was loaded with the barrels and he drove to Horsham where he was intercepted by Victorian police who searched the truck and found 4 200 litre drums containing liquid. Edwards was arrested and interviewed. He told police about fake emails that had been provided to him to use as a part of a cover story.
26On 25 and 28 January 2022 the offenders discussed the arrest of Edwards and the need to organise a lawyer for him.
27The contents of the drums were analysed by forensic scientist Joanne Winter. Ms Winter describes the substance in drums 1 and 2 as a colourless slightly viscous liquid. There were no drugs detected in drums 1 and 2.
28Drums 3 and 4 contained a partially solidified colourless viscous liquid. Drum 3 contained 116 kg and drum 4 contained 186 kg of 1,4 Butanediol. The total mass was 347 kg. A large commercial quantity of this drug is 20 kg. 800 kg is 40 times the large commercial quantity threshold; 347 kg is 17.35 times the large commercial quantity threshold.
The Commonwealth offending
29On 26 October 2021, the AFP commenced Operation FUJI to target the offenders and others for their suspected involvement in importing large quantities of border controlled drugs into Australia. One aspect of the operation involved monitoring calls using Ms Mannella’s mobile phone numbers.
30In conversations which commenced on approximately 23 December 2021 the offenders discussed a number of planned drug importations with two associates codenamed ‘Brata’ and ‘Love’.
31Between December 2021 and February 2022 they had numerous conversations with Brata and Love regarding the importation of border controlled drugs through Tullamarine airport. Extracts from these conversations are included in the Commonwealth summary at paragraphs 23-33.
32On 31 January 2022 the offenders discussed flight schedules, flight times, arrival times and when cargo can be collected.
33The consignment containing the drugs arrived at Melbourne airport on a Qantas flight on 18 February 2022. At 12.48 pm Mr Marrogi asked Ms Mannella ‘how are the fish going? And ‘Did they move to the aquarium or not yet’. She responded ‘yeah, they’re at the aquarium’ and ‘they’re in the process of it’. There were a number of further conversations between the offenders that day in which Mr Marrogi expresses his frustration about the delays associated with the release of the consignment by authorities at the airport.
34On 19 February 2022, Australian Border Force conducted an examination of the consignment which was labelled as ‘Neodymium Magnets’. It consisted of a shipping pallet holding 27 boxes stacked three rows high. The first layer of nine boxes contained scrap metal. In the other boxes, the ABF found 56 kg of methamphetamine in tea packets and 13 kg of heroin. 69 kg of border controlled drugs were found and provided to the AFP for analysis.
35Analysis of the drugs revealed that the purity of the methamphetamine was 80.3%. The total pure weight was 42.14 kg, well in excess of a commercial quantity. The heroin was between 52.1% and 76.5% pure. The total weight of heroin was 8.8 kg, well in excess of a commercial quantity.
36At 2.43 pm on 24 February 2022, after a number of calls between the offenders discussing what had gone wrong with the importation of the drugs, Ms Mannella spoke to Tony Mokbel in Barwon prison who was housed in the same area of the prison as Mr Marrogi. She told Mokbel that the consignment had been seized by law enforcement. The purpose of telling Mokbel this was for him to pass the message to Mr Marrogi.
37On 23 April 2022, the AFP executed a search warrant at Ms Mannella’s house in Mickleham. She was arrested for importing a commercial quantity of border controlled drugs. Police seized a computer and four mobile phones. Evidence of involvement in the importation of the consignment was located.
Objective Seriousness
38Attempting to traffick in a large commercial quantity of a drug of dependence and importing a commercial quantity of border control drugs are very serious criminal offences. That much is clear from the maximum sentences of life imprisonment that each offence attracts. Trafficking in large quantities of drugs and arranging the importation of drugs from prison while serving a sentence for murder is outrageous. Such brazen conduct makes a mockery of the criminal justice system and is an affront to the community.
39As submitted on behalf of the State DPP, there are several aggravating features of the State offending which include:
(a) The offenders expected to receive 800 kg which is 40 times the large commercial quantity threshold;
(b) This was a pre-planned sophisticated syndicate;
(c) The purpose of the trafficking was to pay off a debt, i.e. for pure financial gain.[3]
[3] Outline of Prosecution Plea Submissions by DPP dated 23 January 2023 at [12].
40The aggravating features of the Commonwealth offending include:
(a) The quantity of the drugs – 56 times the commercial quantity of methamphetamine and 5 times the commercial quantity of heroin;
(b) The estimated street value of the drugs was between $23 million and $34 million;
(c) The offenders were in the business of drug importing.[4]
[4] Commonwealth Sentencing Submissions dated 23 January 2023 at [9]-[13].
41As discussed later in these reasons, the law concerning drug trafficking is quantity-based. The State offending was concerned with a ‘large commercial quantity’ of drugs whereas the Commonwealth offending was concerned with a ‘commercial quantity’. The concept of ‘large commercial quantity’ does not exist in Commonwealth law. The offences were also concerned with different drugs.
42However, the quantity of the drugs imported by the offenders comfortably meets the definition of ‘large commercial quantity’ in State law. All three of the drugs involved cause untold misery in the community and are involved in much of the crime that comes before this court.
43I have therefore concluded that the objective gravity of the State and Commonwealth offences is broadly similar. I have reached this conclusion based not just on quantity but also the level of sophistication associated with the offending and the motive for both of the offending being pure financial gain.
44It is important however to distinguish between the roles of the two offenders. This is an important consideration in sentencing for the offences before the court.
45As his own counsel conceded, Mr Marrogi ‘assumes primary responsibility for the offending’.[5] He was running a drug importation business while in custody. He manipulated Ms Mannella into assisting him by taking advantage of her romantic attachment to him.
[5] Defence Outline of Submissions on Plea and Sentence (Marrogi) dated 18 January 2023 at [2].
46While Ms Mannella’s role is clearly subordinate to that of her co-offender, I accept the Commonwealth prosecutor’s submission that the evidence shows a level of independence of her actions.[6]
[6] Commonwealth Sentencing Submissions dated 23 January 2023 at [15]-[17].
47As is clear from her extensive communications with Mr Marrogi and others involved in both crimes, Ms Mannella’s role is perhaps best described as an ‘integral facilitator’ of both the attempted trafficking and the importation.[7] In relation to the Commonwealth offending, the opening identifies a large number of communications between the two co-offenders concerning the importation of heroin and methamphetamine. The content of those conversations makes it clear that Ms Mannella was discussing the same matters with the others involved in the importation.
[7] Cf. Nguyen v R (2011) 31 VR 673 at [69].
48She therefore falls into a category of offender that is lower than the ultimate principal but a person who plays a ‘key role’ in each operation. I accept the description of her role in the Victorian prosecutor’s submissions as ‘secondary but integral’.[8]
[8] Outline of Prosecution Plea Submissions by DPP dated 23 January 2023 at [12(d)].
Personal circumstances: Ms Mannella
49Ms Mannella is now 29 years of age and has no prior convictions or prior involvement in any criminal activity.
50She grew up in a religious home attending bible study classes. She continues to practise her faith on remand.
51Her father was violent toward her mother. When she was six years old, Ms Mannella’s father was executed possibly for underworld related reasons. She recalls seeing his body lying in the street under a sheet. Ms Mannella’s mother was unable to cope and she and her siblings lived with their grandparents. Ms Mannella was partly responsible for raising her siblings and became guardian for her brother when she turned 18.
52Ms Mannella had a good work history prior to meeting Mesh Marrogi.
53She was introduced to Mr Marrogi by his sister Mesh Marrogi for whom she was working. Ms Mannella knew that the Marrogis were involved in dubious activity and she soon became involved herself through her close friendship with Mesh.
54After Mesh died from Covid-19, Mr Marrogi asked Ms Mannella to assume the role previously played by Mesh in his criminal activities. Ms Mannella had fallen in love with Marrogi and willingly assumed the role sometimes pretending to be Mesh in her dealings with third parties. Her attachment to Mr Marrogi was very unhealthy psychologically and she could not resist him. She genuinely believed they could have a happy crime free life with him after what she believed would be his imminent release from jail.
55The court has three reports prepared by Luke Armstrong, consulting psychologist.[9] Mr Armstrong describes Ms Mannella as a ‘very complex example of a dual diagnosis client’. He diagnoses her with Dependent Personality Disorder a ‘legacy of a highly disturbing and extreme experience of familial violence’ and Post Traumatic Stress Disorder. The Dependent Personality Disorder is a reference to her exposure in infancy to ‘her father’s sadistic and vicious violence toward her mother’. This is now in remission as a result of Ms Mannella’s treatment engagement. However, the PTSD symptoms continue as a consequence of exposure to disturbed prisoners.
[9] Report dated 26 August 2022 (ex A); report dated 15 December 2022 (ex B); and report dated 19 January 2023 (ex C).
56Mr Armstrong has assessed Ms Mannella on three occasions and concludes that ‘imprisonment has and will continue to have an adverse effect on her mental health’. This enlivens limb 6 of the Verdins[10] principles and is to be reflected in a moderation of her sentence.
[10] (2007) 16 VR 269.
57However, I do not accept her counsel’s submission that the evidence before the court provides a basis for a reduction in Ms Mannella’s moral culpability due to the application of Verdins limbs 1 and 2. Although I accept that Ms Mannella was somewhat under the spell of her co-offender, I do not accept that her disorder had anything to do with her motivation to offend.
58Mr Armstrong concludes that Ms Mannella’s risk of re-offending is low and that she has very promising rehabilitation and reformation prospects. In light of her lack of prior convictions, insight into the reasons for her offending, good work history, lack of alcohol and drug problems and preparedness to work in jail, I accept that her prospects of rehabilitation are very good.
59I have also read and taken into account the positive character references concerning Ms Mannella. They speak of a family-oriented and kind person. This is clearly an assessment at odds with the serious criminal offending in which she was engaged.
60According to Ms Mannella’s counsel’s submissions, ‘remand has provided powerful perspective’ and she can now ‘understand the way she was manipulated and used’.[11]
[11] Defence Outline of Submissions on Plea and Sentence (Mannella) dated 20 January 2023 at [6].
61Ms Mannella has been held in solitary confinement for 8 months while on remand in very difficult circumstances. Others in the unit where she is held are confined there temporarily to deal with mental health issues or withdrawal from drugs. They scream, smear the walls with their faeces and are disruptive. Sleep is difficult and social interaction nearly non-existent. Ms Mannella has limited opportunity to exercise.
62Ms Mannella has been told that she will remain in solitary confinement for the duration of her sentence for her protection. According to her counsel’s submissions, ‘this is because she is the notorious George Marrogi’s girlfriend, his enemies can get to him by assaulting her’.[12]
[12] Defence Outline of Submissions on Plea and Sentence (Mannella) dated 20 January 2023 at [11].
63Her counsel submits, and I accept, that ‘these are appalling conditions for any human being’.
64It is further submitted on her behalf that this solitary confinement is a ‘powerful factor which should reduce any sentence to be imposed’.[13] This argument was central to the submissions made to the court on Ms Mannella’s behalf.
[13] Defence Outline of Submissions on Plea and Sentence (Mannella) dated 20 January 2023 at [12].
65If all that is intended by this submission is that the court should have regard, in imposing sentence on her, to the particular way in which imprisonment may affect Ms Mannella, then I have no difficulty with it. However, if what is intended is that Ms Mannella should receive a demonstrably shorter sentence for her offending than would be imposed on another person who was not to be confined in the way she currently is, then I question it. No authority was cited in support of such a proposition.
66A similar argument was considered by the Western Australian Court of Criminal Appeal in the case of Bekink v R.[14] Anderson J rejected the proposition that ‘the length of prison terms generally should be linked to some norm as regards prison conditions and adjusted according to whether the prison in question meets the norm’.[15] In the same case, Heenan J identified a number of practical difficulties associated with adopting such an approach.[16]
[14] [1999] WASCA 160.
[15] [1999] WASCA 160 at [24].
[16] [1999] WASCA 160 at [31].
67I accept that an offender is ‘plainly entitled to have the fact that [her or his] period of incarceration would be spent in protection taken into account in [her or his] favour’.[17] The weight to be given to this consideration will depend on the circumstances and the evidence before the court. One consideration is why an offender is in restrictive or protective custody.
[17] R v ZMN (2002) 4 VR 537 at [24]; The Queen v Males [2007] VSCA 302 at [36] and [49]; R v Bangard (2005) 13 VR 146 at [14].
68I accept that Ms Mannella’s predicament in jail is dire. I also accept that this is likely to continue for the foreseeable future and perhaps for the entire length of her sentence. This is very unfortunate. I also accept that other than her association with her co-offender and his notoriety, her placement in protective custody is through no fault of her own. In particular, she is not a danger to anyone.
69In accordance with authority, I have taken these circumstances into account in mitigation of sentence along with the other mitigatory considerations listed above.
Personal circumstances – Mr Marrogi[18]
[18] This section draws on the findings by Coghlan J in DPP v Marrogi [2022] VSC 210 at [24]-[37].
70Mr Marrogi was born in Iraq in 1989. He came to Australia with his parents as refugees in 1996. He was six or seven when he came to Australia and attended St Thomas Moore school until grade five (about age 10) and then moved to Glenroy North State School in grade 6 (about age 11).
71He attended Box Forrest Secondary College and later Broadmeadows Secondary College. He found school very difficult. His parents separated when he was in Grade 6.
72During 2004 and 2005 Mr Marrogi was charged with a number of offences arising out of 14 different incidents. In May 2005 he was charged with armed robbery and released on bail.
73During this period, Mr Marrogi was assessed by a number of child psychologists. The reports of those assessment span the period 2005-2006. They have been provided to the court but beyond attesting to his challenging childhood, are of little assistance at this time.
74Also in May 2005, Mr Marrogi was involved in an incident at the McDonald’s car park in Roxburgh Park. He was armed with a knife and stabbed and killed one victim and stabbed and injured another. He was convicted of manslaughter and intentionally cause serious injury to a separate victim and sentenced to be imprisoned for nine and a half years with a non-parole period of six years.
75Mr Marrogi was 16 years old at the time of that offending and 17 years old at the time of sentence. He served the full non-parole period but shortly after his release he committed further offences which resulted in further sentences of imprisonment.
76Between May 2005 when he was 16 and 2016 when he was 27 Mr Marrogi spent most of his life in jail. In circumstances discussed later in these reasons, he was charged with murder in May 2016 and, after a number of trials were aborted, was convicted by a jury. In April of 2022, he was sentenced to serve 32 years with a minimum term of 27 years before he will be eligible for parole. Taking into account pre-sentence detention, Mr Marrogi will not be eligible for parole until 2044 at the earliest.
77While Mr Marrogi clearly has an extensive criminal history, none of his previous convictions have involved drug trafficking.
78The evidence before the court is that Mr Marrogi is in restrictive custody and is likely to remain so for the foreseeable future.
79Mr Marrogi’s position in this regard differs from that of Ms Mannella. Unlike her, he has been to some extent the author of his own misfortune. Little weight can be given to the conditions in which he is serving his sentence. As Coghlan J did, I take it into account along with other matters personal to him.[19]
[19] [2002] VSC 210 at [41].
Other matters of mitigation
80Both offenders pleaded guilty at the earliest opportunity. This is significant. It saves the court and prosecuting authorities the time and expense associated with running what would be a complex and lengthy trial. It saves witnesses from having to give evidence. Guilty pleas at the present time have a greater than usual utilitarian benefit due to the continued backlog of trials in our courts caused by the pandemic.[20]
[20] Worboyes v The Queen [2021] VSCA 169.
81Mr Marrogi is 34 years old and Ms Mannnella is 29 years old. While not youthful offenders, they are relatively young and both have the bulk of their lives ahead of them. It is important that the sentence I impose on Ms Mannella in particular is not crushing in the sense of being so long that it extinguishes all hope that she may have for the future. As I have noted, there are indications in the evidence before the court that she may be able to live a productive life. I have sought to maximise the chances of her doing this in the non-parole period I have set. Mr Marrogi too is entitled to look forward to a day when he can re-join the community. I have taken that into account in setting his new non-parole period.
Submissions of the parties
82Mr Marrogi’s counsel accepted that a ‘firm but fair sentence’ is required but submitted that a ‘very high degree of concurrency is warranted’.[21] Mr Morrisey submitted that a lengthy non-parole period is in place and the court should ‘consider adding a minimal period if any’.[22]
[21] Defence Outline of Submissions on Plea and Sentence (Marrogi) dated 18 January 2023 at [22].
[22] Defence Outline of Submissions on Plea and Sentence (Marrogi) dated 18 January 2023 at [25].
83Both the Commonwealth and State prosecutors urged the Court to reject this submission. Ms Holmes for the Commonwealth Director submitted that ‘additional time is required on the current term the offender Marrogi is serving’. This is because ‘… a message must be sent to the community and others in custody that serious offending in custody has significant consequences’.[23]
[23] Commonwealth Sentencing Submissions dated 23 January 2023 at [33], emphasis added.
84Ms Caruso for the State Director submitted that the sentence imposed on Mr Marrogi ‘… ought to contain orders for cumulation on his current sentence’ and that a new combined head sentence and non-parole period will need to be ordered’.[24]
[24] Outline of Prosecution Plea Submissions by DPP dated 23 January 2023 at [44].
85Ms Mannella’s counsel Mr Mandy SC accepted that a ‘custodial term is unavoidable’.[25] He submitted that taking into account the onerous conditions under which Ms Mannella is serving her sentences and the other mitigating matters relied upon, ‘a very substantial moderation in the sentences to be imposed is required, to give effect to the overriding principle of just punishment’.[26]
[25] Defence Outline of Submissions (Mannella) dated 20 January 2023 at [32].
[26] Defence Outline of Submissions (Mannella) dated 20 January 2023 at [33].
86The State prosecutor accepted that the conditions of Ms Mannella’s remand are ‘extremely burdensome’ and accepted that they should ‘moderate her sentence’.
Current Sentencing Practices
87Recent appellate decisions have emphasised that significant terms of imprisonment must be imposed in cases such as the ones before the Court. In Gregory v The Queen[27] the Victorian Court of Appeal held that by setting the maximum penalties it has, the legislature must be taken to have intended sentences ‘well into double figures’ for Commercial Quantity drug trafficking offences where one or more of five identified features were present.[28] Of those five, two are present here: the quantity involved approaches (in fact exceeds in the case of the State offence) the large commercial quantity threshold; and the offender (in the case of Mr Marrogi) was in charge of the trafficking business.
[27] [2017] VSCA 151.
[28] [2017] VSCA 151 at [98].
88Gregory pre-dated the standard sentence regime introduced by sections 5A and 5B of the Sentencing Act 1991 (Vic). In the more recent case of Quah v The Queen,[29] the Victorian Court of Appeal referred to both Gregory and the standard sentence for large commercial quantity drug trafficking (16 years) and confirmed the need for increased sentences for upper level offences of commercial quantity trafficking and for a consequent increase in sentences for large commercial quantity trafficking.[30]
[29] [2021] VSCA 164.
[30] [2021] VSCA 164 at [55]-[56].
89The Court referred to the quantity-based nature of the sentencing regime and concluded that ‘other things being equal, an offence of large commercial quantity trafficking which involves … a quantity representing multiples of the large commercial quantity threshold is more serious than an offence of commercial quantity trafficking which involves a quantity representing multiples of the
commercial quantity threshold.[31]
[31] [2021] VSCA 164 at [56].
90These cases were concerned with trafficking significant quantities of methamphetamine. The State DPP informed the court that it was unable to refer the court to a trafficking case involving a large commercial quantity of 1,4-Butanediol.
911,4-Butanediol is also known as ‘1,4-BD’. The recent case of Obian v The Queen[32] involved an appeal against a sentence imposed in this Court for what the Court of Appeal described as ‘the highest known quantity of 1,4-BD trafficked in Victoria or any other Australian jurisdiction’.[33] The offender was charged with trafficking a commercial quantity as, at the relevant time, there was no large commercial quantity specified for the drug.
[32] [2023] VSCA 18.
[33] [2023] VSCA 18 at [380].
92In the course of the decision, McAuley JA explained that ‘1,4-BD is a chemical solvent. It has a number of industrial uses. One is that, when diluted with water, it may be used as a domestic or commercial cleaning product. Aside from industrial uses, when flavoured (to disguise its unpleasant taste), it may also be ingested orally in which case the human body will naturally metabolise it to become gamma-hydroxybutyrate, more commonly known as GHB. GHB is colloquially known as ‘the party drug’ or ‘the date rape drug’. When consumed, it can induce euphoria and have a sedating effect. For that reason, 1,4-BD is a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act1981 … except if and when used for a lawful industrial purpose’.[34]
[34] [2023] VSCA 18 at [115].
93The Court of Appeal in Obian accepted that ‘the potential harm of 1,4-BD to the community was also relevant to assessing the criminality involved’. It noted that ‘[e]vidence before the sentencing judge showed 1,4-BD had become a dangerous substitute for GHB, effectively replacing GHB from as early as 2014, and posed a particular risk of lethal overdose due to the delay in 1,4-BD achieving its desired effect’.[35] While I don’t have that evidence before me, I take into account the effects of the drug as described in Obian.
[35] [2023] VSCA 18 at [380].
94A total effective sentence of 17 years and 10 months was upheld by the Court of Appeal. The trafficking was carried out as part of a sophisticated commercial enterprise, the offender was young, had no prior convictions, pleaded guilty and played an important role in the enterprise although he was not the principal.
Consideration
95As the Court of Appeal explained in the case of Brown,[36] there needs to be a ‘clear signal to would-be offenders, motivated by the potential financial rewards of drug importation, that detection will ‘inevitably lead to very lengthy terms of imprisonment’.[37] General deterrence is a sentencing consideration of great importance in this case along with denunciation and, especially in the case of Mr Marrogi, specific deterrence. While rehabilitation is also of considerable importance in the case of Ms Mannella, it is not entirely irrelevant in the case of Mr Marrogi although it is necessarily of lesser concern than general and specific deterrence.
[36] [2017] VSCA 162.
[37] [2017] VSCA 162 at [9].
96I am required to sentence each offender in accordance with the applicable legislative requirements. In relation to the State offence these are set out in the Sentencing Act 1991 (Vic), especially s 5. As far as the Commonwealth offence is concerned, the court’s obligations are set out in s 16A(2) of the Crimes Act 1914 (Cth).
97In relation to the State offence, I note that the standard sentence of 16 years which applies for trafficking a large commercial quantity has no application to a case of attempting to traffick a large commercial quantity such as the present one.[38]
[38] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71(2).
Totality
98The question of the extent to which the sentence on the State charge should be served concurrently with the sentence on the Commonwealth charge arises in respect of both offenders. That question is to be answered by reference to s 16 of the Sentencing Act 1991 (Vic), s 19 of the Crimes Act 1914 (Cth) and the application of the principle of totality.
99Section 16 of the Sentencing Act 1991 (Vic) provides that, subject to a number of presently irrelevant exceptions, every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence … imposed on the person, whether before or at the same time as that term’.
100Section 19 of the Crimes Act 1914 (Cth) requires a court, when sentencing a person for a federal offence where that person is already serving a sentence for a State offence, to direct when the federal sentence commences but so that:
(a) The federal offence commences no later than the end of the existing sentence; and
(b) If there is an existing non-parole period, the federal offence is to commence immediately after the end of that period.
101The principle of totality requires a sentencing judge who has determined the appropriate sentences in respect of the offences on the indictment to ‘stand back and assess not just the individual sentences but the aggregate sentence and consider whether the aggregate is proportionate to the degree of criminality involved and is “just and appropriate” and “not excessive”’.[39]
[39] See Berry v The Queen [2019] VSCA 291 at [22] and the cases there cited.
102Importantly for present purposes, the courts have ‘repeatedly said that they do not wish to impose upon offenders sentences that produce a feeling that it is hopeless ever to expect release’.[40] This is referred to as the need to avoid imposing a ‘crushing sentence’.[41]
[40] Fox & Freiberg, Sentencing: State and Federal Law in Victoria (3rd ed) at p 244.
[41] See R v Yates [1985] VR 41 at 48.
103Significantly for Mr Marrogi, it is important to recognise that ‘… the severity of a term of imprisonment is an exponential function, not merely linear.’.[42] As Redlich JA explained in Azzopardi, ‘the severity of the sentence increases exponentially as it increases in length’.[43] In other words, in the eyes of the law, confinement for 20 years is more than double confinement for 10 years.
[42] Obian [2023] VSCA 18 at [405].
[43] (2011) 35 VR 43 at [62].
104An additional question of the application of the totality principle arises in relation to Mr Marrogi. The principle of totality must also be applied having regard to the very lengthy sentence for murder he is already serving. The court is also required to consider ‘the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence’.[44] The principle is to be applied to both fixing the head sentence and the non-parole period.[45] The purpose is to ‘guard against arriving at an unjust sentence derived from the bare accumulation of individual sentences passed on one or more occasion’.[46]
[44] R v Mangelen (2009) 23 VR 697 at [28]; Berry v The Queen [2019] VSCA 291 at [32].
[45] (2009) 23 VR 697 at [28].
[46] Berry v The Queen [2019] VSCA 291 at [24].
105The Court of Appeal has recently observed that ‘the totality enquiry does not, of course, end with an assessment of the aggregate criminality involved in the offending’. The total effective sentence will only satisfy the requirement of proportionality if it is a ‘just and appropriate measure of the total criminality involved’.[47]
[47] Mohamed [2022] VSCA 136 at [65], reference omitted.
106The difficulty of doing this is illustrated by a case where an offender had committed a number of offences within a short period of time in different States. The High Court considered the appropriate application of the totality principle by a court in one State imposing a sentence on an offender who had already served a sentence in another State.[48] The Court concluded that the second court should ‘ask what would be likely to have been the effective head sentence imposed if the offender had committed all three offences in one jurisdiction and had been sentenced at one time’.[49] The court accepted that the sentence imposed by the second court may well ‘fail to reflect adequately the seriousness of the crime in respect of which it is imposed’ describing that result as ‘unfortunate’ but preferable to the ‘injustice involved in the imposition of a longer head sentence’.[50]
[48] Mill v The Queen (1988) 166 CLR 59.
[49] (1988) 166 CLR 59 at 66.
[50] (1988) 166 CLR 59 at 67; Postiglione v The Queen (1997) 189 CLR 295 at 338.
107Although the present circumstances differ from those the High Court considered in Mill, the complexity of the task faced by this court is illustrated by the observations of the High Court in that case.
108Finally, the authorities make clear that totality ‘is not a principle to be applied without regard to the components of instinctive synthesis’. In other words. the principle must not ‘override nor should it engulf other critical sentencing considerations’.[51]
[51] R v Mangelen (2009) 23 VR 697 at [36].
109In this case, those considerations include imposing a sentence that reflects the objective gravity of the offending; achieving general and specific deterrence; protecting the community and promoting the offender’s rehabilitation.
110Finally, ‘there is a limit to the extent to which considerations of totality can operate to reduce the punishment which would otherwise be imposed’.[52]
[52] R v Mangelen (2009) 23 VR 697 at [42].
Parity and Totality
111A further issue of principle that applies in this case concerns the relationship between the principles of parity and totality. The principle of parity stipulates that offenders who have jointly engaged in the same type of criminal conduct should ordinarily receive similar sentences. While differences in outcomes can, and in fact must, reflect the differing culpability of co-offenders as well as their differing personal circumstances, any difference that engenders a ‘justifiable sense of grievance’ on the part of the more heavily sentenced co-offender that justice has not been done will amount to a sentencing error.[53]
[53] Lowe v The Queen (1984) 154 CLR 606.
112The two principles are important and must both be applied. However, where there is a conflict in the application of the two principles, the principle of totality ‘normally prevails’.[54] Thus in circumstances such as the present ones, where only one co-offender falls to be sentenced having regard to an existing sentence they are serving, there will be no failure to sentence in accordance with law if there is a disparity in the ultimate sentences imposed on the co-offenders.[55] In other words, a comparison of the time one co-offender is to serve for the offence with the time the other is to serve will not be a comparison of ‘like with like’.
[54] Fox & Freiberg, Sentencing: State and Federal Law in Victoria (3rd ed) at p 804.
[55] Postiglione v The Queen (1997) 189 CLR 295 at 321 (Gummow J); at 313 (McHugh J); and at 337-338 (Kirby J).
113Turning then to consider the application of these principles to the offence for which Mr Marroggi is currently serving a sentence, I cannot do more than repeat the assessment by the sentencing Judge that Mr Marrogi committed a ‘very serious case of murder’.[56] The highly experienced criminal law Judge and former Director of Public Prosecutions described the crime as ‘one of the most blatant examples of murder [he] had seen’.[57]
[56] DPP v George Marrogi [2022] VSC 210 at [17].
[57] DPP v George Marrogi [2022] VSC 210 at [148].
114His Honour’s assessment was based on four considerations which were, in summary:
(a) The crime was premeditated;
(b) The shooting occurred in a public place;
(c) The victim was an innocent man who had been lured into a trap; and
(d) After shooting the victim numerous times, Mr Marrogi left the scene.[58]
[58] DPP v George Marrogi [2022] VSC 210 at [17].
115Coghlan J sentenced Mr Marrogi as a ‘serious violent offender’ in light of his previous convictions for manslaughter and intentionally causing serious injury.
116The sentence of imprisonment for 32 years with a non-parole period of 27 years reflected his Honour’s assessment of Mr Marrogi’s criminality. Taking account of the time he had spent on remand, Mr Marrogi’s current sentence will expire in May 2049 when he is 59 years old. He will have been in custody for 42 of the 43 years since he turned 16. Mr Marrogi is presently eligible for parole in May 2044.
117Contrary to Mr Morrisey’s submissions on behalf of Mr Marrogi, his offending in this case is far too serious for the sentence I impose to be served wholly concurrently with his current sentence. As Ms Holmes for the CDPP submitted, the message this would send to anyone serving a long prison sentence is that they can engage in serious criminal offending with little practical consequence. This would severely undermine the messages of specific and general deterrence which Mr Marrogi’s counsel has accepted are relevant to the Court’s sentencing task. As I have noted earlier, his brazen offending must be denounced and others tempted to offend in this way be deterred.
118Ms Mannella’s sentences should be considerably shorter than those imposed on Mr Marrogi to reflect her lesser role in the offending, her lack of any prior convictions and her positive prospects of rehabilitation.
Orders[59]
[59] The Court expresses its gratitude to the parties for their assistance in drafting the Orders in what has been a very complex sentencing exercise.
119I make the following Orders in relation to George Marrogi:
(a) For the State offence of attempting to traffick a drug of dependence in a large commercial quantity, I sentence you to 18 years’ imprisonment.
(b) I direct that 2 years of that sentence be served cumulatively upon the sentence imposed on you by the Honourable Justice Coghlan on 29 April 2022.
(c) I fix a new State non-parole period of 32 years in place of the existing non-parole period of 27 years. This non-parole period effectively commences on 24 June 2017 (taking into account the 1770 days pre-sentence detention that was declared by the Honourable Justice Coghlan when sentencing you on 29 April 2022).
(d) For the Commonwealth offence of importing a border controlled drug in a commercial quantity, I sentence you to 18 years’ imprisonment.
(e) I direct that the Commonwealth sentence commence 14 years before expiration of the State drug sentence. The effect of this is that 14 years of the federal sentence will be served concurrently with the State drug sentence.
(f) I fix a federal non-parole period of 12 years’ imprisonment.
120The total effective sentence for the Commonwealth and State charges before this Court is 22 years’ imprisonment.
121Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty and been found guilty by a jury, I would have sentenced you to 30 years’ imprisonment.
122I make the following Orders in relation to Antonietta Mannella:
(a) For the State offence of attempting to traffick a drug of dependence in a large commercial quantity, I sentence you to 11 years’ imprisonment.
(b) I fix a State non-parole period of 4 years and 10 months’ imprisonment.
(c) Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 307 days (calculated in accordance with s 18(6)) is to be reckoned as a period of imprisonment already served under this State sentence and I direct that the fact of this declaration and its details be noted in the records of the Court.
(d) For the Commonwealth offence of importing a border controlled drug in a commercial quantity, I sentence you to 11 years’ imprisonment.
(e) I direct that the Commonwealth sentence commence 2 years after the commencement of the State sentence. The effect of this is that 9 years of the Commonwealth sentence will be served concurrently with the State sentence.
(f) I fix a federal non-parole period of 4 years and 10 months imprisonment.
123The total effective sentence is 13 years’ imprisonment. The effect of the commencement of the orders is that you will serve a total non-parole period of 6 years and 10 months’ imprisonment.
124Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty and been found guilty by a jury, I would have sentenced you to 17 years’ imprisonment.
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