Director of Public Prosecutions v Agresta
[2014] VCC 2328
•11 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00413
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALVATORE AGRESTA |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea 4 September 2014 | |
DATE OF SENTENCE: | 11 September 2014 | |
CASE MAY BE CITED AS: | DPP v. Agresta | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2328 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr R. Barry | CDPP |
| For the Accused | Mr M. Kowalski | Haines & Polites |
HER HONOUR:
1 Salvatore Agresta, you are already serving a sentence of 12 years' imprisonment after being found guilty by a jury of attempting to obtain possession of a commercial quantity of MDMA. The man found by the sentencing judge, King J, to be at the apex of the conspiracy to import the MDMA, its financier and main organiser, was Pasquale Barbaro. He was sentenced to life imprisonment for trafficking in a commercial quantity of MDMA.
2 Those sentences – the one that you are serving and the one that was imposed upon Mr Barbaro – arose out of the interception of a shipment of just over 15 million MDMA tablets concealed in over 3,000 cans labelled as tomatoes and imported, apparently from Italy, in late June 2007. The tablets weighed over 4.4 tonnes. The quantity of pure MDMA was over 1.4 tonnes. There was evidence at your original sentencing hearing that the principals had agreed to pay $10 million for the tablets. In January 2012, the wholesale price of MDMA was $7 per tablet, with a street value, on average, of $8.30 per tablet. This arithmetic puts the value of the intercepted shipment in the vicinity, King J found, of $122 million. This was, I was told on the plea for Pasquale Sergi, your co-offender in that conspiracy, and in the subsequent offending which has brought each of you before me, the largest quantity of drugs ever intercepted in Australia, and perhaps the world at the time. Her Honour’s finding that this was a crime at the highest level of criminality was upheld by the Court of Appeal when Barbaro and a co-offender, Zirilli, unsuccessfully appealed their sentences.
3 King J accepted the prosecution characterisation of your role in that venture - the importation and attempt to obtain possession of that large amount of MDMA – as a foot soldier in the conspiracy in that you did not have a decision-making or decision-influencing role. Her Honour ranked you as playing a more important role than that of Pasquale Sergi, who was also described as foot soldier. She found that your role was to liaise with Barbaro and others with decision-making responsibility, as well as Sergi, to connect them with third parties who may have been able to provide alternative means of obtaining safe access to the shipment.
4 There was no information about the actual reward you and the others were to receive. Her Honour was satisfied all conspirators - using that term loosely - including you, undertook the conspiracy for financial reward, that is, that you had no motivation other than greed and a desire to make easy money at the expense of the youth of this country.[1]
[1]DPP Commonwealth v Higgs, Agresta and Sergi [2012] VSC 133 at [34].
5 No arrests were made following the interception of that shipment and the police continued surveillance and other investigations. Barbaro continued his activities motivated, at least in part it would appear, by the need to make good the $10 million he owed to the European suppliers of that intercepted shipment. He obtained further, large volume supplies of MDMA. You took possession of substantial quantities to sell, which you then did. You were supplied the drugs on credit and in turn supplied them to those downstream from you at times on credit. You were responsible for collecting payment from those you supplied to and for paying Barbaro what he was owed for the drugs supplied to you. In addition to the on-supply of the MDMA supplied to you for that purpose, you facilitated the storing of a similar quantity of tablets intended for other onsellers at or near your father’s house and you played an active role in collecting and storing tablet waste which was then re-pressed into further tablets for sale.
6 You have now pleaded guilty before me to a rolled-up charge of trafficking in a commercial quantity of MDMA in relation to the sale and distribution of MDMA supplied to you, collection of payment for it and passing on of the payment to Barbaro, the storage at your father’s home of the tablets intended for others, and the collection and concealment of the waste destined for re-pressing, between February and August 2008.
7 Over that period you took possession of four separate lots of MDMA tablets for onselling. The total quantity you received and on-sold was 118,600 tablets in lots ranging from 50,000 to 12,600 tablets. The final lot of 12,600 tablets was produced from waste, that is, from crushed and broken tablets which had been collected by you and others to whom Barbaro had supplied the drugs, stored and then returned to him for re-pressing.
8 On the agreed summary, at that time, that is, 2008, the wholesale price was between $8 and $10 per tablet, if sold in 1,000 tablet lots and the street price ranged from $20 to $40 a tablet.
9 The evidence reveals that Barbaro supplied you at either $8 or $8.50 a tablet, a total price of just over $1 million.[2] By the time of your arrest you had accounted to him for $877,400 of the total of just over a million dollars that you owed. It is estimated the total quantity of pure MDMA which you on-sold was over 11 kilograms or 22 times the commercial quantity prescribed by law.
[2] $1,002,600.
10 On two separate occasions early in that period, in February 2008, Barbaro arranged for large quantities of tablets to be driven to Melbourne from Sydney by accomplices. On each occasion you facilitated the storage of those drugs at your father’s home. The total number of tablets from those two shipments which were stored at your father’s home, before being supplied to others for further distribution down the line, was 119,000. That is slightly more than the total number of tablets supplied to you personally for on sale. So you assisted in the storage or concealment of a further million dollars' worth at wholesale prices of MDMA intended for the market, that is, for primarily the youth of this country. The quantity of stored tablets was also, it is estimated, more than 11 kilograms pure or 22 times the prescribed commercial quantity.
11 Your role in respect of this offending is clearly more than that of foot soldier. You were a major customer and distributor of the MDMA supplied by Barbaro. You were trusted to take delivery of large quantities of the drug on credit in circumstances where both you and Barbaro clearly anticipated that you would supply your customers, or at least some of them, on credit on the understanding, or in the expectation they too operated at a level where they could turn over their supplies and repay you within the day or, at worst, a couple of days. You facilitated the safe storage of large quantities of the drug in your elderly father’s home and assisted in the retention of waste product for the purposes, as I have described, of re-pressing and again on-selling.
12 I accept the prosecution description of you as an important part of an organised drug syndicate operating on a huge scale. You were a major customer of Barbaro's, and a significant participant in wider aspects of his business. Your trafficking activities over the period from February to your arrest in August 2008 involved dealing in an amount in excess of 22 kilograms, that is 44 times the commercial quantity. Although this is not at the extraordinarily high level of the MDMA in the tomato cans, it is nonetheless disturbingly high and is properly to be regarded as relevant to assessing the gravity of your offending.
13 It was not suggested there was any reason for your involvement other than to make money. You come to be sentenced as a man who, undeterred by the failure of the tomato can importation, was prepared to participate at a higher level and over an extended period in large scale drug trafficking for gain. Your continued participation in Barbaro’s activities after the failed importation and your previous convictions mean there must be some weight given to specific deterrence.
14 Between 1986 and 1989 you appeared before Magistrates' Courts on four occasions and were fined or released on a bond for various charges involving possession and use of weapons, property damage, assaults and resisting arrest or hindering police. I treat them as of little significance, given your youthfulness at the time of those offences, the absence of like or other convictions in the last 25 years or so and their relatively minor nature. You also have a conviction in 1996, 12 years before this offending, for possession and use of cocaine. Given the sentence that you are already serving and the seriousness of the trafficking for which I must sentence you, those drug‑related convictions are also of little significance.
15 Balanced against the matters relating to the seriousness of the offending and the need to give proper weight to deterrence, denunciation and just punishment, Mr Kowalski relied on the following matters: your age and personal circumstances, the effect on you of the hardship caused to your family, in particular your wife and your younger child as a result of your incarceration, your plea of guilty, the delay between the commission of the offence for which I must sentence you and its final resolution, and the need to impose a sentence that conforms with the principle of totality and is not crushing.
16 You are now 47 years of age. You have had these charges, that is the failed importation of the MDMA in the tomato cans and what eventually resolved into this single rolled-up trafficking charge, hanging over your head since your arrest in August 2008. You spent most of the time or much of the time from your arrest until your conviction, before King J in May 2012, on bail. There are no further charges since your arrest in August 2008.
17 King J detailed your personal history and family circumstances in [64] to [70] of her reasons for sentence. Mr Kowalski relied upon, on the plea, the matters put before Her Honour and her findings, and provided me with information about your circumstances since those matters were summarised by Her Honour and taken into account by her. Consistently with Her Honour King J's findings, I accept and take into account in your favour that you had, until your arrest in 2008, maintained steady engagement in the workforce since leaving school at 17 in year 11. You worked for a considerable period as a baggage handler for Ansett and, most recently, had owned and operated a cafe and deli in Ascot Vale. I accept King J’s finding that you were really proud of running the deli, that you felt it was a significant achievement, and something that you enjoyed, despite the hard work involved.
18 I also accept Her Honour's finding that you are a “a devoted father to your daughter and son, a caring husband and a committed family person,”[3] and her acknowledgment that this was particularly important in light of the problems your son Patrick has. Patrick, who is now about 12, was diagnosed with Oppositional Defiance Disorder and then Attention Deficit Hyperactivity Disorder from about the age of six. Until you were imprisoned, after being found guilty of taking part in the attempt to take possession of the importation of the tomato cans, you played an active and caring role in seeking help for, managing and assisting Patrick.
[3] At [65].
19 Her Honour King J said:
"There is no doubt that you have been well regarded in the community and also been an active participant in your local community, with many certificates of appreciation tendered in respect of your contributions towards local organisations. You have been devoted to your son and have done all within your abilities to occupy his time in a positive manner, to ensure he gets enough physical activity to wear him out so that he will sleep at night, and try to make his life as normal as it can be for a child with his problems."[4]
[4] At [67].
20 She went on to say:
"Whilst I accept that you are a great, caring, thoughtful and kind family man, you equally knew that the content of this container held vast amounts of drugs that were going to be distributed to other people’s children and the youth among our community. Those two matters do not naturally coalesce, that you can be so devoted and caring to your own family and local community, and yet so disregarding the health of young people and the wider community. However I will take into account that the health of your youngest child may cause you great stress and anxiety which may well exacerbate the anxiety you suffer from the killing and make your time in prison harder than the average person.”
I accept and adopt those findings and apply them accordingly.
21 Mr Kowalski, on this plea, provided updated material about Patrick's current circumstances. A report by Dr Collins dated 17 August 2014 was tendered. Dr Collins has been treating Patrick since February this year and diagnoses him as having severe separation anxiety disorder. He reports that the underlying separation anxiety follows from the two major instances of trauma in his developmental history, the effects of which he is acutely aware of his mother witnessing the murder of the underworld figure, Des Moran, in the deli and his witnessing of your arrest in the family home.
22 Consistently with the evidence before Her Honour, Patrick continues to present great challenges to his mother and the teachers and other professionals engaged in his management. Although this is not of itself evidence of exceptional circumstances, it is relevant to the hardship you suffer as a result of knowing the difficulties experienced by your wife and children caused by your incarceration.
23 It was whilst you were on bail in respect of these matters that Des Moran was executed in your deli. Your wife has been receiving psychological assistance for the post-traumatic stress disorder that she has suffered as a result and I accept that the burden of imprisonment is made more onerous for you also because you are aware of her suffering and unable to assist her or provide her with support.
24 By all accounts she is a remarkable woman. She continues to stand by you, and has been present at court hearings, at your plea hearing and again at your sentencing today. She continues to run the deli business and continues to manage Patrick with his complex problems. She has shown great strength and determination in dealing with her own post-traumatic stress disorder symptoms, whilst at the same time carrying these other burdens. I accept that your belated acceptance of responsibility for the many hardships that she must bear alone as a result of your decision to participate in this large-scale criminal activity makes imprisonment more onerous for you.
25 I accept, therefore, that the burden of imprisonment is made more onerous for you because you are unable any more to share the burden of caring for your son with your wife or providing her with emotional support as she deals with her PTSD symptoms and struggles to continue the family business and to live a life outside without you.
26 These matters, together with the continued support of your family, and the appreciation, perhaps belated but nonetheless I accept sincere, by you of the impact of your offending on them, should serve to act to deter you from engaging in like behaviour on your release. Nevertheless, some weight must be given to specific as well as general deterrence by reason of the matters that I have outlined. Consistently with these findings and Her Honour King J’s findings,[5] I find that you have some prospects of rehabilitation, but in light of the overall criminal history I too must exercise some caution about being totally optimistic about that.
[5] At [67].
27 You have pleaded guilty to this charge and you are entitled to have your sentence reduced for the significant utilitarian benefits which flow from that. It was a late plea but it did evidence an acknowledgment of the inevitable and the cost of a lengthy trial. It is also a product of the fact that the operation conducted by Barbaro was so large, so wide-scale and covered so many activities and involved so many people that it took a long time for these cases, all of them, to sort their way through the court system. Your trafficking charge, to which you have now pleaded guilty, was one of those hived off and left to be dealt with after many of the other matters had been determined.
28 So in a sense you were not confronted with the inevitability of a trial at an earlier stage and I accept that it was the confrontation with the inevitability of trial as well as the understanding of the effect of serving the term of imprisonment that Her Honour King J had imposed that played a significant role in the ultimate decision to acknowledge your involvement in the 2088 trafficking and negotiate settlement of the charges relating to that.
29 I do not consider there is any evidence, from the fact of the plea itself or from any other source that it is indicative of remorse other than remorse for the circumstances in which you now find yourself and the consequences of that upon your family.
30 There has been no further offending since you were charged. It is over six years since you were arrested and charged and I adopt what I said when sentencing your co-offender, Sergi, in relation to the delay and the manner in which it should be treated, namely, the number of people arrested and the scale of Barbaro’s activities meant that it has taken a long time for your matters to be finalised.[6] Many trials, involving discrete parts of Barbaro's activities or discrete groups involved in parts of his activities and many subsets of accused and many trials involving small subsets of co-accused, have been required. You, yourself, faced trial in respect of the intercepted shipment before King J and you were convicted following a 54-day trial in respect of that in May 2012, that in itself was nearly five years after the event. You have been in custody since then. However, there had been considerable delay since the jury verdict and the final resolution of that matter and, until now, all other outstanding matters concerning you. It was not until 11 months after the jury verdict that you were sentenced for your role in that venture. The delay between verdict and sentence was not of your making.
[6]DPP v Sergi (Unreported, County Court of Victoria, Judge Hampel, 13 August 2014), [21].
31 You elected to go for trial also in respect of the trafficking for which I now sentence you and the matter resolved shortly before the trial was due to commence. Uncertainty about your fate from the time of charge and arrest and the uncertainty about your ultimate fate, even after you decided to plead guilty to this charge, uncertainty about what your earliest release date will be, and delay generally is a matter I take into account. I accept it has added to the burden of imprisonment since the time you were first remanded in custody.
32 I take into account in your favour also, as I did for Sergi,[7] that the experience of gaol to date, appreciation of the time yet to serve before eligibility for parole for someone who had had no experience of gaol until being charged with these offences and your limited and old criminal record before that all should have a significant effect on deterring you from engaging in like offending or offending of any sort on release. Those matters, together with your history and personal circumstances and the family support which I have detailed, do reduce the weight that otherwise would have been appropriate to give to specific deterrence.
[7]DPP v Sergi (Unreported, County Court of Victoria, Judge Hampel, 13 August 2014), [23].
33 I was provided again, as I had been when sentencing Mr Sergi, with the details of sentences imposed on your co-offenders for their roles in the failed importation in 2007 and in Barbaro’s continued trafficking enterprise in 2008. None of them are directly comparable. Sergi is the only co-offender who has been sentenced both for his role in the failed importation and for participation in trafficking after that. Your participation in the trafficking charge to which you have pleaded guilty places your culpability in respect of the trafficking significantly above that of Sergi. I accept the prosecution submission that the sentences imposed on Molluso[8] and Varallo[9] have more common features to yours than the cases of any other of the co-offenders whose details I was given. Indeed, no issue was taken with that characterisation by Mr Kowalski.
[8]DPP v Molluso (Unreported, County Court of Victoria, Judge Montgomery, 8 April 2013).
[9]DPP v Varallo (Unreported, County Court of Victoria, Judge Montgomery, 26 November 2013).
34 Molluso and Varallo were both actual sellers, although the quantity in which they trafficked was approximately 13 times the commercial quantity, compared to yours of 44 times. As I have already noted, half of that 44 was onsold by you, the other half dealt with by your participation in storing it in your father’s home before further distribution to other sellers. For each of Molluso and Varallo they too pleaded guilty to charges that related partly to on-selling large quantities and to storing other parts in large quantities.
35 Unlike Sergi – whose role in the trafficking for which I sentenced him was characterised as a continuation of his foot soldier role in the failed importation, doing what was asked of him, when it was asked - your role, as I have already found in the trafficking, was that of major customer and onseller of drugs supplied to you by Barbaro and warehouser of that further million dollars wholesale worth of drugs destined for other parties.
36 Although the cases of Molluso and Varallo can provide some guidance, the sentences are not directly comparable. His Honour Judge Montgomery did not have to deal with the totality issues which applied to Mr Sergi, as they also apply to you and as I have indicated in the course of the plea hearing, I propose to apply the same process of reasoning in relation to totality to you, as I did in respect of Mr Sergi.
37 Section 16A(1) of the Crimes Act 1914 requires me to pass a sentence which is of a severity appropriate in all the circumstances of the offence. General and personal deterrence are the major sentencing considerations for drug trafficking of this scale.[10] That, of course was also the primary consideration when King J sentenced you for your role in the failed importation.
[10]Ljubjoa v R [2011] WASCA 143, [77].
38 As I indicated in the course of submissions, I accept, as I did with Sergi, this offending should be regarded as part of a course of conduct or continuing criminal participation in Barbaro’s drug enterprise which commenced with the importation and ended when you, he and others were arrested in August 2008. The sentence I impose for this offending must reflect your criminality in this venture, seen against the background of participation in the failed importation. It must also conform with the principle of totality. I must take into account the fact you are currently serving a long sentence for your role in the failed importation. I must ensure that the total sentence for this, and having regard to the sentence for the earlier offence, is no more than is necessary to satisfy the various objectives of sentencing.[11] Mr Kowalski adopted what I had said in my reasons on behalf Sergi in relation to my adoption of the submissions made by Mr Saunders, in respect of the effect of the principles in Azzopardi to which Mr Saunders had taken me to, and his submission that a substantial degree of concurrency was therefore warranted.
[11]Azzopardi v R [2011] VSCA 372 [61].
39 Like Sergi’s case, I must ensure that the total sentence, not just for this but having regard to the sentence for the earlier offence, is no more than is necessary to satisfy the various objectives of sentencing[12] and in the circumstances, in order to ensure that the overall sentence is not crushing, a substantial degree of concurrency is warranted.
[12]Azzopardi v R [2011] VSCA 372 [61].
40 You have served 500 days of your current sentence. You accept there will have to be a further period of time that will have to be actually served in respect of this charge, that is, that the sentence for this offence cannot be made wholly concurrent with the sentence imposed by King J. On any measure, you still face a considerable period in prison.
41 Before I formally pronounce sentence, I will state my intention and then make sure that the orders I propose correctly reflect what I intended to do. I intend to impose a sentence of 10 years imprisonment on the charge of trafficking. I intend to make four years of that cumulative upon the sentence imposed by King J and I intend to require you to serve a further two years and six months, on top of the unexpired portion of the nonparole period fixed by King J before you are eligible for parole.
42 In order to give effect to that intention, I think this is the way to do it: that I declare that the sentence on this charge is to commence six years before the expiration of the sentence you are currently serving.
43 I must fix a new, single non parole period in respect of all Commonwealth sentences and it must commence today. Having served 500 days of the previously fixed nonparole period of eight years and six months, you have served a little short of 18 months which leaves roughly seven years outstanding as at today. I have rounded up the figures, I know it is not a precise computation of days.
44 As I intend you to serve an additional two years and six months on top of the existing, unexpired nonparole period, that, I think, means a new, single nonparole period commencing today, of nine years and 6 months. So back to the roughly seven years outstanding of King J's nonparole period, two and a half years of my sentence on top of that makes nine and a half.
45 As King J has already made a pre-sentence declaration in respect of the 383 days that you spent in custody before she imposed her sentence and. by law, that has already triggered the requirement to take it into account, I say nothing more about that. Nothing in today’s sentence affects the requirement to take that pre-sentence detention into account and there is no additional pre‑sentence detention attributable only to this offending and which requires a separate declaration.
46 Now, can I ask counsel whether the form in which I have said I intended to pronounce the orders is correct?
47 MR BARRY: Yes, Your Honour.
48 MR KOWALSKI: It appears so, Your Honour. It is so.
49 HER HONOUR: Could you please stand.
50 Salvatore Agresta, on the charge of trafficking in a commercial quantity of MDMA you are convicted and sentenced to in prison for a period of 10 years. The commencement date of that sentence is six years before the expiration of the sentence that you are currently undergoing. I fix a new single, non parole period in respect of all Commonwealth sentences which commences today and is for a period of nine years and six months.
51 That means, Mr Agresta, that you have a further four years of head sentence on top of the sentence Her Honour King J has imposed. So although it's a 10 year sentence it is only four years cumulative upon the 12 years King J gave you, so in effect a new total effective sentence, if you take the two into account, of 16 years. I have added two years and six months to your outstanding non parole period, taking into account the fact that you have done close to 18 months of your existing non parole period, that is seven years outstanding for that. I have added two years six months onto that which takes you to nine years six months from today as the non parole period.
52 I declare pursuant to s.6AAA that but for your plea of guilty I would have sentenced to a term of imprisonment of 12 years and six months for this trafficking. I would have directed six years of that to have been served cumulatively upon the existing sentence and I would have fixed a non parole period which would have required you to serve a further five years on top of the unexpired portion of the previous nonparole period which would have meant a new nonparole period of 12 years from today.
53 I must explain to you the sentence that I passed, Mr Agresta, and its effect, so I want to make it clear: it is 10 years for the trafficking, four years of that cumulative upon the existing sentence, fixing a new single nonparole period of nine years six months, which adds two years and six months to the existing nonparole period that has not yet been served by you in respect of Her Honour King J's sentence.
54 HER HONOUR: Is that sufficient to comply with the requirements of the Commonwealth legislation?
55 MR BARRY: Yes, Your Honour.
56 HER HONOUR: Thank you. Mr Agresta, I must remain in court whilst you are in the dock but given your circumstances I will remain here for a short time so you can speak briefly to your family. You can speak to them but the regulations mean that you are not allowed to touch or embrace. Can I thank you, Mr Barry, and you, Mr Kowalski, for your assistance in managing what could have been a big and complicated trial, first in the obvious concessions made on both sides to reach sensible resolution, and then in the manner in which the plea has been conducted. I appreciate it.
57 MR BARRY: Thank you, Your Honour.
58 MR KOWALSKI: Thank you, Your Honour.
59 HER HONOUR: Can you remove Mr Agresta now, please.
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