Director of Public Prosecutions v Karam and others
[2013] VSC 133
•30 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0053 of 2011
No. 0039 of 2011
No. 0032 0f 2011
No. 0031 0f 2011
| THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH |
| V |
| ROB KARAM JOHN HIGGS SALVATORE AGRESTA PASQUALE SERGI |
---
| JUDGE: | KING J | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | Trial: 27-29 February, 1, 2, 5, 7, 8, 9, 13-16, 19-23, 26-30 March 3-5, 11-13, 16-20, 24-27, 30 April, 2 -4, 7-11, 14- 18, 21-24 May 2012. Plea: Karam – 1 June 2012, Higgs – 1 August 2012, Agresta & Sergi – 10 August 2012 | |
| DATE OF SENTENCE: | 30 April 2013 | |
| CASE MAY BE CITED AS: | DPP v Karam and others | |
| MEDIUM NEUTRAL CITATION: | [2013] VSC 133 | |
---
Conspiracy to commit an offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely MDMA, contrary to subsection 11.5(1) and subsection 307.5(1) of the Criminal Code (Cth).
Highest level offending, international organized crime, conducted as business, greed professionalism, profit - 4.4 tonnes – over 15 million tablets.
Sentence:Higgs: 18 years – Minimum 14 years
Agresta: 12 years – Minimum 8 years 6 months
Sergi: 10 years - Minimum of 6 years and 9 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Young | Office of Public Prosecutions Cwth |
| Mr A Cassidy | ||
| For the Accused Karam | Mr C Dane Q.C | Marich Legal |
| For the Accuses Higgs | Mr N Papas | Lewenberg & Lewenberg |
| For the accused Agresta | Mr A Jackson | Haines & Polites |
| For the accused Sergi | Mr J Saunders | Theo Magazis & Associates |
HER HONOUR:
Rob Karam, John Higgs, Salvatore Agresta and Pasquale Sergi, have each been found guilty by a jury of conspiring with each other and with Pasquale Barbaro, Saverio Zirilli, Carmelo Falanga, Jan Visser and others to commit the offence of possessing a border controlled drug, namely MDMA in a commercial quantity, the offence being committed between the 13th day of June 2007 and 3 October 2007. You each pleaded not guilty and were convicted by a jury after a trial lasting 54 sitting days. The maximum penalty for the offence is life imprisonment.
There has been substantial delay in respect of different aspects of this matter. First, although the offence occurred in 2007, you were not arrested and charged until August of 2008, as the police continued their investigations, and other alleged criminal activity occurred. The brief took a lengthy time to prepare, there were many adjournments and bail applications by the defence although Barbaro was the only conspirator still restrained in custody. The matter was brought before the Supreme Court in 2011. The then accused Barbaro and Zirilli indicated that they intended to plead guilty and the plea was heard on 19 and 20 January 2012, with the sentences delivered on 23 February 2012. The trial commenced on 27 February 2012 and you were all convicted on 24 May 2012. The plea of Karam was heard on 1 June, the plea of Higgs on 1 August and the pleas of Agresta and Sergi on 10 August 2010. The dates were all determined as a result of requests by your lawyers. All parties agreed that no sentence should be passed until the Court of Appeal had considered the appeal of Barbaro and Zirilli which was listed for hearing on 23 August 2012. The judgment of the Court of Appeal in Director of Public Prosecutions (Cth) v Barbaro and Zirilli[1] was handed down on 30 November 2012. These matters were listed for sentence to be passed on 14 December, when the day before the sentence an application was made for a further plea to be heard in the matter of Karam. With a degree of reluctance, I adjourned all sentences to a date to be fixed in 2013 and then heard a further plea in respect of the matter of Karam. After considering the matters raised in that further plea I am now in a position to sentence you today.
[1][2012] VSCA 288
The circumstances of the offence have been detailed in my sentencing remarks of your co offenders Barbaro and Zirilli, as well as in the decision of the Court of Appeal in respect of those co offenders. Generally the overall circumstances of the offending can be summarised as follows.
Whilst the commencement date for the offending is 13 June 2007, the container arrived in Melbourne aboard MV Monica on 28 June 2007. Barbaro and his first cousin, Zirilli had come to Melbourne from Griffith, their hometown, on 26 June. Falanga had arrived in Melbourne that same day from Adelaide and Higgs had flown in from Sydney.
The container addressed to Trans Global Food Brokers, which was an actual company, was numbered MEDU1250218. It had been loaded in Naples, Italy in late May 2007. It purported to contain in excess of 3,000 large cans labelled “peeled tomatoes”. The listed consignee, Trans Global Food Brokers, was unaware of any shipment coming into Australia at that time and had not ordered, or been involved in the ordering of this container or its contents, nor did they import tomatoes from Italy. It was planned that an interception of the shipment would occur. Possession would be taken of this container and its contents by persons involved with you and entirely unrelated to, and unknown to Trans Global. That is, the container would never reach Trans Global.
The bill of lading specified that FJ Tyther-Leigh Logistic (Australia), 36 Allied Drive, Tullamarine, Melbourne, was the party to be notified upon landing. Prior to the arrival of the container, FJTL Melbourne had been in contact with Trans Global Food Brokers Pty Ltd, who disavowed any involvement in, or knowledge of, the arriving container.
The relevant container was unloaded shortly after 5.25pm on Thursday 28 June 2007, and was selected for examination by the Australian Customs. It was transported to the container examination facility in the Port of Melbourne. The officers commenced to unpack the container and X-ray some of the contents. Image anomalies within the boxes, were first noticed at around 8.00pm. A more detailed examination was conducted, in which two tins from one box were opened. When opened, one apparently contained gravel and the other tin, labelled as tomatoes, contained white tablets with a kangaroo logo impressed upon them. The four remaining tins, within the box of six were opened; one further tin contained rocks, and the other three tins contained tablets, this time with a Crown symbol. The rocks in the tins were an attempt to ensure that the weight of the container was consistent with the supposed goods on the bill of lading. The unpacking continued, the tins had the MDMA pills removed and inert white tablets were placed within the tins and replaced within the container, to allow a potential controlled delivery to occur.
In relation to the items removed from the container, there were a total of 607 boxes containing 3,034 tins which held tablets. There were other tins that contained gravel. The total number of tablets seized was 15,193,798. The total net weight of the tablets was 4,423,870 grams, which is more than 4.4 tonnes of tablet weight. There were a total of 14 different symbols pressed within the tablets and, after examination and via extrapolation, it was calculated that the weight of pure MDMA within these tablets was 1,468,755.3 grams. That is more than 1.4 tonnes of pure MDMA; approximately 33.2% purity in each tablet. According to the statement of Paul Andrew Erdman, federal agent, dated 18 January 2012, the wholesale price of the 4.4 tonnes of MDMA, based on a sale at $7 per tablet, would be approximately $122 million. The value of the shipment would rise, depending on the price at which each tablet was sold.
Pursuant to Commonwealth legislation, a commercial quantity of a controlled drug, namely MDMA, is 500 grams. This container was accordingly 2,900 times the minimum statutory commercial quantity.
You were not charged with, and will not be punished for, conspiring to import the MDMA. I mention the circumstances to put a background to what it was that you were attempting to possess, for it was the contents of this container that you were conspiring to possess.
It was never intended that Trans Global Food Brokers should be notified, or attempt to take possession of the container. The numbers provided, as contact numbers and the email addresses for Trans Global, were entirely unrelated to them and unknown to them. The plan was, that the container and its contents would be diverted to a person whose contact details had been provided, and when safe, the container would be removed from the dock and taken elsewhere to be unloaded, stored and then distributed, according to the planned conspiracy to possess those ecstasy tablets.
The plan did not get to the first step, as the container itself had been intercepted, and that information was something which you became aware of not long after the interception. Many steps were taken by all of those involved in the conspiracy, to test the possibility of the contents of the container becoming available for the purposes of trafficking. Accordingly, on numerous occasions, some of you travelled to or met in Melbourne, where you had contact with other persons such as Barbaro, Zirilli, Falanga and Visser, who were also involved in this conspiracy to possess the ecstasy.
During July 2007, you Sergi, together with other members of the conspiracy, stayed at the Pacific International suites in Little Bourke Street, meeting there at different times with Falanga, Barbaro, Zirilli, Visser and Higgs. Some of the other members of the conspiracy had stayed there earlier, in June of 2007, whilst pursuing the objective of this conspiracy. There were arranged meetings at restaurants with Higgs and Karam. It was believed by those involved that Higgs and Karam had contacts and expertise, in respect of obtaining safe possession of containers from the docks, particularly because of Karam’s history in international freight forwarding, and Higgs experience generally, in the illegal drug industry. At that time, Karam was on trial in the County Court in relation to an importation of MDMA. The crown argued that one of the reasons for the choice of location of the hotel, was its proximity to the County Court, to enable meetings and discussions with Karam to occur before court, during the luncheon adjournment and after court, although not many meetings of that nature occurred, there were some meetings with Higgs and Karam at a restaurant near the court.
There were many relevant text messages and calls, recorded between the parties, those calls were played to the jury in your trial, together with the text messages and various surveillance sightings over that relevant time. The AFP, from at least 2 July 2007, also had access to listening devices in the suite occupied by you at the hotel. All parties were presuming that the container and its contents would be available for collection, in due course, after its arrival.
During very early July, arrangements were made for persons to be involved who would assist in the actual picking up of the container and the delivery of it to another place. Those persons, were said by the Crown, to be Frank Agostino and his son. At that early stage there was optimism about the potential success of this conspiracy, until about 3 July, when after meetings at another café, between Barbaro, Zirilli, Falanga, Higgs and Karam, the mood was described as morose. By this stage, it was believed that the container may have been seized by the police. There were some discussions, by 5 July when the room was vacated at the hotel, that perhaps the truck driver, in light of the amount of money involved, may be willing to take the risk and attempt to obtain the container. It was accepted at this stage by Barbaro, that he had to cover the loss that had been incurred. It is believed that the amount involved was six million Euros or approximately ten million Australian dollars. There were references made by Barbaro, to Falanga having to find half and Barbaro having to find half. Zirilli, made a reference earlier in the discussions, that you were all better off losing it, than going through with it and going to gaol. Despite that view, and the belief that the container had been intercepted, you all still persisted in attempting to obtain the shipment. Many steps were taken, and all hope was not abandoned, for a lengthy period of time.
That is a broad and general outline, but I will describe in more detail the involvement of each of you as well as your level within the hierarchy of this conspiracy.
Dealing firstly with Rob Karam. The role that he played in this conspiracy was to provide information to the other conspirators, using John Higgs as his means of initially keeping himself at arms length from the other co conspirators, as to the progress of the shipment through the docks, and to facilitate its clearance utilising his contacts within the docks in Melbourne. He had a working history which involved customs clearance and freight forwarding and had at one stage started his own company specialising in that business, he had worked at Logistic Solutions as the international business manager some time earlier, and appeared to be in a position to provide advice and assistance, which he purported to do over the period of the attempt to gain possession of these drugs. His defence was that he was at all times just providing advice within his legitimate sphere of expertise and although he was aware of this being an attempt to possess a very large quantity of drugs, he was at all times telling the conspirators that this could not be done, that it would not work. That is that he was never in any agreement to assist the others to obtain possession of the container and its contents.
The jury by its verdict has accepted beyond reasonable doubt, that he was aware that the container held a very large quantity of drugs and that he was providing advice and assistance to the other conspirators to enable them to obtain possession of the contents of the container safely and without being intercepted or arrested by police or customs. At the time of the commission of this offence he was on trial in the County Court for an offence involving the importation of approximately 1.2 tonnes of MDMA, of which he was acquitted, and accordingly the meetings in respect of these matters were usually after court and later at night, initially arranged through the services of John Higgs, but as the matter became more urgent, and Higgs more unreliable, direct telephone contact was established directly between Karam and Barbaro and Falanga.
In terms of meetings in the crucial period of late June to early July;
· Karam met with Higgs, Barbaro, Zirilli and Falanga on 27 June, the night before the arrival of the container ship into the port of Melbourne,
· Karam met with Higgs late at night on 1 July 2007,
· Karam met with Higgs at lunchtime on 3 July,
· in the evening 3 July Karam met with Higgs, Barbaro and Zirilli,
· Karam met with Higgs late afternoon 4 July,
· Karam in the evening of 4 July met with Higgs, Barbaro, Zirilli and Falanga,
· Karam attended a meeting on 5 July with Higgs, Barbaro and Zirilli. At the same location and during the same time Barbaro and Zirilli also met separately with Agresta and others.
· On 6 July Karam met with Barbaro, Zirilli and Higgs at Crystal T‘s nightclub,
· on 7 July at Café Romantica Karam met with Barbaro and Zirilli.
· On 8 July Karam met with Higgs and Falanga at Café Romantica,
Whilst the meetings were not recorded, the contents of the meetings were often referred to by either Zirilli or Barbaro or others when reporting back to Sergi or Visser what had occurred at the meetings. On 11 July 2007 Karam also met with Barabaro at Café Romantica. It was on that date, after leaving the meeting with Karam that Barbaro attended at Agresta’s premises and then immediately sent a text to Falanga which read “ U there, I just finished and they tell me that she died yesterday” which I accept means that the conspirators had discovered the container had been seized by police, customs or had in some other way become ‘dangerous’ and was no longer capable of being safely removed the docks. This information was then generally made known to those involved in the conspiracy.
The significance of these meetings, and the timing which is applicable to all of you, is that during these days after the arrival and unloading of the MV Monica, on the 28 of June, there are numerous recorded discussions about obtaining safe access to the container and removing it from the docks to a place where the contents could be unloaded. These conversations were recorded in telephone intercepts between the conspirators, in listening devices located in the rooms occupied by Barbaro, Zirilli, Visser and you Sergi and visited by Higgs.
Those discussions make it clear what was being discussed at the meetings as there are references to the progress of the container and discussions about what may occur if the problems continue, including the removal of the container from the docks with false paperwork, or its forced removal, or sending the driver in, paying him $100,000 and see if he can get the container out. There are other references relating to when Higgs believed the delivery had been successful, only to be informed at a later stage that he had misread the message, when Higgs started making plans with Zirilli for him to quickly obtain a truck, notify the driver and both talking about organising a time line for delivery and unpacking of the container.
I have determined for the purposes of these sentences only, that the positions occupied by the various persons involved in the conspiracy was as follows:
· Barbaro, at the apex of the conspiracy, the financier and main organiser together with,
· Falanga, who is equal in terms of criminality with Barbaro, although in terms of the organisational structure may be considered not as overtly involved.
· Zirilli who was in a very similar but slightly lower position than Falanga, being the right hand man of Barbaro and able to substitute for him when he was unavailable, but it would appear acting upon his instructions.
· Karam, who was below those three people at the head of the organisation, but still held a very important position within the planning group, in that his advice was sought and his views accepted and acted upon.
· Higgs, who was in an inferior position to Karam, and was considered by some of the group to be reckless and foolish in his behaviour, but still considered by all to be an important participant, with his knowledge, experience and contacts
· Agresta and Sergi appear to be the foot soldiers of the conspiracy, in that they do not have a decision making or decision influencing role, even allowing for the call urging Barbaro and Zirilli to return to Melbourne that was made by Agresta. The crown have submitted that Agresta has a significantly higher role than that of Sergi, and whilst I am satisfied that he had a more influential role than Sergi, I am of the view that it is below the role of Higgs and slightly more important than the role of Sergi, that is the role of Agresta falls somewhere between the role of Higgs and Sergi, but not as high as the crown submitted.
In relation to your involvement Higgs, it is very much related to that of Karam’s. You were the intermediary initially between Barbaro and Karam. The meetings to which I have referred in respect of Karam apply equally to you. You had additional meeting with Barbaro, Visser and Falanga to those with Karam, often placating those persons for the lack of information flow, explaining that Karam was involved with and hampered by his current trial.
Your knowledge is clearly demonstrated in your conversations in the hotel and in the totality of the text messages you have sent. I cannot say whether you alone convinced Barbaro and others that Karam was the expert in terms of knowledge of what was occuring on the docks, or whether it was something he already knew or believed, but you certainly did not discourage that view and you stressed that you were the person who could give them access to Karam’s expertise, and that you were both necessary partners in the conspiracy. Your conversations reveal that you were aware that the quantity of drugs in the container was huge, your reference to paying the driver $100,000 to sit and do nothing for a couple of days is clear testament to your belief that the amount of drugs in the container would realise massive sums of money, equally your excitement when you thought the container had been cleared is evident in the listening device recordings.
Although ultimately Barbaro was able to contact Karam directly from about 8 July 2007, it was you Higgs who put them together, you who facilitated the meetings, and you who actively encouraged and participated with enthusiasm in this planned possession of these drugs.
In terms of you Agresta, your role was to liaise with Barbaro, Zirilli, Falanga and occasionally Sergi, to connect them with third parties, who may be able to provide an alternative means of obtaining safe access to the container and its contents. Whilst not charged it would appear that the Agostino’s had a role to play in respect of this alternative method of possessing the drugs, but the material relating to that is insufficient to determine what role precisely they played. The first time that you appeared within the materials presented in the trial was on 4 July 2007 when Zirilli contacted you by phone and suggested it was time that you did some work. You contacted Frank Agostino shortly after being contacted by Barbaro on 5 July requesting a meeting and one was arranged – it was brief, and from that time on you participated in this conspiracy by organising meetings and assisting with the provision of information.
Some of the meetings you organised or helped arrange included a meeting in the street outside Café Romantica whilst there was a meeting occurring inside involving Karam and Higgs, with Barbaro and Visser moving between the two meetings, on the evening of 5 July. Barbaro and Zirilli had driven back to Griffith after being at your premises Ascot Pasta and Deli in the morning of 6 July, you contacted Barbaro shortly after his arrival in Griffith and told him that he had to return to Melbourne, you said that he “must must must” come back, and when asked if everything was all right – you replied “beautiful”. Barbaro immediately made plans for he and Zirilli to fly back to Melbourne that same day. Upon their arrival at the airport you met them and drove them to Milleara Shopping Centre and congregated within a closed hairdressing shop at the centre with approximately 8 men. Shortly after that meeting Barbaro sent a text to Falanaga to say that they were going in and that hopefully it would be tomorrow not that night. From then on information is passed on that the shipment is fucked and the number the registration number is wrong, meaning that the consignment number provided by Italy was wrong. Discussions then continued between Falanga and Barbaro and others as to the correctness or otherwise of the consignment number. Shortly after meeting with you on 11 July Barbaro sent the message about “they tell me that she died yesterday”, and I am satisfied to the required standard that the message to that effect had been passed on by you.
I am satisfied also that any active involvement you had in the conspiracy ceased at that time.
In terms of you Sergi, the crown described you as a foot soldier, willing and waiting to do what was asked of you when it was asked. I agree, but in terms of your knowledge of what you were involved in, it is clear from the material presented in the trial, that although you were not included in the meetings, in that you were never at that high level of decision making, you were not excluded from the conversations that occurred when the others would return to the hotel, and pass on what had happened at the meetings, nor were you excluded when the others would leave the hotel and walk about discussing the matters.
Your main demonstrated involvement is being at the Pacific International Suites with Barbaro, Zirilli, and Visser, between the dates of 2 and 5 July when all parties were waiting for and expecting the clearance of the container. There are a number of conversations recorded at the hotel in which you are, although saying little, obviously present and a participant, which discuss the container and the desire to obtain its safe custody. There are references by you to the meaning of “delivery successful” a crucial continuing discussion occurring over the 4th of July, which demonstrates your obvious knowledge of what was occurring and what everyone was waiting for, including yourself. After it became known that the delivery was not successful on that occasion, you had discussions with Zirilli about whether they would just get a driver to drive in and try and pick up the container, and whether the driver should be warned that it “off” or not. All of this demonstrates your knowledge and awareness of the conspiracy.
You returned to Griffith and then came back to Melbourne on 8 July, and remained for a week. At that time you were staying with your wife’s family, but you still did whatever tasks you were asked to undertake in relation to this conspiracy while you were here, including matters such as picking Falanga and his wife up from the airport and driving him to meet Karam and Higgs, passing on and obtaining information from Agresta. On 10 July you collected Barbaro from the airport took him to a meeting with Agresta and was present for the discussion, you then chauffeured Barbaro around town to meet up with Karam, then Agresta again, finally a man by the name of Manariti and back to the airport. Your involvement ceased shortly after this.
That in relatively short compass is the level of involvement of each of you and where you sit in the hierarchy of this conspiracy.
In terms of the value of the conspiracy it should be noted that, the amount of $10 million paid for the 15 million tablets indicated that, each of the tablets came at a cost of approximately 73 Australian cents. From information presented on the plea of your co offenders, and detailed in the sentencing remarks of Barbaro and Zirilli I was satisfied that the average price for a tablet of MDMA was approximately $8.30. There was, of course, no successful trafficking in this case, as you were unable to obtain the MDMA tablets. What can be said is, that in terms of what was sought to be made in terms of profit is, that the amount was truly significant, into the multiple millions of dollars in profit.
In this case I have no information whatsoever as to what rewards you were to receive for your participation in this offence. No material has been presented and although it was touched on during one of the conversations between Visser and Sergi, I am not confident that what was being spoken of was reliable enough to act upon. That related to Sergi receiving some of the drugs as a reward. I am prepared and will draw the conclusion that each of you were undertaking this conspiracy for financial reward, as no other motivation has been put forward, and it is the only logical conclusion that can be drawn. I can go no further than that, I cannot state whether you were going to receive part of the proceeds of the drugs, or a lump sum in cash. What I can say is that you had no other motivation than greed when you became involved in this conspiracy to obtain possession of the drugs within the container, none of you had any reason or motivation such as abject poverty, drug addiction, fear or threats, nothing more than greed and a desire to make easy money at the expense of the youth of this country. Your excitement and anticipation at the arrival of the drugs is obvious in the recordings, as is your disappointment when the conspiracy is frustrated.
It is my view that the circumstances relating to this charge are such that establish the offence as being at the highest level of offending for offences of this nature. This was examined by the Court of Appeal and they stated:
The judge concluded that the first count, the conspiracy to traffick, ‘overwhelmingly falls into the worst category for an offence of this nature’. 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:[2]
[2](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.[3]
[3]Reasons, [30]–[31].
These findings were not challenged.
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 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.
Those remarks with the exception of where you are all placed in the hierarchy of this crime remain appropriate in respect of the nature of the offence and the offending. What alters is not the nature of the crime, that is a crime at the highest level of criminality, but your individual involvement in that crime. As indicated I cannot say, unlike Barbaro and Zirilli, what you were each to receive, but I can say it was a big enough reward to make each of you determined to become involved in one of the biggest and most audacious conspiracies to possess tonnes of illegal drugs which you knew or believed would ultimately find their way onto the streets of this country and the hands of our youth.
In relation to these offences, you each pleaded not guilty, which is your right and the right of every member of our community, but unlike your two co-conspirators sentenced earlier, there will be no reduction in your sentences, or declaration pursuant to s 6AAA of the Sentencing Act for a plea of guilty at either an early or late stage. Equally there will be no mitigation of penalty as a result of any demonstrated or expressed remorse.
There was a submission that you ought each receive a discount or a reduction in your sentence as a result of your co-operation with the prosecution in respect of the conduct of the trial. It was never submitted that you were remorseful or that the conduct of the trial in this manner was a demonstration of remorse.
There is no doubt that the materials were presented in a cooperative manner and you did not object to the prosecution proving matters through witnesses who may not have been strictly or legally the person who could prove the matter, but one to whom you were willing to put the questions in cross examination. Equally you cooperated in terms of the presentation of material in written form and in a logical manner for the jury. I am aware that some Judges have expressed the view that there should be some reward for such co-operative behaviour, but I am unable to agree that such behaviour should produce a reduction in a sentence.
There are many people who conduct contested trials in this state and they are often of short duration, from 2-5 days, sometimes as long at 10 days, but it has never to my knowledge been submitted in those cases, that because the trial has been run co-operatively with only the appropriate matters being raised as issues before the jury that if convicted the prisoners should receive a lesser sentence than someone who was not co-operative in the trial process. The submission before me was based upon the fact that although this was a long trial, the length of time that the trial could have taken without that co-operation would have been significantly longer and the community has been saved a great deal of money.
Whilst this submission would initially appear to have merit, upon consideration it becomes apparent it would result in persons who contest a trial not being treated equally before the courts. If a person only has a short trial, they would not be able to make a submission that they have reduced the time of the trial considerably and thus they would not on this argument be eligible for a reduction in penalty unless they fall within s 2 (C) or 2 (D) of the Sentencing Act. Equally if there is no opportunity due to the simple or uncomplicated nature of the evidence for a person to demonstrate a high level of co-operation they could be seen to be penalised by not having the chance to have their sentence reduced.
The law has made it clear that a person who pleads guilty and dispenses with the necessity of a trial receives a reduction in penalty and pursuant to s 6AAA the court must state that discount. It is not relevant whether the person has demonstrated remorse in terms of receiving a reduction in sentence, it can be a purely utilitarian matter, but it is available to every person who pleads guilty. If they demonstrate remorse via that plea of guilty or by additional means, then the reduction in sentence would be increased. Equal justice before the law is a very important concept and would prevent a court from reducing a sentence for co operative behaviour in a long trial, when such a reduction would not be available to all persons appearing in the courts.
The only reference to a level of co-operation within the trial process in the Sentencing Act is contained within s 2(C) and 2 (D) of the Act which states;
(2C) In sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial or hearing as an indication of remorse or lack of remorse on his or her part.
(2D) In having regard to the conduct of the offender under subsection (2C), the court may consider the extent to which the offender complied with, or failed to comply with, a requirement imposed on the offender by or under Part 5.5 of Chapter 5 of the Criminal Procedure Act 2009.
I do not find that the behaviour of giving instructions to be co-operative, to a large degree with the crown, by any one of you during the trial process, to be an indication of your remorse. I do accept that you were co-operative but nothing about the way the trial was conducted demonstrated remorse for your actions or your involvement in the offending.
I do not intend to repeat again all of the matters relating to this criminality. In relation to you Karam, it must be noted that you were on trial for an offence of a remarkably similar character, when you were committing this offence of which you have been convicted. Indeed, you were acquitted by the jury in the midst of the most crucial time of the conspiracy. This was the second occasion upon which you had been acquitted of similar offending. Whilst it is not a matter I can use as the equivalent of a relevant prior conviction, it is a matter of relevance in respect of the issues of history, character, antecedents, specific deterrence and particularly your prospects of rehabilitation. Despite standing your trial twice for very serious offending of a like character to this charge, and the consequent relief and euphoria an acquittal would bring, you became involved in precisely the type of offending of which you had been acquitted once and were currently standing your trial. A similar issue was considered by the Court of Appeal in respect of the Barbaro Zirilli sentence where it cited with approval my sentencing remarks in respect of Barbaro, when it stated.
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.[4]
[4]Ibid [72]–[73].
Rob Karam, you have one previous conviction, being that on 23 April 1987 you were convicted at the County Court Melbourne of one charge of burglary and one charge of destroying property with intent on which you were released in a recognisance to be of good behaviour for two years. It is of little relevance, due to the nature and age of the offence.
You John Higgs have significantly more prior convictions and particularly more relevant prior convictions, being 22 June 1966 on a charge of larceny at the Court of Petty Sessions at Hawthorn and you fined $20; the Court of Petty Sessions on 14 May 1968 you were convicted of tampering with a motor vehicle and fined $50; on 1 October 1970 you were convicted in the Supreme Court of Victoria at Melbourne on 1 count of manslaughter. You were sentenced to a term of imprisonment of 12 years with a minimum non-parole period of 10 years before becoming eligible for parole; in the Magistrates’ Court of Brunswick on 15 December 1978, you were convicted of one charge of using indecent language in a public place and one charge of resisting a police officer in the lawful execution of his duty, you were placed on a bond for 12 months and ordered to pay $150 to the poor box; the Magistrates’ Court at Geelong on 17 October 1984, you were convicted of possession of Indian hemp and fined $200; in the Magistrates’ Court at Broadmeadows on 10 December 1985, you were convicted of handling stolen goods and fined $250; in the Magistrates’ Court at Werribee on 5 May 1988, you were convicted of one charge of possessing cannabis and one charge of using cannabis, you were fined $100 on charge 1 and $50 on charge 2 and the drugs were forfeited; in the Magistrates’ Court at Geelong on 27 August 1992 you were convicted of one charge of possessing a category A/B longarm without a licence and one charge of possession of protected wildlife and you were fined an aggregate sum of $1,000; on 11 March 1999 you were convicted at the County Court of Victoria of one count of conspiracy to traffic in a drug of dependence (amphetamine) and was sentenced to a term of imprisonment of six years with a minimum non-parole period of four years before becoming eligible for parole. You have what must be described as a significant and relevant prior criminal history.
Salvatore Agresta you have some prior convictions which are; at the Broadmeadow’s Magistrates’ Court on 1 October 1986, a charge of causing wilful damage, for which you were fined $300; at the Magistrates’ Court at Melbourne on 25 March 1987, one charge of hindering police and one charge of resisting police, and you were placed on a bond to be of good behaviour for 12 months; at the Magistrates’ Court at Prahran on 3 June 1988, armed with an offensive weapon, you were fined $600; at the Magistrates’ Court at Melbourne on 29 August 1989, one charge of causing injury intentionally or recklessly and one charge of assault with a weapon, fined $600 on charge 1 and fined $400 on charge 2; and in the Magistrates’ Court at Broadmeadows on 29 February 1996 one charge of possession and use of a drug of dependence, cocaine, for which you were fined $1000 on charge 1 and $500 on charge 2. The instructions given by you in relation to those offences are that you had a bucks party at a friend’s property and you were cleaning up afterwards and picked up these drugs and you were found in possession of them. I do not accept that as a reasonable explanation for your conviction on those matters, particularly in light of the penalty imposed.
Whilst I do not accept your explanations for your conviction, I do accept that the offending occurred some time ago – some 26 years have elapsed since the first offence and 16 or 17 years have since the last offences, and whilst they are relevant, they are less so in light of the lapse of time. Your cocaine offences occurred only 11 years before your commission of this offence, but that is still a lengthy time. Accordingly whilst they have relevance, I do take into account that the offences are somewhat aged.
You Pasquale Sergi have no prior convictions.
I also have to take into account each of your personal circumstances.
Dealing firstly with youJohn Higgs, you are now 66 years of age having been born on 29 November 1946. You have a complex family history. You were born and raised in Frankston, you were the second of three children, having an older and younger sister. You attended Fountain Gate Primary School up to Grade 4 and then Faulkner North Grade School to Grade 6 and Coburg Technical School for Year 7. You left school at the end of Year 7, having participated in a lot of truancy. You spent time in boys homes in both Sydney and Melbourne for car theft and matters of that nature. You married Jacqueline Mallia in 1963 when you were aged 17 and she was 16. Your eldest child, Craig Higgs, was born in April of 1964 and your son, Warren Higgs, in July of 1966. Your eldest son Craig was murdered on 8 December 1999, your youngest son was homosexual and died of HIV acquired Aids at the age of 30 in 1996.
You and your first wife, Jacqueline Mallia, separated effectively around 1970 when you were aged 24, at which stage you had been sentenced to 12 years with a non-parole period of 10 years for manslaughter. Although she continued to visit you for the duration of your time in prison, as soon as you were released she told you the marriage was finished and she was already living with the children in Queensland.
Your next relationship was with Ms Karen McLennan, which commenced in 1978 and ceased around 2004/2005. You had two children with Ms McLennan being Samuel and Luke. Ms McLennan also lives on the Gold Coast and I have received a letter from her as to your relationship and your history. Your two sons are Samuel Higgs now aged 30, married with three children and residing in Taylors Lakes, and operating a tattoo studio in Niddrie and Luke Higgs who is aged 32 and lives in Essendon. Neither has been in trouble with the law and each of them has provided a reference for you.
Your father died of a heart attack at the age of 49 whilst you were undergoing your sentence for manslaughter, your mother died at the age of 83 approximately six years ago, she had had mental health issues over the latter period of her life. You currently have a partner, Ms Kimberly Whiteside, with whom you have a child, Adam, who was born on 11 June 2011, making him approximately 18 months old. I have also received a letter from Ms Whiteside.
You have had a history of some employment interspersed with you criminal history and it commences with you working at the age of 16 for a printing company for approximately 12 months and then really intermittent work, if it could be described as such, with a tour business, but you continued your gambling basically throughout your life as a type of business until approximately 2006 at which stage you gave it up. You instructed that you were, between 1980 and 1984, the stud master at a stud farm owned by your then partner, Ms Karen McLennan’s father, in Balliang. That appears to be the extent of your legitimate employment.
As indicated your son, Craig Higgs, was murdered. He and his wife were congenitally deaf, and he was murdered by four deaf youths who had read information in a newspaper about you being in receipt of a huge sum of money from your criminal activities. Craig’s wife also was struck with an iron bar, and whilst she appeared to recover from that injury, she unfortunately, with her four daughters then aged 1 to 8, was, in April 2000, involved in a motor vehicle accident in which she was severely injured. She was in a coma for nine months and she now lives in a house attached to the hospital under full medical care, being severely brain damaged. Legal guardianship of the four girls was granted to your then partner, Karen McLennan. You were in custody in jail. Ultimately, the children went to live with your first wife, Mrs Jacqueline Mallia, due to health problems relating to Mrs McLennan. You still maintain a close and amicable relationship with her. In late 2006/early 2007 you relocated to Melbourne, and these events for which you stand to be sentenced occurred during mid-2007.
In relation to the offence of manslaughter, you served a substantial sentence, which, after remissions was eight-and-a-half years, your counsel said that you pleaded guilty to the charge of manslaughter because although you didn’t perform the shooting you were present when a person who owed an SP Bookie a gambling debt was shot and killed. You served some of the sentence in H Division Pentridge, some at Geelong and some at Beechworth Prison.
In relation to the offending for which you received six years with a four year minimum being a conspiracy to traffic a commercial quantity of amphetamines, you provided an explanation to Mr Cummins that in fact all you were doing was providing legally obtainable chemicals to bikies. Nothing more has been proffered in relation to that matter and I do not accept that as a plausible explanation for you receiving a sentence of that length.
In terms of your health you have had a triple by-pass operation some years ago, you suffer from hypertension, high cholesterol and hepatitis B. Your current partner brings your young child to prison to visit you on a regular basis. Your older sons also visit you in prison. It is clear from the information provided by them that you have been a good and caring parent and grandparent. I have no reason to doubt that. Equally, your sons’ law-abiding nature may well be a factor contributed to by your law-abiding partner, their mother, they have certainly not followed in your footsteps.
I have received a neuropsychological report relating to your concerns about your perceived memory loss and forgetfulness. That report from Dr. Rene Stolwyk states that examination has revealed a relatively intact cognitive profile with the exception of mild attention difficulties. It was stated that the findings were not consistent with a neurodegenerative process such as Alzheimer’s disease.
A psychological report from Mr. Jeffrey Cummins was also tendered on the plea he says that you have an untreated and lengthy history of anxiety and depression and some traumatisation from your son Craig’s death in 1999. He describes you as having difficulty accepting the verdict of the jury and he believes that you are anxious and depressed about how you will cope with imprisonment with what you perceive your mental health issues of Alzheimer’s and old age. You informed Mr. Cummins that you had been wrongly implicated in this offending when all you were attempting to do was protect your financial interest and that of David McLennan and the rest of the family in Logistics solutions. He was of the view that you would find prison more onerous for those reasons.
You are a recidivist in terms of your offending, you had not been released from prison for a great length of time prior to becoming involved in this offending, and your prospects for rehabilitation are poor, particularly in light of your age. Your first offending occurred in 1966, and you have continued offending over the years up to and including 2007, one of those matters for a very serious matter of trafficking in drugs, relating to the cooking of amphetamine. The other two drug appearances were for minor matters for the use and possession of indian hemp, but there is also the matter of the charge of manslaughter for which you received a very severe penalty. Specific deterrence is a matter of significance in your case.
You Salvatore Agresta also have relevant prior convictions, to which I have already referred. Your counsel submitted a folder of documents which contained six references from members of your family, being your wife Graziella Sonia Agresta; your daughter Therese Agresta; your sister Josie Gangemi, your sister Melissa Catanzariti and, too, your sisters-in-law Melina Lydia Fasolo and Paulina Fasolo. A further nine personal references were tended on the plea being from Mrs Christina Varalla, a family and childhood friend; Giuseppe DeFazio, a person you have known for a relatively short time through your children’s sport; Ian Arnold, who worked with you at Ansett Airlines in the 1990s; Karen Fogarty, a parent at your children’s school; Helen Robertson, a former president of the Union Road Traders Association, the area where your business was located; Sally Sheldon, registered nurse, a local community friend; Vince De Paola, a youth worker who has known you for some 30 years and your family situation; Simone Bullen, who has known you for some five years and appears to be a contact from the local community. Elio Genobile, whom you met originally in his role as food distributor, which relationship developed into a friendship over the last five years. I have also been provided with financial documents relating to the Ascot Pasta & Deli, a business you were running in Union Road; a series of documents relating to your personal financial situation; and a series of certificates of appreciation presented to the business that you were running of Ascot Pasta & Deli. It is clear from the materials tendered to me that you were really proud of running the deli, that you felt it was a significant achievement and something that you were enjoying despite the hard work involved.
I have read those references and it is also clear from the material presented in both the family and the personal references that you are a devoted father to your daughter and son, a caring husband and a committed family person. The devotion to your son is particularly important in light of the problems from which he now suffers.
You were educated until year 11 at school, and then commenced employment immediately upon leaving school and have been in steady employment from that time until now. You met your wife Graziella Sonia Agresta 26 years ago and have been married for almost 18 years. You have two children Therese aged 16 and Patrick aged 10. Your daughter has written to the court about what a caring compassionate father you have been to her and how you are the rock around which the family is built. Your youngest child at the age of 6 started to show signs of severe anxiety, behavioural problems and other issues and was diagnosed at that early age with Oppositional Defiance Disorder and Attention Deficit Hyperactivity Disorder. Your son was referred to Dr. Dorota Lisowska in 2008 for assessment of emotional and behavioural problems. He was reported by his GP to be volatile, explosive, sensitive and reactive to frustrations from very early in his life. He was referred to Lisa Quinsee, psychologist on 15 July 2010, when he would have been approximately 8 years old, who found that at that time he was school refusing, explosive and volatile at home, experiencing elevated levels of anxiety impacting upon both himself and the family’s life, and that she had real concerns for his threatened self harm. He has singular learning difficulties and his overall management is very difficult. Both you and your wife have devoted a lot of time to trying to assist Patrick, but he still remains very problematic in his behaviour. He has an aide at school to assist with both his behavioural and academic challenges. Ms Quinsee in a report dated 7 August 2012 stated:
Patrick is experiencing a grief reaction to his father not being present in his life he is very easily angered, damages property, refuses attendance at school and threatens self harm. At present his mother, consulting paediatrician and my self will monitor Patrick to see if he further requires anti depressant medication.
As a ten year old boy Patrick has very little control over his life circumstances. He is portraying his anger and despair with his actions and feelings of loss of control. These are very challenging and stressful times for all members of the Agresta household but also for a young boy with complicated and complex needs.”
Both you and your wife were present in your shop the Ascot Pasta and Deli, when Des “Tuppence” Moran was shot down by two gunmen who entered into your premises and fired six or so shots into Moran and killed him in the shop. Unsurprisingly both your wife and you were traumatised by the shooting, which occurred on 15 June 2009, a time after you had been released on bail and back working in the deli. Your wife has been receiving psychological assistance since that time, she has been diagnosed with Post Traumatic Stress Disorder. In your case, you had commenced psychological counselling in October of 2008, in respect of your anxiety and symptoms of depression relating to your arrest and charges in respect of this offence and other offences, that are yet to be dealt with. Whilst you were receiving that treatment, the killing occurred at the deli and you were required to be a witness in the trial of Judy Moran in the Supreme Court. Your clinical and forensic psychologist, Dr Lola Tsiaras in a report placed before the court dated 8 August 2012 stated:
Treatment sessions and antidepressant medication were gradually able to manage Mr. Agresta’s symptoms such that he did not have to attend frequently, but he still continued to experience ongoing symptoms of depressions and anxiety. In particular, his feelings of guilt, shame, and embarrassment over the trouble he has caused his family continue to impact Mr. Agresta greatly, despite the great support he has from his family. The lengthy nature of the legal process also made it extremely difficult for Mr. Agresta to manage his thoughts about the future, particularly his worrying about how children would cope should he receive a custodial sentence.
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 you have done all within your abilities to occupy his time in a positive manner, to ensure that he gets enough physical activity to wear him out so that he will sleep at night, and try make his life as normal as it can be for a child with his problems.
Whilst I accept that you are a great caring thoughtful and kind family man, you equally knew that the contents this container held vast amounts of drugs that were going to be distributed to other peoples’ children and the youth among our community. The two matters do not naturally coalesce, that you can be some devoted and caring to your own family and local community and yet so disregarding of the health of young people in 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 making your time in prison harder than the average person. In terms of your prospects of rehabilitation, I find that you have some prospects of rehabilitation, but in light of your overall criminal history, albeit some time ago, and what was your reputation in the community at the time of this offending I do exercise some caution about being totally optimistic about that issue.
Pasquale Sergi, you are 49 years of age. You were born in Griffith on 6 May 1963 and you have no prior convictions. You have three siblings - two sisters and a brother – all of whom are usefully employed and are respected members of the community not ever having been involved in any criminality. Your parent’s background is that your father was one of the many post-war immigrants to Australia from Italy in approximately 1950 or 1951 when he was then aged 17. Your mother, as I understand it, also migrated from Italy at around the same time. I am unable to say whether they were married or not at that time. It would appear that you are related to Pasquale Barbaro, in that Pasquale Barbaro’s mother and your father are brother and sister, which makes you and Pasquale Barbaro first cousins. Your father, on his arrival here, initially worked as an employee on a farm but eventually purchased his own farm which was subsequently lost due to financial problems, with the bank foreclosing on the loans over the family property. Your father then returned to employment as a farm worker until his retirement on the Aged Pension at 65. He died approximately two years ago after a lengthy battle with cancer.
You grew up in Griffith, as did your cousin, Pasquale Barbaro, and numerous other relatives. You initially were educated in the Catholic Primary system until Year 6 and then moved to the Catholic High School in Griffith, leaving half-way through Year 9. You went to work on your uncle’s farm at the age of 15½, again like your father, as a farm worker.
You met your wife Sarah at a family function in Melbourne. The two of you married in 1990 and have four children, aged from 20 down to the youngest 13. Your wife is a home-maker and resides in Griffith. She has a sister living in Griffith, the rest of her own family, as became evident during the trial, reside in Melbourne, not far from the ascot pasta and deli. You kept working on your uncles farm for many years until you were able to purchase some 76 acres of land for which you borrowed a large sum of money from the bank. You developed that uncultivated land by digging it, fertilizing and making it useable and planting grapes. Then about 3 years later a further 18 acres were purchased. It was described as a small family farm for the Griffith area , and together with your eldest son you maintained the farm yourself, with an occasional worker employed when absolutely necessary.
The farm has not been profitable and at the time fo the plea, the suncorp bank had foreclosed on the loans over the property and the family farm and home were lost. Your son was attempting to retrieve the family home but had been unsuccessful and you are facing imprisonment with the loss of your farm and family have occurred not long ago.
You have a number of health problems, one of which, migraine headaches, became apparent during the trial, as there were times when you were obviously unwell and unable to continue due to migraines. You had a broken neck from an accident when swimming in the river when you were 21 years of age, and in 2010 you were involved in a truck accident and hospitalised with an injury to your back as a result. I am informed that the river accident was aggravated by the driving accident and the migraines have become a more significant issue as a result. You have been prescribed medication for depression on occasions, but it is not a persistent ongoing issue.
I have also received a letter from your mother’s medical practitioner Dr. David Richards stating that she suffers with previous hypertension, diverticular disease, viral induced cardio myopathy, previous bowel cancer, a pacemaker and hernia. He states that she needs the assistance of others to take her to medical appointments. In relation to that you have two sisters and a brother who all live in Griffith and they should be able to address your mother’s health needs.
You are related to Barbaro, and you knew Agresta and Zirilli from the Griffith area, but had not known Karam or Higgs prior to this offence. You also face another trial in the County court in relation to trafficking in 2008 and money laundering, those matters are yet to be heard.
In terms of your prospects of rehabilitation, I find them to be reasonably good. You have the support of your family and friends, as is demonstrated in the many references tendered on your plea, you had never been in trouble with the law prior to this time and your experience in crime has been entirely unsuccessful, and negative.
In respect of each of you I am unable to discern any evidence to indicate that you are remorseful, whilst you are all to a degree upset about being caught, and anxious and depressed about the consequences of the conviction, nothing has been submitted that demonstrates any remorse on your part as remorse was properly described by the Court of Appeal in DPP (Cwth) v Barbaro and Zirilli.
In respect of you Higgs, it will be difficult as a result of your current age to impose a sentence that provides you with a great deal of hope of a useful life after release from prison. I have been mindful of your age, but you were not a young man when you committed this offence and as was pointed out in DPP v (Cwth) v Barbaro and Zirilli age cannot protect a person from the imposition of an appropriate sentence.
Further in relation to each of you, whilst I have attributed relative positions within the conspiracy, and descriptions have been given including descriptions such as foot soldiers – none of that indicates that you were an unknowing member of the conspiracy. The charge to the jury was, at the request of the crown, on the basis that before they could convict each or any of you they had to be satisfied that the person they were considering was aware of the contents of container they were seeking to possess and that the person was aware that there was a very significant quantity of a border controlled drug that was involved. They did not have to be satisfied that you each knew the precise amount of kilos of MDMA but that it was very substantial, constituted a large proportion of the container, and was many many times beyond the 500 grams commercial quantity.
You were all involved in a crime in which every one was playing for the highest stakes we have ever known in this country - that of obtaining possession of 15,193,798. tablets of ecstasy The total net weight of the tablets was 4,423,870 grams, which is more than 4.4 tonnes of tablet weight. You must all have been aware of the risk and the consequences of involvement in a criminal enterprise of that magnitude, you chose to take that risk, and now you must all bear the consequences.
I have to take into account in respect of each of you your respective roles and participation within the conspiracy, the importance of the particular role, your individual histories, character, antecedents, specific deterrence, and particularly your prospects of rehabilitation. Whilst all of those factors are important, I also need to consider the nature of the offence and the level of the offending, general deterrence, particularly in a case involving this high level of criminality, ensure that there is just and appropriate punishment, whilst also ensuring that the sentences I impose are not crushing.
You are each convicted and sentenced:
§ John Higgs to be imprisoned for 18 years – I direct that you are to serve a minimum of 14 years before becoming eligible for parole.
§ Salvatore Agresta to be imprisoned for 12 years – I direct that you are to serve a minimum of 8 years and six months before becoming eligible for parole.
§ Pasquale Sergi to be imprisoned for 10 years – I direct that you are to serve a minimum of six years and nine months before becoming eligible for parole.
Declare that Subject to the s 16E of the Crimes Act (Cth) and s 18 of the Sentencing Act 1991 (Vic) John Higgs has served 394 days in pre sentence detention in relation to this matter. Salvatore Agresta has served 383 days in pre sentence detention in relation to this matter and Pasquale Sergi has served 383 days in pre sentence detention in relation to this matter and such is to be noted in the records of the court.
Direct that their sentences commence this day the 30th of April 2013.
---
4