DPP (Cth) v Barbaro
[2012] VSC 47
•23 February 2012
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
No. 0026 of 2011
No. 0027 of 2011
| THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH |
| v |
| PASQUALE BARBARO SAVERIO ZIRILLI |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19,20 January 2012 | |
DATE OF SENTENCE: | 23 February 2012 | |
CASE MAY BE CITED AS: | DPP v Barbaro & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 47 | |
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Catchwords: Plea of Guilty 3 Charges: Conspiracy to traffick commercial quantity of MDMA, 4.4 tonne MDMA, 1.4 tonne pure MDMA - 2,900 times the commercial quantity. Traffick commercial quantity MDMA, 1.2 million tablets - 50 kilos pure MDMA.
Attempt to possess commercial quantity Cocaine - 99.9 kilos pure cocaine.
Commonwealth offences.
Highest level offending, international organized crime, conducted as business, greed professionalism, profit.
Barbaro at the apex of the organization. Zirrilli – right hand man.
Sentence: Barbaro – Life with a minimum of 30 years.
:Zirilli – 26 years with a minimum of 18 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Young | Office of Public Prosecutions Commonwealth |
| For the Accused Barbaro | Mr P Dunn QC | Gibson, Numan & Stewart |
| For the Accuses Zirilli | Mr M Croucher | Acquaro & Co |
HER HONOUR:
Pasquale Barbaro, you have pleaded guilty to three charges – first that between 13 June 2007 and 3 October 2007 you, together with Saverio Zirilli and others, conspired to traffick a controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA) in a commercial quantity. Second, that between 24 January 2008 and 8 August 2008 in Melbourne, you, Pasquale Barbaro, trafficked a substance, being a controlled drug, namely 3-4,methylenedioxymethamphetamine (MDMA) in a commercial quantity. The third charge is that between 24 July 2008 and 8 August 2008 at Melbourne, you attempted to possess an unlawfully imported substance, being cocaine, in a commercial quantity. Each of the three offences to which you have pleaded guilty carries a maximum penalty of life imprisonment.
Further, you have asked for three offences to be taken into account, pursuant to section 16BA of the Crimes Act 1916, they are listed as items within the document. Item 1 being that at Melbourne between 14 May 2008 and 8 August 2008, you conspired with Anil Suri and others to import a border controlled precursor, namely pseudoephedrine in a commercial quantity, which has a maximum penalty of 25 years’ imprisonment or 5,000 penalty units; item 2, that between 22 February 2008 and 8 August 2008 at Melbourne, you did deal with money of a value of $1 million or more which was proceeds of crime, the maximum penalty for which is 25 years’ imprisonment or 1500 penalty units; and item 3, that you, at Melbourne between 22 July 2008 and 8 August 2008, did receive, possess and dispose of money reasonably suspected to be the proceeds of crime in relation to a State or Commonwealth indictable offence, which offence carries a maximum penalty of two years’ imprisonment or 50 penalty units.
You Saverio Zirilli, have pleaded guilty to three offences, being charge 1, that between 13 June 2007 and 3 October 2007, you conspired with Pasquale Barbaro and others to traffick a controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA) in a commercial quantity; charge 2, that between 24 January 2008 and 8 August 2008 at Melbourne, you trafficked a substance, namely 3,4-methylenedioxymethamphetamine (MDMA) in a commercial quantity; and the third charge, that between 24 July 2008 and 8 August 2008 at Melbourne, you did attempt to possess cocaine in a commercial quantity by aiding, abetting, counselling or procuring the commission of that offence by Pasquale Barbaro. The offences to which you have pleaded guilty are the same as those of Barbaro, although your roles differ, and accordingly have the same maximum penalty of life imprisonment.
You, Saverio Zirilli, have no prior convictions and are currently aged 55. You, Pasquale Barbaro, are aged 50 and have a relevant prior conviction in Queensland, of supplying a dangerous drug, a matter to which I shall refer subsequently.
The circumstances relating to this offending are long and complex, as there are three separate charges to which you have each pleaded guilty, as well as the taking into account in relation to you, Barbaro. Whilst I shall attempt to summarise the matters sufficient to at least substantially explain your criminality, it will still be very brief, by comparison to the details provided in the materials. It should be noted, that I have read the materials to which I have been referred and I intend to act upon the totality of that material, which I take to be undisputed, except insofar as certain aspects were pointed out by counsel acting for you.
Any references made by me during these sentencing remarks in relation to co-offenders, alleged co-offenders or uncharged co-conspirators, is done solely on the basis, that for the purpose of your sentences, I am prepared to act upon the basis of their alleged involvement being true, for the purposes of sentencing each of you. Any findings of fact I make, relevant to them, are restricted entirely to this sentencing exercise and does not indicate any pre-judgment on my part in respect of their actual roles. The persons yet to face their trial before me, include X XXX, John Higgs, Salvatore Agresta and Pasquale Sergi.
A further alleged co-conspirator is Carmello Falanga, who is currently incarcerated in South Australia and facing serious charges. The Commonwealth is not able to extradite him for the purposes of facing trial with his alleged co-offenders. Equally, I have been informed subsequent to this plea that, there is another co-offender who is incarcerated in New South Wales and will also be unable to be extradited to stand trial, with the alleged co-offenders. That is Jan Visser.
In relation to these matters, I note in respect of the involvement that the Crown has alleged, that it commenced upon a particular date, although clearly other action had taken place prior to your involvement. For these purposes, I note what is contained in a letter by the Crown to your solicitors as to the commencement of involvement, which although written in reference to you Barbaro, is equally applicable to you both:
“The accused became involved in the conspiracy 1-2 weeks before the container holding the narcotics arrived in Melbourne and was unloaded. The accused agreed to superintend the process of safely obtaining access, receiving and transporting the narcotics with the full intention he would traffick the MDMA tablets either personally or in combination with other involved parties. The accused was a close, respected and trusted associate of Saverio Zirilli and of several other persons involved in the conspiracy. The accused had full knowledge the drugs were destined for distribution by trafficking and intended to be personally involved in trafficking part of the consignment. The accused was aware of both the narcotic nature and quantity of the tablets to be dealt with.
The import was organised by persons in Australia and internationally. When the import failed, there was a loss to the enterprise and Barbaro and others (Falanga and Zirilli) acknowledged and accepted responsibility for the debt incurred.
Barbaro was in regular message contact with persons overseas involved in the supply of the 2007 consignment. Barbaro twice travelled to Europe in July and October of 2007 in order to attempt to deal with the commercial stresses that arose in consequence of the loss of the 2007 consignment.”
The commencement date for the offending is 13 June 2007, in relation to the MDMA shipment. The container arrived in Melbourne aboard MV Monica on 28 June 2007. You had both come to Melbourne from Griffith, your 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 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 are not charged with, and will not be punished for, conspiring to import the MDMA. I mention those circumstances to put a background to what it was that you were attempting to traffick, for it was the contents of this container that you were conspiring to traffick. In terms of you, Barbaro, by possessing, transporting, storing, preparing and distributing the tablets and, in terms of you, Zirilli, possessing, transporting and doing so, with a view towards sale by another, with ultimately a view to distribution.
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 your planned conspiracy to traffick 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 you, and others 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, you each travelled to Melbourne, where you had contact with other persons who were alleged to be involved in this conspiracy to traffick.
During June and July 2007, you, together with other members of the conspiracy, stayed at the Pacific International suites in Little Bourke Street, meeting there at different times with Falanga, Sergi and Visser. There were arranged meetings at restaurants with Higgs and XXX. It was your belief that Higgs and XXX had contacts and expertise, in respect of obtaining safe possession of containers from the docks, particularly because of XXX’s history in international freight forwarding and Higgs’ experience generally, in the illegal drug industry. At that time, XXX was on trial in the County Court in relation to an importation of MDMA. 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 XXX to occur before court, during the luncheon adjournment and after court.
There are many relevant text messages and calls, recorded between the parties. The AFP, from at least 2 July 2007, 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 who would assist in the actual picking up of the container and the delivery of it to another place. Those persons, said by the Crown, to be Frank Agostino and his son. There was optimism about the potential success of this conspiracy, until about 3 July, when after meetings at another café, between you both and Falanga, Higgs and XXX, the mood was described as morose. By this stage, it was believed that the container had 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 you, that you 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 you Barbaro, to Falanga having to find half and you having to find half. You, 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 still persisted in attempting to obtain the shipment, together with other criminality to which I shall subsequently refer. Many steps were taken, and all hope was not abandoned, for a lengthy period of time.
You were both farmers located in Griffith and claimed to have been responsible for managing your various farms. Despite that, a good deal of your time, in June and July, was spent in Melbourne pursuing the contents of this container.
The Crown has prepared a relatively brief summary, which is Exhibit 1 on the plea. I have also read the summary of evidence, updated as at 3 January 2012, consisting of 576 pages relating to this particular charge and supplied to all parties. I do not intend to go through, item by item, your activity. Suffice it to say that the Crown have submitted that you, Barbaro, were at the apex of the criminal group that was operating within Australia. I do not understand that to have been challenged by your counsel, although there was reference to Mr Falanga being a person who was equally responsible, in terms of the conspiracy to traffick in the contents of this container.
Whilst that is contained in references made by you, to which I have earlier referred being “He’s got to come up with at least half”, it would appear that you ultimately undertook financial responsibility for the repayment to the Europeans suppliers, in relation to the amount of approximately $10 million, which is evident from numerous conversations recorded subsequently.
You were understandably concerned that the seizure of the container had not been made public and to ensure that your European suppliers understood that you were not trying to steal the ecstasy tablets, or as it colloquially known “rip them off” – you attempted to try to have the seizure made public. Through a series of mobile phone handsets and sim cards, you contacted a reporter at the Melbourne Herald – Sun on a number of occasions, asking if he was aware of this seizure and giving details that could be known only to those who had a complete awareness of the container and its contents, including the size of the shipment. You were attempting to ensure that those, to whom you were responsible for this payment, overseas were fully aware that the shipment had been seized by law enforcement authorities.
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. As will be seen in respect of the second charge on the indictment, 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 and thus pursue the conspiracy to traffick to its conclusion. 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.
It was, at one point during your plea, disputed by your counsel, Barbaro, that you were in fact going to be involved in the trafficking of all of these tablets. That was revised, to indicate that you were not going to be necessarily personally selling each of the tablets, but you would be involved in the trafficking of all of the tablets, in the definition that has been put forward and to which I have already referred.
The same applies to you, Zirilli, in that whilst you were not personally going to sell or propose to sell each of the tablets yourself, you were preparing to assist others to sell those tablets, in the way I have earlier described.
It is my view that this charge is at the highest level of offending of this nature. It has been submitted by your counsel, that to determine that this offending falls into the highest category of offending of this nature would be an error, in that Mr Dunn submitted:[1]
[1]Page 55 plea transcript 19 January 2012.
“Your Honour I will deal with it later, but can I just not let it go at this moment, but I will deal with it a bit later on but can I say, we say it doesn’t fit to that category because you don’t require a great deal of imagination to think of worse cases and indeed practical experience - - -
HER HONOUR: I can think well look at the amount.
MR DUNN: No no but as - - -
HER HONOUR: Look at the amount, look at the persistence.
MR DUNN: Sure.
HER HONOUR: Look at the high level of criminality involved - - -
MR DUNN: Yes.
HER HONOUR: In relation to how it was funded and paid I mean it’s just horrendous - - -
MR DUNN: You are right - - -
HER HONOUR: - - - in terms of that.
MR DUNN: Very serious offending.”
Both Mr Dunn and Mr. Croucher submitted that the court must be careful not to be blinded by the amounts of drugs involved and referred to Wong’s case, a decision of the High Court reported 2001 207 CLR 584. It is clear from that case and the legislation, that quantity is one of the factors, and a significant factor, but not the only factor that must be examined, in determining the seriousness of the offending.
In the judgment of Justices Gaudron, Gummow and Hayne at paragraph 67, page 609, they stated:
The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament’s distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?
The court continued on to state at page 610:
In those circumstances, while s 16A takes the form it does now, it would be wrong to produce some numerical guideline system of a kind similar to that adopted in some jurisdictions in the United States under which presumptive sentences are fixed by reference to a classification of the gravity of an offence and the seriousness of the offender’s previous criminal history. To do so would obviously depart from the legislative command of Part 1B of the Commonwealth Crimes Act if only because it fastens upon only some of the factors that are mentioned in the Act. That is what the court of criminal appeal’s tabulation of sentences does. It offers a grid against which future sentences are to be judged and it is a grid which is founded entirely on gravity of the offence as measured only by the weight of narcotic concerned…
The starting point which is given by the court of criminal appeal is based on the false premise that gravity of the offence can usually ‘perhaps even always’ be assessed by reference to the weight of narcotic involved. (my emphasis)
The criticism was that by way of providing guideline judgments that the court had entered into a fixed mathematical calculation involving only one significant factor pursuant to s 16B.
But it should also be noted that the Court quite specifically at page 608 stated:
In general, however, 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. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles.
What is important for present purposes is that it is all of the matters mentioned, 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.
Charge 2, to which you have both pleaded guilty, is that between 24 January 2008 and 8 August 2008, you trafficked MDMA in a commercial quantity. The commercial quantity, involving both of you, was 1,200,000 ecstasy tablets. Those tablets came from Sydney. First, in February 2008 with 720,000 tablets and then in May 2008, 480,000 tablets. The only tablets seized, related to some of the 480,000. Those 480,000 tablets produced an MDMA purity profile in excess of 50 kilos of pure MDMA. This by itself is more than 100 times the commercial quantity of 500 grams.
The Crown submit from the material, that the initial 720,000 tablets were of an extremely good quality, in terms of their content, but were not well bonded requiring the repressing of some of the tablets, no issue was taken with that matter.
This venture continued until your arrest on 8 August 2008. The supply sources was the same source in Europe as your previous charge. The major imperative for this trafficking, was to enable you to repay to the Europeans the debt that you owed, as a result of the failed conspiracy to traffic, the previous Charge 1.
You Barbaro, remained in regular contact with those suppliers over a 14 months period. You met with them in Europe in October 2007, having previously been there in Italy in mid-July of 2007 to ‘lick their wounds’. You Zirilli, travelled to Europe and met suppliers in Germany in March 2008. The only problems that you had in the trafficking of these particular ecstasy tablets was the failure of a co-offender, Rob XXX, to pay in a timely manner for the drugs that you had supplied to him, which were apparently some several hundred thousand tablets. With the failure of XXX to pay, there was a failure, by you, to pay the Europeans all of the money for all of the tablets.
You were paying them a very large amount of money, per tablet, to ensure repayment of your debt, in the fastest possible way. That much is known from the records that were kept by, you Barbaro and your close associate, Sharon Ropa. You maintained records, but she maintained very organised business records, that commenced in May of 2008. The transactions were dated and the listing of the customer cash receipts, was combined with the reducing balance, as each item was paid for, ultimately revealing how much you had paid, and how much was still owing, to the European Syndicate.
The Europeans were charging you $7.30 for each ecstasy tablet you received, which contrasted with, the approximately 73 cents the previous tablets had cost. That price was intended to be used to reduce the amount that you had outstanding for the failed previous trafficking. You were charging variable amounts for each tablet, but the average price was approximately $8.30 per tablet. You had sent out $9,959,850 worth of tablets to your various associates for on-sale. You had, by the time you were arrested on 8 August 2008, received $7,255,150. You had paid onwards to the European suppliers, those who organised the tablets to be sent from Sydney, the sum of $5,658,120. Thus, reducing your debt considerably.
In the period between February and August 2008, you put $10,000,000 worth of ecstasy into the market of this country. They were distributed to Victoria, New South Wales, Tasmania, Western Australia and the ACT. Numerous co-offenders have been charged, some have been dealt with, some are awaiting trial in the County Court. Some of those trials will occur later this year or early next year.
Once again, this can only be described as significant trafficking. It was persistent. It was for high financial reward, a large amount of which was forwarded to reduce your debt, but on the figures before the court $1.75 million was not passed onto the Europeans, a not insignificant amount. You Barbaro, again, are at the apex of this offending. The quantity involved is a large amount, a minimum of 100 kilos of pure MDMA, and from the records kept it was run as a business, a pure commercial enterprise, concerned only with making the highest possible profit in the shortest possible time. It is a cynical exploitation of those foolish enough to think that using a drug like this is fun. It does not fall into the worst category of offending, but is in the very high range of offending for offences of this type. Once again Zirilli, you are Barbaro’s right hand man, and a trusted ally and colleague in this enterprise, but not at the level of Barbaro.
The third charge to which you have both pleaded guilty is an attempt to possess a commercial quantity between 24 July and 8 August 2008. You Zirilli are charged as a person who aided, abetted, counselled or procured the commission of that offence by Barbaro.
On 24 July 2008 a shipping container arrived aboard MV Joseph Maersk. That container held numerous bags of Columbian coffee beans. It had been dispatched from Columbia, through Panama in late June of 2008. The consignee of the container was a bona fide, long established Victorian importer of coffee beans. Unknown to the consignee, three black bags were also in the container, stacked in what could be described as easy reach, on top of the bags of coffee beans, those black bags contained 99.9 kilos of pure cocaine, which is 50 times the minimum commercial quantity of 2 kilos. This method of importation is, what is referred to as, a piggy-back operation, the intention being that the container would be accessed and the three bags removed prior to delivery, to the actual consignee of the legitimate cargo contained in it. One of the bags containing the cocaine, had an unused MA Maersk container seal and bolt attached to it, and once the original seal on the door to the container had been breached to obtain the cocaine, that unused replacement seal could be used, to ensure that no one became aware that anything within the container had been accessed.
The container was intercepted upon unloading, the cocaine discovered, removed and tested. The vessel arrived in Australia on 24 July 2008, the container was unloaded and landed on 25 July 2008, it was x-rayed on Saturday 26 July and on 28 July it was physically examined. The three large, vinyl black padlocked bags were discovered immediately.
You were provided with information, through XXX, that there was a problem with this container. This information, in all likelihood, came from associates of XXX working in the docks. After many discussions, over a period of days, it became clear that the cocaine in the black bags would not be able to be accessed.
They are the three charges to which you have each pleaded guilty.
In addition, you Barbaro, have asked the court to take into account three offences which are listed as three items: being Item 1, at Melbourne between 14 May 2008 and 8 August 2008, conspiring with Anil Suri and others to import a precursor - pseudoephedrine - in a commercial quantity; Item 2, between February 2008 and August 2008 you dealt with money of a value of $1 million or more which was the proceeds of crime; and, Item 3, at Melbourne between 22 July 2008 and 8 August 2008, did receive, possess and dispose of money, it being reasonable to suspect that the money was the proceeds of crime in relation to a State or Commonwealth indictable offence.
Item 1 carries a maximum penalty of 25 years imprisonment or 5,000 penalty units; Item 2 a maximum penalty of 25 years imprisonment or 1500 penalty units ; Item 3 a maximum penalty of two years imprisonment or 50 penalty units.
The procedure of taking matters into account is pursuant to s 16BA of the Crimes Act 1914 s 16BA(4) which states:
Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his guilt, the sentence passed upon him for any of the offences of which he has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him for the offence if no offence had been so taken into account.
You shall not be punished additionally for the offences taken into account, but they are capable of informing the court, in relation to your overall conduct during the relevant times, and may well go to the issue of remorse, and prospects of rehabilitation. There are relatively lengthy summaries of the offences that have been taken into account contained in Exhibit 2 on the plea. I do not intend to reiterate all of those matters and will deal with this in the briefest of compass.
In relation to Item 1, the precursor import, it was determined by you and others to import some precursor chemicals into this country for the purpose of manufacture of amphetamine. You dealt with a number of co-accused including one Anil Suri, who had the contacts in India which were to be utilised for the precursors import. Suri and XXX were to provide the paperwork for the import during March and April of 2008. There were many discussions. Money was provided to the Indian consignors, which failed to be forwarded and subsequently, you had to provide a further $20,000 for transfer to India, which you did in May. A consignment was to be sent to a nominated consignee, (a legitimate company) but marked for attention to a particular confederate of yours with the appropriate contact numbers; the legitimate company itself had no involvement, and was never intended to receive the consignment. A further $12,000 was sent and after much toing and froing the shipment was sent from India. On 7 August 2008, a bill of lading was provided, in relation to furniture to be sent to Philby Interiors in Bentleigh. You were all arrested on 8 August, including Suri who returned to Australia on 10 August 2008. On 4 September 2008, the container arrived in Melbourne, there were 10 black Vinyl bags each weighing approximately 10 kilos, containing a white crystal substance. Only one of the 10 bags contained any precursor chemical and that was pseudoephedrine of only 4.03% thus, a total of 397.1 grams of pseudoephedrine was imported – the rest was MSG.
In respect of items 2, the details are that, as referred to earlier, substantial sums of cash were recovered as a result of the sale of the ecstasy that had been arranged to be sent down from Sydney. A term of the agreement to supply that ecstasy was, that Barbaro would immediately deliver money to local people here, with that money equivalent then being supplied to the syndicate overseas. The European suppliers had sent a person, by the name of Ronald Philipoom, to oversee the remittance of the proceeds back to Europe, in a timely fashion. He assisted also in the trafficking of drugs, directly, on behalf of the European suppliers.
In relation to Item 3, you Barbaro supervised the laundering of money received from yet another group in Adelaide. The method in which this was done suggests, it was reasonably suspected to be the proceeds of crime, but the exact origin of the money is not known, which is why the charge that is to be taken into account reads as it does.
The processes used were sophisticated, clever and above all successful. In relation to the money laundering charges, they were three in total, with the first relating to the Barbaro syndicate, the trafficking done by Philipoom on behalf of the European suppliers, which you assisted in ensuring was delivered to the Europeans and money from the Adelaide syndicate, the source of which is not totally known. The first amount relating to the Barbaro syndicate, was $5,658,120; second, on behalf of the European syndicate, was $1,413,000 making a total of $7,071,120; third, on behalf of the Adelaide syndicate, was $4,217,240.
That is a summary, for the purposes of this plea, of the offending to which you have both pleaded guilty, and which you Barbaro have also asked to be taken into account.
At no stage has there been any reason put forward, on behalf of either of you, as to why you became involved in such large scale commercial drug activity, other than an acceptance, on the part of Barbaro, that it was to make a lot of money and a suggestion, on behalf of you Zirilli, that it was to assist Barbaro, due to your loyalty to him.
Whilst I accept, that you are cousins and there is undoubtedly a degree of family loyalty, I find it inconceivable that a person would involve themselves in the degree of criminality that you have admitted, purely on the basis of your cousin asking you to assist him, through loyalty. It is clear, in my view, that this was a pure commercial activity, that you both undertook.
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. Neither of you, are persons who are addicted to illegal substances and desperately trying to keep yourselves supplied with an illegal narcotic substance. Neither of you were in desperate financial straights, such that required urgent injections of cash. Neither of you were under any obligation to be involved in trafficking at this extraordinarily high level. The only explanation for your involvement is, one of massive greed. You were playing for extraordinarily high stakes. Hundreds of millions of dollars. You were both successful farmers with significant landholding in the Griffith area. You had success, you had wealth, you had loving and loyal families. You were, according to the references I have seen, well thought of, and well respected in the local area. You risked all of those things, to make obscene amounts of money, at the expense of the community of which you were a member. Your moral culpability is high, your behaviour despicable, it is a cynical exploitation of members of our community. The community will not tolerate, and the courts will reflect that, massive commercial exploitation of the younger members of our community, to enable you or others like you, to accumulate vast amounts of money. This is what is referred to as organised crime, it has international links, it is professional, it is contemptuous of our police, our laws and our society, and it cannot and will not be tolerated by our society, Parliament or the Courts. It merits punishment, appropriate to the level of the criminality and the demonstrated attitude to this society by those involved in this very cynical money making exercise.
In relation to the first charge on the indictment, you were attempting to distribute over 16 million ecstasy tablets into our community of teenagers and young adults. You had children, the age, that would have been the targets of these drugs. It is not for this court to say whether or not a particular drug is serious, more serious, or less serious than another; it is Parliament who determines the seriousness of the drug, by the quantities that they nominate as a commercial quantity; here it is 500 grams – You were seeking to possess and traffick thousands of times that amount. You took the risks, you took the chance that you would be successful, that you would make vast, unheard of sums of money by obtaining and trafficking the amount of ecstasy involved in the first and second counts.
The amount of cocaine alone, is worth some $40 million and it is believed that, it cost you approximately $600,000 to purchase. As indicated, there are enormous profits to be made and you determined to make them.
This community expects rightly, that those who behave in this manner and become involved in high level, high scale trafficking for money shall receive significant punishment.
Parliament has set out the principles and matters to which a court must have regard in passing sentence on a Commonwealth offender. The first three of which are: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; and (c) if the offence forms part of the course of conduct consisting of a series of similar acts of the same or of similar character of that course of conduct. I have referred to those three matters. Those matters are all relevant to the issue of where the offending falls in the hierarchy of offending.
I also have to consider pursuant to section 16A(2) of the Crimes Act 1915, matters personal to each of you, including your plea of guilty, personal deterrence, the need for adequate punishment, your character, antecedents, age, means, physical and mental condition, the prospects of your rehabilitation, general deterrence – which although not mentioned within s 16A is a matter that has been determined is an appropriate principle in relation to Commonwealth sentencing. I also have to take into account, the degree to which you have shown contrition for the offence by taking action to make reparation for any injury, loss or damage or any other way that you have shown contrition, the degree to which you have cooperated with law enforcement agencies in the investigation of the offence or of other offences. (d) and (e) I do not consider to be of any particular relevance in this case and (p) the probable effect that any sentence or order would have on any of the person’s family or dependents. Finally, I also have to consider, the need to ensure that you are adequately punished for the offences.
Before I move to your personal circumstances and history, I note that each of you have pleaded guilty and you will be accorded significant weight for that plea of guilty. I further note that, neither of you, has cooperated in any way with law enforcement agencies in the investigation of this offence or of any other offences, or in respect of your co-offenders or others overseas. The issue of contrition, shown by taking action to make reparation, has no significance in this matter. I am presuming, that assets will at some stage be forfeited, but it was not put before me, that there was any matter that I should take into account in respect of that and, accordingly, I will not. I consider, that the issue of general deterrence is a matter of great significance, in a case such as this. In respect of the issue of personal deterrence, in relation to you Barbaro, I find that is a matter of real significance. In relation to you Zirilli, I consider it a matter of some importance, but not to the degree necessary in relation to Barbaro.
I shall deal with the character antecedents etc. when I am dealing with your personal circumstances, as I will deal with the prospects of rehabilitation.
In relation to the issue of your cooperation with authorities and your remorse and contrition, I refer to pages 77 and 78 of the plea when I said to your counsel:
Her Honour: Tell me what your actual instructions are in respect to all of this. What was his share, tell me what you rely upon. Actually discuss the offence with me.
Mr DunnFirst of all I can tell you what I rely upon and appears in the material. Following this there was conversations with Falanga where Falanga is asked to pay half and there is a lot of effort to get Falanga to cough up his share. Europeans are actually asking for some show money, for something to be produced. We say that Mr Barbaro, who became involved through others.
Her Honour: Who?
Mr DunnWe say particularly a man called Domenico who appears by the name of ‘Hair’ on the material, that’s the nickname that he is referred to. But, your Honour, I’m only saying that because it is on the material. My client doesn’t give me instructions – what I’m saying is the material.
Her Honour: So you have no instructions from your client about the actual offending?
Mr Dunn:No. No your Honour. I do have instructions and insofar as what I’m told and what I’m instructed is that it became known that there was a quantity of drugs coming to Australia and that there were business opportunities for people to become involved in it.
Her Honour: So it was a commercial business operation that he decided to become involved in?
Mr Dunn:Your Honour he wasn’t doing it as a charity to provide the nightclubs of Melbourne with a happy mid-winter break. But the fact is that we certainly know that there’s communications, and indeed, Mr Falanga and others go to visit – sorry Mr Barbaro and at least one other go to visit Mr Falanga and there is communications where they are asking Falanga to pay his half. What happens is that I am instructed that there were others involved. Now what happens is that Barbaro ---
Her Honour: Who are the others and where do I find the evidence to support that?
Mr Dunne:Your Honour you don’t.
Her Honour: Who are the others.
Mr Dunne:Your Honour I’m not told who the others are.
Her Honour: Well I can't act on that can I Mr Dunn.
Mr Dunne:No. All I’m telling you is that I’m told that there are others involved.
Similarly, Zirilli at no stage were you prepared to discuss the details of the offending with the psychologist employed to do an assessment of you, for the purposes of the plea. This matter was raised with your counsel at page 122 where Mr Croucher had submitted, that I should be satisfied that you were remorseful, and there was evidence that you were remorseful:
Her Honour: I have to say that the issue of remorse is one that is troubling because there is nothing to indicate actual remorse.
Mr Croucher: Well there’s the plea ---
Her Honour: Apart from the plea of guilty.
Mr Croucher: Can I come back to it your Honour. I want to just list these things and then come back to it.
Her Honour: I think that’s something I actually should have raised with Mr Dunn, but this refusal to discuss anything if you look at the psychological report of your client ‘I won’t say anything at all about the offending’. I have to say that’s not really very remorseful.
Mr Croucher: Your Honour there’s an obvious reason for that.
Her Honour: You say that but I have to say I’m not really satisfied of that.
Mr Croucher: Your Honour I’m not going to call any evidence about it.
Her Honour: No.
I have no information, provided by you or your counsel, as to your actual role in this matter, what if anything you were to receive, what if anything you contributed financially. It is my view that, like Barbaro, you are remarkably silent about what you did in relation to these offences, for which you have pleaded guilty. Not one piece of material, additional to what the Crown can prove, has been put forward by either of you. So whilst I accept, a plea of guilty can be indicative of a degree of remorse, I have nothing really, in this case on behalf of either of you, that indicates your plea of guilty is anything other than a utilitarian plea, which will save the court a great deal of time, and the community a great deal of money.
There may be other factors indicative of remorse and I will examine that when I to your individual background and circumstances. What must be understood, of course, is that the cases again each of you were significant and extremely strong cases. If you are remorseful and there is any evidence to that effect, then despite the overwhelming nature of the case, you would still receive the benefit of that remorse, additional to the substantial benefit of your plea of guilty.
Pasquale Barbaro, you were born on 23 October 1961 and you are 50 years of age. Your father was born in Calabria and came to this country at the age of 17 to live with his brother in Griffith. His brother was married to Josephine Sergi and your father subsequently married Elizabetta Sergi, the sister of your brother’s wife. Your father is now aged 74 and your mother 69, he was a fruit and vegetable grower in Griffith. You are the eldest of four children. You have a younger brother, Joseph, who was born in 1963, and you farm together. Your wife was born in 1966 and is also your cousin, Lisa Barbaro. Her mother being the sister of your mother. You attended St Patrick’s Primary School and then Marianne College in Griffith.
You, like a number of immigrant families in the area, worked hard before and after school, picking tomatoes, peas etc. You left school at the age of 16 and went to work on the family farm. In 1980, when you were aged 19, you went to work for a trucking company, as there were difficult financial times on the farm and you worked for Guerra Transport in Griffith. Your brother worked in packing sheds – all of this to assist the family.
In 1984, when you were aged 23 you married your 18 year old cousin, and you were working then as a forklift driver. You renovated an old fibro cement house on the family farm block, (1773) where you lived until 2002. Your first child Francesco, now also a farmer, was born in April 1985. Whilst you were still at Guerra’s, you leased or were given a block and planted vegetables and fruit. The land belonged to Zirilli, and you provided the labour. In 1987 you had your second child, Joe, and in 1989 you purchased 500 acres on Whites Road, Griffith. It was not horticultural land at that stage, but shortly after purchase, it was rezoned and it became more viable and worth more money. You borrowed money and planted grapes. In 1990 your third child, Elizabeth, was born. That year you were charged with cannabis cultivation – significant cannabis cultivation. Shortly after you were charged with that, in 1991, you attended at Dr Calaizis and were diagnosed with depression-like symptoms. In 1993, you were again diagnosed with depression and placed on medication for anxiety attacks. In 1995 you had your fourth child, Mary Louise, now aged 16. In 1997 you purchased a six acre block on Whites Road, Tharbogang and over the next six years, with your brother, built a house on that block. In 1998, in February, you were convicted at the Griffith Magistrates Court of one count of preventing a witness from attending and released, on a section 9 bond. In that same year you saw a psychiatrist Dr Ellard, who was of the view that you had developed, agitated depression. All of this comes from the report of your doctor, Dr Calaizis, which is tendered as an exhibit. In 1999 you were prescribed Xanax and Aropax, and in June 2000 Xanax.
In October of 2001, when you were aged 41, you were charged with cannabis supply and possessing an air rifle, which was found in a shed on your property at the time of your arrest. Shortly after that arrest you were further prescribed Aropax and Xanax. In January of 2002, you were fined $250 in the Griffith local court in relation to the firearm offence, and in November of 2002, you were jailed in the Brisbane District Court for three years and six months, to be released after serving 10 months , with the balance of the sentence to be suspended.
What should also be noted, is that over the period of 1990 through to almost 2000, you were dealing with substantial offences of cultivation of cannabis, to which I earlier referred. You were initially convicted of those offences and sentenced to a very substantial term of imprisonment, of approximately 14 years. 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 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 two 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.
In the report tendered to the court of Mr Patrick Newton dated 23 November 2008, he states:
I note that he was charged with involvement in the cultivation of a commercial quantity of cannabis Mr Barbaro was convicted of this offence and sentenced to 14 years imprisonment. He continued to protest his innocence of this charge and participated in two appeals and retrials over the space of approximately 10 years before his conviction was ultimately quashed.
That is, a very significant involvement with the criminal law in very adverse circumstances, particularly when one protests their innocence. However it is shortly after you are finally cleared of that offending, that that you are involved in the Queensland offence. Equally, it should be noted that the offending involved in the first of these charges commences, approximately a year after the expiration of your suspended sentence from Queensland.
There are, it would appear, significant problems with depression in your family. Of your two sons and two daughters, both of your sons have been diagnosed with depression, with the younger, Joe, having a more severe version. There is, according to a somewhat dated report by Dr Lester Walton, a forensic psychiatrist, an extensive family history of mood disorder. You have expressed to him, vivid recollections of your father being overwhelmed with panic and tearfulness when you were a child, and that, you later recognised the same symptoms occurring in yourself. Your sister suffered from post-natal depression and other maternal relatives have been diagnosed with depression. Dr. Walton found you to be suffering from a chronic, mixed anxiety, depressive disorder, of moderate severity and that, you have a significant, genetic loading towards such a mood disorder, but he equally had no doubt, that your current predicament represented a significant stressor aggravating that condition.
I do note in the report from your doctor, Dr Peter Calaizis, that your depression significantly increases each time you face legal proceedings, and seems to abate somewhat as the legal proceedings abate. That is neither surprising nor unexpected. I also accept what Dr Danny Sullivan had to say in his report, dated 17 January 2012, that the incarceration will certainly weigh more heavily upon you than the ordinary prisoner, due to this anxiety/depressive disorder. He also conceded that, you were able to receive appropriate and adequate treatment whilst in prison. I will take that into account, in the overall balancing process which I must undertake, but it can only have a very limited role in moderating a sentence for offending of this scale.
This is not an early plea. You were arrested in 2008. The first indication of any intention to put a plea offer before the prosecution was in June of 2011. I do not consider it to be a late plea but, as I say, neither is it an early plea. It was a plea based upon a considered assessment of the evidence that was in your possession. It remains, however, a very significant plea of guilty. You chose to admit your guilt rather than to take the chance that in a long, difficult and complicated trial, a jury may become so confused and caught up, that you may have had a chance of being acquitted. Your plea of guilty forsakes that opportunity.
I have letters from your mother, father, mother-in-law, wife, your two daughters, your two sons and your brother, all of whom speak about, first of all, their medical problems and, secondly, the effect your incarceration has had upon them and will have upon them in the future. To take but one example, I will refer to the letter from your father:
Current proceedings
When I learnt that my son was arrested I effectively lost interest in life from that very moment. The publicity and manner in which I saw my son placed effectively his future in the most extreme circumstances where his liberty would effectively be curtailed for some period of time have had an effect on me that amounts to a realisation of desolation and despair that I may never see him again. To hold him, kiss him and communicate with him as one of my children in my home or in his home. The inability to interact with him and to have him partake of a meal in my home before I leave this world is indeed a matter of some great regret and the possibility he may not even be able to attend my funeral has caused me severe anguish that I should raise him and I should live my life to the fullness that I have and be robbed of his company. While I can see that he is effectively the author of his own misfortunate (sic) the effect on myself, taking into account my health and age is to me a matter of extreme hardship for both my wife and myself.
Your father is correct, you are the author of your misfortunes. Whilst it is sad that your father will not necessarily have the pleasure of your company in his home again, that is not something that is rare or uncommon for persons convicted of very serious offences, who have elderly parents. Your parents were elderly and already had their health issues, when you chose to commit these offences. The same applies to your children and your wife. They will suffer the ordinary consequences of a father who has committed very serious offences being jailed for a significant period of time. There is in my view nothing exceptional in any of those circumstances such that it should reduce the appropriate sentence to be imposed upon you.
There has been a delay in these matters being finalised. It is not a matter of real relevance as to the cause of the delay but I will note that offences of this type, with this level of international money laundering and organised crime, are difficult to detect and even more difficult to prosecute due to the volume of evidence that is collected. It must be sorted and determined as to what charges arise from the morass of material collected. Despite that, the court must still take into account that it has been some time since you were arrested, being August of 2008, and accordingly acknowledge that this offence has been hanging over your head for some considerable period of time. Whilst it is a relevant factor, and it mitigates to a degree I do not consider it to be of great significance in mitigation of the appropriate penalty.
In relation to you Saverio Zirilli the findings that I make into the issues of delay, the health and impact this will have upon your family both immediate and extended, the value of your plea of guilty and the stage at which it was indicated are the same, as for Barbaro.
You are now aged 55, having been born in Griffith on 27 November 1956. You are the second youngest of six children with your siblings ranging in age from 53 to 70, all of them are married, have children and live in the Griffith area where you also reside. Your father died in 1990 but your mother is still alive and is aged 88 and she lives in Griffith. All of the family assist in her support.
You have four children the eldest being Frank, aged 29, who is married and has two young children and lives and works on the family farm. Dominic, 26 also works on the farm, a daughter Mariann, aged 22, and your youngest child, Sam, aged 11. Your wife Teresa is aged 48 and you have been married for approximately 30 years. You are a first cousin of Pasquale Barbaro, you co-offender.
Your wife Teresa suffers from depression, as does your eldest son, Frank. All of the children still live on the family farm, with your son Frank having a separate house on the farm where he resides with his wife and children. At the age of 15 you left school to work on the farm. I have been provided with no information as to what the farm was that you went to work on, how large, whether it has been extended or anything of that nature, nor how you performed at school, only that ultimately, after leaving school, you would run the farm and that is what you have done for your working life. You are regarded as a capable and successful farmer according to the many references that I have before me. Your two eldest sons work on the farm. Your younger son is still at school. I am unaware of the employment of your daughter. In the written chronology presented on your behalf it was indicated that you ultimately bought your own farm on which you planted grapes and citrus fruits and you run that farm, as indicated, with your sons. I am unaware of what the farm cost or its size or how it was paid for. The property has unsurprisingly been restrained in relation to proceeds of crime and forfeiture issues. You had large contracts with Casellas to provide grapes to them and you have lost some contracts as a result of your criminality. You have, since you have been released on bail, been training your sons to take over the management and running of the farm.
You have some health issues including sleep apnoea for which you require a CPAP machine to assist you with your sleep. You suffer from gastro oesophogeal reflux for which you take medicine as required and you have a disc bulge which causes you lower back pain.
I have a report that has been submitted to the court from Stephen J Woods, forensic psychologist who is an adjunct associate professor at CSU. In that report at page 2 Mr Woods states:
In summary, assessment of Mr Zirilli revealed no reported prior history of criminal behaviour or indeed any behaviour suggestive of antisocial tendencies. Mr Zirilli acknowledges his involvement in a criminal enterprise but declined to provide any further details – reportedly out of fear for his own and his family’s safety.
Continuing with this at page 3 he said:
When asked about the nature of the criminal enterprise, his level of involvement, and reasons for becoming involved, Mr Zirilli explained that he could not make any comments or disclosure as to do so would place his own life and of greater to concern to him the lives of his family at risk.
I find it difficult to understand how an explanation of your level of involvement in the offending and your reasons for becoming involved in the offending could in any way place at risk your life or that of your family. It would not be naming any other persons, it would not be talking about any other person’s involvement and I do not accept the explanation given for your failure to explain anything about your role in the offending to this court.
According to the report from Mr Woods, your eldest child was diagnosed with major depressive disorder and co-morbid symptoms of generalised anxiety and agitation about seven years ago and he continues to require treatment. Your daughter suffers from frequent debilitating migraine headaches as well as ‘a brain cyst’ and your youngest child is reported to have begun to exhibit symptoms of depression following your arrest and has since that time been receiving counselling. Your wife is reported to have developed symptoms of anxiety and depression since your arrest and in response to your arrest. She receives on-going treatment, including ante-anxiety medication. You informed Mr Woods that your farm employs up to five part-time employees as well as yourself and your two elder sons and your farm which is mortgaged is “still doing well” in terms of income.
In response to questions you indicated to Mr Woods that you were preoccupied with the following. Firstly, concern or fear for the physical and emotional safety of your family, both immediate and extended. Fear and guilt in relation to the possible impact of your conviction upon your mother’s health. Guilt, remorse and self-recrimination for the distress caused to your family. The risk caused to your family arising from your involvement in the matter. The impact that your incarceration will have on the financial and emotional well-being of your wife and children and finally your offending behaviour.
Upon examining the report tendered on your behalf, prepared by Mr Woods, together with the many testimonials tendered it appears to me that the remorse that you feel and express is one that is regretful of the consequence of your actions – that is your impeding incarceration and the affect that it will have upon you and your family. The material before me does not, disclose that you have any real remorse to society in general for your involvement in the criminal activity. There is no sense of moral blame, no sense of horror or extreme shame at what you have done It is all personal and relates to the consequences that you and your family will suffer. That is not remorse for your involvement in criminality, it is regret for being caught and the punishment that will follow. So, although there is a reference to some remorse in the materials I find it to be of a very limited nature.
In his conclusions Mr Woods stated,
Mr Zirilli acknowledges his involvement in a criminal enterprise but declined to provide specific details or even comment about why he became involved. Mr Zirilli explained that he is not prepared to provide specific details of the persons who conceived of and instigated the criminal enterprise due to fear for his own life and of greater concern to him the lives of his family. Mr Zirilli has particularly strong attachment to his family and in this regard appears to be focussed on the ramifications and hardship that they will suffer as a result of his offending behaviour. He is of the belief that the shock of him receiving a lengthy custodial sentence will have an extreme negative impact on his aging mother’s physical and emotional health. The risk of Mr Zirilli developing a depressive illness subsequent to completion of the pending legal proceedings must be considered. With regard to future offending it has already been stated the assessed risk is low.
I have been provided with a number of reports as to your character from your brothers, your children and many friends, relatives and supporters within the Griffith community. There are many expressions within those reports of your regret particularly towards your family and the consequences that this will have upon them. Equally there are many expressions that this behaviour was totally out of character. I accept that until the time you commenced your involvement in this criminal offending you were a person of good character. The offending, however, went on over a 14 month period. This was not an example of a crime where you ,as a result of being pushed, or angry, or suffering financial hardship had determined to do something totally out of character and then stop. This continued on for a substantial period of time. You were in a lesser role undoubtedly than that of Pasquale Barbaro but you were equally his right hand man and that makes you relatively high in the hierarchy of the offending of those before the court.
There is no doubt that those persons who provided the references consider you honest, trustworthy, reliable, hard working and a committed family man and in all other aspects of your life you have been. You are entitled to the benefit of that good character but it cannot in any substantial way truly mitigate the penalty for an offence of this nature and of this level. You stand, of course, in a different position to that of Mr Barbaro. You are a person without any prior convictions. He is a person who has a relevant prior conviction. He is at the top of the offending in this case. You are at a level below him. Your offending is of a lesser level but it still remains at a high level. You are not, to give an example, a street level trafficker involved in selling small amounts of pills. You are assisting Barbaro to deal with, obtain and traffick some 15 million ecstasy tablets or 1.4 kilos of pure MDMA. You have assisted in the trafficking of another 1.2 million tablets of ecstasy. That does not mean that you have personally carried each and every one of them but you are assisting Barbaro. That is your role. You go in his stead to meet the European suppliers which is an indication of the high level of trust in which you are held and your position within the hierarchy of this organisation.
There is no doubt as your counsel finally had to concede that the reason for your involvement in this was to make money. That is financial. He submitted that in respect of the 1.2 million tablets of ecstasy, the second charge on the indictment, that that was as a result of trying to protect your cousin as a result of threats. I find no evidence that there were any threats in relation to it. I have no doubt, however, that both you and Barbaro were in some fear that the persons in Europe would not react well to a loss of €6 million and the major reason you are both involved was to ensure that the repayment for the debt could be made as quickly as possible. However, it also enabled the supply channels to be kept open, and with it the possibility of paying off the debt and making more money in the future. Whilst the debt explains your participation to a degree, it does not in any way mitigate it or justify it.
In relation to the cocaine, once again a high risk venture for a relatively small outlay of money, and an expected massive profit. You were aiding and abetting. That means assisting, being the right hand man, being the person within the hierarchy who is one step down. But once again it equally is an offence of a high level.
In these matters your counsel submitted that I should in your favour take into account your lack of prior convictions, your plea of guilty, the delay, your low risk of re-offending and your age being relevant to the issue of not imposing a crushing sentence, one that allows you hope for the future. They are all matters I am prepared to act upon as being matters relevant to mitigation of penalty.
You also have no others matters being taken into account. That of course does not reduce your sentence. It is merely something that is a comparative situation with Mr Barbaro. Your plea was not offered at an early stage. It was in October 2011 that discussions started. There is no doubt both you and Mr Barbaro could have pleaded at a much earlier stage. You were cognisant of the facts of this case but undoubtedly you wished to examine the evidence to see how strong the case was before entering such a plea. Whilst I do accept that the plea of guilty to the three offences is very significant, I do not find it demonstrative of much remorse as I have already indicated. The case against you, like the case against Barbaro, was strong and nothing in your actions since that time to me actually bespeak remorse.
General deterrence is a matter of some significance, in fact of the highest significance. The matter of specific deterrence is of a lower level in your case but still requires some specific deterrence. I do not accept that you are truly remorseful in the appropriate sense. I accept that you are regretful of the consequences. I accept that you have excellent family support, but that you had that excellent family support at the time that you were committing these offences. Equally, you were financially successful at the time of committing these offences which are all factors I would normally consider in determining your prospects of rehabilitation.
I do not particularly expect you to re-offend as I think the length of time I have imposed will have a significant deterrent effect upon you and you may have absolutely no desire to re-offend by the time you are released. It is my view that by the sentence it needed to be made clear to you, at a personal level, that crimes of this nature are not acceptable in our community, that is that the result of behaving in this manner will be significant sentences and deprivation of your normal family and working lives, that is the loss of your liberty. During the currency of the offending despite stating that it was a good thing that you found out the original container has been compromised, as it was better than going to prison, you still persisted for almost a year after that time, in other serious criminal offending. I do not consider that the issue of personal deterrence is as high as that of Barbaro, but it has some relevance to the overall sentence that will be imposed.
I need to ensure that the sentences imposed upon you are not crushing, and I have been urged to take into account your respective ages of 50 and 55 years. Whilst I will do that, I cannot impose an inappropriate and inadequate sentence because of your age, you will not be young or middle aged men when released.
I have examined the range of sentences that have been imposed in Commonwealth and State cases involving offences of this type, and it is difficult to find a comparable series of offences.
In this case, there is a high degree of professionalism, international organised crime connections, extraordinarily large amounts of drugs, continuing persistent offending, large scale money laundering, and dealing with persons at or near the top of the Australian organisation responsible for the offending. A case that bears some similarity, is the decision in February 2007 of R v Bow, Keung and Liu, a decision of the District Court in Sydney – they were pleas of not guilty relating to conspiracy to import 342.46 kilos gross and 234.0 kilos pure of MDMA. It was found by the Judge to be an international conspiracy in the most serious category, a professional enterprise of considerable sophistication – and at the time the largest MDMA importation into to Australia. Upon conviction Keung, an Australian citizen, was sentenced to life imprisonment. He was found to be a principal, who had connections in the Netherlands, China and Hong Kong, had contributed capital to the enterprise and intended to share in the proceeds of the crime. A non parole period of 18 years was set due to age, poor health, lack of prior convictions and limited assistance to the authorities. Bow received a sentence of 24 years with a minimum of 16 years. Bow’s prime purpose was to collect and transport the drugs, and he was introduced to the conspiracy long after its inception. He also had armed robbery priors in Hong Kong. Liu received a sentence of 21 years with a minimum of 14 years, he was a late joiner to the conspiracy, and his sole purpose was to oversee the set up of machine to press the drugs and was considered to have less involvement than co offenders.
There is also a useful discussion of Commonwealth drug sentencing contained in the decision of R v To, a decision of the NSW Court of Criminal Appeal, (2007) 172 A CrimR 121. This was a successful directors appeal against the leniency of sentencing, and many of the NSW authorities are examined in that decision. In the judgment of Hulme J at page 124 he refers to the Schedule for the specified minimum quantities for traffickable and commercial quantities contained in the Customs Act and states
The severity of the penalties prescribed speaks with unmistakeable clarity of the seriousness with which Parliament views importation of the drugs mentioned.
And at page 126…
I turn to the question of what the appropriate sentence range of sentences within which the Respondent’s should have fallen. The commencing point in any considerations of an appropriate sentence for a statutory offence is the statute itself. “In determining the proper penalty … the fundamental consideration is rather, the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffick in the prohibited drug. – R v peel [1971] 1 NSWLR 247 at 262.
That degree in this case was very substantial. The Respondent was a major cog in the enterprise. The quantity 34.8 kg, almost 50 times the quantity Parliament selected as taking an offence outside the traffickable and into the commercial range was, relative to the statutory proscription, huge. In so characterising the matter, I do not ignore the fact that there have been, and may be again an importation much larger. Given the open ended nature of the measurement of commercial quantities, that is hardly surprising. However, it is necessary to measure the Respondent’s offending primarily against the statutory provision rather than the offending of others that may be worse. As the High Court said in Veen the Queen (No 2) (1988) 164 CLR 465 at 478:
…The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v the Queen. That does not mean that a lesser penalty must be imposed if it is possible to envisage a worst case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principal only if the case is recognisably outside the worse category.
The first charge to which you have pleaded guilty is one that overwhelmingly falls into the worst case category for an offence of this nature and should normally attract the maximum penalty. It is my view that despite your plea of guilty the maximum penalty must be imposed upon you Barbaro in light of the various factors to which I have earlier referred including, but not limited to, your role as the Australian principal, the quantity of the drug, the value of the drug, the sophistication of the arrangement, the true international nature of the conspiracy, your relevant prior history, the stage at which your plea was entered, the lack of real or true remorse for your offending together with the purely commercial motive for your involvement in the offending.
In relation to you Zirilli I will not impose the maximum penalty for a number of reasons including your plea of guilty, your lack of prior offending, your comparative lower position in the hierarchy of the organisation. However, you remain at a reasonably high level within the organisation and will be dealt with as such. There is no doubt that the position occupied by the persons within the criminal conspiracy is a major factor in determination of the appropriate penalty to be applied to the individual.
Accordingly Pasquale Barbaro you are convicted and sentenced as follows;
Charge 1 – Conspiracy to traffick a commercial quantity of MDMA - Life imprisonment
Charge 2 - Trafficking a commercial quantity of MDMA – 23 years imprisonment
Charge 3 – Attempting to possess a commercial quantity of cocaine – 20 years imprisonment.
All sentences are to be served concurrently and I direct that you are to serve a minimum of 30 years imprisonment before becoming eligible for parole
Saverio Zirilli you are convicted and sentenced as follows;
Charge 1 – conspiracy to traffick a commercial quantity of MDMA 20 years
Charge 2 – trafficking a commercial quantity of MDMA – 15 years imprisonment
Charge 3 – attempting to posses a commercial quantity of cocaine – 13 years imprisonment
I direct that the sentence on charge 3 is to commence immediately, that the sentence on charge 2 is to commence two years after the commencement of the sentence on charge 3, and charge 1 is to commence six years after the commencement of the sentence on charge 3, and 4 years after the commencement of the sentence on charge 2. Making a total of 26 years imprisonment. I direct that you are to serve a minimum of 18 years before becoming eligible for parole.
Pursuant to s 16E of the Crimes Act I declare that you Barbaro have spent 1249 days in pre sentence detention and you Zirilli 102 days in pre sentence detention and such should be noted in the records of the court.
Although there is some dispute as to whether it is necessary, in Commonwealth cases, to declare the sentence that would have been imposed but for your pleas of guilty, I will do so in this case. The sentences I would have imposed would have been in your case Barbaro a sentence of life imprisonment with no minimum term. In your case Zirilli, I would have imposed an overall sentence of 30 years with a minimum of 24 years.
I direct that the correction authorities explain to you the purpose, effect and consequences of the non parole period that I have imposed.
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