Mannella v Director of Public Prosecutions
[2025] VSCA 195
•25 August 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0094 |
| ANTONIETTA MANNELLA | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | First Respondent |
| and | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Second Respondent |
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| JUDGES: | NIALL CJ and PRIEST JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 August 2025 |
| DATE OF JUDGMENT: | 25 August 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 195 |
| JUDGMENT APPEALED FROM: | [2023] VCC 280 (Judge Rozen) |
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CRIMINAL LAW – Application for leave to appeal – Application for extension of time – Fresh evidence – Attempting to traffick in a drug of dependence not less than a large commercial quantity – Importing border controlled substances in quantities not less than a commercial quantity – Total effective sentence 13 years’ imprisonment – Non-parole period 6 years 10 months – Where applicant residing in solitary confinement for duration of sentence – Whether fresh evidence demonstrates true significance of facts in existence at the time of the sentence – Evidence that the risks taken into account by a judge have materialised is not fresh evidence which can lead to the re-opening of the sentencing discretion – Application for extension of time refused – Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, s 71(1); Criminal Code (Cth) s 307.1(1); Criminal Procedure Act 2009.
R v Nguyen [2006] VSCA 184; Packard (a pseudonym) v The Queen (2022) 300 A Crim R 55; Ale v The King [2025] VSCA 92, applied.
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| Counsel | |||
| Applicant: | Mr C Mandy SC with Ms M Cananzi | ||
| First Respondent: | Ms D Piekusis KC with Mr E Fryar | ||
| Second Respondent | Ms S Holmes | ||
Solicitors | |||
| Applicants: | Melasecca Zayler | ||
| First Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Second Respondent | Office of the Commonwealth Solicitor for Public Prosecutions | ||
NIALL CJ
PRIEST JA:
On 24 January 2023, the applicant pleaded guilty to one charge of attempting to traffick in a large commercial quantity of a drug of dependence, namely 1,4–Butanediol, contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981, and one charge of importing commercial quantities of border controlled substances, namely heroin and methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth).
On the same date, the applicant’s co-offender, George Marrogi, also pleaded guilty to the same charges.
On 24 February 2023 the applicant was sentenced by Judge Rozen of the County Court of Victoria as follows:[1]
[1]DPP & CDPP v Marrogi & Mannella [2023] VCC 280 (‘Reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| State Indictment | ||||
| 1 | Attempting to traffick in a drug of dependence not less than a large commercial quantity (1,4–Butanediol)[2] | Life | 11 years with a NPP of 4 years and 10 months | Base |
| Commonwealth Indictment | ||||
| 1 | Importing border controlled substances in quantities not less than a commercial quantity (heroin and methamphetamine)[3] | Life | 11 years with a NPP of 4 years and 10 months | 2 years |
| Total Effective Sentence: | 13 years’ imprisonment. | |||
| Non-Parole Period: | 6 years and 10 months. | |||
| Pre-sentence Detention Declared: | 313 days declared.[4] | |||
| Section 6AAA Statement: | 17 years’ imprisonment. | |||
Other Relevant Orders: 1. N/A. | ||||
[2]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71(1) and Crimes Act 1958, s 321M.
[3]Contrary to Criminal Code (Cth) s 307.1(1).
[4]As amended in the Record of Orders of Judge Rozen of 2 March 2023.
The applicant seeks an extension of time to seek leave to appeal against her sentence on the basis of fresh evidence concerning the applicant’s deterioration in mental health since sentence. The applicant argues this is relevant to appreciating the ‘true significance’ of the effect of imprisonment upon the applicant, and as such the sentencing discretion ought be reopened.
For the reasons that follow, we would refuse the application.
The offending
The applicant was introduced to her co-offender, Mr Marrogi, by his sister, Mesh Marrogi, for whom the applicant was working. During the offending, the applicant was in a romantic relationship with Mr Marrogi, who was in custody at Barwon Prison awaiting trial in the Supreme Court for murder.
The offending was orchestrated by the circumvention of monitoring of prison calls between the applicant and Mr Marrogi. On 27 July 2021 a landline number was connected to Barwon prison in the name of a personal assistant working for the law firm providing legal services to Mr Marrogi.[5] This number was later set to automatically divert to Ms Mannella’s mobile number when it was called by Mr Marrogi.[6]
[5]Reasons, [8].
[6]Ibid.
Since privileged calls to lawyers by prisoners at Barwon prison are not monitored or recorded by prison authorities, Mr Marrogi and the applicant were able to circumvent the monitoring of their phone conversations.
During the telephone calls, Mr Marrogi gave instructions about and coordinated drug-related activities. The applicant ensured that Mr Marrogi’s instructions were followed by others. They spoke using code words, nicknames, and Assyrian words.[7]
[7]Ibid [12].
The applicant’s role in both the State and Commonwealth offending was that of co-ordinating the transportation of drugs, alongside relaying instructions between Mr Marrogi and other co-offenders.
The State Indictment
In order to pay off a debt to Mr Marrogi, an associate agreed to supply to Mr Marogi 800 litres of 1,4–Butanediol.
The large commercial quantity of 1,4–Butanediol (the subject of the State Indictment) was transported from South Australia to Victoria by truck and intercepted on 23 January 2022 by Victoria Police.[8] The truck contained four 200 litre drums. Later analysis detected no drugs in drums 1 and 2, but drum 3 contained 116 kg of 1,4–Butanediol and drum 4 contained 186 kg of 1,4–Butanediol.[9] The total mass of 1,4–Butanediol was 347 kg.
[8]Ibid [25].
[9]Ibid [28].
The applicant assisted in arranging this transportation.
The Commonwealth Indictment
Between December 2021 and February 2022, the applicant and Mr Marrogi had numerous conversations over the phone about the importation of border controlled drugs through Tullamarine airport.[10]
[10]Ibid [30]–[31].
In accordance with the plans, a shipment containing methamphetamine and heroin arrived at Melbourne Airport on 18 February 2022.[11] The methamphetamine and heroin was contained in a shipping pallet comprising 27 boxes purporting to contain neodymium magnets. The shipment contained 56 kg of methamphetamine in tea packets, and 13 kg of heroin. Analysis revealed that the purity of the methamphetamine was 80.3%, and the heroin was between 52.1% and 76.5% pure.[12]
[11]Ibid [33].
[12]Ibid [35].
The reasons for sentence
The judge said the offences of the applicant and Mr Marrogi were very serious criminal offences.[13]
[13]Ibid [38].
Mr Marrogi’s conduct, in trafficking in large quantities of drugs while serving a sentence for murder, was considered ‘brazen conduct [which] makes a mockery of the criminal justice system’.[14]
[14]Ibid.
There were additional aggravating features which applied to both offenders:
Aggravating features of the State offending
(a)the offenders expected to receive 800 kg which is 40 times the large commercial quantity threshold;
(b)this was a pre-planned sophisticated syndicate;
(c)the purpose of the trafficking was to pay off a debt, i.e. for pure financial gain;
Aggravating features of the Commonwealth offending
(d)the quantity of the drugs — 56 times the commercial quantity of methamphetamine and 5 times the commercial quantity of heroin;
(e)the estimated street value of the drugs was between $23 million and $34 million; and
(f)the offenders were in the business of drug importing.
The judge considered that Mr Marrogi had ‘manipulated Ms Mannella into assisting him by taking advantage of her romantic attachment to him’.[15] While the applicant’s role was ‘clearly subordinate’ to that of Mr Marrogi, however, the judge accepted the Commonwealth prosecutor’s submission that the evidence showed a level of independence of her actions.[16]
[15]Ibid [45].
[16]Ibid [46].
The judge remarked that
As is clear from her extensive communications with Mr Marrogi and others involved in both crimes, Ms Mannella’s role is perhaps best described as an ‘integral facilitator’ of both the attempted trafficking and the importation. In relation to the Commonwealth offending, the opening identifies a large number of communications between the two co-offenders concerning the importation of heroin and methamphetamine. The content of those conversations makes it clear that Ms Mannella was discussing the same matters with the others involved in the importation.[17]
[17]Ibid [47] (citations omitted).
In sentencing the applicant, the judge had regard to three reports prepared by Luke Armstrong, a consulting psychologist. The judge noted that
Mr Armstrong describes Ms Mannella as a ‘very complex example of a dual diagnosis client’. He diagnoses her with Dependent Personality Disorder a ‘legacy of a highly disturbing and extreme experience of familial violence’ and Post Traumatic Stress Disorder.
…
Mr Armstrong has assessed Ms Mannella on three occasions and concludes that ‘imprisonment has and will continue to have an adverse effect on her mental health’. This enlivens limb 6 of the Verdins principles and is to be reflected in a moderation of her sentence.[18]
[18]Ibid [55]–[56] (citations omitted).
The judge accepted that in light of the applicant’s lack of prior convictions, insight into the reasons for her offending, good work history, lack of alcohol and drug problems and preparedness to work in jail, her prospects of rehabilitation were very good.[19]
[19]Ibid [58].
Next, the judge addressed the fact that Ms Mannella had been told that she will — for her protection — remain in solitary confinement for the duration of her sentence, a state of affairs which remained the case at the hearing of this application. The basis of this arrangement is that the applicant is Mr Marrogi’s girlfriend, and that ‘his enemies can get to him by assaulting her’.[20]
[20]Ibid [62].
The judge accepted that conditions in solitary confinement are ‘appalling’.[21]
[21]Ibid [63].
It was submitted on the applicant’s behalf that this solitary confinement is a ‘powerful factor which should reduce any sentence to be imposed’.[22] The judge concluded as follows:
If all that is intended by this submission is that the court should have regard, in imposing sentence on her, to the particular way in which imprisonment may affect Ms Mannella, then I have no difficulty with it. However, if what is intended is that Ms Mannella should receive a demonstrably shorter sentence for her offending than would be imposed on another person who was not to be confined in the way she currently is, then I question it. No authority was cited in support of such a proposition.
A similar argument was considered by the Western Australian Court of Criminal Appeal in the case of Bekink v R.[23] Anderson J rejected the proposition that ‘the length of prison terms generally should be linked to some norm as regards prison conditions and adjusted according to whether the prison in question meets the norm’.[24] In the same case, Heenan J identified a number of practical difficulties associated with adopting such an approach.[25]
I accept that an offender is ‘plainly entitled to have the fact that [her or his] period of incarceration would be spent in protection taken into account in [her or his] favour’.[26] The weight to be given to this consideration will depend on the circumstances and the evidence before the court. One consideration is why an offender is in restrictive or protective custody.
I accept that Ms Mannella’s predicament in jail is dire. I also accept that this is likely to continue for the foreseeable future and perhaps for the entire length of her sentence. This is very unfortunate. I also accept that other than her association with her co-offender and his notoriety, her placement in protective custody is through no fault of her own. In particular, she is not a danger to anyone.
In accordance with authority, I have taken these circumstances into account in mitigation of sentence along with the other mitigatory considerations listed above.[27]
[22]Ibid [64].
[23][1999] WASCA 160.
[24]Ibid [24].
[25]Ibid [31].
[26]R v ZMN (2002) 4 VR 537, 543 [24] (Charles JA, Winneke P agreeing at [28], Vincent JA agreeing at [31]); [2002] VSCA 140; The Queen v Males [2007] VSCA 302, [36] (Kellam JA), [49] (Maxwell P); R v Bangard (2005) 13 VR 146, 149 [14] (Buchanan JA, Eames JA agreeing at [37], Nettle JA agreeing at [41]); [2005] VSCA 313.
[27]Reasons, [65]–[69].
Application for extension of time and proposed ground of appeal
The applicant first seeks an extension of time to seek leave to appeal against sentence.[28]
[28]Pursuant to the Criminal Procedure Act 2009, s 313.
If granted an extension of time the applicant seeks leave to advance a single ground of appeal:
That fresh evidence of the Applicant’s deterioration in mental health subsequent to sentence is relevant to an appreciation of the ‘true significance of the facts which were in existence at the time of the sentence’ (namely her solitary confinement), and gives rise to the reopening of the sentencing discretion.
The fresh evidence
In this appeal, much of the ‘fresh evidence’ sought to be relied upon is contained in the affidavit of the applicant’s solicitor Mr Zayler dated 30 May 2024, and the annexures to that affidavit. In particular, the applicant relies on:
(a)several psychological reports of Mr Armstrong. Those reports, which were not exhibited at the plea, are dated:
(a)19 July 2023;
(b)17 October 2023;
(c)12 December 2023; and
(d)9 February 2024;
(b)a report of Ms Tracey Allen, dated 24 August 2023; and
(c)a report of Dr Sharon Shalev, Research Associate, Centre for Criminology at the University of Oxford, dated 26 December 2023.
The applicant also relies on a further affidavit of Mr Armstrong dated 18 July 2025.
The applicant also seeks to admit two affidavits of the applicant dated:
(a)2 October 2024; and
(b)16 July 2025.
Should the evidence contained in Mr Zayler’s affidavit be admitted, the first respondent seeks to admit an affidavit of Ms Jennifer Hosking, Assistant Commissioner, Sentence Management Division (SMD), at Corrections Victoria, of 8 August 2024.
The applicant says that the fresh evidence — including panic attacks, sleep deprivation, a recurrence of the applicant’s post-traumatic stress disorder, and a distorted belief system arising out of paranoia and anxiety experienced in imprisonment — proves a very marked and serious decline in her mental health. The applicant says she was not allowed to access treatment from her treating private psychologist, and in this context Mr Armstrong remarked in his report of 12 December 2023 that she was exhibiting early signs of institutionalisation. Counsel for the applicant further referred to reports of Dr Shalev and Ms Allen in late 2023, which coalesced with the observations of Mr Armstrong as to the applicant’s experiences of dissociation, forgetfulness, loneliness, and hyper vigilance, leading to an increased risk of self-harm and suicide.
Following the hearing of this application, the applicant filed (without leave) a further affidavit of their solicitor dated 13 August 2025. The second respondent does not object to the Court receiving the affidavit, and the first respondent takes no position. Mr Georgiou deposes that on the morning of 13 August 2025 the applicant was scheduled to have her regular counselling session with treating psychologist Ms Allen. However, shortly before the session was scheduled to commence, ‘the prison abruptly cancelled it without warning’. Mr Georgiou states that the applicant has been advised (presumably by Corrections Officers at the Dawn Phyllis Frost Centre) that ‘she was no longer permitted to continue her counselling sessions with Ms Allen, and would need to re-apply should she wish to re-commence treatment’.
Submissions as to whether the fresh evidence gives rise to the reopening of the sentencing discretion
The applicant submits that her isolation was a matter raised and acknowledged on the plea. However, this has been exacerbated markedly since the imposition of the sentence. As such, she says, her case is a ‘rare and exceptional one’ falling into the category of events subsequent to imprisonment which have exacerbated a pre-existing physical or psychiatric injury which was known at the time of sentencing.
In oral submissions, counsel for the applicant agreed that (broadly speaking) it was not so much the circumstances or conditions of imprisonment which had changed but that the effect of imprisonment upon the applicant had significantly worsened.
As a result, the applicant claims that the sentencing exercise has been shown by the circumstances to have miscarried. Further or alternatively, the judge fell into error by failing to adequately moderate the applicant’s sentence on the basis that it would have to be served in isolation.
In reply, the first respondent argues that while much has been said about the condition in which the applicant held, the relevant issue for consideration before this Court is the deterioration of her mental health.
The first respondent says that the detailed evidence as to the applicant’s current conditions are all matters which were before the judge. Counsel referred to the three reports of Mr Armstrong which were before the judge, and paragraph [56] of the Reasons, in which the judge found that the continued adverse effect of imprisonment upon the applicant’s mental health enlivened limb six of Verdins.[29] That limb, it was emphasised, is not just about the burden of imprisonment, but the significant adverse effect upon the prisoner’s health. Given the application of that limb, deterioration of the applicant’s mental health was clearly foreseen by the judge.
Consideration
[29]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
The relevant principles applying to the admission of fresh evidence, as the parties recognised, were articulated by Redlich JA in R v Nguyen:
It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(1)the new evidence must relate to events which have occurred since the sentence was imposed;
(2)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(3)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(4)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(5)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(6)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[30]
[30][2006] VSCA 184, [36] (citations omitted) (emphasis added).
Packard (a pseudonym) v The Queen involved an application for leave to appeal against sentence by an offender who had underwent gender transition while in custody and had since become particularly vulnerable in prison. Priest JA stated:
As the cases make clear, events subsequent to sentence which have made the sentence — appropriate when passed — manifestly excessive, are matters for the Executive. Is this one of those ‘rare and exceptional’ cases where new evidence of events occurring after sentence demonstrate that there is error in the sentence first imposed? I am not persuaded that it is.
In so concluding, I recognise that it will not always be easy to draw a bright line of demarcation. For example, were a prisoner with no pre-existing physical or psychiatric injury or condition to be assaulted for the first time after sentence by another prisoner, resulting in physical or psychiatric injury that will make the burden of imprisonment more difficult, it might readily be concluded that such post-sentence events were matters for the Executive, not an appellate Court. On the other hand, were a prisoner with a known pre-existing physical or psychiatric injury or condition to be assaulted following sentence, resulting in an exacerbation of the physical or psychiatric injury so as to make imprisonment more burdensome, it might be expected that new evidence would be permitted on appeal to establish those new facts.[31]
[31](2022) 300 A Crim R 55, 62 [18] (emphasis added); [2022] VSCA 128.
In Ale v The King, this Court summarised the principles in relation to fresh evidence in relation to a sentence of imprisonment in the following way:
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it. Unsurprisingly in light of the above principles, the power to admit fresh evidence in an appeal against sentence is exercised in limited circumstances. The cases show that, where the power is exercised, it is frequently where the burden of custody is shown to be heavier than anticipated at the time sentence was passed on account of fresh evidence concerning an applicant’s health. Such evidence has been relied on to show that a medical issue known to the sentencing judge has turned out to be more significant than anticipated in the evidence at the time of sentence, or a medical issue was present at the time of sentence but was not then diagnosed. In both situations, fresh evidence revealed the actual significance of an applicant’s medical condition for the applicant’s custodial experience.[32]
[32][2025] VSCA 92 [119] (Niall CJ and Kenny JA).
Applying those principles here, the application cannot succeed.
On the plea, the applicant relied on the harsh conditions of her incarceration which were likely to endure, and the significant effect that these conditions have had and will continue to have on her mental health in the future. The judge took these matters into account, and having regard to the sentence and non-parole period he imposed, they must have been given considerable weight once the seriousness of the offending was considered. Notwithstanding that the applicant was in the thrall of her co-offender, her conduct was persistent and serious and warranted a very substantial term of imprisonment.
In sentencing the applicant, the judge accepted that the conditions of solitary confinement which then confronted the applicant were appalling. The judge recognised that, in the eight months the applicant had been held in solitary confinement while on remand, the conditions of imprisonment had a serious deleterious effect on the applicant and he anticipated this would continue.[33] He accepted that incarceration would likely make her condition worse.[34] In time, these prognostications have come to pass. They were anticipated by the judge and factored into his sentencing. Evidence that the risks taken into account by a sentencing judge have materialised is not fresh evidence which this Court can admit for the purposes of revisiting the sentence imposed.
[33]Reasons, [61].
[34]Ibid [56].
There are two related reasons for that conclusion. The first is that such evidence does not show any error in the sentence or on the part of the judge. The second is that, in an application for leave to appeal against sentence, this Court does not have a continuing supervisory role over the conditions of incarceration. The conditions of confinement are for the Executive. Plainly the Supreme Court has a supervision jurisdiction about the lawfulness of executive action, including action by the corrections authorities, but that jurisdiction is not an aspect of the appellate jurisdiction conferred under the Criminal Procedure Act 2009 in relation to sentences.
The conditions of the applicant in custody are lamentable. But we are unable to accept that the evidence sought to be relied on by the applicant is fresh evidence which can found an application for leave to appeal. That being so, the extension of time sought by the applicant would be futile and should be refused.
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