Barbaro v R (Matter No M3/2013)

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Kiefel,Bell JJ.,Gageler J.
• Judgment Date: 12 February 2014
• Neutral Citation: [2014] HCA 2
• Court: High Court
• Docket Number: Matter No M3/2013
• Date: 12 February 2014

[2014] HCA 2

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Bell and Gageler

Matter No M3/2013

Matter No M1/2013

Pasquale Barbaro

Appellant

and

The Queen

Respondent

Saverio Zirilli

Appellant

and

The Queen

Respondent

Representation

S J Odgers SC with T Kassimatis for the applicant in M3/2013 (instructed by Theo Magazis & Associates)

B G Walmsley SC with F H Todd for the applicant in M1/2013 (instructed by Acquaro & Co)

R J Bromwich SC with B M Young SC for the respondent in both matters (instructed by Director of Public Prosecutions (Cth))

G J C Silbert SC with B L Sonnet for the Director of Public Prosecutions (Victoria), intervening in both matters (instructed by Solicitor for Public Prosecutions (Vic))

Crimes Act 1914 (Cth), Pt IB. .

Barbaro v The Queen

Zirilli v The Queen

Criminal law — Sentence — Principles — Applicants pleaded guilty to offences against laws of Commonwealth after prosecution expressed views about available range of sentences that could be imposed on each applicant — Sentencing judge refused to receive submission from prosecution about available range of sentences — Whether duty of prosecution to make submission as to available range of sentences — Whether submission as to range amounts to submission of law — Whether failure to receive prosecution submission as to range procedurally unfair — Whether failure to receive prosecution submission as to range failure to take account of relevant consideration.

Words and phrases — ‘available range of sentences’, ‘submission of law’.

ORDER

Matter No M3/2013

• 1. Special leave to appeal granted.

• 2. Appeal treated as instituted, heard instanter and dismissed.

Matter No M1/2013

• 1. Special leave to appeal granted.

• 2. Appeal treated as instituted, heard instanter and dismissed.

1 French CJ, Hayne, Kiefel and Bell JJ. Each applicant pleaded guilty in the Supreme Court of Victoria to serious offences against laws of the Commonwealth. Each was sentenced to a very lengthy term of imprisonment: Mr Barbaro to life imprisonment with a non-parole period of 30 years, Mr Zirilli to 26 years' imprisonment with a non-parole period of 18 years.

2 Each seeks special leave to appeal to this Court to allege that the sentencing hearing was procedurally unfair and that the sentencing judge failed to take into account a relevant consideration. The applications were referred for argument, as on an appeal, before an enlarged Bench. The applications were heard together. Each application for special leave to appeal should be granted but each appeal dismissed.

The applicants” arguments

3 The applicants submitted that the sentencing hearing was unfair because the sentencing judge (King J) said at the outset that she did not seek, and would not receive, any submission from the prosecution about what range of sentences she could impose upon each applicant. The applicants further submitted that the sentencing judge thereby precluded herself from taking account of a consideration relevant to sentencing.

4 The applications to this Court were argued on the basis that the sentencing judge made no factual or legal error in fixing either the separate sentences imposed for the offences admitted or the total effective sentences imposed. In particular, the applications proceeded from the premise that the sentences imposed were not manifestly excessive. Yet each applicant argued that the prosecution should have been permitted (or even required) to submit to the sentencing judge that the sentences should be fixed within ranges the upper limits of which were less than the head sentences which were imposed on each applicant and less than the non-parole period fixed in Mr Barbaro's case.

5 The prosecution, it was argued, should have been permitted (or required) to do this for two reasons. First, plea agreements had been made and the matters had been ‘settled’ on the basis of what the prosecution had said to be its views of the available sentencing range for each applicant. Second, the applicants could have used these views to their advantage in the course of the sentencing hearing had the prosecution been permitted to put them forward.

Two flawed premises

6 The applicants' arguments depend on two flawed premises. The first is that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depends on the premise that such a submission is a submission of law. For the reasons which follow, each premise is wrong.

7 The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge.

8 Because the premises for the applicants' arguments are wrong, the appeals must fail. Before examining the premises further, however, it is necessary to say something about the facts.

Charges, pleas and sentences

9 The applicants each pleaded guilty to three counts charging offences against laws of the Commonwealth: conspiracy to commit an offence of trafficking a commercial quantity of a controlled drug (MDMA) 1, trafficking a commercial quantity of a controlled drug (MDMA) 2 and attempting to possess a commercial quantity of an unlawfully imported border controlled drug (cocaine) 3.

10 The first count related to more than 15 million tablets containing MDMA (or ecstasy) imported into Australia from Europe in 2007, but seized before the applicants could take possession of them. The tablets contained more than 1.4 tonnes of pure MDMA and had a wholesale value of about $122 million. The applicants had proposed to be involved in the trafficking of all of the tablets.

11 The second count related to a further 1.2 million tablets containing MDMA bought from the same European suppliers as the tablets the subject of the first count. These tablets were bought from the suppliers at a price which would reduce the amount which they were owed for the tablets which had been the

subject of the failed 2007 trafficking. The 1.2 million tablets came in two batches from Sydney and were trafficked during 2008. Some of the second batch of these tablets were seized. The whole of the second batch of tablets contained more than 50 kg of pure MDMA. By the time Mr Barbaro was arrested, in August 2008, he had received more than $7.25 million from selling tablets which were the subject of the second count. He had paid to the European suppliers much of the amount received from trafficking in the tablets but had retained about $1.75 million.

12 The third count related to cocaine, the pure weight of which was nearly 100 kg. Authorities found and seized the cocaine soon after it was imported and before the applicants could take possession of it. On this count, Mr Barbaro was charged as the principal offender and Mr Zirilli as an aider and abettor. The sentencing judge sentenced on the basis that the cocaine imported had cost about $600,000 but was worth about $40 million.

13 Mr Barbaro admitted 4 his guilt in respect of three further Commonwealth offences and asked that they be taken into account in passing sentence on him for the offences to which he pleaded guilty and for which he was convicted. The further offences were conspiracy to import a commercial quantity of a border controlled precursor substance (pseudoephedrine) 5, dealing with money of a value of $1 million or more which was proceeds of crime 6, and receiving, possessing and disposing of money which it was reasonable to suspect was proceeds of crime in relation to an indictable offence 7.

14 Mr Barbaro was sentenced to a total effective sentence of life imprisonment and a non-parole period of 30 years was fixed. Mr Zirilli was sentenced to a total effective sentence of 26 years” imprisonment with a non-parole period of 18 years. It is not necessary to describe how the sentences were structured. Mr Barbaro was refused 8 leave to appeal to the Court of Appeal of the Supreme Court against the sentences imposed by King J; Mr Zirilli was granted leave to appeal on one ground but his appeal was dismissed.

Plea agreements

15 Before the applicants indicated to the Commonwealth Director of Public Prosecutions that they would plead guilty to certain charges, there were discussions between the lawyers for the applicants and the prosecution about what charges would be preferred. In the course of those discussions, the prosecution told the applicants' lawyers that the ‘sentencing range’, in Mr Barbaro's case, was a head sentence of 32 to 37 years with a non-parole period of 24 to 28 years and, in Mr Zirilli's case, a head sentence of 21 to 25 years with a non-parole period of 16 to 19 years.

16 Both applicants thereafter told the prosecution that they would enter pleas of guilty and, in Mr Barbaro's case, make the additional admissions which have already been noted.

The sentencing hearing

17 Early in the sentencing hearing, King J made plain that she did not intend to ask any party what ranges the sentences to be imposed on each applicant should fall within. In the course of the hearing, counsel then appearing for Mr Zirilli told King J what the prosecution had said was the sentencing range for his client; counsel then appearing for Mr Barbaro did not. The prosecutor appearing at the sentencing hearing made no submission about what range of sentences could be imposed on either Mr Barbaro or Mr Zirilli.

18 In the course of the sentencing...