Zirilli v The Queen; Barbaro v The Queen [2013] HCATrans 184 (16 August 2013)

Last Updated: 21 August 2013

[2013] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2013

B e t w e e n -

SAVERIO ZIRILLI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Melbourne No M3 of 2013

B e t w e e n -

PASQUALE BARBARO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 1.52 PM

Copyright in the High Court of Australia

___________________

MR L.C. CARTER: May it please the Court, I appear with my learned friend, MS F.H. TODD, on behalf of the applicant, Zirilli. (instructed by Acquaro & Co. Solicitors)

MR S.J. ODGERS SC: May it please the Court, I appear with my learned friend, MR T. KASSIMATIS, for Mr Barbaro. (instructed by Theo Magazis & Associates)

MR R.J. BROMWICH, SC: May it please the Court, I appear for the respondent in both cases with my learned friend, MR B.M. YOUNG. (instructed by Commonwealth Director of Public Prosecutions, Melbourne Office)

BELL J: Thank you, Mr Bromwich. Yes, Mr Carter.

MR ODGERS: Your Honours, Mr Carter was inclined to ask me to go first - - -

BELL J: Yes.

MR ODGERS: - - - unless your Honours want me to let him go first.

BELL J: Not at all.

MR ODGERS: Your Honours, if I could turn to the first issue of procedural fairness. There are really three aspects to it in this case. The first is whether the Crown may make a submission as the sentencing range. The second is whether an offender is entitled to have that submission taken into account or received by the Court and taken into account by the Count as effectively a concession and, thirdly, whether the offender can himself make a submission as to range. I will deal with that last one in a moment.

GAGELER J: But is the first point in contention?

MR ODGERS: The first point, yes, is in contention. That, as I understand it, the Court of Appeal – the sentencing judge refused to allow the Crown to make a submission as to sentencing range and the Court of Appeal held that the judge was entitled to do that. The judge made it abundantly clear at numerous points of the proceedings that she was not going to allow anyone to make a submission as to sentencing range and she repeatedly said that in respect of a Crown submission. The language that is used in Victoria is MacNeil-Brown figures. I think that is a reference to a submission from a Crown prosecutor as to an appropriate sentencing range.

I do not think there is any dispute between the parties here that the trial judge refused to receive a submission from the Crown as to sentencing range and refused to allow defence counsel from telling her what the Crown’s submission would be if it was presented. Indeed, I think the factual scenario, your Honours, was that some documents were filed in the Court which referred to correspondence between the Crown and the offenders and in that correspondence, apparently, the Crown had agreed that as part of the negotiations for the plea of guilty, that it would put a specific sentencing range and the Court of Appeal has referred to that in the Court of Appeal’s judgment what that sentencing range would have been if the submission had been permitted and/or received.

So, as I say, there is no doubt the Crown was shut out from doing this, and more importantly from the point of view of the procedural fairness for the offender, the offender was deprived of a concession that was sought to be made by the Crown. Can I just say, the Court of Appeal explained why they saw no problem with that, in the application book at pages 191 to 194. We have put on fairly detailed submissions as to errors in that reasoning and those submissions are at application book 238 to 240.

BELL J: Mr Odgers, can I just take this up with you by reference to your draft notice?

MR ODGERS: Yes, your Honour.

BELL J: You have as grounds 2A and B – this is at application book 223 – a complaint in ground A, that you were:

deprived of procedural fairness when the sentencing judge refused to permit submissions as to sentencing range.

Is that to maintain the contention that Mr Dunn was himself stopped from putting - - -

MR ODGERS: It is both. Her Honour said, “I am not receiving submissions from anyone”. She stopped the Crown from making a submission. She stopped Mr Dunn from informing her of what the Crown would have submitted, and she stopped Mr Dunn – we say that is the third point – from making himself a submission.

BELL J: Well, just looking for the present at the suggestion that the judge stopped the Crown from putting the submission about the range that the Crown proposed and stopped Mr Dunn from referring to that range, really, that is taken up by your ground 2B, is it not? Your contention is that a relevant consideration on the sentencing of an offender is the range proposed by the Crown in a case in which the Crown seeks to advance a range, is that - - -

MR ODGERS: No, that was not actually what we had in mind, your Honour. Ground 2A and 2B reflect two different ways of looking at the problem – 2A is about procedural fairness, should a submission be prohibited, as in this case. Ground 2B is about taking into account a factor that is a relevant factor for the purposes of sentencing and it is more a sort of House v The King kind of analysis rather - - -

BELL J: Yes, I think I understand that, but what I am taking up with you is that the substance of a challenge is that this was a case in which the Crown sought to inform the sentencing judge of a suggested range of sentence and the sentencing judge refused to have regard to it. That is one aspect of your challenge. Now, there is another component which at least is in part taken up by 2A and this is suggestion that your client was denied procedural fairness because his own counsel was not able to fully put submissions, including submissions as to the appropriate sentencing disposition that the applicant contended for.

MR ODGERS: Yes, your Honour.

BELL J: That is a separate matter and it may be - - -

MR ODGERS: Yes. We may not in the grounds have separated them appropriately and it may be - - -

BELL J: The matter I just wanted to take up with you, Mr Odgers is the ground 2A would need to get over, would it not, exchanges that the transcript reveals at application book 66 and following. It does seem that there was a fairly clear exchange between Mr Dunn for your client and the sentencing judge, with Mr Dunn putting that this was a case in which it was appropriate for a head sentence to be imposed and a non-parole period. Then, as one tracks through it, the sentencing judge makes clear she has in mind a term of life and then Mr Dunn puts the contention on your client’s behalf that it is appropriate to impose a sentence less than life and so the exchange goes.

MR ODGERS: With respect, your Honour, I do not think that addresses the procedural fairness point because, firstly, Mr Dunn did not make any submission as to figures – as to numbers – and what we are complaining about is the judge was not informed of either the numbers that the Crown was going to put. That range was - - -

GAGELER J: There are two distinct points, are there not? One relates to the Crown’s submission, the other relates to your client’s submissions.

MR ODGERS: Yes, but the third one is my client’s entitlement to have a concession that the Crown was going to make put before the judge.

GAGELER J: Well, somebody had to say it. There are only two sides.

MR ODGERS: Correct, yes, your Honour. But with respect to both or all three of those matters, we are talking about ranges. What is a range? It is numbers. In the Crown’s case it was going to be a range of head sentence, 33 to 37 years. He ended up getting life – we know that – and the Crown’s range on non-parole periods was going to be 24 to 28 years. He ended up getting 30 years. So those were the numbers of the Crown’s range.

Presumably, because it is not uncommon, the defence range might have been a little bit more lenient, so even lower. So the point is that Mr Dunn – all Mr Dunn was effectively permitted to do was to say, well, he should not get life and you should give an unusually lenient non-parole period, which is what he proceeded to do. But he was not permitted by the judge to either inform her of what the Crown’s numbers were nor, effectively, given her direction that, “I do not want range from anyone”, he was not permitted to talk numbers with her.

So, with respect, your Honour, what he was allowed to do really does not in any way meet the complaint that we have, which is that he, Mr Dunn, was entitled to have the judge told what the numbers that the Crown conceded were open at the bottom of the range and numbers that the Crown thought, in their opinion, considered to be unreasonable. Nor was he permitted to say, well, in my submission, these are the numbers that are appropriate for this case.

BELL J: He was dealing with submissions on the sentence in a case which, perhaps unsurprisingly, included an indication from the judge, having regard to the circumstances of the matter that she was thinking of a maximum sentence and the exchange that took place between her Honour and Mr Dunn was against that background.

MR ODGERS: It was.

BELL J: Yes. In any event, I think, Mr Odgers, it is pointed out by the respondent that ultimately counsel for the co-accused did put figures and the suggestion is made that Mr Dunn might have done likewise had he felt that appropriate and Mr Dunn is not an inexperienced counsel, Mr Odgers.

MR ODGERS: Your Honour, can I just say in response to that, in our reply we said if a judge has said twice emphatically no-one is to make submissions as to range twice, and Mr Dunn himself at page 88 attempted – this is at application book 88, line 5 – he attempted, notwithstanding what her Honour had repeatedly said, to put before her what was agreed between the parties as to range. Her Honour, again, says:

And you do understand what I’ve said about sentencing range?

So he follows her very clear directions - - -

BELL J: Mr Odgers, application book 72, her Honour at line 4 to 7 says:

Mr Dunn, don’t take any of this as fixed and rigid views. This is how I discuss what we’re going to do. I am sorry, it’s a bad habit of mine, but I have serious discussions about it.

It proceeds with Mr Dunn saying:

it may be that the real debate comes down to the non parole period –

and so forth.

MR ODGERS: Yes, your Honour, and really, that is the focus of our attention here.

BELL J: Yes.

MR ODGERS: The Crown’s position on the non-parole period was 24 to 28. He ended up getting 30. Defence presumably would have made a submission aware of what the Crown’s range was, saying 28 is probably a bit too high, it should be a bit lower. He does not make any submissions along those lines because he has been told repeatedly he cannot make submissions as to range. When he does try to inform her of the Crown’s position on range which we stress, your Honour, it is relevant that as part of a plea agreement the Crown had offered to make this submission – there is a public policy interest in encouraging pleas of guilty.

If the Crown, in order to obtain a plea in a case like this where it would have been of enormous expense to the community to proceed, for a judge to say, well, I am not going to receive it, is a big step. Quite apart from what we say is the fundamental adversarial model, which is that submissions are matters for the parties in an adversarial system and that it is not appropriate, it is not proper – it is, indeed, unfair for a judge to prevent submissions being made which is what happened here.

BELL J: I think we have your submission in this.

MR ODGERS: All right, thank you, your Honour. Can I just remind your Honour, though, that Mr Dunn, at 88 – this is subsequent to the passage your Honour referred me to – did attempt to refer to sentencing range at line 5, and then her Honour responds:

And you do understand what I’ve said about sentencing range?

So a very, very clear reminder to him of what she has ruled. She subsequently repeated herself when counsel for Mr Zirilli was on his feet – 105, line 27 – she is saying:

You will not address me on range. You can only do that if I request it.

So Mr Dunn has heard that. So three or four times she has said it. Mr Croucher might have, despite what she said, gone on and done what she told him not to do but, with respect, to criticise - - -

BELL J: I think we do have the point, Mr Odgers.

MR ODGERS: Okay, thank you, your Honour. I just needed to get it clear. Your Honours, I think I have said everything I need to say about the Crown’s submission. We do emphasise that submissions are part of an adversarial system. It is a big step for a judge to stop it. We are not aware of any jurisdiction in Australia where judges are held to have the power to prohibit submissions being made as to sentencing range.

BELL J: I think until, on my recollection of things, round about the mid-1980s, the Crown would never have considered making a submission on range. The practice changed, particularly with the increase in the number of Crown appeals and it became conventional for the Crown to make a submission in the event it perceived the risk of appealable error, and after that it became more common for the Crown generally to assess the Court in that regard, but - - -

MR ODGERS: Your Honour, I am trying to make a distinction between a situation where the court might want a range and whether or not the Crown should assist the Court, which is one question, but that is not the issue here. The issue here is where the Crown has chosen to make a submission, has agreed with the opponent that it will be made, has agreed there will be a concession made and the judge has said, “No, you may not”.

BELL J: There may be a lively issue about the propriety of counsel putting figures to a judge as opposed to submissions respecting the appropriate principle, but that is - - -

MR ODGERS: We say that that is an important issue of general importance which this Court should ventilate and it could have made a difference in this case. If the judge had been aware of what the Crown range was, she may have concluded that she could legitimately sentence at a lower non-parole period. If she had heard from the Crown as to why the Crown thought that those were appropriate non-parole figures that may well have led her to a different outcome instead of the 30 years that she did impose, but I should move on.

BELL J: Yes.

MR ODGERS: As for the position with Mr Dunn being able to make submissions, the Court of Appeal held that he was permitted to make submissions. We say that is just simply wrong. She repeatedly said, “I am not allowing submissions from anyone” and Mr Dunn obeyed those instructions. Counsel for Mr Zirilli did not. But, the fact of the matter is, the Court of Appeal clearly got it wrong. He was prohibited and that is a matter of some significance. If counsel is prohibited from making submissions as to sentencing range, then that is fundamentally inconsistent with an adversarial system of justice in which the parties are permitted to make submissions on central issues of importance in sentencing proceedings. If I could turn to the other proposed grounds, and I will be fairly brief?

BELL J: Yes, these are the grounds that were not taken below?

MR ODGERS: Well, no, that is not true, your Honour. The ground we are running hardest on is the manifest excess ground – in particular, in respect of the non-parole period. Her Honour’s, the sentencing judge’s, total reasons for the non-parole period are found at 157 and 156.

BELL J: Mr Odgers, her Honour found that this was an offence in the worst category, did she not?

MR ODGERS: Yes, your Honour.

BELL J: In that circumstance, it is surprising that a non-parole period was given, on one view.

MR ODGERS: In my submission, your Honour, there is not a case in Australian history where somebody has received life meaning life for a drug offence. I may be wrong about that – probably I am wrong. It is very, very, very unusual.

BELL J: This was a very, very, unusual case.

MR ODGERS: Yes, your Honour, but many detailed submissions were put, and your Honour referred to them, as to why, even if life is imposed on the top, there should be an unusually lenient non-parole period. Those were detailed submissions based on Bugmy and that line of authority. Her Honour’s sum total explanation for her non-parole period was at 157 – that is, she would have given no non-parole period but for the plea of guilty.

BELL J: Yes.

MR ODGERS: So, putting the utilitarian value of the plea of guilty to one side, I would have imposed life meaning life, but no reason is given for that, none. The Court of Appeal – she did not refer to Bugmy. She did not refer to any of the submissions that were made about how after 20 years of imprisonment, the prospects of rehabilitation are not likely to be so bad, and so on. The question is did the Court of Appeal get it wrong? Their response to this is at 208 to the submission that the non-parole period was manifestly excessive and they said at paragraph 58:

The non-parole period of 30 years was properly viewed as the minimum which justice required be served, for all the reasons which her Honour gave.

But, with respect your Honours, she did not give any reasons for a non-parole period, at least in terms of the starting point. She gave no reasons at all for saying absent the utilitarian value of the plea of guilty, I would impose life. She did not give any reasons for that. Nor did she address her mind to the question of whether or not it is the minimum which justice required be served. She did not say a word about that.

BELL J: She found it was the worst case, Mr Odgers.

MR ODGERS: Yes, your Honour, and that is a very common basis for concluding that the head sentence – the worst case is generally regarded that the maximum penalty is appropriate for the worst case. But it is, with respect, a different question whether there should be a non-parole period

and if so what it should be, and that deserves careful consideration in the light of the detailed submissions made by Mr Dunn as to why her Honour should adopt a particularly lenient non-parole period.

BELL J: Yes.

MR ODGERS: I see the red light has come on, your Honour.

BELL J: Yes. The red light is on, Mr Odgers. Thank you.

MR ODGERS: May it please the Court.

BELL J: Would you give us one moment, Mr Carter? Yes, thank you, Mr Carter.

MR CARTER: If the Court pleases? In my respectful submission, ground 1 does raise questions of general importance to the administration of criminal justice and sentencing. The judge prevented and ignored submissions as submissions which it was hoped would be advanced as to the sentencing range pursuant to a plea agreement. The Court of Appeal has endorsed this as legitimate practice in Victoria and immediately and strikingly setting Victoria apart from, at the very least, New South Wales. Your Honours have the decision of Ahmad v R [2006] NSWCCA 177, behind tab 5, where Chief Justice at common law McClellan at paragraph 23 stated:

The agreement can neither bind the judge nor be given any greater weight than is appropriate to a submission of counsel with knowledge of the facts relevant to the offence and the offender. It must of course be carefully considered but carries no greater weight than any other submission which the Crown may make in the sentencing process.

Therein, with respect, your Honour, lies what, in our respectful submission, including having regard to this Court’s judgment in GAS and SJK v The Queen [2004] HCA 22; [2004] 217 CLR 198, it has been uncontroversial prior to this judgment that the parties are at liberty to make submissions as to the range. This is a novel case where the judges sought to prevent it, for whatever reasons, but they being unarticulated reasons. On the other hand, of course, an agreement as to sentence cannot bind the Court. It was never submitted, and it is not sought to be submitted, that that is the case. Yet - - -

BELL J: I think we understand that, Mr Carter.

MR CARTER: But the Court of Appeal though, your Honour, with respect, seemed to fasten on that as a decisive matter in their reasoning that there was no error.

BELL J: Mr Carter, we might be assisted in a moment, by hearing from the respondent on the question of the refusal to consider the prosecution’s submissions respecting range. Can I just take up with you your grounds that seek to contend error in the treatment of the evidence of remorse? Yes, that is ground 2. I think really it is particularised in different ways, but central to it is the approach that the Court of Appeal took to the complaint that the trial judge had not properly taken account of the evidence of remorse, is that right?

MR CARTER: That is correct, your Honour.

BELL J: What point of principle does this raise?

MR CARTER: I think Mr Croucher – as his Honour then was – accepts in the written submissions both in-chief and in reply at 234 in the first paragraph that it could be described in one sense as a “visitation point”. So there is an acceptance there that there is not necessarily a broad point of principle. What is submitted, however, and submitted strongly in the written submissions that I will not improve by repeating them, is that remorse, if it does exist, is a crucial mitigating factor. It was at the forefront of this man’s plea of mitigation. It fell to be assessed in the context of him being 55 with no prior convictions. It fell to be assessed in the context of a prosecution submission that, at 116, line 20, of the application book that:

we say do and must by their very fact –

that is, the guilty pleas –

reflect a measure of remorse –

For the various reasons particularised in the ground of appeal, your Honour, it is respectfully submitted, that there was no other conclusion open but that the applicant had demonstrated remorse. If I could come back to just briefly expand on your Honour Justice Bell’s question about point of principle and take your Honours to page 199 of the application book where in disposing of this ground of appeal and indeed in endorsing her Honour the sentencing judge’s approach as impeccable, their Honours state:

It is true, as Redlich JA and Curtain AJA state, that ‘[t]he common law has long recognised the sentencing principle that a plea of guilty is an expression of real contrition’.

I do not read out the rest of that paragraph but what their Honours appear to be suggesting is that the enactment of section 6AAA in the State Act which is the provision, as your Honours know, that enables the quantum of the discount to be visible – the legislature set in the public interest – that that has anything to do with how a sentencing judge is to discern the extent to which a guilty plea reflects remorse.

In my respectful submission, if I could just take your Honour briefly to Phillips which is the authority that is there being cited, which is behind tab 7 in the authorities. Phillips was a bench of five that sat in Victoria to consider, in particular, the extent to which strength of a Crown case could diminish the utilitarian and indeed the subjective component of a plea – not something that is in issue in this case.

But, in the joint reasons of Justices Redlich and Curtain in passages not set out here, their Honours said importantly, in my submission, at the top of page 12 – in Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, Chief Justice Gleeson and Justices Gummow, Hayne and Callinan said:

a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender –

In my respectful submission, the approach adopted by the Court of Appeal in this case, dilutes that principle on no sound basis. This was a case where Mr Croucher had, at 101, line 14, submitted:

that plea of guilty in and of itself is ordinarily considered evidence of remorse and should be regarded as such in this case.

To which her Honour responded:

I have to say I don’t think that that’s right.

In my respectful submission, Mr Croucher – as he then was – was right. So too was the learned Crown prosecutor who submitted that the guilty plea should be treated, as in the usual case, as evidence in general remorse. So perhaps in a longwinded way, your Honour Justice Bell, there is a point of principle about whether the sentencing judge in the Court of Appeal have improperly diluted the very well-accepted and long-held principle in Siganto, but beyond that we rely on the written submissions.

BELL J: Yes, thank you – just one moment. Yes, thank you, Mr Bromwich. Mr Bromwich, just directing your attention to in the Zirilli draft notice of appeal, if one looks to what is described under paragraph 2 as “Ground 1: b) and c)” and they seem to be mirrored as grounds 2A and B in

the Barbaro draft notice of appeal. If you could direct your submissions to the matters raised by those grounds?

MR BROMWICH: Yes, your Honours. The context for the plea agreement which was reached has to be seen in light of MacNeil-Brown and, in particular, if I could take your Honours to MacNeil-Brown, although your Honours may be familiar with it, but it helps. It is the first case in the bundle and, in particular, at paragraph 3. It is just useful to have that in front of your Honours. The agreement was reached in the shadow of MacNeil-Brown which by then had been around for some years and I do not think it is disputed that the nature of the agreement was that the Crown was willing to make the submission but that it was being made in that context, that willingness. That is, that provided the Court required the assistance or there was a basis for thinking that the Court might be about to fall into error, once the Court indicated – her Honour indicated that she did not wish to hear from the Crown, as picked up by the Court of Appeal, that was really the end of the matter.

BELL J: I think the point being taken against you, Mr Bromwich, is in circumstances in which the Crown has come to a view about an appropriate range and seeks to, or at least on the applicant’s behalf it was sought to place that material as just part of the material that would be before the sentencing judge, was it right for the judge to cut that avenue off. That is different. It may be that the Crown is under no obligation to make a submission, save in the circumstances identified in MacNeil-Brown, but here her Honour was made aware that the Crown had expressed a view about an appropriate range and chose not to take it into account.

MR BROMWICH: It really goes back, your Honour, to the point I just made. That is, that the agreement to make the submission was subject and in the shadow of MacNeil-Brown and there was nothing wrong in the Court applying that MacNeil-Brown standard. I am not assisted, of course, if you think I am going to fall into error, it is a bit premature but if that is what you think I am going to do then, of course, you still have that right to do that. The fact that the Crown is going to put a range – there is a distinction now, clearly enough, between a range that suggested and any question of manifest excess or manifest inadequacy, for that matter, to an extent MacNeil-Brown might be seen as being, in one narrow point, inconsistent with the decision of this Court in Hili & Jones and to the extent that paragraph 54 in Hili & Jones contains a clear articulation of the limitations to be faced on such ranges to the extent – that holds good and, therefore, the extent that MacNeil-Brown suggested is an error of law to depart from such a range that some doubt can be cast over that sub-aspect, if you like, of MacNeil-Brown.

But, in short answer, in that context, we say there is nothing wrong in a court declining to receive the submission. At the end of the day, the submission is derived from a set of other cases. In this case, the judge had a view first of all that this was a case virtually in a category of its own and it is hard to say it was not. Secondly – and we make the point in the written submissions – that her Honour, rather than going off a numerical range, went and looked at the individual cases. She said, expressly, that she had looked at the individual cases. She considered not just a range but the cases which would have underpinned any such range and her Honour formed a view. She expressed the view clearly. She gave counsel a chance to debate it.

In the case of Mr Barbaro, really, the end result was the reality of a case like this, notwithstanding what the Crown would have been willing to say, was that if a judge took a view which her Honour was fully entitled to take, this was a case really where the consequence of the guilty plea was going to sound in the determination of a non-parole period rather than anything else. Her Honour made it clear enough, it was determinative on that issue and indeed, but for the guilty plea, there would not have been, in her Honour’s view, a determinate non-parole period. So we say there is something wrong with that.

BELL J: What of the submission that her Honour did cut off Mr Dunn from fully developing the submissions he might wish to have put.

MR BROMWICH: Your Honour, without wishing to be disparaging of Mr Dunn, that has an aspect of the “poor little flower” about it. Mr Dunn is a highly experienced counsel. At the particular point at which this was raised and her Honour indicated, “Did you hear what I had to say?” he was taking the signal from the bench. Experienced counsels do take signals from the bench. On occasions, experienced counsel will take the view that the better piece of advocacy is not to bat against that headwind and to move on to a different topic.

On other occasions, as counsel for Mr Zirilli took the point, it was worth persisting and pressing the point and making the full submission, but there was nothing stopping Mr Dunn from doing that. Mr Dunn, having been there and having seen counsel for Mr Zirilli making that submission, if he had formed a view that it was something that was going to assist his client, would not have lacked the fortitude to make that further submission. Her Honour made it clear, ultimately, that if you want to make it, I will not stop you and if she was not going to stop Mr Zirilli’s counsel, she ultimately was not going to stop Mr Dunn’s counsel either.

BELL J: The complaint is not confined to limiting counsel in putting submissions about what was appropriate but stopping Mr Dunn from conveying the contents of the Crown’s indication.

MR BROMWICH: We say that she indicated that she would not be assisted by it and did not want to hear it. But, nonetheless, Mr Zirilli was able to have his counsel persist and put it nonetheless and we say Mr Dunn could have done the same and elected not to do so. The Court of Appeal in dealing with that expressly said that that was a choice that was open – this is at paragraph 23 of page 193 of the application book. Their Honours formed the view there was nothing to prevent him. The mere fact that a judge expresses an adverse view on something does not mean that counsel, particularly experienced counsel, cannot be robust. Any counsel who has appeared in any of the particularly the appellate courts in this country but also senior sentencing judges such as this judge, are capable of making robust submissions.

Yes, there was a clearly stated and fairly clearly articulated lack of interest in the submission, but Mr Zirilli persisted through that and there was nothing stopping Mr Dunn from doing the same – sorry, Mr Zirilli’s counsel persisted in doing that and there was nothing stopping Mr Barbaro’s counsel from doing the same. Ultimately, on this issue, one has to ask the question in any event as to where this is all going to go? What is going to be the likely outcome? What difference can this, ultimately, make given particularly the Ahmad case indicates in the paragraph following the one which my learned friends rely upon. In that case, the agreement between the parties did go before the judge. The judge departed from it and the Court of Criminal Appeal said there was nothing wrong with that.

So, at the end of the day, we are dealing with a somewhat Pyrrhic exercise anyway. Suppose her Honour had said, all right you can go and make your submission anyway and then make it. Is there any hint or suggestion that it would have made the slightest bit of difference to this case? Is it conceivable that, having received the submission, that her Honour was going to say, in that case, I am going to treat myself in some sense as being effectively bound by this agreement. Her Honour had formed a view. She surveyed the authority. She surveyed the other sentencing cases and it is difficult to see, ultimately, what is going to happen with this, even if special leave were to be granted.

GAGELER J: Do you go so far as to make a submission that the result could not have been different if her Honour had taken the ground submission into account?

MR BROMWICH: In light of the way in which her Honour was regarding the matter and the careful analysis she carried out of the facts in this case and the facts in other cases and quoted at length from a case called To and so on. In my submission, it could not have made any difference. It is not as though her Honour did not know about it. She had received it in paper and she decided to treat herself as not receiving it. It is not as though it was not in a physical sense there. She just declined to receive the submission. She had a firm view that she did not wish to receive MacNeil-Brown ranges and it was her practice not to receive them. If it is not her practice not to receive them, as the Court of Appeal said, that is the end of the matter.

A longwinded answer, your Honour, but yes, it would not have made any difference, could not have made any difference in light of the view that her Honour had formed, and in light of the extreme seriousness of the offending in question. They were the two areas that I was asked to address particularly and, in my submission, there is simply nothing to those or indeed to any of the other grounds.

BELL J: Thank you, Mr Bromwich.

MR BROMWICH: Thank you.

BELL J: Mr Odgers and Mr Carter, we are minded to refer into an enlarged Court in the case of Mr Zirilli’s draft notice, ground 1, a), b) and c) and in the case of Mr Barbaro’s application, grounds 2A and 2B. Unless there is something further either of you wish – I am sorry, yes. Justice Gageler just reminds me. In relation to Mr Barbaro’s draft notice, grounds 2A, we would be minded to refer it in, subject to the insertion of the word “prosecution” before “submissions” so that it would read:

when the sentencing judge refused to permit prosecution submissions as to sentencing range.

Perhaps that would be better “the prosecutors”, and a like amendment to 2B so it would read:

The Court of Appeal erred in holding that a prosecution submission as to sentencing range –

MR BROMWICH: May it please the Court.

MR CARTER: If the Court pleases.

BELL J: Very well. Yes. In this matter then we will refer into an enlarged Full Court in the matter of Zirilli, ground 1, and in the matter of Barbaro, grounds 2A and 2B, subject to the amendment indicated and otherwise dismiss the application in each case. In each instance, the applicant’s submissions and list of authorities are to be filed and served by 20 September 2013; the respondent’s submissions and lists of authorities to be filed and served by 11 October 2013; the applicant’s reply to be filed and served by 25 October 2013. The parties are, in each instance, reminded that compliance with the timetable is viewed as extremely important. The Court will now adjourn until 10.15 am on Tuesday, 3 September in Canberra.

AT 2.35 PM THE MATTER WAS CONCLUDED