The High Court unanimously dismissed two appeals against the decision of the Victorian Court of Appeal to dismiss the sentencing appeals of two convicted drug traffickers. Barbaro and Zirilli were convicted of drug trafficking offences for importing 15 million tablets of MDMA, with an estimated total wholesale value of $122 million, concealed in a shipment of tinned tomatoes; the largest ecstasy haul in Australian history. Both pleaded guilty to the charges, and were sentenced to life in prison and 26 years respectively. The appellants challenged the sentencing judge’s decision on the basis of denial of procedural fairness, namely that the trial judge, Justice King, refused to hear the Crown’s submissions on the appropriate sentencing range, and imposed sentences that were both higher than the maximum sentences recommended by the Crown. The Court of Appeal held that Justice King was not obliged to receive those submissions, and that the sentences imposed were not manifestly excessive.

Justices Bell and Gageler referred Ground 1 (denial of procedural fairness by prohibiting the prosecution’s submission on range) of Zirilli’s appeal and Grounds 2A (denial of procedural fairness by prohibiting the prosecution’s submission on range) and 2B (failing to take into account a relevant sentencing factor, namely the prosecution’s submission on range) of Barbaro’s appeal to the Full Court and dismissed the remaining applications.

Dismissing both appeals, the Court rejected the applicants’ arguments that the prosecution is permitted or required to make any submission on sentencing ranges. Such submissions are not submissions of law, but merely opinions, which the sentencing judge may or may not take into account in deciding on the appropriate sentence. King J’s refusal to hear the prosecution on sentencing ranges did not amount to a failure to take account of a material consideration in fixing the sentences, and the applicants were therefore not denied procedural fairness.

A majority of the High Court also overruled the earlier decision of R v MacNeil-Brown [2008] VSCA 190 — a landmark ruling in which the VSCA held that a prosecutor should make submissions on sentencing range if asked by the judge (applied by the VSCA in this case) — to the extent that it supported the practice of counsel providing submissions on the bounds of the available range of sentences, noting that ‘[t]he practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle.’ (at [23]). Whether a sentence is manifestly excessive or inadequate requires only that a ‘substantial wrong has in fact occurred’; whether an error has or has not occurred ‘neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen’ (at [28]).