DPP (Cth) v Inbar - [2005] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH
	v.
ALON INBAR

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JUDGES:	WINNEKE, P., BYRNE and OSBORN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2005
DATE OF JUDGMENT:	5 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 116

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Criminal law - Sentencing - Director's appeal - Importation of large commercial quantity of "ecstasy" - Respondent's role to "clear drugs" through Customs - Sentence of 5½ years with minimum of 3¼ years manifestly inadequate - Substituted penalty of 7½ years with minimum of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.J. Lane	Commonwealth DPP
For the Respondent	Mr D. Grace, Q.C.	David Grace, Q.C.

WINNEKE, P.:

The respondent Inbar is an Israeli citizen who was one of a number of people involved, in February 2004, in the importation of a commercial quantity of narcotics into this country contrary to s.233B of the Customs Act (Cth). The imported drug in this case was "ecstasy", comprised in a number of tablets, and was shipped from Rotterdam on board the "P. & O. Nedlloyd" which arrived in Melbourne on 16 February 2004. The Australian Federal Police had advance knowledge of the importation and intercepted the drugs, which were contained within wooden frames of two crates, each of which encased some form of chandelier. The two crates were in what is known as a "consolidated container" being carried by the ship. Police recovered from these crates 72 plastic bags containing ecstasy tablets which had a total weight of 33.930 kilograms, with an average purity of 56.2%, giving a total weight of pure MDMA in excess of 19 kilograms. This amount is nearly 40 times the commercial quantity which the legislation prescribes and, so we were told, is the third largest apprehended haul of this type of narcotic imported into this country. The police recovered these drugs and replaced them with what they call "inert substances", thereby permitting the crates to return to circulation with a view in mind of identifying as many of those involved in the operation as they could.

The police were aware of the respondent's part in the operation before the container arrived. Thus, on 12 February 2004, they had commenced a lawful interception of telephone calls made to his mobile telephone service. Between 12 February 2004 and 25 February 2004, police intercepted some twelve telephone conversations and five SMS messages between the respondent and his Israeli controller in Thailand which were concerned with the clearance of the contraband from Customs and delivery into the possession of the respondent. The police also intercepted calls to and from the respondent and the freight-forwarding agents concerned to advance clearance of the crates. The respondent was also heard to make arrangements with his associate in Thailand for the transference of funds for payment of the Customs charges. The arrangements made by the respondent for the clearance were made under the alias of "Guy Even". The arrangements which he made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Cth) v Inbar

Details

AGLC: Director of Public Prosecutions (Cth) v Inbar [2005] VSCA 116
Case: [2005] VSCA 116
Decision Date: 5 May 2005

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Commonwealth) versus Inbar was heard in the High Court of Australia. The dispute involved the sentencing of Inbar, who had been found guilty of importing a large commercial quantity of "ecstasy". Inbar's role was to facilitate the passage of these drugs through Customs. The Director of Public Prosecutions appealed the sentence imposed on Inbar, arguing that the original sentence of 5½ years imprisonment, with a non-parole period of 3¼ years, was manifestly inadequate. The central legal issues before the court were whether the original sentence was manifestly inadequate and, if so, what an appropriate substitute penalty should be.

The court considered the nature and seriousness of Inbar's crime, his role in the importation, and the need for the sentence to serve as a deterrent to others. The court held that the original sentence did not reflect the seriousness of the offence, nor did it adequately serve the purposes of punishment, including deterrence. In light of these considerations, the court substituted a new penalty, imposing a sentence of 7½ years imprisonment with a non-parole period of 5 years.

The High Court's reasoning focused on the need for the sentence to appropriately reflect the gravity of the offence and to achieve the aims of punishment, particularly deterrence. The court emphasised that the penalty for drug importation offences must adequately respond to the significant harm caused to the community. The decision underscores the importance of sentencing that aligns with community expectations and legal principles in serious drug importation cases. The court's substitution of a harsher penalty reflects its view on the appropriate response to such serious criminal conduct.

Orders