P F Tehan QC with D D Gurvich for the appellant in M29/2013 (instructed by Emma Turnbull Criminal Law)
L C Carter for the appellant in M25/2013 (instructed by C. Marshall & Associates)
G J C Silbert SC with B L Sonnet for the first respondent in both matters (instructed by Solicitor for Public Prosecutions (Vic))
Submitting appearance for the second respondent in both matters
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Elias v The Queen Issa v The Queen
Criminal law – Sentence – Where offence carries higher maximum penalty than other offence for which offender could have been prosecuted – Whether sentencing judge required to take lesser maximum penalty for other offence into account as mitigating factor – Whether R v Liang (1995) 124 FLR 350 should be followed.
Criminal law – Respective roles of prosecution and sentencing judge – Whether appropriate for sentencing judge to have regard to other offence which judge considers as appropriate or more appropriate to facts of case.
FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ. These appeals were heard together. They raise for consideration the existence and scope of a claimed common law principle of sentencing. The principle, stated by the Court of Appeal of the Supreme Court of Victoria in R vLiang, requires a sentencing judge to take into account in mitigation of sentence that there is a "less punitive offence" on which the prosecution could have proceeded and which is "as appropriate or even more appropriate" to the facts than the charge for which the offender is being sentenced[1].
[1](1995) 124 FLR 350 at 355 per Winneke P, Ormiston JA and Crockett AJA agreeing.
The appellants and a man named Bassillios Pantazis pleaded guilty before the Supreme Court of Victoria to offences which included in each case a count of attempting to pervert the course of justice. This is a common law offence for which the Crimes Act 1958 (Vic) provides a maximum penalty of imprisonment for 25 years[2]. The appellants and Pantazis were each sentenced to eight years' imprisonment for this offence[3]. The conduct constituting the attempted perversion of justice consisted of acts of assistance given to a fugitive who had been sentenced for a Commonwealth offence. Under Commonwealth law, an attempt to pervert the course of justice in relation to the judicial power of the Commonwealth is an offence which carries a maximum penalty of imprisonment for five years[4].
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.
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Details
AGLC
Elias v The Queen [2013] HCA 31
Case
[2013] HCA 31
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by Elias and Issa, who were convicted of drug trafficking offences. Their convictions arose from their involvement in assisting Antonios Mokbel, a principal in a large-scale methylamphetamine enterprise, to evade arrest and flee the country. The central dispute concerned whether a sentencing judge is required to consider a lesser maximum penalty of an alternative offence, for which the offender could have been prosecuted but was not, as a mitigating factor when imposing sentence.
The legal issues before the High Court were whether the principle established in *R v Liang* (1995) 124 FLR 350, which suggested that a sentencing judge should consider the lesser maximum penalty of an alternative charge, should be followed. Specifically, the Court had to determine if there is a common law requirement for a sentencing judge to take into account the maximum penalty of an offence for which an offender could have been charged, but was not, as a mitigating factor. The Court also considered the respective roles of the prosecution and the sentencing judge in determining the appropriate charge and sentence.
The High Court held that there is no warrant under the common law of sentencing for a judge to take into account the lesser maximum penalty for an offence for which the offender could have been, but has not been, convicted. The Court reasoned that considering hypothetical alternative charges and their maximum penalties would be a distraction and complicate the already difficult task of sentencing. The Court noted that it will often be possible to conceive of other charges upon which the prosecution might arguably have proceeded, and that it is not the role of the sentencing judge to engage in such speculation. The Court accepted the submission that *R v Liang* does not state a principle of sentencing known to the law.
Consequently, the appeals were dismissed.
Orders
Orders of the court
Matter No M29/2013
Appeal dismissed.
Matter No M25/2013
Appeal dismissed.
Background
Background to the litigation
The Liang "principle" has been applied by the Court of Appeal of Victoria on a number of occasions. The first respondent's challenge to the principle in the Court of Appeal was confined to its application to Commonwealth offences. By notice of contention in this Court, the first respondent submits that Liang does not state a principle of sentencing known to the law. For the reasons to be given, the first respondent's contention must be accepted and the appeals must be dismissed. Factual background The appellants' offences arose out of their association with a man named Antonios (Tony) Mokbel. Mokbel was the principal of a criminal enterprise known as "The Company", which was engaged in the manufacture and distribution of very large quantities of methylamphetamine. The appellants' convictions for drug trafficking offences related to their activities on behalf of "The Company". In March 2006, Mokbel was on trial in the Supreme Court of Victoria on a presentment that charged him with drug trafficking contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). On 20 March 2006, he failed to appear at his trial and a warrant was issued for his arrest. The trial continued in his absence. On 31 March 2006, Mokbel was convicted and sentenced in his absence. He remained at large until his arrest in Greece on 5 June 2007. Throughout this period Mokbel continued to control his drug manufacturing and distribution business. Mokbel enlisted the assistance of the appellants in his successful attempt to flee the jurisdiction. The appellants jointly owned a property in Bonnie Doon, Victoria which they used to hide Mokbel until October 2006. They facilitated the supply of a substantial quantity of cash to Mokbel. He was then moved to Elphinstone, Victoria before being transported to Fremantle, Western Australia by Pantazis. The appellants met up with Mokbel and Pantazis on the trip. Issa booked and paid for their accommodation in South Australia and on arrival in Western Australia. On 11 November 2006, Mokbel left Fremantle on a yacht bound for Greece. Issa was involved in engaging a crew to refit the yacht and sail it to Greece. Elias also procured equipment for the yacht. In February 2007, Issa assisted in the transfer of $120,000 in cash and two passports to Mokbel. A forged passport based on the documents supplied by Issa was found on Mokbel at the time of his arrest in Greece. A submission based on Liang was unsuccessfully advanced at Pantazis' sentencing hearing[8]. It was submitted that he might have been charged with attempting to pervert the course of justice under the Commonwealth statute[9] or with being an accessory after the fact under the State statute[10]. He asked the sentencing judge to take into account the lesser maximum penalty for those offences as a guide to the appropriate range of sentence. The prosecutor accepted that the offence under the State statute could have been charged but submitted that, having regard to the extent and nature of the offending conduct, the appropriate offence was the one on which the prosecution had proceeded. The prosecutor did not address the submission respecting the Commonwealth offence. A submission based on Liang was also unsuccessfully advanced at Elias' sentencing hearing[11]. The submission was confined to the Commonwealth offence as a guide to the appropriate range of sentence. A submission based on Liang was not made at Issa's sentencing hearing, but it was made to, and considered on its merits by, the Court of Appeal. [8]R v Pantazis [2011] VSC 54 at [27] and fn 2. [9]Crimes Act 1914 (Cth), s 43. [10]Crimes Act 1958 (Vic), s 325. [11]R v Elias [2011] VSC 423 at [27] and fn 5.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ
As has been explained, the appellants' submission that the Liang principle is necessary to enable the court to impose a just sentence is misconceived. Consideration of different offences for which an offender might have been convicted is merely a distraction. Before the Court of Appeal and in this Court there was debate respecting the availability and appropriateness of the lesser Commonwealth and State offences in light of the facts. It is unnecessary to address these questions. However, it should be observed that it will often be possible to conceive of other charges upon which the prosecution might arguably have proceeded. There is force to Callaway JA's observation, in dissent, in McEachran that "[s]entencing is hard enough without requiring a judge or magistrate to consider another offence that, properly, was not charged"[67].[67](2006) 15 VR 615 at 619 [15].Conclusion and orders There is no warrant under the common law of sentencing for a judge to take into account the lesser maximum penalty for an offence for which the offender could have been, but has not been, convicted. The appeals should be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ