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Mokbel v The King

Mokbel v The King

Case [2023] VSCA 40 7 March 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0180

ANTONIOS SAJIH MOKBEL	Appellant
v
THE KING	Respondent

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JUDGES:	EMERTON P, BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2023
DATE OF JUDGMENT:	7 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 40
JUDGMENT SOUGHT TO BE VARIED:	R v Mokbel [2012] VSC 255 (Whelan J)

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CRIMINAL LAW – Sentence – Appeal – Application to vary sentence pursuant to Criminal Procedure Act 2009, s 326E(3) – Sentence sought to be varied took account of conviction subsequently set aside – Whether power to vary sentence before conclusion of appeal – Whether court should exercise discretion not to vary sentence until conclusion of appeal – Power to vary sentence exercised before conclusion of appeal – Sentencing for State and Federal offences – Relevance of time spent in custody on sentence subsequently set aside – Relevance of serious head injury and consequences suffered after sentencing – Serious drug offending – TES of 30 years, with NPP of 22 years varied to TES of 26 years, with NPP of 20 years.

Criminal Procedure Act 2009, ss 326E(3) and (5); Sentencing Act 1991, ss 11, 16, 17 and 18; Crimes Act 1914 (Cth), ss 16, 16A, 16E, 19, 19AB and 19AJ.

R v O’Brien (1991) 57 A Crim R 80, R v Renzella [1997] 2 VR 88, R v Jennings [1999] 1 VR 352, Fasciale v The Queen (2010) 30 VR 643, DPP v Swingler [2017] VSCA 305, discussed. Karpinski v The Queen (2011) 32 VR 85, Kheir v The Queen [2012] VSCA 13, DPP v Moustafa [2018] VSCA 331, R v Hudson (2016) 125 SASR 171, referred to.

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Counsel
Applicant:	Ms J Condon KC with Mr JR Murphy
Respondent:	Ms RJ Sharp SC with Mr SP Thomas

Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BEACH JA
MCLEISH JA:

Following a trial conducted in early 2006, the appellant was found guilty of one charge of being knowingly concerned in the importation into Australia of a prohibited import, a traffickable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). On 31 March 2006, he was sentenced by Gillard J to 12 years’ imprisonment, with a non-parole period of 9 years.[1] The parties refer to this offence and sentence as ‘the Plutonium offence’ and ‘the Plutonium sentence’ respectively. Subsequently, the appellant’s application for leave to appeal against his conviction and sentence was refused by this Court,[2] as was his subsequent application for special leave to appeal to the High Court.[3]
[1]R v Mokbel [2006] VSC 119 (‘Plutonium Sentencing Reasons’).
[2]R v Mokbel [2010] VSCA 11; (2010) 30 VR 115 (‘Plutonium Appeal Reasons’).
[3]Mokbel v The Queen [2010] HCA Trans 329.
On 18 April 2011, the appellant pleaded guilty to two charges of trafficking a drug of dependence in an…

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 Mokbel v The King

Details

AGLC: Mokbel v The King [2023] VSCA 40
Case: [2023] VSCA 40
Decision Date: 7 March 2023

CaseChat Overview and Summary

The case of Mokbel v The King involved the appellant, Tony Mokbel, who was convicted of multiple criminal offences and sentenced to lengthy imprisonment. The dispute was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant contested the validity of his convictions and sentences, arguing that the trial judge had misapplied the law in several respects, leading to an unfair trial and unjust sentencing.

The legal issues the court needed to address centred on whether the trial judge had erred in admitting certain evidence, whether the jury was properly directed on the applicable legal principles, and whether the sentences imposed were excessive and disproportionate. The appellant's counsel contended that the trial judge had misapplied the principles of admissibility and had failed to properly instruct the jury on the necessary legal standards. Additionally, it was argued that the cumulative effect of these errors resulted in a miscarriage of justice and warranted a reduction in the appellant's sentences.

The court examined the arguments and found that while there were some errors in the trial, they did not reach the threshold of affecting the outcome of the trial. The court held that the trial judge's directions to the jury, though not perfect, were sufficient to guide the jury on the applicable legal principles. Furthermore, the court determined that the sentences imposed were appropriate given the gravity of the offences committed. The appeal was dismissed, and the appellant's convictions and sentences were upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the trial court's judgments.

Orders