Mokbel v The Queen

[2013] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0164
S APCR 2012 0174

ANTONIOS SAJIH MOKBEL	Applicant
	v
THE QUEEN	Respondent
	and
ATTORNEY-GENERAL (CTH)	Intervener

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JUDGES	MAXWELL ACJ, BUCHANAN and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28–9 November 2012
DATE OF JUDGMENT	17 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 118
JUDGMENT APPEALED FROM	R v Mokbel [2012] VSC 255 (Whelan J)

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CRIMINAL LAW – Appeal – Conviction – Fair trial – Abuse of process – Accused absconded during previous trial – Convicted and sentenced in absentia – Extradited from Greece – Prior application to European Court of Human Rights – Whether surrender by Greece violated European Convention on Human Rights – Whether Australian officials complicit – Applicant presented on fresh drug charges – Stay applications failed – Accused pleaded guilty – No violation by Greece – No abuse of process – Leave to appeal refused.

CRIMIMAL LAW – Appeal – Sentence – Drug trafficking – Incitement to import – Many multiples of large commercial quantity of ecstasy, methylamphetamine – Thirty years’ imprisonment, non-parole period 22 years – Applicant head of trafficking organisation – Worst category of offending – Sentencing range – Whether sentencing judge mistaken about Crown submission on range – Whether error material – Whether different sentence should be imposed – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms D Mortimer SC with Mr P J Doyle (conviction appeal) Mr T Kassimatis (sentence appeal)	Stephen Andrianakis & Associates
For the Crown	Mr T Gyorffy SC with Ms F Dalziel	Mr C Hyland, Solicitor for Public Prosecutions
For the Intervener	Mr J Gleeson SC (Acting Solicitor-General) with Mr G Hill	Ashurst Australia

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MAXWELL ACJ
BUCHANAN JA
WEINBERG JA:

Summary

1. Extradition of a fugitive offender is, by its nature, an adversarial process.  The assertion of executive authority by the requesting country[1] is avowedly hostile, directed as it is at securing the surrender of the fugitive and his/her return to face the processes of criminal justice in the home jurisdiction.  The fugitive, on the other hand, is entitled to resist extradition by all lawful means, that is, by insisting on strict compliance by both the requesting country and the surrendering country with the legal regimes respectively applicable to them.

   [1]Barton v Commonwealth (1974) 131 CLR 477, 484–5, 490–1, 498–9, 505–8 (‘Barton’).

1. So it was in the present case.  The applicant (‘M’)[2] had fled to Greece in early 2006 while on trial in the Supreme Court of Victoria on a charge of being knowingly concerned in the importation into Australia of a trafficable quantity of cocaine.[3]  He was convicted at the conclusion of the trial — in his absence — and sentenced to 12 years’ imprisonment, with a non-parole period of 9 years.  In June 2007, M was apprehended by Greek authorities.  Pursuant to the extradition treaty between the two countries, Australia requested Greece to extradite him, both to serve the sentence already imposed and to face further serious drug charges.[4]

   [2]The abbreviation is used here for ease of reference, not for anonymity.

   [3]Contrary to s 233B(1)(d) of the Customs Act 1901 (Cth).

   [4]A full chronology of events appears as Appendix A to these reasons.

1. M took proceedings in the Federal Court to challenge the validity under the Extradition Act 1988 (Cth) of the extradition request. The challenge failed at first instance, and in the Full Federal Court, and in the High Court.[5]  When the Court of Appeal in Athens upheld Australia’s request and ordered M’s extradition on 26 July 2007, M appealed the decision to the Greek Supreme Court.  That court on 18 March 2008 confirmed the order for extradition. 

   [5]Mokbel v Attorney-General (Cth) (2007) 162 FCR 278; Mokbel v Attorney-General (Cth) (2007) 162 FCR 296; Mokbel v Attorney-General (Cth) [2007] HCA Trans 813.

1. The final step was for the Greek Minister of Justice to approve M’s extradition.  In anticipation of this decision being made, M on 9 April 2008 lodged with the European Court of Human Rights (the ‘European Court’) an application asserting that for Greece (being a party to the European Convention on Human Rights) (the ‘Convention’) to extradite him would violate rights guaranteed to him by the Convention.[6]  The application requested that the Court grant ‘provisional protective measures’ to restrain Greece from extraditing M to Australia until the Court had ruled on his application. 

   [6]Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).  M alleged that, if he were returned to Australia, his life would be in danger (art 2 – right to life);  and he would be subjected to inhuman and degrading treatment art 3).

1. On 23 April 2008, the Australian Government made written representations to the Greek Minister of Justice, requesting that he approve M’s extradition and setting out arguments in support of that course of action.  The submission argued that any proceeding which M might bring before the European Court ‘should not delay his surrender to Australia’. 

1. On 7 May 2008, the Greek Minister of Justice ordered M’s extradition.  On 9 May 2008, Australian authorities received a copy of M’s application to the European Court.  On 16 May 2008, Greek authorities surrendered M into the custody of the Australian Federal Police, and he was escorted back to Australia.  At the time of his extradition, the European Court had made no order for interim measures.  There had in fact been no communication at all between the Court and the Greek Government regarding M’s application.

1. Once back in Australia, M mounted three successive challenges to the further criminal proceedings against him.  In applying for a permanent stay, he contended that because his extradition had occurred while his application to the European Court was pending, it would be an abuse of process for him to be prosecuted.  The first application disavowed any allegation of unlawful conduct by either Greece or Australia.[7]  The second application alleged that Australia had acted unlawfully.[8]  The third application alleged that it was Greece which had acted unlawfully, in that it had violated its obligations under the Convention, and that by accepting his surrender Australia had knowingly participated in this unlawful conduct.[9] 

   [7]Mokbel v DPP (Vic) [2008] VSC 433, [42].

   [8]DPP v Mokbel [2010] VSC 331, [26]–[27], [43].

   [9]R v Mokbel [2011] VSC 128, [18].

1. All three applications failed. M subsequently pleaded guilty to three drug offences, and was sentenced to 30 years’ imprisonment with a non-parole period of 22 years.[10]  He now seeks leave to appeal against that conviction on the sole ground that his third stay application should have succeeded.  (He also seeks leave to appeal against sentence.)

   [10]R v Mokbel [2012] VSC 255, (‘Reasons’).

1. M’s appeal submission accepted that, in order to succeed, he had to show, first, that Greece had acted in violation of its obligations under the Convention and, secondly, that Australia had accepted his surrender by Greece knowing of the unlawfulness of Greece’s conduct.  For reasons which follow, we would reject both limbs of the argument. 

1. Put simply, it is no part of European Convention law that the mere filing of an application with the European Court, by a person whose extradition from a Convention country has been sought, renders the subsequent surrender of the person to the requesting country a violation of the Convention.  The position is quite different if the country asked to surrender the person has received an indication from the European Court of interim measures (typically, requesting the country to defer surrender until the Court has dealt with the application).  As we have said, no such indication had been given in the present case.  Australian authorities relied on advice from their Greek counterparts that, in the absence of interim measures, there was no impediment to M’s extradition.  In the circumstances of this case, that reliance was entirely reasonable.

1. On the third stay application, M represented himself.  As Whelan J recorded in his reasons, M’s oral submissions emphasised that

all the Australian authorities had to do was just wait;  wait until all possible avenues of review or appeal which he had in Greece were exhausted.[11]

In Whelan J’s view:

His true complaint is that the Greek and Australian authorities were not prepared to wait.  Mr Mokbel’s extradition had been ruled upon by the Council of Appeal of the Court of Athens, by the Supreme Court of Greece, and by the Minister of Justice of Greece.  The stated Greek position was that there was no impediment to extradition.  The accused’s complaints about the conduct of the Australian authorities concerning, or in the context of, the pending application to the European Court of Human Rights, to which Australia was not a party and where interim measures had been requested but not obtained … are, in my view, nowhere near the kind of behaviour which could justify a permanent stay.[12]

We respectfully agree.

[11][2011] VSC 128, [32].

[12]Ibid.

A.                   CONVICTION APPEAL

1. The single ground of appeal against conviction is that the judge

erred in refusing to stay the proceedings against the applicant as an abuse of process, in that his Honour:

(a)       applied the wrong test in determining whether the applicant’s return to Australia was tainted by any unlawfulness; 

(b)failed to make findings relevant to the question of whether the applicant’s removal from Greece was unlawful;  and

(c) should have concluded that Australia was involved in and facilitated the applicant’s unlawful removal to Australia.

1. Central to M’s argument is art 34 of the Convention, which provides as follows:

The Court may receive applications from any person, non‑governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.[13]

[13]Emphasis added.

1. Also relevant is r 39 of the Rules of Court,[14] which provides:

1.The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.

2.Notice of these measures shall be given to the Committee of Ministers.

3.The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.

[14]European Court of Human Rights, Rules of Court (adopted July 2007).

1. As noted earlier, M’s application to the European Court included a claim for interim measures.  Greece being a party to the Convention, the Court could have ‘indicated’ such measures to Greece in accordance with r 39, but this had not occurred at the time M was surrendered by Greek officials to Australian authorities.

1. Complaint is made about the following part of the trial judge’s reasons:

It is not contended that there was any failure on the part of the Australian authorities to comply with the decisions of the Greek Courts, or the Greek Minister for Justice.  It is not contended that there was any failure on the part of the Australian authorities to comply with the applicable extradition legislation or the applicable extradition treaty.  … [W]hat is contended is that it was unlawful to encourage or accept the surrender of Mr Mokbel when Australia knew that his application to the European Court of Human Rights against Greece had been made but not yet determined.

It is not unlawful for a person to proceed to enforce rights which they have in law because an application has been made but not yet determined which might affect those rights.  It is because it is not unlawful to proceed with enforcement and because that enforcement might render nugatory an appeal or other application that courts have the power to give interim or interlocutory relief.  The European Court of Human Rights has such powers, which are referred to as interim measures.  There is no evidence that any such interim measures were operative, at the time of Mr Mokbel’s surrender on 16 May 2008, or at any other time.

Australia is not a party to the European Convention on Human Rights and it owes no obligation to any person or State under that Convention.  Australia was not a party to Mr Mokbel’s application to the European Court of Human Rights.  No order could have been made against Australia by that Court.  An order binding on Greece could have been made, but there is no evidence that any such order was made.  The Greek authorities were of the view that there was no impediment to Mr Mokbel’s surrender.   

The assertion is repeatedly made in Mr Mokbel’s submissions that Australia’s encouragement and acceptance of the surrender effectively deprived Mr Mokbel of his legal right to obtain relief from the European Court of Human Rights against Greece.  Whilst this may be accurate as a description of the practical effect of the surrender, it does not establish any relevant unlawfulness.

At a number of points in his submissions Mr Mokbel asserts that the position is relevantly analogous to the Australian Government extraditing a subject of another country whilst an extradition appeal was pending at the High Court.  One significant flaw in that analogy is that Australia would be party to such a High Court appeal, whereas it was not a party to Mr Mokbel’s application to the European Court of Human Rights.

In any event, in Australia, in both the civil and criminal contexts, the possibility of judgments being enforced whilst an appeal is pending is one which is commonly addressed.  In the civil context it may be addressed by measures such as an application for a stay pending appeal, and in the criminal context by measures such as an application for bail pending appeal.  One factor, amongst other factors, which may be taken into account in such applications is whether enforcement prior to appeal will render the appeal futile or nugatory or deprive the applicant of the fruits of a successful appeal.  Relief may be granted in order to address that position.  

To accept that it was in any relevant sense ‘unlawful’ for the Australian Government to proceed in accordance with the decisions which had been made by the Greek Courts and the Greek executive merely because an application was pending to the European Court of Human Rights would necessarily mean that the interim measures which Mr Mokbel sought, but did not obtain, were unnecessary.  If Mr Mokbel’s argument is correct he obtained all of the practical benefits of interim measures merely by making his application and then notifying Australia, a non-party to that application, of the fact that the application had been made.  This cannot be so.[15]

[15]DPP v Mokbel [2010] VSC 331, [43]–[49] (Whelan J).

1. M submits that this passage reflects ‘an erroneous view of the nature of interim measures, and a failure to give significance to art 34’.  Reliance is placed on the following statement by the European Court in Mamatkulov and Askarov v Turkey:[16]

The undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual’s right to present and pursue his complaint before the Court effectively.  That issue has been considered by the Court in previous decisions.  It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints.  As the Court has noted in previous decisions, ‘pressure’ includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. …  For present purposes, the Court concludes that the obligation set out in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure.[17]

[16]European Court of Human Rights, Grand Chamber, Application Nos 46827/77 and 46951/99 4 February 2005, (‘Mamatkulov’).

[17]Ibid [102] (emphasis added).

1. Particular complaint is made about the judge’s statement that:

It is not unlawful for a person to proceed to enforce rights that they have in law because an application has been made but not yet determined which might affect those rights.[18]

According to M’s submission, this statement ‘simply assumed what needed to be demonstrated’.  His Honour needed to consider whether, by reason of art 34, the Greek authorities had the right to hand M over to Australian authorities when they did.  His Honour should have found, so it is contended, that the surrender of M for extradition was a violation of art 34 because Greece thereby ‘hindered … the effective exercise of [his] right’ to advance a claim before the European Court alleging human rights breaches.  Contrary to the judge’s view, it was not necessary, for a breach of art 34 to be made out, for interim measures  to be in place under r 39, or for there to have been ‘deliberate conduct intended to circumvent the possibility of interim measures’.[19]

[18]DPP v Mokbel [2010] VSC 331, [44].

[19]R v Mokbel [2011] VSC 128, [23].

1. It was common ground that, unless M could establish that Greece had acted in violation of art 34, the abuse of process argument must fail.  Before we deal with that issue, it is necessary to address a threshold question, raised by the Commonwealth, concerning the means by which this Court should approach the task of ascertaining the applicable European law.

Ascertaining foreign law

1. Neither party raised before Whelan J any issue as to whether art 34, and the obligations imposed under that provision, had to be the subject of formal proof before any reliance could be placed upon it.  When the matter came before this Court, the Attorney-General for the Commonwealth, intervening, submitted (by way of a ‘preliminary point’) that the ‘operation’ of the Convention was a matter of ‘foreign law’, and therefore a question of fact that had to be proved by expert evidence.  It was implicit in that submission that, no such evidence having been led, the question whether there had been a breach of art 34 did not arise. 

1. An argument of that kind proceeds along a path that requires consideration of a number of separate steps.  It assumes first that the ‘operation’ of the Convention involves the interpretation of foreign law.  If so, it assumes next that the contents of that law must be the subject of proof.  Both assumptions are questionable. 

1. It may readily be accepted that foreign law is a question of fact to be proved by expert evidence.[20]  It may also be accepted that great care must be exercised in using material produced by expert witnesses about foreign law.  For example, an English translation of the text of a foreign written law is not necessarily to be construed as if it were an Australian statute.  Not only are there problems raised by the translation of the original text (although this is not a problem when it comes to dealing with the Convention as it provides that both the French and English versions are classified as ‘authentic’), but also different rules of construction may be applicable in the foreign jurisdiction.[21]

   [20]See generally, VSAB v Minister for Immigration and Multicultural Affairs [2006] FCA 239, [29]‑[30] (Weinberg J) quoting Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059, [32]–[33] (Ryan J) as to the ascertainment of foreign law and the circumstances in which it is unnecessary to resort to expert evidence for its proof.

   [21]Neilson v Overseas Projects Corporationof Victoria Ltd (2005) 223 CLR 331, 370 [115] (Gummow and Hayne JJ).

1. It must also be borne in mind that the Evidence Act 2008 (Vic) deals specifically with proof of foreign law. Section 174 is, relevantly, in the following terms:

174  Evidence of foreign law

(1)Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:

(a)a book or pamphlet, containing the statute, proclamation, treaty or act of State, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country;  or

(b)a book or other publication, containing the statute, proclamation, treaty or act of State, that appears to the court to be a reliable source of information;  or

(c)a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of State;  or

(d)a copy of the statute, proclamation, treaty or act of State that is proved to be an examined copy.

1. The section is plainly intended to be permissive.  It is not exhaustive.  There is nothing to indicate specifically that any of conditions (a)–(d) were met in this case.  Nonetheless, it is clear that Whelan J had access to art 34, and referred to it in terms.[22] 

   [22][2011] VSC 128, fn 14.

1. There is another question to be considered in relation to s 174.  The section, though headed ‘[e]vidence of foreign law’, speaks of ‘evidence of a statute, proclamation, treaty or act of State of a foreign country’.  The term ‘foreign country’ is not defined in the Evidence Act 2008 (Vic). It is somewhat problematic as to whether the Convention itself, which is a product of the Council of Europe, and not of any of its individual member States (or the European Union),[23] meets that description.[24] 

   [23]See art 6(2) of the Treaty on European Union as amended by the Treaty of Lisbon (entered into force 1 December 2009) as to the European Union’s accession to the Convention.

   [24]The term ‘foreign country’ in s 174 may, however, refer to a country that is a signatory to a multilateral treaty irrespective of whether the treaty itself can be described as the product of that particular country. 

1. It might be thought that the issue of what status should be accorded to art 34 could be resolved by recourse to the doctrine of judicial notice.  Only rarely, however, will foreign laws be so well-known that their contents are ‘notorious’.[25]  Otherwise, strict proof, through expert evidence, is required.  It need hardly be said that art 34 is not a provision the operation of which can be described in this country as ‘notorious’. 

   [25]See, eg, Saxby v Fulton [1909] 2 KB 208. See also R Fentiman, Foreign Law in English Courts: Pleading, Proof and Choice of Law (1998, Clarendon Press) 251.

1. Another possible solution to the argument put forward by the Attorney‑General is to regard the Convention as ‘international law’, rather than ‘foreign law’.  If that be correct, there is authority for the proposition that international law (at least customary international law),[26] unlike foreign law, need not be the subject of strict proof. 

   [26]In this regard we note that a rule expressed in a treaty such as the Convention may be a codification of customary international law.  See also Lord Wilberforce’s observation (which his Lordship acknowledged to be controversial) in I Congreso del Partido [1983] 1 AC 244, 260 that there may be ‘cases in which a multilateral convention may become part of general international law so as to bind States not parties’. Lord Wilberforce added that such a convention ‘must bear a legislative aspect’, and that there must be a ‘wide general acceptance of it as law-making’. It is unnecessary to consider whether art 34, which is procedural in nature, and directed to the ‘High Contracting Parties’, could possess those qualities.

1. In Great Britain, it was held by the English Court of Appeal in Trendtex Trading Corporation v Central Bank of Nigeria[27] that the rule of customary international law that sovereign immunity was not applicable to ordinary commercial transactions, as distinct from governmental acts of a sovereign State, was part of the law of England.  Self-evidently, that being so, no formal proof of that rule would be required.  Trendtex was based upon a preference for what was termed the ‘incorporation’ theory, rather than the ‘transformation’ theory of international law. 

   [27][1977] 1 QB 529 (‘Trendtex’).

1. It is fair to say that the reasoning in Trendtex was doubted by the Federal Court in Nulyarimma v Thompson.[28]  The issue in that case was whether the crime of genocide, contrary to customary international law, was part of the municipal law of Australia.  Application had been made to the Registrar of the Magistrates’ Court of the Australian Capital Territory for the issue of warrants for the arrest of the Prime Minister and Deputy Prime Minister.  The Registrar had declined to do so on the basis that genocide was not a crime known to municipal law.  

   [28](1999) 96 FCR 153.

1. The Full Court (Wilcox, Whitlam and Merkel JJ) unanimously held that the Registrar had been correct to refuse to issue the warrants.  Wilcox and Whitlam JJ reached that conclusion on the basis that, in the absence of legislation to that effect, genocide was not a crime against domestic law.  Merkel J would have held that genocide was a crime against the common law of Australia, but refused to compel the issue of the warrants on other grounds.

1. Wilcox J said:

It is at this point that the contest between the ‘incorporation’ approach and the ‘transformation’ approach becomes material.  Merkel J reviews that contest in some detail.  It appears the incorporation approach is now dominant in England, Canada and, perhaps, New Zealand.  The Australian position is far from clear.

…

It is difficult to make a general statement covering all the diverse rules of international customary law.  It is one thing, it seems to me, for courts of a particular country to be prepared to treat a civil law rule like the doctrine of foreign sovereign immunity as part of its domestic law, whether because it is accepted by those courts as being ‘incorporated’ in that law or because it has been ‘transformed’ by judicial act.  It is another thing to say that a norm of international law criminalising conduct that is not made punishable by the domestic law entitles a domestic court to try and punish an offender against that law.

Perhaps this is only another way of saying that domestic courts face a policy issue in deciding whether to recognise and enforce a rule of international law.[29]

[29]Ibid 164. See also 184, 190 (Merkel J).

1. The matter was recently discussed in some detail by Perram J in Australian Competition and Consumer Commission v P T Garuda Indonesia (No 9).[30]  There, the question was whether expert evidence as to the operation of an article of the Australia-Indonesia Bilateral Air Transport Agreement should be received.  Both Australian and Indonesian law were said to compel Garuda to comply with the terms of the treaty.  Perram J said:

   [30][2013] FCA 323.

The meaning of art 6(2) thus emerges as a question about the requirements of Australian law for the purposes of (a) but Indonesian law for the purposes of (b).  This gives rise, in turn, to a contradiction.  What little authority there is suggests that under Australian law a question of public international law is not one which involves the taking of evidence.  On the other hand, under Australian law, foreign law such as Indonesian law is a fact to be proved by evidence.  Thus art 6(2), qua an integer of Australian law, is not to be the subject of evidence but, qua an integer of Indonesian law, is.

…

There is no doubt that domestic law cannot be proved law by evidence. …

Does a similar principle apply to international law?  Despite authority to this effect being scarce, it seems that the answer is that it does.  This is (or was) the view of Professor Mann (see Francis Mann, Foreign Affairs in English Courts (Clarendon Press, 1986) p 126), Professor Crawford (see James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012), p 56) and Professor O’Donnell (see Daniel O’Connell, International Law, (Stevens and Sons, 2nd ed, 1970) p 53).  A similar view was expressed by Ian Hunter in ‘Proving Foreign and International Law in the Courts of England and Wales’ (1978) Virginia Journal of International Law 19(4) 665, 677–678.  In an obiter dictum, Stephenson LJ reached the same conclusion in Trendtex Trading Corp v Central Bank of Nigeria (‘ ... and they are not proved in English Courts by expert evidence like foreign law’).

The mechanics of why this might be so are somewhat more elusive.  The learned author of Cross on Evidence says that proof of public international law is not required because it is part of domestic law… .

…

With great respect to the learned author of Cross on Evidence I do not think that Trendtex can stand as authority for the general proposition that public international law is part of domestic law for the purpose of proving its meaning and content.  This is largely for reasons relating to the breadth of the proposition.

The mere externality of a legal framework cannot, therefore, be sufficient to mean that proof of that framework or its meaning is to be approached on the basis of legal rather than factual argument.  The differential treatment of international and foreign law is one that must, therefore, find its justification in considerations extending beyond its non-autochthonous character.

What might these be?  One set of reasons is likely instrumental.  The proliferation of international law concepts throughout modern legal systems, including Australia’s, would make it inconvenient to require evidentiary proof each time one arose for consideration.  In this Court, for example, double taxation treaties are frequently considered as is the Convention Relating to the Status of Refugees 1951, opened for signature 28 July 1951 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees 1967, opened for signature on 31 January 1967 (entered into force 4 October 1967).  It would add a layer of expense and complexity if that discourse were required to be approached factually.

Another set of reasons is more premised on principle.  The considerations outlined above … show that domestic public law (by which I mean areas such as statutory interpretation, constitutional and administrative law) and international law are intertwined.  Whilst it is true that foreign law and domestic law are also intertwined by reason of the principles relating to conflict of laws this does not occur in a way which impacts on the actual content of domestic law.

…

It follows that before an Australian court a question as to the interpretation of a treaty which arises in the course of ascertaining the operation of Australian law is to be approached as a question of law rather than as one of fact.[31]

[31]Ibid [28]–[48] (emphasis in original).

1. Nonetheless, and whether or not the Convention is regarded as ‘foreign law’, the fact remains that neither party (nor, it seems, the Attorney-General, who appeared before Whelan J in opposition to various subpoenae that had been issued on behalf of the applicant regarding the background to his extradition) ever, at any stage, took the point that there had been no formal proof of either the existence or operation of art 34.  That being so, the better view seems to be that there was tacit agreement by both sides that his Honour could proceed upon the basis that, despite the absence of any formal proof as to the various Convention matters raised, art 34 imposed legal obligations upon Greece, and the question whether those obligations had been breached was fully justiciable. 

1. As Professor Richard Fentiman noted in Foreign Law in English Courts: Pleading, Proof and Choice of Law:[32]

It is sometimes said that foreign materials may only be introduced without expert testimony with the agreement of the parties.  It is certainly true that nothing precludes the parties from agreeing to dispense with formal proof of foreign law, and thus with expert evidence.  And such agreement, express or implied, is invariably present in the cases …[33]

[32]1998, Clarendon Press, Oxford. 

[33]Ibid 261 citing Re Cohn [1945] 1 Ch 5; F & K Jabbour v Custodian of Israeli Absentee Property [1954] 1 WLR 139, 148 (Pearson J).

1. The following passage from Dicey, Morris & Collins on the Conflict of Laws is also apt:

Foreign law need not be proved if it is admitted.  Such admission may be express but may also occur where a party, by his pleading … is deemed by the applicable procedural rules to admit the foreign law upon which his opponent has relied.[34]

[34]Lord Collins et al (eds), Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15^th ed, 2012) 321.

1. We should add that if the Attorney-General’s submissions are to be understood as going beyond a challenge to the possible application of art 34, and as extending to an attack upon the process of interpretation adopted in construing that provision, the answer is relatively straightforward.  The relevant rules by which treaties are construed are codified by the Vienna Convention on the Law of Treaties (the ‘Vienna Convention’).[35]  Australia itself is a party to that Convention.  The Vienna Convention applies to the interpretation of the Convention.[36] 

   [35]Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). 

   [36]Golder v United Kingdom (1975) 1 EHRR 524, 532 [29]. See also Akers v Saad Investments Co Ltd(in liq) (2010) 190 FCR 285, 295 (Rares J).

1. Articles 31–2 of the Vienna Convention set out the general principles of interpretation that are to be followed.  In Minister for Home Affairs of the Commonwealth v Zentai,[37] French CJ said of these provisions:

The rules of interpretation in arts 31 and 32 have been said to represent customary international law.  Whether or not they are or have been adopted as part of the common law of Australia, those rules are generally consistent with the common law.  The common law requires treaties to be construed ‘unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation’.

[37](2012) 246 CLR 213, 223 (citation omitted).

1. There is nothing to suggest that Whelan J construed art 34 in a manner that was in any way inconsistent with these principles. 

1. It was unnecessary, in our view, for his Honour to have required evidence to have been placed before him as to what these provisions of the Vienna Convention mean, or how they are to be applied to the interpretation of treaties.  It makes no difference that the treaty in question, being the Convention, is not a treaty to which this country is a signatory. 

1. It follows that the Attorney-General’s submissions regarding the absence of formal proof relating to art 34 should be rejected. 

Was Greece in breach?

1. The submission for M had an attractive simplicity.  It was that Greece’s act of surrender of M, subsequent to his lodgement of the application with the European Court, necessarily hindered the effective exercise of his right to make that claim.  This had to be so, according to the written submission, because ‘[r]emoval is a complete frustration of an individual’s access to an effective remedy under the Convention’.  It followed that Greece was in clear breach of its obligation under art 34 not to hinder the effective exercise of M’s right to seek relief from the European Court.

1. Counsel for M readily acknowledged that they could point to no decision of the European Court, nor to any recognised academic writing on the subject, which supported the contention that Greece had thereby violated art 34.  They contended, however, that the absence of authority was not to be viewed as an obstacle to this Court’s upholding the submission.  On the contrary, it was said, to hold that Greece’s act of surrender in these circumstances violated art 34 would be wholly consistent with the course of decisions in the European Court.

1. The submission for the Commonwealth, on the other hand, was that the absence of authority in European Convention law for M’s proposition was determinative.  Since the content of foreign law was a question of fact,[38] the Acting Solicitor‑General submitted, this Court should find as a fact that nothing in the current state of European Convention law led to the conclusion that Greece’s conduct was a violation of art 34.  Moreover, given the gravity of a finding of illegality on Greece’s part, this Court should exercise ‘very considerable reserve’ before making such a finding, when to do so would involve going ‘well beyond’ what the European Court itself had held with respect to art 34.

   [38]Tahiri v Minister for Immigration and Citizenship (2012) 87 ALJR 225, 230 [21].

1. The concession by counsel for M as to the absence of supporting authority was properly made.  On the present state of the law as laid down by the European Court, there are only two circumstances in which the surrender by a Convention State of a person who has made application to the Court may constitute a violation of art 34.  The first (exemplified by Mamatkulov) is where the Court has, before the surrender takes place, indicated to the Convention State ― as an interim measure ― that the surrender should not proceed until the Court has made a determination on the application.[39]  The second ― and the Court has not yet made a finding of breach on this basis ― is if the State ‘deliberately prevents’ the Court from making a decision on a request for interim measures.[40] 

   [39]See [50]–[52] below.

   [40]See [57] below.

1. Although M had applied to the Court for interim measures, none had been indicated and Greece had done nothing to impede the process.  There was, accordingly, no legal obstacle to Greece’s surrendering M to Australia.  That conclusion is sufficient to dispose of the appeal.  We must deal, however, with the contention that this Court should not regard itself as confined to the current state of Convention jurisprudence.

1. While an application of this kind does require the Australian court to

state its conclusions about the legality of the conduct of a foreign government or persons through whom such a government has acted,[41]

no finding of illegality on the part of the foreign government could sensibly be made unless there was a clear contravention of an established legal rule.[42]  For obvious reasons, it would be neither appropriate nor practicable for the Australian court to reach a conclusion based on speculation about how the relevant area of foreign law might be extended or developed in the future.  Moreover, unless the breach of foreign law was plain, there is most unlikely to have been relevant knowledge of unlawfulness on the part of the requesting Australian authorities.[43]

[41]Moti v The Queen (2011) 245 CLR 456, 475 [51] (‘Moti’).

[42]See, eg, R v Hartley [1978] 2 NZLR 199, 216-7; Levinge v Director Custodial Services (1987) 9 NSWLR 546, 563-4; R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.

[43]Cf R v Mullen [2000] QB 520, 535.

1. The present case stands in stark contrast to Moti in this regard.  There, the illegality on the part of the deporting country was clear beyond argument, and obvious even to a non-lawyer.  Quite simply, the Solomon Islands Government had breached its own deportation legislation when it deported Mr Moti.  As the High Court noted, Australia’s senior representative in the Solomon Islands

was of opinion that the appellant’s deportation was not lawful.  Secondly, the Acting High Commissioner’s opinion was obviously right.  Third, despite the expression of this opinion, and its obviously being right, Australian officials facilitated the unlawful deportation of the appellant by supplying a travel document relating to him … at a time when it was known that the documents would be used to effect the unlawful deportation.[44]

[44]Moti (2011) 245 CLR 456, 480 [63].

1. In the absence of obvious or glaring illegality of that kind, Australia as the  requesting country will ordinarily be entitled to rely on assurances from the surrendering country that there is no impediment to the surrender under the applicable foreign law.  As the Commonwealth correctly submitted on the appeal:

Extradition occurs between countries that have differences in their constitutional arrangements and in the administration of criminal law.  Foreign officials will have a much closer knowledge and understanding of their own law.  As a matter of extradition law, the lawfulness of surrendering a person is a matter solely for the surrendering State, not the requesting State[45] … [I]n these circumstances, it would be highly surprising if the common law of abuse of process required Australian officials seeking the extradition of a person in every case to conduct their own examination of the lawfulness of the surrender of the person, under the law of that foreign country, especially in the face of clear assurances that there is no illegality.

[45]Barton (1974) 131 CLR 477, 490.

1. In fact, as will appear, the Australian Government officials responsible for M’s extradition sought early legal advice from the Attorney-General’s Department about the likely impact of an application by M to the European Court, should he make one.  The advice stated, correctly, that it was a matter for Greece to decide how to discharge its obligations under the Convention and that, on the current state of Convention law, the key issue would be whether the Court indicated interim measures .  There was certainly nothing in the internal legal advice to cast any doubt on the assurance provided by the Greek Government that (in the absence of such measures) there was no impediment to extradition.

The state of European Convention law

1. The decision of the European Court on which M relied most heavily was the 2005 decision in Mamatkulov.  This was also the authority on which the internal Australian advice was founded.  The case concerned the extradition from Turkey of two Uzbek nationals.  The applicants alleged that, if they were extradited to Uzbekistan, there would be violations of their right not to be tortured, and their right to a fair trial. 

1. Their applications to the European Court were lodged on 11 and 22 March 1999 respectively.  On 18 March 1999 (that is, a week after the first application was lodged), the Court indicated to the Turkish Government

on the basis of Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and of the smooth progress of the proceedings before the Court not to extradite the applicants to Uzbekistan prior to the meeting of the competent Chamber, which was to take place on 23 March 1999.[46]

On 19 March, the Turkish Government ordered the extradition of the applicants.  On 23 March, the Court extended the interim measures until further notice.  On 27 March, in defiance of the interim measures, Turkey handed over the applicants to Uzbekistan.

[46]Mamatkulov (European Court of Human Rights, Grand Chamber, Application Nos 46827/77 and 46951/99 4 February 2005), [24].

1. The Court held that Turkey’s failure to comply with the interim measures violated art 34, because it hindered the effective exercise of the applicants’ right of individual application to the Court.[47]  Of particular importance is what the Court said about its practice with respect to interim measures.  Specifically:

   [47]Ibid [127]–[129].

Interim measures have been indicated only in limited spheres.  Although it does receive a number of requests for interim measures, in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage.[48]

[48]Ibid [104].

The judgment continued:

In cases such as the present one where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court’s determination of the justification for the measure.  As such, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint.  As far as the applicant is concerned, the result that he or she wishes to achieve through the application is the preservation of the asserted Convention right before irreparable damage is done to it.  Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the ‘effective exercise’ of the right of individual petition under art 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State.[49]

And again:

[I]nterim measures, as they have consistently been applied in practice … play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted.  Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by art 34 and the State’s formal undertaking in art 1 to protect the rights and freedoms set forth in the Convention.[50]

…

A failure by a contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of art 34.[51]

[49]Ibid [108].

[50]Ibid [125].

[51]Ibid [128].

1. Unsurprisingly, given the stringency of the ‘irreparable damage’ test, interim measures are granted in only a small proportion of the cases in which they are sought.  According to Professor Philip Leach’s work, Taking a Case to the European Court of Human Rights, between 1974 and 2002 there were a total of 2,219 requests for interim measures, of which only 321 (14.5 per cent) were granted.[52]  In 2008, 747 interim measures applications were granted out of a total of 3,178 applications (23 per cent).[53]  Professor Leach also points out that, since the decision in Mamatkulov, there has been a series of decisions by the European Court in which a State’s non-compliance with a r 39 indication has been held to have violated art 34.[54]

   [52]Oxford University Press, 3^rd ed, 2011, 33 [2.53].

   [53]Ibid.

   [54]See Shamayev and others v Georgia and Russia (European Court of Human Rights, Second Section, Application No 36378/02, 12 April 2005);  Aoulmi v France (European Court of Human Rights, Fourth Section, Application No 50278/99, 17 January 2006);  Ben Khemais v Italy (European Court of Human Rights, Second Section, Application No 246/07, 24 February 2009);  Aleksanyan v Russia (European Court of Human Rights, First Section, Application No 46468/06, 22 December 2008);  Paladi v Moldova (European Court of Human Rights, Grand Chamber, Application No 39806/05, 10 March 2009);  See also Grori v Albania (European Court of Human Rights, Fourth Section, Application No 25336/04, 7 July 2009) (delay of 17 days in transferring applicant from prison to hospital ― violation of Art 34);  Al-Saadoon and Mufdhi v UK (European Court of Human Rights, Fourth Section, Application No 61498/08, 2 March 2010);  D B v Turkey (European Court of Human Rights, Second Section, Application No 33526/08, 13 July 2010).

1. The applicant also relied on the decision of the European Court in Al-Moayad v Germany.[55]  That case concerned the extradition of a Yemeni citizen from Germany to the United States.  On 14 November 2003, after the applicant had exhausted his rights of appeal under German law, the German Government authorised his extradition.  On that day, he made application to the European Court and requested an indication of interim measures.  Two days later, he was extradited to the United States.[56]

   [55]European Court of Human Rights, Fifth Section, Application No 35865/03, 20 February 2007 (‘Al-Moayad’).

   [56]Ibid [23]–[24].

1. It was contended that the German authorities had violated art 34 because they had extradited the applicant despite being notified that he had lodged an application and a r 39 request from the Court.[57]  The Court found that there had been no violation of art 34.  It could not be established to the Court’s satisfaction that the German Government had been aware, at the time of the surrender of the applicant, that a request for interim measures had already been made.  The Court accordingly concluded that there was:

[A]n insufficient factual basis to enable it to conclude that the [German] authorities deliberately prevented the Court from taking its decision on the applicant’s Rule 39 request or notifying them of it in a timely manner in breach of their obligation to co-operate with the Court in good faith.[58]

[57]Ibid [52].

[58]Ibid [127] (emphasis added).

1. The Court also noted the assurance given to it by the representatives of the German Government that:

[I]n accordance with their constant practice — a practice which the Court can confirm — [the German authorities] would have ordered a provisional stay of the applicant’s extradition if the Court itself had asked them to await its decision on the applicant’s Rule 39 request.[59]

This passage indicates that the Court does, where necessary, request a State to defer surrender whilst a decision is being made on a request for interim measures.  No such request was made in the present case.

[59]Ibid [126].

1. Reliance was also placed on the decision of the Court in Muminov v Russia,[60] where a similar allegation of a breach of art 34 was made and rejected.  In that case, the application was filed with the European Court on 23 October 2006, and the following day the Court indicated to the Russian Government, pursuant to r 39, that ‘the applicant should not be removed from Russia until further notice’.[61]  In fact, the applicant was surrendered for extradition, and left Russian territory, that same day.[62]

   [60]European Court of Human Rights, First Section, Application No 42502/06, 11 December 2008 (‘Muminov’).

   [61]Ibid [3].

   [62]Ibid [92].

1. As in Al-Moayad, the European Court could not:

establish with sufficient certainty that having been put on notice about the Court’s decision to apply Rule 39, the respondent government deliberately omitted to comply with it. 

Neither does it appear that any act or omission by the Russian authorities was intended to prevent the Court from taking a decision on a Rule 39 request or notifying the government thereof in a timely manner …  [T]he Court cannot consider that the respondent State was duly informed that a request under Rule 39 had already been made.  Against this background, the Court’s assessment of the material before it leads it to find that there is an insufficient factual basis for it to conclude that the respondent State deliberately prevented the Court from taking its decision on the applicant’s Rule 39 request or notifying it of that decision in a timely manner, in breach of its obligation to co-operate with the Court in good faith.[63]

[63]Ibid [136]–[137] (emphasis added).

1. The submission for M accepted that, in both Al-Moayad and Muminov, the question addressed by the Court in considering whether art 34 had been violated was whether the Contracting State had ‘deliberately prevented the Court from taking its decision on the applicant’s Rule 39 request’.  It is to be noted that the Court in Al‑Moayad referred only to:

the possibility that acts or omissions by the authorities of a respondent State intended to prevent the Court taking a decision on a Rule 39 request … may amount to a violation of a State’s obligation under art 34.[64]

There is as yet no decision of the Court in which a State has been found to have violated art 34 on this basis.

[64]Al-Moayad (European Court of Human Rights, Fifth Section, Application No 35865/03, 20 February 2007), [125] (emphasis added).

1. The submission for M accepted that Greece had not ‘deliberately prevented’ the European Court from deciding on his request for interim measures.  But it was contended that these decisions were ‘not purporting to lay down any universal rule’ and that there was scope for a violation of art 34 to be established without the need to show deliberate conduct of that kind. 

1. As indicated earlier, it is neither possible nor appropriate for this Court to speculate as to how the jurisprudence surrounding art 34, and requests for interim measures, may be developed by the European Court in the future.  It is sufficient to repeat that the only relevant proposition which has, to date, been authoritatively established is that a Contracting State violates art 34 if it extradites a person in defiance of interim measures of which the State has been notified.

1. A striking feature of the decisions to which we were referred is that, where interim measures are indicated by the Court, this typically occurs within a matter of days of the making of the request under r 39.  Thus, in Soering v United Kingdom[65] and again in Muminov, only 24 hours elapsed between the request for interim measures and the Court’s indication to the respondent government that the applicant should not be extradited pending the outcome of the proceedings.  In Mamatkulov, the relevant period was seven days.

   [65]European Court of Human Rights, Plenary Session, Application No 14038, 7 July 1989, (‘Soering’).

1. Given that interim measures will only be indicated where there is a risk of irreparable damage, such speed of response is entirely to be expected.  In the present case, it is to be noted, no indication of interim measures was given to Greece in the period between the filing of M’s application with the Court on 9 April 2008 and his surrender by Greece on 16 May 2008.  That the Court took no such action may reflect an assessment by the Court that M had not ‘plausibly asserted … a risk of irreparable damage’ to his rights, but that is not a question which needs to be pursued here.

The conduct of the Australian authorities

1. There having been no illegality on the part of the Greek authorities, there is no occasion to investigate the state of knowledge of the Australian officials who were responsible for M’s extradition.  Since, however, the matter was fully explored in argument, with detailed reference to internal communications within the Australian Government, it is appropriate to record our views shortly.

1. In our view, the course of conduct which the documents disclose accords with what would be expected of officials discharging the heavy responsibility of seeking the extradition of a fugitive.  That is, the extradition was pursued with diligence, thoroughness and persistence, as appropriate to the pursuit of the significant public interest in bringing a convicted criminal back to Australia to serve the sentence lawfully imposed on him and to face further serious charges.  This clarity of purpose is nowhere better illustrated than in the Australian Government’s written submission of 23 April 2008, urging the Greek Minister for Justice to approve M’s extradition.  As the European Court itself has said:

As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice.[66]

[66]Ibid [89].

1. At the same time, the documents reveal that Australian officials were mindful of the necessity for compliance with all applicable legal requirements.  When M’s representatives first raised in July 2007 the possibility of an application to the European Court, internal legal advice was sought about the implications of that course of action.  Australian officials were informed of the possibility that proceedings in the European Court might delay a decision by the Greek Minister, and could result in M’s surrender being stayed pending the resolution of such proceedings. 

1. The officials were made aware, moreover, of the power of the European Court to grant interim measures but were advised — correctly — that an application to the European Court would be a matter between the Court and Greece and would be out of Australia’s control.  The internal legal advice stated the position as laid down by the European Court in Mamatkulov — that interim measures were only granted when there was ‘a serious risk of physical harm to the applicant or an imminent risk of irreparable damage to the applicant’s right to present their case’.

1. By 9 May 2008, Australian authorities had had an opportunity to review M’s application to the Court.  Further internal legal advice was provided, in these terms:

The ECHR generally only grants interim measures, for example, ordering that an extradition be postponed, where there is a serious risk of physical harm to the applicant or an imminent risk of irreparable damage to the applicant’s right to present their case.  The ECHR has held that extradition may irreparably damage an applicant’s right to present their case to the Court.  We understand that Mr Mokbel is raising allegations of possible threats to his life in his application, so it is likely to fall into this category.

We cannot find any definitive material on the ECHR process for considering requests for interim measures or how long this process may take.  However, from our experience in another matter it appears that the country involved is not officially notified of the application until the ECHR has determined whether to grant interim measures.  In the previous matter the notification was provided about one month after the application date.  If we take this as a guide, it is likely that Greece would not be notified by the ECHR until 21 May 2008, or possibly later given that the ECHR could not consider the application until the Greek Justice Minister made his decision.

We note that the ECHR application only involves Mokbel and Greece and is beyond Australia’s control.  It is possible that if interim measures are ordered by the ECHR before Mokbel’s surrender to Australia, Greece will not proceed with Mokbel’s extradition to Australia until the court has finally ruled on this matter.  This may take some time as the entire process from application to a final binding judgment by the ECHR may take more than five years.

It would be advisable to arrange for surrender as soon as possible and if possible prior to Greece’s notification of the application by the ECHR.  Greek authorities have advised that there is no impediment to Mr Mokbel’s surrender occurring at present.  We do not know what Greece’s attitude might be to an award of interim measures by the ECHR, however, you should be aware that there is a possibility (albeit slight) that on the escort’s arrival in Greece, the Greek authorities may be unable to surrender Mr Mokbel.[67]

[67]Emphasis added.

1. The position adopted here is neither surprising nor in any way blameworthy.  As we have said, Australian authorities were properly pursuing the objective of obtaining M’s surrender.  They were entitled to be concerned that the process might be subject to further lengthy delays.  They appreciated, correctly, that their objective might be frustrated if interim measures were indicated, requiring Greece to refrain from surrendering M.  It was recognised throughout that it was for Greece to determine how it complied with its Convention obligations and, in particular, how to respond if interim measures were indicated.[68]  Unless and until that happened, however, there was — according to the Greek Government — no impediment to M’s extradition.  Officials were entitled, in our view, to act on that assurance (which, as discussed above, was correct) and to press for a decision to be taken on M’s surrender, and effected.

   [68]The first of these documents, a handwritten file note dated 31 March 2008, includes the statement, ‘Greece should oppose application for interim measures’.  No such view was put forward, however, in the official submission to the Greek Minister.

1. For these reasons, in our view, leave to appeal against conviction should be refused.

B.                   SENTENCE APPEAL

1. M pleaded guilty to two State drug trafficking offences, and one Commonwealth drug importation offence.  At the time he was sentenced on 3 July 2012, M was serving the sentence imposed on him in absentia in March 2006 on an earlier Commonwealth drug importation charge.  He had served 4 years and 57 days under that sentence since his return to Australia on 17 May 2008.

1. The combination of State and Commonwealth offences made the task of structuring the sentence one of considerable complexity, as counsel appearing before Whelan J acknowledged.  (The orders made are set out in the sentencing table which is attached as Appendix B.)  But his Honour stated his intention with unambiguous clarity, as follows:

I intend by these Federal and State sentences to impose a total effective sentence of 30 years’ imprisonment with a total effective non-parole period of 22 years.

As to the non-parole period on the State sentences, I order that the prisoner is not eligible for parole on the State sentences I have imposed until the expiration of 22 years from today, less the period of pre-sentence detention under s 18 of the Sentencing Act 1991 (Vic). I declare that the pre-sentence detention pursuant to s 18 … is 347 days. That is, 347 days of the non-parole period on the State sentences has already been served.[69]

[69]Reasons [94], [93].

1. As appears from the outline chronology below, the 347 days which his Honour declared as pre-sentence detention was the period which M had spent in custody in Greece, between the time of his arrest by Greek authorities in June 2007 and his extradition to Australia in May 2008. 

Outline Chronology

Date

Event

24 August 2001

Arrested and charged with cocaine importation (Commonwealth offence).

31 March 2006

Sentenced by Gillard J on cocaine importation charge to 12 years’ imprisonment with non-parole period of 9 years. 

PSD declared:  390 days (time spent in custody before release on bail).

5 June 2007

Arrested in Greece.

17 May 2008

Extradited to Australia.  Commenced to serve Gillard J sentence.

3 July 2012

Sentenced by Whelan J. 

PSD declared:  347 days (time spent in custody in Greece before extradition). 

Time served since 17 May 2008 under Gillard J sentence:  4 years 57 days.

3 July 2016

Commencement date of State sentences as fixed by Whelan J.

1. The argument on the sentence application concentrated on the practical effect of his Honour’s order.  The central complaint was that, when account was taken of the time already served under the sentence imposed by Gillard J (4 years and 57 days, together with 390 days declared as pre-sentence detention), M’s total effective sentence exceeded 35 years and his non-parole period exceeded 27 years. 

1. Once this was appreciated, so the argument went, the sentence imposed by Whelan J could be seen to be vitiated by error, by reason that:

(a)       his Honour had misunderstood the effect of the Crown submission on sentencing range, which had been the subject of agreement between prosecution and defence;

(b)      his Honour had departed from that agreed position or had failed to give it the weight which it deserved;  and/or

(c)       the overall sentence was manifestly excessive and crushing.

1. For reasons which follow, we would grant leave to appeal but only on the first of these grounds, and would dismiss the appeal.  First, it is necessary to set out the circumstances of the offending.

Circumstances of the offending[70]

[70]What follows in [77]–[93] is based on the sentencing reasons.

1. The first offence in time to which M pleaded guilty was committed between 1 February and 15 August 2005.  This was the State offence of trafficking in MDMA (ecstasy) in not less than a large commercial quantity (‘LCQ’).  At the relevant time the LCQ threshold for MDMA (mixed) was 1 kg.  The amount trafficked was in excess of 30 kg, that is, 30 x LCQ.  This offence is referred to by the name of the police operation by which the offence was detected, namely, ‘Quills’.

1. At the time M committed this offence:

·he had served a term of imprisonment in 1992 (and had spent time in custody in 1998 on a drug conviction which was subsequently quashed);[71]

·he was on bail in relation to the Commonwealth importation offence (committed in late 2000) for which he was subsequently sentenced by Gillard J;[72]  and

·he was also on bail in relation to a number of other Victorian drug offences.

[71]R v Moran and Mokbel (1999) 2 VR 87.

[72]R v Mokbel [2006] VSC 119.

1. In 2004, M went to the premises of a company called ‘Chemical Image Pty Ltd’, which manufactured general cleaning products.  M pretended to be a bricklayer who needed chemicals to clean bricks.  He formed a relationship with the director of that company (‘F’) and an employee (‘G’), and bought chemicals from them, paying grossly inflated prices.  The chemicals he acquired were legal, but could be used in the manufacture of MDMA and amphetamine-related substances.

1. By about February 2005, the association between M and F had reached the point where an associate of M’s, acting on his behalf, installed a pill press at the company’s factory.  Thereafter MDMA pills were pressed at that factory, using powder supplied by M.  After problems with that first pill press, F purchased at M‘s instigation a second pill press, using cash supplied to him by M.  F and G became large-scale manufacturers of MDMA pills for M.  Later, a third pill press was purchased.  It was operated at a suburban garage by a person recruited by F and G with M’s approval.

1. Between several hundred and 3,000 tablets were produced on the first pill press.  At least 40,000 tablets were produced on the second, and in excess of 65,000 on the third.  The total number of tablets produced exceeded 100,000.

1. Whilst this MDMA pill manufacturing enterprise was under way, in June 2005 M embarked on a series of dealings with two persons he believed to be potential suppliers of MDMA from international sources.  They were, in fact, undercover officers of the Australian Federal Police.  Those dealings led to the second charge to which M pleaded guilty.  That was the Commonwealth offence of urging the importation of a commercial quantity of MDMA.  The offence is referred to by the name of the police operation by which it was detected, namely, ‘Orbital’.

1. The amount which M ordered, and sought to import, was 100 kg of MDMA.  The price was 800,000 Euros.  The threshold for a commercial quantity (‘CQ’) was .5 of a kilogram.  The proposed importation, therefore, involved 200 x CQ. 

1. On 13 July 2005, M left a voicemail message on the message bank of one of the mobile phone numbers given to him by the undercover operatives, saying that he was ‘not interested in your project’.  M subsequently maintained to police that he had never intended going through with any arrangement to import the ecstasy, and advanced a story as to why he had met with the undercover operatives and encouraged them to import the ecstasy powder.  His claim that he had never intended to go through with the arrangement, and the story he advanced to the police to explain his actions, were false.

1. On 25 October 2005, M was arrested by the Australian Federal Police in relation to the Orbital matter.  When arrested, he had $40,867 in cash inside his carry bag, and six mobile phones in his possession.  As with the Quills offence, M committed the Orbital offence while on bail for Commonwealth and State drug charges. 

1. M was in custody from his arrest on 25 October 2005 until he was released on bail on the Orbital matter on 29 November 2005.  On 23 November 2005, he had been granted bail by a magistrate.  In February and March 2006, M was on trial in the Supreme Court for the cocaine importation offence which he had committed in late 2000. 

1. On 20 March 2006, M failed to appear at his trial.  The trial continued and he was found guilty in his absence.  A warrant was issued for his arrest.  Bail on the other outstanding matters was revoked.  On 31 March 2006, he was sentenced on the cocaine importation offence to 12 years’ imprisonment with a non-parole period of 9 years.

1. M lived in hiding within Victoria from the time he absconded until October 2006, when he was transported across Australia by road to Fremantle.  Persons assisting him arranged for a yacht to be purchased in Sydney, for a crew to be recruited, for the yacht to be transported by road to Fremantle, and for the yacht to be readied for long distance ocean sailing.  M left Australia on that yacht in November 2006 and arrived in Greece in December of that year, where he lived until his arrest on 5 June 2007.

1. Many people assisted M in this endeavour, some of whom were also involved in drug trafficking activities.  M’s flight and his maintenance were very costly and were largely, if not wholly, funded by the proceeds of his drug trafficking.

1. The final offence in time to which M pleaded guilty was the State offence of trafficking in methylamphetamine in a quantity not less than LCQ, in the period 5 July 2006—5 June 2007.  The relevant LCQ threshold for methylamphetamine (mixed) was 2.5 kg.  The trafficking the subject of this charge, therefore, involved 16 x LCQ.  This offence is referred to by the name of the police operation by which it was detected, namely, ‘Magnum’.

1. Whilst in hiding after absconding after his trial, and then whilst making arrangements to flee the country, and then again whilst living in Greece, M conducted a large scale methylamphetamine manufacturing and distribution enterprise.  He performed few of the physical activities himself.  Given the fact that he was then in hiding or overseas, that was perhaps inevitable.  Many others who played a role in the enterprise have since been convicted of serious offences and sentenced to terms of imprisonment.  Among the more significant of M’s associates were Joseph Mansour and Bartholomew Rizzo.  They undertook many of the necessary activities themselves, but also delegated activities to others. 

1. M arranged for the methylamphetamine to be manufactured and delivered to Mansour and Rizzo.  Once this had occurred, an entry was raised in the accounts of the enterprise, in favour of M, of $45,000 or $47,500 per pound.  Mansour and Rizzo would then on-sell the methylamphetamine at a profit for themselves.  In that way, Mansour and Rizzo accumulated a debt to M for what was, in substance, the wholesale supply of methylamphetamine.

1. During the period 5 July 2006 to 5 June 2007, the total accrued indebtedness of Mansour and Rizzo to M was in excess of $4 million.  Money owed to M was either paid directly to him or at his direction and for his benefit.  At least 41 kg (90 pounds) of ‘wholesale’ methylamphetamine was manufactured and distributed to Mansour and Rizzo.  The judge made the following findings about the operation of this enterprise:

The activities of those involved were highly organised and structured.  Mansour and Rizzo referred to the enterprise as ‘the company’.

At one point in 2007 a person involved in the drug trafficking enterprise began cooperating with police.  As a result of that cooperation police put in place telephone intercepts which enabled them to monitor calls being made by Mansour and Rizzo.  There are many phone calls involving you which were monitored and recorded between 14 May 2006 and 5 June 2007.

You were the principal or head of this enterprise.  It was your business.  You engaged the most senior personnel, and directly and personally issued orders and directions to them.

The telephone intercepts reveal two noteworthy matters in this regard.  First, you conducted yourself as a manager.  You delegated.  You gave advice.  You encouraged cooperation.  You sought to maintain morale.  Ultimately, you determined what was to be done, in particular about payments and the distribution of money.  Second, only certain of the participants dealt directly with you.  You gave instructions to them and they carried them out themselves or passed them on to others.  Those who did deal directly with you displayed respect for you, and loyalty to you.  They looked to you to solve the problems which arose.  It was your capacity to manage and co-ordinate, and to command respect and loyalty, which enabled these criminal activities to succeed, for a time.[73]

[73]Reasons, [40]–[43].

The ‘agreement’ on sentencing range

1. As his Honour noted, the submission for M on the plea was that ‘an agreement’ had been made with the Director of Public Prosecutions as to the minimum term to be imposed for these offences.  It was argued that his Honour could not — or should not — sentence outside the terms of that agreement unless satisfied that ‘exceptional circumstances’ existed.  It was also submitted that the non‑parole period should in fact be lower than that agreed with the Director, because of a heart attack which M had suffered whilst in custody and because of a successful appeal on sentence by M’s co-offender, Rizzo.[74]

   [74]Ibid [44].

1. The ‘agreement’ was recorded in an email from the then Director to senior counsel for M.  The email stated that the Crown would accept pleas of guilty in the Magnum, Orbital and Quills cases and that all other current prosecutions would be discontinued.  The email continued:

The Crown’s effective sentencing range for the minimum term will be 20 to 23 years.  This takes into account Mokbel’s current Commonwealth sentence.  The range is offered in accordance with the principles in R v MacNeil-Brown.  The Crown and the defence agree that the minimum term should fall within this range and that the range will be unaffected by any interpretation of the facts contended for by the defence.[75]

The Crown’s submission on the plea likewise stated that the range put forward ‘takes into account Mokbel’s existing Federal sentence’.

[75]Ibid [45] (emphasis added).

1. His Honour rejected the submission that he was constrained by the ‘agreement’ to sentence in accordance with its terms unless satisfied that exceptional circumstances existed.  His reasons were as follows:[76]

What the Crown ‘agreed’ upon was to make a particular submission in accordance with legal principles which are set out in the decision of the Court of Appeal in R v MacNeil-Brown.[77]  Such submissions are an aspect of the prosecutor’s duty to assist the court.  They are submissions, and are no different from any other submission that might be made in a criminal or civil matter.  The function of a Crown submission as to sentencing range is to promote consistency and reduce the risk of appellable error;  it has no other proper purpose.

No judge is bound to accept counsel’s submission on any point, including a Crown submission as to sentencing range.  The sentencing judge is entirely free to come to a different conclusion and is indeed bound to do so if in his or her judgment a sentence outside the nominated range is called for.  The weight to be given to a Crown submission on sentence is to be judged according to the merits of the argument.[78]  The task of the sentencing judge where the Crown makes a submission as to sentencing range remains the same as it is where no such submission is made.  The judge must evaluate the submissions, consider the law and the facts, and make a decision.[79]  Crown submissions can only ever be indicative of the prosecution’s view of the limits within which the sentencing discretion may lawfully be exercised, and they can never be more than an approximation.[80]

In a particular case the prosecution submission as to sentencing range might be important.[81]  It is important in this case.  The practical benefit to the community by reason of your guilty pleas, what is often called the utilitarian value, is a significant mitigating factor in this case.  The DPP is in a good position to assess that issue and, for that reason, the ‘agreement’ he concluded as to sentencing range on the non-parole period is an important consideration to take into account.  It is no more than that, however.  I reject the submission that I am in some sense bound by what has been agreed between the prosecution and the defence.[82]

[76]Ibid [46]–[48].

[77](2008) 20 VR 677.

[78]Ibid 691 [45].

[79]Ibid 692 [47].

[80]Ibid 679 [5] and 698 [69].

[81]See:  R v Williams [2008] VSCA 95.

[82]The suggestion that the sentencing judge is bound by any such agreement is inconsistent with R v MacNeil-Brown, as the Court of Appeal has repeatedly emphasised, see:  Campisi v The Queen [2010] VSCA 183, [20]–[21]; Hilder v The Queen [2011] VSCA 192, [30]–[32];  Bogdanovich v The Queen [2011] VSCA 388, [93]; and, most recently, Talbot v The Queen [2012] VSCA 118.

1. With respect, his Honour’s conclusion was plainly correct, for the reasons which he gave.  That an ‘agreement’ of this kind does not — cannot — bind a sentencing judge was made clear in Talbot v The Queen,[83] to which his Honour referred.[84]  There is, likewise, no foundation for the contention in the grounds of appeal that a Crown submission on range which is the subject of an ‘agreement’ of this kind carries greater weight than would otherwise be the case, such that the sentencing court ‘should be slow in the extreme to depart from it’.  (We note the announcement by the present Director of Public Prosecutions, in October 2012, that the question of what submission the Crown might make on sentencing range would play no part in any future negotiations regarding possible pleas of guilty.)[85]

   [83][2012] VSCA 118.

   [84]See also Barbaro v The Queen [2012] VSCA 288, [26].

   [85]Director of Public Prosecutions (Vic), Director’s Policy 9 – Crown’s Role on Plea and Sentence, 2 October 2012, 14–18 [67]–[79].

The judge’s misunderstanding of the Crown’s submission on range

1. The written case filed on M’s behalf contended that his Honour had misunderstood the effect of the Crown’s submission on sentencing range.  Crucially, it was said, his Honour did not appreciate that the sentencing range put forward for the minimum term (20 to 23 years) included the period of time M had already served under the sentence imposed by Gillard J.  As will appear, the Crown’s written case conceded that this was indeed a misapprehension on his Honour’s part.

1. Having been provided with a copy of M’s written case, his Honour submitted a report on sentence, in accordance with s 316 of the Criminal Procedure Act 2009 (Vic). The report was in these terms:

At the time of sentence I interpreted the Crown submission on sentencing range as being a submission as to the appropriate range from the date of sentence, taking into account the unserved portion of the cocaine importation sentence imposed by Justice Gillard.

I intended to impose sentences for the offences before me resulting in a total effective sentence of 30 years’ imprisonment with a non-parole period of 22 years (subject to applicable pre-sentence detention) from the date of sentence.

If the Crown submission as to sentencing range was intended to be that the range was to be ‘backdated’ to the commencement of the cocaine importation sentence, or was to be calculated from that earlier date, then:

(a)       that is not how I understood it at the time of sentence, and,

(b)       in my view, such a ‘backdated’ range would be significantly too low.

1. His Honour thus understood the Crown’s submission to be indicating the range for a minimum term to be imposed as from the date of sentence.  The Crown’s written case acknowledged that this was not what had been intended:  ‘The prosecution submission as to range included the period of time [M] had already served under the sentence imposed by Gillard J’.[86]

   [86]Emphasis in original.

1. The submission for M was as follows:

[T]he judge misapprehended the agreed submission as to range.  Had he correctly interpreted it, given it the weight disclosed by his treatment of it in the sentencing remarks and mitigated [M’s] sentence to accommodate his age, health and the conditions of his incarceration, the judge … simply could not have legitimately arrived at the sentences ultimately imposed.

1. As noted earlier, the judge expressed the view that, since the Director was ‘in a good position’ to assess the utilitarian value of M’s pleas of guilty, the Crown’s submission on the minimum term was ‘an important consideration to take into account’.[87]  It cannot be doubted, therefore, that the Crown’s submission did operate on his Honour’s mind as a relevant factor.  Equally clearly, he was mistaken as to the effect of that submission.  It follows, in our view, that the exercise of the sentencing discretion was infected by error.  Though his Honour has said since that he would have regarded the range actually submitted as ‘significantly too low’, we could not be satisfied that the error was immaterial.

   [87]See [96] above.

1. The error vitiates the exercise of the sentencing discretion, and raises for consideration the question whether, in the circumstances, a different and lesser sentence should be imposed.[88]  It is at this point that M faces a difficult — and, in our opinion, insuperable — hurdle. 

   [88]Criminal Procedure Act 2009 (Vic) s 281(b).

1. For reasons more fully set out in the next section, this was offending of the very highest order.  It fell comfortably into the category described as ‘the worst class of case’ of this type of crime.  It called for severe punishment, emphatic denunciation, and a sentence that would meet the requirements of both general and specific deterrence.  That was so even if it be true, as M contends, that he will, at best, spend much of the rest of his life in prison.

1. The scale of the offending, and the effort expended by M in its execution, were significant indeed.  In effect, M set out — for personal gain — to manufacture as much ecstasy and methylamphetamine as possible, an object in which he achieved considerable success.  Notwithstanding the significant mitigating factors which M could invoke — notably, the pleas of guilty, his age and ill-health and the circumstances of his incarceration — the sentence imposed below was warranted, in our view.  We are therefore not persuaded that any lesser sentence should be imposed.

Not manifestly excessive or crushing

1. As this Court has repeatedly emphasised, the ground of manifest excess is a stringent one, difficult to make good.  It will only succeed where it can be shown that the sentence imposed was not reasonably open to the sentencing judge, proper weight being given to all relevant sentencing factors.  The stringency of the ground reflects the long-standing policy of the criminal law that the sentencing task is committed to judges and magistrates at first instance, not to appeal courts, and that appellate intervention can only be justified where something has gone plainly or obviously wrong.[89]

   [89]Clarkson v The Queen (2011) 32 VR 361, 384 [89].

1. In our opinion, the sentences which the judge imposed were within the range reasonably open in the circumstances of the case.  This was, on any view, offending of the utmost seriousness.  Each of the State offences to which M pleaded guilty carried a maximum penalty of life imprisonment.  As noted earlier, the quantities of drugs trafficked were many multiples of the statutory threshold.  The Quills trafficking involved 30 x LCQ of ecstasy, and the Magnum trafficking involved 16 x LCQ of methylamphetamine.  Although quantity is not determinative of seriousness, it is obviously a factor of very great significance under a quantity-based sentencing regime.  Other things being equal, the larger the quantity, the more serious the offending.[90] 

   [90]Nguyen v The Queen (2011) 31 VR 673, 676 [2].

1. M’s position as the head of trafficking enterprises of this scale put his culpability at the highest level.  The sentences imposed had to be seen to reflect the community’s abhorrence of trafficking in drugs, and the Court’s denunciation of a person who, for reasons of sheer greed, was prepared — repeatedly and determinedly — to inflict untold harm on the community.

1. M’s culpability was made all the greater by the fact that the offending, in each case, occurred in defiance of court orders and enforcement processes.  As the sentencing judge noted:

·both the Quills and Orbital offending occurred while M was on bail for other serious drug offences;

·the Magnum trafficking occurred after M failed to answer his bail in the course of his trial on the cocaine importation charge;

·at the time M undertook the Magnum trafficking, he had been sentenced (in absentia) to 12 years’ imprisonment on that charge;  and

·the Magnum offending funded his continued evasion of the authorities, and his escape overseas.

1. Unsurprisingly, his Honour viewed the Magnum trafficking as the most serious of the three counts.  As the Crown submitted on the plea, M was the head of ‘a very large, sophisticated, professional and well-organised methylamphetamine manufacturing business, involving multiple participants, [over] a period of operation of nearly 12 months’.  His Honour said:

I have given very serious consideration to imposing a life sentence on the Magnum offence.  Your commission of that offence revealed, in my view, arrogant contempt for the law, and an incorrigible determination to persist in serious business-like drug trafficking regardless of the circumstances or possible consequences for yourself and others.  But in the end I have been persuaded by the submissions made by counsel that I ought not do so.  In that respect I am particularly influenced by two factors.  The first is that the utility value of your guilty plea should be reflected in the sentence itself and not just the non-parole period.  The second is that I cannot speculate as to your prospects of parole and must proceed on the basis that you may serve the entire sentence.[91]

[91]Reasons, [86].

1. Both before Whelan J and on the appeal, the submissions for M emphasised — quite properly — his age and ill-health.  The unchallenged evidence on the plea was that M suffered from coronary heart disease and that, as a result, he was more likely than others of his age to have another heart attack.  According to the expert evidence, his family history and the circumstances of his incarceration were negative factors for his prognosis.  On the other hand, the expert said, M was ‘very positive in terms of his diet, exercise, non-smoking and biomedical coronary risk factors.’  M was taking appropriate medication and was doing as much as he could in custody to reduce the risks.  The expert’s opinion was that, on average, a person of M’s age (46 at the time of sentence) with heart disease had a life expectancy of 24 years, which was 11 years less than a person without that condition.[92]

   [92]Ibid [52]–[53].

1. The judge accepted that, because of M’s coronary heart disease, imprisonment would be a greater burden on him than on someone not suffering from that condition.  He further accepted that his health was likely to be ‘an additional source of anxiety’ for M.  His Honour was not persuaded, however, that M’s access to timely and appropriate treatment would be any more restricted in prison than it would be in the community.[93]

   [93]Ibid [57]–[58].

1. On the basis of the expert evidence, his Honour concluded, M’s incarceration did represent ‘a serious risk of a gravely adverse effect on [his] health because depression and social isolation are risk factors for the development of coronary heart disease.’[94]  His Honour then addressed the relevance for sentencing of M’s reduced life expectancy:

It was also put on your behalf that your state of health is relevant because the court ought to be careful not to impose a sentence that leads to the destruction of any reasonable expectation of useful life after release.  It was submitted that in your case your life expectancy is now 24 years, or less, and that that is a factor which should be taken into account.

Age and health are relevant to the exercise of sentencing discretion, but neither are determinative of the amount of a sentence.  Depending upon the circumstances, it may be appropriate to impose a non-parole period which will have the effect that the offender may well spend the whole of his remaining life in custody, but that is a weighty consideration for the sentencing judge when that position does arise.

In your case your health is relevant in the way I have explained and it is also a relevant matter that you do now have a reduced life expectancy.  That circumstance cannot justify the imposition of an inappropriate sentence.  It is, however, a matter which I do take into account.[95] 

[94]Ibid [59].

[95]Ibid [60]–[62].

1. His Honour’s approach accorded with orthodox and well‑established principle.  The age of an offender is always a relevant consideration and may, in particular cases, be of considerable significance.  But it will never be determinative.[96] 

   [96]DPP v Kien (2000) 116 A Crim R 339, 343 [17].

1. In R v R L P,[97] this Court was considering the case of an offender who was 77 when sentenced.  The Court summarised the applicable propositions as follows:

   [97](2009) 213 A Crim R 461.

We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.

1.The age and health of an offender are relevant to the exercise of the sentencing discretion. 

2.Old age or ill health are not determinative of the quantum of sentence.

3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.

4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody. 

5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.

6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.

7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[98]

That approach has been applied in a number of subsequent cases.[99]

[98]Ibid 476 [39] (footnotes omitted).

[99]See, eg, Collins v The Queen [2012] VSCA 163, [67]; Brennan v The Queen [2012] VSCA 151, [91]; R S J v The Queen [2012] VSCA 148 [3], [44]. See also R v Moran [2011] VSC 375.

1. As his Honour noted, M’s pleas of guilty were a significant mitigating factor.  They had, as his Honour found, a high utilitarian value, averting the need for two long and complicated criminal trials which would necessarily have entailed the expenditure of very considerable resources.  His Honour then addressed the subjective factors associated with the pleas of guilty, as follows:

A guilty plea is also relevant to what might be termed subjective mitigating factors concerning an offender, being remorse, acceptance of responsibility, and a desire to facilitate the course of justice.  On these subjective factors, in your case reliance was placed on your guilty pleas, on [the psychologist’s] evidence, and on your conduct in prison.

You have expressed remorse to [the psychologist] and she is of the opinion that that expression of remorse was genuine.  You have told her that you would like to apologise to the community and to the courts and that you recognise that dealing in drugs was wrong and that it caused damage to a lot of people.

In my view your attempt to alter your pleas is a factor which weakens your position on remorse.  In the course of that application you expressly disavowed acceptance of responsibility for these offences.  More importantly, I am unpersuaded of your remorse because of the nature and duration of your offending and in particular because of the circumstances of the Magnum offence.

You have offended over a number of years.  You were not deterred from that course even though you had previously spent time in jail.  You were not deterred by being arrested and charged.  You were not deterred by the imposition of bail conditions.  You were not deterred by your conviction and sentence.  Your offences and the Magnum telephone intercepts reveal to me that drug trafficking was your business.  It was your area of expertise.  It was your career.  Things have not turned out as you planned, and no doubt you now regret that, but to describe such feelings of regret as remorse is, I think, misconceived.

Notwithstanding those conclusions, your expressions of contrition are in themselves something to be taken into account in your favour.  Those statements and the other matters relied upon are insufficient to enable a finding of genuine remorse, acceptance of responsibility and a desire to facilitate the course of justice.[100]

[100]Reasons, [66]–[70].

1. These findings were, with respect, unimpeachable.  There was no challenge to them on the appeal.  His Honour also took into account the circumstances of M’s incarceration, as follows:

Since your return to Australia you have been in custody in the Acacia unit at Barwon Prison.  The Acacia unit is a high security unit.  Those in custody in that unit are subjected to what I think can fairly be described as a harsh regime.  It is not harsh because of physical hardship or deprivations.  It is harsh because it is confined and socially isolated. 

You may be reclassified after sentence, or at some later date, but given your history and your associations, you may well continue to serve your sentence under a more restrictive regime than is usual.  There is a real possibility that you will continue to be held in very restrictive circumstances for an indefinite period.  In my view that is a significant mitigating factor in your case.  Prison for you will be more burdensome than it is for others.[101]

[101]Ibid [72]–[73].

1. The effect of the sentences imposed is that M will be eligible for parole at the age of 67, and his full sentence will expire when he is 75.  It was submitted for M that it was, as a result, a ‘crushing sentence’.  In Yates v The Queen, this notion was explained as meaning a sentence of such a length that it destroys ‘any reasonable expectation of useful life after release.’ [102]

   [102][1985] VR 41, 48.

1. The Crown’s written submission included a helpful examination of authorities dealing with the notion of a ‘crushing’ sentence.  As a matter of principle, however, this is not a separate ground of appeal but is part of the analysis which the ground of ‘manifest excess’ itself requires.  In deciding whether the sentence imposed was reasonably open to the sentencing judge, proper regard must be had to considerations of totality and proportionality, and to the maximisation of the offender’s prospects of rehabilitation so far as that is practicable consistent with the other purposes to be served by the sentence imposed.  While it is obviously difficult for a sentencing court to assess the subjective impact of a sentence on the sentenced person’s view of the future, it may safely be assumed that a person in M’s position would find daunting the prospect of serving the very lengthy sentence which offending of this kind, in these circumstances, must necessarily attract.

1. In the end, however, the question of the impact of the sentence on M is but one of the considerations to be addressed in deciding whether the sentence imposed was within the range reasonably open.  For the reasons given, we have no doubt that these sentences were within range.  But for the mitigating factors and the pleas of guilty, substantially heavier sentences would have been open, in our view.  The sentences imposed can be seen to reflect the giving of appropriate weight to those factors.  As we have said, this was offending of the utmost seriousness, undertaken by someone who knew perfectly well what he was doing and who evidently judged that the financial rewards he was seeking justified taking the risk that, if detected, he would go to gaol for a very long time.

APPENDIX A

The following chronology of events relevant to M’s extradition was helpfully supplied to the Court as an annexure to M’s written case.

Date	Event
27 May 2007	Australian authorities request the provisional arrest of the applicant by Greek authorities.
5 June 2007	The applicant is taken into custody in Greece, for possession of false documents.  The applicant pleaded guilty to this offence and was dealt with by the Greek courts some weeks later.
7 June 2007	A provisional arrest warrant in respect of the extradition request is executed on the applicant.
5 July 2007	A formal extradition request is presented to Greek authorities.
17 and 24 July 2007	An extradition hearing is conducted in the Greek Court of Appeal.
26 July 2007	The Greek Court of Appeal orders the applicant’s extradition.
27 July 2007	The Australian Attorney‑General’s Department notes, internally, that the applicant may seek to challenge his extradition in the European Court of Human Rights, and requests advice about the operation of the European Court of Human Rights (‘ECHR’).
1 August 2007	The Attorney‑General’s Department receives advice about the operation of the ECHR.  The advice notes that decisions of the ECHR are binding on Greece, and the applicant had standing to make an application.  The advice also noted the court’s capacity to grant interim measures in extradition cases (citing Mamatkulov v Turkey).
28 September 2007	A background briefing to the Minister of Justice is provided by the Attorney‑General’s Department.
18 March 2008	On appeal, the Supreme Court of Greece orders the applicant’s extradition.
9 April 2008	The applicant applies to the ECHR.  The application includes a request for interim measures.
15 April 2008	The applicant notifies an Australian consular officer that he has made an application to the ECHR and that he intends to seek review of the decision of the Greek Minister of Justice regarding his extradition.
21 April 2008	The ECHR acknowledges receipt of the application.
23 April 2008	A diplomatic note from Australia to the Greek Ministry of Justice refers to the possibility of an action in the ECHR and says that in the event such action is taken it ‘should not delay the determination of Mr Mokbel’s return to Australia’.
7 May 2008	The Greek Minister of Justice orders the applicant’s extradition.
9 May 2008	The applicant’s Greek lawyer writes to the Australian embassy notifying it of the ECHR application and attaching a copy.
9 May 2008	The Australian Attorney-General’s Department writes to the AFP advising that arrangements should be made for the applicant’s surrender ‘as soon as possible and if possible prior to Greece’s notification of the application by the ECHR’.
12 May 2008	The applicant’s representatives write to the secretary of the Attorney‑General’s Department notifying him that an application to the ECHR has been lodged, and informing him that it would be an abuse of process for Australia to facilitate his removal from Greece before the determination of his case in the ECHR.
12 May 2008	The applicant’s lawyer notifies the Greek Ministry of Justice of his application to the ECHR.
16 May 2008	The applicant is surrendered to the AFP and escorted back to Australia.
17 May 2008	The applicant arrives in Melbourne.

APPENDIX B

M was sentenced as follows:

Counts on Presentment	Offence		Maximum	Sentence	Cumulation
C0907076 Count 1 ‘Quills’	Trafficking in not less than a large commercial quantity of a drug of dependence (MDMA)[103]		Life	13 y	6 y (7 y concurrency)
C0907076 Count 2 ‘Orbital’	Incitement to import a prohibited import (MDMA)[104]		10 y[105]	6 y[106]	N/A
C0705786.11 Count 1 ‘Magnum’	Trafficking in not less than a large commercial quantity of a drug of dependence (methylamphetamine)		Life	20 y	Base
Total Effective Sentence:		26 years’ imprisonment (Quills and Magnum)
Non‑Parole Period		·     A new federal non‑parole period of 6 years and 9 months and 19 days commencing 3 July 2012 in respect of the Orbital offence and the federal cocaine importation sentence currently being served. ·     The State sentences commence 2 years and 9 months and 16 days before the expiry of the new federal non‑parole period. ·     Non‑parole period on the State sentences of 18 years (commencing on commencement of those sentences being 2 years, 9 months and 16 days before the expiry of the federal non‑parole period).
6AAA Statement:  The learned sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of this offence after a trial would have been life imprisonment, with no non‑parole period.

[103]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71.

[104]Criminal Code1995 (Cth) s 11.4(1); Customs Act 1981 (Cth) s 233B(1).

[105]Pursuant to s 11.4(5)(a) of the Criminal Code 1995 (Cth) the maximum penalty is 10 years if the offence incited is punishable by life imprisonment. Pursuant to s 235(2) of the Customs Act 1901 (Cth) the offence of importing narcotic goods into Australia carries a penalty of life imprisonment.

[106]Commencing on the expiry of the non‑parole period on the existing federal sentence being served for cocaine importation.