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Mokbel v The Queen

Mokbel v The Queen

Case [2013] VSCA 118 17 May 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0164
S APCR 2012 0174

ANTONIOS SAJIH MOKBEL	Applicant
ANTONIOS SAJIH MOKBEL	v
THE QUEEN	Respondent
THE QUEEN	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

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’).

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mokbel v The Queen

Details

AGLC: Mokbel v The Queen [2013] VSCA 118
Case: [2013] VSCA 118
Decision Date: 17 May 2013

CaseChat Overview and Summary

In the case of Mokbel v The Queen, the appellant was convicted and sentenced to thirty years' imprisonment, with a non-parole period of 22 years, for offences including drug trafficking and incitement to import. The appellant, who was the head of a trafficking organisation, had absconded during a previous trial and was convicted and sentenced in absentia. He was later extradited from Greece and faced fresh drug charges in Australia. The appellant argued that the surrender by Greece violated the European Convention on Human Rights and that Australian officials were complicit in this violation. Additionally, he contended that the proceedings against him constituted an abuse of process due to his prior application to the European Court of Human Rights.

The court was required to decide whether the surrender by Greece violated the European Convention on Human Rights and if Australian officials were complicit. The court also had to determine if the proceedings against the appellant constituted an abuse of process. Furthermore, the court needed to assess the appropriateness of the sentence imposed, particularly whether the sentencing judge had erred in relation to the Crown's submission on the sentencing range and whether the sentence was manifestly excessive.

The court found that there was no violation by Greece and no complicity by Australian officials. The court also ruled that there was no abuse of process. Regarding the sentence, the court held that the sentencing judge had not erred in relation to the Crown's submission on the sentencing range, and the sentence was not manifestly excessive. The court dismissed the appeal and affirmed the sentence. The court found that the appellant was involved in the worst category of offending, dealing with many multiples of a large commercial quantity of ecstasy and methylamphetamine. The sentence was within the appropriate sentencing range and did not warrant a different sentence.

Orders