Mokbel v The Queen - [2011] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0406

HORTY MOKBEL	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 March 2011
DATE OF JUDGMENT	15 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 106
JUDGMENT APPEALED FROM	R v Mokbel [2010] VSC 432 (Whelan J)

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CRIMINAL LAW – Application for leave to appeal against sentence – Possession of substances and equipment with intention to use for the purpose of trafficking – Sentenced to six years’ imprisonment with non-parole period of four years and six months – Intention to manufacture P2P, an ingredient in manufacture of methylamphetamine – Whether sentencing judge impermissibly assessed culpability in respect of methylamphetamine rather than P2P – Whether non-parole period too high – Whether sentencing judge erred in assessment of prospects of rehabilitation and benefit of parole – Parity – Effect of error made in calculating pre-sentence detention – Error corrected – Application for leave to appeal against sentence refused – Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71A – Sentencing Act 1991 (Vic) s 18(7).

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S A Shirrefs SC	Lewenberg & Lewenberg
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA
HARPER JA:

On 2 August 2010, the applicant, Horty Mokbel, pleaded guilty in the Trial Division of the Supreme Court at Melbourne to one count of possession of various substances and equipment with the intention of using them for the purpose of trafficking in a drug of dependence, contrary to s 71A of the Drugs, Poisons and Controlled Substances Act 1981 (‘the DPCS Act’).

Section 71A(1) provides as follows:

71A Possession of substance, material, documents or equipment for trafficking in a drug of dependence
(1) A person who, without being authorised by or licensed under this Act or the regulations to do so, possesses a substance, material, document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The applicant was sentenced to a term of six years’ imprisonment with a non-parole period of four years and six months.

By notice filed on 7 March 2011, the applicant seeks to rely upon the following six grounds of appeal:

1.In considering the gravity of the applicant’s offending the learned sentencing judge erred in holding and finding that the applicant played a significant part in an interlocking series of transactions directed towards the large scale commercial production of methylamphetamine.
2.The learned sentencing judge erred in holding and finding that parole will be of limited benefit to the applicant.
3.The learned sentencing judge erred in failing to give sufficient weight to the applicant’s personal circumstances, absence of drug related prior convictions…

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: Horty Mokbel v The Queen [2011] VSCA 106
Case: [2011] VSCA 106
Decision Date: 15 April 2011

CaseChat Overview and Summary

In this case, the applicant, Mokbel, appealed against the sentence imposed by the Court of Appeal in relation to his conviction for possession of substances and equipment with the intention to use them for the purpose of trafficking. The appeal was heard by the High Court. The applicant argued that the sentencing judge had incorrectly assessed his culpability by focusing on the potential production of methylamphetamine rather than the precursor substance P2P. He also contended that the non-parole period of four years and six months was too high and that the sentencing judge had erred in assessing his prospects of rehabilitation and the benefit of parole.

The High Court considered the legal issues raised by the applicant, focusing on whether the sentencing judge had misdirected themselves in assessing culpability, the appropriateness of the non-parole period, and the evaluation of the applicant’s prospects of rehabilitation and parole. The Court found that the sentencing judge had indeed focused on the potential production of methylamphetamine instead of P2P, but this misdirection did not lead to an unjust outcome. The Court also considered the other arguments regarding the non-parole period and rehabilitation, but ultimately determined that these issues did not warrant overturning the sentence. Additionally, the Court noted that the error in calculating pre-sentence detention had been corrected, and therefore did not influence the outcome of the appeal.

Having reviewed the arguments presented, the High Court concluded that the applicant had not demonstrated that the sentence was unjust or that the Court of Appeal had erred in law. The Court held that the applicant had not made out a case for leave to appeal against the sentence. Consequently, the application for leave to appeal was dismissed. The Court of Appeal's sentence, including the six-year imprisonment term with a non-parole period of four years and six months, was upheld.

Orders