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Mokbel v The Queen

Mokbel v The Queen

Case [2011] VSCA 34 18 February 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0963

MILAD MOKBEL
	v
THE QUEEN

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JUDGES	NETTLE, NEAVE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 February 2011
DATE OF JUDGMENT	18 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 34
JUDGMENT APPEALED FROM	[2008] VSC 635 (Curtain J)

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CRIMINAL LAW – Sentence – Applicant pleaded guilty to a count of blackmail and multiple counts of dealing with the proceeds of crime and trafficking or attempted trafficking of drugs of dependence – Plea hearing in respect of all counts commenced before date on which s 6AAA commenced – New presentment filed over for blackmail count after commencement – Section 6AAA declaration only made in respect of blackmail count – Whether failure to make s 6AAA declarations in respect of total effective sentence and non-parole period amounted to sentencing error – Sentencing Act 1991, ss 6AAA, 135 – R v Scerri [2010] VSCA 287, applied – Whether trafficking or attempt to traffick less serious offences because committed in context of police operation, agent provocateur and inert substance – R v Mihalo (2002) 136 A Crim R 588, applied – R v Rahme (1993) 15 A Crim R 8, distinguished – Cumulation of particular counts appropriate given separate instances of criminality – Sentences not manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S A Shirrefs SC	Garde Wilson Lawyers
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I agree with Neave JA that the application for leave to appeal against sentence should be refused.

NEAVE JA:

The applicant, Milad Mokbel, pleaded guilty to counts of blackmail (count 1),[1] knowingly dealing with the proceeds of crime with the intent to conceal (count 2), trafficking in a drug of dependence being a commercial quantity (count 3), trafficking in a drug of dependence being a large commercial quantity (count 4), attempting to traffick a drug of dependence being a large commercial quantity (count 5) and knowingly dealing with the proceeds of crime (count 6).
[1]This count was contained in Presentment C0605102.1. The other counts were contained in Presentment C0605102. The circumstances giving rise to the two presentments are discussed below.

After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the applicant as follows:

Count

Offence

Maximum

Sentence

Cumulation

Presentment C0605102.1

1

Blackmail

15 years’ imprisonment

12 months’ imprisonment

3 months

Presentment C0605102

2

Knowingly dealing with the proceeds of crime with the intent to conceal[2]

20 years’ imprisonment

2 years’ imprisonment

6 months

3

Trafficking in a drug of dependence being a commercial quantity[3]

25 years’ imprisonment

7 years’ imprisonment

2 years

[2]Contrary to Crimes Act 1958, s 194(1).
[3]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71AA.

4

Trafficking in a drug of dependence being a large commercial quantity[4]

Life imprisonment

7 years’ imprisonment

Base sentence

5

Attempting to traffick a drug of dependence being a large…

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 [2011] VSCA 287
Case: [2011] VSCA 34
Decision Date: 18 February 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, Mokbel sought to challenge the sentence imposed upon him following his guilty plea to one count of blackmail and multiple counts of dealing with the proceeds of crime and trafficking or attempted trafficking of drugs of dependence. The court was tasked with determining whether there was any error in the sentencing process, specifically focusing on the failure to make declarations under section 6AAA of the Sentencing Act 1991 in respect of the total effective sentence and non-parole period. Furthermore, the court had to decide whether the trafficking or attempted trafficking of drugs was less serious due to the context of a police operation, the presence of an agent provocateur, and the use of an inert substance.

The primary legal issues before the court were whether the failure to make section 6AAA declarations constituted a sentencing error and whether the nature of the drug trafficking offences warranted a lesser sentence. The court considered relevant legislation and case law, particularly R v Scerri and R v Mihalo, to evaluate the correctness of the sentence. It was necessary to discern whether the offences were appropriately cumulative given the separate instances of criminal activity and to assess if the sentences were manifestly excessive.

The court found no sentencing error in the failure to make section 6AAA declarations for the total effective sentence and non-parole period as the declaration was made for the blackmail count. The court also concluded that the drug trafficking or attempted trafficking offences were not less serious due to the context in which they were committed. It was held that the cumulation of particular counts was appropriate, and the sentences imposed were not manifestly excessive. Consequently, the application was refused.

Orders