R v Mokbel (Reasons for sentence) [2006] VSC 119 (Gillard J)
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CRIMINAL LAW – Appeal – Conviction – Knowingly concerned in importation of cocaine – Applicant planned and funded importation, and organised collection in Australia – Drugs intercepted and carried to Australia by United States Customs officials – Controlled operation by Australian Federal Police – Whether official intervention created new importation – Whether applicant knowingly concerned in importation which took place – Whether causal link broken – Distinction between importing and being knowingly concerned in importation – Application refused – Customs Act 1901 (Cth) s 233B – Crimes Act 1914 (Cth) Part 1AB.
CRIMINAL LAW – Appeal – Sentence – Knowingly concerned in importation of 1.9 kg of pure cocaine – Applicant was principal – Applicant absconded before end of trial – Whether judge erred in passing sentence in absence of applicant – Whether sentence vitiated by failure to explain non-parole period – Sentence of 12 years with non-parole period of nine years – Parity – Whether manifestly excessive – Application refused – Crimes Act 1914 (Cth) s 16F(1).
WORDS AND PHRASES – ‘Importation’, ‘knowingly concerned’.
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APPEARANCES:
COUNSEL
SOLICITORS
For the Crown
Mr S D Hall SC with Mr C Boyce
Commonwealth Director of Public Prosecutions
For the Applicant
Mr S Shirrefs SC
Grigor Lawyers
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MAXWELL P BUCHANAN JA WEINBERG JA:
The applicant was found guilty by a Supreme Court jury of one count of being knowingly concerned in the importation into Australia of a traffickable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). He was sentenced to 12 years’ imprisonment, with a non-parole period of nine years.
The applicant now seeks leave to appeal against conviction and sentence, and seeks an extension of time for that purpose. The applications having been fully argued, it is appropriate that the extension of time be granted. For reasons which follow, however, we would refuse both applications. We deal first with the conviction appeal.
I: THE CONVICTION APPEAL
The circumstances of the offending
The Crown case was that the offence was committed pursuant to a joint criminal enterprise in which the applicant, Sonny Schmidt, Pale Schmidt and Ron Cassar were involved, together with a fifth person referred to throughout the proceedings (and in these reasons) as Mr U. The object of the enterprise was the importation of cocaine from Mexico to Australia.
The Crown alleged (and the sentencing judge later found)[1] that the applicant was the financier and overseer of the enterprise. Mr U and Sonny Schmidt were the hands-on implementers of the enterprise. Pale Schmidt was a facilitator and Ron Cassar, who at the relevant time worked for the international courier company UPS,…
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.
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AGLC
R v Mokbel [2010] VSCA 11
Case
[2010] VSCA 11
Decision Date
CaseChat Overview and Summary
The appeal against conviction and sentence brought by the applicant, Mokbel, was heard by the High Court. The applicant was found guilty of knowingly being concerned in the importation of 1.9 kilograms of pure cocaine. The drugs were intercepted and transported to Australia by United States Customs officials, but the operation was controlled by the Australian Federal Police. The applicant had planned and funded the importation, and organised the collection in Australia.
The legal issues before the court were whether the official intervention by the Australian Federal Police created a new importation, thereby breaking the causal link between the applicant and the importation. The court also considered whether the applicant was knowingly concerned in the importation that took place. The court examined the distinction between importing and being knowingly concerned in an importation, and whether the applicant's actions amounted to the latter.
The court held that the applicant's conviction was valid, as the official intervention did not create a new importation. The court found that the applicant was knowingly concerned in the importation, as he had planned and funded the importation, and organised the collection in Australia. The court also held that the sentence was not manifestly excessive, and that the judge did not err in passing sentence in the absence of the applicant. The application for special leave to appeal was refused.
The court's decision clarifies the distinction between importing and being knowingly concerned in an importation, and sets out the criteria for a valid conviction under the relevant legislation. The decision also confirms that the absence of the applicant does not vitiate the sentence, and that the sentence is not manifestly excessive if it is within the range of sentences that could be imposed for the offence. The decision provides guidance for future cases involving importation of drugs and the application of the relevant legislation.