R v Mokbel

Case [2010] VSCA 11


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 721 of 2007

THE QUEEN
v
ANTONIOS SAJIH MOKBEL

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JUDGES: MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 19 May 2009
DATE OF JUDGMENT: 11 February 2010
MEDIUM NEUTRAL CITATION: [2010] VSCA 11
JUDGMENT APPEALED FROM: 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:

  1. 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.

  1. 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

  1. 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.

  1. 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,…

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Details
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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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