R v Mokbel
[2012] VSC 255
•3 July 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Nos. 1634 of 2009
1433 of 2009
1448 of 2009
| THE QUEEN |
| v |
| ANTONIOS SAJIH MOKBEL |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May, 3 July 2012 | |
DATE OF SENTENCE: | 3 July 2012 | |
CASE MAY BE CITED AS: | R v A Mokbel (sentence) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 255 | First Revision: 12 July 2012 |
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CRIMINAL LAW – Sentence – Two offences of trafficking in large commercial quantity and one of incitement to import – Relevance of “agreed” Crown submission on sentence – Serious drug offender – Offences on bail – Total effective sentence of 30 years imprisonment with a total effective non-parole period of 22 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Kidd SC and Ms F Dalziel | Office of Public Prosecutions |
| For the Accused | Mr P Faris QC and Mr M Gumbleton (on 24 May 2012) Mr M Gumbleton (on 3 July 2012) | Robert Stary & Associates |
HIS HONOUR:
Introduction
Antonios Mokbel, on 18 April 2011 you were arraigned and pleaded guilty to one count of trafficking in a drug of dependence in an amount not less than a large commercial quantity, a further count of trafficking in a drug of dependence in an amount not less than a large commercial quantity, and a count of incitement to import a prohibited import. The maximum penalty for each of the trafficking offences is life imprisonment. The maximum penalty for the incitement to import offence is 10 years’ imprisonment.
The charges to which you have pleaded guilty relate to police operations referred to as Magnum, Quills, and Orbital. At the time of those pleas the prosecutor advised the Court that other pending drug matters, referred to by reference to police operations named Kayak, Landslip, Matchless and Spake, would be discontinued. Your counsel sought an adjournment for eight weeks in order to prepare plea material. The plea was further adjourned a number of times at the request of your legal advisers. It was eventually fixed for hearing on 18 October 2011.
On 18 October 2011 you made an application to change your pleas. On Thursday 1 March 2012 I announced my decision that that application was refused. I published detailed reasons on 13 March 2012.[1] On 24 May 2012 and earlier today I heard submissions on sentence.
[1]DPP v A Mokbel [2012] VSC 86.
You were born on 8 August 1965 in Kuwait into a family of Christian Lebanese background. You are the middle son of five children. You migrated to Australia with your family in 1974 when you were 8 years old. Your parents were both illiterate. Your father worked at a motor car factory until he died in 1980. Your mother is still alive and in your youth she also worked in a factory.
A psychological report by the consultant forensic psychologist, Ms Wendy Northey, was tendered on your plea. She reports that you told her that you had a happy childhood in Australia and that you were a close-knit family. You had difficulty at school. Your literacy skills were limited. When you arrived in Australia at the age of 8 you spoke no English at all. Your father died of a heart attack on your 15th birthday and you did not return to school after that.
You worked in a variety of jobs, including managing a restaurant when you were still very young. In 1988 you married. There are two children of that marriage. They are now adults.
You began gambling in the early 1980s and this became a most destructive compulsion. According to what you told Ms Northey, your “commercial interest in illicit drugs” commenced in the 1990s and was related to your gambling.
You separated from your wife and lived in a de facto relationship with another woman between 2001 and 2007. You have a young daughter with that woman.
You have never been an illicit drug user yourself.
By the year 2000, when you were in your mid-30’s, you had appeared in court and been convicted, or been dealt with after charges were proven, on 14 occasions. The first was on 8 August 1983, the day you turned 18. One of those convictions was quashed in the Court of Appeal.[2] You spent 157 days in custody on remand in 1998 before that conviction was quashed. That quashed conviction was the only one which involved any drug offence. Ms Northey suggests you struggled to adjust to your father’s death and that your early criminal record is “largely indicative of an angry, oppositionally defiant young man with anti-social traits and poor emotional regulation at times”.
[2]R v Moran and Mokbel [1999] 2 VR 87.
Apart from the time spent in prison on the conviction which was quashed, before 2000 you had served one term of imprisonment. In April 1992 you were convicted and sentenced for the offence of doing an act tending and intended to pervert the course of public justice. You were sentenced to be imprisoned for 12 months with six months of that sentence suspended for a period of 12 months. Your offending conduct was your involvement in an attempt to establish a means of bribing County Court judges.[3]
[3]Sentencing Reasons, Judge Kelly, 8/4/92.
Between 13 October 2000 and 1 December 2000, you committed the offence of being knowingly concerned in the importation into Australia of narcotic goods. The goods were a quantity of cocaine which arrived in Australia on 6 November 2000. You were arrested on 24 August 2001. You were eventually convicted and sentenced for that offence in March 2006.[4] That offence carried a maximum penalty of 25 years’ imprisonment. You were sentenced to a term of 12 years’ imprisonment with a non-parole period of 9 years.[5]
[4]This offence is a prior conviction only in relation to the Magnum offence. It is otherwise relevant to s 5(2)(f) and s 6 of the Sentencing Act 1991 (Vic) in the manner explained in Fox and Freiberg: Sentencing State and Federal Law in Victoria (2nd Edition) at [2.324]-[2.325] and in Veen v The Queen (1988) 164 CLR 465, especially at 477-8 and Baumer v The Queen (1988) 166 CLR 51, especially at 57, in relation to Quills. It is relevant to s 16A(2)(m) of the Crimes Act 1914 (Cth), as to which see: Weininger v The Queen (2002) 212 CLR 629, especially at 639 (per Gleeson CJ, McHugh, Gummow and Hayne JJ) and at 647 (per Kirby J in dissent), in relation to Orbital.
[5][2006] VSC 119. Leave to appeal conviction and sentence was refused: [2010] VSCA 11.
The sentencing judge characterised your conduct in relation to the offence as being at “the highest level of criminality … that of the instigator, the organiser, the planner and the financier”.[6] The sentencing judge found that although your physical participation was small, you were “the brains” and moving force in the venture. He found that you did your best to remove yourself as far as you could from the incriminating conduct by recruiting others who undertook the necessary physical activities.[7] The sentencing judge said of you: “He was the principal. It was his illegal enterprise … [he] was a person exploiting and using others to make a substantial profit”.[8]
[6][2006] VSC 119 at [110].
[7][2006] VSC 119 at [79].
[8][2006] VSC 119 at [80]. There was no challenge to any of the sentencing judge’s findings of fact on the appeal: [2010] VSCA 11, at [47]-[50], and see also [62]-[63].
When you were arrested and charged with that Commonwealth cocaine importation offence on 24 August 2001, you were also charged with a number of drug offences under Victorian law.[9] These Victorian charges arose out of a police drug operation known as Kayak. You have never been tried for alleged offences relating to the Kayak matter, and you never will be as these are among the charges which have been discontinued. I mention them because you were released on bail in respect of both the Kayak matters and the Commonwealth cocaine offence in September 2001. Bail was revoked on appeal and you went back into custody, but you successfully obtained bail again in September 2002 on conditions which included a $1 million surety.[10]
[9]See: DPP v Antonios Mokbel [2001] VSC 403 at [2] and [6], and chronology annexed to written Prosecution Submissions on Plea, tendered as exhibit P3.
[10]See: DPP v Antonios Mokbel [2001] VSC 403 and Mokbel v DPP (No 3) [2002] VSC 393, and chronology annexed to written Prosecution Submissions on Plea (P3). The surety, Renate Mokbel, Mokbel’s sister in law, was ordered to be imprisoned for two years in default of payment after Mokbel absconded in 2006. See: Renate Lisa Mokbel v DPP [2007] VSCA 195.
The first offence in time to which you pleaded guilty before me was committed between 1 February 2005 and 15 August 2005. The offence is trafficking in MDMA in a quantity not less than a large commercial quantity. The relevant police operation is called Quills.
At the time that offence was committed:
·you had served a term of imprisonment in 1992 (and you had spent time in custody in 1998 on the conviction which was quashed);
·you were on bail in relation to the Commonwealth offence of being knowingly concerned in the importation of cocaine, which was an offence you had committed in late 2000 and an offence of which you were eventually convicted in March 2006; and
·you were also on bail in relation to the Kayak matters.
At the relevant time the threshold for a large commercial quantity of MDMA (mixed) was one kilogram. The amount produced in the activities the subject of this offence was in excess of 30 kilograms.
In brief summary, what occurred was the following.[11]
[11]The circumstances are set out in detail in the Prosecution Opening (Facts) on Plea Operations Quills and Orbital, tendered on the plea as exhibit P1.
In 2004 you went to the premises of a company which manufactured general cleaning products named Chemical Image Pty Ltd pretending to be a bricklayer who needed chemicals to clean bricks. You formed a relationship with the director of that company, [X], and an employee, [Y]. You bought chemicals from them, paying grossly inflated prices. The chemicals you acquired were legal, but could be used in the manufacture of MDMA and amphetamine related substances.
By about February 2005 the association between you and [X] had reached the point where an associate of yours acting on your behalf installed a pill press at the Chemical Image factory. Thereafter MDMA pills were pressed at that factory using powder supplied by you. After problems with that first pill press, at your instigation [X] purchased a second pill press using cash supplied to him by you. [X and Y] became large scale manufacturers of MDMA pills for you. Later, a third pill press was purchased which was operated at a suburban garage by a person recruited by [X and Y] with your approval.
Somewhere between several hundred and 3,000 tablets were produced on the first pill press. At least 40,000 tablets were produced on the second, and in excess of 65,000 on the third. Thus, the total number of tablets produced exceeded 100,000.
Whilst this MDMA pill manufacturing enterprise was underway, in June 2005 you undertook a series of dealings with two persons who you believed to be potential suppliers of MDMA from international sources, but who were in fact undercover officers of the Australian Federal Police. These dealings led to the second charge to which you pleaded guilty before me. That offence is the Commonwealth offence of urging the importation of a commercial quantity of MDMA. The relevant police operation is called Orbital.
The amount which you ordered and sought to import was 100 kilograms of MDMA for a price of 800,000 euros. The threshold for a commercial quantity at that time was .5 of a kilogram.
On 13 July 2005 you left a voicemail message on the message bank of one of the mobile phone numbers given to you by the undercover operatives saying that you were “not interested in your project”. You subsequently maintained to police that you had never intended going through with any arrangement to import the ecstasy, and you advanced a story as to why you had met with the undercover operatives and encouraged them to import the ecstasy powder. Your claim that you had never intended to go through with the arrangement, and the story advanced by you to the police to explain your actions, were false.
On 25 October 2005 you were arrested by the Australian Federal Police in relation to the Orbital matter. When arrested you had $40,867 cash inside your carry bag and six mobile phones in your possession. Like the Quills offence, you committed the Orbital offence whilst on bail for Commonwealth and State drug charges.
You were in custody from your arrest on 25 October 2005 until you were released on bail on the Orbital matter on 29 November 2005. On 23 November 2005 you had been granted bail by a magistrate.[12]
[12]See: [2006] 14 VR 405 at [8], and chronology annexed to written Prosecution Submissions on Plea (P 3).
In February and March 2006 you were on trial in this Court for the cocaine importation offence which you had committed in late 2000.
On Monday 20 March 2006 you failed to appear at your trial. The trial continued and you were found guilty in your absence. A warrant was issued for your arrest. Bail on your other outstanding matters was revoked.
On 31 March 2006 you were sentenced for the cocaine importation offence to the term of imprisonment (12 years with a non-parole period of 9 years) to which I have already referred.
You lived in hiding within Victoria from the time when you absconded from your trial until October 2006 when you were transported across Australia by road to Fremantle. Persons assisting you arranged for a yacht to be purchased in Sydney, for a crew to be recruited, for the yacht to be transported by road to Fremantle, and for the yacht to be readied for long distance ocean sailing. You left Australia on that yacht in November 2006 and arrived in Greece in December of that year where you lived until you were arrested on 5 June 2007.
Many people assisted you in this endeavour; some of whom were also involved in drug trafficking activities, some of whom were not. Ten people have been convicted and sentenced for offences they committed in assisting you to evade capture, flee the country, and live in hiding overseas.[13] Your flight and your maintenance were very costly, and were largely if not wholly funded by the proceeds of your drug trafficking.
[13]Those not also convicted of related drug trafficking are: Nissirios [2009] VSC 129, Warfe [2009] VSC 129, B Pantazis [2011] VSC 54, Y Zeidan [2009] VSC 137, E Zeidan [2009] VSC 137, F Pantazis [2011] VSC 629. Those also convicted of related drug trafficking are: Mansour [2008] VSC 226, Rizzo [2009] VSC 17; [2011] VSCA 146, Elias [2011] VSC 423, Issa [2009] VSC 633.
The final offence in time to which you pleaded guilty before me is trafficking in methylamphetamine in a quantity that was not less than a large commercial quantity between 5 July 2006 and 5 June 2007.
The police operation referrable to this offence is called Magnum. In brief summary, what occurred was the following.[14]
[14]The circumstances are set out in detail in the Prosecution Opening (Facts) on Plea in relation to Operation Magnum, tendered as exhibit P2.
Whilst in hiding after absconding from your trial, whilst making arrangements to flee the country, and whilst living in Greece, you conducted a large scale methylamphetamine manufacturing and distribution enterprise. You performed few of the physical activities yourself. Given the fact that you were then in hiding or overseas, that was perhaps inevitable.
Many others who played a role in this enterprise have been convicted of serious offences and have been sentenced for them. Among the more significant of your associates in this enterprise were Joseph Mansour and Bartholomew Rizzo. They are each now serving terms of imprisonment.[15] Mansour and Rizzo undertook many of the necessary activities themselves, but they also delegated activities to others. Rizzo maintained computerised accounts recording the financial transactions of their component of the enterprise, which were referred to as “the bill”.
[15]As to Rizzo see [2009] VSC 17 and [2011] VSCA 146. As to Mansour see [2008] VSC 226.
The commencement date for the offence to which you have pleaded guilty is the first date which appears in the bill.
Associates of Mansour and Rizzo who were also convicted of offences arising out of their participation in this enterprise include Robert Benedetti,[16] Christopher Ferraro[17] and Jamie Saro.[18] Others, convicted and sentenced, who were associated more directly with you, include Chafic Issa,[19] Andrew Ryan,[20] David Tricarico[21] and George Elias.[22]
[16][2009] VSC 8.
[17][2009] VSC 121.
[18][2009] VSC 569.
[19][2009] VSC 633.
[20][2009] VSC 631.
[21][2011] VSC 53.
[22][2011] VSC 423.
The way in which the enterprise was structured was that you arranged for the methylamphetamine to be manufactured and delivered to Mansour and Rizzo. Once the methylamphetamine was manufactured and delivered to Mansour and Rizzo an entry was raised in the bill in your favour of $45,000 or $47,500 per pound. Mansour and Rizzo would then on-sell the methylamphetamine at a profit for themselves. In that way Mansour and Rizzo accumulated a debt to you for what was, in substance, the wholesale supply of methylamphetamine.
During the period 5 July 2006 to 5 June 2007 the total amount Mansour and Rizzo incurred and owed to you was in excess of $4,000,000. Money owed was either paid directly to you or at your direction and for your benefit. At least 41 kilograms (90 pounds) of “wholesale” methylamphetamine was manufactured and distributed to Mansour and Rizzo. The relevant threshold for a large commercial quantity at the time was 2.5 kilograms (mixed).
The activities of those involved were highly organised and structured. Mansour and Rizzo referred to the enterprise as “the company”.
At one point in 2007 a person involved in the drug trafficking enterprise began cooperating with police. As a result of that cooperation police put in place telephone intercepts which enabled them to monitor calls being made by Mansour and Rizzo. There are many phone calls involving you which were monitored and recorded between 14 May 2006 and 5 June 2007.
You were the principal or head of this enterprise. It was your business. You engaged the most senior personnel, and directly and personally issued orders and directions to them.[23]
[23]Exhibit P2, para.4.
The telephone intercepts reveal two noteworthy matters in this regard. First, you conducted yourself as a manager. You delegated. You gave advice. You encouraged cooperation. You sought to maintain morale. Ultimately, you determined what was to be done, in particular about payments and the distribution of money. Second, only certain of the participants dealt directly with you. You gave instructions to them and they carried them out themselves or passed them on to others. Those who did deal directly with you displayed respect for you, and loyalty to you. They looked to you to solve the problems which arose. It was your capacity to manage and co-ordinate, and to command respect and loyalty, which enabled these criminal activities to succeed, for a time.
On your plea counsel on your behalf submitted that an “agreement” had been made with the Director of Public Prosecutions (DPP) as to the “minimum term” to be imposed, and that I, as the sentencing judge, cannot, or should not, sentence outside the terms of that agreement unless satisfied that “exceptional circumstances” exist. It was also submitted that I should impose a non-parole period of less than that which had been agreed with the DPP because of a heart attack which you have suffered whilst in custody and because of a successful appeal on sentence by one of your co-offenders, Rizzo.
The “agreement” in question is recorded in an email from the then DPP to your senior counsel, a copy of which is an attachment to the written submissions made on your behalf on the plea.[24] The email advises that the Crown would accept pleas of guilty in the Magnum, Orbital and Quills cases and that all other current prosecutions would be discontinued. It goes on to state:
“The Crown’s effective sentencing range for the minimum term will be 20 to 23 years. This takes into account Mokbel’s current Commonwealth sentence. The range is offered in accordance with the principles in The Queen v MacNeil-Brown. The Crown and the defence agree that the minimum term should fall within this range and that the range will be unaffected by any interpretation of the facts contended for by the defence.”
[24]Outline of Plea Submission, tendered as exhibit D1.
I reject the submission made that I cannot sentence outside the terms set out in the email unless satisfied that exceptional circumstances exist. What the Crown “agreed” upon was to make a particular submission in accordance with legal principles which are set out in the decision of the Court of Appeal in R v MacNeil-Brown.[25] Such submissions are an aspect of the prosecutor’s duty to assist the court.[26] They are submissions, and are no different from any other submission that might be made in a criminal or civil matter.[27] The function of a Crown submission as to sentencing range is to promote consistency and reduce the risk of appellable error; it has no other proper purpose.[28]
[25](2008) 20 VR 677.
[26](2008) 20 VR 677, at [2].
[27](2008) 20 VR 677, at [41].
[28](2008) 20 VR 677, at [4], [11] and [42].
No judge is bound to accept counsel’s submission on any point, including a Crown submission as to sentencing range. The sentencing judge is entirely free to come to a different conclusion and is indeed bound to do so if in his or her judgment a sentence outside the nominated range is called for. The weight to be given to a Crown submission on sentence is to be judged according to the merits of the argument.[29] The task of the sentencing judge where the Crown makes a submission as to sentencing range remains the same as it is where no such submission is made. The judge must evaluate the submissions, consider the law and the facts, and make a decision.[30] Crown submissions can only ever be indicative of the prosecution’s view of the limits within which the sentencing discretion may lawfully be exercised, and they can never be more than an approximation.[31]
[29](2008) 20 VR 677, at [45].
[30](2008) 20 VR 677, at [47].
[31](2008) 20 VR 677, at [5] and [69].
In a particular case the prosecution submission as to sentencing range might be important.[32] It is important in this case. The practical benefit to the community by reason of your guilty pleas, what is often called the utilitarian value, is a significant mitigating factor in this case. The DPP is in a good position to assess that issue and, for that reason, the “agreement” he concluded as to sentencing range on the non-parole period is an important consideration to take into account. It is no more than that, however. I reject the submission that I am in some sense bound by what has been agreed between the prosecution and the defence.[33]
[32]See: R v Williams [2008] VSCA 95.
[33]The suggestion that the sentencing judge is bound by any such agreement is inconsistent with R v MacNeil-Brown, as the Court of Appeal has repeatedly emphasised, see: Campisi v The Queen [2010] VSCA 183 at [20]-[21]; Hilder v The Queen [2011] VSCA 192 at [30]-[32]; Bogdanovich v The Queen [2011] VSCA 388 at [93]; and, most recently, Talbot v The Queen; Dux v The Queen [2012] VSCA 118.
Your health and the sentences imposed upon co-offenders, including Rizzo after his appeal, are also relevant matters.
On 26 February 2012 you suffered a mild heart attack in custody. You were promptly taken to hospital and a stent was surgically inserted. You have a family history of coronary heart disease. Your own father died suddenly of a heart attack in his early 50’s.[34]
[34]The report of Dr Jelinek says he died aged 54. Ms Northey’s report says 53.
On the plea a report was tendered by the consultant cardiologist, Dr Michael Jelinek, and he also gave oral evidence.
Dr Jelinek said that you have coronary heart disease and that as a result you are more likely to have another cardiac event than others of your age. In terms of your prognosis, your family history and the circumstances of your incarceration are negative factors. The circumstances of your incarceration are negative because Dr Jelinek is of the opinion that there is the risk that you may slide into depression. Depression and social isolation are risk factors for the development of coronary heart disease. On the positive side, Dr Jelinek said: “Mr Mokbel is very positive in terms of his diet, exercise, non-smoking and biomedical coronary risk factors”. He said that you are taking appropriate medication and you are doing as much as you can in jail to reduce your risks.
Dr Jelinek expressed the opinion that, on average, a person with heart disease of your age has a life expectancy of 24 years, which is 11 years less than the life expectancy of a person without that condition. He expressed the opinion that your life expectancy might be less than 24 years given your family history and your risk of sliding into depression, although in his oral evidence he also accepted that the positive aspects of your circumstances to which he had referred also meant that it could be more.
Evidence was tendered concerning access to treatment whilst in prison which contained elements that are positive and elements that are negative. Affidavits from Brendan Money, who is the director of Sentence Management Branch of Corrections Victoria, and from your instructing solicitor, Grace Morgan, were tendered dealing with this and other matters. Dr Jelinek referred to potential problems with treatment in gaol.
On the positive side, medical staff (doctors or nurses) are on duty at the prison much of the time, and health service officers trained in first aid to level 3 are on duty all of the time. All prison officers are trained in first aid to level 1. You are monitored when out of your cell and there is a distress button in your cell. Dr Jelinek described the medical response to the heart attack you suffered in February as being very good. On the other hand, in your present circumstances you are not monitored in your cell at night and there is the risk that you could suffer a cardiac event of some kind and be unable to activate the distress button or otherwise summon help. Dr Jelinek also said that high security measures such as shackling could inhibit timely treatment.
It was submitted on your behalf that your ill health is a factor that mitigates punishment because imprisonment will be a greater burden on you by reason of your state of health, and because there is a serious risk that imprisonment will have a gravely adverse effect on your health.[35]
[35]R v Smith (1987) 44 SASR 587, R v Williams [2008] VSCA 95, at [12], and R v RLP [2009] VSCA 271, at [32]-[39].
I accept that imprisonment will be a greater burden on you because you have coronary heart disease. You will have to be careful about your diet and about your exercise regime. It is likely to be an additional source of anxiety for you.
I am not persuaded that your access to timely and appropriate treatment will be more restricted in prison than it would be outside of prison.
I referred previously to the evidence of Ms Northey. Ms Northey referred to the conditions in which you are incarcerated. One feature of those conditions is social isolation. Ms Northey expressed the opinion that whilst you have shown a remarkable degree of psychological resilience to date, you are experiencing a range of physical manifestations of anxiety. This evidence, combined with that of Dr Jelinek, leads me to conclude that your incarceration does represent a serious risk of a gravely adverse effect on your health because depression and social isolation are risk factors for the development of coronary heart disease.
It was also put on your behalf that your state of health is relevant because the court ought to be careful not to impose a sentence that leads to the destruction of any reasonable expectation of useful life after release. It was submitted that in your case your life expectancy is now 24 years, or less, and that that is a factor which should be taken into account.
Age and health are relevant to the exercise of sentencing discretion, but neither are determinative of the amount of a sentence. Depending upon the circumstances, it may be appropriate to impose a non-parole period which will have the effect that the offender may well spend the whole of his remaining life in custody, but that is a weighty consideration for the sentencing judge when that position does arise.
In your case your health is relevant in the way I have explained and it is also a relevant matter that you do now have a reduced life expectancy. That circumstance cannot justify the imposition of an inappropriate sentence. It is, however, a matter which I do take into account.
An important mitigating factor relied upon on your behalf is your guilty pleas. It was submitted on your behalf that your pleas of guilty were entered at an early stage, that they have the highest possible degree of utilitarian value, that they evidence a desire to facilitate the interests of justice, and that they evidence remorse.
I do not accept that your pleas of guilty were early pleas, or are to be properly characterised as being pleas entered at the “first realistic opportunity”, to use the words of your counsels’ submission. I do not consider them to be late pleas either. There were a number of proceedings pending against you upon your return to Australia and in particular there were two charges of murder. It was appropriate for those matters to be dealt with first. But after both of the murder charges had been dealt with, considerable time elapsed while you pursued applications for a permanent stay, and while other interlocutory proceedings took place.
I accept that your pleas of guilty have a high utilitarian value. If you had not pleaded guilty there would have been at least two long and complicated criminal trials which would necessarily have entailed the expenditure of very considerable resources. In that context, however, the fact that after pleading guilty you sought leave to alter your pleas is of relevance. The time and resources expended on that application, which were significant in isolation but modest compared to what would have been involved in the criminal trials themselves, does reduce to some extent, not to a great extent but to some extent, the utilitarian value of your pleas.
In all but the exceptional case, an offender who pleads guilty is entitled to a discount for the objective utilitarian benefit to the community of avoiding a criminal trial. A guilty plea is also relevant to what might be termed subjective mitigating factors concerning an offender, being remorse, acceptance of responsibility, and a desire to facilitate the course of justice.[36] On these subjective factors, in your case reliance was placed on your guilty pleas, on Ms Northey’s evidence, and on your conduct in prison.
[36]Phillips v The Queen [2012] VSCA 140.
You have expressed remorse to Ms Northey and she is of the opinion that that expression of remorse was genuine. You have told her that you would like to apologise to the community and to the courts and that you recognise that dealing in drugs was wrong and that it caused damage to a lot of people.
In my view your attempt to alter your pleas is a factor which weakens your position on remorse. In the course of that application you expressly disavowed acceptance of responsibility for these offences. More importantly, I am unpersuaded of your remorse because of the nature and duration of your offending and in particular because of the circumstances of the Magnum offence.
You have offended over a number of years. You were not deterred from that course even though you had previously spent time in jail. You were not deterred by being arrested and charged. You were not deterred by the imposition of bail conditions. You were not deterred by your conviction and sentence. Your offences and the Magnum telephone intercepts reveal to me that drug trafficking was your business. It was your area of expertise. It was your career. Things have not turned out as you planned, and no doubt you now regret that, but to describe such feelings of regret as remorse is, I think, misconceived.
Notwithstanding those conclusions, your expressions of contrition are in themselves something to be taken into account in your favour. Those statements and the other matters relied upon are insufficient to enable a finding of genuine remorse, acceptance of responsibility and a desire to facilitate the course of justice.
One matter particularly relied upon on your behalf is the circumstances of your incarceration.
Since your return to Australia you have been in custody in the Acacia unit at Barwon Prison. The Acacia unit is a high security unit. Those in custody in that unit are subjected to what I think can fairly be described as a harsh regime. It is not harsh because of physical hardship or deprivations. It is harsh because it is confined and socially isolated.
You may be reclassified after sentence, or at some later date, but given your history and your associations, you may well continue to serve your sentence under a more restrictive regime than is usual. There is a real possibility that you will continue to be held in very restrictive circumstances for an indefinite period. In my view that is a significant mitigating factor in your case. Prison for you will be more burdensome than it is for others.
I have had regard to current sentencing practice.[37]
[37]I have considered relevant sentencing statistics and sentences in what were submitted to be relevantly comparable cases: DPP v CPD (2009) 22 VR 533 at [77]-[78].
I have reviewed the sentencing statistics in Sentencing Snapshot No 102 (June 2010) “Trafficking in a Large Commercial Quantity of Drugs”, mindful of the need for caution in relation to such statistics: R v Rowlands [2007] VSCA 14 at [13] and Russell v The Queen [2011] VSCA 147 at [42].
Particular sentences referred to were R v Ahmed [2007] VSCA 270, Samac v The Queen [2011] VSCA 171, Chandler v The Queen; Paksoy v The Queen [2010] VSCA 338, R v D’Aloia [2006] VSCA 237, R v Duncan [2006] VSCA 239, Rizzo v The Queen [2011] VSCA 146, DPP v Johnson, Zerna and Bugjea [2008] VSC 330, DPP v Barbaro & Anor[2012] VSC 47 and Teng, Lam, Tan and Wong v The Queen [2009] VSCA 148. I have considered all the sentences referred to, mindful of the proper use of such sentences: DPP v OJA, WBA and EBD [2007] VSCA 129 at [30]; Hudson v The Queen [2010] VSCA 332 at [28]-[31]; Likiardopolous v The Queen [2010] VSCA 344 at [159].
I have had regard to the sentences imposed upon your co-offenders in relation to the Quills matter and the Magnum matter,[38] including the reduced sentence imposed on Rizzo after appeal. Whilst those sentences are relevant, in my view your offending was more serious than any of them. You were the leader of the relevant criminal organisation in relation to both the Orbital and Quills matters and the Magnum matter and you bear significant additional responsibility because of that circumstance.
[38]A table of the sentences imposed on the co-offenders was annexed to the written Prosecution Submissions on Plea (P3).
On the two State offences, Quills and Magnum, you must be sentenced as a serious drug offender.[39] That means that I must regard the protection of the community as the principal purpose for which sentence is imposed.[40] It also means that the terms of imprisonment I impose on the Quills and Magnum matters must, unless otherwise directed, be served cumulatively on any other sentence.[41] I direct that the fact you are sentenced as a serious drug offender be noted in the records of the Court.
[39]Sentencing Act 1991 (Vic) s 6B.
[40]Sentencing Act 1991 (Vic) s 6D. It was not contended that a disproportionate sentence was necessary in order to achieve that purpose in this case.
[41]Sentencing Act 1991 (Vic) s 6E.
The Quills offence was committed whilst on bail for both the cocaine importation matter and the Kayak matters. That circumstance also means that a term of imprisonment imposed for that offence must, unless otherwise directed, be served cumulatively on any other sentence.[42]
[42]Sentencing Act 1991(Vic) s 16(3C).
The Magnum offence was not committed whilst on bail because bail had been revoked after you had absconded from your trial and a warrant for your arrest had been issued. The fact that that offence was committed after absconding from your trial, after breaching your bail, and after you had been convicted and sentenced for a serious drug offence is a significant factor.
I accept the submission made on your behalf that the need for specific deterrence is reduced in your case given the length of the term you will inevitably serve, but in my view there remains a need for specific deterrence. Your history and the nature of your offending require that conclusion.
General deterrence is obviously a matter of considerable importance in your case, as is denunciation.
In relation to rehabilitation, I think there are prospects for your rehabilitation. Ms Northey is of that opinion, and is also of the view that that process of rehabilitation has begun. Your history is a significantly negative factor in this context, and any assessment of your prospects of rehabilitation must necessarily be very guarded.
I am mindful of the need to have regard to the principles of totality, taking into account the sentence you are already serving for the cocaine importation offence. But I must not allow considerations of totality to undermine the legislative policy inherent in the relevant provisions concerning cumulation. [43]
[43]R H McL v The Queen (2000) 203 CLR 452, at [76].
I accept the submission put by both your counsel and counsel for the DPP that the time you spent in custody in Greece falls within s 18 of the Sentencing Act 1991 (Vic) and I will make a declaration as to pre-sentence detention accordingly.
The time you spent in custody in 1998 on the drug related conviction which was quashed in the Court of Appeal is not relevant because it reveals wrongdoing by you; it does not. It is a part of your personal history, but it is relevant because it is time served in jail which should not have been served. I accept that on the current state of the law I must take that into account,[44] and I do so.
[44]Warwick v The Queen [2010] VSCA 166, Karpinski v The Queen [2011] VSCA 94, and Vella v The Queen [2011] VSCA 126.
The interaction of Commonwealth and State legislative sentencing regimes is potentially complex in your case. But before addressing the individual sentences, I will set out my important conclusions.
I have given very serious consideration to imposing a life sentence on the Magnum offence. Your commission of that offence revealed, in my view, arrogant contempt for the law, and an incorrigible determination to persist in serious business-like drug trafficking regardless of the circumstances or possible consequences for yourself and others. But in the end I have been persuaded by the submissions made by counsel that I ought not do so. In that respect I am particularly influenced by two factors. The first is that the utility value of your guilty plea should be reflected in the sentence itself and not just the non-parole period. The second is that I cannot speculate as to your prospects of parole and must proceed on the basis that you may serve the entire sentence.
I will fix an effective total non-parole period of 22 years. In fixing that non-parole period the most important factor is the utilitarian value of your guilty pleas, but I also take the other mitigating factors into account.
On the federal Orbital offence, I sentence you to 6 years’ imprisonment. I direct that that federal sentence is to commence on the expiry of the non-parole period on the existing federal sentence you are serving for cocaine importation.[45]
[45]Section 19(1) Crimes Act 1914 (Cth).
I fix a new non-parole period in relation to the federal Orbital sentence and the federal cocaine importation sentence you are already serving of 12 years in total,[46] so that your total federal non-parole period is increased by 3 years and your total federal sentence is also increased by 3 years.[47]
[46]Section 19AD Crimes Act 1914 (Cth).
[47]Counsel for Mokbel confirmed that they had explained the matters required to be explained under s 16F(1) Crimes Act 1914 (Cth).
On the State Quills offence I sentence you to 13 years’ imprisonment. I direct that that sentence commence 4 years from today.[48]
[48]Section 16(4) Sentencing Act 1991 (Vic).
On the State Magnum offence I sentence you to 20 years’ imprisonment. I direct that that sentence commence 10 years from today.
I make orders for concurrency so far as it is necessary to do so to give effect to these sentences and the respective commencement dates I have fixed.[49]
[49]Sections 6E and 16(3C) Sentencing Act 1991 (Vic).
As to the non-parole period on the State sentences, I order that the prisoner is not eligible for parole on the State sentences I have imposed until the expiration of 22 years from today, less the period of pre-sentence detention under s 18 of the Sentencing Act 1991 (Vic). I declare that the pre-sentence detention pursuant to s 18 of the Sentencing Act 1991 (Vic) is 347 days. That is, 347 days of the non-parole period on the State sentences has already been served
I intend by these federal and State sentences to impose a total effective sentence of 30 years’ imprisonment with a total effective non-parole period of 22 years.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state that if you had not pleaded guilty I would have sentenced you to a total effective sentence of life imprisonment without parole.[50]
His Honour invited further submissions on the form of the sentences and the orders. After hearing further submissions, the sentences pronounced and the orders made and entered in the records of the Court were as follows:
[50]See R v Lowe [1997] 2 VR 465.
The Orbital offence: To be imprisoned for a term of 6 years commencing on the expiry of the non-parole period on the existing federal sentence being served for cocaine importation. Fix a new federal non-parole period of 6 years 9 months and 19 days commencing on 3 July 2012 in respect of the Orbital offence and the federal cocaine importation sentence currently being served.
The Quills offence: To be imprisoned for 13 years.
The Magnum offence: To be imprisoned for 20 years.
Direct that 7 years of the sentence on the Magnum offence be served concurrently with the sentence on Quills, making a total effective State sentence of 26 years.
Direct that the State sentences commence 2 years 9 months and 16 days before expiry of the new federal non-parole period.
Fix a non-parole period on the State sentences of 18 years (commencing on commencement of those sentences, being 2 years, 9 months and 16 days before the expiry of the new federal non-parole period).
Declare pre-sentence detention of 347 days.
Sentenced as a serious drug offender in respect of the State offences.
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