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.
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…
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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Details
AGLC
R v A Mokbel (sentence) [2012] VSC 255
Case
[2012] VSC 255
Decision Date
CaseChat Overview and Summary
In this case, the respondent, Mokbel, was convicted of two offences of trafficking in a large commercial quantity of a dangerous drug and one offence of incitement to import a commercial quantity of a dangerous drug. The respondent had been granted bail at the time of his conviction and committed the offences while on bail. The matter came before the Court of Appeal to determine the appropriate sentence for the respondent. The appeal concerned the weight to be given to an agreed submission made by the Crown regarding the appropriate sentence. The Crown submitted that the sentence should be commensurate with the seriousness of the offending and the need to deter the respondent and others in similar circumstances from engaging in such conduct.
The court considered the principles of sentencing in the context of serious drug offences. It was acknowledged that the respondent was a serious drug offender who committed these offences while on bail for other serious drug-related offences. The court also noted the need for general deterrence, particularly given the respondent's position in the drug trade. The court determined that the Crown's agreed submission provided a useful guide for determining an appropriate sentence. It held that the agreed submission should not be given exclusive or overriding weight but should be given significant weight in the sentencing process. The court ultimately decided that the appropriate sentence should reflect the agreed submission, taking into account the seriousness of the offending and the need for general deterrence.
The court imposed a total effective sentence of 30 years imprisonment with a total effective non-parole period of 22 years. The court found that this sentence was appropriate given the respondent's offending history, the seriousness of the current offences, and the need for general deterrence. The court also noted that the sentence would provide sufficient punishment and deterrence while allowing for the possibility of rehabilitation. The appeal was dismissed, and the sentence imposed by the primary judge was affirmed.