R v Mokbel
[2006] VSC 119
•31 March 2006
| Revised | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1502 of 2001
| THE QUEEN |
| v |
| ANTONIOS SAJIH MOKBEL |
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JUDGE: | GILLARD J | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 31 March 2006 | |
CASE MAY BE CITED AS: | R v Mokbel | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 119 | |
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CRIMINAL LAW – Sentence – Knowingly concerned in prohibited import, cocaine, contrary to s.233B(1)(d) of Customs Act 1901 – Principal offender – Financier.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Parsons SC | Commonwealth Director of Public Prosecutions |
| For the Prisoner | The prisoner was not present and was not represented by counsel or solicitors. |
HIS HONOUR:
The prisoner, Antonios Sajih Mokbel, after a long trial, was found guilty by the jury of being knowingly concerned in the importation into Australia of a prohibited import, a narcotic substance, namely cocaine, which arrived in Australia on 6 November 2000, contrary to paragraph 233B(1)(d) of the Customs Act 1901.
The circumstances of his involvement in the importation were alleged to have taken place between 13 October 2000 and 12 November 2000. It was a Commonwealth offence. It now falls on the Court to sentence the prisoner.
The task of the Court is to determine the facts consistent with the jury's verdict and, applying the relevant principles, to determine in the exercise of the Court's discretion, what is a proportionate and appropriate sentence in all of the circumstances.
The prisoner is not present in Court this day.
On Thursday 16 March 2006, which was the 27th day of the hearing, the defence closed their case and the learned Crown prosecutor, Mr Parsons SC, commenced his address to the jury. On the following day he continued his address.
On the morning of Monday 20 March 2006, the Court was told that the prisoner had not been seen since 5.00pm on the previous Sunday night. The Court issued a warrant for his apprehension. He has not been seen since. At the moment his whereabouts are unknown. The trial proceeded in his absence.
His counsel formed the view that they should withdraw from the trial and they did so prior to the Crown prosecutor continuing his address. The prisoner was convicted by the jury in his absence. His counsel did not attend the plea hearing.
The first question for determination is whether the Court has the power to continue the proceeding, bringing it to its conclusion by sentencing the prisoner in his absence.
The authorities establish that the Court may, in the absence of the accused in appropriate circumstances, continue with a trial, including sentencing. The Court must carefully consider the competing interests of ensuring that a prisoner is given the opportunity to present material relevant on a plea leading to sentence, and the public interest that the administration of justice should not be unnecessarily impeded.
Counsel for the defence did not accept the invitation to attend the plea hearing and accordingly, did not seek to put any submissions.
Where the evidence leads to the conclusion that the accused has absconded, then the Court may continue the trial and impose sentence in his absence.
The evidence before the Court is that it is believed that the accused voluntarily absented himself from the trial. For reasons which I have already stated, I continued the trial. By the time the accused absented himself from this trial, his presence was not vital to the conclusion of the proceeding.
I am proceeding to finalise this criminal proceeding on the basis that the accused has voluntarily removed himself from this trial. There are a number of authorities which support the course I am taking. I refer to R v Robert Jones No. 2,[1] R v Cornwell,[2] R v McHardie & Danielson,[3] R v Hayward[4] and Flavel v Van Reesema.[5]
[1](1970) CAR 41.
[2](1972) 2 NSWLR 1.
[3](1983) 2 NSWLR 733.
[4](2001) QB 862.
[5](2005) SASC 418.
There is no doubt in my view that there is a well-established principle that the Court may in its discretion proceed with sentencing where the prisoner voluntarily absents himself from the trial.
It is now some 11 days since a warrant was issued for his arrest. He has not been arrested.
I see no reason not to proceed on the basis of conclusionary evidence given by the informant in this case, Mr Ragg, that the prisoner has absconded.
This is a Commonwealth prosecution. The Commonwealth Crimes Act 1914 ("the Crimes Act") contains provisions relating to sentencing, imprisonment and release of Federal offenders. See Part 1B of the Act. A "federal offender" is defined by s.16 as meaning "a person convicted of a federal offence." The prisoner is a federal offender. Accordingly, the provisions of that Crimes Act apply to this sentencing process. This Court is exercising federal jurisdiction. By reason of s.68 of the Judiciary Act 1903, State law also applies in respect to persons charged with a Commonwealth offence. The State sentencing laws also apply, see Putland v R.[6]
[6](2004) 218 CLR 174 at p.181.
However, the relevant laws of the State only apply insofar as they are not inconsistent with Commonwealth law. Part 1B of Crimes Act does not cover the field. In Putland v R,[7] Chief Justice Gleeson said:
"Part 1B of the Crimes Act deals with the sentencing, imprisonment and release of federal offenders. Division 2 (ss16(A)-(D)) deals with general sentencing principles. In particular ss.16(A) and 16(B) refer to matters to which the court, sentencing a person for a federal offence, must have regard. The actual decision in El Karhani (1990) 21 NSWLR 370 was that those matters are not comprehensive and that Part 1B is not a code. In particular it makes no reference to general deterrence and that is so obviously relevant to sentencing that the statement of matters to which regard must be had is manifestly incomplete. Division 3 includes ss.16G concerning a matter of notorious difficulty that arose from the differences between the States and Territories resulting from what was called 'truth in sentence' legislation. That was a matter singled out in El Karhani as in need of reconsideration. Divisions 4 and 5 deal with fixing non-parole periods in related matters."
[7]supra at p.181.
Gummow, Callinan and Heydon JJ delivered separate judgments and agreed. Part 1B of the Crimes Act does not cover the field so as to exclude provisions of the State law relating to sentence that otherwise might apply. Also, the principles laid by the Courts in this State concerning sentence apply insofar as they have not been excluded by the Commonwealth Act. Further, it is noted that Part 1B of the Commonwealth Act does pick up a number of State sentencing options, for example, s.20AB(1) concerning Community-Based Orders.
The application of two different statutory regimes means that the Court must proceed with considerable care to ensure that the relevant statutory provisions are taken into account. An example of where a court failed to do so is the decision of R v Li,[8] where the learned trial judge overlooked the requirements of s.16G of the Commonwealth Act.
[8](1998) 1 VR 637.
I interpolate to observe that s.16G and s.19AG were repealed in January 2003, see Crimes Legislation Amendment (People Smuggling Firearms, Trafficking and Other Measures) Act 2002, item 1 of schedule 3, ss.2(1) and (4). The repeals operate in relation to a federal sentence passed after 16 January 2003 whether or not the offence was committed before that date. Section 16G was concerned with making some allowance for the absence of remissions and as a result of the repeal, the Victorian sentencing practice applies, namely that the absence of remissions is not to be taken into account. Sections 16G and 19AG do not apply to the sentence in this proceeding.
In this State it is well established that sentencing is not the result of some mechanical process. It involves the exercise of a discretion. The result is arrived at by an instinctive synthesis which takes into account the various purposes for which sentences are imposed, see R v Storey[9] and Wong v R.[10]
[9](1998) 1 VR 359 and 366.
[10](2001) 207 CLR 574 at 611 per Gaudron, Gummow and Hayne JJ.
A judge's sentencing task was stated by the Full Court in R v Harris.[11] Justice Lowe said:[12]
"The responsibility of awarding punishment once a jury has convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and decide how serious the crime is that has been committed and how severely or how leniently he should deal with the offender. The learned judge, in forming his view of the facts, must not of course form a view which conflicts with the verdict of the jury. So long as he keeps within these limits it is for him and him alone to form his judgment of the facts. He has presided at the trial, he has seen the witnesses and he has seen how the trial has progressed and he can form his own judgment of the seriousness or other character of the offence."
See also R v Webb[13] and R v Hill.[14]
[11](1961) VR 236.
[12]at p.236.
[13](1971) VR 147.
[14](1979) VR 311-312.
In carrying out my task as the trial judge, I am not bound to take the most lenient view of the facts, see R v Harris[15] and R v Hill.[16] In reaching any conclusion, I accept that matters which are adverse to the prisoner's interest, and which are not inherent in the verdict, must be established beyond reasonable doubt. On the other hand, if there are circumstances in the prisoner's favour, it is sufficient if those circumstances are proven on the balance of probabilities, see R v Storey [17]and R v Olbrich.[18] The principles have recently been reaffirmed by the High Court in R v Cheung.[19]
[15]supra 237.
[16]supra 312.
[17]Supra.
[18](1999) 199 CLR 270.
[19](2001) 209 CLR 1
At the outset, it is necessary for the Court to determine the relevant facts consistent with the verdict of the jury. It is trite to observe that the verdict establishes that the jury was satisfied, beyond reasonable doubt, that each of the elements constituting the offence of being knowingly concerned in the importation into Australia of a prohibited import, contrary to paragraph 233B(1)(d) of the Customs Act, was established.
In order to prove the offence, the Crown had to prove, beyond reasonable doubt, five elements. The fifth element was the one that was in issue in the trial. It was clear from defence counsel's response to the Crown opening, and the way the case was conducted, that the first four elements were not in contest, namely that an importation occurred, the import was cocaine, it was a prohibited import, and it was not less than a traffickable quantity. The issue in the case was whether the prisoner was "knowingly concerned" in the importation of a prohibited import. The verdict of the jury establishes proof of that element. In my opinion, the case against the prisoner was both compelling and overwhelming. The prisoner did not give evidence at trial and indeed his version of the events was not before the Court. He preferred the well of the Court to the witness box. There was no record of interview adduced into evidence. However, there was substantial and compelling evidence of his participation in the importation. The evidence established beyond doubt that he was the principal organiser and financier of the illegal enterprise. Events relating to the importation and involvement of the prisoner in that importation occurred in the period alleged, being between 14 October 2000 to 12 November 2000. However, his involvement in the planning and preliminary arrangements went back to approximately late August 2000.
Four men and the prisoner were involved in an arrangement to then import a substantial quantity of cocaine into Australia from Mexico. Each of the persons had a part to play in the importation. Some of the participants were unaware of the involvement and identity of the other participants. The first person, whose identity will not be disclosed and who will be known as Mr U, played a central role in the organisation of the import.
He was central and pivotal to the arrangements relating to the purchasing of the cocaine. He had known the prisoner some 15 years prior to the year 2000 and in mid-2000 renewed his acquaintance. Thereafter, the prisoner and he saw each other on a regular basis and formed a friendship. Mr U and the prisoner often visited a gymnasium and trained together. Mr U's role was to make arrangements with a supplier in Mexico to send the cocaine to Australia.
I am satisfied on the evidence beyond reasonable doubt that the prisoner was the person who was responsible for the organisation of the importation. Mr U kept the prisoner informed of the steps taken. However, the prisoner was astute to ensure that his involvement was not known to others. Accordingly he left the arrangements for the actual importation to Mr U. Mr U did not disclose the prisoner's identity to other participants in the venture and the Mexican suppliers.
Mr U travelled to Mexico twice, the first time in company with another participant in the scheme, Sonny Schmidt, in August 2000. Later, Mr U in September/October travelled to Mexico and remained there for a period of time. The purpose of the visits was to arrange a supply of cocaine. Another participant in the venture was Sonny Schmidt, a well known body builder, who had contacts with persons in Mexico. He was important as the person who provided the necessary contacts and later as the person who took the purchase money to Mexico.
The purpose of the first trip was to meet a possible supplier, and the second trip was undertaken to arrange the purchase of cocaine and to arrange for a sample to be sent to Australia. A sample was sent to Australia in early October. I am satisfied that prior to the sample being sent, the prisoner discussed the import with Mr U and told him that the sample should be sent through United Parcel Service to an address in Melbourne which was a fictitious one. Unbeknown to Mr U at that stage, the prisoner had recruited Ron Cassar, who was second in charge of the United Parcel Service office and warehouse in Ascot Vale.
The latter's job was to intercept the parcel in the UPS system at the warehouse in Ascot Vale, remove the cocaine and hand it to the prisoner. It was part and parcel of his function thereafter to take steps to, in effect, “spirit away” the package or packages, as they were addressed to a fictitious addressees.
In fact the sample was sent from Mexico and arrived some time during the week after 9 October 2000. Mr U was out of Australia at this stage, returning on 14 October 2000, by which time the sample had been sent and most likely received.
I am satisfied that the prisoner received the sample of cocaine. He informed Mr U that the quality was excellent and to go ahead and arrange for a quantity of cocaine to be sent to Australia.
Mr U made the necessary arrangements. He was instructed by the prisoner to ensure that the cocaine was packed in a container or containers and sent to Australia using the UPS transport system.
Mr U took some time to make the necessary arrangements. I am satisfied that the prisoner paid most, if not all, of the money for the purchase. It was necessary for Mr U, with the assistance of others, to change the money into US bank notes.
Mr U arranged with Sonny Schmidt that the latter would travel to Mexico to deliver the large quantity of cash, and to make the arrangements for the sending of the cocaine to Australia in a package or packages addressed to fictitious addressees, using the UPS transport system.
All told, Sonny took US$37,000 in bank notes which had been converted at the time. The conversion rate for the currency at the time was .532 which meant that the amount in Australian dollars was of the order of $69,548.87.
Sonny Schmidt had earlier sent A$8,500 to Mexico, which had been supplied by the prisoner to Mr U. In addition, the prisoner paid for the expenses of Mr U when he travelled to Mexico, by providing him with $5,000 for each of the two trips. The prisoner also provided expenses associated with Sonny Schmidt's trip, namely, the paying for the airline ticket. The latter would have been in the order of approximately A$3,000. All of these sums were paid in cash. The prisoner, through a friend, Mark Lanteri, also sought to send to America the sum of A$9,500.
In summary, prior to the importation, the prisoner's involvement was:-
· Discussing with and advising Mr U on the arrangements to effect the importation into Australia of the cocaine from Mexico;
· Paying for the expenses of the trips of Mr U, the airline ticket for Sonny Schmidt to Mexico on 26 October 2000, and payment of most, if not all, of the cost of the cocaine, which was in the order of A$78,048.87;
· Recruiting Ron Cassar to carry out the important role in intercepting the cocaine and removing it from the packages;
· Providing advice and assistance to Mr U in relation to the latter's attempts to arrange the importation;
· Advising how the importation should be effected, with particular reference to the UPS system of transport into this country;
· Arranging with a known drug trafficker to purchase the cocaine from him and on-sell it.
Sonny Schmidt left Australia on 26 October 2000, travelled to Mexico, made contact with suppliers there and paid the money. He returned to Melbourne on the morning of Thursday 2 November 2000. He was picked up at the airport by Mr U. Mr U then reported to the prisoner that the purchase had been effected.
On Friday 3 November 2000 in Mexico (Mexico time), two packages containing artefacts were placed in the UPS transport system in Mexico by a man called Victor. The packages contained nearly three kilograms of white powder. Later analysis revealed that the white powder comprised 1,933.4 grams of pure cocaine. The packages contained glass candles with wax and Mexican handicrafts and artefacts, and were addressed to two false addresses in Carlton and Footscray.
On 4 November 2000 (Melbourne time), Mr U eventually ascertained the tracking numbers of the two packages and he provided that information to the prisoner. The prisoner, for his part, then supplied the information to Ron Cassar at UPS Ascot Vale, the intention being that the latter would check through the UPS system to determine where the packages were.
At this stage Mr U did not know of Cassar's involvement, other than he was aware that the prisoner had arranged to contact UPS.
The prisoner was unaware of the identity of Sonny Schmidt and his brother, Pale, who was a friend of Mr U and who played a minor role in the whole venture. The Schmidt brothers did not know the identity of the prisoner and those in Mexico did not know the identity of the prisoner.
In the meantime, in the early hours of Saturday 4 November 2000, and that is local time, a container arrived at the Louisville, Kentucky, USA hub of the UPS and the two packages were seized by US Customs. By this time, the authorities in Australia had warned the American authorities of what was taking place and requested information as to the presence of cocaine in the packages.
A US Customs inspector seized the two packages, drilled one of the artefacts in one of the packages and identified the presence of cocaine. He x-rayed the other package and satisfied himself that it also contained cocaine. He retained possession of the packages for a few hours and then another law enforcement officer took possession of them and eventually brought them to Australia.
The importation of the narcotic substance into Australia was pursuant to Part 1AB of the Commonwealth Crimes Act, which is concerned with controlled operations. The evidence also revealed that it was, when passing through the United States of America, a controlled pass through in accordance with local regulations. The packages had arrived with the US personnel on Monday 6 November 2000 into Sydney at 8.00am They continued on an international flight, arriving in Melbourne at approximately 10.30am, where the US agents were met by members of the Federal Police Force, and eventually the packages were delivered to the Melbourne office of the Australian Federal Police.
The packages were unpacked, the bulk of the powder was removed and the packages were then repacked, each containing 20 grams of a white powder. The two packages were then delivered to the Qantas freight centre at Tullamarine and on Friday afternoon, 10 November, a UPS driver picked up the parcels and delivered them to the UPS premises in Ascot Vale at approximately 3.50pm.
In the meantime, the prisoner was, from time to time, meeting a registered informer who was a drug trafficker. The latter's part in the venture was to purchase the cocaine from the prisoner. The arrangement was that the prisoner was to receive the white powder from Cassar and on-sell it to this drug trafficker. The prisoner had a number of meetings with him up to 10 November 2000. The conversations, unbeknown to the prisoner, were recorded and provided cogent evidence of the prisoner's involvement from beginning to end in the whole transaction.
On Friday 10 November, the prisoner met the informer and Cassar arrived at the same time. In the meantime Ron Cassar was trying to track the packages through the UPS computer system. In order to distance himself from it, Cassar requested two employees of UPS to try and track the packages down and to determine where they were. In fact the investigation revealed that the last notification of their presence was the arrival at the Louisville hub on 4 November, local time.
At approximately 10.00am on Sunday 12 November 2000, the prisoner arranged a meeting with Mr U and invited Cassar to attend. This brought together the two important participants, namely the organiser of the purchase and the organiser of the final act of removing the cocaine from the packages and supplying it to the prisoner.
Despite the evidence of three persons called by the defence, I am satisfied beyond reasonable doubt that Mr U had not met Cassar before that morning in relation to the illegal venture, even though, when he met him, he realised he had met him some 15 years previously. Later that morning and after the meeting, Mr Cassar visited the UPS warehouse and identified the packages. He returned later that evening at about 6.15pm, entered the UPS premises, stopped the in-house video recording, obtained possession of the packages, opened them, re-sealed them and put certain items which contained the cocaine in a box in the storeroom at the premises. As he was driving away from the premises he was arrested.
Later that evening, Mr U and the Schmidt brothers were also arrested and charged with being knowingly concerned in the importation of a prohibited import into Australia. The prisoner was not arrested. On 1 December 2000 the prisoner had a frank and open discussion with the registered informer, the drug trafficker, and, unbeknown to him, the conversation was recorded. It is indeed a damning conversation and amounts to a confession by the prisoner of his total involvement in all the arrangements of this importation.
In summary, he supplied most, if not all, of the finances necessary for the venture, including expenses and the cost of cocaine. He gave instructions as to where and through what system the goods were to be transported to Australia. He provided assistance, advice and support to Mr U when the latter needed and asked for it. He recruited Mr Cassar, a vital cog in the whole venture, and finally arranged with the informer to sell him the drugs.
The certificate of analysis of the cocaine revealed that the white powder had a total weight of 2933.9 grams and that the average purity of the cocaine was 65.9 per cent.
Detective Senior Constable Victor Anastasiadis, a member of the Victorian Police, was for many years involved in major drug investigations. He gave evidence at the sentence hearing. He has performed duties in the covert and illicit drug fields, performed duties throughout Australia and also the United States of America, and during his time has conversed with numerous drug traffickers and informers concerning drug trafficking in this State.
He is well qualified to give expert evidence in relation to drug packaging, drug terminology and drug valuations. He told the Court that cocaine is normally compressed into block form when manufactured to make it easier to transport. An ounce usually has the average purity of 60 to 80 per cent and one ounce of weight is 28.35 grams, although when sold is normally in the order of 28 grams.
He stated that it is a common practice for drug traffickers to re-compress cocaine after diluting it, to give the impression that the new adulterated cocaine is pure uncut cocaine. Cocaine is not able to be diluted as much as amphetamines and heroin. It does not retain much potency under about 30 per cent purity. It is therefore difficult to sell in those circumstances. Cocaine is normally sold at street level in single gram deal lots and his experience is that when sold at street level, it can vary from $250 to $300 a gram. He stated, based on his experience, that cocaine in the year 2000 sold for about $4000 to $6000 per ounce. The price can vary and is dependent on the price a cocaine trafficker paid for the cocaine when initially purchased, the purity, the size and the frequency of the purchases. He stated that in his opinion, if the cocaine in the present matter had been sold in ounce lots, having regard to the list of purity on the certificate of analysis, it would have sold for around $5000 per ounce.
2933.9 grams equates to 104.783 ounces, which would realise $523,900. If on sold in gram lots, again having regard to the purity analysis, it would sell for around $300 per gram, and at 2933.9 grams this would realise about $880,000. If sold at the lower end of the scale, being $250 per gram, it would realise $733,475.
The evidence in the trial included conversations between the informer drug trafficker and the prisoner. The prisoner stated in a conversation on 1 November 2000 that the cocaine was costing him $4500 an ounce and that he had just put a monkey, that is $500, on it, making a price of $5000 an ounce. I am not prepared to accept that evidence as to the value. It does not accord with the evidence in the trial of discussions had between Mr U and the Mexican suppliers. Nor does it accord with the evidence as to the amount of money that was sent. Indeed, it would appear on the basis of the money paid that the white powder cost about $670 an ounce. At a later meeting on 1 December 2000, the prisoner stated he was making $35,000 a kilogram. This would equate to about $105,000 in total. The amount that he did hope to make as a profit can be calculated, but on a very broad brush basis and with a degree of uncertainty.
The prisoner provided cash as follows:
A$5,000 – first trip of Mr U to Mexico;
A$5,000 – second trip by Mr U to Mexico;
A$69,548.87 cash – for purchase of cocaine;
A$3,000 – for plane tickets for Sonny Schmidt;
A$8,500 – sent by Sonny Schmidt;
making a total of approximately A$91,048.87.
If one accepts what the prisoner told the informer on 1 December, that he would have made about $105,000 on the deal, after making allowances for $91,048 outlaid, this would on the evidence of Senior Constable Anastasiadis be somewhat on the light side. The evidence leads to the conclusion that the prisoner was proposing to sell the whole quantity to the informer. It is unlikely that he would have sold it at a bargain price. Whilst it is unlikely that the informer would have paid $5000 per ounce, because he would have to thereafter sell it at a profit, it is most likely that the profit would have been greater than the $105,000 asserted by the prisoner in that conversation and probably in the order of close to $200,000. However, I have to be satisfied beyond reasonable doubt on any matter that is adverse to the prisoner's interest, and accordingly I will proceed on the basis that the profit hoped to have been made out of this transaction was in the order of $105,000. Saying that, I think it is on the light side.
The prisoner was eventually arrested on 24 August 2001. He made a number of applications for bail and eventually was released on bail on 24 September 2002. He remained on bail until he was arrested in relation to a number of serious Commonwealth charges in September last year, and was in custody for a short period as a result of those charges. He was granted bail by the Magistrates’ Court in relation to those charges. Eventually he was in custody on the present charge from 26 October 2005, which was the day that I had originally fixed for the trial, to 29 November 2005. His original bail was extended on that day and he remained on bail until he failed to appear on 20 March 2006. The fact that he voluntarily absented himself from this trial is not a factor relevant to the sentence. The delay in bringing this proceeding on was not the fault of the accused until late October 2005.
The prisoner was also charged with a number of State offences in or around 2000 and 2001. A number of serious allegations thereafter were made against members of the Victorian Drug Squad, two of whom eventually were sentenced to periods of imprisonment for their illegal activities. As a result, the cases against the prisoner were put on hold and eventually the committal in relation to the present proceeding did not take place until late 2004. It was not until 26 November 2004 that he was committed for trial. I was allocated to case manage this proceeding in July 2005. I made a number of directions orders and fixed the trial for 26 October 2005.
Shortly prior to that date, application was made to vacate the trial date and eventually it was fixed for 1 February 2006. In my view, the grounds for vacating the trial date were brought about by the accused's conduct and that of his then legal advisers, and I am satisfied that he was responsible for the delay from 26 October to 1 February 2006. On the other hand, the delay has been substantial and is a matter that must be taken into account in fixing the sentence. The case has been hanging over his head for many years. It is a factor mitigating the sentence. See R v Mill.[20]
[20](1988) 166 C.L.R. 59 at p.64.
The sentencing principles which guide this Court are found in the Common Law and in two statutes, namely, the Crimes Act and the Victorian Sentencing Act 1991. The maximum sentence for an offence committed contrary to paragraph 233B(1)(d) of the Customs Act 1901, as it then was at the time of the commission of this offence, is 25 years and a fine not exceeding $500,000, or both.[21] This provision deals with the traffickable quantity, which is a quantity of two grams or more. However, if the quantity is two kilograms or more, it is a commercial quantity and the maximum imprisonment in those circumstances, is life. I observe that the quantity in the present matter is at the higher end of the traffickable quantity.
[21]See s.235d(i) of the Customs Act.
The maximum penalty demonstrates the gravity of this offence. There has been an increase in maximum penalties in relation to serious drug offences, reflecting the concern of the community of the trade and its evil and its damaging consequences over the last number of years.
The purposes of criminal punishment are indeed various and include protection of society, deterrence of the offender and of others, retribution, denunciation and rehabilitation.
The weight to be attached to the relevant factors depends upon the particular circumstances of each case. In the end, the punishment must fit the crime. That is, the sentence must be appropriate and proportionate to the gravity of the crime, considered in the light of the objective circumstances.
I am bound to consider the matters set out in Part 1B of the Crimes Act. By reason of s.16A(1), the Court must impose a sentence or make an order "that is of severity appropriate in all of the circumstances of the offence." Section 16A(2) requires the Court to take into account matters which are set out in the sub-section and which are relevant and known to the Court, in addition to any other matters. Section 16A(2) does not purport to be an exhaustive list of the matters to which the Court must have regard when passing sentence. Indeed, this is made very clear by the fact that 16A(2)(j) refers to personal deterrence. It does not make any reference to general deterrence, which, of course, is a very important element to consider in any sentencing process. It is well recognised that general deterrence is a matter that must be taken into account. The matters listed in s.16A(2) requires that they be taken into account "where relevant and known" to the Court. The sub-section does not require the Court to consider each sentencing factor set out therein but it does require those that are relevant and known to be taken into account. See R v Wong and Leung,[22] R v Weininger[23] and R v Johnson.[24]
[22](2001) 207 CLR 584.
[23](2003) 212 CLR 629.
[24](2004) 78 ALJR 616 at para. 24.
Section 17A makes clear that, "A court shall not pass a sentence of imprisonment unless the court, after considering all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case." This re-states the common law - see R v Carroll.[25] I have no doubt that a period of imprisonment is an appropriate sentence in this matter.
[25](1991) 2 VR 509.
In addition, the Court is bound by reason of s.19A(b) of the Act, where a court imposes a federal sentence that exceeds three years, to fix a single non-parole period or make a recognisance order, although the Court may decline to do so in certain circumstances. The length of any non-parole period is a matter for the Court.
Matters relevant under s.16A(2) for the present sentencing exercise are the nature and circumstances of the offence, (a), the degree to which the prisoner has shown contrition for the offence by seeking to take action to make reparation or any other matters, (f), the deterrent effect that any sentence under consideration may have upon the prisoner, (j), and this includes general deterrence, the need to ensure the prisoner is adequately punished for the offence, (k), the character, antecedents, cultural background, age, means, physical or mental condition of the prisoner, (m), the prospect of rehabilitation of the prisoner, (n), and the probable effect that any sentence may have on any of the prisoner's family or dependents.
The Court is bound to take into account the relevant statutory provisions, the principles of sentencing, the maximum sentence prescribed and all other relevant circumstances, both aggravating and mitigating, and the judge is bound to pass such sentence which is appropriate in the circumstances.
As the High Court said in Orr v R:[26]
"The basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances."
[26](1989) 167 CLR 348 at 354.
The starting point is consideration and appraisal of the gravity of the offence. The seriousness is measured by the maximum penalty imposed by law and the circumstances. The gravity of the offence is the starting point and the Court is obliged not only to denounce the prisoner's criminal conduct, but also to take into account general deterrence and to impose an appropriate punishment. The sentence must serve not only as a sufficient deterrent to the prisoner but also to others who are of a like mind, and hence must provide protection for the public. One of the fundamental purposes of punishment is to protect society, and retribution is also important. The Court must consider matters personal to the prisoner, his character, history, conduct and any prospects of rehabilitation. The Court must give due weight to any mitigating factor.
The first matter to note is that the crime is considered by the legislature as being a serious one and this is demonstrated by the maximum penalty of 25 years and a fine not exceeding $500,000 - or both.
It is noted that the quantity of cocaine put it just below the commercial quantity. Secondly, the prisoner's participation in the offence is an aggravating factor. I am satisfied that the prisoner was the brains and moving force behind the importation. The prisoner cunningly did his best to remove himself as far as he could from the actual events by recruiting both Mr U and Mr Cassar to perform the important tasks they did. The prisoner left it to Mr U to find the Schmidt brothers to assist. I have little doubt that the latter played a small part in the overall venture. In my view it was the prisoner's venture. He financed it, made the arrangements for organising it, and recruited both Mr U and Mr Cassar to put in place what he hoped would be a successful importing venture. But equally importantly, it was necessary to on-sell the product. The prisoner recruited an experienced drug trafficker to do this. If all had gone to plan, the prisoner's actual physical participation throughout would have been extremely small, and indeed probably would have involved the prisoner doing no more than receiving possession of the cocaine for a very short period and then on-selling it to the informer and receiving the cash. It is clear from some of the telephone intercepts that the prisoner did his best to cover his tracks. The prisoner paid for everything in cash, and there was no record of his money actually being used. On the other hand, one error was using Mark Lanteri to send money to Mexico. Mark Lanteri was a close friend and confidant of the prisoner.
The prisoner's involvement was indeed substantial and significant. He was the principal. It was his illegal enterprise. The others were used by him to effect the importation in order to make money. The prisoner's contribution was significant. The prisoner was a person exploiting and using others to make a substantial profit. His level of criminality was indeed high.
The role played by an accused in a drug importation and on-selling trafficking is an important factor in the sentencing process. What are essential to a successful drug importation into Australia are the provision of finance, the organisation of the importation and the subsequent on-selling of the narcotic substance. Persons have to be recruited to perform various roles concerning the purchase, the importation and the recovery of the drug, and arrangements must be made to on-sell. The principal, if intelligent and cunning, will devise a scheme distancing himself from those down the chain of participants and ensuring that nothing is traceable back to him. The aims of the exercise are to deal in cash, only deal with one person, not talk on the telephone or in any building and not have any contact with those down the chain of participants. It is important to ensure that the principal's identity is not known to others. That is the classic modus operandi of a principal in an importation.
The detection of a principal and bringing him to justice is not a common event. It is the couriers, the mules and the foot soldiers in the illegal venture who eventually get caught and punished. Usually they are extremely stupid, young, gullible people who, for a few thousand dollars and sometimes a paid holiday overseas, are prepared to put their liberty and, in some cases overseas, their lives, on the line. The Courts in the past have repeatedly emphasised the fact that the principals are rarely caught and brought to justice, see R v Perrier (No. 2).[27] Courts have repeatedly emphasised over the years that drug importation is a serious offence. Further, the Commonwealth and State legislatures have progressively increased the maximum penalty for drug offences. It has also been recognised and repeatedly stated that drug abuse is an evil which has far reaching deleterious consequences to the community.
[27](1991) 1 VR 717 at 719.
The difficulties of detection and bringing the principal offender to justice have been noted. Drug importation of the kind in the present case is usually carried out secretly. The concerns just mentioned have been with us for many years. In a judgment delivered as long ago as 9 May 1969 by the Full Court of this State, in R v Chau Hoi Shan, the Court said:
"It should be said that the penalty prescribed by the Customs Act for both of these offences is a fine of $4000 or 10 years imprisonment or both. Those maximum gaol sentences were substantially increased by the Commonwealth Parliament in June 1967. Until that time the gaol penalty appropriate for the offence was a minimum of three months and a maximum of two years. It is apparent from penalties prescribed by the Commonwealth Parliament that the offence of importing drugs of this kind must be regarded as one of extreme gravity. It is plain enough that evil social consequences readily occur as a result of the use of such drugs. It is also, we think, as the learned judge said clear enough, that the use of drugs is becoming increasingly prevalent and is becoming a source of public concern. This class of offence moreover, is one that is not easy to detect. The danger of surreptitious importation is always present. It is clear enough also that in this case, as no doubt in many other cases, the person attempting to commit the offence stands to make a substantial personal gain. It must be understood and made abundantly clear to people who attempt to indulge in the importation of prohibited drugs that as they stand to make a personal gain - and a great personal gain - by indulging in that class of criminal activity, and if detected they must expect to receive stern and summary punishment. Those who are so minded to take the risk for their own benefit must realise, and no doubt realise, and will realise, if the penalties remain sufficiently severe, if the gamble fails then they have nobody but themselves to blame for the consequences."
The reasons were quoted with approval by the Full Court in R v Piercey.[28] Those wise words spoken back in 1969 are apposite today. The observation that the use of drugs is becoming increasingly prevalent and a source of public concern is far greater today than it was in those days. The maximum sentences have been further increased.
[28](1971) VR 647 at 653-4.
More recently the High Court in Wong v R[29] had this to say:
"In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon a formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task, the latter that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of the drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from the participation. All these are matters properly to be taken into account in determining a sentence."
[29](2001) 207 CLR 584 607.
The Court also went on to observe that the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge and the greater the reward, the heavier the punishment will usually be.
The whole venture in the present matter was the prisoner's venture. He used Mr U and Mr Cassar to achieve his illegal purposes. The fact that he was not arrested for another nine months after the other participants were arrested, does lead to the inference that the steps taken by him to distance himself from all, nearly succeeded. He is to be sentenced as a principal who was responsible from beginning to end for the illegal enterprise, and who used others to achieve his unlawful object.
Turning to the other relevant matters set out in s.16A(2), there is no evidence to show contrition on the part of the prisoner.
Turning to the question of deterrence, the first question is specific deterrence of the prisoner. This brings me to his prior convictions.
After the jury had delivered their verdict, the Crown obtained leave to file an amendment to the presentment setting out a list of prior convictions. Later the Court's attention was drawn to s.376 of the Crimes Act 1958 (Vic.) In my view, it was not open to the Crown to add to the presentment the previous convictions after verdict. Accordingly, leave granted is withdrawn. However, in my view it does not preclude the Court from considering the prisoner's antecedents, which would include prior convictions properly proven pursuant to s.16A(2)(m) of the Crimes Act.
The Crown placed four certified certificates before the Court as to the prior convictions. I am satisfied that each concerned the prisoner.
The first related to a conviction in Yass recorded on 11 April 1989 for possessing an unlicensed pistol, and the prisoner was fined $1,000. He was then aged 22 years.
The second prior conviction proven was the conviction of him on a charge of attempting to pervert the course of justice. He was sentenced for a period of 12 months, six months of the sentence being suspended for a period of 12 months. He was then aged 22 years. That prior conviction is serious.
The next prior conviction proven was on 21 May 1992, when he was convicted of receiving stolen goods and fined $1,500.
The next was a charge brought against him of hindering police, which was heard on 1 April 1998 at the Prahran Magistrates’ Court. He pleaded guilty to the charge but was not convicted, and the matter was adjourned for a period of 12 months. He was required to pay $1,000 to the court fund.
I ignore the latter and also the two offences heard in the Magistrates’ Court, but so far as the conviction in the County Court of Victoria on 24 April 1992 is concerned, it was, on any view, a serious matter. He has served his punishment for that offence. That antecedent criminal conduct, together with what occurred in the present case, shows the prisoner’s attitude to the law. Despite serving a term of imprisonment, he indulged in the conduct which is the subject of this conviction. It shows his attitude to the law and his propensity to ignoring the law and, when coupled with what has occurred in the present proceeding, in my view, is relevant to the question of specific deterrence.
As I have stated, there is no evidence that the prisoner has shown any contrition for the commission of the offence. I am satisfied that the sentence should take into account specific deterrence to deter the prisoner from committing further criminal activities. General deterrence in this area is, of course, of the utmost importance.
There is no doubt that the returns for those engaged in drug trafficking are enormous. The return in this case was in the order of A$105,000 for participation in the venture of providing money, recruiting others, taking possession of the drug for a short period and on-selling. It is unnecessary to labour the point as to the deleterious consequences of an excess use of narcotics, and cocaine is no exception. Greed and the ease of making quick money underpin most drug trafficking. It is important to send a message to those who are like-minded that drug trafficking does not pay.
Turning to the level of criminality, I am satisfied that the prisoner's level of criminality is indeed high for the reasons I have already stated.
I now to the prisoner's personal matters. The prisoner is presently aged 40 years, having been born on 8 August 1965. As I understand it, the prisoner was born outside of this country and came to this country with his family at an early age. He has a number of siblings. He has been married and has children.
The prisoner has been successful in various business endeavours and the evidence suggests that he has assets worth millions of dollars. Based on the telephone intercepts and the evidence placed before the Court, the prisoner is intelligent and a cunning person.
It is necessary to consider any mitigating factors. In my opinion, the delay in bringing this proceeding to trial and finalisation is a matter that I must take into account, and I do so. It does result in a substantial reduction in the period of imprisonment, however I am not aware of any other mitigating factor. The prospect of rehabilitation plays no part in this sentencing process. The prisoner’s attitude to the law and authority shows a man who treats both with contempt. If what he stated to others in the recorded conversations is true, he is a man of considerable wealth and any dependants he has would be looked after, assuming he recognises his obligations to them.
It is necessary to briefly avert to the sentences imposed on the other participants in this importation. Mr U pleaded guilty on one count of being knowingly concerned in the importation of the cocaine and four State counts of possessing a drug of dependence, namely cannabis and various varieties of ecstasy. He was sentenced to a term of three years and three months’ imprisonment on the Commonwealth count and the non-parole period was fixed at two years and three months.
The learned County Court judge, as required by the Crimes Act, was obliged to state that but for Mr U's co-operation in undertaking to give evidence against the prisoner, he would have imposed a sentence of six and a half years imprisonment and a non-parole period of four years and six months. I interpolate to note that Mr U pleaded guilty and this would have resulted in some reduction. He was sentenced to two months on each of the State counts and they were made concurrent with the Commonwealth sentence. Mr U's involvement was indeed central to organising the actual purchase, but in my view his role was far less significant than the prisoner's role.
It was noted by the learned sentencing judge in that case that much of what Mr U was doing, he was doing to impress the prisoner. On the evidence before me in this proceeding, I gained the same impression, that that was the motivating force behind the involvement of Mr U. The parity principle does not apply in the present matter because his role was significantly different to the prisoner's role. He was not the principal. Further, he pleaded guilty.
The brothers Sonny and Pale Schmidt pleaded guilty. Ron Cassar was found guilty of the count of being knowingly concerned in the importation. The learned County Court judge sentenced Mr Cassar to a period of six years imprisonment and fixed a non-parole period of four years. He appealed the sentence and the appeal was dismissed. Sonny Schmidt was sentenced to a period of three years, to be released after serving 18 months subject to him entering into an undertaking. With respect to Pale Schmidt, he was sentenced on the Commonwealth matters to two years imprisonment but the sentence was suspended.
The learned County Court judge who dealt with Cassar and the Schmidt brothers, His Honour Judge Hart, noted that parity of sentence did not apply because of the significant differences played by each participant. He also noted that Mr U had pleaded guilty and undertaken to give evidence against the prisoner, and further noted that Mr Cassar defended the count and was convicted.
In my view the parity principle does not apply here, however I do note that Mr Cassar's maximum sentence was six years with a four year non-parole period. The Court requested the Crown to provide details of sentences for drug offences throughout Australia. The Court was given details of sentences, however the Court must proceed with the utmost caution in considering sentences imposed in like cases because no cases are exactly the same.
Nevertheless, the cases demonstrate a range of sentences much influenced by the amount of the narcotic drug, the type and the level of participation by the prisoner. A useful summary is found in the judgment of Justice Hulme in the New South Wales Court of Criminal Appeal decision of R v Spiteri,[30] where His Honour summarised sentences imposed in cases involving principals engaged in cocaine involving quantities in the top half of the traffickable range. However, as I stated, sentencing is a matter for this Court, after considering and weighing all relevant matters in this proceeding and taking into account all the circumstances.
[30](1999) NSWCCA case 3, especially at paragraph 28.
This Court is bound by s.16A(1) to impose a sentence which is of a severity appropriate in all the circumstances of the offence. I have discussed the relevant matters and carefully weighed all that I am obliged to do. It is an obvious observation that each person involved in illegal drug importation plays a vital role in the success of the operation. The roles vary from the financier to the couriers. It is trite, but a failure at any level brings the venture down. But the highest level of criminality is at the principal level, that of the instigator, the organiser, the planner and the financier.
The prisoner was at that level. He must be punished and deterred from like conduct. A strong message must be sent to those who are prepared to fund these illegal activities. In my view, the sentence which is appropriate in all the circumstances is to sentence the prisoner to a term of imprisonment of 12 years.
It is now necessary to consider whether there should be a minimum period of imprisonment. In other words, whether the Court should fix a non-parole period. The Court is obliged to do so by reason of s.19A(1)(d) of the Crimes Act unless it proposes to make a recognisance release order, which the Court does not propose to do. By reason of s.19A(3) the Court may decline to fix a single non-parole period, however, in my view I should fix a minimum non-parole period. The principles that guide the Court have been stated in a number of cases. I refer to Deakin v R[31] and Lowe v R.[32] The same factors which are taken into account on the head sentence are relevant to the exercise and must be weighed carefully in fixing a minimum non-parole period.
[31](1984) 58 ALJR 367.
[32](1984) 154 ACLR 606 at 610.
The weight which should be attached depends upon particular circumstances and as a general proposition, factors favourable to the prisoner, if there are any, are given more weight. In the circumstances, I am prepared to fix as a non-parole period the period of nine years.
By reason of s.16E(2) of the Crimes Act, the Court is bound to give effect to any pre-sentence detention. By reason of that section, s.18 of the Sentencing Act 1991 Vic applies. I make the declaration pursuant to s.18(4) of the Sentencing Act 1991 that the prisoner has been in custody for a period of 390 days calculated as follows:
24 August 2001 - 7 September 2001, 15 days;
1 October 2001 - 4 September 2002, 339 days;
25 October 2005 - 29 November 2005, 36 days,
giving a total of 390 days.
I make the following orders:
1.That Antonios Sajih Mokbel be convicted of the offence of being knowingly concerned in the importation into Australia of a prohibited substance, namely cocaine, which was not less than a traffickable quantity and which arrived in Australia on 6 November 2000, in accordance with the jury's verdict;
2.That the prisoner be sentenced to a period of 12 years imprisonment;
3.That the minimum period during which the prisoner is not eligible to be released on parole is 9 years;
4.That the Court declares pursuant to s.18(4) of the Sentencing Act 1991 that the period to be reckoned as already served under the sentence is 390 days and the records of the Court should note that fact and the fact that the declaration was made.
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