DPP v Mokbel [2011] VSC 328

Supreme Court of Victoria|2011-07-22|Before: WHELAN J

CRIMINAL LAW - Sentence - Trafficking methylamphetamine in a quantity not less than a commercial quantity - guilty plea - substantial sentence previously imposed for subsequent more serious drug offences - "serious drug offender" due to subsequent offences - new single non-parole period - sentenced to four years imprisonment with two years directed to be concurrent and new single non-parole period of an additional year.

1 Milad Mokbel, between September 2002 and April 2003 a clandestine methylamphetamine laboratory was operating at Rye, producing methylamphetamine for a number of drug traffickers, one of whom was you. On 14 June 2011, you were arraigned before me on a single count of trafficking in methylamphetamine in a quantity that was not less than a commercial quantity at Rye and other places between 1 September 2002 and 11 April 2003. You pleaded guilty. On 30 June 2011 I heard a plea on your behalf.

2 The operations of the Rye laboratory, and your dealings with those conducting it, were a fully commercial activity carried on by professional drug traffickers.

3 A commercial quantity of methylamphetamine at the relevant time was 1.5 kilograms (mixed).

(1) You had received one pound (approximately 453 grams) of methylamphetamine from one of the operators of the clandestine laboratory on 15 March 2003.

(2) You had arranged over the period of the charge to supply one of the Rye laboratory operators with chemicals for the manufacture of unspecified amounts of methylamphetamine.

(3) You had trafficked in a total amount of methylamphetamine not less than a commercial quantity.

5 The maximum penalty for the offence to which you have pleaded guilty is 25 years' imprisonment.

6 In April 2003 the clandestine laboratory was raided and a number of people, including you, were arrested. You were released without charge at that time. You were not charged with offences relating to the Rye laboratory until 30 June 2008.

7 After April 2003, you committed a number of further offences.

8 On 22 October 2003 you threatened a business associate, which resulted in a charge of blackmail. In March and April 2006 you committed offences of trafficking in a commercial quantity of phenyl-2-proponone (a chemical used in the production of methylamphetamine), trafficking in a large commercial quantity of methylamphetamine, attempted trafficking in a large commercial quantity of methylamphetamine, and knowingly dealing with the proceeds of crime. On 5 September 2006 a police raid on your wife's uncle's house uncovered cash and jewellery to a value of over $500,000 hidden there, which resulted in you being charged with one count of knowingly dealing with the proceeds of crime with intent to conceal. You pleaded guilty to all these charges before Curtain J and you were sentenced by her on 17 December 2008.[1] She sentenced you to a total effective sentence of 11 years' imprisonment with a non-parole period of 8 years. Your appeal to the Court of Appeal in relation to that sentence was unsuccessful.[2]

9 In 2007 your wife, Renate Mokbel, herself went into custody. She served a default sentence of 2 years' imprisonment as a consequence of your brother, Tony Mokbel, absconding on bail, and she served a sentence of 6 months' imprisonment for perjury.

10 As I indicated earlier, you were first charged with offences in relation to the Rye laboratory on 30 June 2008. On 25 November 2008 your solicitors made an offer to the prosecution to the effect that you would plead guilty to the offence to which you have now pleaded guilty but on a factual basis which was not acceptable to the prosecution.

11 On 23 January 2009 you were sentenced to a further term of imprisonment. You were sentenced to 8 months' imprisonment for an offence arising out of your refusal to answer questions at the Australian Crime Commission in relation to the murder of Lewis Moran. That sentence was cumulative on the sentence you were then already undergoing. There was no non-parole period fixed.

12 By virtue of the operation of s 15 of the Sentencing Act 1991 ("the Act"), you have now completed the eight month sentence imposed upon you on 23 January 2009 which had no non-parole period, the sentence imposed by Curtain J having been suspended whilst that sentence was served. You are now serving the sentence imposed on you by Curtain J which does have a non-parole period fixed. Accordingly, when I sentence you for this offence it will be necessary for me to impose a new single non-parole period pursuant to s 14 of the Act.

13 Because of your convictions before Curtain J, you are now to be sentenced as a serious drug offender, notwithstanding that these offences were committed before those, by virtue of s 6C of the Act. The significance of that circumstance here is that pursuant to s 6E of the Act any term of imprisonment I impose must be served cumulatively on the uncompleted sentence imposed by Curtain J unless I otherwise direct.

14 Your personal circumstances were set out in some detail in Curtain J's sentencing remarks and in the subsequent Court of Appeal decision. They were outlined again before me. I will briefly summarise them.

15 You were born on 1 January 1968 in Lebanon. You are the youngest of five children. As a child you were exposed to the ravages of that country's civil war. Your family arrived in Australia when you were aged 6. Your father, who I was told you respected and admired greatly, died when you were 12 years of age. This had a profound effect on you and other family members.

16 You left school at 15 to commence an apprenticeship as a chef. You did not complete that apprenticeship. You worked in restaurants and also worked in other occupations. For a time you and your wife ran a successful hydroponic business and you then purchased a butcher shop business which you also operated successfully.

17 I was told that you became embroiled in gambling and drug trafficking through your association with your brother, Tony, who was described as a loud, overbearing and inspiring person, who you looked up to.

18 You met and married your wife, Renate, at age 21. The two of you are still together. She has now been released from prison. She was present in court with your oldest child. You have two other children. You have lost your family home and your wife is now living with your three children in rented accommodation.

19 You have been in custody since April 2006. On your plea I was told that you spent the first 26 months of that incarceration in very high security units at Barwon Prison, Melaleuca and Acacia. Curtain J also referred to this circumstance and she accepted, as I do, that the conditions there are much more onerous than those to which the general prison population are subjected.

20 You have three prior convictions. Two of them are for assault matters. In relation to one you received a fine and in relation to the other you received a suspended sentence. Your only other prior conviction is for the offence of driving whilst disqualified.

21 Material was tendered by senior counsel on your behalf on the plea. He tendered a letter from a prospective employer, and he tendered a number of letters from counsellors and health professionals attesting to the devastating effect which your incarceration has had upon your immediate family. A letter was also tendered from the Sentence Management Branch of the Department of Justice referring to your classification and activities in prison. A psychological report by Mr Patrick Newton, which had been prepared for and was relied upon in the hearing before Curtain J, was also tendered. That report indicates that you suffered from symptoms of anxiety and depression, precipitated by concerns about your wife and children and by the impact of being held in high security at Barwon Prison. Mr Newton diagnosed an adjustment disorder. Testing revealed you to be of above average intelligence.

22 In a forthright and direct plea made on your behalf by senior counsel I was told that you accepted that you had been, to use Curtain J's words, "a willing, eager, knowledgeable and genuine" drug trafficker. It was not suggested that there was a psychological justification or explanation for your conduct. In the words of your counsel, you were prepared to be a man about it and face the consequences. He submitted that you had already received a stern sentence from Curtain J and that there were three important mitigating factors which were now relevant in determining what period of imprisonment should be added to that sentence.

23 The first matter he relied upon was your plea of guilty. He submitted that that plea was not only of significant utility in saving time and resources for the community but also indicated that there were good prospects for your rehabilitation.

24 The second matter he relied upon was delay. A very considerable period has elapsed since these offences and you have spent a significant portion of that time in custody under hard conditions. Your counsel accepted that you had not been deterred from drug trafficking by your arrest after the Rye laboratory was raided, as you went on to commit the offences for which Curtain J dealt with you. Nevertheless, he submitted that the very considerable delay which has occurred in relation to these offences is a matter which should be taken into account in mitigation.

25 The final matter he relied upon was your family support. He said that your family have been through some very hard times. He did not submit that the suffering which your immediate family has gone through is in itself a circumstance sufficiently exceptional to be taken into account, but he did submit that it was a relevant mitigating factor that you had suffered greatly seeing the effect which your incarceration has had upon them.

26 I accept all of the submissions made on your behalf in relation to these mitigating factors.

27 On the plea I was told that currently the earliest date upon which you will become eligible for parole is 24 December 2014 and that you will complete your current sentence on 24 December 2017.

28 On your behalf it was submitted that I ought to impose a term of imprisonment fixing a new single non-parole period which either did not extend your existing earliest eligibility date or extended it by no more than 12 months.

29 Counsel on behalf of the prosecution conceded that both delay and totality were important matters here, emphasising nevertheless that this was a serious offence. It was submitted on behalf of the prosecution that a sentence of imprisonment in the range of 4 to 6 years should be imposed and that the new single non-parole period should extend the earliest eligibility date by a period within the range of 1 to 2 years. It was submitted on behalf of the prosecution that I should direct that part of the term imposed be served concurrently with that you are undergoing already and that the portion cumulated should be in the range of 1 to 2 years.

30 This is a serious drug offence, and, after your initial arrest in relation to it, you went on to commit further more serious trafficking offences. Specific deterrence is obviously important here. General deterrence and denunciation are also important. On the other hand, until you were taken into custody in April 2006 you had never been to jail before, and, given the family support which you obviously have, your plea of guilty, and the forthright acceptance of responsibility evident in the way the matters in mitigation were put to me, I consider that there are reasonable prospects for your rehabilitation. Delay is an important mitigating factor here and a proper consideration of totality also, it seems to me, requires mitigation of the sentence that would otherwise be imposed.

32 For the offence of trafficking in a drug of dependence in a quantity not less than a commercial quantity I sentence you to 4 years' imprisonment. Pursuant to s 6E of the Act I direct that 2 years of that sentence be served concurrently with the sentence you are already undergoing. Pursuant to s 14 of the Act I fix a new single non-parole period commencing today of 4 years 5 months 2 days so that (subject to administrative adjustments) the earliest date upon which you will become eligible for parole will be 24 December 2015, which represents an additional 1 year on the pre-existing non-parole period.

33 Pursuant to s.6AAA of the Sentencing Act I state that if you had not pleaded guilty I would have sentenced you to a term of imprisonment of 6 years with 3 years to be served concurrently and with a new single non-parole period of an additional 2 years.

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