Criminal Procedure Act 2009, s 326E(3); Sentencing Act 1991, s 6D.

Mokbel v The King [2023] VSCA 40; (2023) 375 FLR 290; R v Renzella [1997] 2 VR 88, referred to.

1. On 18 April 2011 the appellant pleaded guilty in the Supreme Court to three drug trafficking charges. Two were State drug charges known as Quills and Magnum, for trafficking not less than a large commercial quantity of MDMA and methylamphetamine respectively. The third charge, known as Orbital, was a Commonwealth charge of incitement to import a commercial quantity of MDMA. The appellant had previously been convicted of one charge of being knowingly concerned in the import into Australia of a prohibited import, namely a traffickable quantity of cocaine, for which he was sentenced on 31 March 2006 to a term of 12 years' imprisonment with a non-parole period of 9 years. That charge is referred to by the name Plutonium.
2. On 3 July 2012 the appellant was sentenced on the Quills, Orbital and Magnum convictions. The total effective sentence, taking account of the Plutonium sentence, was 30 years' imprisonment, with an effective non-parole period of 22 years. Pre-sentence detention of 347 days was declared pursuant to s 18(1) of the Sentencing Act 1991, representing a period the appellant had spent in custody in Greece after absconding from the Plutonium trial, before his extradition to Australia in 2008.
3. At various times the appellant had been legally represented by Ms Nicola Gobbo of counsel, including for a period during which she was also registered by Victoria Police as a human source. She assisted Victoria Police by obtaining evidence and intelligence to use against the appellant, and through her involvement in a strategy designed to obtain the cooperation of his criminal associates. The conduct of Ms Gobbo and Victoria Police was not known to the appellant or his lawyers when he was tried on the Plutonium charge, nor when he pleaded guilty to the Quills, Orbital and Magnum charges, nor during the period that followed during which the appellant exhausted his appeal rights.
4. After Ms Gobbo's conduct was disclosed to the appellant, he sought leave to bring a second appeal against the four convictions referred to above. On 15 December 2020, following a concession by the Commonwealth Director of Public Prosecutions ('CDPP') that the Plutonium conviction could not stand, this Court granted leave to appeal against that conviction, allowed the appeal, quashed the conviction and set aside the sentence. A retrial was ordered but the CDPP discontinued the proceeding.
5. Pursuant to s 326E(3) of the Criminal Procedure Act 2009 ('CPA') the appellant then applied for a variation of the Quills, Orbital and Magnum sentences (together, the 'QOM sentence') on the basis that they were imposed taking into account the Plutonium sentence. On 7 March 2023, this Court made an order varying the total effective sentence for the Quills, Orbital and Magnum offences to a term of 26 years' imprisonment with a non-parole period of 20 years.[1] The sentence for the Magnum conviction was 20 years' imprisonment, which was the sentence originally imposed by the sentencing judge.
6. It remained to determine the appellant's application in respect of the Quills, Orbital and Magnum convictions. On 3 October 2025, this Court granted leave to appeal, allowed the appeals against the Quills and Orbital convictions and set them aside, ordered an acquittal on the Quills charge and ordered a new trial on the Orbital charge. The appeal against the Magnum conviction was dismissed.[2]
7. The appellant then applied for the Court to exercise its power under s 326E(3) to vary the Magnum sentence in light of the quashed Quills and Orbital convictions. The appellant's overarching submission was that he should not be required to serve any further period of imprisonment, because the time he has already served in custody has more than satisfied the sentencing purposes underlying the Magnum sentence.
8. On 6 November 2025 we allowed the appellant's application and varied the sentence on the Magnum conviction to a term of 13 years, 7 months and 15 days' imprisonment, with a non-parole period of 11 years. We gave brief reasons for our decision and indicated that the written reasons of the Court would follow in due course. These are our reasons.

1. The sentencing judge summarised the offending to which the appellant had pleaded guilty.[4] In the case of Quills, in 2005 the appellant trafficked not less than a large commercial quantity of MDMA. At the relevant time, the threshold for a large commercial quantity of MDMA (mixed) was 1 kilogram. The amount the subject of this offence was in excess of 30 kilograms. The offending occurred while the appellant was on bail awaiting trial on the Plutonium charge and a number of other drug offences.[5]
2. The Orbital offending occurred in June and July 2005. The appellant undertook a series of dealings with two people he believed to be potential suppliers of MDMA from international sources, but who were in fact undercover officers of the Australian Federal Police. During the course of this offending, the appellant ordered and sought to import 100 kilograms of MDMA for a price of 800,000 euros. The threshold applicable for a commercial quantity of MDMA at that time was 0.5 kilograms. The Orbital offence was, like the Quills offence, committed by the appellant while he was on bail for other Commonwealth and State drug charges, including Plutonium.[6]
3. It is necessary to describe the Magnum offending at greater length. The judge summarised it in the following terms:

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.

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. 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'.

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, Christopher Ferraro and Jamie Saro. Others, convicted and sentenced, who were associated more directly with you, include Chafic Issa, Andrew Ryan, David Tricarico and George Elias.

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.

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.[7]

1. The judge referred to a heart condition suffered by the appellant. He accepted expert evidence that, on average, a person of the appellant's age at the time of sentencing who had heart disease had a future life expectancy of 24 years, which was 11 years less than the life expectancy of a person without that condition. The judge accepted that imprisonment would be a greater burden on the appellant because of his coronary heart disease.[8]
2. The judge noted that the circumstances in which the appellant was incarcerated led to his social isolation. There was expert evidence that, while the appellant had shown 'a remarkable degree of psychological resilience' prior to his sentencing, at the time of sentencing he was experiencing physical manifestations of anxiety.[9] The judge concluded that the appellant's incarceration represented 'a serious risk of a gravely adverse effect on [the appellant's health] because depression and social isolation [were] risk factors for the development of coronary heart disease'.[10]
3. The judge did not accept that the appellant's pleas of guilty were early pleas. However, he accepted that they had 'a high utilitarian value', noting that if the appellant 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'.[11] On the other hand, the appellant had applied to change his plea,[12] and that application was heard over 18 days between October 2011 and March 2012. The judge found that this reduced 'to some extent, not to a great extent but to some extent, the utilitarian value of [the] pleas'.[13]
4. The appellant relied on evidence of his remorse. But the judge considered that his attempt to alter his pleas was an express disavowal of responsibility for the offending.[14] The judge observed:

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.[15]

1. Next, the judge noted that, since the appellant's return to Australia following his extradition from Greece, he had been in custody in the high security Acacia Unit at Barwon Prison. The judge accepted that prisoners held in that unit are subjected to a 'harsh regime' on account of its being 'confined and socially isolated'.[16] He noted that the appellant might be moved at some later date, but accepted that, given the appellant's history and associations, he may well continue to serve his sentence 'under a more restrictive regime than is usual'.[17] The judge said that there was a 'real possibility' that the appellant would 'continue to be held in very restrictive circumstances for an indefinite period', and that this was 'a significant mitigating factor' in his case.[18]
2. The appellant fell to be sentenced as a serious drug offender under s 6D of the Sentencing Act for the two State offences. The judge was therefore required to regard the protection of the community as the principal purpose for which those sentences were to be imposed. Unless otherwise directed, the sentences were required to be served cumulatively on any other sentence.[19]
3. With respect to the Quills offence, the judge noted that it was committed while the appellant was on bail, which itself meant that a term of imprisonment imposed for that offence would need to be served cumulatively on any other sentence, unless otherwise directed.[20] The judge said that the Magnum offence, while not committed when on bail (the appellant's bail having been revoked after he absconded from the Plutonium trial), was committed after the appellant had breached his bail and been convicted of the Plutonium offence. This was 'a significant factor'.[21]
4. The judge was mindful of the need to have regard to the principles of totality, taking into account the Plutonium sentence the appellant was already serving. The judge said, however, that he could not allow considerations of totality 'to undermine the legislative policy inherent in the relevant provisions concerning cumulation'.[22]
5. The judge said that he had given very serious consideration to imposing a life sentence for the Magnum offence. The appellant's commission of that offence revealed 'arrogant contempt for the law, and an incorrigible determination to persist in serious business-like drug trafficking regardless of the circumstances or possible consequences'.[23] He said that he was persuaded not to fix a life sentence because the utilitarian value of the appellant's plea should be reflected in the sentence itself, and not just in the non-parole period. In that respect, the judge observed that he was not permitted to speculate as to the appellant's prospects of parole.[24]
6. The judge then sentenced the appellant as follows:
   • On the Orbital charge, six years' imprisonment, commencing on the expiry of the Plutonium non-parole period, with a new Commonwealth non-parole period in respect of Orbital and Plutonium of 6 years 9 months and 19 days commencing on 3 July 2012.
   • On the Quills charge, 13 years' imprisonment.
   • On the Magnum charge, 20 years' imprisonment.
   • Seven years of the sentence on Magnum was to be served concurrently with the sentence on Quills, making a total effective State sentence of 26 years.
   • The State sentences were to commence 2 years, 9 months and 16 days before the expiration of the Commonwealth non-parole period, with a new State non-parole period in respect of the State sentences of 18 years.[25]
7. This resulted in a total effective sentence of 30 years' imprisonment with a total effective non-parole period of 22 years.
8. The sentences were upheld on appeal,[26] and an application to the High Court for special leave to appeal was refused.[27]

1. In varying the appellant's sentence in 2023, the Court considered the consequences of the Plutonium conviction being set aside. That meant, in particular, that this conviction was no longer part of the appellant's background circumstances and that he had spent 5 years and 72 days in custody that amounted to 'dead time' in the R v Renzella sense.[28] The Court decided that the sentences should be varied to take these matters into account.[29]
2. The Court also took into account a serious assault perpetrated upon the appellant in 2019, as a result of which he sustained a serious head injury. The Court found that the assault had ongoing physical and psychological consequences which, together with an associated adjustment in the appellant's placement and management in custody, made the burden of custody weigh more heavily on him. There was evidence that, since the assault, the appellant had been spending about 20 hours alone in his cell on most days, and that he has 30 minutes of social contact with one other inmate during periods when he is released from his cell.[30]
3. Next, the Court considered the impact of the COVID-19 pandemic, which had increased the burden of the appellant's incarceration 'at least to some extent' since its onset in early 2020.[31] That was so notwithstanding the sentencing judge's observation that the appellant was confined in harsh conditions when sentence was passed, and that there was a real possibility that the conditions of his incarceration would remain very restrictive for an indefinite period.[32]
4. The appellant had argued that that the progress of his coronary heart disease ought to have weighed in mitigation of his sentence. In particular, he had suffered a heart attack on 31 March 2022 and a further 'mini heart attack' on 1 April 2022. The Court found that effects of the disease were accounted for in the original sentence, and that the appellant's heart attacks were part of the ongoing condition taken into account by the sentencing judge. The Court held that 'little (if any)' weight should be assigned to this factor.[33]
5. The Court referred to the sentencing judge's finding that the appellant's guilty pleas had a 'high utilitarian value', and said that, on one view, that utilitarian value was somewhat diminished by his subsequent appeals against conviction. The Court considered that the utilitarian value of the pleas was diminished to some extent, but not greatly.[34]
6. The Court varied the QOM sentence such that the appellant's total effective sentence became a 26 year term of imprisonment with a non-parole period of 20 years. In doing so, the Court varied the orders for cumulation and commencement of the individual sentences, but left the individual sentences unchanged, including the sentence of 20 years' imprisonment for the Magnum offence.[35]

1. On the current application, the appellant's essential submission was that he had served almost 19 years in custody on various convictions, all of which have been set aside except for Magnum. It was submitted that the sentencing purposes justifying the sentence for that conviction had now been fulfilled. The period of almost 19 years was said to consist of 17 years and 10 months in custody between the appellant's arrest in Greece on 5 June 2007 and his release on bail on 4 April 2025, together with 390 days of pre-sentence detention, mainly in 2001 and 2002, in respect of the Plutonium matter.
2. The appellant relied on many of the same matters that he raised when his sentence was previously varied in 2023, including the 2019 assault and associated head injury, his placement and management in prison, the impact of COVID-19 and his coronary heart disease.
3. The appellant relied again on the evidence that he had suffered a heart attack on 31 March 2022 and a further 'mini heart attack' on 1 April 2022. Before this Court, the appellant argued that the further development of his heart disease confirmed the sentencing judge's assessment that it would make his experience of prison more burdensome.[36] In particular, the appellant submitted that the sentencing judge had focused on the 'serious risk of a gravely adverse effect' on the appellant's health.[37] The notion of risk was said to incorporate the prospect that the effect would not eventuate, and this must have been reflected in the degree of mitigation afforded by the appellant's future health condition. In his submission, the materialisation of the adverse risk, demonstrated by the heart attacks, warranted more substantial mitigation.
4. The appellant also argued that his compliance with 'onerous bail conditions' imposed by this Court on 4 April 2025 was a mitigating factor.[38]
5. In addition, given that the Quills and Orbital convictions had been set aside, the appellant no longer fell to be sentenced as a serious drug offender (as defined) under s 6D of the Sentencing Act.
6. The appellant submitted that, taken together, the matters relied on justified a significant reduction in the head sentence and non-parole period, such that, once pre-sentence detention is accounted for, he will have served his time for the Magnum offence.
7. The respondent agreed that it was appropriate for the appellant's sentence to be varied, but submitted that the circumstances called for a longer sentence than time served, particularly given the seriousness of the Magnum offending. The offence involved a quantity of drugs more than 16 times the large commercial quantity. It occurred over a 12 month period. The appellant earned over $4 million. He led a drug trafficking enterprise that inflicted serious harm on the community. And the offending occurred while the appellant was a fugitive, having absconded from the Plutonium trial. The last point in particular was said to be an aggravating factor. It was also relevant that the Magnum offence was more serious than the Quills and Orbital offences, as underscored by the sentencing judge's observation that he gave serious thought to imposing a life sentence in respect of it.[39] The respondent submitted, further, that the appellant had never shown genuine remorse for the offending, nor accepted responsibility for it.
8. The respondent submitted that the fact that the appellant no longer fell to be sentenced as a serious drug offender should not have any material effect on the sentence. The respondent had never sought a disproportionate sentence,[40] and while the sentencing judge, and this Court when effecting the variation, were required to make protection of the community the principal sentencing purpose, that did not necessarily result in a longer sentence than the appellant would have received in any event.[41]
9. As to the period since the earlier variation, the respondent accepted that the appellant's health condition and his placement in custody made the burden of incarceration heavier. The respondent submitted, however, that the appellant's placement in prison and the progress of his heart disease should not have a significant impact on the sentence. Further, the appellant's compliance with his bail conditions was in his own interests and had no bearing on the sentence.
10. Both the appellant and the respondent referred to this Court's observations when granting bail to the appellant, specifically, its suggestion that any variation would be likely to produce a sentence of 'materially less than 20 years', and that time served would probably substantially reflect a revised non-parole period.[42] The appellant adopted these observations. The respondent submitted that the Court had not suggested a non-parole period of less than 14 years, still less a head sentence of that length. The respondent submitted that the disposition described in the bail decision would not be outside the range available to this Court.
11. Both parties accepted that the period of 5 years and 72 days served as part of the Plutonium sentence was 'dead time' that could not be accounted as pre-sentence detention but should be taken into account, in a general way, in varying the sentence. They also agreed that the appellant had served 5005 days by way of pre‑sentence detention.

1. In varying a sentence pursuant to s 326E(3) of the CPA, it is not necessary to sentence the appellant afresh, as when a sentence is set aside for error.[43] The question is one of variation only, founded on the fact that the existing sentence was imposed along with a sentence for a conviction that has since been set aside. In exercising the power under s 326E(3), that difference, and any supervening factual circumstances relevant to sentence, will be the principal factors bearing on the exercise of the Court's discretion.[44]
2. The original sentence of 20 years' imprisonment for Magnum, like the individual sentences for Quills and Orbital, was left unchanged when the sentences were previously varied. The fact that relatively little had changed since the earlier variation, except for the setting aside of the Quills and Orbital convictions, might appear to suggest that the appropriate variation would be to make a modest reduction to the Magnum sentence on account of the appellant no longer being sentenced as a serious drug offender, and now not having any prior drug convictions. On that approach, nearly all the other matters identified by the appellant in his submissions were already accounted for when the Court varied the sentences in 2023, and they could not be relied upon again without 'double counting'.
3. That approach, which was not urged by the respondent, would be erroneous. The issue in the first variation was what effect the setting aside of the Plutonium conviction should have on the 'QOM sentence', namely the total effective sentence for the remaining offences. The fact that the Magnum sentence was unchanged as a result of the variation reflected the way in which the Court structured the sentences to produce the varied total effective sentence, rather than representing the Court's assessment of the effect of the intervening factors on the Magnum sentence itself. Those factors were accounted for by varying commencement dates and orders for cumulation in relation to the Quills and Orbital sentences. There is no 'double counting' if they are relied upon now specifically in respect of the Magnum sentence, in circumstances where the Quills and Orbital convictions have since been set aside.
4. When it comes to the relevant factors justifying a variation, the following matters in mitigation have arisen since the original sentence of 20 years' imprisonment was imposed for the Magnum offence:

(a) the setting aside of the Plutonium conviction and sentence, with the result that the appellant has served approximately 5 years and 2 months in prison which is not referable to any conviction;

(b) the fact that the appellant is now to be sentenced on the basis that he has no prior drug convictions and is not required to be sentenced as a serious offender under the Sentencing Act;

(c) the fact that the appellant has suffered a serious head injury following an assault in prison with ongoing physical and psychological consequences;

(d) the consequent confinement of the appellant in protective custody, including extensive confinement to his cell and extremely limited social interaction, which, along with the consequences of the assault, has made his time in custody more onerous than it was expected to be at the time of sentence;

(e) the effects of the COVID-19 pandemic which also increased the burden of imprisonment;

(f) the delay in finally determining the sentence for the Magnum offence; and

(g) to a modest extent, the fact that the appellant is on bail and that to return him to prison for what would be a relatively short period at best would be more burdensome as a result.[45]

1. The first of these matters has the greatest impact on the sentence. It means that the appellant has spent much longer in prison than the sentence as varied would suggest. The period of 5 years and 72 days in custody which is no longer referable to any conviction is to be taken into account, in the Court's discretion, 'in a broad way'.[46] That means that, while the whole period is taken into account, the 'dead time' remains one of multiple factors bearing upon the ultimate exercise of the sentencing discretion. This means that the 'dead time' is not taken into account on any strict mathematical basis. It has, however, contributed significantly in the present case to the substantial reduction in the sentence originally imposed.
2. It follows that the varied sentence to be imposed for the Magnum offending is not indicative of any sentencing practice in respect of the offence of trafficking a large commercial quantity of methylamphetamine. In the circumstances, current sentencing practices have a diminished significance in the sentencing exercise.[47]
3. The Magnum offence remains a very grave one. The appellant led an enterprise that trafficked a drug of dependence in an amount about 16 times the large commercial quantity, in flagrant circumstances while a fugitive from the criminal justice system. This was egregious and shameless offending. As we said in the appeal against conviction, the proliferation of prohibited drugs is a disastrous blight on our society and trafficking in such drugs on a commercial scale is simply evil.[48] The sentence as varied would seem very modest indeed, if proper regard were not to be had to the highly unusual set of mitigating circumstances we have identified, and especially the so-called 'dead time' served, in excess of 5 years.

1. For the preceding reasons, we made orders varying the Magnum sentence to a sentence of 13 years, 7 months and 15 days' imprisonment, with a non-parole period of 11 years. Pursuant to s 18(1) of the Sentencing Act, we declared that a period of 5005 days be reckoned as already served under the sentence. We declared that the order made by the sentencing judge that the appellant be sentenced as a serious drug offender be set aside.
2. Pursuant to s 6AAA of the Sentencing Act, we declared that, were it not for the appellant's plea of guilty, we would have sentenced him to a term of 16 years' imprisonment with a non-parole period of 13 years.

[1] Mokbel v The King [2023] VSCA 40; (2023) 375 FLR 290, 311 [79] (Emerton P, Beach and McLeish JJA); [2023] VSCA 40 ('2023 Sentence Variation').

[2] Mokbel v The King [2025] VSCA 243 [772]-[774] (McLeish, Kennedy and Kaye JJA).

[3] Parts of the summary beneath this heading draw substantially from the reasons of the Court in respect of the 2023 Sentence Variation.

[4] R v Mokbel [2012] VSC 255 [15]-[43] (Whelan J) ('Sentencing Remarks').

[7] Ibid [32]-[43] (citations omitted).

[12] R v Mokbel [2012] VSC 86; (2012) 35 VR 156.

[19] Ibid [76]; Sentencing Act, s 6E.

[20] Sentencing Act, s 16(3C).

[24] Ibid. See Sentencing Act, s 5(2AA)(a).

[26] Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625, 647 [76] (Maxwell ACJ, Buchanan and Weinberg JJA).

[27] Mokbel v The Queen [2013] HCATrans 321.

[28] [1997] 2 VR 88.

[29] 2023 Sentence Variation [2023] VSCA 40; (2023) 375 FLR 290, 306-8 [62]-[68], 309 [72] (Emerton P, Beach and McLeish JJA).

[30] Ibid 301 [40(2)], 308 [69], 309 [72].

[36] The appellant referred to R v Eliasen (1991) 53 A Crim R 391, 396-7 (Crockett J, McGarvie J agreeing at 397, Phillips J agreeing at 397), citing R v Smith (1987) 44 SASR 587, 589 (King CJ, Cox J agreeing at 590, O'Loughlin J agreeing at 590).

[38] Mokbel v The King [2025] VSCA 62.

[40] Sentencing Act, s 6D(b).

[41] Dukic v The Queen [2021] VSCA 18 [34]-[35] (Ferguson CJ and Beach JA).

[42] Mokbel v The King [2025] VSCA 62 [38] (Emerton P, Osborn JA and Jane Dixon AJA).

[43] 2023 Sentence Variation [2023] VSCA 40; (2023) 375 FLR 290, 306 [61] (Emerton P, Beach and McLeish JJA).

[44] There is no difference in this respect from the equivalent power that exists on a first appeal: CPA s 277(3).

[45] We agree with the view taken by the Court when the sentence was previously varied that the heart attacks the appellant has suffered are an aspect of his ongoing heart disease which was accounted for in the original sentence.

[46] R v Renzella [1997] 2 VR 88, 96, 98 (Winneke P, Charles and Callaway JJA); see similarly, as to immigration detention, Underwood v The Queen [No 2] [2018] VSCA 87 [37] (Priest and McLeish JJA) and Sahhitanandan v The Queen [2019] VSCA 115 [32]-[36] (Priest, McLeish and Weinberg JJA).

[47] The respondent made submissions as to current sentencing practices, to which it is unnecessary to refer for that reason.

[48] Mokbel v The King [2025] VSCA 243 [723] (McLeish, Kennedy and Kaye JJA).