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[2011] VSCA 106
Court of Appeal (Vic)
2011-04-15
Mr J, Maxwell P, Weinberg JA, Harper JA
Original judgment source is linked above.
CRIMINAL LAW - Application for leave to appeal against sentence - Possession of substances and equipment with intention to use for the purpose of trafficking - Sentenced to six years' imprisonment with non-parole period of four years and six months - Intention to manufacture P2P, an ingredient in manufacture of methylamphetamine - Whether sentencing judge impermissibly assessed culpability in respect of methylamphetamine rather than P2P - Whether non-parole period too high - Whether sentencing judge erred in assessment of prospects of rehabilitation and benefit of parole - Parity - Effect of error made in calculating pre-sentence detention - Error corrected - Application for leave to appeal against sentence refused - Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71A - Sentencing Act 1991 (Vic) s 18(7).
1 On 2 August 2010, the applicant, Horty Mokbel, pleaded guilty in the Trial Division of the Supreme Court at Melbourne to one count of possession of various substances and equipment with the intention of using them for the purpose of trafficking in a drug of dependence, contrary to s 71A of the Drugs, Poisons and Controlled Substances Act 1981 ('the DPCS Act').
71A Possession of substance, material, documents or equipment for trafficking in a drug of dependence
(1) A person who, without being authorised by or licensed under this Act or the regulations to do so, possesses a substance, material, document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
3 The applicant was sentenced to a term of six years' imprisonment with a non-parole period of four years and six months.
4 By notice filed on 7 March 2011, the applicant seeks to rely upon the following six grounds of appeal:
5 The applicant was originally presented for trial with two co-accused, Stephen Gavanas and Mohammad Khodr. Among other things, the three of them were charged with conspiracy to manufacture methylamphetamine between 1 May 2006 and 9 October 2006. The case against the applicant was severed from that against his alleged fellow conspirators. Gavanas and Khodr stood trial and were acquitted of the conspiracy but were each convicted instead of a single count of possession, contrary to s 71A of the DPCS Act, and one count of trafficking in not less than a commercial quantity of a drug of dependence namely methylamphetamine, contrary to s 71AA of the DPCS Act.
6 The offence to which the applicant subsequently pleaded guilty, and which has given rise to this application, centred around conduct at particular premises in Pascoe Street, Pascoe Vale and various other locations. The Pascoe Street premises were leased by Gavanas in May 2006. From that time, and until Gavanas and Khodr were arrested in October 2006, chemicals and equipment that could be used for the purpose of manufacturing methylamphetamine were stored in the garage.
7 The charge to which the applicant pleaded guilty encompassed possession of the same chemicals as were kept at the Pascoe Street property, but extended also to a very substantial quantity of additional chemicals which were not the subject of the charge against Gavanas and Khodr. The charge against the applicant did not, however, encompass possession of the equipment which was the subject of the charge against Gavanas and Khodr.
8 The source of the chemicals in question was a man to whom the sentencing judge referred as GH. GH, in turn, acquired those chemicals from a man named Richard Scerri. By the time the applicant came to be sentenced, both GH and Scerri had pleaded guilty to various offences arising out of their activities, and had been sentenced.
9 The chemicals which the applicant had obtained from GH between 1 June 2006 and 4 April 2007 were the following:
10 These chemicals were said to be extremely valuable on the black market because they could be used to manufacture a substance known as phenyl-2-propanone ('P2P'). P2P is, itself, a drug of dependence, but it was common ground before us that the reason it is valuable is that it is used to manufacture methylamphetamine.
11 The sentencing judge observed in his reasons for sentence:
12 It should be noted that the applicant, though not in possession of the equipment located at the Pascoe Street premises, did plead guilty, in what was plainly a 'rolled up count', to possession, with the relevant intent, of certain other equipment that he had obtained from GH in 2007.
13 According to the applicant, he first met GH at a café in May 2006. They discussed various chemicals and, in particular, the capacity of GH to supply those chemicals to the applicant. The café in question was owned by a man named Joe Ferola. He was well known to the applicant and was, in 2006, the manufacturer of P2P for a drug organisation known as 'the Company'. That organisation engaged in the large-scale manufacture and sale of methylamphetamine. By the time the applicant came to be sentenced, the principals of 'the Company' had all pleaded guilty, and been sentenced.
14 Ferola had two sons, one of whom was an estate agent. It was that son who arranged to lease the Pascoe Street property to Gavanas.
15 Ferola died in February 2007. Up until the time of his death, Ferola had supplied P2P to 'the Company'. The various chemicals that the applicant had acquired from GH were provided to Ferola. It was clear, on the plea, that the applicant acknowledged that he had supplied these chemicals to Ferola, and also acknowledged that Ferola had used them to produce P2P. It was also clear that Ferola provided the P2P to 'the Company', and that it was used in the manufacture of methylamphetamine.
16 On 9 October 2006, police raided the Pascoe Street premises and Gavanas and Khodr were arrested. Despite that setback, the applicant continued to acquire chemicals from GH thereafter. Indeed, the quantities of the chemicals so obtained increased significantly after the raid on the Pascoe Street premises
17 After Ferola's death, in February 2007, there was a need for someone else to provide P2P to those who ran 'the Company'. The applicant stepped in to the role previously occupied by Ferola. It was he who arranged deliveries of substantial quantities of chemicals, all intended to be used in the production of P2P, to one Joseph Mansour. Mansour was a principal, along with Bartholomew Rizzo, of 'the Company'.
18 During the course of the plea, counsel who appeared for the applicant submitted that it was important for the sentencing judge to be mindful of the exact nature of the charge to which his client pleaded guilty. He emphasised that the drug of dependence which the applicant intended would be trafficked was P2P, and not methylamphetamine. As will be seen, there was a lengthy debate during the course of the plea on precisely that issue.
19 The applicant had several prior convictions for offences of dishonesty and violence, and several serious driving offences. None of his prior convictions involved drugs. He had previously been imprisoned for those offences, but on each occasion the sentences were wholly suspended.
20 In his reasons for sentence, the sentencing judge outlined the applicant's history and background:
21 The applicant was arrested on 13 April 2007, and originally charged with various drug matters unrelated to those that are the subject of this application. He was eventually acquitted of those unrelated charges in October 2008. However, he had been on remand since his arrest in April 2007. As the sentencing judge observed:
22 His Honour then outlined various matters of mitigation relevant to this offence. These included the applicant's plea of guilty, the delay in finalising the matters alleged, the ordeal of standing trial for another matter which had resulted in an acquittal, and the particularly burdensome circumstances of the applicant's incarceration. He referred specifically to a psychological report prepared by Mr Patrick Newton, to which we shall shortly return.
23 The sentencing judge also referred to considerations of parity. He noted that both GH and Scerri had pleaded guilty to a charge of trafficking in a large commercial quantity of methylamphetamine, and that Scerri had also pleaded guilty to a Commonwealth offence, namely importing a border-controlled precursor, phenylacetic acid.
24 GH had been sentenced to a term of three years' imprisonment, wholly suspended. Initially, Scerri received a total effective sentence of 11 years' imprisonment with a minimum term of eight years, but that was reduced on appeal, mainly on parity grounds, to one of six years' imprisonment with a non parole period of four years.[1] Both GH and Scerri had pleaded guilty. Importantly, each of them had given an undertaking to give evidence for the prosecution.
25 His Honour also had regard, for parity purposes, to the sentences that he was about to impose upon Gavanas and Khodr, who were sentenced later that same day. He regarded the applicant's conduct as more serious than theirs because of the greater quantities of chemicals that he possessed. He also regarded the applicant's role in the acquisition of those chemicals as more central than that of Gavanas and Khodr.
26 The sentencing judge described the applicant's offending as 'a very serious instance of this offence, one at the top of the range'. Indeed, he said that had the applicant not pleaded guilty, this was a case in which he would have imposed a sentence approaching the maximum of 10 years' imprisonment. He described the offending as approaching the worst category of cases for which the penalty was prescribed. He referred to comparative sentences in other matters, which indicated that sentences imposed after a guilty plea for the offence of possession of substances and equipment intended to be used for the purpose of trafficking were commonly in the range of one to three years' imprisonment, with the highest recorded sentence being a term of five years' imprisonment. He concluded that the circumstances surrounding the applicant's offending were 'the most serious' of those in the cases that had been compiled by counsel.
27 After expressing doubts about the applicant's prospects of rehabilitation, and stating that parole would be of 'limited benefit' in the circumstances of this case, his Honour sentenced the applicant as previously discussed.
28 Counsel who appeared for the applicant before this Court submitted that the sentencing judge erred in his assessment of the applicant's culpability by treating him as having possessed the chemicals and equipment, which were the subject of the count to which he pleaded guilty, with the intention of using those chemicals and equipment for the purpose of trafficking, not in P2P, as his Honour ought to have done, but rather in methylamphetamine.
29 The count itself, as pleaded, alleged possession with the intention of use for the purpose of trafficking 'in a drug of dependence'. However, the plea was conducted on the basis that the 'drug of dependence' to which the count related was P2P, and not methylamphetamine.
30 The transcript of the plea is illuminating. Counsel who appeared for the applicant said as follows:
It is also admitted that the chemicals of which Mr Mokbel became possessed were possessed for the intention of trafficking in a drug of dependence, he's pleaded to that, but the drug of dependence in the main, in essence, was P2P and I will come to that in due course. True it is that P2P is a stepping stone to the manufacture of methylamphetamine but P2P is itself a drug of dependence for the purposes of the Drugs Poisons and Controlled Substances Act but I come to that in a moment.
31 The prosecutor who appeared on the plea challenged that submission, saying:
As I said, in certain circumstances, the offence could be satisfied by the intent to possess for the traffic of P2P but that's not the case here; the case has always been put on the basis that it was ultimately possession with the intent to traffic in methylamphetamine. The section, we say, ought to be interpreted broadly and it should be interpreted in circumstances where it can be satisfied by the offender acting by himself as being the person that will ultimately manufacture the methylamphetamine, or with others with whom he is involved in order to traffic the methylamphetamine, that is in this case namely to manufacture it.
The other point is does it matter. [Defence counsel] has put it on the basis that P2P is valuable because it can be used to manufacture methylamphetamine but he has always, and again this isn't before me but I am just telling you because I think it informs the way he's put it, that the [materials in a related proceeding] rather suggest that the company separated the functions of the P2 production and methylamphetamine production. I am sure the case for the Crown is going to be that Tony Mokbel, Bart Rizza and Joseph Mansour were co-ordinating both limbs, but there is that functional separation in the way the case is put in that particular case.
33 Finally, his Honour resolved the dispute between the parties by making it clear that he would sentence the applicant on the basis that it was his intent to use the chemicals and equipment for the purpose of trafficking in P2P, and for no other wider purpose:
HIS HONOUR: Then on the P2P/methylamphetamine point, as things stand I will proceed on the basis that his intention was to traffic in P2P.
HIS HONOUR: Which is valuable because it can be made into methylamphetamine. Now if you want to call evidence to persuade me I should go a different way, then that's where we are.
[PROSECUTOR]: I don't want to turn this into an exercise in spending hours calling evidence before Your Honour. We have made the argument about what we say.
34 Ground 1 contends, in substance, that despite ruling in favour of the applicant's submission on the plea, the sentencing judge in fact sentenced the applicant on the basis that he possessed the relevant chemicals and equipment with the intention of using them for the purpose of trafficking in methylamphetamine, and not merely P2P. In support of that ground, counsel for the applicant drew attention to two quite separate observations in his Honour's sentencing remarks. First, his Honour said:
35 As will be seen, however, this passage must be understood in the light of the paragraph that immediately precedes it:
36 His Honour subsequently returned to the point, and said in the second of the impugned passages:
37 In our view, this ground is not made out. A judge's sentencing remarks are not to be read as though they were the words of a statute. They must be read, and understood, in the context of the reasons for sentence taken as a whole. They must also be read and understood against the background of what was said by counsel and by the judge during the course of the plea. As noted earlier, his Honour had expressly ruled, after lengthy argument, that he would not sentence the applicant on the basis of any intent to traffick in methylamphetamine. It is simply fanciful to suggest that that fact escaped his Honour's recollection, or that he altered his position without giving any notice of intending to do so, when he finally came to impose sentence.
38 In our opinion, it was open to his Honour to find that the applicant's conduct, in the commission of what is essentially a preparatory offence, was a link in a chain of a larger criminal enterprise which was directed to the production of methylamphetamine. The two passages in his Honour's sentencing remarks to which the applicant now takes exception are, at worst from the Crown's perspective, somewhat loosely expressed. They are perfectly capable of being read as reflecting not a finding that the applicant personally was working towards, or had the purpose of, illegally producing methylamphetamine, but rather that the enterprise with which he was linked, and to which he was providing chemicals, was directed at that purpose.
39 In other words, the passages in question can - and in our opinion should - be read as nothing more than putting the applicant's conduct into context. They should not be read as imputing to the applicant personally an intention directed to the production of methylamphetamine. As we have already said, to do so would fly directly in the face of his Honour's statement, during the course of the plea, that he rejected the Crown's argument to that effect.
40 That conclusion is fortified by his Honour's reference, in the paragraph immediately preceding that to which exception is taken, to the need to ensure that a consideration of the relevant circumstances of the offending did not lead to a sentence being imposed for an offence of which the applicant had not been convicted. Indeed, his Honour referred specifically to authority for that proposition.[3]
41 We do not accept that the applicant was sentenced for an offence of which he was not convicted. Ground 1 must therefore fail.
42 These two grounds can be dealt with together. Counsel for the applicant submitted that the sentencing judge had erred in two separate respects in fixing a non-parole period of four years and six months, in relation to a head sentence of six years. In the first place, his Honour ought not to have concluded that he was 'not optimistic' about the applicant's prospects of rehabilitation, based solely upon the nature of and motivation for his conduct. In the same vein, he should not have concluded that parole would be of 'limited benefit' and that the period of eligibility for parole should reflect that fact.
43 It was also submitted, under the general ambit of these grounds, that the sentencing judge ought not to have set such a high non-parole period, relative to the head sentence.
44 Counsel pointed to the fact that the applicant had no prior convictions for drug offences. Moreover, there was no evidence that he had ever misbehaved whilst on remand. The only basis identified by his Honour for doubting the applicant's prospects of rehabilitation was the nature of his offending in relation to this particular offence, committed some years before the applicant was sentenced. In counsel's submission, every person involved in the drug trade could be characterised as having limited prospects of rehabilitation if regard were had only to the gravity of the offending. In any event, a lack of optimism about prospects of rehabilitation would not lead to the conclusion that parole would be of limited benefit.
45 In our view, the sentencing judge did not fall into error by expressing, as he did, a lack of optimism as to the applicant's prospects of rehabilitation. It should be noted that not a word was said on the plea about those prospects of rehabilitation. That, of itself, is of some significance. In addition, there was nothing said about remorse, separate from the utilitarian value of the plea of guilty.
46 As stated earlier in this judgment, the applicant tendered a report from Mr Newton. Once again, it is a singular feature of the report that very little, if anything, was said about either rehabilitation or remorse. Mr Newton did record that the applicant recognised that his time in the Acacia Unit at Barwon Prison had changed him, and that he felt wary and unsure of himself as he contemplated his return to mainstream society. Mr Newton added that the applicant recognised that the task of learning to function in the world at large would be challenging, as would be the job of rebuilding his marriage, finding fulfilling work and re-engaging with the roles of husband and father. The applicant recognised that he had become, to some extent, institutionalised, and that any path to rehabilitation would have to encompass steps to overcome the impact of his lengthy imprisonment. Once again, laudatory as this step towards self-awareness might have been, it could hardly be regarded as necessitating a finding that the applicant now had reasonable prospects of rehabilitation.
47 The evidence was that the applicant had continued to offend by possessing the chemicals and equipment the subject of the count over a period of some months. This was a planned and highly organised crime, carried out for financial gain on a significant scale. It is important to note that the applicant did not desist from his criminality even after October 2006, when Gavanas and Khodr were arrested. Specific deterrence necessarily loomed large in the sentencing judge's consideration.
48 In these circumstances, his Honour was perfectly entitled to express a lack of optimism about prospects of rehabilitation. He was also entitled, in our view, to conclude that, having regard to the matters to which he referred, a lengthy period of parole would be of 'limited benefit'.
49 For much the same reason, there was nothing wrong with fixing a non-parole period at the ratio of 75 per cent of the head sentence. That ratio was not so unusual as to call for any special comment or explanation by his Honour. The reason it was selected was self-evident, having regard to the matters set out by his Honour in his sentencing remarks.
51 The next two grounds relate to parity, in particular parity with Scerri, but also to a lesser degree with GH.
52 Scerri was originally sentenced in the County Court to a total of 11 years with a non-parole period of eight years. He appealed against that sentence. On 28 October 2010, that appeal was allowed and Scerri was sentenced to be imprisoned for five years with a non-parole period of three years on the State count and five years with a non-parole period of three years on the Commonwealth count. The total effective sentence was six years' imprisonment with a non-parole period of four years.
53 Counsel for the applicant submitted that, in considering Scerri for parity purposes, the sentencing judge should have referred only to the State count (for which Scerri was sentenced to five years' imprisonment with a non-parole period of three years). Counsel submitted that his Honour had erred by referring to the total effective sentence imposed on Scerri (of six years with a non-parole period of four years), because that included a component which related to the Commonwealth count, an offence that was wholly irrelevant to any consideration of parity between the applicant and Scerri.
54 Counsel for the applicant also submitted that, notwithstanding the discount received by both GH and Scerri for cooperation, the following factors were sufficient to require the imposition on the applicant of a sentence at least no greater than that imposed on Scerri for the State count:
55 The Crown submitted that it was unlikely that his Honour mistakenly included the Commonwealth component of Scerri's sentence when considering parity. It was pointed out that, in the passage dealing with parity in the sentencing remarks, the judge referred specifically to the fact that Scerri had 'also pleaded guilty to a Commonwealth offence of importing a border control led pre-cursor'. The Crown also submitted that disparate sentences were appropriate, because both GH and Scerri had undertaken to give evidence for the prosecution, and had each accordingly been given a significant discount.
56 In our opinion, the Crown's submissions should be accepted.
57 As we have indicated, Scerri received a total effective sentence of six years with a non-parole period of four years. We have already noted that Scerri's sentence was reduced from 11 years to six years largely on the basis of parity with GH. It should also be noted that Scerri, unlike the applicant, had no prior convictions, and seemed to have relatively good prospects of rehabilitation. This Court observed, in the appeal brought by Scerri, that the sentencing judge who had dealt with him appeared not to have been given accurate information about the nature and extent of his cooperation. In particular he had erroneously characterised the evidence that Scerri would be able to give as being only of 'limited value'.
58 Of particular importance in considering the relevance of Scerri's sentence are the observations of this Court regarding the role played by both him and GH in relation to this drug-trafficking enterprise. GH was described by the County Court judge who sentenced him as a 'salaried middle-man', who played only a limited role in the supply of chemicals for the purpose of manufacturing drugs. This Court, in allowing Scerri's appeal, characterised Scerri as having played essentially the same role as GH, and described him as having 'relative detachment from the core activities of the syndicate'.[4]
59 Unquestionably, the applicant played a more central role than GH or Scerri did in the drug-trafficking enterprise that 'the Company' conducted. It was the applicant who received the various chemicals from GH (who had in turn received them from Scerri). It was the applicant who supplied those chemicals directly to the syndicate. There was no suggestion, in the present case, that the applicant should be viewed merely as a 'salaried middle-man'. He was, in fact, a principal who supplied large quantities of chemicals to a major drug-trafficking syndicate, and he did so for substantial financial gain.
60 In our opinion, neither GH nor Scerri should be viewed as an appropriate comparator. Neither the extraordinarily lenient treatment accorded to GH nor the sentence ultimately imposed on Scerri obliged the judge to impose a lower sentence on the applicant. Put another way, it was reasonably open to his Honour to sentence the applicant as he did, proper regard being had to the similarities and differences between his case and the cases of GH and Scerri respectively.[5]
61 Grounds 4 and 5 should be rejected. The application for leave to appeal against sentence must therefore be refused.
62 Finally, the applicant relies upon an error said to have been made in relation to the calculation of a period of pre-sentence detention pursuant to s 18(6) of the Sentencing Act 1991. The applicant claims that he ought to have been given credit for 1,304 days, but the sentencing judge mistakenly calculated only 1,274 days. The respondent concedes that there has been a miscalculation.
63 On any view, that error should be corrected. A new direction which sets out the correct period of pre-sentence detention will be made.[6]
[1] Scerri v The Queen [2010] VSCA 287.
[3] R v Newman and Turnbull [1997] 1 VR 146, 150-152; El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208.
[4] [2010] VSCA 287, [42].
[5] See Teng v R [2009] VSCA 148; (2009) 22 VR 706, [17].
[6] The Court has been invited by both parties to exercise a power said to be implicit in s 18(7) of the Sentencing Act 1991 to correct an error made in a declaration as to pre-sentence detention, and to declare the correct period and amend the sentence accordingly. Though the sub-section speaks only of the 'sentencing court' having that power, it is at least arguable that it extends to this Court when, during the course of an appeal against sentence, it detects error in the period declared below.
# Mokbel
The Queen \[2011\] VSCA 106
(2009) 22 VR 706