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[2011] VSCA 34
Court of Appeal (Vic)
2011-02-18
Neave JA, Nettle JA
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Applicant pleaded guilty to a count of blackmail and multiple counts of dealing with the proceeds of crime and trafficking or attempted trafficking of drugs of dependence - Plea hearing in respect of all counts commenced before date on which s 6AAA commenced - New presentment filed over for blackmail count after commencement - Section 6AAA declaration only made in respect of blackmail count - Whether failure to make s 6AAA declarations in respect of total effective sentence and non-parole period amounted to sentencing error - Sentencing Act 1991, ss 6AAA, 135 - R v Scerri [2010] VSCA 287, applied - Whether trafficking or attempt to traffick less serious offences because committed in context of police operation, agent provocateur and inert substance - R v Mihalo [2002] VSCA 217; (2002) 136 A Crim R 588, applied - R v Rahme (1993) 15 A Crim R 8, distinguished - Cumulation of particular counts appropriate given separate instances of criminality - Sentences not manifestly excessive - Application refused.
1 I agree with Neave JA that the application for leave to appeal against sentence should be refused.
2 The applicant, Milad Mokbel, pleaded guilty to counts of blackmail (count 1),[1] knowingly dealing with the proceeds of crime with the intent to conceal (count 2), trafficking in a drug of dependence being a commercial quantity (count 3), trafficking in a drug of dependence being a large commercial quantity (count 4), attempting to traffick a drug of dependence being a large commercial quantity (count 5) and knowingly dealing with the proceeds of crime (count 6).
3 After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the applicant as follows:
Knowingly dealing with the proceeds of crime with the intent to conceal[2]
Trafficking in a drug of dependence being a commercial quantity[3]
Trafficking in a drug of dependence being a large commercial quantity[4]
Attempting to traffick a drug of dependence being a large commercial quantity[5]
Knowingly dealing with the proceeds of crime[6]
Pursuant to Part 2A of the Sentencing Act 1991, the applicant was sentenced as a serious drug offender on counts 4 and 5. The individual sentences and orders for cumulation amounted to a total effective term of 11 years. The judge ordered that the applicant serve a non-parole period of 8 years.
4 The applicant now seeks leave to appeal against sentence.
5 The following description of the offending is based on her Honour's reasons.
6 Count 1 in Presentment C0605102.1 relates to a threat the applicant made in a telephone call to Mr Douglas Harle on 22 October 2003. Mr Harle had purchased a large property in East Gippsland for development purposes and the applicant had lent Mr Jacob Smit $500,000 to invest in the development. At some point in late 2002, Mr Harle received an offer from a company to buy 50 per cent of the project. Mr Harle rejected that offer in August 2003. Shortly afterwards, on 5 September 2003, the applicant contacted Mr Harle and informed him that he had lent Mr Smit $500,000 and required $1.35 million to be returned to him as soon as possible. At a meeting organised between the applicant and Mr Harle and his wife, the applicant told Mr Harle and his wife that the money was originally borrowed from 'the Mr Big of the drug world' and had to be returned as soon as possible. He was informed that Mr Harle would repay Smit the $500,000 he invested but no further amounts.
7 On 22 October 2003, Mr Harle received a telephone call from the applicant, who did not identify himself but whose voice was recognised by Mr Harle. The applicant told Mr Harle that he would be approached by someone in the next couple of days and instructed him to sign the agreement with the company. (In fact Mr Harle had already done so). The applicant also said words to the effect: 'Tell your wife with the Luna Park mouth to shut up or the last thing you will see is my eyes at four in the morning'. Mr Harle believed that he and his wife were being threatened with death and reported the threat to the police.
8 Count 2 in Presentment C0605102 arises out of a police search of the house of Mr Gary Gibbs, the uncle of the applicant's wife, on 5 September 2006. The police found jewellery and $336,833 in cash hidden in a shed and a number of sealed sections of PVC pipe which were buried in garden beds. The jewellery was later valued at $183,145. Because the applicant's wife, Renate, had sought an exclusion order in respect of a significant proportion of the jewellery, the judge considered it unnecessary to quantify its value. The judge was satisfied that the applicant was not responsible for the decision to bury the money and jewellery but that on three occasions between 1 September 2005 and 5 September 2006 he had asked Mr Gibbs to look after it.
9 The remaining counts in Presentment C0605102, counts 3 to 6, concern the applicant's involvement with the drug cook, XX. In the early months of 2006, XX visited the applicant's home and they discussed arrangements for the provision of equipment necessary to produce amphetamine. The applicant informed XX that he had 26 litres of ketone (also known as phenyl-2-propanone), coming to him. Ketone is a drug of dependence and a key ingredient of amphetamine. In March 2006, the applicant again spoke to XX about turning the ketone into amphetamine and discussed pricing.
10 On 8 April 2006, XX went to the applicant's son's birthday party, where the applicant told him that he had 13 of the 26 litres of ketone promised to him and asked XX to pick it up at his house. XX's attempt to do so on 10 April 2006 was aborted because of concerns about police surveillance. Another attempt made on the same day by an associate of the applicant, Toreq El Bayeh, was abandoned for similar reasons. On 11 April 2006, Mr El Bayeh delivered the package to another man, Akl Hammoud, who was arrested shortly afterwards. It was not contested that the applicant was the principal in this trafficking offence. Analysis of the substance showed it was constituted by, among other substances, 11.2 kilograms of ketone. At that time no large commercial quantity of ketone was specified in the Drugs, Poisons and Controlled Substances Act 1981.[7] A commercial quantity of ketone was 2 kilograms.[8] This conduct constituted count 3.
11 XX was arrested at a clandestine drug laboratory on 22 April 2006. He agreed to assist police with their investigations and received an immunity under s 51 of the Drugs, Poisons and Controlled Substances Act 1981. On 23 and 24 April 2006, he spoke with the applicant at the Grove Café while wearing a concealed recording device and responded in the affirmative when asked by the applicant whether he had any 'gear' available. Arrangements were finalised on 24 April 2006 for the sale and purchase of five pounds of methylamphetamine for $37,500 per pound. The basis of the applicant's guilty plea on the count was as an aider and abettor to XX's trafficking. The amount of pure methylamphetamine proposed to be sold was 2.2 kilograms. A large commercial quantity of methylamphetamine is 750 grams, when in a pure form, or 2.5 kilograms, when mixed with another substance.[9] This conduct constituted count 4.
12 Count 5 relates to the purported delivery of five pounds of methylamphetamine (the amount previously discussed) to the applicant's home. On 25 April 2006, XX, while wearing a concealed recording device, visited the applicant's home with a package wrapped as a gift. The package contained five pounds of an inert substance purporting to be methylamphetamine. The applicant handed XX a cardboard box said to contain $87,000. The applicant escorted XX to his car and both were arrested minutes later.
13 Police then conducted a search of the applicant's house. He declined to comment after being asked whether there were any drugs or large amounts of cash located on the property. The applicant also denied having seen the gift wrapped package before. Police located cash and equipment associated with drug trafficking, including cutters, scales and a powdered cutting agent. The cash contained in the cardboard box given to the applicant totalled $88,750 and when added to the cash found in the house, came to $116,255. That amount forms the subject of count 6.
14 The applicant was aged between 35 and 38 years during the period of the offending and aged 40 at the date of sentence. He admitted three prior convictions arising from three appearances before the Magistrates' Court, for causing injury recklessly, driving a motor vehicle whilst disqualified and unlawful assault.
15 The applicant is the youngest of five children and arrived in Australia with his family when aged 6. His father's death when the applicant was aged 12, was said to have had a profound effect on the applicant and other family members.
16 He left school at 15 to commence an apprenticeship as a chef at a Boronia restaurant, before working at a restaurant in which his elder brothers had an interest. He worked in that role until he was 22. At roughly the same time, between the ages of 19 and 23, the applicant also worked as a courier. The applicant then returned to work on weekends at the restaurant in Boronia, which had since been purchased by his brother Tony. He worked there until aged 28, when the business was sold. The applicant then invested in a hydroponic business, which was quite successful and enabled him and his wife, Renate Mokbel, to purchase a butcher shop in Brunswick which also became successful. In 2004, he sold the shop and by 2005 was heavily involved in gambling. He has not been engaged in full-time employment since the sale of the butcher shop.
17 At the date of sentence, the applicant had a close relationship with his three children, aged 16, 12 and 4, and his wife, who was in custody for perjury offences but was due to be released about 10 months later in October 2009.
18 A psychological report prepared by Mr Patrick Newton was tendered. Mr Newton said that the applicant had symptoms of anxiety and depression, precipitated by his concerns about his children and wife, and the psychological impact of being held in the high security unit at Barwon Prison. He said that the applicant's symptoms were not sufficiently severe to warrant a diagnosis of a major affective disorder or of a primary anxiety disorder, but diagnosed the applicant as having an Adjustment Disorder. He assessed the applicant as being at 'some risk of developing a mood or anxiety-related disorder if he were to continue to be incarcerated in his current circumstances for longer than the short-term', but concluded that 'his overall psychological adjustment is stable and generally good' and that he was of above average intelligence.
19 The grounds of appeal against sentence were as follows:
20 Section 6AAA was inserted into the Sentencing Act 1991 by s 3 of the Criminal Procedure Legislation Amendment Act 2008, which commenced on 1 July 2008.[10] Sections 6AAA(1), (2) and (4) provide as follows:
(1) If -
(a) in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and
(b) the sentence imposed on the offender is or includes -
(i) an order under Division 2 of Part 3; or
(ii) a fine exceeding 10 penalty units; or
(iii) an aggregate fine exceeding 20 penalty units -
the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.
(2) If an offender is sentenced for more than one offence in the same proceeding and subsection (1)(a) and (b) apply, the court must state, in respect of any total effective period of imprisonment -
(a) the sentence; and
(b) the non-parole period, if any -
...
(4) If a court makes a statement under this section, it must cause to be noted in the records of the court, in respect of each offence and the total effective period of imprisonment, if any, the sentence and non-parole period, if any that it would have imposed but for the plea of guilty.
21 Section 135 of the Sentencing Act 1991 provides that:
Section 6AAA as inserted by the Criminal Procedure Legislation Amendment Act 2008 applies to a sentence imposed on or after the commencement of s 3 of the Act if the plea hearing commences on or after the commencement.
22 The judge declared that, if the applicant had not pleaded guilty to the blackmail count, she would have imposed a sentence of three year's imprisonment and fixed a non-parole period in the vicinity of two years for that offence. However her Honour did not make a statement in relation to the individual sentences imposed on the offences in Presentment C0605102, the total effective sentence or the non-parole period.
23 This occurred because all the offences were originally joined in the same presentment (Presentment C0605102) and because the plea hearing on that presentment began on 20 June 2008. As a result of concerns expressed by the judge about the joinder of the blackmail count with the other counts, the blackmail count in the original presentment was stayed and a new presentment was filed over in relation to that count (the 'new count 1').
24 After the applicant was arraigned on the new presentment on 17 December 2008 and pleaded guilty to the new count 1, the judge was told by counsel for the Crown that s 6AAA would only apply to the new count 1 because the arraignment for the other offences had already occurred and the plea hearing had commenced before s 6AAA came into operation. The applicant's counsel did not make any contrary submission.
25 Counsel for the applicant on the application for leave to appeal submitted that, because the blackmail count was contained in a new presentment, the plea hearing in relation to that count began after the commencement date. Since s 6AAA(2) required a statement to be made relating to the total effective sentence and non-parole period, and those sentences took account of the sentences imposed on the remaining offences in Presentment C0605102, the judge was required to make a statement relating to these sentences under s 6AAA(2). Section 6AAA was intended to produce greater transparency in sentencing and it would defeat its purpose to interpret s 6AAA(2) as applicable only where the section applied to every offence.
26 Counsel for the applicant submitted that the judge's failure to make s 6AAA declarations in respect of the individual sentences imposed on the counts in Presentment C0605102, the total effective sentence and the non-parole period vitiated the sentences, and required re-sentencing of the applicant. In R v Burke,[11] it was held that no appeal lay under s 567(d) of the Crimes Act 1958 against the notional sentence imposed under s 6AAA, because it was not part of the sentence imposed. Counsel submitted that Burke was distinguishable because in that case the appellant appealed against the notional sentence announced in accordance with s 6AAA. In this case, by contrast, ground 1 challenged the actual sentences imposed because the sentencing process was itself flawed.
27 It was said to be a sentencing error for her Honour to consider the sentence she would have imposed if the applicant had not pleaded guilty to the new count 1, without undertaking the same process for the offences in Presentment C0605102. The judge had, in effect, arrived at an instinctive synthesis in relation to the individual sentences imposed on the offences in Presentment C0605102, but had relied on a two-stage process in relation to the new count 1. This partial compliance with s 6AAA, when the judge should have applied the provision to all of the offences, invalidated the sentencing process. Thus this case was distinguishable from R v Scerri,[12] where a failure to make a s 6AAA statement was held not to vitiate the sentence.
28 Counsel for the Crown submitted that the Court's appellate jurisdiction did not apply to an order under s 6AAA, because s 566 of the Crimes Act 1958, which defines 'sentence' for the purposes of appeals, does not refer to an order under s 6AAA,[13] or to Part 2 of the Sentencing Act 1991 in which s 6AAA is to be found. By contrast, s 566 does refer to any order made under Parts 3, 3A, 4 or 5 of the Sentencing Act 1991. Moreover, no objection had been made to the s 6AAA declaration at the plea hearing or after her Honour passed sentence. Finally, even if there was an error in the sentencing process by reason of her Honour's failure to make a statement covering all the offences under s 6AAA(2), no different sentence should be passed.
29 In R v Novakovic,[14] this Court held that the definition of sentence in s 566 of the Crimes Act 1958 was an inclusive one extending, at least, to orders which may be sentences according to ordinary conceptions, and that the omission in the section of a reference to an order under s 28(1)(b) of the Road Safety Act 1986 did not prevent an appeal against such an order. Whether or not the Crown's submission based on s 566 is correct, the decision of this court in Burke dictates the same conclusion.
30 Further, in my opinion s 6AAA(2) did not require a statement to be made in relation to the offences in Presentment C0605102, because the plea hearing in respect of those sentences commenced before s 6AAA came into operation.
31 Even if I am wrong in that view, I would reject this ground of appeal. In R v O'Blein,[15] this Court assumed that a failure to comply with s 6AAA by failing to specify the non-parole period, which would have been imposed had the accused not pleaded guilty, could vitiate the sentence or sentences imposed. It was held not to have done so because the discount on the non-parole period which had been allowed for the guilty plea could be ascertained from the sentencing reasons as a whole.
As to non-compliance with s 6AAA(2), it is true that the sentencing judge did not in terms state the total effective sentence and non-parole period he would have imposed but for the plea of guilty. But he did identify the discount that he had made for the plea of guilty, which might be thought to have conveyed the essential information. In any event, the notional sentence pronounced pursuant to the provisions of s 6AAA is not part of the sentence imposed from which an appeal lies.[18]
33 In the instant case, by contrast to Scerri, her Honour did not specifically refer to any discount for the offences in Presentment C0605102. However, her reasons made it clear that she had given weight to the applicant's guilty plea. She said that:
In sentencing you, I take into account your plea of guilty, the time at which those pleas were entered and the time at which you indicated, through your solicitors, your preparedness to negotiate a plea of guilty. I give you a discount for so pleading.
I take into account also that by reason of your pleas, you have saved the community the cost of two trials, both of which may well have been protracted and that by your pleas you have facilitated the administration of justice and have obviated the necessity of witnesses being called to give evidence.[19]
34 The Court in Scerri also said that a complaint about the discount for the plea of guilty can 'only ever be a particular of a ground contending that the sentence is manifestly excessive'.[20] If that is so, it would be another reason for rejecting ground 1. In the circumstances of this case, the complaint about the discount for the guilty plea was no more than a complaint about manifest excess. As I explain in relation to ground 8, the applicant's complaint of manifest excess is not made out.
35 It is enough for present purposes that a sentence is not vitiated simply because the sentencing judge did not comply with s 6AAA.
36 Finally, and in any event, I do not consider that different individual sentences or a different total effective sentence should have been passed.[21] This ground fails.
37 Grounds 2 and 3 relate to her Honour's characterisation of counts 4 and 5 as 'extremely serious examples of very serious crimes'[22] and to the sentences she imposed on these offences. Similar complaint was made under cover of ground 6, which was limited to count 4. Counsel for the applicant conceded that her Honour had correctly described count 3 as a very serious offence, but relied on an alleged failure by the Crown to submit that counts 4 and 5 were very serious examples of the relevant offences at the plea hearing.
38 The applicant's counsel submitted that these offences should not have been described as very serious because they arose out of a police operation, involving the use of a confidential informant. While it was conceded that the applicant's moral culpability was not lessened because, unbeknownst to him, the offences occurred in the context of a police 'sting', counsel for the applicant submitted that her Honour should have given weight to the fact that no one was placed at risk by the offending and that count 5 involved the substitution of a harmless substance for the methylamphetamine intended to be trafficked.
39 It was submitted that this had to be taken into account by her Honour under s 5(2)(daa) of the Sentencing Act 1991, which requires the Court to take account of the impact of the offence on any victim, and s 5(2)(db), which refers to 'any injury, loss or damage resulting directly from the offence'. In support of that submission, counsel for the applicant relied on the statement of this Court in R v Pidoto[23] that rejection of the argument that the gravity of drug offences depended on the harmfulness of the particular drug trafficked did not
prevent the sentencing court from taking into account evidence as to the harm caused by the particular conduct of which the offender has been convicted. The harm attributable to the conduct in question is as relevant as any other factor peculiar to the offending or the offender.[24]
40 Counsel also submitted that her Honour's error was demonstrated by the fact that identical sentences were imposed on counts 3 and 4. The former count involved actual, rather than substituted, illicit substances and should have resulted in a relatively higher sentence than the sentence imposed on count 4.[25]
41 In reply, counsel for the Crown submitted that the offences covered by counts 4 and 5 were primarily directed at the potential harm caused by trafficking or attempting to traffick in drugs. That potential harm was not diminished by the fact that the drugs did not reach members of the public, and that count 5, in fact, involved a harmless substance. The issue of harm or lack of harm to persons who used drugs of dependence would become relevant only if the drugs came into the hands of a user. In support of that submission, counsel relied on the decision of this Court in R v Spaull,[26] that:
[the trial judge] was entitled ... to gauge the criminality of the conduct of the applicants not by reference to what they had in fact achieved but rather by the potential consequences of what they had set out to achieve. The fact that their own ineptitude prevented the consequences from inflicting more damage on the intended victims than they had hoped or intended does not, in our view, prevent the sentencing judge from considering the potential of their criminal conduct by reference to their intent when assessing its criminality. The criminality of a person who plants a bomb intending that it should explode in a department store is not to be measured by the fact that his lack of expertise prevented the objective from being achieved. In this regard the judge measures the level of criminality by reference to the potential of the consequences intended by the accused.[27] [emphasis added]
42 In my opinion, grounds 2, 3 and 6 must fail. Her Honour did not err in characterising the offences as 'very serious crimes'.[28] Nothing can be made of the fact that, at the plea hearing, counsel for the Crown did not refer to the offences covered by counts 4 and 5 as 'extreme examples of very serious crimes', when it was in fact submitted that counts 4 and 5 involved trafficking at a 'very high level'. Counts 4 and 5 (the attempt count) involved almost three times the amount fixed as a large commercial quantity of the drug.
43 The fact that count 5 involved only an attempt to traffick in a large quantity of a drug of dependence, because a benign substance was substituted for the drug, does not reduce the gravity of the offence. The offence of trafficking covers both the doing of an act which comes within the definition of traffick[29] and an attempt to do such an act[30] and the same maximum penalty applies to both offences. This does not mean that the same sentence should always be imposed for an attempt to traffick, as for a completed trafficking offence. But it supports the Crown's submission that the offence is intended to deal with the potential harm caused by trafficking in illicit drugs. The reason for this approach was explained by Eames JA in R v Mihalo[31] as follows:
this is a category of criminal enterprise where, as in this case, many arrests are made by the employment of undercover law enforcement agents. Parliament might well conclude that in such circumstances the culpability of those who attempt to traffick drugs, but are thwarted in their attempt, may in some cases be no less than that of offenders who succeed in their endeavours to traffick drugs. There is, in other words, nothing illogical in treating attempted trafficking as worthy of the same maximum penalty as applies to a completed offence. The extracts of the Second Reading Speech[32] of the Minister of Health relating to the introduction of the amending legislation in 1983, to which we were referred, demonstrate clearly that it was a deliberate decision to have attempts dealt with in similar fashion to completed offences.[33]
44 The applicant sought to traffick in a significant quantity of drugs and it was he who approached XX as to the availability of the drugs and made arrangements for their purchase. Unlike R v Rahme,[34] on which counsel for the applicant relied, this was not a case in which an agent provocateur had pushed the offender into supplying a larger amount of the drug than he might otherwise have done. In these circumstances, both deterrence and denunciation of the offending had to be given considerable weight in sentencing the applicant. The fact that the applicant did not achieve his goal of buying methylamphetamine for the purpose of distributing it to the public did not diminish his moral culpability or the gravity of his offending, simply because that goal was thwarted or because, in the case of count 5, the police replaced the drug with a harmless substance.
45 Nor do I accept the applicant's submission that error is demonstrated by the imposition of an identical sentence on counts 3 and 4. The judge may simply have decided that a relatively lenient sentence should be imposed on count 4, having imposed a stern sentence on the offence covered by count 3.[35] The way in which the judge structured the sentences does not, in this case, establish sentencing error. As Callaway JA said in R v Behalj,[36] 'overworked trial judges cannot be expected to fine tune every sentence. Care is one thing but pedantry is another. The latter is a waste of judicial resources'.[37]
46 Grounds 4 and 5 are particulars of the ground of manifest excess in ground 7. They were directed at the cumulation of one year of the sentence imposed on count 5 on the sentence imposed on count 4. Counsel for the applicant contended that, although the two offences were technically discrete, the judge should have taken account of the overlap in the offending between the two counts and imposed concurrent sentences because the offences arose from a single course of criminal conduct. Although the grounds of appeal were directed at the order for cumulation, at the hearing of the appeal counsel also contended that the individual sentences imposed did not reflect the fact that both offences were part of a single transaction. Reliance was placed on Pearce v The Queen[38] and Johnson v The Queen.[39]
47 In reply, counsel for the Crown submitted that the counts represented separate criminality on two different days. Count 4 involved the offer to purchase a large quantity of drugs on the first day, whilst count 5 involved the handing over of a large sum of money in return for what was believed to be a large quantity of drugs two days later.
48 Counsel for the Crown submitted that the criminality identified in respect of count 5 justified some cumulation. He argued that it was the discovery by police of various paraphernalia associated with trafficking, including cutters, scales and a cutting agent within the applicant's premises that resulted in the applicant being presented for attempting to traffick in a large commercial quantity, rather than simply for possession of the drug.[40] Since the applicant fell to be sentenced as a 'serious drug offender' on counts 4 and 5,[41] there was a presumption that the sentence would be cumulated.[42]
49 I would accept that there was some overlap between the offences, in that the same quantity of the same drug was involved in both offences. However the offences occurred on separate days and the offence covered by count 5 involved the physical delivery to the applicant of the substance believed to be methylamphetamine. The applicant could have withdrawn from the arrangement made with XX, before the drug was delivered. He did not do so.
50 The judge acknowledged that, although the offences occurred on separate days, the offences covered by counts 4 and 5 arose from a single course of conduct.[43] This was reflected in the sentences imposed on the counts and in her Honour's order that only one year of the sentence imposed on count 5 be cumulated on the sentence imposed on count 4, despite the application of the presumption of cumulation. These grounds are not made out.
51 In support of ground 8, and in addition to the matters already discussed, the applicant's counsel relied on:
(a) the applicant's lack of prior convictions for drug related offences;
(c) the relatively short period over which the drug offences occurred; and
(g) the judge's finding that the applicant had 'some prospect of genuine rehabilitation'.[44]
52 In my opinion ground 8 fails. The learned sentencing judge took all relevant
mitigating factors into account. The applicant offended out of greed and counts 3, 4and 5 involved the trafficking of or attempt to traffick significant quantities of drugs, which had the potential to cause serious harm to others. In relation to count 3, the amount of the drugs trafficked was over five times the amount specified as a commercial quantity and the sentence imposed was only slightly over a third of the maximum penalty of 20 years. As I have already said, the amount of the drug covered by counts 4 and 5 was almost three times the amount specified as a large commercial quantity of methylamphetamine. The sentences imposed on counts 4 and 5 were quite modest. The individual sentences, total effective sentence and non-parole period were well within the range of her Honour's sentencing discretion.
53 For these reasons I would refuse the application for leave to appeal against sentence.
54 I would also refuse the application for leave to appeal for the reasons given by Neave JA.
[1] This count was contained in Presentment C0605102.1. The other counts were contained in Presentment C0605102. The circumstances giving rise to the two presentments are discussed below.
# Mokbel
The Queen \[2011\] VSCA 34