R v Horty Mokbel [2010] VSC 432

Supreme Court of Victoria|2010-11-08|Before: WHELAN J

CRIMINAL LAW - Sentence - Drugs, Poisons and Controlled Substances Act - Possession of substances and equipment intending to use for the purpose of trafficking - Guilty plea -Very serious instance of offence - Motivated by financial gain - Long period on remand under burdensome conditions - Parity - 6 years imprisonment with non-parole period of 4 ½ years.

1 Horty Mokbel, on 2 August 2010 you pleaded guilty to a charge that at Pascoe Vale and other places between 1 June 2006 and 5 April 2007 you had in your possession substances and equipment with the intention of using them for the purpose of trafficking in a drug of dependence. On 14, 17 September and 8 November 2010 I heard a plea on your behalf.

2 You were originally charged on a presentment with two co-accused, Stephen Gavanas and Mohammad Khodr. Amongst other things, the three of you were charged with conspiracy to manufacture methylamphetamine between 1 May 2006 and 9 October 2006. The proceeding against you was severed from that against Gavanas and Khodr. They went to trial before a jury and were acquitted of the conspiracy count but were convicted of a count of possessing substances and equipment with the intention of using them for the purpose of trafficking and another offence. I will sentence them later today.

3 As to the circumstances of the offence to which you have pleaded guilty, on your plea what was described as a "plea summary" was tendered on behalf of the prosecution. There were aspects of that plea summary which were disputed by your counsel.

4 I will now set out the circumstances of the offence as I find them to be for the purpose of this sentence. The circumstances I set out have been compiled from the undisputed portions of the prosecution's plea summary and from the account of the relevant circumstances given on your behalf by counsel on your plea.[1]

5 The charge to which you have pleaded guilty refers to conduct at Pascoe Vale and at other locations. The reference to Pascoe Vale is a reference to premises at 12/16-18 Pascoe Street, Pascoe Vale. These premises were leased by Stephen Gavanas in early May 2006. Chemicals and equipment were stored in the garage of those premises until Gavanas and Khodr were both arrested on 9 October 2006. Gavanas and Khodr were convicted of being in possession of those chemicals and that equipment. The charge to which you have pleaded guilty encompasses possession of the same chemicals Gavanas and Khodr were found guilty of possessing at the Pascoe Street property, but also extends to a very substantial quantity of additional chemicals which were not the subject of the charge against Gavanas and Khodr. The charge to which you have pleaded guilty does not encompass possession of the equipment which was the subject of the charge against Gavanas and Khodr.

6 The source of the chemicals which are the subject of your offence was a man I will refer to as GH.[2] He in turn acquired the chemicals from a man named Richard Scerri. Both GH and Scerri pleaded guilty to criminal offences arising out of their activities and have been sentenced for them.[3]

7 The chemicals which you obtained from GH between 1 June 2006 and 4 April 2007 were the following:

8 There was a particular delivery of 100 litres which was either acetic anhydride or methylamine.

9 The chemicals which you obtained from GH are valuable on the black market because they can be used to make a substance called phenyl-2-proponone or P2P. P2P is itself a drug of dependence, but the reason that it is valuable is because it can be used to produce methylamphetamine.

10 The significance of the quantities of chemicals involved is best appreciated by reference to the phenylacetic acid. 150 kilograms of phenylacetic acid is capable of producing 129 kilograms of P2P. 129 kilograms of P2P is capable of producing approximately 100 kilograms of undiluted methylamphetamine.

11 It is fair to describe these quantities, in the context of the illicit drug trade, as being huge. The quantity of P2P capable of being produced using the chemicals you obtained from GH is significantly more than 100 times what is today prescribed as a large commercial quantity of that drug. The methylamphetamine capable of being produced from that P2P is significantly more than 100 times the quantity today prescribed as a large commercial quantity of undiluted methylamphetamine. Gavanas and Khodr were found to have been in possession of 23 kilograms of phenylacetic acid (together with other chemicals and equipment). You have pleaded guilty to having been in possession of more than six times that quantity.

12 It must also be emphasised that you possessed these very large quantities of chemicals with the intention that they be used, by you or by persons acting in concert with you, in the manufacture of a drug of dependence, namely P2P.

13 Gavanas and Khodr were also found guilty of being in possession of certain equipment which was in the Pascoe Street garage. The charge against you does not concern that equipment. You have, however, pleaded guilty to being in possession, with the relevant intent, of certain other equipment which you obtained from GH in 2007.

14 According to your counsel, the circumstances in which you came to be in possession of these chemicals and the equipment, with the intention they be used for drug manufacture, were as follows.

15 You first met GH in May 2006 at a café called the Grove Coffee Shop. In June 2006 you discussed chemicals with him and in particular his capacity to supply chemicals to you.

16 The Grove Coffee Shop had been owned by a person named Joe Ferola. Joe Ferola was a person you knew well. In 2006 Joe Ferola was the manufacturer of P2P for an organisation which was being run in Victoria by two persons named Joseph Mansour and Bartholomew Rizzo. This organisation was known as "the company". "The company" conducted an enterprise directed towards the large scale manufacture and sale of methylamphetamine. Mansour, Rizzo and others have pleaded guilty to drug offences related to this enterprise and have been sentenced.[4]

17 Joe Ferola had two sons, David Tricarico and Mark Tricarico. Mark Tricarico was an estate agent. He was the person who arranged to rent the Pascoe Street property to Gavanas. He did so on the recommendation of his father, Joe Ferola. David Tricarico was a co-offender with Mansour, Rizzo and others. He pleaded guilty to one count of trafficking in a large commercial quantity of P2P between 1 May 2007 and 5 June 2007 before me on 20 September 2010 and is yet to be sentenced.

18 Joe Ferola died on 23 February 2007. Up until 23 February 2007 the source of P2P utilised by "the company" was Joe Ferola, and the chemicals that you obtained from GH went to Joe Ferola. Your counsel said the chemicals were obtained "predominantly so that Ferola could produce P2P". One such delivery, made by Gavanas to Joe Ferola's residence, was observed by police who were carrying out surveillance on Gavanas and Khodr on 2 October 2006.

19 On 9 October 2006 police raided the Pascoe Street premises, Joe Ferola's residence and Mohammad Khodr's residence; and Gavanas and Khodr were arrested. You continued to obtain chemicals from GH after that date. Indeed, the amounts you obtained after 9 October were significantly larger than the amounts obtained before.

20 With the death of Joe Ferola on 23 February 2007 there was, in your counsel's words, "a vacuum in terms of opportunity to source P2P for those who were running the company". That vacuum was filled by dealings between yourself and Joseph Mansour. Deliveries on 18 March 2007 and 4 April 2007 were arranged between you and Mansour. The amounts delivered on those occasions were substantial.

21 It is most important to be mindful of the nature of the charge to which you have pleaded guilty. You possessed substances and equipment which were capable of producing P2P, and you did so intending that P2P would be produced, either by yourself or by others in concert with you. The offence to which you have pleaded guilty does not extend to use, it extends only to intention to use. If you were guilty of actual use, the offence would be the more serious offence of trafficking. It is important that a consideration of the relevant circumstances of the offending does not lead to a sentence being imposed for an offence of which you have not been convicted.[5]

22 Nevertheless the criminal activity to which you have pleaded guilty is constituted by the part you played in a sophisticated, large scale, fully commercial chain of transactions directed towards the illegal production of methylamphetamine. You played a commercial role in those transactions. Your motive was financial gain.

23 The depositions in this matter reveal the substantial public resources which were required to detect, gather evidence on, and secure a conviction in relation to the activities in which you engaged. This is relevant because it reveals the nature and gravity of the offence and the direct cost to the community of the investigation and prosecution.[6]

24 You have a number of prior convictions, but none of them relate to drug matters. You have prior convictions for violence and for dishonesty as well as prior convictions for serious driving offences. You have previously been sentenced to terms of imprisonment but on those previous occasions the sentences have been wholly suspended. This will be the first occasion upon which you are sentenced to a term of imprisonment involving incarceration.

25 You were born in Lebanon and are the second eldest of five children. Whilst you were very young your family lived in Kuwait, although you and your older brother were sent to school in Lebanon. At the age of 11 you came to Australia.

26 Your parents were hard working people. You and your siblings were sent to the local Church primary school and later you attended Brunswick High School and then Moreland High School. Whilst you were undertaking Year 11, your father died and you were required to leave school and help support the family.

27 At first you worked in cafes and restaurants. At a relatively young age you were the owner of a restaurant. You sold that restaurant after suffering a serious injury in a motor vehicle accident.

28 I was told that prior to leaving school because of your father's death you were a good student. I was also told that you were a talented and successful sportsman.

29 After recovering from the injury suffered in the motor vehicle accident you worked in nightclubs and other licensed premises. At around this time you began gambling, which resulted in voluntary bankruptcy in 1992.

30 You married your wife in September 1994. In the early days of your marriage you had a variety of occupations. You and your wife then operated a $2 shop in Glenroy, and a convenience store in Thomastown. I was told that with profits made from those ventures you invested in property in Safety Beach with the intention of developing that property.

31 You have three children who are all still at school.

32 Your life changed dramatically on 13 April 2007 when you were arrested. You were not at that time charged with any offence concerning the matters with which I am concerned. You were charged with other drug related matters. You were acquitted of those charges on 3 October 2008 after a trial before Curtain J in this Court.

33 You have been on remand since your arrest on 13 April 2007. The circumstances in which you have been held have been very burdensome. You have spent considerable periods in the Acacia unit of Barwon Prison. This is a high security area where significant controls and restrictions are imposed upon prisoners. You are presently being held in a mainstream unit at Port Philip Prison. I was told you are still held under a high security regime.

34 On your behalf your counsel submitted that the following matters were relevant to the sentence to be imposed.

35 The first is your plea of guilty. Your counsel submitted that whilst it was not a plea at the very first opportunity, it was not a plea at the door of the Court either. He set out something of the circumstances concerning negotiations with the prosecution, and there was some difference between your counsel and counsel for the prosecution as to those negotiations. I accept that from approximately October last year you were prepared to plead guilty to a charge substantially similar to the charge to which you have now pleaded guilty, subject to other matters also being resolved. The most important of those other matters was a conspiracy count which was then pending against you and which the prosecution decided not to proceed with, no doubt as a result of the outcome on that charge at the trial of your alleged co-conspirators, Gavanas and Khodr.

36 The second matter put on your behalf is the delay which has occurred in the finalisation of the matters against you. You have gone through an earlier trial where you were acquitted. There was extensive legal argument in relation to the matters before me, and, as matters transpired, your trial was separated from that of Gavanas and Khodr and that trial went first. You have been on remand since 13 April 2007 and this matter has been pending against you for much of that period. I accept that that is a mitigating factor.

37 The next matter put on your behalf is the circumstances of your incarceration. I accept that much of your time on remand has been spent in burdensome conditions. On your plea a psychological report by Patrick Newton was tendered on your behalf. Mr Newton's report indicates that the circumstances in which you have been held have had a psychological effect upon you and that you show signs of mild dissociation, distractibility and memory loss as a consequence. He suggested you have begun to become institutionalised to some extent. This is a matter which I take into account, as your counsel submitted I should.

38 Extensive submissions were made on the issue of parity. The submissions concentrated on the sentences imposed upon GH and upon Scerri. They each pleaded guilty to a charge of trafficking in a large commercial quantity of methylamphetamine and Scerri also pleaded guilty to a Commonwealth offence of importing a border controlled precursor, namely phenylacetic acid. GH was sentenced to a term of 3 years' imprisonment which was wholly suspended. After appeal, Scerri received a total effective sentence of 6 years' imprisonment with a non-parole period of 4 years.[7] Each of GH and Scerri pleaded guilty, and each of them gave an undertaking to give evidence for the prosecution.

39 The GH and Scerri sentences are relevant, and the principles concerning parity do apply.[8]

40 When addressing the sentences imposed upon GH and Scerri two matters are particularly important. The first is that they pleaded guilty to trafficking, a more serious offence than the offence to which you have pleaded guilty. The second is that they each agreed to cooperate and give evidence on behalf of the prosecution, which you have not.

41 I have also had regard to the sentences I will impose on Gavanas and Khodr later today on the possession offence of which they were convicted, where the parity principles apply again. Your offending conduct is more serious than their's, as the quantities you possessed are much greater and because in my view your role in the acquisition was more central than their's. On the other hand, they did not plead guilty and Gavanas offended whilst on bail for a drug related matter.

42 Your counsel submitted that your conduct could not be said to constitute the worst example of an offence of possession of substances and equipment with intent to traffick. In that respect reference was made to other cases where it was said that the volumes involved were greater.[9]

43 As was submitted by counsel on behalf of the prosecution, it is always possible to find or imagine a worse case than the one then before the Court.[10] Suffice it to say that I consider this to be a very serious instance of this offence, one at the top of the range.

44 Your counsel referred to your prior criminal history, which involves no drug matters. It is a relevant factor that you do not have any prior history of drug related offending. It cannot be said that previously you have been of good character.

45 Your counsel referred to your background and to Mr Newton's report and I have taken those matters into account.

46 There are no statistics published in relation to sentences for this offence but counsel for the prosecution located and compiled a number of previous sentences, or references to previous sentences, where there was a charge under the relevant provision and where the offender (with one exception) had pleaded guilty.[11]

47 Detailed comparison with sentences in other particular cases is rarely of great assistance. The materials compiled suggest that sentences imposed after a guilty plea have been commonly in the range of 1 year to 3 years' imprisonment, with the highest sentence being 5 years' imprisonment,[12] and the lowest being non-custodial dispositions.

48 An application was made by the prosecution for a pecuniary penalty order and an order was made by consent in the sum of $366,000. Both counsel submitted to me that this order did not fall within s 5(2A)(c) of the Sentencing Act. In other words, the order does not relate to benefits in excess of the profits you derived.

49 Counsel on behalf of the prosecution emphasised, amongst other things, the seriousness of the conduct involved. He also submitted that the submissions made on your behalf, and the psychological report tendered, indicate an acceptance of responsibility and regret but not remorse. I accept that that is so. I also accept the submission on behalf of counsel for the prosecution that this is a case where the only motive was financial. Counsel for the prosecution submitted that an appropriate head sentence would be between 5½ years and 7 years.

50 Your counsel submitted that such a sentence would be outside the permissible range, and that a non-parole period equal to, or less than, the time already served should be ordered.

51 This is a very serious offence. In my view the circumstances here are the most serious of those in the cases that have been compiled by counsel. You played a significant part in an interlocking series of transactions directed towards the large scale commercial production of methylamphetamine. You did so for financial reward and for no other reason. You were undeterred by the police raids and the arrest of Gavanas and Khodr on 9 October 2006. In such circumstances both general and specific deterrence are very important. Given the nature of, and the motivation for, your conduct I am not optimistic about your prospects of rehabilitation. These factors also lead me to conclude that parole will be of limited benefit and that the period of eligibility for parole should reflect that.

52 If you had not pleaded guilty, this is a case where I would have imposed a sentence approaching the maximum of 10 years' imprisonment.[13] Notwithstanding your lack of prior drug related convictions, if you had not pleaded guilty, I would have imposed a sentence of 8½ years with a non-parole period of 7 years.

53 In the circumstances I sentence you to a term of imprisonment of 6 years and I fix a non-parole period of 4 ½ years. I declare that pre-sentence detention of 1274 days has already been served.[14]

[1] Much of the account assumed knowledge of the depositions in this and related matters.

[2] This person is designated in this way because of non-publication orders made in the County Court on 7 May 2008 and 30 September 2008.

[3] Reasons for Sentence, R v G H, County Court of Victoria, Judge Hart, 8 July 2008; Scerri v The Queen [2010] VSCA 287.

[4] DPP v Mansour [2008] VSC 226; The Queen v Rizzo [2009] VSC 17; The Queen v Benedetti [2009] VSC 8; The Queen v Ferraro [2009] VSC 121; The Queen v Saro [2009] VSC 569R; The Queen v Issa [2009] VSC 633R; The Queen v Ryan [2009] VSC 631R.

[5] R v Newman and Turnbull [1997] 1 VR 146, 150-2; and see also El-Ghourani v R [2009] NSWCA 140.

[6] R v Harkness and Ors [2001] VSCA 87.

[8] Relevantly those principles are set out in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v Hildebrandt [2008] VSCA 142, [42]-[65]; and Scerri v The Queen [2010] VSCA 287.

[9] Reference was made to the circumstances set out in the Court of Appeal decision R v Langdon [2004] VSCA 205 and to the sentence of Judge Lacava in R v Chapman [2009] VCC (Unreported, 3 September 2009).

[10] Veen v The Queen [No 2] [1988] HCA 14; (1987) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson and Toohey JJ); R v Dumas [1988] VicRp 8; [1988] VR 65, 71.

[11] The cases compiled were the following: The Queen v Ververis & Ververis [2010] VSCA 7; R v Langdon [2004] VSCA 205; DPP v Hoxha & Markson [2010] VCC 1193UR (Unreported, Judge Parsons, 13 July 2010); DPP v Martin [2010] VCC 1083 (Unreported, Judge Campton, 13 August 2010); DPP v Phan [2010] VCC 0927 (Unreported, Judge McInerney, 20 July 2010); DPP v Marnham & Wernick [2010] VCC 0810 (Unreported, Judge Thornton, 24 June 2010); DPP v Morris [2010] VCC 0634 (Unreported, Judge Smallwood, 3 June 2010); R v Wilson [2009] VCC 1919UR (Unreported, Judge Parsons, 12 May 2009); R v Tran & Xynas [2009] VCC 1861 (Unreported, Judge Cotterell, 18 November 2009); R v Towns [2009] VCC 1839 (Unreported, Judge Campton, 19 November 2009); R v Sergi [2009] VCC 1824 (Unreported, Judge Rizkalla, 11 December 2009); R v Chapman [2009] VCC (Unreported, Judge Lacava, 3 September 2009); R v Bowers [2009] VCC 1149 (Unreported, Judge Lacava, 27 August 2009); R v Brogna [2009] VCC (Unreported, Judge Shelton, 3 December 2009); R v Bristow & Kniese [2009] VCC 1589 (Unreported, Judge Smallwood, 25 November 2009); R v Vagianakis & Korinis [2009] VCC 0968 (Unreported, Judge Thornton, 5 June 2009); R v Clark [2009] VCC 0872 (Unreported, Judge M.P. Bourke, 10 July 2009); R v Bonfitto & Yachou [2009] VCC 0464 (Unreported, Judge Patrick, 8 April 2009); R v Hodgson [2009] VCC 0261 (Unreported, Judge Murphy, 26 March 2009); R v Marguglio [2009] VCC 0243 (Unreported, Judge Nixon, 5 March 2009); R v Patounas [2009] VCC 0219 (Unreported, Judge Wood, 10 March 2009); R v Dent & Petersen [2009] VCC 0089 (Unreported, Judge Nixon, 11 February 2009); R v Gallo & Gallo [2008] VCC 1822UR (Unreported, Judge White, 25 November 2008); R v Sumner [2008] VCC 1323 (Unreported, Judge Howard, 24 October 2008); R v Amiet [2008] VCC (Unreported, Judge Barnett, 12 December 2008); R v Calleja [2008] VCC 1768 (Unreported, Judge Nicholson, 10 December 2008); R v Collins [2008] VCC 1223 (Unreported, Judge Nixon, 5 September 2008); R v Kniese [2008] VCC 0744 (Unreported, Judge Hannan, 25 June 2008); R v Piggot [2007] VCC 1155 (Unreported, Judge Gaynor, 19 September 2007); Young & Cartledge, County Court of Victoria, Unreported, (as referred to in Spizzirri [2001] VSCA 49); Transcript of Proceedings, The Queen v Nguyen (County Court of Victoria, Judge R.G. Williams, 11 April 2003); Transcript of Proceedings, The Queen v Dunn (County Court of Victoria, Judge Barnett, 6 September 2001); Transcript of Proceedings, The Queen v Allen, Kerr & Armstrong (County Court of Victoria, Judge R.G. Williams, 27 January 2000).

The offender who did not plead guilty was Sumner. Counsel in their submissions particularly addressed the sentences in Langdon and in Chapman.

[12] The five year sentence was in the matter of Chapman. The amounts there were also very large. Unlike this case, however, the accused in that case was an older man with serious health problems and an "unblemished" record. Perhaps more significantly, unlike this case, the accused there did not derive substantial financial reward as a consequence of his activities.

[13] Such a sentence would have been imposed due to the serious nature of the offence, the circumstances of which I consider approach the worst category of cases for which the penalty is prescribed. See Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447; R v Mallinder (1986) 23 A Crim R 179, 187; R v McMahon (1978) 19 ALR 448, 451; R v Dumas [1988] VicRp 8; [1988] VR 65, 71.

[14] The basis of the calculation is set out in the plea summary. In calculating the pre-sentence detention I have included 101 days during which the offender was on remand in relation to the offence of which he was acquitted before Curtain J. I have done this pursuant to s 18(6) of the Sentencing Act. Counsel for the offender submitted that was the appropriate course and no submission was made against that course by counsel for the prosecution. I am familiar with the matters dealt with in the earlier trial: See R v Mokbel & Ors (Ruling No 1) [2009] VSC 507T. I consider that the charge there and the charges on the various presentments in this proceeding are a "series". If s 18(6) had not applied I would have reduced the head sentence and the non-parole period by 101 days, pursuant to the principles explained in R v Renzella [1997] 2 VR 88.

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