R v Mokbel [2008] VSC 635

2 Presentment No. C0605102.1 relates to the count of blackmail which arises out of a telephone call you made to one Douglas Harle. Douglas Harle is a lawyer and accountant. He purchased a 460-acre property at Nicholson in East Gippsland with a view to developing a marina and resort. An investor, Jacob Smit, became involved in the project. Numerous attempts were made over the years to raise finance and you lent Smit $500,000, although you now dispute this amount. At one point in late 2002, a company known as Vida proposed purchasing 50 per cent of the project, but in August 2003 Mr Harle decided not to proceed with the sale.

3 On 5 September 2003, you telephoned Harle and told him you had lent Smit $500,000 and that you needed $1.35m returned to you as soon as possible. There were subsequent discussions and a meeting between you and Mr and Mrs Harle when it was made clear to you that the Harles would repay Smit the $500,000, but that they did not regard themselves as liable to you in any amount.

4 On 22 October 2003, while Mr Harle was having dinner with his wife and another couple, you telephoned him. You did not identify yourself, but Mr Harle recognised your voice. You told Mr Harle that he would be approached by someone in the next few days and you went on to say words to the effect: "You will sign an agreement with Vida. 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". It is this conversation which constitutes the offence of blackmail.

5 Mr Harle, it appears, had already signed the agreement, so, it appears there was little to be gained by making this demand. Nonetheless, it is reprehensible conduct on your part and was sufficiently concerning to Mr Harle that he reported the incident to his solicitors and then to the Federal and Victoria Police.

6 I turn now to Presentment No. C0605102. On 5 September 2006, police executed a search warrant on premises at 14 Alma Road, Parkdale. This was the home of your wife's uncle, Gary Gibbs. Police had information that proceeds of crime may be hidden at those premises and in a search there conducted, police located a quantity of jewellery in a shed and a number of sealed sections of PVC pipe which contained cash and jewellery which were buried in the garden beds in the backyard. In total, $336,833 in cash, and jewellery later valued at $183,145 was located.

7 Your wife, Renate, has sought an exclusion order in respect of a significant portion of the jewellery located and, in any event, it is not necessary for these purposes to quantify the value of the jewellery.

8 Although you were not responsible for the decision to bury the money and conceal the jewellery, you did give large quantities of cash and jewellery to Mr Gibbs on three occasions during the period alleged, asking him to look after it. It is this conduct which forms the subject of count 2 on the presentment, that of knowingly dealing with the proceeds of crime with intent to conceal.

9 Counts 3-6 inclusive relate to the events which occurred in the earlier months of 2006 and concern your involvement with the drug cook, XX. You spoke with XX on numerous occasions to discuss arrangements for the provision of glassware and other equipment necessary to do an amphetamine cook. You advised XX that you had 26 litres of ketone (otherwise known as phenyl-2-propanone) available to you. Phenyl-2-propanone is itself a drug of dependence and is a precursor drug to the manufacture of methylamphetamine.

10 In March 2006 you spoke with XX about turning 26 litres of phenyl-2-propanone into approximately 26 kilograms of amphetamine, and you discussed the price. Through your counsel, you dispute these contextual events and you contend that your involvement with XX in respect of this offence began only on the evening of Saturday 8 April when he attended at your son's birthday party and you then told him you had 13 litres of the 26 litres of ketone which had been promised to you and you asked him to come to your house to collect it.

11 On the following Monday, XX endeavoured to do so, but abandoned the planned collection because he thought he was being watched by police in two unmarked cars. Another arrangement was made whereby an associate, Toreq Bayeh, was to go to the JB Hi-Fi store in Keilor and there give XX the P-2-P, but this rendezvous was also abandoned and XX attended at the Grove Café in Coburg, telling you that it was too risky to accept the delivery of the chemical.

12 The following day Toreq Bayeh transferred the P-2-P into the boot of Akl Hammoud's car and Hammoud was arrested shortly thereafter. The police seized two plastic containers which were later analysed and found to contain in total 11.2 kilograms of P-2-P. It is this conduct which forms the subject of count 3 on the presentment, that of trafficking in a drug of dependence in a quantity not less than a commercial quantity. (A commercial quantity of phenyl-2-propanone is 2 kilograms.)

13 The Crown allege, and it is accepted, that you were the principal in this offence of trafficking. Although you dispute that your involvement began earlier than 8 April, no evidence was called on your behalf and, therefore, I am satisfied by reference to the sworn depositions that your involvement with XX is as the Crown contends.

14 On 22 April XX was arrested by the police at 12 Lloyd Street, Strathmore, where he had established a clandestine laboratory for the production of methylamphetamine. He agreed to assist the police with their investigations and an indemnity was issued to him under s.51 of the Drugs, Poisons and Controlled Substances Act 1981.

15 XX spoke with you at the Grove Café on 23 and 24 April 2006. Unbeknown to you, he was wearing a recording device. You asked XX whether he had any gear available and you were told by him that there was gear available. Arrangements were finalised on 24 April for you to purchase five pounds of methylamphetamine at an agreed price of $37,500 per pound. The offer for sale by XX constituted trafficking in a large commercial quantity of the drug and the Crown contend, and it is accepted, that by your offer to purchase and your agreement to pay the purchase price, you were guilty of trafficking as an aider and abettor to XX' trafficking, for which he was at the time indemnified. The large commercial quantity applicable to methylamphetamine is 750 grams pure, or 2.5 kilograms mixed. It is this conduct which is the subject of count 4 on the presentment, trafficking in a drug of dependence in not less than a large commercial quantity. Here it was proposed that you would be provided with approximately 2.2 kilograms of methylamphetamine in its pure form.

16 Count 5 relates to an offence of attempting to traffick in a drug of dependence, namely methylamphetamine in a quantity not less than a large commercial quantity and relates to the purported delivery by XX of the five pounds of methylamphetamine, previously discussed between you and XX, to you at your home at 11 Down Street, Brunswick.

17 On 25 April XX was still cooperating with the police. On that day he attended at your home wearing a recording device and bearing a package wrapped as a present which contained five pounds of an inert substance purporting to be methylamphetamine. You invited XX into your house and took him into the laundry where XX saw a cutting agent, scales and cutters. He gave you the package and you, in return, gave him a cardboard box wrapped in a shopping bag, telling him it contained $87,000. You handled the package he had given you and smelt it, describing the substance as "beautiful". You then escorted XX back to his car and minutes later both of you were arrested.

18 A search of your house was conducted in your presence and videotaped. You were cautioned prior to the search and when asked if there were any drugs or large amounts of cash on the premises, you declined to comment. Police located various paraphernalia associated with trafficking, in particular cutters, scales and a powdered cutting agent and they also located cash. You were present in the laundry when that was searched and you told the police you had not seen the gift-wrapped package before you were arrested and that you felt sick by what you had seen. You were present when the cash was located in the front-passenger seat of XX' car. This cash totalled $88,750 and when added to the money found in various locations within the house, came to $116,255. It is this cash which forms the subject of count 6, that is, knowingly dealing with the proceeds of crime

19 You are 40 years old and have admitted three prior convictions from three court appearances between March 1987 and October 1991. None of your prior matters are drug-related and you have not previously served a sentence of imprisonment.

20 You are the youngest of five children and you came to Australia at the age of 6 when your family emigrated from Lebanon. Your family was, and is, close. It is said that your father's death when you were 12 years old had a profound effect upon you and other family members. You began to take on work outside school hours, and Mr Newton, in his report dated 17 June 2008 and tendered in evidence as Exhibit 1, described your school performance, general behaviour and approach to the world as deteriorating in the immediate aftermath of your father's death.

21 You left school at the age of 15 and you took on an apprenticeship as a chef at the Boronia Café and Pizza Parlour and then worked at the Spaghetti Graffiti restaurant in Carlton, a business in which your elder brothers had a proprietary interest. You worked there from the age of 16 to 22 and from the age of 19 you also worked as a courier for a company called Security Express and then for Ausdol, and you remained in that employment until you were 23.

22 You resumed working weekends at the Boronia Pizza Parlour, which by this stage had been purchased by your brother Tony. You continued to work weekends for him until you were aged 28. It is said that you have a very close relationship with him and that you have regarded him as a surrogate father.

23 When the Boronia Pizza Parlour was sold, you then invested $20,000 into a "hydroponic business", which proved to be very profitable, and upon selling it two years later, you and your wife purchased a butcher shop at the Brunswick Market which, in turn, became very successful. You sold that business in 2004 and it is said that by 2005 you were becoming involved to a greater or lesser extent in your brother Tony's gambling activities. You have not been engaged in any full-time employment since the sale of the butcher shop in 2004 other than pursuing your interest in gambling.

24 You met your wife, Renate, when you were 21, and together you and she have three children aged 16, 12 and 4½. You expressed to Mr Newton what he described as a "strong and abiding bond to your wife and children", although it appears that your wife has expressed her concerns that the marriage will not survive this present separation.

25 Renate Mokbel is, herself, presently in custody. She is serving a default sentence of two years' imprisonment and a sentence of six months' imprisonment in respect of perjury offences. She will not be released until October 2009. Until then, your children are being cared for by members of the extended Mokbel family.

26 A report from Orygen Youth Health was tendered in evidence as Exhibit 2. That report, following upon a referral from the school psychologist and an assessment made on 12 March 2008, details that your daughter, Jade, has been assessed as having had a major depressive episode and symptoms of post-traumatic stress disorder and significant grief and loss issues. She has sought counselling from her school psychologist and appears to be experiencing escalating levels of anxiety. She is reported by the author to be "doing a remarkable job of coping, given her circumstances, her age and the amount of responsibility she is negotiating".

27 Mr Shirrefs SC has submitted that your incarceration at the same time as that of your wife, the mother of your children, given the age of your children, in particular the youngest, Milad, now aged 4, and the difficulties Jade is experiencing, the fact that they are being cared for by family members as their maternal grandmother has lung cancer and, as I understand it, your own mother is in her 80s, are matters which render your incarceration a hardship to your family and, as such, amounts to exceptional circumstances and should be taken into account in the mitigation of the sentence to be imposed; or, alternatively, if exceptional circumstances have not been shown, then in the exercise of mercy such hardship should still feature in the sentencing discretion.

28 I accept that the children have been left without the care of either parent since your wife went into custody on 15 March 2007. As difficult as that situation no doubt is for your children and for the family members who have taken on the responsibility of caring for them, those circumstances do not, in my view, amount to exceptional circumstances, nor do they call for the exercise of mercy.

29 The appropriate sentence to be imposed upon you, having due regard to the nature and gravity of your offences and other sentencing considerations, including the passing of a sentence which will serve to punish you and act in denunciation of your conduct, calls for a substantial period of imprisonment which will go way beyond the period of your wife's incarceration. So that while in the short term your incarceration may effect a hardship upon your family, principally because your wife is also incarcerated, when she is released and restored to her children the hardship endured is no greater than that endured by the family of any other prisoner. Any mitigation to the penalty I would otherwise impose, either in the exercise of mercy or having been satisfied that exceptional circumstances were shown, could not realistically alter the position of either the physical circumstances in which your children are being cared for or the emotional and psychological effects that they may suffer as a result of the absence of both their parents.

30 While on remand, you have been classified as a high security risk prisoner and until recently, apart from two weeks in the Melaleuca Unit, you have been accommodated at the high security unit, Acacia, at Barwon Prison.

31 An affidavit by Trevor William Pickering, acting general manager of the Sentence Management Unit, Corrections, Victoria, sworn on 7 August 2008, was tendered in evidence as Exhibit B. In that affidavit, Mr Pickering attested to the conditions of incarceration at the Acacia high security unit. I accept that you have endured these conditions which are more onerous than those to which the general prison population are generally subjected. However, you are presently being held as a maximum security prisoner at Port Phillip in conditions substantially less onerous than those which prevail at Acacia. Mr Pickering, in his affidavit, stated that the circumstances of your accommodation will be reassessed upon your being sentenced and it would seem, as evidenced by your recent transfer to Port Phillip, that some consideration has already been given to these issues.

32 Apart from the psychological impact of being held in the Acacia Unit at Barwon Prison, Mr Newton did not report any other sociological or psychological impediments to your mental or physical well-being. He reports that your alcohol use is not problematic, your gambling apparently controlled, and that you have never experimented with any illicit substances. Mr Newton did report that you were experiencing symptoms of moderately elevated anxiety in the context of ongoing depression, and that that manifests itself in ruminating upon your worries concerning your wife and family, and that such symptoms, which included a fragile self-esteem and pessimism about your future, have been intensified by reason of the circumstances of your incarceration.

33 Although Mr Newton opined that a diagnosis of adjustment disorder was appropriate in your case, nonetheless, in his view, your psychological adjustment is "stable and generally good". Mr Newton considered that you were of above average intelligence and that this, together with the support of your family, augers well for your rehabilitation. You expressed to Mr Newton your shame at the opprobrium at which your family name is now held and your regret at being involved in these offences. He has commented that your experience of incarceration to date, being the onerous nature of your remand and the separation from your wife and children, have effected a significant deterrence upon you.

34 The maximum penalties for each of the offences are as follows: blackmail, fifteen years' imprisonment; knowingly dealing with the proceeds of crime with intent to conceal, twenty years' imprisonment; trafficking in a drug of dependence being a commercial quantity, twenty-five years' imprisonment; trafficking in a drug of dependence being a large commercial quantity, life imprisonment; attempting to traffick in a drug of dependence in a large commercial quantity, life imprisonment; and knowingly dealing with the proceeds of crime, fifteen years' imprisonment. Clearly, Parliament regards each of these offences as serious and, particularly in respect of the drug offences, the Crown contend, and I accept, that these are extremely serious examples of very serious crimes, but so, too, are the offences of dealing with the proceeds of crime with intent to conceal, and dealing with the proceeds of crime. The nature and gravity of these offences, and the manner of their commission indicate that in these instances you were involved in trafficking in drugs of dependence at the highest level. XX may well have been prepared to sell to whomever would buy, but you were not only prepared to buy, you were prepared to supply him with the necessary chemicals to enable him to manufacture methylamphetamine and indeed, had the ketone been supplied to him, he would have been in the position to manufacture very substantial quantities of methylamphetamine.

35 Your counsel frankly conceded that you were engaged in this illegal activity for financial gain and although he said you were under financial pressures at the time, nothing has been placed before the Court as to what those pressures were. In any event, such financial pressures are irrelevant in the face of offending conduct of this nature and degree.

36 The quantity of drugs involved places your offending conduct at the higher end of offences of this kind. Further, it is clear that you had large sums of money at your disposal and that you were prepared to pay large amounts of money to purchase the methylamphetamine. After all, the $87,000 given to XX did not represent the whole of the purchase price you had agreed upon the previous day. It does not mitigate the nature and gravity of the offences here committed in respect of count 2 that the P-2-P was intercepted before it could be placed in the hands of XX or that the offences, the subject of counts 3, 4 and 5, were committed as part of a "sting", as your counsel described it, and were never going to come to fruition, or that the substance delivered to your home was an inert substance and not methylamphetamine. None of these factors make your crimes any less serious.

37 I acknowledge, however, that I am sentencing you only for the counts the subject of the two presentments and for no other offences and, therefore, I am sentencing you for your offending conduct only on the days alleged and within the periods alleged by the Crown in each count, and for no other activity at any time. Nonetheless, the tapes of your conversations with XX reveal that you were not a naive participant in the trafficking of drugs of dependence, but, rather, you were a willing, eager, knowledgeable and genuine purchaser of that which XX had to sell and nothing could speak more eloquently of your relationship with XX and your intentions on 23 and 25 April, than your payment to XX of $87,000 without even opening the package he had given you.

38 The count of knowingly dealing with the proceeds of crime relates not only to the $87,000-odd that you gave to XX, but also to the cash located at your home during the course of the search. By reason of your plea to this offence, you concede that that cash came into your possession as a result of criminal activity.

39 As to the offence of concealing the proceeds of crime with the intention of concealing that they were proceeds of crime, by your plea you have admitted that the jewellery and cash are the proceeds of crime, that you knew that they were and that you intended to conceal them. You gave cash and jewellery to your wife's uncle on three separate occasions, he said for safekeeping, but in reality, this was not so much for safekeeping but secreting the proceeds of crime and distancing yourself from them, for possession of such cash and jewellery in your hands had the potential to arouse suspicion, if not incriminate you in illegal activities. Gary Gibbs was charged with recklessly dealing with the proceeds of crime in relation to his involvement and was sentenced to six months' imprisonment wholly suspended for a period of 12 months.

40 As to the count of blackmail, your counsel has submitted that this was an amateurish and foolish approach because you were identifiable by your voice and by making reference to the Vida settlement. That may well be so, but this does not ameliorate the gravamen of your conduct, which was to employ menacing words to secure a particular outcome. Those words were no doubt intended to be frightening, as indeed they were, for there would be no other reason for couching your demands in such terms.

41 This matter, along with other offences, was the subject of a contested committal, at the conclusion of which you were committed for trial in the County Court, and on 22 October 2007 you pleaded guilty in the County Court to one count of blackmail. Subsequently, that presentment was stayed and the matter uplifted to this court and you have again this morning been re-arraigned in respect of it. In sentencing you in respect of this count, I take into account your pleas entered in the County Court on 22 October 2007.

42 In respect of counts 2 to 6 inclusive on Presentment No. C0605102, on 22 July 2007 at your committal, you reserved your plea and proceeded by way of straight hand-up brief to the Supreme Court. You indicated through your solicitor on that day that you were prepared to negotiate a plea of guilty to an appropriate presentment and indeed, you went before the Supreme Court on 16 April 2008 and on arraignment pleaded guilty to the counts which now form this presentment.

43 Counts 2, 3, 4, 5 and 6 on Presentment No. C0605102 are Schedule 2 offences under the Confiscation Act 1997 and are automatic forfeiture offences. The Crown has applied for a pecuniary penalty order pursuant to ss 58 and 68 of the Confiscation Act 1997 and a declaration pursuant to s 70 of the said Act. The Crown ultimately will be seeking an order that you pay a pecuniary penalty in a sum in excess of $5million. To this end, four restraining orders have been made in respect of various real estate and proceeds of sale of real estate, motor vehicles and motorbikes, cash, jewellery, audiovisual equipment and a bank account.

44 Applications for exclusion orders were filed on behalf of a number of persons and entities including yourself. Your application was dismissed on 27 November 2008 on your application because you did not wish to pursue it, but two exclusion applications, one made by Renate Mokbel and the other by JR Mokbel Pty Ltd relating to jewellery, real estate and the proceeds of sale of real estate respectively, remain on foot.

45 You have indicated through your solicitor, first, on 30 October 2008 (p 3 of the transcript of the hearing that day) and again through your counsel on 27 November 2008 (transcript page 111) that you do not propose to place any evidence before the court in respect of whether any of the property the subject of the restraining orders has been lawfully acquired, and the significance being, that if the court held that such property had been lawfully acquired, then for the purposes of sentencing, regard may be had to automatic forfeiture. Therefore, as I understand it, you do not seek to rely upon forfeiture as a mitigating factor in the penalty to be imposed upon you in conformity with the principles enunciated in R v McLeod.[1] Accordingly, the provisions of s.5(2)(a)(e) of the Sentencing Act will apply. In sentencing you, the court must not have regard to any property forfeited under the automatic forfeiture which will apply upon recording of convictions in this matter or any pecuniary penalty order made in relation to Schedule 2 offences.

46 In sentencing you, I take into account your pleas 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.

47 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. I take into account in particular with regard to the offence of blackmail that this was committed in October 2003, over five years ago, and that the offences, the subject of Presentment No. C0605102, occurred in September 2005 and February to April 2006.

48 I take into account also that since your arrest on 25 April 2006 until approximately a month ago, you were held on remand in more onerous conditions than that endured by the general prison population, although you are now held in somewhat less onerous conditions. Nonetheless, until the circumstances in which you are to serve your sentence are to be reviewed, you are classified as a high security risk prisoner and will serve your sentence in the conditions which apply to that classification.

49 I take into account also that you have been diagnosed with an adjustment disorder by reason of the circumstances of your remand. I take into account also your age and that at the age of 40 you will be serving a period of imprisonment for the first time and a substantial period of imprisonment.

50 I take into account all matters which go in your favour. Against these considerations, however, stands the nature and gravity of the offences here committed and your role in them; the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and give effect to general deterrence so that like-minded people will know that if they commit offences of this kind, they can expect condign and salutary punishment. Due weight must also be given to considerations of specific deterrence and your prospects for rehabilitation. Mr Newton, as previously stated in his report, stated that your experience of custody and its consequential separation from your family has had a deterrent effect upon you and that this, combined with your above-average intelligence, regret, remorse and limited prior criminal history, none of which is for drug offending, suggest to the court that there is some prospect of genuine rehabilitation.

51 Once you have been convicted in respect of count 3, then in respect of counts 4 and 5 on the presentment you are to be sentenced as a serious drug offender. Accordingly, pursuant to s 6D of the Sentencing Act, as I consider in respect of each of those counts that a sentence of imprisonment is justified, in sentencing you I must have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed. I do not, however, consider it necessary to impose a sentence longer than that which is proportionate to the gravity of each of the offences, considered in light of their objective circumstances, because the sentences I propose to impose will adequately serve to protect the community from you. Accordingly, you are convicted and sentenced as follows:

52 On Presentment No. C0605102.1, on the count of blackmail, 12 months' imprisonment.

53 In respect of Presentment No. C0605102, in respect of count 2, knowingly dealing with the proceeds of crime with the intention to conceal that they are proceeds of crime, two years' imprisonment. In respect of count 3, trafficking in a drug of dependence being a commercial quantity, seven years' imprisonment. Count 4, trafficking in a drug of dependence being a large commercial quantity, seven years' imprisonment. Count 5, attempting to traffick in a drug of dependence being a large commercial quantity, six years' imprisonment. Count 6, knowingly dealing with the proceeds of crime, 18 months' imprisonment.

54 Pursuant to s 6E of the Sentencing Act, the sentences imposed in respect of counts 4 and 5 must be served cumulatively upon each other unless otherwise directed. Although counts 4 and 5 occurred on different occasions, and it may be said that they nonetheless form part of the one transaction, they are, nonetheless, discrete offences and accordingly, I propose to otherwise direct that one year of the sentence imposed on count 5 be served cumulatively with the sentence imposed in respect of count 4, which is to be the base sentence, that is, eight years' imprisonment, and that three months of the sentence imposed on count 6 be served cumulatively with the sentences imposed on counts 4 and 5, (that is, eight years and three months' imprisonment.)

55 Count 3, however, could not in any way be said to be part of the transaction involving the other counts. Of itself, it involved a different drug of dependence, it alleged a different form of trafficking and covered offending over a wider period. It is a completely discrete offence. Accordingly, I propose to order that two years of the sentence imposed in respect of count 3 be served cumulatively with the sentences so imposed in respect of counts 4, 5 and 6, (that is, ten years and three months' imprisonment.)

56 I further order that 6 months of the sentence in respect of count 2 be served cumulatively with the sentence imposed in respect of counts 3, 4, 5 and 6, (that is, ten years and nine months' imprisonment.) I order that three months of the sentence imposed in respect of the count of blackmail be served cumulatively with the sentences imposed, having regard to the orders for partial cumulation made in respect of Presentment No. C0605102, that is, a total of 11 years' imprisonment.

57 In order to address your prospects for rehabilitation, I propose to order that you serve a non-parole period of eight years and I declare that you have already served by way of pre-sentence detention a period of 967 days.

58 In sentencing you and in making the orders for partial cumulation, I have sought to address and to apply considerations of proportionality and totality. It is to be entered in the court records that you have been sentenced in respect of counts 4 and 5 as a serious drug offender pursuant to s 6F of the Sentencing Act.

59 Pursuant to s 6AAA in respect of the count of blackmail to which you have entered a plea of guilty this day, I state that but for your plea I would have imposed a sentence in the vicinity of three years' imprisonment. A non-parole period would only have been fixed in respect of this count if it were the only sentence imposed upon you this day. Nonetheless, so as to act in conformity with the section, I state that I would have fixed a non-parole period in the vicinity of two years.

60 Do you understand the sentence I have imposed upon you, Mr Mokbel?

62 HER HONOUR: It is a sentence of 11 years' imprisonment with a non-parole period of eight years and I declare that you have already served a period of 967 days of that sentence.

65 MR TINNEY: Your Honour, the Crown seeks two other orders. One is a forfeiture order in relation to some property that is named in a schedule that I will hand up to Your Honour and there is no contest to that order being made. It relates to a vacuum sealer that was found at Mr Mokbel's house on the day of the arrest. I need to get my instructor to prepare a new version of that order just reflecting the fact that Mr Shirrefs is not appearing today and if Your Honour would indicate you would be prepared to make that order, my instructor will have a new amended version of that.

66 HER HONOUR: Is there any impediment if I make the amendment by hand?

69 MR TINNEY: I think I am right in saying that the date has not been filled out in this. I don't know whether you noticed that.

71 MR TINNEY: Yes. One other matter, a disposal order is sought. Perhaps I will hand a copy of it up to you and you will see that there again is that issue of no date and the incorrect name of the person appearing for the respondent but also, again, there is no contention from the defence that the order should be made except if you go to the last page. There are going to be some amendments required there and you will see, I think I am right in saying, in the copy you have, does it have some entries crossed out?

73 MR TINNEY: Subject to what you say, if you are prepared to make an order along these lines, my instructor will prepare a version of it that has those items deleted which have been deleted as a result of consultation with the defence.

74 HER HONOUR: Mr Tyrrell, I will formally articulate making the order today in the terms sought but do you have any objection if I formally sign the order in chambers?

76 HER HONOUR: I propose to do that. I will verbally make the order and I will sign that document in chambers if that is submitted to me today. Are there any other matters?

78 MR TINNEY: Sorry, there is one other matter. An order under s 464ZF of the Crimes Act is sought. A draft order was handed up at the time of the plea and I am not sure if there is any change that needs to be made.

79 HER HONOUR: The change that needs to be made is, again, Mr Shirrefs' name and this is for the taking of a sample.

80 MR TINNEY: I think it indicates a scraping of saliva or blood. As you would be aware, the invariable practice now is that it will be a scraping.

83 HER HONOUR: The orders are made by consent, Mr Tyrrell?

85 HER HONOUR: Stand up, Mr Mokbel. Mr Mokbel, I have this day made an order that you provide a scraping of your mouth for the purpose of providing a sample for the DNA database. That order is made by consent and I am obliged to tell you that the police are entitled to use reasonable force to obtain such sample so you can readily see that the better course is to co-operate with them in the provision of that sample. Do you understand that?

88 MR TINNEY: One matter. It is not a matter where an order from you is necessary. XX has been mentioned in Your Honour's reasons for sentence and you will recall on the occasion of the plea on 20 June 2008 I simply indicated for the benefit of others present in court that there are reasons that would prevent the publication of the name of XX.

89 HER HONOUR: Indeed, I think his name is the subject of a suppression order, is it?

90 MR TINNEY: It is, a number of orders, and indeed, there are other circumstances that would prevent publication of his name or anything identifying him.

91 HER HONOUR: Those members of the media present ought to be aware of the fact that the name of XX is not to be published in any form.

92 Mr Mokbel, you understand the sentence imposed on you?

94 HER HONOUR: And the consequential orders made today?

96 HER HONOUR: Remove the prisoner. I will leave the Bench.

[1] [2007] VSCA 183; (2007) 16 VR 682.