R v Mokbel [2010] VSCA 11

Court of Appeal (Vic)|2010-02-11|Before: MAXWELL P, BUCHANAN and WEINBERG JJA

R v Mokbel (Reasons for sentence) [2006] VSC 119

CRIMINAL LAW - Appeal - Conviction - Knowingly concerned in importation of cocaine - Applicant planned and funded importation, and organised collection in Australia - Drugs intercepted and carried to Australia by United States Customs officials - Controlled operation by Australian Federal Police - Whether official intervention created new importation - Whether applicant knowingly concerned in importation which took place - Whether causal link broken - Distinction between importing and being knowingly concerned in importation - Application refused - (Cth) s 233B - (Cth)

CRIMINAL LAW - Appeal - Sentence - Knowingly concerned in importation of 1.9 kg of pure cocaine - Applicant was principal - Applicant absconded before end of trial - Whether judge erred in passing sentence in absence of applicant - Whether sentence vitiated by failure to explain non-parole period - Sentence of 12 years with non-parole period of nine years - Parity - Whether manifestly excessive - Application refused - Crimes Act 1914 (Cth) s 16F(1).

WORDS AND PHRASES - 'Importation', 'knowingly concerned'.

1 The applicant was found guilty by a Supreme Court jury of one count of being knowingly concerned in the importation into Australia of a traffickable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). He was sentenced to 12 years' imprisonment, with a non-parole period of nine years.

2 The applicant now seeks leave to appeal against conviction and sentence, and seeks an extension of time for that purpose. The applications having been fully argued, it is appropriate that the extension of time be granted. For reasons which follow, however, we would refuse both applications. We deal first with the conviction appeal.

3 The Crown case was that the offence was committed pursuant to a joint criminal enterprise in which the applicant, Sonny Schmidt, Pale Schmidt and Ron Cassar were involved, together with a fifth person referred to throughout the proceedings (and in these reasons) as Mr U. The object of the enterprise was the importation of cocaine from Mexico to Australia.

4 The Crown alleged (and the sentencing judge later found)[1] that the applicant was the financier and overseer of the enterprise. Mr U and Sonny Schmidt were the hands-on implementers of the enterprise. Pale Schmidt was a facilitator and Ron Cassar, who at the relevant time worked for the international courier company UPS, was the 'inside person' in Australia. The plan was that, following the arrival of the cocaine in Australia, Cassar would remove it from UPS before its possible exposure to Customs officials.

5 To organise the importation, Mr U and/or Sonny Schmidt travelled to Mexico on three occasions between August 2000 and October 2000. In October Sonny Schmidt purchased the cocaine from a Mexican named Gino. The cocaine was later concealed inside candles in two packages. Each package was addressed to a fictitious name and address in Melbourne and was consigned through the services of UPS.

6 Pursuant to the criminal enterprise the cocaine was dispatched from Mexico using the air services of UPS. The plane travelled from Mexico to Louisville, Kentucky, in mainland United States. At about this time officers of the Australian Federal Police ('AFP'), who were monitoring the activities of Sonny Schmidt and Mr U, became aware of the consignment numbers. They suspected that the packages might contain cocaine and advised the US Customs Service ('USCS') of the consignment numbers.

7 The commercial passage of the cocaine from Mexico via the services of UPS was subsequently interrupted when the USCS caused a search of two UPS containers to be conducted at the UPS hub in Louisville, Kentucky. The search resulted in the two packages containing the cocaine being located. X-ray inspection revealed the presence of a substance secreted in both. Drilling into one of the packages resulted in the discovery of the cocaine. As a consequence USCS seized the two packages containing the cocaine.

8 Officers of the United States Drug Enforcement Administration, based in Canberra, advised the AFP of the seizure of the cocaine and asked whether the AFP were interested in receiving the packages to conduct a controlled operation. The AFP were told that if they did not wish to receive the goods, US Customs would maintain custody of the evidence and ultimately destroy it. Subsequently, an Assistant Commissioner of the AFP signed a 'controlled operation' certificate pursuant to s 15M of the Crimes Act 1914 (Cth), authorising a controlled operation for the importation of the cocaine into Australia at Sydney airport.[2]

9 By arrangement between AFP and USCS, two officers of USCS carried the cocaine to Australia on a commercial flight, arriving at Sydney Airport on the morning of 6 November 2000. Still in possession of the cocaine, the two officers then flew to Melbourne. They attended at AFP headquarters in Melbourne and handed over the two parcels containing the cocaine.

10 AFP staff unpacked the goods and removed the cocaine. The total weight of pure cocaine was just under two kilograms (1933.4 grams). AFP laboratory staff reconstructed the two packages, placing 20 grams of the imported cocaine in each. The packages were transported to Melbourne airport and placed in a Qantas air freight container. On 10 November 2000, the packages, together with other cargo, were collected by an employee of UPS and transported to the UPS warehouse in Ascot Vale.

11 On 12 November 2000 Ron Cassar was arrested at the UPS warehouse when attempting to remove the two packages.

Grounds 1 and 2: was the applicant knowingly concerned in the importation?

12 Grounds 1 and 2 advance essentially the same contention, and may conveniently be considered together. Those grounds were as follows:

The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

PARTICULARS

The importation into Australia of prohibited imports (namely cocaine) was an importation effected by officers of the United States Customs Service pursuant to an agreement solely between the executive governments of the United States of America and the Commonwealth of Australia. It was not an importation in which the applicant was knowingly concerned contrary to s 233B(1)(d) of the Customs Act 1901.

The learned trial judge erred in directing the jury that 'the fact that the packages were intercepted by US Federal Customs agents and thereafter brought to Australia by them and imported into Australia by them does not change the character of that import' and 'it is no defence for an accused to state the arrangements for the importation were changed midstream.'

13 The submission for the applicant accepted that he was a party to a joint criminal enterprise whose object was the importation of cocaine from Mexico to Australia; that, pursuant to the criminal enterprise, the cocaine was dispatched from Mexico using the air services of UPS, and carried to the United States; and that the applicant had recruited Cassar to arrange delivery of the cocaine in Melbourne. The central contention, however, was that the importation in which the applicant was concerned came to an end upon the entry of the goods into the United States. According to the written submission:

The discovery of cocaine by [an officer of the United States Customs Service] within the territory of the United States resulted in the mandated seizure of the goods by operation of US law.

The cocaine having been introduced into the United States in violation of federal law all subsequent dealings in it were within the exclusive domain of the United States subject to a lawful source of power.

Those dealings were neither part of nor made pursuant to the criminal enterprise in which the applicant was alleged to be complicit.

14 The submission focused particular attention upon the 'controlled operation' authorised under s 15M of the Crimes Act 1914 (Cth). The certificate described the operation in these terms:

Two parcels believed to contain a quantity of cocaine that have been couriered from Mexico City, Mexico via the United States of America to Australia. The packages are both being couriered by UPS and have consignment numbers [ ] and [ ] respectively.
These packages are now in the possession of US Customs Special Agents ... who are safe-hand delivering the packages to Melbourne via Sydney, New South Wales per Qantas flight QF 12 arriving Sydney 8.15am Monday 6 November 2000.

It is the intention of the AFP Investigating team to substitute the bulk of the cocaine impregnated candles with inert candles.

When the substitution of the bulk has occurred the AFP with the assistance of the ACS will return the boxes containing the candles into the UPS delivery system and effect a controlled operation to the intended recipients, believed to be [Mr U] and Edmond Alten Schmidt.

15 According to the written submission, this operation constituted a new importation, separate and distinct from the one in which the applicant had been involved:

The subsequent agreement to import the cocaine into Australia was made solely between the United States and Australia. That agreement commenced a new process of importation. It was a process of importation in which parties to the criminal enterprise including the applicant had no knowledge, no concern and no involvement.

That process could only lawfully occur following the signing of the s 15M certificate by [Assistant Commissioner] Ashton. The act of importing by officers of the US Customs Service on 6 November 2000 occurred in the course of that process and for the reasons expressed in the s 15M certificate.

...

The cocaine that arrived in Australia on 6 November 2000 did so because of a process of importation that was commenced upon the signing of the certificate under s 15M of the Crimes Act.

16 For these reasons, so it was submitted, the importation of the cocaine into Australia on 6 November 2000

was a wholly separate and independent act of the executive governments of the United States of America and the Commonwealth of Australia in which the applicant was not knowingly concerned.

17 Senior counsel for the applicant sought to draw an analogy with the High Court decisions in White v Ridley,[3] and Pinkstone v The Queen.[4] In White,[5] the appellant had been convicted of importing a prohibited import (cannabis) into Australia. He had arranged with Singapore Airlines to transport to Melbourne a box containing the cannabis. At the last minute, he sought unsuccessfully to cancel the delivery of the box. The appellant's conviction was upheld on the basis that the act of the airline in innocently carrying the cannabis into Australia was properly attributed to him.

18 In the view of Stephen J (with whom Aickin J agreed), the incriminating quality of the appellant's arrangement with the airline lay 'in the fact that it was calculated to result in the importation of the cannabis into Australia.'[6] It would only have ceased to have that quality if

some event [had occurred] which may be seen to deprive the arrangement of its quality as the cause of the importation: that is, the intervention of some new cause for which the applicant was not responsible and which displaced the original arrangement as the event to which the importation can be causally assigned.[7]

In the circumstances, the ineffectual attempt to cancel the consignment left 'unimpaired' that arrangement as the cause of the importation.[8]

19 In Pinkstone,[9] the appellant had been convicted of supplying a prohibited drug. Like the offender in White,[10] he had delivered the drugs to an airline (in this case, Ansett) for transport as air cargo. The drugs were to be delivered to a named person (Yanko) at Perth airport. By arrangement between the airline and police, police disguised themselves as airline officials, took possession of the package and handed it to Yanko at Perth airport. The conviction was upheld on the ground that the mere 'sending' of the parcel by the appellant was sufficient to constitute 'supply'. The Court said, however, that if proof of actual delivery had been necessary to constitute the offence, the intervention of the police would have precluded conviction.

If it had been necessary for the prosecution to prove actual delivery of the cargo to Yanko by someone for whose conduct the appellant was criminally responsible as a principal, and if it were correct to say that the police had taken exclusive possession and control of the cargo from Ansett, and that it was the police and not Ansett who transferred possession to Yanko, then we would accept that the appellant has a good point, so far as it goes. In that case, an element of the offence with which the appellant was charged would be missing. He did not deliver the cargo to Yanko personally, and the act of delivery would have been completed by persons who were acting independently of him even though, in one respect, they were fulfilling his intention that Yanko should receive the cargo. We would not consider it necessary, in order to reach such a conclusion, to invoke any principle of public policy relating to the conduct of police officers. Rather, we would rest the conclusion on the basis that, upon the above hypotheses, the conduct of the police officers is not to be imputed to the appellant because they were acting independently of him, and therefore there is a missing element of the offence charged.[11]

According to McHugh and Gummow JJ, the action of police in delivering the package to Yanko could not have been imputed to the appellant, because the officers were acting with the undisclosed aim of seeking to arrest him.[12]

21 There is no relevant analogy with either case, in our view. The crucial point of distinction is that the applicant was charged not with importing the cocaine but with being knowingly concerned in its importation. Had he been charged with importation, the question would have been - as in White[13] and in Pinkstone[14] - whether the steps in the importation process which were not physically carried out by him could nevertheless be imputed to him. In those circumstances, it might properly have been said on the applicant's behalf that the action of the US officials in physically carrying the cocaine into Australia could not be imputed to him since (adapting the language of Gleeson CJ and Heydon J in Pinkstone[15]) 'the act of [importation] would have been completed by persons who were acting independently of him even though, in one respect, they were fulfilling his intention ... '.[16] Or, adapting the language of Stephen J in White,[17] it might properly have been said that the seizure of the cocaine by American officials and its subsequent carriage into Australia constituted

the intervention of some new cause for which the applicant was not responsible and which displaced the original [criminal enterprise] as the event to which the importation [could] be causally assigned.[18]

22 In the present case, however, no question arose of imputing to the applicant the conduct of any other person. Nor was it necessary to show that the importation which occurred could be 'causally assigned' to the criminal enterprise to which the applicant was a party. There having been - indisputably - an importation of the cocaine dispatched from Mexico, the only question was whether the applicant had been shown to have been knowingly concerned in its importation.

23 As noted earlier, the applicant does not dispute on this appeal that he was involved in arranging for the dispatch of the cocaine from Mexico, and for its collection in Melbourne. He was thus 'knowingly concerned' in those parts of the process of importation of the cocaine.[19] He contends, however, that the official intervention created 'a wholly new importation', in which he had no involvement.

24 In our view, this argument must be rejected. It has been held consistently that official intervention of this kind in the process of importing drugs does not terminate the process of importation. For example, in R v Leff,[20] a courier bringing cocaine from the United States into Australia was arrested at Sydney airport and the cocaine which he was carrying was seized by the AFP. Acting under the direction of the AFP, the courier then had dealings by telephone with the accused, regarding arrangements for the delivery of the cocaine in Sydney.

25 The New South Wales Court of Criminal Appeal held that the official intervention did not prevent 'the process or venture of importation from continuing so that a person might subsequently become concerned in the importation.'[21] Gleeson CJ said:

The principal argument for the appellant comes down to the proposition that at that stage [ie after the cocaine was seized] it was impossible for her to become knowingly concerned in the importation; the importation was over. I am unable to accept that argument. The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. ... importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition.[22]

26 A similar question arose in R v Chow,[23] where Thai police and the AFP had arranged for the importation of heroin, under surveillance, with a view to apprehending those concerned. After the heroin was imported, the AFP took possession of it for a time, removed most of the heroin, and then permitted those concerned to take possession of the container and some of the heroin. The New South Wales Court of Criminal Appeal held that the heroin had been unlawfully imported notwithstanding that the importation had been arranged by police. Likewise, the fact that the heroin had come into the custody and under the control of the police did not change its character:

The fact that the police handle or even take possession, in the legal sense, of goods which are prohibited imports does not deprive them of the characteristic of being prohibited imports.[24]

27 In our view, what Gleeson CJ said in Leff[25] applies equally to the present case. The concepts of importation, and of being 'knowingly concerned' in an importation, are both sufficiently flexible to cover a case such as the present. As the New South Wales Court of Criminal Appeal pointed out in Courtney-Smith (No 2),[26] the policy and language of the legislation, and long-standing High Court authority, favour a broad interpretation.[27]

28 The process of importation of the cocaine began with its dispatch from Mexico and ended with its collection by Ron Cassar in Melbourne. The intermediate steps - seizure in the United States and then carriage to Australia by officials - did not terminate the process. They were part of it. That they were not steps which the applicant either contemplated or knew of at the time is nothing to the point.[28] As we have said, what needed to be proved was not that this was the applicant's importation - an importation carried out by him or on his behalf - but that there was an importation in which he had been a participant in the relevant sense. The applicant's involvement with the start and end of the process was quite sufficient to constitute him a person 'knowingly concerned' in the process of importation. Indeed, intentional participation at either stage would have been sufficient.

29 These grounds fail. Senior counsel for the applicant conceded that, if the Court came to this conclusion, grounds 3 and 4 (which concerned expert evidence on foreign law) could not succeed. The application for leave to appeal against conviction must therefore be refused.

Grounds 1 and 2: sentencing the applicant in his absence

The learned sentencing judge erred in failing to sentence the applicant in compliance with the requirements of s 16F(1) of the Crimes Act 1914 (Cth).
The learned sentencing judge erred in conducting the sentencing hearing and passing sentence upon the applicant in his absence.

31 The applicant's trial began on 7 February 2006. He was on bail during the trial. On the morning of 20 March 2006, when the prosecutor was in the third day of his closing address, the applicant did not answer his bail. The Court issued a warrant for his arrest.

32 The following day the informant testified to his belief that the applicant had voluntarily absented himself. Two days later, the trial judge ruled that the trial should continue in the applicant's absence.[29] He expressed the view that defence counsel should remain, in order to address the jury on behalf of the applicant and to take exceptions to the charge. Following a ruling from the Ethics Committee of the Victorian Bar, however, defence counsel withdrew from the case.

33 On 28 March 2000, the jury returned a verdict of guilty. On 30 March 2000, the trial judge held a plea hearing in the absence of the applicant. As his Honour recorded in his reasons,[30] defence counsel 'did not accept the invitation to attend the plea hearing and accordingly, did not advance any submissions.' The prosecutor made short submissions and called evidence as to the value of the drugs. As noted earlier, the judge sentenced the applicant to 12 years' imprisonment with a non-parole period of nine years.

34 As neither the applicant nor any person representing him played any part in determining the sentence, little is known of the applicant's background. Apart from his age and prior convictions, no information was vouchsafed the sentencing judge. He is 42 years old. He has prior convictions for possession of an unlicensed pistol, attempting to pervert the course of justice, receiving stolen goods and hindering police. No attempt was made to advance any further information at the hearing of the appeal.

35 The submission for the applicant was that, by reason of s 16F(1) of the Crimes Act 1914 (Cth), the judge when fixing a non-parole period was obliged to 'explain or cause to be explained to [the applicant], in language likely to be readily understood by [him], the purpose and consequences of fixing that non-parole period ...'.

36 The language of s 16F(1) is imperative: the Court 'must explain or cause to be explained ...'. The argument for the applicant was that the giving of the necessary explanation was therefore 'an essential step in the process' of imposing sentence, such that the judge's failure to comply rendered the sentence null and void.

37 In our view, this submission must be rejected. As the High Court made clear in Project Blue Sky Inc v Australian Broadcasting Authority,[31] the resolution of a question such as this depends upon 'whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.'[32]

38 Part 1B of the Crimes Act 1914 (Cth) deals with the sentencing, imprisonment and release of federal offenders. Section 16F falls in Division 3 of Part 1B, headed 'Sentences of imprisonment'. There is nothing, in our view, in the section itself or otherwise in Part 1B to suggest that it was a 'purpose of the legislation' that a failure (in circumstances such as these) to explain the non-parole period to the sentenced person should render the sentence imposed null and void.

39 As Weinberg JA pointed out in the course of argument, s 16F is a beneficial provision, enacted to ensure that the person being sentenced properly understands the 'purpose and consequences' of the fixing of a non-parole period. In the present case, the applicant had voluntarily absented himself and hence had denied himself the opportunity to receive the explanation for which Parliament had made provision. There was, accordingly, no occasion for the explanation to be given. The applicant's own action had made compliance impossible.

40 It was argued, in the alternative, that the judge fell into appellable error in the exercise of the sentencing discretion, by conducting the plea hearing and sentencing the applicant in his absence. It was said that his Honour had thereby taken into account irrelevant considerations, and failed to take into account relevant considerations. The submission relied on the statement of Lord Atkin in Lawrence v The King,[33] that it was:

an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence.[34]

41 Senior counsel for the applicant properly drew attention to the decision of the Full Court of the South Australian Supreme Court in R v Jones,[35] in which Lander J (with whom Prior and Wicks JJ agreed) enunciated the following important qualification to the principle stated by Lord Atkin:

[I]f the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused's own waiver, then the court may proceed with the accused's trial.

Any discretion to proceed in the absence of the accused, however, should be exercised sparingly.

...

There must be circumstances where a trial can proceed in the absence of the accused. Otherwise any accused, who was on bail, and who believed that at some time during the trial that his or her prospects of acquittal were remote could absent himself or herself from the trial and thereby force a new trial. That cannot be right. If that was a principle then it would be necessary to revoke the bail of all accused persons at the outset of their trial.[36]

42 The submission for the applicant, however, was that these propositions had no application to sentence and that 'it must always be possible to pass sentence in the presence of the prisoner.' We disagree. Just as the 'essential principle' enunciated by Lord Atkin, requiring the accused's presence, applies with equal force to trial and to sentencing, so does the qualification to the principle stated by Lander J. The applicant waived his right to be present for the concluding part of his trial and, likewise, waived his right to be present at sentence. There was no error on his Honour's part in proceeding to sentence the applicant in his absence.

The learned sentencing judge erred in holding and finding that in sentencing the applicant the parity principle had no application.
The learned sentencing judge erred in imposing a sentence on the applicant that was manifestly disparate to the sentences imposed on his co-offenders.

The sentences imposed respectively on the applicant and his co-offenders are set out in the table below:

3y 3m, non-parole period of 2y 3m [But for his co-operation, sentence would have been: 6y 6m, non-parole period of 4y 6m]

44 In the course of his reasons for sentence, the judge referred to the sentences imposed on the co-offenders. Dealing first with Mr U, the judge noted that his plea of guilty 'would have resulted in some reduction'. His Honour went on:

Mr U's involvement was indeed central to organising the actual purchase, but in my view his role was far less significant than the prisoner's role.

It was noted by the learned sentencing judge in that case that much of what Mr U was doing, he was doing to impress the prisoner. On the evidence before me in this proceeding, I gained the same impression, that that was the motivating force behind the involvement of Mr U. The parity principle does not apply in the present matter because his role was significantly different to the prisoner's role. He was not the principal. Further, he pleaded guilty.[37]

45 Ground 3 may be disposed of shortly. It is founded on a misreading of his Honour's sentencing remarks. It is quite clear from what his Honour said that he recognised the need to consider parity and, to that end, was seeking to analyse the relative significance of the roles respectively played by the co-offenders in the importation. The statement that 'the parity principle does not apply' meant no more than that, because of what his Honour viewed as the significant differences in role, the applicant was not entitled to sentencing parity with Mr U.

46 As to ground 2, the substantive parity ground, the question is whether there were reasonable grounds for the sentence differentiation between the applicant and his co-offenders. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate between the co-offenders in the way he did, then there is no warrant for appellate intervention.[38]

47 In order to address that question, it is necessary to set out in full the judge's findings as to the roles respectively played by the applicant and his co-offenders:

Four men and the prisoner were involved in an arrangement to then import a substantial quantity of cocaine into Australia from Mexico. Each of the persons had a part to play in the importation. Some of the participants were unaware of the involvement and identity of the other participants. The first person, whose identity will not be disclosed and who will be known as Mr U, played a central role in the organisation of the import.

He was central and pivotal to the arrangements relating to the purchasing of the cocaine. He had known the prisoner some 15 years prior to the year 2000 and in mid-2000 renewed his acquaintance. Thereafter, the prisoner and he saw each other on a regular basis and formed a friendship. Mr U and the prisoner often visited a gymnasium and trained together. Mr U's role was to make arrangements with a supplier in Mexico to send the cocaine to Australia.

I am satisfied on the evidence beyond reasonable doubt that the prisoner was the person who was responsible for the organisation of the importation. Mr U kept the prisoner informed of the steps taken. However, the prisoner was astute to ensure that his involvement was not known to others. Accordingly he left the arrangements for the actual importation to Mr U. Mr U did not disclose the prisoner's identity to other participants in the venture and the Mexican suppliers.

Mr U travelled to Mexico twice, the first time in company with another participant in the scheme, Sonny Schmidt, in August 2000. Later, Mr U in September/October travelled to Mexico and remained there for a period of time. The purpose of the visits was to arrange a supply of cocaine. Another participant in the venture was Sonny Schmidt, a well known body builder, who had contacts with persons in Mexico. He was important as the person who provided the necessary contacts and later as the person who took the purchase money to Mexico.

The purpose of the first trip was to meet a possible supplier, and the second trip was undertaken to arrange the purchase of cocaine and to arrange for a sample to be sent to Australia. A sample was sent to Australia in early October. I am satisfied that prior to the sample being sent, the prisoner discussed the import with Mr U and told him that the sample should be sent through United Parcel Service to an address in Melbourne which was a fictitious one. Unbeknown to Mr U at that stage, the prisoner had recruited Ron Cassar, who was second in charge of the United Parcel Service office and warehouse in Ascot Vale.

The latter's job was to intercept the parcel in the UPS system at the warehouse in Ascot Vale, remove the cocaine and hand it to the prisoner. It was part and parcel of his function thereafter to take steps to, in effect, 'spirit away' the package or packages, as they were addressed to fictitious addressees.

In fact the sample was sent from Mexico and arrived some time during the week after 9 October 2000. Mr U was out of Australia at this stage, returning on 14 October 2000, by which time the sample had been sent and most likely received.

I am satisfied that the prisoner received the sample of cocaine. He informed Mr U that the quality was excellent and to go ahead and arrange for a quantity of cocaine to be sent to Australia.

Mr U made the necessary arrangements. He was instructed by the prisoner to ensure that the cocaine was packed in a container or containers and sent to Australia using the UPS transport system.

Mr U took some time to make the necessary arrangements. I am satisfied that the prisoner paid most, if not all, of the money for the purchase. It was necessary for Mr U, with the assistance of others, to change the money into US bank notes.

Mr U arranged with Sonny Schmidt that the latter would travel to Mexico to deliver the large quantity of cash, and to make the arrangements for the sending of the cocaine to Australia in a package or packages addressed to fictitious addressees, using the UPS transport system.

All told, Sonny took US$37,000 in bank notes which had been converted at the time. The conversion rate for the currency at the time was .532 which meant that the amount in Australian dollars was of the order of $69,548.87.

Sonny Schmidt had earlier sent A$8,500 to Mexico, which had been supplied by the prisoner to Mr U. In addition, the prisoner paid for the expenses of Mr U when he travelled to Mexico, by providing him with $5,000 for each of the two trips. The prisoner also provided expenses associated with Sonny Schmidt's trip, namely, the paying for the airline ticket. The latter would have been in the order of approximately A$3,000. All of these sums were paid in cash. The prisoner, through a friend, Mark Lanteri, also sought to send to America the sum of A$9,500.

In summary, prior to the importation, the prisoner's involvement was:-

Discussing with and advising Mr U on the arrangements to effect the importation into Australia of the cocaine from Mexico;
Paying for the expenses of the trips of Mr U, the airline ticket for Sonny Schmidt to Mexico on 26 October 2000, and payment of most, if not all, of the cost of the cocaine, which was in the order of A$78,048.87;
Recruiting Ron Cassar to carry out the important role in intercepting the cocaine and removing it from the packages;
Providing advice and assistance to Mr U in relation to the latter's attempts to arrange the importation;
Advising how the importation should be effected, with particular reference to the UPS system of transport into this country;
Arranging with a known drug trafficker to purchase the cocaine from him and on-sell it.

Sonny Schmidt left Australia on 26 October 2000, travelled to Mexico, made contact with suppliers there and paid the money. He returned to Melbourne on the morning of Thursday 2 November 2000. He was picked up at the airport by Mr U. Mr U then reported to the prisoner that the purchase had been effected.

On Friday 3 November 2000 in Mexico (Mexico time), two packages containing artefacts were placed in the UPS transport system in Mexico by a man called Victor. The packages contained nearly three kilograms of white powder. Later analysis revealed that the white powder comprised 1,933.4 grams of pure cocaine. The packages contained glass candles with wax and Mexican handicrafts and artefacts, and were addressed to two false addresses in Carlton and Footscray.

On 4 November 2000 (Melbourne time), Mr U eventually ascertained the tracking numbers of the two packages and he provided that information to the prisoner. The prisoner, for his part, then supplied the information to Ron Cassar at UPS Ascot Vale, the intention being that the latter would check through the UPS system to determine where the packages were.

At this stage Mr U did not know of Cassar's involvement, other than he was aware that the prisoner had arranged to contact UPS.

The prisoner was unaware of the identity of Sonny Schmidt and his brother, Pale, who was a friend of Mr U and who played a minor role in the whole venture. The Schmidt brothers did not know the identity of the prisoner and those in Mexico did not know the identity of the prisoner.

...

In the meantime, the prisoner was, from time to time, meeting a registered informer who was a drug trafficker. The latter's part in the venture was to purchase the cocaine from the prisoner. The arrangement was that the prisoner was to receive the white powder from Cassar and on-sell it to this drug trafficker. The prisoner had a number of meetings with him up to 10 November 2000. The conversations, unbeknown to the prisoner, were recorded and provided cogent evidence of the prisoner's involvement from beginning to end in the whole transaction.

On Friday 10 November, the prisoner met the informer and Cassar arrived at the same time. In the meantime Ron Cassar was trying to track the packages through the UPS computer system. In order to distance himself from it, Cassar requested two employees of UPS to try and track the packages down and to determine where they were. In fact the investigation revealed that the last notification of their presence was the arrival at the Louisville hub on 4 November, local time.

At approximately 10.00 am on Sunday 12 November 2000, the prisoner arranged a meeting with Mr U and invited Cassar to attend. This brought together the two important participants, namely the organiser of the purchase and the organiser of the final act of removing the cocaine from the packages and supplying it to the prisoner.

Despite the evidence of three persons called by the defence, I am satisfied beyond reasonable doubt that Mr U had not met Cassar before that morning in relation to the illegal venture, even though, when he met him, he realised he had met him some 15 years previously. Later that morning and after the meeting, Mr Cassar visited the UPS warehouse and identified the packages. He returned later that evening at about 6.15pm, entered the UPS premises, stopped the in-house video recording, obtained possession of the packages, opened them, re-sealed them and put certain items which contained the cocaine in a box in the storeroom at the premises. As he was driving away from the premises he was arrested.

Later that evening, Mr U and the Schmidt brothers were also arrested and charged with being knowingly concerned in the importation of a prohibited import into Australia. The prisoner was not arrested. On 1 December 2000 the prisoner had a frank and open discussion with the registered informer, the drug trafficker, and, unbeknown to him, the conversation was recorded. It is indeed a damning conversation and amounts to a confession by the prisoner of his total involvement in all the arrangements of this importation.

In summary, he supplied most, if not all, of the finances necessary for the venture, including expenses and the cost of cocaine. He gave instructions as to where and through what system the goods were to be transported to Australia. He provided assistance, advice and support to Mr U when the latter needed and asked for it. He recruited Mr Cassar, a vital cog in the whole venture, and finally arranged with the informer to sell him the drugs.[39]

48 His Honour concluded that the profit which the applicant hoped to make from the transaction was 'in the order of $105,000'.[40] He noted that the quantity of cocaine imported put it 'just below the commercial quantity'.[41] The commercial quantity was 2 kilograms. The quantity of pure cocaine imported in this case was 1933.4 grams. The maximum penalty for the offence of which the applicant was convicted was 25 years. As his Honour pointed out, the maximum penalty where a commercial quantity is involved is life imprisonment. In a quantity-based regime of offences such as this, the quantity imported necessarily informs the assessment of the seriousness of the offence.[42]

[T]he prisoner's participation in the offence is an aggravating factor. I am satisfied that the prisoner was the brains and moving force behind the importation. The prisoner cunningly did his best to remove himself as far as he could from the actual events by recruiting both Mr U and Mr Cassar to perform the important tasks they did. The prisoner left it to Mr U to find the Schmidt brothers to assist. I have little doubt that the latter played a small part in the overall venture. In my view it was the prisoner's venture. He financed it, made the arrangements for organising it, and recruited both Mr U and Mr Cassar to put in place what he hoped would be a successful importing venture. But equally importantly, it was necessary to on-sell the product. The prisoner recruited an experienced drug trafficker to do this. If all had gone to plan, the prisoner's actual physical participation throughout would have been extremely small, and indeed probably would have involved the prisoner doing no more than receiving possession of the cocaine for a very short period and then on-selling it to the informer and receiving the cash. It is clear from some of the telephone intercepts that the prisoner did his best to cover his tracks. The prisoner paid for everything in cash, and there was no record of his money actually being used. ...

The prisoner's involvement was indeed substantial and significant. He was the principal. It was his illegal enterprise. The others were used by him to effect the importation in order to make money. The prisoner's contribution was significant. The prisoner was a person exploiting and using others to make a substantial profit. His level of criminality was indeed high.[43]

50 There was no challenge to any of his Honour's findings of fact. In the circumstances, his Honour's concluding summary of the applicant's role as principal in the importation was fully justified.

51 Next it is necessary to examine what was said by the judges who respectively sentenced Mr U and Mr Cassar. We deal first with Mr U, who was sentenced by Judge Shelton in the County Court in August 2002.[44] He was sentenced on the basis that he was acting in the importation on behalf of the applicant and at his direction. The sentencing judge concluded that the primary reason for Mr U's involvement was not financial but was rather for the purpose of ingratiating himself with the applicant, whom he regarded as 'a highly successful property developer and businessman'. Mr U hoped that his involvement would please the applicant and would 'lead ultimately to a financial benefit for you through favours he would bestow upon you by involving you in developments'.

52 The judge described Mr U's role as 'vital' in that he

introduced the parties involved to each other, travelled twice to Mexico in connection with the importation, showed Sonny Schmidt how the cocaine was to be concealed for importation and [was] closely involved in the forwarding of a sample of the cocaine to Mokbel and arrangements for the importation ... [45]

His Honour proceeded on the basis that the value of the cocaine was substantial.

53 The judge noted that, when Mr U renewed his acquaintance with the applicant in mid-2000, he was 'severely depressed, emotionally vulnerable and fragile'. He had no relevant prior convictions. The judge regarded his plea of guilty as showing remorse, acceptance of responsibility and a willingness to facilitate the course of justice. His Honour noted that, in the opinion of an experienced consulting psychologist, at the time of the offending Mr U was

showing symptoms of anxiety and depression, which led to your not thinking so rationally and you became enmeshed in Mokbel's importation scheme, before realising how deeply you were involved. He stated that your mother, brother, sister and the Federal Police had assisted you in gaining insight into your offending behaviour and that you were ashamed of your behaviour and had even been suicidal. He is positive with respect to your future and feels that you will be able to get your life back on track.[46]

54 Mr Cassar was sentenced in the County Court in April 2003.[47] The sentencing judge noted that the success of the scheme depended upon the co-operation and participation of someone in the position of Mr Cassar. He was 'the man inside the warehouse'. Addressing Mr Cassar, the judge said:

your role in this enterprise was discrete and crucial. Without your participation, the scheme could not have operated in the manner designed. It depended upon your willingness to steer the tainted parcels past Customs. It involved you acting in serious breach of your duty to your employers and to Customs, whose agent you, in effect, were in the circumstances and this, as the Crown submits, is an aggravating factor. Its consequences for the community would be great.

I am satisfied beyond reasonable doubt that this was your role. It was not just to advise and monitor and report. The fact that, in the end, you did not effect the release of the drugs to Mr Mokbel is of no consequence. You did your best in the circumstances.[48]

55 Although there was no evidence that Mr Cassar received, or had been promised, any monetary reward, his Honour did not accept that he was 'just doing a favour without reward or prospect thereof', nor that he was merely a 'knowing pawn' of Mr Mokbel's.

56 His Honour noted that Mr Cassar was previously a man of good character, without any prior convictions. He had brought on himself a 'heavy punishment', being the loss of $40,000 worth of shares, had lost his car and career and had placed great strain on his family relationship. The judge noted that, in the years between his arrest and the trial, Mr Cassar had engaged in charitable work and had obtained employment 'which is all to your credit and which suggests that eventually you have good prospects of rehabilitation.'[49]

57 By contrast, the sentencing judge said in relation to the applicant:

The prospect of rehabilitation plays no part in this sentencing process. The prisoner's attitude to the law and authority shows a man who treats both with contempt.[50]

Once again, there was no challenge to these findings, which made specific deterrence and protection of the community very significant sentencing considerations in the applicant's case.

58 Enough has been said to demonstrate that there were very significant differences between the applicant and his co-offenders. In our view, these differences amply justified the sentencing differentials between him and each of them.

Ground 5. The sentence imposed, including the head sentence and the non-parole period, are each and all manifestly excessive.

60 Manifest excess is a ground commonly, even routinely, advanced on applications for leave to appeal against sentence. It is, however, a difficult ground to make good, for the reasons given by Maxwell P in R v Abbott:[51]

The ground of manifest excess will only succeed where it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.

The 'range' for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

61 According to the submission for the applicant, the head sentence and the non-parole period fixed were 'on par with the highest Commonwealth sentences imposed for being knowingly concerned in the importation of a traffickable quantity of cocaine.' The following matters were said to require the conclusion that the sentences were manifestly excessive:

Whilst by the verdict the applicant was properly regarded as the principal in a highly organised criminal enterprise, it was nonetheless unsuccessful. The cocaine was imported pursuant to a controlled delivery and but for a small quantity under police surveillance was in the exclusive custody and control of the AFP.
The sentences imposed on the applicant's co-offenders.
By the time of sentence almost 6 years had elapsed through no fault of the applicant.
The applicant had no prior convictions for drug related matters. His last conviction was in 1992.

62 As to the first point, we have already expressed our agreement with the judge's characterisation of the applicant's role as principal in the importation, and with his conclusion that the applicant's level of criminality was 'high'. The fact that the 'highly organised criminal enterprise' did not succeed has little if any bearing on the applicant's moral culpability, in our view.

63 This was a substantial importation, which the applicant planned, funded and implemented (with the willing assistance of his co-offenders). It was his intention to introduce into the Australian community a large quantity of a prohibited drug. His only motive was profit. But for the vigilance of the AFP, the plan may well have succeeded. The importance of general deterrence - and, in the applicant's case, specific deterrence - in such a case cannot be overstated. It is rare enough, as the judge commented, for the principal in a drug importation to be apprehended. A substantial sentence was called for.

64 We have already dealt with the question of parity. As to delay, the applicant had been arrested in August 2001. After a number of unsuccessful applications for bail, he was released on bail on 4 September 2002. He remained on bail for the period until 25 October 2005, being the day before the date originally fixed for the trial. As the judge noted in his sentencing remarks, the committal in relation to the importation count did not take place until late 2004. The judge said:

the delay has been substantial and is a matter that must be taken into account in fixing the sentence. The case has been hanging over his head for many years. It is a factor mitigating the sentence.[52]

His Honour thus took the delay into account, in accordance with established principles regarding the mitigating effect of delay.[53]

65 In our view, giving full weight to that consideration (which was the only mitigating circumstance on which the applicant could rely), the sentence which his Honour imposed was well within the range reasonably open to him in sentencing the applicant for this offence. The application for leave to appeal against sentence must be refused.

[2] At the relevant time, s 15H of the Crimes Act 1914 (Cth) defined a controlled operation as 'an operation that (a) involves the participation of law enforcement officers; and (b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence against s 233B of the Customs Act 1901 or an associated offence; and (c) may involve a law enforcement officer engaging in conduct that would, apart from subsection 15I(1) or (3), constitute a narcotics offence.'

[11] Pinkstone [2004] HCA 23; (2004) 219 CLR 444, 451-2 (emphasis added, citations omitted).

[19] See R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272, 298 (Weinberg AJA, with whom Spigelman CJ and Simpson J agreed) ('Campbell').

[21] Ibid 113 (James J, with whom Gleeson CJ and Allen J agreed).

[26] (1990) 48 A Crim R 49, 63 (Gleeson CJ, Kirby P, Lusher AJ).

[27] See also Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272, 290-1 (Spigelman CJ); 296-7 (Weinberg AJA).

[28] R v Tannous (1987) 10 NSWLR 303, 308-9.

[29] R v Mokbel (Ruling No 5) [2006] VSC 520.

[30] R v Mokbel [2006] VSC 119, [10].

[32] Ibid 390 (McHugh, Gummow, Kirby and Hayne JJ).

[34] Ibid 708. See also R v Vernell [1953] VicLawRp 79; [1953] VLR 590, 598 (Smith J).

[37] R v Mokbel [2006] VSC 119, [104]-[105].

[38] Teng v The Queen [2009] VSCA 148, [17], citing R v Wolfe [2008] VSCA 284, [9].

[39] R v Mokbel [2006] VSC 119, [27]-[45]; [50]-[55].

[42] R v Adams [2007] VSCA 37.

[43] R v Mokbel [2006] VSC 119, [79]-[80] (emphasis added).

[44] (Unreported, County Court of Victoria, Judge Shelton, 8 August 2002).

[47] R v Cassar (Unreported, County Court of Victoria, Judge Hart, 30 April 2003).

[50] R v Mokbel [2006] VSCA 119, [102].

[51] [2007] VSCA 32; (2007) 170 A Crim R 306, 309 (citations omitted).

[52] R v Mokbel [2006] VSC 119, [66].

[53] See R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 and the authorities there cited.

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