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Mokbel v The King [2023] VSCA 40

The offender was sentenced following conviction for 1 count of incitement to import a prohibited import contrary to ss 11.4(1) of the Commonwealth Criminal Code and s 233B(1) of the Customs Act 1901. Offender also sentenced for two state drug charges. Original sentence for the Commonwealth offence imposed 6 years imprisonment with a non-parole period of 3 years. Offender sought a variation to sentence on the ground that a prior conviction and sentence which had been taken into account in imposing the subject sentence had been quashed in another proceeding. The application on this ground was accepted under the Criminal Procedure Act 2009 (Vic) and offender stood to be resentenced.

Cumulative and Concurrent Sentences: Like the court in Swingler, offender must be sentenced by first sentencing for the state offences, then the Commonwealth offences. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.

Antecedents: On the issue of the dead time of 12 years served by offender on the quashed conviction, the Crown’s contention that the Renzella discretion does not apply when sentencing for federal offences is rejected. Section 16A(2)(m) of the Crimes Act 1914 requires a court sentencing on a federal offence to take into account, among other things, the offender’s ‘antecedents’. There is no reason for thinking that an offender’s antecedents would not, in an appropriate case, include time served on a sentence subsequently set aside.

Nature and Circumstances: While the sentencing judge regarded the offences for which they were sentencing offender as being more serious than they might otherwise have been because offender had been found guilty of committing the previous offending, and that matters personal to offender were viewed less favourably because of that, the effect of the previous conviction on the sentence should not be overstated.

Hardship: While in custody offender was assaulted. The head injury they suffered was a serious one with ongoing consequences. Offender’s injuries and their consequences have made the burden of their incarceration over the last four years greater than it otherwise would have been, both by reason of the actual physical and psychological consequences of the result and because of the concomitant alteration in offender’s placement and management in custody. Those circumstances need to be taken into account in offender’s favour. The COVID-19 pandemic will, at least to some extent, have made the burden of offender’s incarceration during the period of the pandemic greater than it otherwise would have been. While the period of the pandemic is a relatively small fraction of the sentence, some regard should be had to it. Little, if any, regard should be had to what offender describes as the progress of their coronary heart disease. This issue was well accounted for in the original sentence.

Guilty Plea: Offender was sentenced on the basis that their pleas of guilty had a ‘high utilitatian value’. The time and resources expended by the application ‘does reduce to some extent, not to a great extent but to some extent, the utilitarian value of [the] pleas’, and that some regard should be given to that matter.

Application allowed. Offender’s sentence for the federal offence unchanged at 6 years imprisonment with a varied federal non-parole period of 4 years.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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