Elias v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Kiefel,Bell,Keane JJ
• Judgment Date: 27 June 2013
• Neutral Citation: [2013] HCA 31
• Docket Number: Matter No M29/2013
• Date: 27 June 2013

[2013] HCA 31

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Bell and Keane JJ

Matter No M29/2013

Matter No M25/2013

George Elias

Appellant

and

The Queen & Anor

Respondents

Chafic Issa

Appellant

and

The Queen & Anor

Respondents

Representation

P F Tehan QC with D D Gurvich for the appellant in M29/2013 (instructed by Emma Turnbull Criminal Law)

L C Carter for the appellant in M25/2013 (instructed by C. Marshall & Associates)

G J C Silbert SC with B L Sonnet for the first respondent in both matters (instructed by Solicitor for Public Prosecutions (Vic))

Submitting appearance for the second respondent in both matters

Sentencing Act 1991 (Vic), s 5(1), (2).

Elias v The Queen

Issa v The Queen

Criminal law — Sentence — Where offence carries higher maximum penalty than other offence for which offender could have been prosecuted — Whether sentencing judge required to take lesser maximum penalty for other offence into account as mitigating factor — Whether R v Liang (1995) 124 FLR 350 should be followed.

Criminal law — Respective roles of prosecution and sentencing judge — Whether appropriate for sentencing judge to have regard to other offence which judge considers as appropriate or more appropriate to facts of case.

ORDER

Matter No M29/2013

Appeal dismissed.

Matter No M25/2013

Appeal dismissed.

French CJ, Hayne, Kiefel, Bell and Keane JJ. These appeals were heard together. They raise for consideration the existence and scope of a claimed common law principle of sentencing. The principle, stated by the Court of Appeal of the Supreme Court of Victoria in R v Liang, requires a sentencing judge to take into account in mitigation of sentence that there is a ‘less punitive offence’ on which the prosecution could have proceeded and which is ‘as appropriate or even more appropriate’ to the facts than the charge for which the offender is being sentenced 1.

2 The appellants and a man named Bassillios Pantazis pleaded guilty before the Supreme Court of Victoria to offences which included in each case a count of attempting to pervert the course of justice. This is a common law offence for which the Crimes Act 1958 (Vic) provides a maximum penalty of imprisonment for 25 years 2. The appellants and Pantazis were each sentenced to eight years' imprisonment for this offence 3. The conduct constituting the attempted perversion of justice consisted of acts of assistance given to a fugitive who had been sentenced for a Commonwealth offence. Under Commonwealth law, an

attempt to pervert the course of justice in relation to the judicial power of the Commonwealth is an offence which carries a maximum penalty of imprisonment for five years 4.

3 The appellants and Pantazis appealed to the Court of Appeal of the Supreme Court of Victoria (Warren CJ, Redlich, Hansen and Osborn JJA and Curtain AJA) against the severity of their sentences. They submitted on the authority of Liang that it was an error not to take into account the lesser maximum penalty for the Commonwealth offence in mitigation of their sentences. The first respondent submitted that the Sentencing Act 1991 (Vic) (‘the Sentencing Act’) does not permit a judge sentencing for an offence under State law to have regard to some other maximum penalty prescribed for a Commonwealth offence. That submission was accepted. The Court of Appeal rejected the appellants' alternative submission that their sentences should have been mitigated to take into account that they could have been prosecuted as accessories after the fact under State law 5. The maximum penalty in that event would also have been five years' imprisonment. The Court of Appeal considered that maximum penalty to be inadequate to punish the appellants for their participation in a sophisticated and prolonged criminal combination which had struck at the heart of the administration of criminal justice 6. How the State provisions about accessories after the fact could have been engaged when the alleged acts of assistance were given to a fugitive who not only had been sentenced, but had been sentenced for a Commonwealth offence, was not explored. The appeals were dismissed.

4 The appellants appeal by special leave. Pantazis died before the hearing and his appeal has been discontinued. The appellants rely on a single ground which asserts error in the failure to apply the principle stated in Liang. They contend that the Court of Appeal was wrong to confine the application of the principle to offences within the same jurisdiction. Alternatively, they maintain

that the Court of Appeal was wrong not to have regard to the maximum penalty for the less serious State offence 7.

5 The Liang ‘principle’ has been applied by the Court of Appeal of Victoria on a number of occasions. The first respondent's challenge to the principle in the Court of Appeal was confined to its application to Commonwealth offences. By notice of contention in this Court, the first respondent submits that Liang does not state a principle of sentencing known to the law. For the reasons to be given, the first respondent's contention must be accepted and the appeals must be dismissed.

Factual background

6 The appellants' offences arose out of their association with a man named Antonios (Tony) Mokbel. Mokbel was the principal of a criminal enterprise known as ‘The Company’, which was engaged in the manufacture and distribution of very large quantities of methylamphetamine. The appellants' convictions for drug trafficking offences related to their activities on behalf of ‘The Company’.

7 In March 2006, Mokbel was on trial in the Supreme Court of Victoria on a presentment that charged him with drug trafficking contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). On 20 March 2006, he failed to appear at his trial and a warrant was issued for his arrest. The trial continued in his absence. On 31 March 2006, Mokbel was convicted and sentenced in his absence. He remained at large until his arrest in Greece on 5 June 2007. Throughout this period Mokbel continued to control his drug manufacturing and distribution business.

8 Mokbel enlisted the assistance of the appellants in his successful attempt to flee the jurisdiction. The appellants jointly owned a property in Bonnie Doon, Victoria which they used to hide Mokbel until October 2006. They facilitated the supply of a substantial quantity of cash to Mokbel. He was then moved to Elphinstone, Victoria before being transported to Fremantle, Western Australia by Pantazis. The appellants met up with Mokbel and Pantazis on the trip. Issa

booked and paid for their accommodation in South Australia and on arrival in Western Australia.

9 On 11 November 2006, Mokbel left Fremantle on a yacht bound for Greece. Issa was involved in engaging a crew to refit the yacht and sail it to Greece. Elias also procured equipment for the yacht. In February 2007, Issa assisted in the transfer of $120,000 in cash and two passports to Mokbel. A forged passport based on the documents supplied by Issa was found on Mokbel at the time of his arrest in Greece.

10 A submission based on Liang was unsuccessfully advanced at Pantazis' sentencing hearing 8. It was submitted that he might have been charged with attempting to pervert the course of justice under the Commonwealth statute 9 or with being an accessory after the fact under the State statute 10. He asked the sentencing judge to take into account the lesser maximum penalty for those offences as a guide to the appropriate range of sentence. The prosecutor accepted that the offence under the State statute could have been charged but submitted that, having regard to the extent and nature of the offending conduct, the appropriate offence was the one on which the prosecution had proceeded. The prosecutor did not address the submission respecting the Commonwealth offence. A submission based on Liang was also unsuccessfully advanced at Elias' sentencing hearing 11. The submission was confined to the Commonwealth offence as a guide to the appropriate range of sentence. A submission based on Liang was not made at Issa's sentencing hearing, but it was made to, and considered on its merits by, the Court of Appeal.

11 Some reference should be made here to Liang and the other cases on which the appellants rely for the existence of the suggested principle.

Liang

12 The applicants in Liang were jointly presented before the County Court of Victoria on counts arising out of a scheme of dishonesty against the interests of

Telecom, a Commonwealth authority. Each was charged with dishonestly obtaining a financial advantage under State law 12 and with defrauding a carrier of a charge payable for a telecommunications service under Commonwealth law 13. The State offence had a maximum penalty of 10 years' imprisonment. The Commonwealth offence had a maximum penalty of five years' imprisonment. The applicants successfully appealed to the Court of Appeal against the severity of the sentence imposed for the State offence in circumstances in which it was held that the sentencing judge had proceeded on a misconceived basis. However, Winneke P, giving the leading judgment, went on to say 14:

‘For my part, I think there is much substance in the argument that the applicants were exposed to an injustice by being charged with the offence created by s 82(1) of the Crimes Act (Vic). This injustice flowed … because that charge (exposing the applicants, as it did, to higher penalties) did not, in my view, appropriately fit the nature of the applicants' conduct.’

13 His Honour stated the principle in these terms 15:

‘although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is nonetheless relevant and proper for the judge on sentence to take into account as a relevant sentencing...