By Associate Professor Jeremy Gans
This year, the High Court heard its first ever case arising from Melbourne’s 1990s ‘gangland war’. Over seven years ago, Tony Mokbel, one of that war’s most prominent identities, failed to appear in Victoria’s Supreme Court part way through his trial for importing drugs in breach of federal law. Some initially speculated that, like many gangland figures before him, ‘Fat Tony’ had become one of the war’s victims. When he was found (alive) in Greece, it became clear (at least in hindsight) that the Supreme Court itself had erred in ruling that Mokbel was not a sufficient flight risk to justify keeping him in custody throughout a prosecution that had been much-delayed due to corruption in the police’s drug squad. Mokbel is now serving a 30 year sentence for drug offences committed before and during his escape, his sister-in-law received a two year sentence for defaulting on his bail surety and at least ten others were prosecuted and convicted for assisting in his escape.
The High Court appeal was brought by two brothers who sheltered Mokbel for months in Victoria, transported him across the country, hired a crew for his voyage to Greece and provided him with forged passports. For their efforts, George Elias and Chafic Issa were each sentenced to eight years imprisonment by the Victorian Supreme Court, one of the highest sentences ever awarded in Australia for attempting to pervert the course of justice. Their sentences were upheld in Elias v The Queen; Issa v The Queen  HCA 31, with the High Court ruling that it did not matter that federal law at the time provided for only a five year maximum sentence for the same offence.
Prosecution à la carte?
The key to understanding the High Court’s decision is to recognise that some bad deeds amount to more than one crime. When they helped Mokbel escape, Elias and Issa most likely committed fraud offences, money laundering offences, border security offences and passport offences and were probably accessories both ‘after the fact’ to his earlier crimes and ‘before the fact’ to further drug crimes he committed during his flight. The prosecutors were free to charge the brothers with any or all of these offences, subject to their own public interest guidelines. Although some others who sheltered Mokbel for a short time during his escape were charged with being accessories, the Victorian prosecutors preferred the more serious charge of attempting to pervert the course of justice for major supporters like Elias and Issa.
Importantly, when the charges concern federal proceedings (like Mokbel’s drug trial), Australian law provides Victorian prosecutors with a further choice. As already noted, the offence of perverting ‘federal’ justice (in the federal Crimes Act 1914 (Cth)) carried a maximum penalty of five years imprisonment. However, Victoria is the only Australian jurisdiction that also retains the common law (i.e. judge-made) offence of perverting (any) justice and the Victorian Parliament has provided for a maximum penalty of 25 years imprisonment, by far the highest in the country. Unsurprisingly, the prosecutors chose to bring the common law charge against Elias and Issa.
The brothers’ complaint to the High Court included belated claims that both the charge of perverting justice and Victoria’s 25 year maximum penalty should not have been applied to them at all. They argued that, because Mokbel was already convicted and sentenced (in his absence) before they assisted him, they did not actually pervert any justice. As well, they argued that the Victorian penalty could not operate in federal matters, because it was inconsistent with the federal penalty. However, the High Court refused to let them pursue these two arguments on appeal, instead only permitting them to assert that a mistake was made, not by their prosecutors, but by the judges who determined their actual sentences.
Sentencing à la carte?
Australian sentencing is highly discretionary and there are few firm rules. The main constraint is that sentencing judges must not exceed the maximum sentence that parliament provides for whatever charges the prosecution chose to bring that resulted in a guilty plea or verdict. In Elias’s and Issa’s cases, that meant that their sentences could range from nothing at all to 25 years without parole.
However, Australian judges are also required to fit the sentence to one or more of the purposes of punishment (such as desert or deterrence) and, accordingly, must typically consider a wide array of details about both the offending and the offender that are relevant to those purposes. When he was sentenced, George Elias unsuccessfully argued that one detail the judge should consider was the much lower maximum sentence that federal parliament set for perverting federal justice. Issa raised the same argument in his first appeal.
On the brothers’ side was a startlingly similar Victorian ruling from 30 years earlier, involving the same common law charge of perverting justice in relation to the trial of another Melbourne criminal identity. Three judges of Victoria’s Supreme Court held that the sentencing of a person for bribing a witness at Victor Pierce’s trial miscarried because the judge failed to consider the (then) two-year maximum sentence that federal parliament provided for the same offence.
Importantly, that earlier ruling was followed or mimicked in a number of sentencing appeals in multiple Australian jurisdictions, albeit usually in the context of prosecutors choosing to bring general fraud charges (typically carrying a maximum of ten years imprisonment) to conduct also covered by more specific fraud offences (that tend to carry lower maximum penalties.) A 1995 Victorian appeal, R v Liang  VSC 394 (1995) 124 FLR 350 — where the defendants tampered with a public phone to make it repeatedly call a pay-per-use number they owned and were charged with general fraud rather than a more lenient telecommunications fraud offence — came to stand for a ‘principle’ that sentencing judges must have regard to any lower maximum penalties for any charges that prosecutors could have ‘appropriately’ brought for the offender being sentenced.
Unfortunately for Elias and Issa, the principle they raised was nevertheless a precarious one. Because it only arose occasionally, most Australian lawyers and judges did not know about it and it has never been applied in NSW, Australia’s largest criminal jurisdiction. As well, the appeal courts that developed the principle tended to discuss it very briefly, so its rationale, application and impact were far from clear. Tellingly, the Liang decision, made 18 years ago, was the last time any Victorian appeal court ever held it to be applicable to a particular sentencing decision. In Elias’s and Issa’s appeals a five-judge Victorian Court of Appeal bench unanimously held that the federal charge would not have been appropriate given the gravity of the brothers’ conduct. Moreover, the court also narrowed the principle so that judges only have to consider less punitive offences from the same jurisdiction as the offence that was actually charged. Accordingly, Elias and Issa faced an uphill battle in High Court, which had never before considered, much less endorsed, the principle in Liang.
The High Court takes Liang off the menu
When the High Court agreed to let Elias and Issa appeal their sentence, it was clear that the Court’s real interest was in deciding whether the principle in Liang ought to be part of Australian law. At the hearing, Victoria’s Chief Crown Prosecutor invited the Court to denounce the principle entirely, daringly noting that the successful counsel in Liang itself had recently described it to him as ‘the silliest decision he had ever seen’. That counsel was none other than Mark Weinberg, a former Dean of Melbourne Law School and Commonwealth Director of Public Prosecutions, and a current judge on the Victorian Court of Appeal. Elias’s and Issa’s counsel responded by quoting a paper Justice Weinberg wrote last year bemoaning the NSW court’s ignorance of the principle. When the High Court unanimously rejected Liang (and therefore dismissed Elias’s and Issa’s sole complaint against their sentence), it relied on principles of its own.
The High Court first questioned two of the rationales that Victorian courts had provided for their approach. One rationale was that the principle was needed to ensure that prosecutorial discretion did not ‘constrain’ sentencing discretion; however, the Court held that offenders are meant to be sentenced for the offence they are convicted of (and hence for the offence the prosecutor chose to pursue) and that sentencing judges’ typically wide discretion leaves them free to give offenders a fair sentence. A second rationale is that the principle avoids inconsistent or inequitable sentencing; however, the Court held that Australian sentencing law only requires consistency between co-offenders in the same incident and people convicted of the same offence (for example, consistency between Elias and Issa), rather than amongst unrelated people who do broadly similar things but are charged with different offences.
The coup de grâce for Liang was the High Court’s suggestion that the principle may be contrary to other Australian laws. One is that many Australian legislatures specifically require judges to take account of the maximum sentence provided for the charged offence. Taking account of the maximum sentence for a different offence may detract from that requirement. As well, the High Court repeated its pronouncement in a 1990s judgment (decided a year after Liang) that trial judges should not question prosecutors’ charging choices unless impropriety is alleged, as doing so ‘risks compromising the impartiality and independence of the court’.
Did Fat Tony’s helpers get their just deserts?
In the words of Victoria’s Court of Appeal, Elias and Issa’s conduct ‘struck at the heart of the criminal justice system and created a public scandal’. So, it would take a bold court to rule that a sentence that was under a third of the maximum available was too high. However, it is important to note that perverting the course of justice is an extremely broad offence that covers behaviour like threatening witnesses, bribing officials and fabricating evidence, conduct that was one of the most invidious aspects of Melbourne’s gangland wars but was never alleged against Elias and Issa.
The federal parliament has long recognised the danger of grouping such disparate wrongs together in a single offence. At the time of the Mokbel’s escape, the federal perverting justice offence only applied to conduct ‘not specifically defined’ in other provisions in the federal Crimes Act, which covered corrupting witnesses, destroying evidence and false accusations. It was only when that limitation was removed from the offence in 2011 that parliament doubled the maximum penalty. The federal government stated (six months before Elias was sentenced) that the new penalty ‘reflects the seriousness of the offence’, despite specifically noting the vastly higher maximum penalty in Victoria. It is extremely doubtful that Elias and Issa would have received anything close to eight years for their offending if the prosecutors had chosen (as they could have) to bring federal charges, even under this potentially more punitive regime.
The High Court was right to hold that the principle in Liang is not ‘necessary to enable a court to impose a just sentence’. However, in my view it went too far in stating that ‘[c]onsideration of different offences for which an offender might have been convicted is merely a distraction’. The views of Australian legislatures, as expressed both in statutes and in the accompanying parliamentary debates, are frequently referred to in Australian courtrooms and may be especially valuable in determining what level of punishment serves Australian notions of justice, especially for rarely charged offences. In Elias’s and Issa’s case, it may be that the debate about an amorphous sentencing principle distracted all levels of Australia’s courts from a genuine question about the seriousness of the particular crime the brothers committed, one on which federal parliamentary debates and decisions about a different (but very similar) offence arguably had no minor significance.
The Court’s concluding observation that its rejection of Liang will ease the research burden in the nation’s sentencing proceedings will be cold comfort to two people who were sentenced for perverting a federal proceeding under a Victorian law that the federal parliament has consistently found to be far too punitive.
AGLC3 Citation: Jeremy Gans, ‘The Charge for Serving Fat Tony: Elias v R; Issa v R’ on Opinions on High (10 July 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/07/10/gans-elias-issa/>.
Jeremy Gans is an Associate Professor at Melbourne Law School and an Editor of Opinions on High.