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DPP v Moustafa

DPP v Moustafa

Case [2018] VSCA 331 7 December 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0200

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KHALED MOUSTAFA	Respondent

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JUDGES:	BEACH, EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2018
DATE OF JUDGMENT:	7 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 331
JUDGMENT APPEALED FROM:	DPP v Moustafa [2018] VCC 1389 (Judge Davis)

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CRIMINAL LAW – Director’s appeal – Sentence – Respondent pleaded guilty to one charge of recklessly causing injury and four charges related to drug trafficking – Sentenced to total effective sentence of five years and three months’ imprisonment with non-parole period of two years and five months – Respondent played important role in large scale drug trafficking operation involving, inter alia, over eight tonnes of 1,4-Butanediol – Whether judge erred by subtracting three years and four months ‘dead time’ previously spent in custody on unrelated matters (for which he was acquitted) from total effective sentence – Whether individual sentences and total effective sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced to total effective sentence of nine years’ imprisonment with non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC with Ms M J Brown	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Ms B Franjic	Haines & Polites

BEACH
EMERTON
WEINBERG JJA:

On 10 July 2018, the respondent, now aged 27, pleaded guilty in the County Court, at Melbourne, to one charge of causing injury recklessly, and four charges related to trafficking in drugs of dependence.

The charges against the respondent arose out of an investigation conducted by Victoria Police designated ‘Operation Merlin’. That investigation culminated in the arrest of a number of individuals, and the seizure of over 3,800 kilograms of 1,4-Butanediol (‘1,4-BD’)[1] on 14 June 2016, and a further five tonnes of the same substance in August 2016.[2]
[1]1,4-BD is a drug of dependence pursuant to the Drugs, Poisons and Controlled Substances Act 1981 sch 11. It is an industrial solvent, but also acts as a ready replacement and analogue for gamma hydroxybutyrate (known as ‘GHB’). It is not an offence to import 1,4-BD for industrial purposes. Unauthorised possession and trafficking for human consumption, however, is prohibited.
[2]A commercial quantity of 1,4 BD is two kilograms. At the time of the offending, there was no specified amount that constituted a large commercial quantity.

On 31 August 2018, the respondent was sentenced as follows:

Charge
Offence Maximum penalty Imprisonment imposed Cumulation

1 Recklessly causing injury
[s 18 Crimes Act 1958] 5 years 2 months 1 month

2 Trafficking in a drug of dependence (commercial quantity) – 8 tonnes of 1,4-BD.
[s 71AA Drugs, Poisons and Controlled Substances Act 1981] 25 years 4 years 2 years

3 Trafficking in a drug of dependence (large commercial quantity) – 39,012 ecstasy tablets.
[s 71(1) Drugs, Poisons and Controlled Substances Act 1981] Life 5 years Base

4 Trafficking in a drug of dependence (commercial quantity) – 640…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Moustafa

Details

AGLC: Director of Public Prosecutions v Khaled Moustafa [2018] VSCA 331
Case: [2018] VSCA 331
Decision Date: 7 December 2018

CaseChat Overview and Summary

The case of DPP v Moustafa involved the Director of Public Prosecutions (DPP) appealing the sentence imposed on Moustafa, who had pleaded guilty to one charge of recklessly causing injury and four charges related to drug trafficking. The case was heard in the High Court of Australia. The central issue before the court was whether the trial judge erred in reducing the total effective sentence by subtracting three years and four months, which represented the 'dead time' Moustafa had already spent in custody on unrelated charges for which he was acquitted. Additionally, the court considered whether the individual sentences and the overall effective sentence were manifestly inadequate given the nature and scale of Moustafa’s criminal activities.

The High Court held that the trial judge had indeed erred in reducing the total effective sentence by the time spent in custody on unrelated matters. The Court found that the sentencing judge should not have subtracted the 'dead time' because it did not account for any credit for time spent on remand for the current charges. Furthermore, the Court concluded that both the individual sentences and the total effective sentence were manifestly inadequate considering the significant role Moustafa played in a large-scale drug trafficking operation, which involved over eight tonnes of 1,4-Butanediol. The Court emphasised the need for sentences to reflect the seriousness of the offences and to provide adequate deterrence and denunciation.

In light of these findings, the High Court allowed the appeal and re-sentenced Moustafa to a total effective sentence of nine years’ imprisonment, with a non-parole period of six years. This decision underscores the importance of ensuring that sentences are proportionate to the gravity of the offences committed and the role of the offender within the criminal enterprise. The final orders of the Court mandated that Moustafa serve the new sentence, reflecting the gravity of his criminal activities and the need for appropriate punishment and deterrence.

Orders