Mato v The Queen; Rusu v The Queen - [2015] NSWCCA 328

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mato v R; Rusu v R [2015] NSWCCA 328
Hearing dates: 6 October 2015
Decision date: 18 December 2015
Before: Gleeson JA at [1];
Hall J at [2]
Campbell J at [131]
Decision:
Application by Zoltan Mato:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Application by Marius Rusu:
(1)   Leave to appeal against sentence on Grounds 1 and 2 refused.
(2)   Leave to appeal against sentence on Ground 3 granted.
(3)   Appeal dismissed.
Catchwords: CRIMINAL LAW – applications for leave to appeal against sentences – applicants were co-offenders convicted of conspiracy to import cocaine and dealing with proceeds of crime – whether sentences were manifestly excessive – whether the sentencing judge erred in assessing objective seriousness of offending – whether leave to appeal should be granted to the applicant Rusu to argue that his role in the criminal conspiracy was less than his co-offender when no issue on that question was raised before the sentencing judge – whether sentencing judge erred in degree of accumulation of sentences or application of principle of totality – additional criminality in the ‘proceeds’ offences concerning monies received from the cocaine importations over and above the conspiracy offences – whether principle of parity required sentencing judge to impose equal sentences where one applicant had dealt with a larger amount of money than the other but the other had a less favourable criminal history – held that sentences were not manifestly excessive – held that no errors made in relation to totality, accumulation or parity – appeals dismissed
Legislation Cited: Copyright Act 1968 (Cth)
Crimes Act 1900
Criminal Code 1995
Criminal Code Act 2005 (Cth)
Customs Act 1901 (Cth)
Cases Cited: Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dela Cruz v The Queen [2010] NSWCCA 333
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
House v The King (1936) 55 CLR 499
Johnson v R (2004) 78 ALJR 616
Loader v R; Dunn v R [2013] NSWCCA 215
Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Knight (2005) 155 A Crim 252
R v MAK [2006] NSWCCA 381
R v Rossi (1988) 142 LSJS 451
Romero v R [2011] VSCA 45; 206 A Crim R 519
Thorn v The Queen [2009] NSWCCA 294
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Zoltan Mato (Applicant)
Marius Rusu (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Dalton SC (for Mato)
S Odgers SC (for Rusu)
W Abraham QC (The Crown)
Solicitors:
Horowitz & Bilinsky (for Mato)
McNeilly Lawyers (for Rusu)
Commonwealth Director of Public Prosecutions (The Crown)

File Number(s): 2009/584; 2009/586
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 September 2010

Before:

Frearson DCJ

File Number(s):

2009/584; 2009/586

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.

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Details

Case: [2015] NSWCCA 328
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case of Mato v The Queen; Rusu v The Queen involved applications for leave to appeal against sentences imposed on two co-offenders convicted of conspiracy to import cocaine and dealing with proceeds of crime. The applicants argued that their sentences were manifestly excessive and that the sentencing judge erred in several respects, including the assessment of the objective seriousness of the offending, the degree of accumulation of sentences, and the application of the principle of parity. The applicants sought leave to appeal to argue that the role of one applicant in the criminal conspiracy was less significant than that of his co-offender, a matter that was not raised before the sentencing judge.

The court examined whether the applicants' sentences were manifestly excessive and whether there were any errors in the sentencing process. The court determined that the sentences were not manifestly excessive and found no errors in the assessment of the objective seriousness of the offending, the degree of accumulation of sentences, or the application of the principle of parity. The court found that the principle of parity did not require the sentencing judge to impose equal sentences where one applicant had dealt with a larger amount of money than the other but the other had a less favourable criminal history. The court also noted that the additional criminality in the 'proceeds' offences concerning monies received from the cocaine importations was distinct from the conspiracy offences.

The appeals were dismissed. The court held that the sentences were not manifestly excessive and that no errors were made in relation to the totality, accumulation, or parity of the sentences. The court found that the sentencing judge had correctly assessed the objective seriousness of the offending and had appropriately considered the applicants' roles in the criminal conspiracy when imposing the sentences.

Orders