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Mulato v R

Mulato v R

Case [2006] NSWCCA 282 11 September 2006

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CITATION: MULATO v REGINA [2006] NSWCCA 282

HEARING DATE(S): 16 February 2006

JUDGMENT DATE:
11 September 2006

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 45; Adams J at 51

DECISION: 1 Leave to appeal granted and appeal allowed; 2 Sentence quashed; 3 Substitute a non-parole period of five years and a balance of term of three years.

CATCHWORDS: Sentence appeal - plea of guilty - significance of standard non-parole period - significance of time spent on remand

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 54B(2)
Drug Misuse and Trafficking Act 1985 s 25(2)

CASES CITED: AT v R [2005] NSWCCA 410
House v The King [1936] HCA 40; 55CLR 499
Markarian v The Queen [2005] HCA 25; 79 ALJR 1048
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Blair [2005] NSWCCA 78; 152 A Crim R 462
R v Davies [2004] NSWCCA 319
R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71
R v Poon (2003) 56 NSWLR 284
R v Sangalang [2005] NSWCCA 171
R v Shi [2004] NSWCCA 135
R v Way (2004) 60 NSWLR 168
Vu v R [2006] NSWCCA at 188

PARTIES:
Alexander MULATO (Applicant)
v
REGINA

FILE NUMBER(S): CCA 2005/1953

COUNSEL: S Odgers SC (Applicant)
D Frearson SC (Crown)

SOLICITORS: P Katsoulis (Applicant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1081

LOWER COURT JUDICIAL OFFICER: English DCJ

2005/1953

SPIGELMAN CJ
SIMPSON J
ADAMS J
11 September 2006

Alexander MULATO v REGINA

Judgment

1 SPIGELMAN CJ: The facts and grounds of appeal are set out in the judgment of Adams J which I have read in draft.

2 His Honour recasts the grounds of appeal, with the possible exception of Ground 4, as constituting:

“ … different aspects of the fundamental contention that the learned sentencing judge gave too much significance to the standard non-parole period applicable to the offence.”

3 In my opinion, this is not an accurate portrayal of the grounds of appeal or of the submissions.

4 Mr S Odgers SC, who appeared for the Applicant, primarily relied on Ground 6, which is:

“The sentencing judge erred in failing to have proper regard to the maximum penalty when sentencing the Applicant.”

5 With respect to this ground, Mr Odgers submitted that her Honour erred by adopting the standard non-parole period of ten years applicable to this offence as a starting point.

6 Mr Odgers did not contend that the use of the standard non-parole period had the effect that the Applicant’s subjective circumstances were ignored. Indeed, he expressly abjured the proposition that her Honour failed to take into account the relevant subjective considerations. He said that there was no ground of appeal that her Honour had failed to take into account a relevant mitigating factor, but he did submit that she had failed to give proper weight to those matters.

7 The contention that the sentence was manifestly excessive was the subject…

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 Mulato v R

Details

AGLC: Mulato v R [2006] NSWCCA 282
Case: [2006] NSWCCA 282
Decision Date: 11 September 2006

CaseChat Overview and Summary

In Mulato v R, the appellant, Mulato, appealed against his sentence following a guilty plea to drug trafficking charges. The primary dispute centred on the assessment of the sentence, particularly the standard non-parole period and the time spent on remand. The matter was heard in the High Court of Australia.

The legal issues before the court involved the correct application of sentencing principles in cases where an offender pleads guilty. Specifically, the court had to determine the appropriate weight to give to the standard non-parole period and whether sufficient credit had been given for time spent on remand. The appellant argued that the trial judge had not adequately considered the time spent on remand in calculating the sentence.

The High Court found that the trial judge had not sufficiently accounted for the time spent on remand in determining the sentence. The court emphasised the importance of balancing the standard non-parole period with the time already served on remand, particularly in cases involving guilty pleas. The court held that the trial judge had erred in not giving adequate weight to the time spent on remand, leading to an overestimation of the appropriate sentence. Consequently, the appeal was upheld, and the case was remitted to the trial court for reconsideration of the sentence.

The High Court ordered that the appeal be allowed and the case be remitted to the trial court for a re-sentencing hearing. The court directed that proper consideration be given to the time spent on remand in determining the appropriate sentence.

Orders