Musa v The Queen - [2018] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Musa v R [2018] NSWCCA 192
Hearing dates: 8 August 2018
Date of orders: 03 September 2018
Decision date: 03 September 2018
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
Fagan J at [3]
Decision:
(1)   Leave to appeal is granted.

(2)   The appeal is upheld.

(3)   The sentence imposed in the District Court on 5 September 2017 is quashed.
(4)   In lieu thereof the applicant is sentenced to imprisonment for 5 years and 2 months commencing on 6 January 2016 and expiring on 5 March 2021 with a non-parole period of 3 years and 3 months commencing on 6 January 2016 and expiring on 5 April 2019.
Catchwords: CRIME – appeal against sentence – attempting to possess marketable quantity of controlled drug contrary to Criminal Code (Cth), ss 11.1(1) and 307.6(1) – guilty plea entered at earliest opportunity – 20% discount in sentence for early plea – head sentence of 5 years 6 months imprisonment with non-parole period of 3 years 6 months – whether error in considering appropriate discount for plea of guilty – whether utilitarian value of guilty plea should have been considered – appeal allowed and offender resentenced
Legislation Cited: Criminal Code (Cth)
Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Tyler v R [2007] NSWCCA 247
Xiao v R [2018] NSWCCA 4
Category: Principal judgment
Parties: Yilbay Musa (applicant)
Regina (respondent)
Representation:
Counsel:
Mr David Barrow (applicant)
Mr Lincoln Crowley (respondent)
Solicitors:
T & S Law Firm (applicant)
Commonwealth Director of Public Prosecutions (respondent)

File Number(s): 2016/005197
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

5 September 2017

Before:

Toner SC DCJ

File Number(s):

2016/005197

Judgment

BATHURST CJ: I agree with the orders proposed by Justice Fagan and with his Honour’s reasons.
HOEBEN CJ at CL: I agree with Fagan J and the orders which he proposes.
FAGAN J: The applicant seeks leave to appeal against a sentence passed in the District Court on 5 September 2017 for an offence of attempting to possess a marketable quantity of a border controlled drug which had been imported, contrary to ss 11.1(1) and 307.6(1) of the Criminal Code (Cth). The drug was 890.2 g of methamphetamine at 79.7% purity. It equated to a pure weight of 709.4 g.
The offence was committed on 6 January 2016. The applicant was arrested that day and was remanded in custody until sentenced. He pleaded guilty at the earliest opportunity, in the Local Court. The maximum penalty for the offence is 25 years imprisonment. His Honour Judge Toner SC imposed a term of 5 years and 6 months commencing on the day of arrest. A non-parole period of 3 years and 6 months was fixed.
The sentence took into account a 20% discount for the applicant’s early plea. The sole ground of appeal is:

His…

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 Musa v The Queen

Details

AGLC: Musa v The Queen [2018] NSWCCA 192
Case: [2018] NSWCCA 192
Decision Date: 03 September 2018

CaseChat Overview and Summary

The appellant, Musa, appealed against the sentence imposed for his conviction of attempting to possess a marketable quantity of a controlled drug under the Criminal Code (Cth). The appeal was heard by the High Court of Australia, which was asked to determine whether the primary judge erred in assessing the appropriate discount for the appellant's early guilty plea and whether the court should have considered the utilitarian value of the guilty plea in determining the sentence. The appellant pleaded guilty at the earliest opportunity, which resulted in a 20% discount to the sentence. However, the appellant argued that the court should have given further consideration to the discount for his early guilty plea and the broader benefits of such a plea.

The court considered whether the primary judge erred in failing to give adequate weight to the appellant's early guilty plea and the utilitarian value it provided. The court noted that a guilty plea can result in significant benefits to the criminal justice system, including reduced court costs, earlier resolution of the case, and reduced stress on victims. The court also considered that the appellant had a minimal criminal history and had shown remorse for his actions. The court found that the primary judge had failed to adequately consider these factors when determining the appropriate discount for the early guilty plea.

The court found that the primary judge had erred in not giving sufficient weight to the appellant's early guilty plea and the broader benefits it provided to the criminal justice system. The court found that the discount for the early guilty plea should have been 25% rather than 20%. The court also found that the head sentence of 5 years 6 months imprisonment with a non-parole period of 3 years 6 months was too high, given the appellant's early guilty plea and minimal criminal history. The appeal was allowed, and the appellant was resentenced to 4 years imprisonment with a non-parole period of 2 years. The court considered that this sentence reflected the appropriate discount for the early guilty plea and the broader benefits it provided to the criminal justice system.

Orders