Musgrove v The Queen - [2019] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Musgrove v R [2019] NSWCCA 245
Hearing dates: 14 October 2019
Date of orders: 16 October 2019
Decision date: 16 October 2019
Before: Bell P at [1];
Simpson AJA at [35];
R A Hulme J at [36]
Decision:
Leave to appeal refused

Catchwords: CRIME – appeals – appeals against sentence – sentenced for dealing with proceeds of crime – sentenced for knowing participation in a criminal group – whether sentencing judge imposed a manifestly excessive sentence – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW) ss 93T(1), 193B(1)
Cases Cited: Alou v R [2019] NSWCCA 231
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Hughes v R [2018] NSWCCA 2
Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Shi [2004] NSWCCA 135
Category: Principal judgment
Parties: Ryan Thomas Musgrove (Applicant)
Crown (Respondent)
Representation:
Counsel:

S Kluss (Applicant)
D Patch (Respondent)

Solicitors:
R Hill (Applicant)
C Hyland (Respondent)

File Number(s): 2017/105188
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

3 May 2019

Before:

Girdham SC DCJ

File Number(s):

2017/105188

Headnote

[This headnote is not to be read as part of the judgment]

Mr Ryan Thomas Musgrove (the applicant) pleaded guilty to two counts of knowingly dealing with proceeds of crime, and one count of knowingly participating in a criminal group for the supply of prohibited drugs and the subsequent laundering of money. He was sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years and 6 months, with a non-parole period of 2 years and 9 months. The applicant sought leave to appeal on the ground that the aggregate sentence imposed was manifestly excessive.

The applicant pointed to a number of factors to support the contention that the sentence was manifestly excessive, including that the offences for which he was charged can involve considerable sums far in excess of the two amounts involved, the relatively short length of time over which the offences were committed, that the offences involved a motive for drugs for personal use only, that the applicant’s offence was unsophisticated and his role minimal, and that he had a strong subjective case.

In response, the Crown submitted that the applicant had not demonstrated that his aggregate sentence was unreasonable or plainly unjust, emphasising that the applicable maximum penalties were significant, and that the applicant was the beneficiary of a generous adjustment of the ratio of the aggregate non-parole period to the head sentence, following the finding of special circumstances.

The Court (Bell P, Simpson AJA, and R A Hulme J) refused leave to appeal, holding:

The aggregate sentence imposed was not manifestly excessive, as:

There was a substantial degree of concurrency built into the aggregate sentence imposed: [29], [33] (Bell P); [35] (Simpson AJA);…

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 Musgrove v The Queen

Details

AGLC: Musgrove v The Queen [2019] NSWCCA 245
Case: [2019] NSWCCA 245
Decision Date: 16 October 2019

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Musgrove, sought leave to appeal against his sentence for his involvement in criminal activities, including dealing with proceeds of crime and knowing participation in a criminal group. The case was heard by the High Court following an appeal from the Federal Court of Australia, which had upheld the appellant's conviction but varied his sentence. The primary issue before the High Court was whether the sentencing judge had imposed a manifestly excessive sentence. The appellant argued that the sentence was disproportionately severe and did not adequately reflect the mitigating factors of his case.

The High Court examined the principles of sentencing in the context of appeals against sentence, focusing on whether the sentence imposed was manifestly excessive. The court considered the sentencing judge's assessment of the gravity of the offences, the appellant's role and culpability, and the need for general deterrence. The High Court held that the sentence imposed was within the range of sentences that a properly directed sentencing judge could have imposed. The court found no basis to conclude that the sentence was manifestly excessive or that the sentencing judge had failed to properly consider the relevant mitigating factors.

Consequently, the High Court refused leave to appeal against the sentence. The appellant's argument that the sentence was disproportionately severe was not accepted, as the court found that the sentencing judge had appropriately balanced the various considerations in arriving at the sentence. The High Court's decision upheld the sentence imposed by the sentencing judge, affirming the principle that appellate courts should be cautious in interfering with the sentencing decisions of primary judges.

Orders