Mustafa v The Queen

Case [2002] WASCA 357


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   MUSTAFA -v- THE QUEEN [2002] WASCA 357

CORAM:   MALCOLM CJ

MURRAY J
STEYTLER J

HEARD:   23 OCTOBER 2002

DELIVERED          :   19 DECEMBER 2002

FILE NO/S:   CCA 209 of 1998

BETWEEN:   ABIB MUSTAFA

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence heard and determined by Court of Criminal Appeal - Whether, for errors in reasons for allowing the appeal, the Court has power to recall a sentence passed and re­sentence the appellant

Criminal law and procedure - Sentencing - Drug offences - Parity of sentencing a number of co­offenders

Legislation:

Criminal Code (WA), s 697

Sentencing Act 1995 (WA), s 34, s 35, s 36, s 37, s 37A

Supreme Court Act 1935 (WA), s 57, s 58

Result:

Application to vary sentence dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr D Grace QC & Mr L M Levy

Respondent:     Mr H G Dembo

Solicitors:

Appellant:     Laurie Levy

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Baber v Purvis (1887) 56 LT 131

Chessum & Sons v Gordon [1901] 1 KB 694

Commonwealth v McCormack (1984) 155 CLR 273

Davies and Cody v The Queen (1937) 57 CLR 170

Diefenbach v The Queen (1999) 108 A Crim R 19

DJL v Central Authority (2000) 201 CLR 226

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400

Fritz v Hobson (1880) 14 Ch D 542

Gould v Vaggelas (1985) 157 CLR 215

Grierson v The Queen (1938) 60 CLR 431

Griffiths v The Queen (1977) 137 CLR 293

Johnson & Co Ltd v Clifford (1904) 7 WALR 130

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590

Link Blocks (1981) Pty Ltd v Fullin [1986] WAR 187

Maxwell v The Queen (1996) 184 CLR 501

Milson v Carter [1893] AC 638

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522

Mustafa v The Queen [2001] WASCA 192

Pantorno v The Queen (1989) 166 CLR 466

Postiglione v The Queen (1997) 189 CLR 295

Punevski v The Queen [2000] WASCA 397

R v Allen (1994) 1 Qd R 526

R v Nam & Sansbury [1968] SASR 107

R v Olbrich (1999) 199 CLR 270

R v Powell (2001) 126 A Crim R 137

R v Suarez‑Mejia [2002] WASCA 187

Re Inchcape (Earl of); Craigmyle v Inchcape [1942] 1 Ch 394

Ruvinovski v The Queen [2000] WASCA 398

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

Western Power Corporation v Normandy Power Pty Ltd [2002] WASC 113

Wong v The Queen (2001) 76 ALJR 79

Case(s) also cited:

Nil

  1. MALCOLM CJ:  The history of this matter is set out in the reasons for judgment to be published by Murray J.  There was a mathematical error in calculating a discount in respect of the non‑parole period which…

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Mustafa v The Queen [2002] WASCA 357
Case
[2002] WASCA 357
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CaseChat Overview and Summary

Mustafa v The Queen involved a dispute where the appellant, Mustafa, challenged the sentence handed down in the Supreme Court. The appeal was heard by the Court of Criminal Appeal, which was tasked with determining whether the initial sentence was appropriate and whether the Court had the power to modify the sentence due to perceived errors in the reasons given for allowing the appeal. The case also explored the principles of parity in sentencing among co-offenders in drug-related offences.

The primary legal issue the Court of Criminal Appeal had to address was whether it had the authority to alter a sentence that had already been passed and to resentence the appellant due to perceived errors in the reasons provided for allowing the appeal. Additionally, the court had to consider the principles guiding the sentencing of co-offenders in drug offences to ensure that the sentences were proportionate and consistent.

In examining the matter, the Court of Criminal Appeal referenced the decision in Western Power Corporation v Normandy Power Pty Ltd, where McKechnie J outlined the inherent jurisdiction of the court to rectify situations that could perpetuate injustice. The Court also considered the Supreme Court Ordinance 1861 and the Supreme Court Act 1935, which confer upon the Supreme Court the same inherent jurisdiction as the Courts of Westminster. The Court determined that while the Full Court of the Supreme Court has an inherent jurisdiction to rectify situations of injustice, the exercise of this jurisdiction must align with statutory powers and authorities. The court concluded that it did have the power to recall a sentence and resentence the appellant if it found that the original sentence was incorrect and would result in an injustice.

The Court of Criminal Appeal ultimately found that the original sentence was inappropriate and exercised its inherent jurisdiction to recall the sentence and resentence Mustafa. The court ordered a new sentence to be imposed, ensuring that the principles of parity in sentencing were appropriately applied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MURRAY J

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Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

In Western Power Corporation v Normandy Power Pty Ltd [2002] WASC 113 McKechnie J said at pars [11] – [12]:"11.The jurisdiction which Normandy Power Pty Ltd invokes to vary the orders made by Murray J arises in Esther Investments Pty Ltd v Markalinga PtyLtd (1992) 8 WAR 400. Malcolm CJ said at p 407:'The jurisdiction to add to or vary a judgment which has been delivered and which has been perfected by formal judgment being entered and extracted in the court is an unusual one. The jurisdiction, of course, exists. Quite apart from the slip rule in O 21 r 10, the court has an inherent jurisdiction to rectify situations which may perpetuate an injustice to litigants.'12.I accept that statement of the law as founding jurisdiction. I do not understand the recent decision in DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 to be authority to the contrary. That case was concerned with the specific power of a statutory court of appeal, not the inherent power of a Supreme Court." In Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 I made the observation that the Court has an inherent jurisdiction to rectify situations of injustice and referred back to Esther Investments Pty Ltd v Markalinga (supra); as well as Gould v Vaggelas (supra); L Shaddock & Associates v Paramatta City Council [No 2] (supra), and Commonwealth v McCormack (1984) 155 CLR 273, saying:"Those cases are authority for the proposition that if an order of the Court is made or not made which turns out to be incorrect as a result of the inadvertence of counsel or, I would add, a mistake being made by a Judge which is not corrected by counsel, there is an inherent jurisdiction quite apart from the slip rule, to rectify the orders to avoid injustice." While that part of the reasons was obiter, Kennedy J expressed his agreement with them. In my opinion, although each of the cases to which I have referred was within the civil jurisdiction of the Court, that jurisdiction is made available to the Full Court as a Court of Criminal Appeal by virtue of s 697 of the Criminal Code. I note that Murray J has referred to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 and the discussion in that case of the capacity of the Full Court of the Family Court of Australia to recall final orders supports the conclusion that the Full Court of this Court, as such, as well as sitting as the Court of Criminal Appeal, in the exercise of appellate jurisdiction, is a creature of statute exercising statutory powers and jurisdiction in the determination of appeals. It needs to be borne in mind, however, that by s 4 of the Supreme Court Ordinance 1861, the Supreme Court and the Chief Justice were invested with and were given the same jurisdiction to exercise in Western Australia as the Courts of Westminster. In my opinion, the Supreme Court Ordinance invested the Supreme Court with the same inherent jurisdiction of the various Courts at Westminster. Section 16(1) of the Supreme Court Act 1935 in turn provides that:"Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court –(a)is invested with and shall exercise such and the like jurisdiction, powers and authority within Western Australia and its Dependencies as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the Judges thereof, had and exercised in England at the commencement of the Supreme Court Ordinance 1861; and(b)shall be at all times a Court of Oyer and Terminer and general gaol delivery in and for Western Australia and its Dependencies; and(c)is authorised, empowered, and required to take cognisance of and hold all pleas and all manner of causes, suits, actions, pleas of the Crown, prosecutions, and informations, whether civil, criminal or mixed, with the same and as full power within Western Australia and its Dependencies to hear, judge, determine and execute therein as the Courts of Queen's Bench, Common Pleas, and Exchequer, and as Justices of Oyer and Terminer and general gaol delivery, had in England at the commencement of the Supreme Court Ordinance 1861, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the Court and shall adjudge and determine in all and every the same matters according to the laws and statutes of the realm of England in force in Western Australia, the laws and statutes of Western Australia and the Acts of the Commonwealth of Australia."…(2)There shall be vested in the Supreme Court and the Judges thereof all original and appellate jurisdiction which, under and by virtue of any statute which came into force in Western Australia after the commencement of the Supreme Court Act 1880, and is not repealed, was immediately before the commencement of this Act vested in or capable of being exercised by the Court or a Judge thereof, and such other jurisdiction as by and under this Act or any subsequent statute or otherwise is conferred on or vested in the Court and the Judges thereof."(3)The jurisdiction vested in the Court and the Judges thereof shall include all ministerial powers, duties and authorities incident to any and every part of such jurisdiction."