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
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
Case(s) also cited:
Nil
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…
Continue reading Mustafa v The Queen
Sign in free to access the full text
- AGLC
- Mustafa v The Queen [2002] WASCA 357
- Case
- [2002] WASCA 357
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
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."