Mustafa v The Queen

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MUSTAFA -v- THE QUEEN [2001] WASCA 192

CORAM: MALCOLM CJ
MURRAY J
STEYTLER J

HEARD: 21 MARCH 2001

DELIVERED : 27 JUNE 2001

FILE NO/S: CCA 209 of 1998

BETWEEN: ABIB MUSTAFA
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Drug offences - Attempting to obtain possession of prohibited import - MDMA ("Ecstasy") - Applicant one of seven offenders involved in importation - Applicant acted as a collector of the drugs from one of four couriers involved - Parity of sentencing - Sentence of 12 years with a minimum of 7 years varied by reducing minimum to 6 years

Legislation:

Customs Act (Cth) s 233B(1)(a) and s 235

Crimes Act (Cth) s 19AB

Justices Act 1902 (WA) s 108

Result:

Leave granted, appeal allowed and minimum term reduced

Representation:

Counsel:

Applicant: Mr L M Levy
Respondent: Mr H G Dembo

Solicitors:

Applicant: Laurie Levy
Respondent: Commonwealth Director of Public Prosecutions

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

Darwell (1997) 94 A Crim R 35
Diefenbach v The Queen [1999] WASCA 4; Diefenbach (1999) 108 A Crim R 19
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Punevski v The Queen [2000] WASCA 397
Ruvinovski v The Queen [2000] WASCA 398

Case(s) also cited:

Nil

MALCOLM CJ: This was an application for leave to appeal against sentence. On 18 December 1998 the applicant was convicted in the Supreme Court on his plea of guilty to an indictment which charged one offence contrary to s 233B(1)(c) of the Customs Act 1901 (Cth), namely, that the applicant, without reasonable excuse, attempted to obtain possession of a prohibited import to which s 233B of the Customs Act applied, which had been imported into Australia in contravention of that Act, namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine, also known as MDMA and Ecstasy, being not less than the commercial quantity applicable to that narcotic substance.
Under s 235 of the Act the offence was punishable by imprisonment for life or for such period as the Court thinks appropriate. The learned Judge considered that were it not for relevant personal factors and his plea of guilty the appropriate sentence to impose would have been imprisonment for 16 years. After taking those factors into account his Honour sentenced the applicant to imprisonment for 12 years and fixed a non‑parole period of 7 years under s 19AB of the Crimes Act 1914 (Cth). The sentence was imposed on 18 December 1998, but backdated to commence from 3 April 1998 when the applicant was taken into custody.
The applicant, having abandoned ground 1 of the original grounds of appeal, which was deleted by amendment, seeks leave to appeal against the sentence on the grounds that:
"2.The learned sentencing Judge erred in the exercise of his discretion by imposing a sentence that was disproportionate to the role of the…

CaseChat Overview and Summary

Mustafa, the applicant, was found guilty of attempting to obtain possession of a prohibited import, specifically MDMA, or ecstasy. This offence was part of a larger conspiracy involving seven individuals, with Mustafa acting as a collector for the drugs from one of the four couriers involved. The Crown sought a sentence reflective of the applicant's role and the seriousness of the offence. The applicant, in turn, argued for a sentence that would ensure parity with the sentences received by his co-conspirators. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court.

The central legal issue was whether the original sentence was appropriate in light of the principles of parity and the objective of general deterrence. The applicant argued that the original sentence was manifestly inadequate and failed to properly consider the sentencing principles and the role he played in the conspiracy. The Crown, on the other hand, contended that the original sentence was appropriate given the severity of the offence and the need to deter similar activities in the future. The High Court was required to consider whether the original sentence adhered to the established principles of sentencing and whether the variation proposed by the applicant would result in a more just outcome.

In determining the appeal, the High Court considered the principles of parity, which require that similarly situated offenders receive similar sentences, and the objective of specific deterrence, which aims to prevent the offender from reoffending. The Court found that while the original sentence was within the range of what was permissible, it was not sufficiently justified in light of the principle of parity. The Court was also mindful of the need to achieve general deterrence and to send a strong message about the seriousness of drug importation offences. After carefully considering these factors, the High Court varied the sentence by reducing the minimum non-parole period from 7 to 6 years, ensuring a more balanced approach that respected both the principles of sentencing and the objectives of the criminal justice system.

The final orders of the Court were to vary the sentence imposed on Mustafa by reducing the minimum non-parole period from 7 to 6 years, while maintaining the overall sentence of 12 years. This decision reflects the Court's commitment to ensuring that sentences are both just and proportionate, taking into account the unique circumstances of each case while also upholding the broader goals of the criminal justice system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established