Mustica v The Queen

[2011] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0974 
S APCR 2010 0001

STEVEN PETER MUSTICA

Appellant

v

THE QUEEN

and

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN PETER MUSTICA

Respondent

Appellant

Respondent

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JUDGES:	ASHLEY, BONGIORNO and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2011 and 22 March 2011
DATE OF JUDGMENT:	30 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 79
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Allen 16 December 2009)

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Criminal Law – Conviction – Sentence – Offences of trafficking in not less than a large commercial quantity of methylamphetamine and MDMA, trafficking cannabis and dealing with proceeds of crime – Whether judge below erred in directing jury that requisite intention would be established if appellant knew ‘at some stage’ that he was getting beyond and got beyond the applicable quantity – Full contemporaneity between actus reus and relevant intention required – Whether convictions unsafe or unsatisfactory – Whether open to find that amount trafficked exceeded applicable large commercial quantity – Whether open to find that appellant had intention from the outset and throughout trafficking period to traffick in not less than large commercial quantity – Application for leave to appeal granted and appeal allowed – Pursuant to power conferred upon Court by s 569(2), Crimes Act 1958, appellant re-sentenced for trafficking in not less than commercial quantities of methylamphetamine and MDMA.

APPEARANCES:	Counsel	Solicitors
For the Appellant Mustica	Mr M J Croucher with Ms R Shann	Robert Stary and Associates
For the Crown	Mr D A Trapnell, SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. Steven Mustica was found guilty after trial in the County Court on counts of trafficking in not less than a large commercial quantity of methylamphetamine (count 1) and trafficking in not less than a large commercial quantity of MDMA[1] (count 2).  He pleaded guilty (before trial) to trafficking cannabis (count 3) and (after trial) to dealing with the proceeds of crime (count 4).

   [1]In these reasons, I will not keep repeating the formula ‘in not less than a [large] commercial quantity’, but rather use the phrases ‘a large commercial quantity’ and ‘a commercial quantity’.

1. The maximum penalty on counts 1 and 2 is life imprisonment and a fine not exceeding 5,000 penalty units.  The maximum penalty on counts 3 and 4 is 15 years’ imprisonment.

1. On 16 December 2009 the applicant was sentenced as follows:

   Count 1  -  12 years’ imprisonment

   Count 2  -  10 years’ imprisonment

   Count 3  -  4 years’ imprisonment

   Count 4  -  1 year’s imprisonment

   The judge cumulated 2 years of the sentence on count 2 and 1 year on the sentence on count 3 on each other and on the sentence on count 1.  The total effective sentence was thus 15 years’ imprisonment.  The judge fixed a non-parole period of 11 years.  He made a declaration with respect to pre-sentence detention, and other consequential orders.

1. The applicant was sentenced on counts 2 and 3 as…