Mustica v The Queen

Case [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…

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Mustica v The Queen [2011] VSCA 79
Case
[2011] VSCA 79
Decision Date

CaseChat Overview and Summary

Mustica v The Queen is a significant case concerning the interpretation and application of drug trafficking laws, particularly focusing on the requisite intention and the quantities involved. The appellant, Mustica, was convicted of trafficking in not less than a large commercial quantity of methylamphetamine and MDMA, trafficking cannabis, and dealing with the proceeds of crime. The case reached the court as Mustica appealed against his conviction and sentence, challenging the trial judge's direction to the jury regarding the necessary intention for the drug trafficking offences. The central issue before the court was whether the judge correctly instructed the jury that the requisite intention could be established if Mustica knew "at some stage" that he was getting beyond the applicable quantity, and if he subsequently got beyond that quantity. The court was required to determine whether this direction adequately captured the legal requirements for the offence, particularly the need for full contemporaneity between the actus reus and the relevant intention.

The court held that the trial judge's direction to the jury did not fully align with the legal standards required for drug trafficking offences. The court explained that for an offence to be committed, the requisite intention must be present at the time of the act. The court found that the judge's direction, which allowed for the requisite intention to be established at a later stage, was incorrect. Consequently, the court determined that the convictions were unsafe and unsatisfactory, and it was open to the jury to find that Mustica had the intention from the outset to traffic in not less than a large commercial quantity of drugs. The court also found that it was open to the jury to conclude that the quantities involved exceeded the applicable large commercial quantity.

Given the errors identified in the trial judge's direction, the court granted Mustica's application for leave to appeal and allowed the appeal. The court exercised its power under section 569(2) of the Crimes Act 1958 to resentence Mustica for trafficking in not less than commercial quantities of methylamphetamine and MDMA. This decision highlights the importance of precise legal instructions to the jury in criminal trials, particularly in cases involving complex drug trafficking offences.

Orders

Orders of the court

Appellant resentenced at [87]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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