Mustum v The King - [2025] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0230

SAMIR MUSTUM	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2025
DATE OF JUDGMENT:	4 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 124
JUDGMENT APPEALED FROM:	DPP v Mustum & Ors (County Court of Victoria, Judge Gaynor, 1 September 2023)

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CRIMINAL LAW – Sentence – Appeal – Applicant pleaded guilty to defrauding financial institutions and telephone companies – Whether judge erred by rejecting expert opinion that applicant’s IQ was 65 – Applicant acquired $1.128 million in financial advantage and property – Offending occurred over three years, including whilst applicant in custody – Prior dishonesty and deception convictions – Entrenched and recalcitrant behaviour – Deception using falsified documents and stolen or fictitious identities – Offending sophisticated and planned – IQ test flawed by motivational compromise – Open to the judge to reject IQ evidence – Leave to appeal refused.

R v Olbrich (1999) 199 CLR 270, considered.

CRIMINAL LAW – Sentence – Appeal – Applicant pleaded guilty to defrauding financial institutions and telephone companies – Total effective sentence of 6 years and 5 months’ imprisonment – Non-parole period of 4 years and 6 months – Whether applicant was denied procedural fairness – Judge said she was considering a sentence of 5 years’ imprisonment with 3 years’ non-parole and then imposed a more severe sentence – Judge did not go beyond expressing a tentative view – Defence counsel had opportunity to, and made, full plea submissions – No denial of procedural fairness – Leave to appeal granted – Appeal dismissed.

Criminal Procedure Act s 2009, s 280, considered.

Mendelle v The Queen [2018] VSCA 204; Weir v The Queen [2011] NSWCCA 123, discussed.

Anae v The Queen [2018] NSWCCA 73; Pantorno v The Queen (1989) 166 CLR 466; R v Grillo [2003] VSCA 143, considered.

R v Grossi (2008) 23 VR 500, referred to.

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Counsel
Applicant:		Ms F Fox
Respondent:		Ms A French
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
T FORREST JA:

The applicant devoted much of his time between December 2017 and December 2020 defrauding financial institutions and telephone companies. The overall offending was constituted by 67 transactions over 36 separate time periods. In total, the applicant managed to acquire financial advantage and property to the value of $1,128,000 by dishonest means.
After arraignment on a guilty plea, the applicant was sentenced on 1 September 2023 on four indictments. Details of this sentencing exercise are set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment #1 – M11571639
1	Obtaining financial advantage by deception[1]	10 years	2 years	6 months
2	Obtaining financial advantage by deception	10 years	2 years and 6 months	6 months
3	Attempted obtaining financial advantage by deception[2]	5 years	4 months	Concurrent
4	Attempted obtaining financial advantage by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mustum v The King

Details

AGLC: Mustum v The King [2025] VSCA 124
Case: [2025] VSCA 124
Decision Date: 4 June 2025

CaseChat Overview and Summary

The case of Mustum v The King involves an appellant who pleaded guilty to charges of defrauding financial institutions and telephone companies. The appellant's criminal activities spanned three years, including while in custody, and involved sophisticated deceptions using falsified documents and stolen or fictitious identities. The total financial advantage and property acquired by the appellant amounted to $1.128 million. The appellant's prior convictions for dishonesty and deception, along with the entrenched and recalcitrant nature of the offending, contributed to the severity of the sentence imposed. The appellant contested the judge's decision to reject expert opinion that his IQ was 65, arguing the test was flawed due to motivational compromise.

The legal issues central to the appeal were whether the trial judge erred in rejecting the expert's opinion regarding the appellant's IQ and whether procedural fairness was denied due to the manner in which the sentence was imposed. The appellant argued that the IQ evidence should have been accepted and that the judge's consideration of a sentence different from the one ultimately imposed denied him procedural fairness. The court examined the grounds for rejecting expert evidence and the standards for procedural fairness in sentencing.

The court found that it was within the trial judge's discretion to reject the IQ evidence as the test was compromised by motivational factors. The court noted that the defence had the opportunity to make full plea submissions, which they did, and that the judge did not exceed a tentative expression of her view on the appropriate sentence. Therefore, the court held that no procedural unfairness occurred. The appeal against the sentence was dismissed, and leave to appeal was granted on the basis of the procedural fairness argument but ultimately dismissed on the substantive grounds. The final orders of the court were that the sentence imposed by the trial judge was affirmed.

Orders