R v Mills

[2024] NSWDC 666

District Court

New South Wales

Medium Neutral Citation:

R v Mills [2024] NSWDC 666

Hearing dates:

19 December 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Criminal

Before:

McHugh SC DCJ

Decision:

See paragraph [44]

Catchwords:

CRIME – sentence – alleged plea traversal said to be a Machiavellian attempt to manipulate the facts for sentence

PRACTICE AND PROCEDURE – adjournment and Mosely stay – Crown fault conceded – not need abuse of process - ultimately a test of unfairness

PRACTICE AND PROCEDURE – Crown granted indulgence on condition of Mosely stay – it does not lie in the teeth of the Crown to then seek to overcome the effect of a Mosely stay by charging a different offence

COSTS – assessment by Court of Mosely stay costs – appropriate matter for senior counsel

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Jago v District Court of New South Wales (1989) 168 CLR 23

Maxwell v The Queen (1996) 184 CLR 501

R v Michael John Issakidis [2015] NSWSC 834

R v Mosely (1992) 28 NSWLR 735

Sparos (No 2) [2017] NSWSC 1462

Stewart v R [2022] NSWCCA 182

Texts Cited:

Guidelines of the New South Wales Costs Assessment Rules Committee (24 October 2023)

Category:

Procedural rulings

Parties:

Rex (Crown)
Mr Drouyn Mills (Accused)

Representation:

Counsel:
Crown: D Morters SC
Defence: D Dalton SC

File Number(s):

2023/00149858

Publication restriction:

NIL

EX TEMPORE JUDGMENT

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. HIS HONOUR: This matter had come before the Court originally on 19 July 2024 for sentence for three offences. Two were contrary to the Firearms Act 1996 (NSW) that Mr Mills had pleaded guilty to.

2. He had also pleaded guilty to count 3 or sequence 8, which was contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) (hereinafter “Drug Misuse and Trafficking Act”), an enhanced indoor cultivate cannabis for a commercial purpose. On the indictment that was particularised as 168 plants.

3. On that date, 19 July 2024, Mr Mills, who was in custody at the time, did not appear for some reason as there was some difficulty that was nobody’s fault, yet the matter could not go ahead on that day. I note that he is privately funded, and that Mr Dalton of senior counsel was briefed, though he did not have a junior, and was instructed by a Sydney criminal law firm. They had flown up to Coffs Harbour for the day, they had to go back.

4. Yet on that day there was, nevertheless, a dispute or the makings of a dispute which was the extent to which I could take into account the 162 plants which were set out on the indictment for commercial purposes.

5. There was evidence about the use, and I have set out some of those matters in my judgment of Tuesday, 23 July 2024, when the matter came back.

6. I noted at that time that there was, in the agreed facts, evidence which clearly demonstrated that at least part of the 162 plants was for commercial purposes and I noted then that that is because there were indicia of commercial sales, that is an amount of money, some four and a half thousand dollars in cash and other indicia of commerciality.

7. Nevertheless, the Crown believed that because representations were made by Mr Mills in a letter to me or in the psychologist’s report and in other subjective materials, that it was not all for commercial purposes. The Crown took the view that there was a traversal of his plea.

8. Mr Dalton, as I noted on 23 July 2024, had said, “There is no plea traversal” and ultimately, he submitted that it is a matter for statutory construction, and it is a matter for submissions I could take into account. I noted then that I had sympathy with that submission, that there was not a traversal of the plea, as far as I could see.

9. Nevertheless, the Crown wished to reconsider its position and indeed the prosecution under s 23(1A). It was given that opportunity in circumstances where I had said in my judgment of 23 July 2024 it was agreed that, in effect, the fault for the purpose of a R vMosely (1992) 28 NSWLR 735 (Mosely) stay had been shown and I would stay the prosecution of count 3 or sequence 8, unless or until the Crown pays the costs thrown away as agreed or assessed, by reason of that circumstance and, if there was a failure to agree or assess, then I would assess them.

10. I then went on to continue to hear and gave judgment or remarks on sentence in respect of the firearms offences before me that day.

11. It has come back before me today and Ms Bertuzzi, who appeared instructing Mr Morters of senior counsel for the Crown and who had been in the matter for some time and, indeed, he had been the senior counsel who had settled the charge certificate, her affidavit helpfully set out some of the background, which I marked as exhibit A for today’s purposes, set out some of the communications, and to which I understood legal professional privilege did not apply to those communications, between the various parties.

12. And for the purposes, as I understood it later, that Mr Morters took me to, to show that, in effect, there was a proper traversal of plea and, indeed, that it was always known that what was being pleaded to, and it is a matter I will discuss shortly.

13. As I say, Mr Dalton took me to a number of matters today, including that in the submissions filed for the purposes of today, that is I marked MFI 1 the Crown submission on payment of costs, which were submissions prepared by Mr Morters on 16 December 2024, that in para [6] it was noted, the last sentence of those submissions, that the Crown had acquiesced in the making of the order for the Mosely stay.

14. What then happened was the Crown says that it subsequently had withdrawn count 3 and filed an ex officio count alleging cultivation of more than the commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act and it was noted the accused is yet to enter a plea in respect of that count.

15. The submissions continued that the Crown opposes the imposition of a stay of proceedings with respect to the new count. In effect, notwithstanding the accused agitated for payment of costs before the new count can proceed, the Crown disputed the application of any stay order in respect of the new count. And, indeed, in their submissions it was said:

“Before a court can impose a stay of proceedings, it must be satisfied there has been an abuse of process”.

There was a footnoted authority for that proposition which referenced Jago v District Court of New South Wales (1989) 168 CLR 23.

16. Certainly, a court can stay proceedings for an abuse of process but that is not the only way in which a court can stay proceedings.

17. The Mosely stay that I granted at the time, I note has been the subject of many decisions, both in this jurisdiction and elsewhere and I refer to the decision of R v Michael John Issakidis [2015] NSWSC 834, a decision of Beech-Jones J, as his Honour then was and a matter in which I have a passing familiarity. His Honour said, at para [81]:

“While the existence of fault is a necessary condition of the granting of a temporary stay, in these circumstances, it is not necessarily sufficient. The test is ultimately one of unfairness.”

18. In that sense, I do not accept the submission by the Crown at para [8] that I must be satisfied there was an abuse of process. That is not needed.

19. What is needed is unfairness and ultimately as Mr Dalton characterised it and I accept, the Crown did not accept that there was any relevant stay and that they would not pay anyway as this was now a new count.

20. Indeed, the Crown submitted in the written submissions today and on his feet, that it cannot be said that any fault attributed to the Crown exceeds mere simple fault and there is no basis for stay of proceedings with respect to the new count.

21. In my view, as I said, this jurisdiction comes about due to an unfairness. This is a privately funded defence. The defence were here, ready, willing and able to proceed, having pleaded guilty to all the offences on 19th July 2024 and they could not go ahead on that day. On the subsequent few days later, on 23rd July, they were ready, willing and able, yet the Crown was granted, in effect, an indulgence, for them to consider their position on the basis of a stay which, as they know, was acquiesced to.

22. It seems to me that, in those circumstances, it does not lie in the teeth of the Crown now to suggest that they are not bound by any relevant stay. I have said and it was submitted on behalf of the erstwhile, I will call him, offender, that is because he has not yet pleaded to the subsequent new offence, but that I would impose a Mosely stay in respect of that matter in any event, which seems to me to be quite proper or the Crown could always get around a Mosely stay by charging a different offence.

23. The further outline of submissions which have been prepared on behalf of the offender took me through a number of matters, including the earlier submissions, that is on 22 July, that they had instructions to - that is back in July - to, in effect, they were ready to go ahead and it was also noted then that if the Crown wanted to press an argument that all 162 plants were for a commercial, then they would have needed to bring a charge pursuant to s 23(2) of the Drug Misuse and Trafficking Act.

24. That was noted at the time also in submissions by the Crown back in July, that the accused is correct in identifying the Crown has proceeded on the incorrect charge. It seems to me that there is no question of Crown fault that has resulted in this dispute.

25. Nevertheless, the Crown still proceeded on a basis that this had all been brought about by the defence, that is because by reference to some of the earlier emails concerning negotiations that it was agreed that Mr Mills was going to plead guilty and did plead guilty to the s 23(1A) offence. In those circumstances, it was said to be because submissions were made, written submissions were made, about some of the matters, some of the plants not being used for commercial purposes, then there was necessarily a traversal of his plea and this was characterised today by the Crown as an attempt by the defence to manipulate facts to traverse the plea.

26. I did not agree with that submission. It has been quite clear to me all the way through that Mr Dalton has been ready, willing and able and Mr Mills has pleaded guilty, and it would be a matter for submissions ultimately for me to determine whether or not there is to be a further - sorry, how I take into account those matters.

27. I also had before me Costs Assessment Rules, which I will come to.

28. Now, the Crown had, back in July, noted that one of the matters in terms of a plea traversal, which can happen and, in certain circumstances, it may be that where a plea of guilty is not unequivocal and not made in circumstances suggesting it is not a true admission of guilt, it was noted here that it was and Mr Dalton said repeatedly that he does unequivocally admit that he cultivated cannabis for commercial purposes.

29. It was noted by reference to Maxwell v The Queen (1996) 184 CLR 501, in part there, that the plea of guilty, of course, must be unequivocal. But there can be circumstances suggesting that it was not made in circumstances that it is not a true admission of guilt, and those circumstances include ignorance, fear, duress or even a desire to gain a technical advantage which was underlined in those submissions of the Crown back in July.

30. So, it does seem to me that the Crown has always viewed this as some sort of Machiavellian attempt to manipulate the facts in such a way as to receive a lesser sentence. But, of course, the cases go on to note that if that was the case, then where an accused person’s version of the facts is inconsistent, the court could give the defence an opportunity to withdraw the plea and, if that does not occur, the accused person insists upon pleading guilty, the court should ignore the accused person’s version.

31. Of course, it may simply be submissions about how one is to treat the factual substrata of the agreed facts which set out these matters, together with what other materials, subjective material, the court might accept on behalf of an offender when considering sentence.

32. But this is not such a case such as Stewart v R [2022] NSWCCA 182 and that was an appeal brought after the applicant was the offender at that stage, had interrupted the delivery of judgment in the District Court to dispute some of the factual descriptions of the offending. The circumstance here is far removed.

33. I am comfortably satisfied that, on proper advice from senior counsel, the offender had pleaded guilty to an offence to which I was prepared to sentence him, and he was prepared to be sentenced, whether or not the ultimate facts for sentence that I accepted were still a matter that had not been decided.

34. As I say, there certainly has been an error in the charge and so however one looks at it and certainly the Crown had, even on its own submissions today, or yesterday, accepted that it had acquiesced in respect of the Mosely stay and it would seem to me to be bordering on an abuse of process for the Crown to now say, “Well, we’ve now brought a different indictment and, therefore, that offence is not stayed, it’s a new offence.” Well, of course, the remedy here is to impose another Mosely stay, which, in the circumstances, I will formally do so.

35. Yet it was also submitted that I could, if I understand it, to and for efficiency, as I originally said, if there has been a failure to agree or assess, then I will assess the costs. That is a practice that I have seen happen in a number of cases and that is what I intend to do now.

36. It was submitted on behalf of the Crown that at most what was thrown away was one day and that it was not reasonable to have senior counsel’s costs. They pointed me to negotiations which I have not really looked at, but I was told that there was an offer of $9,000 made and the basis of that was also set out and it was for a senior junior at the top rate as well as a solicitor and that was $9,000.

37. The further submissions of Mr Dalton note that senior counsel was also briefed by the Crown and, nevertheless, these were ultimately serious matters involving sentences of maximum penalties of 20 years imprisonment and 15 years imprisonment respectively.

38. It seems to me, in those circumstances, it was quite appropriate to have senior counsel, I note without a junior, and the rates that were nominated, I have had regard to the Cost Assessment Rules which were provided to me, payable as between parties under court orders, formally party/party costs. I have regard to that pdf document, which is for the purposes of providing guidance for cost assessors, issued by the Cost Assessment Rules Committee in the Supreme Court.

39. I note those rules are not binding on assessors, they are intended as guidance, as what would usually be appropriate in ordinary cases and the top senior counsel rate there is $10,000 per day. I note that Mr Dalton has been senior counsel for 18 years and is a leading silk at the criminal bar. Certainly, there are others charging far in excess of that and I regard that to be a completely reasonable rate for counsel of such experience.

40. His solicitor’s charge effectively, when adding up the hours, is about $5,000 per day. That is also within the rate and the instructing solicitor is someone with a great deal of experience and, in those circumstances, I imagine the cost assessor would allow that. In any event, I certainly allow it in terms of the overall rate. So, that would be $15,000 in terms of - even being party/party costs, but those are what were charged.

41. I would allow, in effect, three days or three and a half days ultimately. That has come about because there was - and having regard to those further outline of submissions, costs are payable not just for those thrown away but also for preparation and Mr Dalton referred to Sparos (No 2) [2017] NSWSC 1462 and a number of other cases and clearly preparation costs thrown away, indeed in the court’s own experience, that has been the circumstance.

42. So, I would allow a half day preparation for the hearing on 23 July which has been wasted. True it is that there were written submissions prepared in respect of that, but there is now a new charge that has been brought, where commerciality is not an element of the offence, although I note it has the same maximum sentence. Nevertheless, not all that preparation would be lost and so I would allow, for that day and a half, I would allow a full day.

43. Looking ahead in terms of both today and in preparation for it, I would allow a full two days. So, that would be another $30,000, that is $10,000 for senior counsel, $5,000 for his instructing solicitor. Two days is $30,000. Combine that with the other $15,000 leaves $45,000. At approximately 66 cents in the dollar, which is probably a bit harsh, that would equate to some $30,000.

44. And so, having regard to my earlier decision on the Mosely stay, and I will re-emphasise that I will make a Mosely stay in respect of the new proposed charge on the ex officio indictment, that that is stayed unless or until the Crown pays the costs to Mr Mills in the amount of $30,000 plus GST.

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Decision last updated: 24 April 2025