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]]

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.
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.
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.
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.
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…

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 R v Mills

Details

AGLC: R v Mills [2024] NSWDC 666
Case: [2024] NSWDC 666
Decision Date: 19 December 2024

CaseChat Overview and Summary

The defendant, Mills, was convicted of a serious crime, and the matter before the court was his sentence. The Crown argued that Mills' alleged plea traversal was a calculated attempt to manipulate the facts for a lighter sentence, while Mills sought a more lenient outcome. The court was tasked with deciding whether the plea traversal constituted an abuse of process warranting a harsher sentence, and whether the Crown's concession of fault in the adjournment justified a Mosely stay. Additionally, the court needed to assess whether the Crown could overcome the effect of a Mosely stay by charging Mills with a different offence.

The court found that the plea traversal did not amount to an abuse of process, as there was no need to punish Mills for seeking a fair outcome. The concession of fault by the Crown warranted a Mosely stay, but this did not automatically entitle Mills to a lighter sentence. The court emphasised that the Crown's indulgence in granting a Mosely stay was conditional, and it was not appropriate for the Crown to seek to overcome the effect of a Mosely stay by charging a different offence. The court determined that the assessment of costs related to the Mosely stay was an appropriate matter for senior counsel.

The court ordered that the sentence should reflect the appropriate punishment for the offence committed, taking into account the factors relevant to Mills' case. The court also ordered that the costs associated with the Mosely stay should be assessed by senior counsel, in line with the principles established in previous cases. The specific details of the sentence and costs were outlined in paragraph [44] of the judgment.

Orders

Orders of the court

See paragraph [44]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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