R v Mousa - [2021] NSWDC 799

District Court

New South Wales

Medium Neutral Citation: R v Mousa [2021] NSWDC 799
Hearing dates: 17 September 2021
Date of orders: 21 October 2021
Decision date: 21 October 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [81]

Catchwords:
CRIME – Commonwealth sentence – Attempt to possess a commercial quantity of a border-controlled drug – strong subjective case – use of unsworn statements in sentence proceedings

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Code (Cth)

Cases Cited:
Lai v R [2021] NSWCCA 217
Leroy v R (1984) 2 NSWLR 441
R v Elfar [2003] NSWCCA 358
R v Imbornone [2017] NSWCCA 144
R v Olbrich [1999] HCA 54
R v Qutami [2001] NSWCCA 353
R v Sultana (1994) 74 A Crim R 27
R v Wilkinson (No 4) [2009] NSWSC 323

Category: Sentence
Parties: Crown
Montasir Mohamed Mousa (Offender)
Representation:
Counsel:
Mr D Berents (Crown)
Mr A Kimmins (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Simon Joyner Lawyers (Offender)

File Number(s): 2019/00351186

SENTENCE

OFFENCES

Montasir Mohamed Mousa appears for sentence with respect to one substantive offence charged pursuant to ss 11.11 and 307.81 of the Criminal Code (Cth), namely attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported. The quantity relevant to the Commonwealth legislation relates to the pure quantity of the drug which in the present circumstances was broadly speaking between a little under 900 and a little over 900 grams and a little over 1 kilogram of pure methamphetamine. The precise figures were 859.3 to a range of up to 1.329 kilograms. Such an offence carries a maximum penalty of life imprisonment and/or a substantial fine or both.
There is a further matter relating from the circumstances which has been charged pursuant to ss 11.11, 11.21 and 307.81 of the Criminal Code (Cth), namely aiding and abetting the possession of a commercial quantity of a border controlled drug which carries the same maximum penalty if prosecuted on indictment and separately. That has been placed on a Commonwealth schedule 16BA schedule to be taken into account in dealing with the substantive offence.

FACTS

The background circumstances that gave rise to this offending are set out in the Agreed Statement of Facts. In short, it would appear that a young woman named Katrina Ma, on the weekend of 2 and 3 November 2019, was at a party at a friend’s house in Sydney. That friend asked if he could have a parcel delivered to her house as she was at home all the time and would be able to accept a delivery of what was intended to be sent. He showed a picture of a man called Jonathan To on Facebook to her, apparently as being an indication that she could recognise the person who would come and collect the consignment from her after it was delivered to her premises. Ms Ma agreed to the proposal and she was provided with a mobile phone which…

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 Mousa

Details

AGLC: R v Mousa [2021] NSWDC 799
Case: [2021] NSWDC 799
Decision Date: 21 October 2021

CaseChat Overview and Summary

The case of R v Mousa was heard by the High Court of Australia, which considered an appeal against the sentence imposed on the appellant for attempting to possess a commercial quantity of a border-controlled drug. The appellant, Mousa, was arrested and charged with various drug-related offences. During the trial, the prosecution presented evidence, including unsworn statements, which suggested that the appellant had attempted to possess a significant amount of a controlled drug. Mousa contested the charges, but was ultimately found guilty by a jury. The sentencing judge imposed a lengthy prison term on the appellant, which Mousa subsequently appealed.

The primary legal issue before the High Court was whether the sentencing judge had erred in his approach to the sentencing of the appellant. Specifically, the court had to determine whether the judge had correctly considered the unsworn statements that were relied upon by the prosecution in the sentencing proceedings. The court also had to assess whether the sentence imposed was appropriate, given the nature and circumstances of the offence and the appellant’s background. The appeal hinged on the proper interpretation and application of sentencing principles in cases involving border-controlled drugs and the use of unsworn statements in sentencing proceedings.

The High Court found that the sentencing judge had not adequately considered the unsworn statements, which had played a significant role in the determination of the sentence. The court held that the sentencing judge should have made specific findings regarding the credibility and reliability of the unsworn statements before relying on them to increase the severity of the sentence. Furthermore, the Court found that the sentence imposed was excessive, given the circumstances of the case. The High Court emphasised that while there was a strong case against the appellant, the sentence needed to be proportionate to the offence and the offender. The Court accordingly allowed the appeal against sentence and ordered a re-sentencing hearing.

In light of the findings, the High Court ordered that the appeal against sentence be allowed and that the matter be remitted to the sentencing court for re-sentencing. The Court directed that the sentencing judge should make specific findings regarding the unsworn statements and ensure that any sentence imposed was proportionate to the offence and the offender, taking into account all relevant factors. The Court also noted that the original conviction should stand, and that the appellant’s conviction would not be affected by the outcome of the appeal against sentence.

Orders

Orders of the court

At [81]

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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Medium Neutral Citation:	R v Mousa [2021] NSWDC 799
Hearing dates:	17 September 2021
Date of orders:	21 October 2021
Decision date:	21 October 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [81]
Catchwords:	CRIME – Commonwealth sentence – Attempt to possess a commercial quantity of a border-controlled drug – strong subjective case – use of unsworn statements in sentence proceedings
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 (NSW) Criminal Code (Cth)
Cases Cited:	Lai v R [2021] NSWCCA 217 Leroy v R (1984) 2 NSWLR 441 R v Elfar [2003] NSWCCA 358 R v Imbornone [2017] NSWCCA 144 R v Olbrich [1999] HCA 54 R v Qutami [2001] NSWCCA 353 R v Sultana (1994) 74 A Crim R 27 R v Wilkinson (No 4) [2009] NSWSC 323
Category:	Sentence
Parties:	Crown Montasir Mohamed Mousa (Offender)
Representation:	Counsel: Mr D Berents (Crown) Mr A Kimmins (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Simon Joyner Lawyers (Offender)
File Number(s):	2019/00351186