SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MUSTAC
[2013] SASCFC 21
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
3 April 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
The respondent pleaded guilty on the day of trial to one count of trafficking in a large commercial quantity of cannabis - the plea was made after the trial Judge had refused to exclude evidence of a police search of the respondent's vehicle - the respondent was sentenced to three years' imprisonment with a non-parole period of 12 months after allowing for a 25 per cent reduction for his guilty plea - the DPP sought permission to appeal against the sentence.
Observations about s 285BA of the Criminal Law Consolidation Act 1935 (SA) and the relevance to sentence of an unreasonable failure to respond to a notice to admit facts.
Held: The mitigatory explanation given by the appellant for the commission of the offence was disputed - that the Judge erroneously resolved the factual dispute in the appellant's favour - the reduction for the appellant's guilty plea was manifestly excessive - the sentence was manifestly inadequate - that the offending was within the most serious category of trafficking in cannabis. It revealed a high-level commercial enterprise - the respondent had a prior conviction for a similar offence - the respondent's role was as a middle man - the enterprise involved transporting cannabis interstate - general and personal deterrence required a substantial sentence.
Application for permission to appeal granted - appeal allowed - sentence increased to seven years and six months' imprisonment with a non-parole period of five years.
Criminal Law (Sentencing) Act 1988 (SA) s 56; Criminal Law Consolidation Act 1935 (SA) s 285BA, 285BA(4), s 285BA(6), s 285BA(7); Controlled Substances Act 1985 (SA) s 32(1), referred to.
R v Pirgousis [2012] SASCFC 127, discussed.
R v Olbrich (1999) 199 CLR 270; R v Reiner (1974) 8 SASR 102; R v Shannon (1979) 21 SASR 442; Cameron v The Queen (2002) 209 CLR 339, considered.
R v MUSTAC
[2013] SASCFC 21Court of Criminal Appeal: Kourakis CJ, Sulan and Stanley JJ
KOURAKIS CJ: The respondent, Mr Mustac, pleaded guilty in the District Court to one count of trafficking in a large commercial quantity of cannabis. Mr Mustac entered his plea on the day his trial was to proceed before a jury and only after a failed application, heard on a voir dire, to exclude, for illegality, the evidence of the search which revealed his possession of the cannabis.
The Judge imposed a head…
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- R v Mustac [2013] SASCFC 21
- Case
- [2013] SASCFC 21
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentence imposed was manifestly inadequate, whether the discount for the guilty plea was excessive, and whether the sentencing judge had erred in their approach to fact-finding regarding the respondent's alleged failure to make admissions and the circumstances of the offending, specifically concerning potential threats. The DPP also argued that the sentencing judge failed to adequately consider the seriousness of the offence and the need for general and personal deterrence.
The Full Court allowed the appeal, finding the original sentence to be manifestly inadequate. Their Honours determined that the offending constituted a high-level commercial enterprise, placing it within the most serious category of drug trafficking. This conclusion was informed by the significant quantity and value of the cannabis, the respondent's prior conviction for similar offending, and the fact that he was not a novice or low-level dealer. The court also found the discount for the guilty plea to be excessive, noting the respondent's failure to assist police in locating the secret compartment and his unreasonable failure to make admissions in response to a Notice to Admit. The court also identified an error in the sentencing judge's approach to fact-finding concerning whether the respondent had acted under threats.
Consequently, the sentence imposed by the trial judge was set aside. The Full Court imposed a new sentence of seven years and six months imprisonment with a non-parole period of five years. The court dismissed the ground of appeal relating to a background of trading cannabis, as the DPP failed to prove this element.
Orders
Orders of the court
Held: Appeal allowed - sentence imposed to be set aside - I would impose a sentence of seven years and six months with a non-parole period of five years - (1) the sentence imposed by the Judge was manifestly inadequate - the offending was within the most serious category of offending - this was a high-level commercial enterprise - the respondent has a prior conviction for similar offending - the respondent was not a novice nor a low-level street dealer - the discount for the guilty plea was manifestly excessive - the failure to make admissions in response to the Notice to Admit was unreasonable - (2) the DPP failed to prove that there was a background of trading cannabis - the appeal and permission to appeal on this ground fails - (3) the Judge made an error in the approach to fact finding regarding whether the accused had acted under threats when committing the offence.
Background
Background to the litigation
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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