R v Mustac

Case [2013] SASCFC 21

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 21

Court of Criminal Appeal:  Kourakis CJ, Sulan and Stanley JJ

  1. 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. 

  2. The Judge imposed a head…

Continue reading R v Mustac

Sign in free to access the full text

Details
AGLC
R v Mustac [2013] SASCFC 21
Case
[2013] SASCFC 21
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) sought permission to appeal against the sentence imposed on the respondent, Mr Mustac, who had pleaded guilty to trafficking in a large commercial quantity of cannabis. The DPP contended that the sentence of three years' imprisonment with a non-parole period of 12 months, which included a 25 per cent reduction for the guilty plea, was manifestly inadequate. The appeal was heard by Kourakis CJ, Sulan and Stanley JJ.

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

The Director of Public Prosecutions seeks permission to appeal against the sentence on the following grounds:[1]1)That the head sentence and non-parole period are manifestly inadequate. In particular:i. The sentence fails to reflect the seriousness of the offending;ii. The sentence fails to reflect the need for general and personal deterrence;iii. The reduction of 11 months and 5 days for the plea of guilty after a voir dire was not warranted; andiv. The learned sentencing Judge failed to have regard to the fact that the defendant unreasonably failed to make admissions with respect to a notice to admit facts.2)That the learned sentencing judge erred by failing to make findings regarding whether there was a background of trading in cannabis and whether the accused had acted under threats when committing the offence.[1] Notice of Application for Permission to Appeal against Sentence by the Director of Public Prosecutions filed 7 January 2013.Background In brief, Mr Mustac’s personal details were as follows. He was a 37 year old male living in a permanent relationship of some three years duration. Mr Mustac sustained severe injuries in a motor vehicle accident in 1995. Before the accident he was employed as a builder’s assistant by his father. Mr Mustac recovered from his injuries to find consistent work at Sandia Pty Ltd and later as a car salesman and trades assistant. He also gained an income from gambling. The respondent began smoking cannabis following the motor vehicle accident in 1995, finding that it helped with the pain; he had not however used cannabis since 2008. The respondent suffers from lupus and was the full-time carer of his significantly handicapped sister. The circumstances of the subject offending are as follows. In or about early 2011 Mr Mustac travelled from New South Wales to South Australia in a Holden Jackaroo towing a trailer containing a secret compartment. The trailer was not registered in the respondent’s name. In South Australia the respondent met with a supplier or suppliers of cannabis, collected the cannabis and concealed that cannabis in the secret trailer compartment. Whilst attempting to transport the cannabis to New South Wales Mr Mustac was stopped by police on the South Eastern Freeway after the Summit Road underpass. The police, acting on information, searched the Holden Jackaroo and the trailer. After a thorough search the secret compartment was located by police. Mr Mustac did not help police find the secret compartment. The cannabis found in the compartment was packaged in two cryovac bags, one inside the other. I would infer that the cannabis was carefully packaged in that way to avoid any scent of the drug being detected. Police also located cash in the sum of $1,090 in the Holden Jackaroo. Mr Mustac was arrested. The evidence put before the Judge, extrapolated from a drug expert’s report, was that the value of the cannabis, in South Australia, was in the range of $17,500 to $141,000. In New South Wales its value was approximately $188,000. That amount is, as the learned sentencing Judge observed, a significant amount of cannabis with a very high street value.

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.