REGINA v Mussett - [1999] NSWCCA 419

CITATION: REGINA v MUSSETT [1999] NSWCCA 419

FILE NUMBER(S): CCA 60445/98

HEARING DATE(S): 15 September 1999

JUDGMENT DATE:
15 September 1999

PARTIES :

REGINA v Michael MUSSETT

JUDGMENT OF: Wood CJ at CL at 17; Simpson J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0444

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL: R Ellis - Crown

SOLICITORS: S E O'Connor - Crown

CATCHWORDS:

ACTS CITED: Crimes Act 1900
Sentencing Act 1989

DECISION: Leave to appeal granted, appeal allowed; The sentence in relation to the second count be quashed and in lieu thereof be imposed a sentence of penal servitude for four years consisting of a minimum term commencing 23 April 1998 and expiring on 23 October 1999, and an additional term commencing on 24 October 1999 and expiring on 23 April 2002; No interference with the sentence imposed on the first count.

IN THE COURT OF
CRIMINAL APPEAL

60445/98

WOOD CJ at CL
SIMPSON J

Wednesday 15 September 1999

REGINA v Michael MUSSETT

JUDGMENT

WOOD CJ AT CL

1    I will ask Simpson J to give the first judgment.

SIMPSON J :

2 On 10 July 1998 the applicant appeared in the District Court to adhere to his plea of guilty to an indictment on two charges. The first charge was that he was carried in a conveyance without consent. The second charge was one of break, enter and steal, a charge brought under s 112 of the Crimes Act that carries a maximum penalty of 20 years penal servitude.
3    On the second count Judge Dodd sentenced the applicant to a total term of penal servitude for four years. Having found special circumstances under s 5(2) of the Sentencing Act 1989, he divided that term equally into minimum and additional terms of two years each.
4    On the first count his Honour sentenced the applicant to a fixed term of penal servitude for 12 months. Each sentence was directed to be served concurrently, commencing on 24 April 1998.
5    On the same day Judge Dodd sentenced a co-offender, Mr Shane Geoffrey Gater. The co-offender stole a motor vehicle on 2 April. The following day the applicant was a passenger in the vehicle being driven by the co-offender. It was pursued by police and eventually stopped and the two were arrested.
6    Earlier that day, using the motor vehicle, the co-offender had broken and entered a residence and stolen property while the applicant remained in the car outside. At the time that the two men were pursued by police and stopped, the co-offender was driving whilst disqualified. He was charged with the same offences as the applicant. However, he asked that a number of matters listed on a Form 1 be taken into account. These included driving in a manner dangerous, an offence that arose out of driving the motor vehicle while the police officers were attempting to apprehend the two men.
7    While a police constable was at the door of the car…

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 REGINA v Mussett

Details

AGLC: REGINA v Mussett [1999] NSWCCA 419
Case: [1999] NSWCCA 419
Decision Date: 15 September 1999

CaseChat Overview and Summary

In Regina v Mussett, the appellant Michael Mussett was convicted in the District Court on two charges: carrying in a conveyance without consent, and break, enter and steal. Mussett was sentenced to a concurrent term of four years penal servitude on the second charge and a concurrent term of one year on the first charge, with both sentences starting on 24 April 1998. The Court of Criminal Appeal reviewed the sentence, particularly the second count, which involved a significant disparity between Mussett's sentence and that of his co-offender, Shane Geoffrey Gater, who was involved in more severe criminal conduct.

The legal issues before the Court of Criminal Appeal were whether the disparity between the sentences of Mussett and Gater was justified and if the sentence imposed on Mussett for the second charge was appropriate. The appeal hinged on whether the District Court had adequately considered the differences in the roles and conduct of the two offenders, and whether the special circumstances that warranted a departure from the statutory division of the sentence were correctly applied.

The Court of Criminal Appeal found that the District Court had failed to sufficiently differentiate between the roles and culpability of Mussett and Gater. While it acknowledged that there were special circumstances warranting a departure from the statutory division of the sentence, it determined that the disparity in the sentences was unjust. The Court decided to re-sentence Mussett, maintaining the total term of four years but altering the division between the minimum and additional terms. The Court imposed a minimum term from 23 April 1998 to 23 October 1999, and an additional term from 24 October 1999 to 23 April 2002. The sentence for the first count remained unchanged.

In conclusion, the Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The sentence in relation to the second count was quashed and replaced with a new sentence of penal servitude for four years with a modified division of terms. The sentence for the first count remained unaffected.

Orders