The Queen v Mossman

• Jurisdiction: Northern Territory
• Court: Court of Criminal Appeal
• Judge: Grant CJ,Southwood,Hiley JJ
• Judgment Date: 24 July 2017
• Docket Number: FILE NO: No. CA 1 of 2017 (21532632)
• Date: 24 July 2017

Between:

The Queen

Appellant

and

Paul Scott Mossman

Respondent

[2017] NTCCA 6

Judgment of:

Grant CJ, Southwood and Hiley JJ

FILE NO: No. CA 1 of 2017 (21532632)

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

CRIMINAL LAW — PROPERTY OFFENCES — JUDGMENT AND PUNISHMENT

Corrupt receipt of a benefit for the manner in which the appellant carried out his powers, duties or functions — employee of Minister — whether sentence manifestly inadequate having regard to the circumstances of the offending and the appellant — whether unjustifiable disparity with sentence imposed on co-offender for like offending — appeal dismissed.

Bara v The Queen [2016] NTCCA 5 , BodminCase (1869) XX TLR 989, Delaney v The Queen (2013) 230 A Crim R 581, DPP (Cth) v Gregory (2011) 34 VR 1, Everett v The Queen (1994) 181 CLR 295, Green v The Queen (2011) 244 CLR 462, Griffiths v The Queen (1977) 137 CLR 293, Hili v The Queen (2010) 242 CLR 520, HM Advocate v Dick (1901) 3F (Ct of Sess) 59, House v The King (1936) 55 CLR 499, Lacey v Attorney-General (Qld) (2011) 242 CLR 573, Lowe v The Queen (1984) 154 CLR 606, Pastras v The Queen (1993) 65 A Crim R 584, Pecora v The Queen [1980] VR 499, Postiglione v The Queen (1997) 189 CLR 295, R v BJW (2000) 112 A Crim R 1, R v Delcaro (1989) 41 A Crim R 33, R v Hitanaya [2010] NTCCA 3, R v Jamieson [1988] VR 879, R v Lo (2007) 174 A Crim R 541, R v Nath (1994) 74 A Crim R 115, R v Nguyen [2010] NSWCCA 331, R v Osenkowski (1982) 30 SASR 212, R v Radloff (1996) 6 Tas R 99, R v Riley (2006) 161 A Crim R 414, R v Rivkin (2004) 59 NSWLR 284, R v Smith (2000) 116 A Crim R 447, R v Vaughan (1796) 4 Burr 2494, R v Wilson (2011) 30 NTLR 51, Steer & Ors v R (2000) 171 ALR 463, The Queen v Renwick & Johnston [2013] NTCCA 3, Woodward v Maltby [1959] VR 794, referred to.

Criminal Code (NT) s 236, s 414(1A)

Fox & Freiberg's sentencing: state and federal law in Victoria (Third Edition), Law Book Company, 2014.

REPRESENTATION:

Counsel:

Appellant: D Morters

Respondent I Read SC

REASONS FOR JUDGMENT

(Delivered 24 July 2017)

THE COURT:

Introduction

1 In October 2016 the respondent stood trial before a jury in the Supreme Court on five counts on an indictment dated 13 October 2016. The jury was unable to reach a verdict on count 1 and was discharged on that count. The jury found the respondent not guilty of counts 2 and 4 but guilty of the alternative counts 3 and 5. The effect of the discharge of the jury on count 1 is that the respondent may be retried on that count but the presumption of innocence prevails unless the respondent is found guilty following a retrial.

2 Both counts 3 and 5 on the indictment pleaded offences contrary to s 236 of the Criminal Code (NT) which carry a maximum sentence of imprisonment for three years. Count 3 pleaded that:

Between 9 September 2013 and 15 November 2014 at Darwin in the Northern Territory of Australia, [the respondent] as an employee of the Minister for Stuart (sic) in the Government of the Northern Territory of Australia having powers, duties or functions to carry out, corruptly received a benefit for himself and another, namely a waiver of service fees and deferral of full payment on a return airfare from Darwin to New York for Nathanael Mossman, on account of the manner in which he carried out those powers, duties or functions.

3 Count 5 pleaded that:

Between 9 September 2013 and 15 November 2014 at Darwin in the Northern Territory of Australia, [the respondent] as an employee of the Minister for Stuart (sic) in the Government of the Northern Territory of Australia having powers, duties or functions to carry out, corruptly received a benefit for himself and another, namely a waiver of service fees and deferral of full payment for return flights between Darwin and Sydney for himself and his daughter Laura, on account of the manner in which he carried out those powers, duties or functions.

4 The only benefits obtained by the respondent from the commission of the crimes pleaded in counts 3 and 5 was the waiver of the service fees and the deferral of full payment of the return flights.

5 Counts 2 and 4 also charged offences contrary to s 236 of the Criminal Code. The difference between counts 2 and 4 and the alternative counts, 3 and 5, is that counts 2 and 4 alleged the respondent corruptly received the benefit of the price of the airfares rather than the benefit of having the payments deferred. The effect of the jury's findings of not guilty on counts 2 and 4 was the respondent was acquitted of corruptly receiving benefits in the amounts of $1,895 and $1,100 respectively. The respondent is entitled to full credit for those acquittals.

6 On 17 January 2017 the sentencing judge sentenced the respondent for counts 3 and 5 on the indictment to a wholly suspended aggregate sentence of 12 months' imprisonment.

7 The Crown has appealed against that sentence. There are two grounds of appeal:-

1

The learned sentencing Judge imposed a sentence that in all the circumstances was manifestly inadequate. 2. The learned sentencing Judge misapplied the parity principle or the principle of equal justice.

Crown appeals

8 Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders. 1 The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle. 2

9 As to what will constitute an error in point of principle, in R v Riley this Court stated: 3

In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle. His Honour said:

“It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct.”

10 These remarks do not operate to displace the principle expressed by King CJ in R v Osenkowski, namely: 4

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where the judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has been traditionally extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of an offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

11 The principles enunciated in House v The King5 remain applicable to the determination of manifest inadequacy. 6 In the oft-quoted passage from that decision, the High Court stated: 7

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts ( R v Sidlow). Lord Reading LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong ( R v Wolff.). Lord Hewart LCJ has said that the court only...