Mohana v R [2023] NSWCCA 61

Mohana v R [2023] NSWCCA 61 · Read the judgment on AustLII

Catchwords: Participate in criminal group – elements – single serious indictable offence

The Court of Criminal Appeal (‘CCA’) has determined that the offence of participate in criminal group requires proof of a single serious indictable offence, and identification of a series of disparate, even if connected, offences will not be sufficient.

The applicant was convicted at a judge-alone trial of supplying a large commercial quantity of a prohibited drug (cocaine), and one count of knowingly dealing with proceeds of crime valued at more than $100,000 (he was on video with a large amount of cash said to be from drug supply). Relevantly, during sentencing for those two offences, the judge then dealt with a ‘related’ summary offence (i.e. via s 166(1)(b) of the Criminal Procedure Act 1986) of participating in a criminal group, pursuant to Crimes Act 1900 s 93T. That is, the trial judge was required to constitute himself as though he were a Magistrate, and determine the applicant’s guilt of the participate in criminal group offence based on the evidence he had seen in the trial. His Honour found the applicant guilty of the s 93T offence. Having been convicted of all the offences and sentenced to imprisonment for 8 years and 1 month, with a non-parole period of 4 years and 5 months, the applicant appealed his various convictions; this summary only considers the ground relating to the participate in criminal group offence.

Section 93T provides that a person who participates in a criminal group is guilty of an offence (subject to certain requirements as to their state of mind). ‘Criminal group’ is defined in s 93S as

… a group of three or more people who have as their objective or one of their objectives –

(a) obtaining material benefits from conduct that constitutes a serious indictable offence, or

…

Relevantly, the applicant’s co-accused at trial had been his brother (who was acquitted), and another man, Hussain Mousselmani (who was convicted). The men were under physical surveillance, as well as video and audio surveillance by way of covert devices being placed in a car, and their phone calls were intercepted. They were videoed as they sourced their drugs from a third person, Maroun, with whom they were said to have been in an ongoing relationship in the nature of a supply chain.

The Court here (Simpson AJA, with whom Davies and Wilson JJ agreed) confirmed earlier authority that proof of this offence requires that members of the criminal group (i.e. the three or more people) must have a ‘shared objective’ (at [102]-[103]). Here, the applicant argued that the objectives of the three alleged participants (the applicant, Mousselmani, and the upline supplier, Maroun) didn’t align. This was because there were different objectives as between the applicant and Mousselmani on the one hand (that is, the purchase of drugs to supply to others), and Maroun on the other (who merely wanted to sell to the pair).

The Court here found that it is correct that s 93S(1)(a) requires identification of a, single, serious indictable offence. Identification of a series of disparate, albeit connected, offences will not be sufficient (at [107]). Despite that, in the circumstances of this case, that was no barrier to a conviction. Although the applicant and his co-accused had a different motivation than the man from which they were purchasing the drugs, the first step on the way to on-selling the drugs was the conduct of the upline supplier in selling them the drugs. Thus, each of the three participants shared the objective of obtaining material benefits in the transaction relating to the drugs (at [108]).

This and the other grounds of appeal were accordingly dismissed.