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Court of Criminal Appeal 20 December 2012

Qian v R

[2012] NSWCCA 283

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCES PLEAS OF GUILTY FORM 1 OFFENCES DISHONESTLY OBTAINING MONEY APPROACH TO STANDARD NON

Citation: Qian v R [2012] NSWCCA 283
Court: Court of Criminal Appeal, NSW
Date: 20 December 2012
Judges: Simpson J (with McCallum J and Bellew J agreeing)

Background

The applicant had pleaded guilty in the District Court to six serious offences committed over approximately two months in late 2006: a stabbing robbery in Parramatta, a series of armed robberies and detentions at an Eastwood massage parlour, and an armed robbery of a convenience store in Waverton. Three further offences were taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered at sentencing without separate conviction). The offences involved knives, a hammer, binding victims with tape, and significant physical injuries to multiple victims.

The District Court imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years, commencing 31 March 2009. For the most serious counts, a standard non-parole period of 7 years applied under the Crimes (Sentencing Procedure) Act 1999.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had given undue emphasis to the standard non-parole period. The appeal was brought against the backdrop of the High Court's decision in Muldrock v The Queen [2011] HCA 39, which had overturned the previously authoritative approach to standard non-parole periods established in R v Way [2004] NSWCCA 131.

  • Whether the sentencing judge gave undue emphasis to the standard non-parole period when imposing sentence, contrary to the approach now required by Muldrock.
  • Whether any error in the sentencing judge's approach to the standard non-parole period was established on the evidence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach to the standard non-parole period.

Simpson J noted that the sentencing had occurred on 16 March 2010, before the High Court delivered Muldrock in October 2011. At the time of sentencing, the approach in R v Way was the authoritative method. That approach was later declared incorrect by the High Court, but the Court of Criminal Appeal found it unsurprising that the sentencing judge had followed Way.

A significant point arose in relation to the applicant's written submissions. Counsel had compared the head sentences imposed to the standard non-parole periods, but Simpson J identified this as an incorrect analytical approach. The proper comparison is between the standard non-parole period and the non-parole period actually imposed, not the head sentence. When that correct comparison was applied, the non-parole periods imposed departed significantly below the standard non-parole period of 7 years for the relevant offences.

The sentencing judge had expressly described the standard non-parole period as a "guidepost" only, and had reduced the non-parole periods to reflect factors including that the first offence fell just below the mid-range of objective seriousness, the guilty pleas, and findings of special circumstances. Simpson J concluded that the sentencing judge had approached the matter precisely as Muldrock later required, albeit before that decision was handed down. No misuse of the standard non-parole period was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The correct comparison when assessing whether a sentencing judge gave undue emphasis to a standard non-parole period is between the standard non-parole period and the non-parole period actually imposed, not the head sentence. Comparing head sentences to standard non-parole periods is an analytical error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge does not err simply by referring to the standard non-parole period as a "guidepost," provided the period is not used as a de facto starting point or given disproportionate weight.
  • No error was established where the sentencing judge had departed significantly downward from the standard non-parole period and had expressly identified the reasons for doing so, including the guilty plea, the objective seriousness of the offence relative to the mid-range, and a finding of special circumstances.
  • Where a sentence was imposed before Muldrock was decided, a court reviewing that sentence will assess whether the sentencing judge's actual approach, whatever terminology was used, was consistent with what Muldrock subsequently required.
  • Under the Crimes (Sentencing Procedure) Act 1999, Form 1 offences do not attract separate sentences but are taken into account in the overall sentencing exercise, and can result in an adjusted head sentence for the principal offence with which they are associated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1), 98

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Bolt v R [2012] NSWCCA 50
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346