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10
Court of Criminal Appeal 22 May 2013

Achurch v R (No 2)

[2013] NSWCCA 117

Also reported as (2013) 84 NSWLR 328
Drugs
CRIMINAL LAW SUPPLY MDMA SUPPLYING A COMMERCIAL QUANTITY OF MDMA

Citation: Achurch v R (No 2) [2013] NSWCCA 117
Court: Court of Criminal Appeal
Date: 22 May 2013
Judges: Bathurst CJ, McClellan JA, Johnson J, Garling J, Bellew J

Background

The applicant had been convicted of three drug supply offences under the Drug Misuse and Trafficking Act 1985: supplying MDMA, supplying a commercial quantity of MDMA, and supplying a large commercial quantity of methylamphetamine. The Crown successfully appealed his original sentences in 2011, and the Court of Criminal Appeal imposed substantially increased sentences in their place.

Shortly after that resentencing, the High Court handed down its decision in Muldrock v The Queen [2011] HCA 39, which overruled the Court of Criminal Appeal's earlier decision in R v Way [2004] NSWCCA 131. The Way principles had governed how sentencing courts were required to approach standard non-parole periods. The applicant then sought to have his sentences reopened on the basis that the Court of Criminal Appeal had applied those now-overruled Way principles when resentencing him.

The applicant applied under s 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen the proceedings, arguing that the sentences imposed by the Court of Criminal Appeal were "contrary to law" because they had been arrived at by applying the erroneous Way methodology. The Court noted this was the first of potentially many such applications and constituted a five-judge bench to address the question.

  • Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 is available to correct a sentencing error arising from the application of the since-overruled principles in R v Way
  • Whether, applying the correct post-Muldrock principles, the sentences imposed on the applicant were "contrary to law" within the meaning of s 43(1)
  • Whether, as a matter of discretion, the Court should exercise the s 43 power even if jurisdictionally available

Decision

The joint judgment of Bathurst CJ and Garling J (with whom all other judges agreed as to the outcome) held that s 43 was technically available only to correct penalties that are "contrary to law" in the sense of being legally invalid, not merely the product of an erroneous reasoning process. However, given the unusual circumstances of this case (the resentencing had occurred very shortly before the High Court's Muldrock decision), the Court was prepared to consider whether the preconditions to jurisdiction under s 43 were satisfied.

On the substantive question, the Court concluded that the sentences imposed were not "contrary to law" within the meaning of s 43. The application of Way principles at the time of resentencing did not render the resulting sentences legally invalid. The sentences fell within the permissible range even when assessed under the correct Muldrock framework. Accordingly, the preconditions to the exercise of the s 43 jurisdiction were not made out.

The Court was also firm on the discretionary dimension. Even where s 43 might technically be invoked, the proper avenue for an offender seeking to challenge a sentence on the basis of Muldrock error is an application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912. Allowing s 43 to be used as a routine mechanism for this purpose would risk it becoming an inappropriate proxy for a formal appeal, bypassing the ordinary appellate hierarchy.

McClellan JA agreed with the orders but noted that the Court's prior decisions had given s 43 a broader interpretation than Parliament originally intended. He observed the Court was bound by that prior approach but emphasised that the discretion to refuse such applications remained, and should generally be exercised where Muldrock error is the real issue.

Orders Made

  • The application made by the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 22 March 2012 was dismissed.
  • The Notice of Motion filed by the applicant on 28 March 2012 was dismissed.

Key Takeaways

  • Under s 43 of the Crimes (Sentencing Procedure) Act 1999, a court may reopen sentencing proceedings to correct a penalty that is "contrary to law," but this provision is properly directed at patent, technical or calculation errors, not errors in the reasoning process underlying a sentence.
  • Sentences imposed by applying the now-overruled Way principles are not rendered "contrary to law" within the meaning of s 43 simply because the High Court later overruled the methodology used. The sentences remain legally valid unless they fall outside the permissible range under the correct framework.
  • Where an offender contends that a sentence was affected by Muldrock error, the appropriate avenue is an application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912, which allows this Court to exercise its full resentencing powers.
  • Allowing s 43 to operate as a substitute for a formal appeal would risk undermining the finality of sentencing and circumventing the proper role of appellate courts in supervising sentencing principles.
  • Johnson J noted the legislature may wish to revisit s 43, observing that its narrow original purpose has been expanded by a broad judicial construction that may be at odds with Parliament's intent, and suggested the matter be referred to the Attorney General for consideration of reform.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 7, 12
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
- Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148
- Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
- CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384