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34
Court of Criminal Appeal 6 November 2013

Abdul v R

[2013] NSWCCA 247

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT APPLICANT SENTENCED IN MAY 2009 EXTENSION OF TIME OPPOSED BY CROWN IMPORTANCE OF PRINCIPLE OF FINALITY

Citation: Abdul v R [2013] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 6 November 2013
Judges: Hoeben CJ at CL, Johnson J, Bellew J

Background

The applicant was convicted after trial of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). On 1 May 2009, Neilson DCJ sentenced him to imprisonment for 9 years and 4 months, with a non-parole period of 7 years commencing 3 June 2008. The offence attracted a standard non-parole period of 7 years under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Following sentencing, the applicant filed a Notice of Intention to Appeal but that notice lapsed. Legal Aid NSW refused to fund an appeal on multiple occasions, finding no reasonable prospects of success. In early 2013, Legal Aid NSW reviewed its closed file as part of a broader review of cases potentially affected by the High Court's decision in Muldrock v The Queen [2011] HCA 39, and the applicant subsequently sought an extension of time within which to seek leave to appeal against his sentence.

The application was made approximately four years after the original sentence. The Crown opposed the extension, relying principally on the principle of finality.

  • Whether the applicant was entitled to an extension of time to seek leave to appeal against sentence, given the delay of approximately four years
  • Whether a "Muldrock error" was established, meaning whether the sentencing judge treated the standard non-parole period as having determinative significance rather than as a guidepost
  • Whether, even if a Muldrock error were established, a lesser sentence would be warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
  • How the principle of finality applies to sentence appeals, and what factors govern an application for extension of time

Decision

The Court examined the principles governing extensions of time in sentence appeals, confirming that the principle of finality applies with equal force to sentence appeals as it does to conviction appeals. The relevant factors include the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim, and whether substantial injustice would result if an extension were refused. The mere fact that a sentence may have been infected by a Muldrock-type error does not automatically justify an extension of time.

On the question of Muldrock error, the Court proceeded to consider whether the sentencing judge had treated the standard non-parole period as determinative. A "Muldrock error" refers to the approach condemned by the High Court in Muldrock v The Queen, where sentencing judges had, under the earlier authority of R v Way, been required to ask whether there were reasons to depart from the standard non-parole period, effectively giving that figure undue primacy. The High Court in Muldrock clarified that the standard non-parole period is merely a legislative guidpost and that a sentencing judge must engage in a genuine instinctive synthesis of all relevant factors.

The Court found it unnecessary to resolve definitively whether a Muldrock error had occurred, because even on the assumption that it had, a re-exercise of the sentencing discretion would not produce a lesser sentence. The offence was serious: it involved a physical struggle, the victim was 17 years old, and the applicant committed the offence while on conditional liberty, which constituted a statutory aggravating factor. The applicant's subjective case was not compelling, and the comparison with other decided cases did not support a conclusion that his sentence was excessive.

The Court rejected the applicant's attempt to use a small sample of comparable cases to demonstrate that his sentence was too severe, noting that there is no single "right" sentence for any offence and that the cases relied upon were factually distinguishable in ways that favoured those offenders. No substantial injustice was established, and the application had insufficient prospects of success to justify the considerable extension of time sought.

Orders Made

  • The application for extension of time was dismissed.

Key Takeaways

  • The principle of finality applies to sentence appeals in the same way it applies to conviction appeals, and the High Court's decision in Muldrock does not automatically entitle a sentenced person to an extension of time to appeal.
  • An application for extension of time requires consideration of all relevant factors: the length and reasons for the delay, the interests of the community and the victim, and whether substantial injustice would result from a refusal.
  • A "Muldrock error" arises where a sentencing judge treated the standard non-parole period as a determinative or primary benchmark rather than as one legislative guidepost among many factors to be synthesised in the sentencing exercise.
  • Even where a Muldrock error is assumed, the Court must still determine under s 6(3) of the Criminal Appeal Act 1912 whether a lesser sentence is warranted in law before granting relief. No error in process compels a different outcome if the original sentence falls within the appropriate range.
  • Comparing a small number of decided cases to argue that a sentence is excessive is an approach the Court of Criminal Appeal treated with caution, noting that there is a range of appropriate sentences rather than a single correct answer for any given offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A(2), 54B, 54D
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 10
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Rules, rr 3A, 3B

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Montero v R [2013] NSWCCA 214
- Graham v R [2008] NSWCCA 174
- Dionnet v R [2009] NSWCCA 85
- Ali v R [2010] NSWCCA 35
- Philopos v R [2008] NSWCCA 66
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- Baxter v R [2007] NSWCCA 237
- Lawrence v R (1980) 1 NSWLR 122