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Court of Criminal Appeal 8 November 2013

Kertai v R

[2013] NSWCCA 252

Sexual offences
CRIMINAL LAW WHETHER "MULDROCK ERROR" OCCURRED TWO YEAR DELAY PRINCIPLE OF FINALITY WHETHER SENTENCE MANIFESTLY EXCESSIVE INSUFFICIENT PROSPECTS OF SUCCESS

Citation: Kertai v R [2013] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 8 November 2013
Judge(s): Hoeben CJ at CL (with Johnson J and Bellew J agreeing)

Background

The applicant was convicted by jury of sexual intercourse with a child under 10, contrary to s 66A(2) of the Crimes Act 1900 (NSW), with the aggravating circumstance that the victim was under his authority. The victim was a five-year-old girl whose family trusted the applicant, a longstanding family friend. On the day in question, the applicant took the child fishing and digitally penetrated her genitals in the car, causing her pain.

On 24 June 2011, the applicant was sentenced in the District Court by Berman DCJ to 12 years imprisonment with a non-parole period of 7 years, backdated to 2 February 2010. The sentencing judge assessed the offence as falling slightly below the middle of the range of objective seriousness, taking into account the form and brief duration of the penetration alongside the very young age of the victim and a significant breach of trust.

The applicant sought an extension of time of just over two years to appeal against his sentence. A Notice of Intention to Appeal had been filed within time but was not pursued and lapsed. The applicant subsequently applied for legal aid and, following a review for potential "Muldrock error," these proceedings were brought before the Court of Criminal Appeal.

  • Whether an extension of time of approximately two years should be granted, having regard to the principles of delay and finality
  • Whether the sentencing judge committed "Muldrock error" by adopting a two-stage sentencing approach and giving determinative weight to the standard non-parole period
  • Whether the sentencing judge erred in his assessment of the objective gravity of the offence
  • Whether the sentence of 12 years with a 7-year non-parole period was manifestly excessive

Decision

On Muldrock error: The Court found that no Muldrock error was established. In Muldrock v The Queen (2011) 244 CLR 120, the High Court held that sentencing judges should not treat the standard non-parole period as a de facto starting point or give it determinative weight. The applicant argued the sentencing judge had done precisely that. The Court rejected this characterisation, finding that the sentencing judge had conducted a proper instinctive synthesis, treating the standard non-parole period as one of several relevant considerations rather than as a fixed benchmark.

On objective gravity: The Court was not persuaded that the sentencing judge erred in assessing objective seriousness. The applicant contended the offence should have been placed lower than "slightly below the middle" of the range. The Court held the judge had carefully considered the relevant features, including the very young age of the victim, the breach of trust, the applicant's prior similar offending, and his lack of remorse, and that the assessment was well open on the facts.

On manifest excess: The Court applied the test of whether the sentence was "unreasonable or plainly unjust," drawing on the plurality's formulation in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520. The Court was not satisfied that the sentence met that threshold, emphasising the extreme vulnerability of the five-year-old victim, the restricted circumstances in which the offending occurred, and the applicant's sole care of the child at the relevant time.

On the extension of time: Because none of the grounds of appeal were made out, the Court concluded it would be futile to grant the extension. Where Muldrock error is not established, there is no adequate explanation for the delay, and the principles of finality weigh more heavily against granting relief on the remaining grounds.

Orders Made

  • The application for an extension of time was dismissed.

Key Takeaways

  • No Muldrock error arises simply because a sentencing judge refers to the standard non-parole period; the question is whether the judge gave it determinative weight rather than treating it as one of several relevant sentencing factors.
  • Where a Muldrock error is not established in a late sentence appeal, the absence of that error removes the primary explanation for delay and strengthens the operation of the principle of finality against granting the extension.
  • In dismissing the application, the Court of Criminal Appeal confirmed that an assessment of objective seriousness is "well open" to a sentencing judge when it reflects a careful weighing of all relevant facts, even if a different assessment might also have been defensible.
  • Manifest excess requires the sentence to be "unreasonable or plainly unjust," not merely outside the range that another court might have selected; a marked difference from other sentences does not alone justify appellate intervention.
  • Futility is a relevant consideration in extension of time applications: where the grounds of appeal have insufficient prospects of success, the court may decline to grant the extension on that basis alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Abdul v R [2013] NSWCCA 247
- Zarakas v R [2013] NSWCCA 144
- Zreika v R [2012] NSWCCA 44
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Stanford v R [2007] NSWCCA 73
- Perry v R [2006] NSWCCA 351; 166 A Crim R 383
- Mulato v R [2006] NSWCCA 282
- R v Dang [2005] NSWCCA 430
- R v Fisher [2008] NSWCCA 103
- R v Ronald King [2009] NSWCCA 117