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Court of Criminal Appeal 8 November 2013

Martin v R

[2013] NSWCCA 253

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL "MULDROCK ERROR" DELAY OF 5 YEARS PRINCIPLE OF FINALITY INSUFFICIENT PROSPECTS OF SUCCESS

Citation: Martin v R [2013] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 8 November 2013
Judge(s): Hoeben CJ at CL (lead judgment); Johnson J and Bellew J agreeing

Background

The applicant was convicted by jury of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) and sentenced in October 2008 to a total term of nine years imprisonment, comprising a seven-year non-parole period (equal to the standard non-parole period for the offence) and a two-year balance of term. The offence involved the applicant locking the victim in his car and raping her, knowing she was pregnant and in a relationship, partly as retribution for a drug money dispute.

Following sentencing, the applicant filed a notice of intention to appeal but did not proceed. Legal Aid NSW refused assistance in 2009, concluding the application lacked reasonable prospects of success. In 2013, after the High Court handed down Muldrock v The Queen [2011] HCA 39, the applicant sought a fresh legal aid review and ultimately filed an application for leave to appeal against sentence in June 2013, nearly five years after sentencing.

The sole ground of appeal was that the sentencing judge had committed "Muldrock error" by giving excessive weight to the standard non-parole period and adopting a two-stage sentencing process that the High Court later condemned. The Crown conceded that such error had occurred but opposed any lesser sentence being substituted.

  • Whether the Court should grant an extension of time of approximately five years to bring a sentence appeal, given the applicant's delay and the principle of finality
  • Whether, if the sentencing discretion were re-exercised following the conceded Muldrock error, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
  • Whether the sentence imposed fell within the appropriate range having regard to the objective criminality and the applicant's subjective circumstances

Decision

The Court agreed that Muldrock error had occurred: the sentencing judge had placed excessive weight on the standard non-parole period and engaged in a two-stage process disapproved by the High Court. However, the existence of legal error does not automatically justify an extension of time to appeal. The Court held that the delay of nearly five years was substantial and the explanation for it was not compelling, noting that the only change in circumstances since Legal Aid's 2009 refusal was the Muldrock decision itself.

The Court applied the principle of finality and weighed the potential for further psychological harm to the victim against granting the extension. It concluded that these considerations pointed firmly against allowing the matter to proceed. The decisive question was whether re-exercising the sentencing discretion would produce a lesser sentence, and the Court found it would not.

On the merits, the sentence imposed was assessed as sitting within range, albeit toward the higher end, consistent with the serious objective criminality. The Court acknowledged statistical sentencing data from the Judicial Commission but cautioned against treating such statistics as a binding constraint on the sentencing discretion. The cases cited by the applicant were distinguished on their facts. In the Court's assessment, allowing the appeal to proceed would not have sufficient prospects of success to justify the extension sought.

Orders Made

  • Application for extension of time dismissed

Key Takeaways

  • Conceding a Muldrock error is not sufficient, by itself, to secure an extension of time for a sentence appeal; the court must still assess whether re-exercising the sentencing discretion would produce a lesser sentence.
  • In dismissing the application, the Court of Criminal Appeal reaffirmed that the principle of finality carries real weight when a delay is substantial and the explanation for it is not compelling.
  • A five-year delay supported a finding of insufficient prospects of success where the underlying sentence remained defensible on the facts, notwithstanding the identified legal error in the original process.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), it is not enough to establish error in the sentencing approach; the appellate court must be persuaded that a lesser sentence is actually warranted in law before granting relief.
  • Judicial Commission statistics on sentencing ranges are a useful guide to trends but do not operate as a ceiling or floor for the exercise of the sentencing discretion; each sentence must be assessed on its own facts and circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Nguyen [2013] NSWCCA 195
- Lang, Dylan Craig v R [2013] NSWCCA 29