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7
Court of Criminal Appeal 8 November 2013

MB v R

[2013] NSWCCA 254

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER CONTRARY TO S18 CRIMES ACT 1900 DELAY OF OVER 6 YEARS PRINCIPLE OF FINALITY APPLICANT AGED 16 AT TIME OF OFFENCE

Citation: MB v R [2013] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 8 November 2013
Judge(s): Hoeben CJ at CL, Johnson J, Bellew J

Background

The applicant was convicted by jury in 2006 of murder under s 18 of the Crimes Act 1900, committed when he was 16 years and two weeks old. The offence arose from a street confrontation in which the applicant broke a bottle and used it to stab the deceased in the neck, severing his throat. The deceased, a 20-year-old Air Force member, died at the scene.

Howie J sentenced the applicant to a non-parole period of 15 years and 6 months, with a balance of term of 6 years and 6 months. More than six years later, the applicant sought an extension of time to appeal that sentence on two grounds: error in applying the standard non-parole period in light of the High Court's later decision in Muldrock v The Queen, and manifest excess.

  • Whether an extension of time of over six years should be granted, given the principle of finality of sentences
  • Whether the sentencing judge had committed "Muldrock error" by giving excessive weight to the standard non-parole period and engaging in an impermissible two-stage sentencing process
  • Whether insufficient weight was given to the applicant's age of 16 at the time of the offence
  • Whether substantial injustice within the meaning of s 6(3) of the Criminal Appeal Act 1912 would result if the extension were refused

Decision

Both parties accepted that Muldrock error had occurred: the sentencing judge had given the standard non-parole period of 20 years excessive weight and had followed a two-stage process that the High Court later condemned. That concession was significant, but it did not automatically resolve whether the delay of over six years should be excused. The court noted that the principle of finality ordinarily weighs heavily against late appeals.

The court resolved that question by examining whether a "substantial injustice" under s 6(3) of the Criminal Appeal Act 1912 would result if the extension were refused. Hoeben CJ at CL concluded that it would, because the sentencing judge had given insufficient weight to the applicant's youth. At 16, the applicant's immaturity and poor impulse control were identified as contributors to the offending, and the court confirmed that the standard non-parole period system is not designed to apply to young offenders.

The court balanced those considerations against the nature of the offence. Murder committed with a weapon in a public street by a group of young men required that general deterrence be accorded substantial weight, even given the applicant's age, consistent with the approach in AI v R and KT v R. Nonetheless, the court found that a lesser non-parole period was clearly warranted once the standard non-parole period was properly set aside and full weight was given to youth.

The court resentenced the applicant, reducing the non-parole period from 15 years and 6 months to 12 years and 6 months, with a balance of term of 5 years. All three judges were in agreement.

Orders Made

  • Extension of time granted to bring an application for leave to appeal against sentence
  • Leave to appeal against sentence granted
  • Sentence imposed by Howie J on 10 November 2006 quashed
  • Applicant resentenced to imprisonment with a non-parole period of 12 years and 6 months, commencing 8 July 2005 and expiring 7 January 2018, with a balance of term of 5 years expiring 7 January 2023; earliest parole eligibility date is 7 January 2018

Key Takeaways

  • The Court of Criminal Appeal confirmed that Muldrock error (excessive reliance on the standard non-parole period combined with a two-stage sentencing approach) can support a sentence appeal even where the delay in bringing that appeal exceeds six years, provided substantial injustice would otherwise result.
  • Under s 6(3) of the Criminal Appeal Act 1912, the question of whether substantial injustice is likely is central to whether the principle of finality yields to the interests of the applicant; here, the inadequate treatment of the applicant's youth tipped that balance.
  • A finding that the standard non-parole period system does not apply to young offenders does not automatically reduce the weight given to general deterrence; where street violence by groups of young people is involved, general deterrence still warrants substantial weight even for a 16-year-old offender.
  • Immaturity and poor impulse control in a juvenile offender are mitigating factors that must receive genuine and full weight at sentencing, not merely acknowledgment.
  • In resentencing, the court reduced the non-parole period by three years, reflecting the cumulative effect of Muldrock error and the failure to properly account for the applicant's age at the time of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- AI v R [2011] NSWCCA 95
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- TM v R [2008] NSWCCA 158
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- MB v R [2009] NSWCCA 200
- R v MB [2006] NSWSC 1164