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Court of Criminal Appeal 12 November 2013

Tan v R

[2013] NSWCCA 262

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPLICANT SENTENCED IN DECEMBER 2008 IMPORTANCE OF PRINCIPLE OF FINALITY NO LESSER SENTENCE WARRANTED IN LAW

Citation: Tan v R [2013] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 12 November 2013
Judges: Hoeben CJ at CL, Johnson J, Bellew J

Background

The applicant was convicted by jury in October 2008 of inflicting grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900, and of assault occasioning actual bodily harm, contrary to s 59(1). Both offences were committed against the same victim, a Malaysian woman with whom the applicant had been living in Sydney. The offending involved sustained, brutal physical assaults over a period of weeks, including punching the victim repeatedly to the face with full force, striking her with a steel clothes-stand and the blunt side of a cleaver, and choking her with a belt. She sustained bilateral orbital floor fractures requiring surgery.

The sentencing judge in December 2008 imposed a fixed term of three years for the assault occasioning actual bodily harm, and for the s 33(1)(b) offence, a non-parole period of six years with a balance of term of four years. The total effective sentence carried a non-parole period of seven years.

Approximately five years after sentence, the applicant sought an extension of time to apply for leave to appeal against the severity of the s 33(1)(b) sentence. The application was opposed by the Crown.

  • Whether the High Court's decision in Muldrock v The Queen [2011] HCA 39 entitled the applicant to an extension of time to appeal a sentence imposed nearly five years earlier.
  • Whether a "Muldrock error" had occurred in the original sentencing, specifically whether the sentencing judge gave primary significance to the standard non-parole period using an impermissible two-stage approach.
  • Whether a substantial injustice would result from refusing the extension of time, having regard to the principle of finality and the prospects of success of the underlying appeal.
  • Whether, if Muldrock error was established, re-exercise of the sentencing discretion would produce a lesser sentence warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Decision

Both parties accepted that a Muldrock error had occurred: the sentencing judge had adopted a two-stage approach and accorded primary significance to the standard non-parole period of seven years. The court therefore turned to whether that conceded error was sufficient, in the circumstances, to justify granting a significant extension of time.

The court assessed the prospects of the appeal on a re-exercise of sentencing discretion, taking into account the full picture of the offending and the applicant's subjective circumstances. The offences were objectively very serious. The s 33(1)(b) offence was not an isolated act but a deliberate, methodical assault lasting approximately an hour, involving multiple weapons and threats to kill. The court noted that this offending formed part of a broader course of conduct and represented a significant escalation from the earlier assault.

The court found the applicant's subjective case offered limited mitigation. He had no prior criminal record and had shown some post-offence cooperation, but the court noted that his primary post-sentence complaint, isolation from family due to imprisonment overseas, is an inevitable consequence of a foreign national imprisoned in Australia. Considerations of specific and general deterrence carried particular weight given the domestic violence context, consistent with prior Court of Criminal Appeal authority.

Concluding that no lesser sentence would be warranted in law even accounting for the Muldrock error, the court held that the application had insufficient prospects of success to justify the substantial extension of time sought. No substantial injustice arose from a refusal, and the principle of finality weighed against granting the extension.

Orders Made

  • Application for extension of time dismissed.

Key Takeaways

  • Conceding a Muldrock error does not automatically entitle an applicant to an extension of time to appeal a sentence; the court must still assess whether the appeal has sufficient prospects of success and whether substantial injustice would result from refusal.
  • The principle of finality carries significant weight when a substantial delay separates the original sentence from the application for extension of time.
  • Under s 6(3) of the Criminal Appeal Act 1912, even where a sentencing error is established, the Court of Criminal Appeal will only intervene if a lesser sentence is warranted in law on a re-exercise of the sentencing discretion.
  • Domestic violence offending, particularly where sustained and methodical, attracts substantial weight for both specific and general deterrence in the sentencing exercise, consistent with established Court of Criminal Appeal authority.
  • The hardship of separation from family caused by imprisonment abroad does not, of itself, constitute significant mitigation where that separation is a natural consequence of a foreign national's incarceration following offending in Australia.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 59(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Key Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Martin v R [2011] NSWCCA 188
- Hamid v R [2006] NSWCCA 303; 164 A Crim R 179
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Zarakas v R [2013] NSWCCA 144
- Franklin v R [2013] NSWCCA 122
- Butler v R [2012] NSWCCA 23
- AM v R [2012] NSWCCA 203