Citation: George v R [2013] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 12 November 2013
Judges: Hoeben CJ at CL, Johnson J, Latham J
Background
The applicant had pleaded guilty in 2009 to causing grievous bodily harm with intent to murder under s 27 of the Crimes Act 1900 (NSW). The offence involved shooting a former partner in the back of the head in a laneway, leaving her with permanent and severe disabilities including total right-side vision loss, lifelong mobility impairment, speech difficulties, and bullet fragments permanently lodged near her brain stem. The sentencing judge in the District Court imposed a non-parole period of 11 years and 5 months, with a balance of term of 3 years and 9 months, after applying an 18 percent discount for the guilty plea.
More than four years after sentencing, the applicant sought an extension of time to appeal against the severity of his sentence. He relied on the High Court's 2011 decision in Muldrock v The Queen [2011] HCA 39, which clarified how standard non-parole periods were to be applied in sentencing, arguing the sentencing judge had applied an incorrect methodology.
The Crown opposed the extension of time and also disputed that any "Muldrock error" had in fact occurred. The Crown further contended that, even if error were found, no lesser sentence was warranted in law.
Legal Issues
- Whether the applicant was entitled to an extension of time to seek leave to appeal against his 2009 sentence, given the significant delay since sentencing
- Whether the sentencing judge committed "Muldrock error" by treating the standard non-parole period as a primary reference point rather than one of two of equal significance
- Whether, under s 6(3) of the Criminal Appeal Act 1912 (NSW), a lesser sentence was warranted in law
- What weight the principle of finality of sentence should carry when weighed against the risk of substantial injustice
Decision
The Court of Criminal Appeal dismissed the application for an extension of time. Hoeben CJ at CL examined the sentencing judge's remarks in detail and found that, while the judge had referred to the standard non-parole period, he had not used it as the central or dominant organising principle of the sentence. The sentencing judge had correctly identified the offence as well above mid-range, assessed objective seriousness independently, and then used the standard non-parole period as a guidepost rather than a starting point. The Court was not persuaded that Muldrock error had been established.
Even assuming some error in approach could be identified, the Court found that no lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912. The objective gravity of the offence was extreme, the victim's injuries were catastrophic and permanent, and the sentencing judge had correctly characterised the conduct as upper-range criminality. The applicant's reliance on sentencing statistics was also rejected: statistics, the Court noted, do not demonstrate error, particularly where they reveal nothing about the individual circumstances of cases within a category.
The principle of finality was treated as a weighty consideration. The Court found no substantial injustice that would justify reopening a sentence imposed more than four years earlier, especially where the applicant had received a significant discount for his plea, the sentencing judge had carefully considered subjective matters including a difficult upbringing, and the sentence itself was well within an appropriate range.
Latham J added a notable observation about methodology. Her Honour cautioned against using descriptive metaphors such as "springboard," "benchmark," or "guidepost" as proxies for identifying or excluding Muldrock error. The actual error identified in Muldrock is a specific structural one: commencing with an assessment of whether the offence falls at the mid-range of objective gravity and then asking whether other factors justify departure from the standard non-parole period. Whether that error occurred must be assessed from the substance of the sentencing remarks, not from the metaphors used to describe the standard non-parole period.
Orders Made
- The application for an extension of time was dismissed.
Key Takeaways
- In dismissing the application, the Court of Criminal Appeal confirmed that the principle of finality carries substantial weight when an applicant seeks to reopen a sentence several years after it was imposed, particularly absent clear substantial injustice.
- "Muldrock error" is a specific methodological flaw: it arises where a sentencing judge treats assessment against the mid-range of objective gravity as the primary analytical step, rather than treating the standard non-parole period as one of two equally significant reference points alongside the maximum penalty.
- Descriptive metaphors used in sentencing remarks, such as "springboard," "benchmark," or "guidepost," are not determinative of whether Muldrock error occurred. The substance of the sentencing approach governs, not the language chosen to describe it.
- Sentencing statistics do not, of themselves, establish error. They provide no detail about the individual circumstances of cases within a category and cannot substitute for a proper assessment of objective seriousness against the statutory maximum.
- Under s 6(3) of the Criminal Appeal Act 1912, a court must be satisfied that a lesser sentence is warranted in law before substituting a new sentence, even where some error in the original sentencing approach is identified.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 27
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(1)
Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Williams v R [2012] NSWCCA 172
- Abdul v R [2013] NSWCCA 247
- Aldous v R [2012] NSWCCA 153
- Essex v R [2013] NSWCCA 11
- MA and Pham v R [2007] NSWCCA 240
- Zarakas v R [2013] NSWCCA 144
- Zreika v R [2012] NSWCCA 44