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Court of Criminal Appeal 14 November 2013

AG v R

[2013] NSWCCA 264

Sexual offences
CRIMINAL LAW APPEAL APPLICATION FOR EXTENSION OF TIME SO CALLED MULDROCK ERROR NO ERROR MADE OUT CRIMINAL LAW APPEAL

Citation: AG v R [2013] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 14 November 2013
Judges: Hoeben CJ at CL, Johnson J, Bellew J

Background

The applicant pleaded guilty in 2009 to three counts of serious sexual offending against his two daughters, aged six and four at the time. The offending included attempted sexual intercourse, sexual intercourse, and an indecent assault. Both victims were developmentally delayed. The applicant himself was described as mentally retarded.

The applicant was sentenced to a total of 13 years and 6 months imprisonment, with a non-parole period of 10 years and 6 months. He did not initially appeal because his then-legal representative advised him there was no utility in doing so and that an appeal would result in a longer sentence.

In early 2013, the applicant obtained fresh advice from Legal Aid NSW, was told his sentence may have merit for appeal, and ultimately filed a Notice of Application for leave to appeal in June 2013. The Crown opposed the grant of an extension of time.

  • Whether the applicant was entitled to an extension of time to seek leave to appeal, given the significant delay since sentencing
  • Whether the sentencing judge had committed a "Muldrock error" by treating the standard non-parole period as a primary or determinative factor rather than as a guide (as required by Muldrock v R [2011] HCA 39)
  • Whether the sentencing judge had erred in failing to apply the correct principles relating to intellectually disabled offenders, specifically by not giving adequate weight to reduced moral culpability and the diminished relevance of general deterrence for such offenders
  • If error was established, what sentences should be substituted on re-sentencing

Decision

Extension of time: The Court granted the extension. The applicant had been given erroneous advice following sentence, which explained the delay. That advice formed a sufficient basis to justify departure from the ordinary time limits, notwithstanding the Crown's opposition.

Muldrock error: The Court rejected the submission that the sentencing judge had adopted an impermissible two-stage approach by treating the standard non-parole period as primary or determinative. Examining the sentencing remarks as a whole, the Court was not satisfied that any Muldrock error was established on this ground.

Error in applying principles for mentally disabled offenders: The Court found that the sentencing judge had erred in a different but significant respect. The judge had failed to correctly apply the established principles governing mentally ill or intellectually disabled offenders. Those principles require a reduction in moral culpability and recognition that general deterrence carries diminished weight when an offender's intellectual disability has a causative connection to the offending. This error was made out and justified intervention.

Re-sentencing: The Court quashed all three sentences and re-sentenced the applicant. In doing so, it applied the amended provisions of the Crimes (Sentencing Procedure) Act, took the standard non-parole periods into account as required, and recorded reasons for the non-parole periods selected. The aggregate sentence was reduced, with the applicant becoming eligible for parole on 16 October 2016 and the total sentence expiring on 16 October 2019.

Orders Made

  • Extension of time in which to seek leave to appeal against sentence granted
  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence on count 1 (attempted sexual intercourse) quashed; fixed term of 5 years substituted, commencing 17 October 2008 and expiring 16 October 2013
  • Sentence on count 2 (sexual intercourse with child under 10) quashed; non-parole period of 6 years substituted, commencing 17 October 2010 and expiring 16 October 2016, with an additional term of 3 years expiring 16 October 2019
  • Sentence on count 3 (indecent assault) quashed; non-parole period of 4 years substituted, commencing 17 October 2009 and expiring 16 October 2013, with an additional term of 12 months expiring 16 October 2014
  • Applicant eligible for release on parole on 16 October 2016; aggregate sentence to expire 16 October 2019

Key Takeaways

  • Erroneous post-sentence advice from a legal representative, which discouraged a timely appeal, can constitute a sufficient explanation for delay to justify an extension of time in which to seek leave to appeal.
  • A Muldrock error is not made out merely because a sentencing judge refers to the standard non-parole period or mentions reasons for departing from it. The sentencing remarks must be read as a whole to determine whether the standard non-parole period was in fact given primary or determinative weight.
  • Where an offender's intellectual disability has a causative connection to the offending, established sentencing principles require a reduction in moral culpability and a reduced emphasis on general deterrence. Failure to apply those principles correctly constitutes a sentencing error warranting appellate intervention.
  • In dismissing the Muldrock ground but upholding a separate error regarding intellectual disability, the Court of Criminal Appeal confirmed that multiple distinct grounds may be raised in a sentence appeal and that each must be evaluated on its own merits.
  • On re-sentencing, the Court applied the amended provisions of the Crimes (Sentencing Procedure) Act governing standard non-parole periods, demonstrating the court's obligation to apply the legislation as it stood at the time of re-sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66B, 61M(2)
- Crimes (Sentencing Procedure) Act (NSW), s 54B
- Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act (NSW) 2013

Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Abdul v R [2013] NSWCCA 247
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Zreika v R [2012] NSWCCA 44
- Aldous v R [2012] NSWCCA 153
- Aslett v R [2012] NSWCCA 235
- Essex v R [2013] NSWCCA 11
- R v Mooney (Court of Appeal (Vic), 21 June 1978, unreported)