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9
Court of Criminal Appeal 14 November 2013

Black v R

[2013] NSWCCA 265

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL APPLICATION FOR EXTENSION OF TIME SO CALLED MULDROCK ERROR PAROLE PERIOD BEING HIGHLY RELEVANT ERROR NOT ESTABLISHED CRIMINAL LAW

Citation: Black v R [2013] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 14 November 2013
Judge(s): Hoeben CJ at CL, Johnson J, Bellew J

Background

The applicant was convicted by jury of four counts of aggravated sexual assault, two counts of assault with an act of indecency, and one count of inciting an act of indecency, all arising from a serious home invasion and sustained sexual assault against a female acquaintance in March 2006. The sentencing judge imposed a total term of 14 years' imprisonment with a non-parole period of 9 years and 6 months.

The applicant filed a notice of intention to appeal against conviction and sentence in late December 2008, but legal aid was refused and not communicated to him until April 2010. He proceeded to argue his conviction appeal unrepresented, which was dismissed. In early 2013, a solicitor advised him that a sentence appeal on "Muldrock error" grounds had reasonable prospects of success, leading to the present application.

The applicant sought an extension of time in which to seek leave to appeal against sentence. The Crown opposed the extension. The application raised two grounds: first, that the sentencing judge made a "Muldrock error" by treating the standard non-parole period as "highly relevant"; and second, that the judge had wrongly imposed fixed terms of imprisonment for offences carrying a prescribed standard non-parole period.

  • Whether the sentencing judge committed a "Muldrock error" by treating the standard non-parole period as highly relevant, rather than as a guidepost, when imposing sentence for the aggravated sexual assault counts
  • Whether the imposition of fixed terms of imprisonment for offences that carried a prescribed standard non-parole period constituted an error
  • Whether, even if error were established on either ground, a lesser sentence was warranted in law such that an extension of time should be granted

Decision

On the first ground, the Court found no Muldrock error was established. Although the sentencing judge did refer to the standard non-parole period as "highly relevant," the Court applied the settled principle that remarks on sentence must be read as a whole, not in isolation. When the remarks were read in full, it was apparent that the judge engaged in the correct two-stage sentencing process and did not treat the standard non-parole period as a numerical formula or determinative benchmark in the manner condemned in Muldrock v R (2011) 244 CLR 120.

On the second ground, the Court accepted that the imposition of fixed terms for the aggravated sexual assault counts (counts 1, 2 and 6) was a legal error. Offences under s 61J of the Crimes Act 1900, which carried a prescribed standard non-parole period, required the sentencing court to set both a non-parole period and a balance of term rather than a single fixed term.

However, the Court concluded that no lesser sentence was warranted in law on either ground. The sentencing judge had comprehensively considered the applicant's subjective case, balanced it against the gravity and premeditated nature of the offending, and correctly identified general deterrence as a significant factor. The offending was described as repeated, degrading, and terrifying for the victim, and the overall sentence was not shown to be unjust. Because no lesser sentence was warranted, the extension of time was dismissed.

Orders Made

  • The application for an extension of time is dismissed.

Key Takeaways

  • A reference to the standard non-parole period as "highly relevant" does not automatically constitute a Muldrock error; the Court of Criminal Appeal confirmed that sentencing remarks must be read as a whole to determine whether the correct approach was in fact applied.
  • Imposing a fixed term of imprisonment for an offence that carries a prescribed standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 constitutes legal error, because such offences require the sentencing court to set a separate non-parole period and balance of term.
  • Even where a sentencing error is identified, an extension of time to appeal will be refused if no lesser sentence is warranted in law on the evidence before the court.
  • In dismissing the application, the Court emphasised that the applicant's maintenance of his innocence precluded any consideration of remorse or contrition, and that the premeditated and sustained nature of the offending called for condign punishment.
  • Statistical comparisons with other sentences carry limited weight in sentence appeals; the Court reiterated the caution with which any such analysis should be approached, consistent with earlier decisions including Vandeventer v R [2013] NSWCCA 77.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61L, 61N(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Muldrock v R (2011) 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Black v R [2013] NSWCCA 183
- Vandeventer v R [2013] NSWCCA 77
- FB v R; R v FB [2011] NSWCCA 217
- Lang v R [2013] NSWCCA 29
- Markarian v R [2005] HCA 25; (2006) 228 CLR 357
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Aslett v R [2012] NSWCCA 235
- Collier v R [2012] NSWCCA 213
- Essex v R [2013] NSWCCA 11
- Mammone v R [2013] NSWCCA 95
- Baxter v R (2007) 173 A Crim R 284
- Bellchambers v R [2011] NSWCCA 131
- Hristovski v R [2010] NSWCCA 129
- R v Nguyen [2013] NSWCCA 195
- R v Dunn [2004] NSWCCA 346
- SGJ v R; KU v R [2008] NSWCCA 258