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Court of Criminal Appeal 14 November 2013

Kentwell v Regina

[2013] NSWCCA 266

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPEAL ASSERTED MULDROCK ERROR WHERE MULDROCK ERROR ESTABLISHED SENTENCE PAROLE PERIOD

Citation: Kentwell v Regina [2013] NSWCCA 266
Court: Court of Criminal Appeal, New South Wales
Date: 14 November 2013
Judges: Hoeben CJ at CL, Johnson J, Bellew J (majority judgment by Bellew J)

Background

The applicant was convicted in 2008 of two counts of sexual intercourse without consent, as well as causing grievous bodily harm, malicious destruction of property, and common assault, all arising from conduct against his intimate partner. On both occasions, sustained physical violence preceded the sexual assaults. The sentencing judge imposed an aggregate sentence of 12 years imprisonment, comprising a non-parole period of 8 years and an additional term of 4 years, with the applicant's earliest release date set for April 2016.

The applicant sought an extension of time to seek leave to appeal against his sentence, having been sentenced in February 2009 but not filing his notice of application until June 2013. The delay arose partly from a transition between legal representatives and a refused legal aid application, with a potential "Muldrock error" in the sentence only identified by his solicitor in August 2012. The Crown opposed the extension.

A "Muldrock error" refers to a sentencing error identified by the High Court in Muldrock v The Queen (2011) 244 CLR 120, where a judge treats a standard non-parole period as a statutory benchmark or dominant factor rather than as one of several indicators of the appropriate sentence.

  • Whether the applicant should be granted an extension of time in which to seek leave to appeal against his sentence
  • Whether the sentencing judge committed a Muldrock error in applying the standard non-parole period
  • Whether the sentencing judge erred in extending the additional term to reflect special circumstances rather than reducing the non-parole period
  • Whether the sentencing judge erred in assessing the psychiatric evidence
  • Whether the sentencing judge erred in imposing a fixed term of imprisonment for count 4, an offence carrying a standard non-parole period
  • Whether the applicant's relationship with the victim operated as a mitigating factor
  • Whether, notwithstanding any errors, the overall sentence resulted in substantial injustice

Decision

The Court identified several errors in the original sentence. The sentencing judge erred in the mechanics of applying special circumstances by extending the additional term rather than reducing the non-parole period. The judge also erred in assessing the psychiatric evidence and in imposing a fixed term of imprisonment for count 4, an offence for which the legislation prescribed a standard non-parole period, meaning a non-parole period and balance of term should have been set.

On the Muldrock question, the Court found that the sentencing judge had indeed erred in treating the standard non-parole period as a more dominant consideration than was permitted following the High Court's clarification in Muldrock. This constituted established error.

The Court then considered whether the applicant's relationship with the victim mitigated the seriousness of the sexual offending. Relying on R v Edigarov and R v Hamid, the Court held that the domestic violence context was a significant factor cutting against mitigation. The physical assaults preceding each rape were serious, unprovoked, and unwarranted, and the relationship between the parties did not reduce the gravity of the offending.

Despite identifying multiple errors, the Court found that none of the matters advanced, including the applicant's mental illness, supported a conclusion that the sentence resulted in substantial injustice or that some other sentence was warranted in law. Accordingly, the extension of time was refused.

Orders Made

  • The application for an extension of time was dismissed.

Key Takeaways

  • Establishing a Muldrock error is not, by itself, sufficient to secure an extension of time to appeal: the applicant must also demonstrate that the error produced substantial injustice or that a different sentence was warranted in law.
  • Where an offence carries a standard non-parole period, imposing a fixed term of imprisonment for that offence is an error; a formal non-parole period and balance of term must be set.
  • The correct approach to a finding of special circumstances is to reduce the non-parole period, not to extend the additional term of imprisonment.
  • A prior intimate relationship between an offender and a victim does not operate as a mitigating factor where the sexual offending occurs in the context of serious domestic violence; courts must treat such offending with significant seriousness and apply strong elements of personal and general deterrence.
  • In dismissing the application, the Court of Criminal Appeal confirmed that multiple sentencing errors may still fall short of the threshold needed to justify appellate intervention if the overall sentence is not shown to be unjust.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(2), 61, 61I, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Abdul v R [2013] NSWCCA 247
- R v Edigarov (2001) 125 A Crim R 551
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- NM v R [2012] NSWCCA 215
- Norman v R [2012] NSWCCA 230
- AM v R [2012] NSWCCA 203
- Mansour v R; Hughes v R [2013] NSWCCA 35
- Mammone v R [2013] NSWCCA 95
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Baxter v R (2007) 173 A Crim R 204
- Collier v R [2012] NSWCCA 213
- SGJ v R; KU v R [2008] NSWCCA 258
- R v Hemsley [2004] NSWCCA 28
- R v Qutami (2001) 127 A Crim R 369
- Hristovski v R [2010] NSWCCA 129