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Court of Criminal Appeal 14 November 2013

Radi v R

[2013] NSWCCA 278

Drugs
CRIMINAL LAW SENTENCE APPEAL APPLICANT SENTENCED IN JUNE 2009 IMPORTANCE OF PRINCIPLE OF FINALITY "MULDROCK ERROR" ESTABLISHED NO LESSER SENTENCE WARRANTED IN LAW

Citation: Radi v R [2013] NSWCCA 278
Court: Court of Criminal Appeal, NSW
Date: 14 November 2013
Judges: Hoeben CJ at CL; Johnson J; Latham J

Background

The applicant was convicted by jury of supplying a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). On 23 June 2009, he was sentenced in the District Court to a total term of 10 years imprisonment, with a non-parole period of 7 years. By the time this application was heard, the applicant's earliest parole eligibility date was approximately five and a half months away.

The applicant had originally filed a Notice of Intention to Appeal in June 2009 but allowed it to lapse by May 2010, having previously pursued only an appeal against conviction (which was dismissed). In January 2013, he sought a review of his file through Legal Aid and filed a fresh application in July 2013, seeking an extension of time to appeal against sentence.

The sole ground of appeal was that the sentencing judge had committed "Muldrock error": giving excessive weight to the standard non-parole period and applying a two-stage sentencing process, contrary to the High Court's guidance in Muldrock v The Queen [2011] HCA 39.

  • Whether the applicant should be granted an extension of approximately four years within which to seek leave to appeal against sentence, in circumstances where the only change since the original sentencing was the Muldrock decision
  • Whether "Muldrock error" was established in the original sentencing
  • Whether, under s 6(3) of the Criminal Appeal Act 1912 (NSW), a lesser sentence was warranted in law such that refusing the extension would cause substantial injustice

Decision

Both parties accepted that Muldrock error had occurred: the sentencing judge had given excessive weight to the standard non-parole period and employed a two-stage sentencing process. Despite this concession, the Court emphasised that the existence of Muldrock error does not automatically entitle an applicant to an extension of time. The principle of finality weighs heavily against extensions, particularly where the delay is substantial and the explanation is unpersuasive.

The Court found the delay of approximately four years to be significant, and the explanation for it unconvincing. It inferred that when lawyers were retained for the conviction appeal, a deliberate decision had been made not to pursue a sentence appeal, likely because prospects were insufficient. The only new circumstance was the Muldrock decision itself, which the Court considered insufficient on its own to overcome the finality principle.

Turning to s 6(3), the Court conducted a re-exercise of the sentencing discretion to determine whether a lesser sentence was warranted in law. The offence involved 991 grams of methylamphetamine at 74 percent purity, just 9 grams below a "large commercial quantity", with a street value of up to approximately $495,000. Although the sentencing judge had assessed the applicant's role as that of a courier and placed the offence below mid-range in objective seriousness, those findings did not, in the Court's view, lead to the conclusion that the sentence was excessive.

The applicant's statistical evidence, drawn from 127 comparable cases, showed his sentence was on the high side but plainly within range. The Court reiterated that sentencing consistency requires consistency in the application of legal principles, not numerical equivalence across cases. The applicant's positive prison conduct was noted but did not warrant a lesser sentence, particularly given how little of the sentence remained. The Court concluded that even if time were extended and leave granted, s 6(3) would not support a lesser sentence, making an extension futile.

Orders Made

  • Application for extension of time dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an established Muldrock error does not, by itself, entitle an applicant to an extension of time to appeal against sentence: the principle of finality remains a significant countervailing consideration.
  • Where a substantial, inadequately explained delay exists, the question of whether a lesser sentence is warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW) becomes the determinative issue in the extension application.
  • In re-exercising the sentencing discretion, the Court of Criminal Appeal confirmed that bare sentencing statistics carry limited weight. Sentencing consistency refers to consistency in applying legal principles, not mathematical equivalence across cases (citing Hili v The Queen and Vandeventer v R).
  • Positive post-sentence conduct, while relevant, will not of itself demonstrate that a lesser sentence is warranted in law, particularly when little of the sentence remains to be served.
  • A finding that the extension would be futile (because no lesser sentence could be justified under s 6(3)) is a sufficient basis to dismiss the application without determining the extension question on its merits.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Vandeventer v R [2013] NSWCCA 33
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- R v Niketic [2002] NSWCCA 425
- Radi v R [2010] NSWCCA 265