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Court of Criminal Appeal 18 November 2013

O'Grady v Regina

[2013] NSWCCA 281

Theft & property
CRIMINAL LAW APPEAL ERROR ESTABLISHED CRIMINAL LAW APPEAL WHERE OFFENCE COMMITTED IN COMPANY NO LESSER SENTENCE WARRANTED IN LAW

Citation: O'Grady v Regina [2013] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 18 November 2013
Judges: Hoeben CJ at CL, Johnson J, Bellew J (judgment delivered by Bellew J, with whom the others agreed)

Background

The applicant had been convicted after trial of specially aggravated break and enter under s 112(3) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 8 years. The offence involved a home invasion at a Wolli Creek apartment in May 2008, committed in company with two others. The victim, who was alone at home, sustained significant injuries including lacerations requiring suturing and a fractured orbital floor, and was hospitalised for several days.

The sentencing judge found that the applicant was the orchestrator of the offence: he had identified the victim's premises, was motivated by a dispute over a drug deal, and had equipped himself with a screwdriver to force entry. He was sentenced to a non-parole period of 5 years and 6 months, with an additional term of 3 years and 6 months. A prior appeal against conviction was dismissed by the Court of Criminal Appeal in 2012.

In 2013, the applicant was advised that the sentencing judge's approach may have involved a so-called "Muldrock error," and he applied for an extension of time to seek leave to appeal against sentence. The Crown opposed the extension.

  • Whether the sentencing judge erred by adopting a two-stage approach to the standard non-parole period, contrary to the principles established in Muldrock v R (2011) 244 CLR 120.
  • Whether, if a Muldrock error was established, an extension of time should be granted because the applicant would suffer substantial injustice if the sentence was allowed to stand.
  • Whether the overall sentence was within the appropriate range such that no lesser sentence was warranted in law.

Decision

The Court accepted that the sentencing judge had applied a two-stage approach: first identifying the standard non-parole period as a benchmark, then considering whether reasons existed to depart from it. This approach, consistent with R v Way at the time of sentencing, was subsequently identified as erroneous by the High Court in Muldrock. The Crown conceded the error. Accordingly, the Court found that a Muldrock error was established.

However, establishing the error was not sufficient on its own to warrant an extension of time. The Court went on to consider whether the sentence actually imposed was nonetheless within the appropriate range, and whether any substantial injustice had resulted from the error.

The Court examined the circumstances of the offending in detail. The applicant was the orchestrator of a targeted home invasion involving serious violence against the victim in his own home. None of the sentencing judge's specific findings, including the applicant's role as orchestrator, his possession of a break-in implement, and his identification of the premises, were challenged on appeal. The Court noted the consistent judicial statements that home invasions are a serious social evil warranting condign punishment, citing R v Hayes and Palijan v R.

Taking all circumstances into account, including the applicant's personal background (he had witnessed a partner's murder and developed PTSD), his age of 23 at the time of offending, and his limited criminal history, the Court concluded that no lesser sentence was warranted in law. The error therefore produced no substantial injustice, and the extension of time was refused.

Orders Made

  • The application for an extension of time is dismissed.

Key Takeaways

  • A Muldrock error was established where the sentencing judge applied the two-stage R v Way approach, treating the standard non-parole period as a starting point before considering reasons for departure, rather than treating it as a guidepost in a holistic sentencing exercise.
  • Establishing a Muldrock error does not automatically entitle an applicant to an extension of time to appeal: the Court must also be satisfied that the sentence imposed resulted in substantial injustice, or that a different sentence is warranted in law.
  • In dismissing the application, the Court of Criminal Appeal reaffirmed that offending involving forced entry into a person's home and violence against the occupant attracts serious condemnation and is deserving of substantial sentences.
  • Unchallenged findings that an applicant was the orchestrator of a home invasion, including evidence of premeditation and preparation, are highly relevant to the objective seriousness of the offence and can support a sentence below the standard non-parole period without producing appealable error.
  • Personal mitigating factors, including psychological trauma and a limited criminal history, were considered but were insufficient to bring the sentence outside the appropriate range in the context of a serious home invasion causing significant injury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A
- Criminal Appeal Act 1912 (NSW)

Cases
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Abdul v R [2013] NSWCCA 247
- O'Grady v R [2012] NSWCCA 62
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Palijan v R [2010] NSWCCA 142
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- R v Hayes [1984] 1 NSWLR 740