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Court of Criminal Appeal 18 November 2013

Weatherall v R

[2013] NSWCCA 282

Sexual offences
CRIMINAL LAW SENTENCE APPEAL APPLICANT SENTENCED IN SEPTEMBER 2007 IMPORTANCE OF PRINCIPLE OF FINALITY WHETHER "MULDROCK ERROR" HAD OCCURRED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Weatherall v R [2013] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 18 November 2013
Judges: Hoeben CJ at CL; Johnson J; Bellew J

Background

The applicant was convicted by jury of two counts of aggravated sexual intercourse in company (with deprivation of liberty before the offence), contrary to s 61JA of the Crimes Act 1900. The offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Both offences arose from a single episode in which the victim, a vulnerable drug addict seeking heroin, was detained in a terrace house in Redfern and forced to perform oral sex on the applicant and a co-offender. The applicant was identified as the ringleader and was present and actively involved throughout.

In September 2007, the applicant was sentenced to a total term of 15 years imprisonment with a non-parole period of 10 years. The sentence comprised two partially accumulated terms, reflecting the applicant's role as principal offender in the first count and as a principal in the second degree in the second. He did not appeal at the time.

More than six years later, the applicant sought an extension of time to apply for leave to appeal against sentence. He relied on the High Court's 2011 decision in Muldrock v The Queen, which had clarified the proper approach to standard non-parole period legislation, arguing the original sentencing judge had applied that legislation incorrectly.

  • Whether the applicant was entitled to an extension of time to appeal against sentence, having regard to the significant delay and the principle of finality
  • Whether the sentencing judge had committed "Muldrock error" by applying the standard non-parole period legislation incorrectly
  • Whether, even if Muldrock error occurred, s 6(3) of the Criminal Appeal Act 1912 would require a lesser sentence to be substituted
  • Whether the sentences imposed were manifestly excessive, individually or in combination
  • Whether the degree of accumulation between the two counts was justified

Decision

The Court first examined whether a Muldrock error had occurred. Hoeben CJ at CL found that, while the sentencing judge's remarks could be read as treating the standard non-parole period as a "guideline" rather than a "reference point" in the Muldrock sense, any such error was not material. The judge had in fact carefully assessed all relevant objective and subjective factors and arrived at sentences that were plainly appropriate on the facts.

The Court then considered whether, assuming error, s 6(3) of the Criminal Appeal Act 1912 required a lesser sentence. Section 6(3) requires the Court to dismiss a sentence appeal if it is not satisfied that a lesser sentence is warranted in law. Having regard to the extreme gravity of the offending, including the applicant's role as ringleader, his active presence throughout, his conduct in inviting others to participate, and the severe degradation of a vulnerable victim, the Court found that no lesser sentence was warranted.

On manifest excess, the Court rejected the submission that the sentences were disproportionate, noting that the objective seriousness of the offending was very high and that the subjective factors, including the applicant's background of disadvantage and reasonable rehabilitation prospects, had been appropriately weighed by the sentencing judge. The Court also rejected the totality argument: because each offence contributed independently to the victim's degradation, some degree of accumulation was necessary to reflect the total criminality, and a two-year accumulation was within the sentencing judge's discretion.

Since the appeal had no prospects of success, granting an extension of time would have been futile. The application was dismissed by all three judges.

Orders Made

  • The application for extension of time to appeal against sentence was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principle of finality carries significant weight when an applicant seeks a late extension of time to appeal, particularly where the delay is measured in years rather than days or weeks.
  • A finding of Muldrock error does not automatically entitle an applicant to a lesser sentence: under s 6(3) of the Criminal Appeal Act 1912, the Court must still be satisfied that a lesser sentence is warranted in law before substituting one.
  • Where offences arise from a single episode, the totality principle does not preclude accumulation. Each count that independently contributes to the victim's degradation or overall criminality may justify a degree of accumulated sentence.
  • In dismissing the manifest excess ground, the Court treated the applicant's role as ringleader, his active instigation and participation, and the particular vulnerability of the victim as factors placing the objective seriousness of the offending at the higher end of the range.
  • Granting an extension of time to appeal will be refused where the substantive appeal is bound to fail, as allowing it to proceed would serve no purpose.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61JA
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- King v R [2010] NSWCCA 33
- Qoro v R [2008] NSWCCA 220
- Abdul v R [2013] NSWCCA 247
- Butler v R [2012] NSWCCA 23
- Essex v R [2013] NSWCCA 11
- FP v R [2012] NSWCCA 182
- Franklin v R [2013] NSWCCA 122
- KG v R [2012] NSWCCA 10
- Zarakas v R [2013] NSWCCA 144