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Court of Criminal Appeal 9 December 2013

Ngati v R

[2013] NSWCCA 307

Theft & property
CRIMINAL LAW GUILTY PLEA PAROLE PERIOD WHETHER MULDROCK ERROR STANDARD NON APPLICATION REFUSED

Citation: Ngati v R [2013] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 09 December 2013
Judge(s): Hoeben CJ at CL, Johnson J, Latham J (unanimous)

Background

The applicant pleaded guilty to specially aggravated break, enter and steal arising from a violent home invasion at Macquarie Fields on 7 January 2007. The applicant, then aged 32, organised and participated in the attack with five other men, three of whom were juveniles. During the invasion, one victim was stabbed and wounded, another was repeatedly kicked and struck with a mattock handle, and a knife was held to a female victim's throat in front of children.

In April 2009, a District Court judge sentenced the applicant to 9 years' imprisonment with a non-parole period of 6 years and 7 months. The offence carries a maximum penalty of 25 years and a standard non-parole period (SNPP) of 7 years. At the time of the offence, the applicant was unlawfully at large and on parole for prior robbery offences.

Over four years later, the applicant sought an extension of time to seek leave to appeal his sentence. The sole ground was that the sentencing judge had erred in his approach to the SNPP, relying on the High Court's decision in Muldrock v The Queen [2011] HCA 39.

  • Whether the extension of time to appeal should be granted, having regard to the length of delay, the reasons for it, and whether substantial injustice would result from refusal
  • Whether the sentencing judge committed Muldrock error by treating the SNPP as having determinative significance or by adopting a prohibited two-stage sentencing approach
  • Whether the sentence actually imposed reflected impermissible reliance on the SNPP as a benchmark rather than a proper instinctive synthesis of all relevant factors

Decision

Latham J (with Hoeben CJ at CL and Johnson J agreeing) identified the correct test: in considering an extension of time, the applicant must establish that substantial injustice would follow from refusal, which in practice required assessing the prospects of success on appeal alongside the delay, reasons for it, and community interests. The only explanation for the delay of over four years was the applicant's awareness of the post-Muldrock review process within Legal Aid NSW.

On the merits, Latham J rejected the submission that the sentencing judge had committed Muldrock error. The judge's reasons contained only one reference to the SNPP, and that reference described it as a "benchmark or guidepost" after independently assessing that the offence fell above the mid-range of objective gravity. Latham J confirmed that Muldrock does not prohibit a court from considering where an offence sits in the range of objective gravity; rather, it prohibits commencing with the SNPP and adjusting up or down based on aggravating and mitigating factors.

The applicant's argument that the "neatness of the mathematics" demonstrated determinative reliance on the SNPP was rejected as "inscrutable." The applicant's own submissions acknowledged that multiple aggravating factors may well have pointed to a notional sentence exceeding 12 years, and the actual non-parole period of 6 years and 7 months sat below the 7-year SNPP. Latham J found it difficult to see how the SNPP could have had determinative significance in those circumstances.

The Court found no merit in the ground of appeal and refused the extension of time.

Orders Made

  • Application for extension of time within which to seek leave to appeal refused.

Key Takeaways

  • A finding that an offence falls "above the mid-range" of objective gravity, assessed independently of the SNPP, does not of itself constitute Muldrock error. The prohibition targets a two-stage approach commencing from the SNPP, not the act of locating the offence within a range of seriousness.
  • Where a sentencing judge's reasons contain only a single, passing reference to the SNPP and otherwise reflect a comprehensive consideration of all relevant objective and subjective factors, that reference will not readily be characterised as giving the SNPP "determinative significance."
  • In applications for extensions of time to appeal, the applicant bears the burden of demonstrating that substantial injustice would follow from refusal, which requires the court to assess the underlying merits alongside the length and explanation for the delay.
  • The Court of Criminal Appeal declined to draw inferences of sentencing error from matters external to the reasons on sentence, including retroactive mathematical analysis of the kind applied in Bolt v R.
  • Awareness of a post-Muldrock Legal Aid review process, without more, does not independently justify a multi-year delay in filing a notice of intention to appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A(1), and provisions relating to specially aggravated break, enter and steal

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Bolt v R [2012] NSWCCA 50
- R v Way (2004) 60 NSWLR 168