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Court of Criminal Appeal 9 December 2013

Brown v R

[2013] NSWCCA 309

Assault & violenceTheft & property
CRIMINAL LAW PLEA OF GUILTY WHETHER TRIAL JUDGE ADOPTED TWO PAROLE PERIOD NO MULDROCK ERROR NO HOUSE V THE KING ERROR

Citation: Brown v R [2013] NSWCCA 309
Court: Court of Criminal Appeal, NSW
Date: 9 December 2013
Judge(s): Hoeben CJ at CL, Johnson J, Latham J (all agreeing)

Background

The applicant pleaded guilty to robbery in company with the infliction of grievous bodily harm under s 98 of the Crimes Act 1900, an offence carrying a maximum of 25 years and a standard non-parole period of 7 years. The offence involved a prolonged and violent attack on a pedestrian in his local neighbourhood, during which the victim suffered a fractured collarbone, fractured cheekbone, and significant bruising. The offenders threatened to kill the victim and ultimately extracted his correct bank PIN by sustained intimidation and violence.

Judge Berman SC sentenced the applicant in March 2010 to a non-parole period of 4 years and 6 months with a balance of term of 2 years and 6 months. The applicant filed a notice of intention to appeal shortly after, but Legal Aid refused funding in December 2010 on the basis that the appeal lacked reasonable prospects of success.

The applicant's file was reactivated following the High Court's decision in Muldrock v The Queen [2011] HCA 39. Legal Aid was provisionally granted on the basis of a potential Muldrock ground, and the applicant sought an extension of time to seek leave to appeal.

  • Whether the sentencing judge adopted an impermissible two-stage approach to sentencing and gave determinative weight to the standard non-parole period, contrary to Muldrock
  • Whether the sentencing judge erred in assessing the objective gravity of the offence, in particular by mischaracterising the extent of the victim's injuries as "substantial"
  • Whether a refusal to grant an extension of time would result in substantial injustice to the applicant

Decision

On the Muldrock ground, Latham J (with Hoeben CJ at CL and Johnson J agreeing) found no error. The sentencing judge had referred to the standard non-parole period only briefly, correctly describing it as a guidepost, and the remarks on sentence did not reveal the hallmarks of a two-stage approach. The Court noted that nothing in Muldrock prohibits a sentencing court from determining where an offence falls in the range of objective gravity; the prohibition is against commencing with the standard non-parole period and oscillating around it based on aggravating or mitigating factors.

The applicant argued that three features combined to reveal Muldrock error: the mid-range classification of objective seriousness, the "neatness of the mathematics" when a discount was applied, and the overall heaviness of the sentence. Latham J, consistent with reasoning in Ngati v R [2013] NSWCCA 307, rejected this approach as seeking to draw an inference unsupported by the judge's reasons and relying on retroactive analysis. A heavy sentence does not, of itself or in combination with those other features, demonstrate Muldrock error.

On the objective gravity ground, the applicant contended that because the victim's injuries were towards the lower end of the grievous bodily harm scale, a finding that the offence was "significantly above the middle of the range" was not open to the judge. Latham J declined to engage in a comparative analysis with injuries in other cases. The assessment of objective gravity is an evaluative one encompassing a variety of factors, and fractures to the collarbone and cheekbone with significant bruising plainly warranted the description "substantial." No error in the House v The King sense was established.

The Court refused the extension of time, finding no merit in either ground and no substantial injustice to the applicant in declining to intervene.

Orders Made

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

Key Takeaways

  • A sentencing court's reference to the standard non-parole period as a "guidepost," without more, does not establish a Muldrock error. The impermissible approach is commencing with the standard non-parole period and adjusting around it, not simply noting where an offence falls in the range.
  • Retroactive mathematical analysis of a sentence (working backwards from the imposed term to show it approximates the standard non-parole period) is insufficient to establish that a two-stage sentencing approach was adopted.
  • The assessment of objective gravity in a robbery-causing-grievous-bodily-harm matter is a holistic evaluative exercise; isolating one factor, such as the severity of physical injuries, does not render an overall finding of high objective gravity unavailable.
  • In dismissing the application, the Court reiterated the threshold from Abdul v R [2013] NSWCCA 247: a refusal to extend time causes substantial injustice only where genuine error is established, not merely where a different sentencing outcome was theoretically possible.
  • The Court noted, consistent with Bou-Antoun v R [2013] NSWCCA 305, that extending time on Muldrock grounds is difficult to justify where a separate ground of appeal on objective gravity was always available but was originally assessed as lacking merit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (robbery in company with infliction of grievous bodily harm)

Cases:
- Muldrock v The Queen [2011] HCA 39; 144 CLR 120
- House v The King [1936] HCA 40; 55 CLR 499
- Abdul v R [2013] NSWCCA 247
- Bou-Antoun v R [2013] NSWCCA 305
- Ngati v R [2013] NSWCCA 307
- Bolt v R [2012] NSWCCA 150