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Court of Criminal Appeal 13 December 2013

DS v R (No 2)

[2013] NSWCCA 313

Sexual offences
CRIMINAL LAW SENTENCE CRIMINAL APPEAL RULES, R 50C APPLICATION BY LETTER SENTENCE NON

Citation: DS v R (No 2) [2013] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 13 December 2013
Judges: Beazley P; Harrison J; McCallum J

Background

The appellant had been convicted in 2009 of several sexual offences, including one count under s 61M(2) of the Crimes Act 1900 (count 3), carrying a maximum penalty of 10 years imprisonment. At the original sentencing, the trial judge imposed a non-parole period of 6 years on count 3. On appeal in July 2012, the Court of Criminal Appeal allowed the sentence appeal and re-sentenced the appellant on count 3 to a non-parole period of 3 years with an additional term of 1 year.

The re-sentencing on appeal proceeded on the basis of an erroneous Crown concession. The Crown had accepted that the standard non-parole period (the legislatively prescribed baseline for a mid-range offence) for count 3 was 5 years, when in fact the correct standard non-parole period was 8 years. The Crown discovered this error shortly after the orders were entered and applied, by letter dated 6 August 2012, for the Court to re-open and correct the sentence.

By the time the re-opening application was heard, the appellant had already served the 3-year non-parole period imposed in July 2012. He remained in custody, however, on account of sentences imposed for other counts.

  • Whether the Crown's informal letter to the Registrar constituted a valid application to set aside or vary the Court's orders under r 50C of the Criminal Appeal Rules, given that no formal application was filed.
  • Whether the applicable standard non-parole period for the s 61M(2) offence charged on count 3 was 5 years or 8 years.
  • Whether, applying the principles in Muldrock v The Queen [2011] HCA 39 with the correct standard non-parole period of 8 years, the sentence imposed on re-sentencing in July 2012 ought to be varied.

Decision

On jurisdiction, the Court held that the Crown's letter of 6 August 2012 was sufficient to engage the Court's power under r 50C. The letter was received within 14 days of entry of the orders, satisfying the timeliness requirement. Rule 2 of the Criminal Appeal Rules provides that a variance in the form of an application is not a matter of substance, so the informal letter was treated as a valid application. The Court noted, however, that the Crown should in future file a formal application in the Registry rather than simply writing to the Registrar when seeking to increase a sentence already passed.

On the correct standard non-parole period, the Court accepted that the applicable period for the count 3 offence was 8 years, not 5 years. This followed from legislative amendments that took effect from 1 January 2008, which applied the increased standard non-parole period to all s 61M(2) offences where the offender had not yet been sentenced and no guilty plea had been accepted. The Crown concession on the earlier appeal had failed to account for this change.

The Court then considered whether, applying Muldrock, a different sentence was warranted. Under Muldrock, a sentencing court must treat both the maximum penalty and the standard non-parole period as two legislative guideposts when arriving at an appropriate sentence. The original re-sentencing had been conducted with 5 years in mind as the guidepost, rather than the correct figure of 8 years. With the correct guidepost of 8 years (alongside the 10-year maximum), the Court concluded that the sentence imposed in July 2012 was insufficient and that re-sentencing was required.

Orders Made

  • The sentence imposed on 26 July 2012 for count 3 was vacated.
  • The appellant was re-sentenced on count 3 to a non-parole period of 4 years and 6 months commencing 20 May 2010 and expiring 19 November 2014, with an additional term of 1 year and 6 months commencing 20 November 2014 and expiring 19 May 2016.

Key Takeaways

  • An informal letter to the Registrar can constitute a valid application under r 50C of the Criminal Appeal Rules, provided it is received within 14 days of entry of the orders, because the form of an application is not a matter of substance under r 2. The Court still indicated that formal filing is the preferable practice when the Crown seeks to increase a sentence.
  • Under Muldrock v The Queen, the standard non-parole period functions as one of two legislative guideposts in sentencing. Using an incorrect standard non-parole period as that guidepost can produce a sentence that does not reflect the law, even where the broader Muldrock framework is otherwise applied.
  • A Crown concession made on appeal does not bind a later court if the concession was legally wrong. The Court of Criminal Appeal retained power to correct the resulting error under r 50C within the prescribed timeframe.
  • The applicable standard non-parole period for a s 61M(2) offence is determined by the legislative scheme in force at the relevant time. Amendments from 1 January 2008 increased the standard non-parole period to 8 years for offences where sentencing had not yet occurred and no guilty plea had been accepted.
  • Expiry of a non-parole period already served does not, of itself, prevent the Court of Criminal Appeal from re-sentencing when an error in the sentence is established. The appellant remained in custody on other counts, and the Court proceeded to impose a fresh sentence on count 3.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43, ss 54B(2) and 54B(3)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Rules (NSW), rr 2, 50C

Cases
- DS v Regina [2012] NSWCCA 159
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Green and Quinn [2011] NSWCCA 71