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Supreme Court 17 September 2013

Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001

[2013] NSWSC 1342

Drugs
CRIMINAL LAW PRINCIPLE OF FINALITY APPLICATION REFUSED

Citation: Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342
Court: Supreme Court of New South Wales
Date: 17 September 2013
Judge: Latham J

Background

The applicant was convicted of two drug offences and sentenced in November 2009 to an aggregate of fourteen years' imprisonment, including a ten-year aggregate non-parole period. The more serious offence, supply of a commercial quantity of methylamphetamine, carried a standard non-parole period of ten years. The sentencing judge and, on appeal, the Court of Criminal Appeal both applied the sentencing framework established in R v Way (2004) 60 NSWLR 168.

In October 2011, the High Court decided Muldrock v The Queen (2011) 244 CLR 120, which disapproved the Way approach to standard non-parole periods. The applicant's appeal had been dismissed in April 2011, before Muldrock was handed down. He then brought a fresh application under s 78 of the Crimes (Appeal and Review) Act 2001, arguing that his sentence had been imposed under a now-discredited legal framework.

The applicant sought a referral of his sentence to the Court of Criminal Appeal on the basis that the erroneous application of Way principles constituted a "doubt or question as to a mitigating circumstance" within the meaning of s 79 of the Act. The Attorney General accepted that Way principles had been applied but disputed that a change in sentencing law of this kind could satisfy the statutory criterion.

  • Whether a change in sentencing law brought about by a High Court decision (Muldrock) can constitute a "mitigating circumstance" within s 79(2) of the Crimes (Appeal and Review) Act 2001.
  • Whether the term "mitigating circumstances" in s 79 is confined to errors of fact, or whether it extends to errors of law.
  • How the principle of finality interacts with the remedial purposes of Part 7 of the Act.
  • Whether the disparity between offenders who appealed pre-Muldrock and those who did not could be addressed through the s 78 application pathway.

Decision

Latham J accepted, as did the Attorney General, that the sentencing judge and the Court of Criminal Appeal had applied sentencing principles that Muldrock subsequently discredited. On the central statutory question, however, her Honour held that this concession did not resolve the application in the applicant's favour.

The court held that the phrase "mitigating circumstances" in s 79(2) is confined to circumstances of fact, not errors of law. A change in sentencing practice effected by a supervening appellate decision does not give rise to a doubt or question of the kind the provision is designed to address. The court drew on the history of the provision and prior authority to confirm this interpretation, noting that the Act does not authorise the correction of every miscarriage of justice.

Latham J acknowledged the evident disparity between offenders who exercised their right of appeal against sentence before Muldrock was decided and those who did not. Her Honour concluded, however, that this disparity is a consequence of a change in the law, and that its effects have been addressed through the legal doctrine of merger, which operates when a sentence is confirmed on appeal and the original sentence merges into the appellate order. Nothing in Part 7 of the Act indicated a legislative intention to depart from that principle.

The court also noted, as an additional consideration, that an applicant seeking an extension of time to appeal against sentence on Muldrock grounds would face a significant hurdle under ordinary appeal principles. Allowing a s 78 referral on identical grounds would produce an incongruous outcome, effectively permitting a route to reconsideration that conventional appeal procedures would likely deny.

Orders Made

  • The application was refused.

Key Takeaways

  • The Supreme Court held that "mitigating circumstances" in s 79(2) of the Crimes (Appeal and Review) Act 2001 is limited to matters of fact, and does not extend to errors of law, including errors arising from a sentencing judge applying legal principles that a later appellate decision has disapproved.

  • A change in sentencing law brought about by the High Court's decision in Muldrock v The Queen does not, of itself, constitute a mitigating circumstance capable of enlivening the s 78 referral power.

  • Part 7 of the Crimes (Appeal and Review) Act 2001 does not authorise the correction of every miscarriage of justice. The statutory scheme operates within defined limits, and the principle of finality in criminal proceedings remains a significant constraint.

  • Disparity between offenders who appealed pre-Muldrock and those who did not is resolved by the doctrine of merger, under which a sentence confirmed on appeal merges into the appellate order. The court found no legislative intention in Part 7 to displace that doctrine.

  • Permitting a s 78 referral on purely Muldrock grounds would produce a result inconsistent with conventional appeal principles, where an applicant out of time to appeal on the same basis would face a significant obstacle to obtaining an extension of time.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B
- Criminal Appeal Act 1912 (NSW)
- Criminal Law Amendment Act 1883 (NSW)
- Crimes Act 1900 (NSW)
- Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- R v Way (2004) 60 NSWLR 168
- Sinkovich v R [2011] NSWCCA 90
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- D'Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
- X7 v Australian Crime Commission [2013] HCA 29
- R v Unger [1977] 2 NSWLR 990
- Montero v R [2013] NSWCCA 214
- Etchell v R [2010] NSWCCA 262
- Stevens, Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2011] NSWSC 1252
- Application of Antoun El Hani [2007] NSWSC 330
- Application of Peter James Holland [2008] NSWSC 251
- Yin v R [2007] NSWCCA 350
- R v Gregory [2002] NSWCCA 199
- White v The King (1906) 4 CLR (Pt 1) 152
- R v Ramsden [1972] Crim LR 547