Citation: [2013] NSWSC 1537
Court: Supreme Court of New South Wales
Date: 19 November 2013
Judge(s): Latham J
Background
The applicant was convicted after trial in the District Court in August 2009 of breaking into commercial premises in company with others and stealing money, an offence under s 112(2) of the Crimes Act 1900 carrying a maximum of 20 years' imprisonment and a standard non-parole period of five years. The offence involved the applicant and two armed associates entering a bakery in the early hours of the morning, where they were surprised by the baker and removed the cash register. The applicant's fingerprints were found on the boundary fence.
The sentencing judge took into account a range of subjective factors, including the applicant's low cognitive functioning, a disadvantaged upbringing involving domestic violence, and a significant history of substance abuse beginning in early adolescence. He was on parole at the time of the offending and had prior failed attempts at rehabilitation through the Drug Court programme. The applicant received a non-parole period of five years commencing December 2008, with a balance of term of one year and eight months.
An appeal against conviction and sentence was dismissed by the Court of Criminal Appeal in May 2011. The High Court then handed down its decision in Muldrock v The Queen in October 2011, after that appeal had concluded. The applicant subsequently sought a further review under s 78 of the Crimes (Appeal and Review) Act 2001, arguing that the original sentencing exercise was infected by what is known as "Muldrock error."
Legal Issues
- Whether the sentencing judge committed Muldrock error by treating the standard non-parole period as a benchmark or guideline rather than conducting a proper synthesis of all objective and subjective factors
- Whether Muldrock error constitutes a "mitigating circumstance" for the purposes of s 78 of the Crimes (Appeal and Review) Act 2001, thereby justifying referral to the Court of Criminal Appeal
- Whether there were any discretionary grounds under s 79(3) of the Act that warranted refusing to act on the application
Decision
Latham J noted that the Attorney General had initially contested whether Muldrock error could qualify as a "mitigating circumstance" under the Act. However, the Court of Appeal had already rejected that argument in Sinkovich v Attorney General of NSW [2013] NSWCA 383, decided shortly before this application was determined. In light of that ruling, the Attorney General conceded both that sufficient evidence of Muldrock error existed and that no discretionary grounds under s 79(3) warranted refusal.
The key error identified was the sentencing judge's description of the offence as "at the mid range of objective seriousness" with "no good reason to depart from that guideline, benchmark or guidepost." Latham J found this language demonstrated that the judge had engaged in a two-stage sentencing process, treating the standard non-parole period as a fixed point of departure rather than as one of many factors to be weighed in a holistic sentencing exercise. That approach was inconsistent with the methodology the High Court subsequently confirmed in Muldrock.
Latham J was satisfied that a doubt or question existed as to a mitigating circumstance, namely the presence of that sentencing error. Her Honour noted that the merits of any potential reduction in sentence were not a matter for this application, but a question for the Court of Criminal Appeal on referral. The application was accordingly granted.
Orders Made
- The application under s 78 of the Crimes (Appeal and Review) Act 2001 was granted.
- The matter was referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.
Key Takeaways
- A sentencing judge's use of language describing the standard non-parole period as a "guideline, benchmark or guidepost" and finding "no good reason to depart" from it is indicative of a two-stage Muldrock sentencing error, as confirmed in this decision.
- Following Sinkovich v Attorney General of NSW [2013] NSWCA 383, Muldrock error is capable of constituting a "mitigating circumstance" for the purposes of s 78 of the Crimes (Appeal and Review) Act 2001.
- Under s 78, the Supreme Court's role is limited to determining whether a doubt or question as to a mitigating circumstance exists; the merits of any sentence reduction are reserved for the Court of Criminal Appeal on referral.
- Sufficient evidence of Muldrock error, unchallenged on discretionary grounds under s 79(3), is enough to justify granting a s 78 application even where a prior appeal against sentence has been dismissed.
- The timing of the Muldrock High Court decision (October 2011) after the applicant's earlier appeal (dismissed May 2011) was central to the procedural history, as the error could not have been raised in that earlier proceeding.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Sinkovich v Attorney General of NSW [2013] NSWCA 383