Citation: [2013] NSWSC 1540
Court: Supreme Court of New South Wales
Date: 19 November 2013
Judge(s): Latham J
Background
The applicant was charged in December 2003 with soliciting to murder, an offence under s 26 of the Crimes Act 1900 carrying a maximum penalty of 25 years' imprisonment and a standard non-parole period of 10 years. The offence arose from the applicant's agreement to fund the killing of a complainant who was due to give evidence against his son in a sexual offences prosecution. He paid $3,000 as a down payment to an undercover operative.
In August 2006, the applicant was sentenced in the District Court to 14 years' imprisonment with a non-parole period of 10 years. His subsequent appeal to the Court of Criminal Appeal was dismissed in February 2008, with all five grounds of appeal rejected.
The applicant then brought this application under s 78(1) of the Crimes (Appeal and Review) Act 2001, seeking referral of his sentence to the Court of Criminal Appeal for review. He argued that his sentencing had been infected by "Muldrock error," a recognised form of sentencing error arising from the High Court's 2011 decision in Muldrock v The Queen.
Legal Issues
- Whether the sentencing proceedings were infected by Muldrock error, specifically whether the standard non-parole period was given undue or determinative weight in the sentencing process
- Whether that alleged error constituted a "doubt or question as to a mitigating circumstance" sufficient to warrant referral under s 78(1) of the Crimes (Appeal and Review) Act 2001
Decision
Latham J refused the application, finding no doubt or question as to a mitigating circumstance. The critical question was whether the sentencing judge had impermissibly treated the standard non-parole period as a primary or determinative factor, rather than as one of two legislative guideposts alongside the maximum sentence.
Examining the sentencing remarks, Latham J found that the District Court judge had expressly characterised the standard non-parole period as "a persuasive benchmark" rather than a mandatory starting point. The judge had also assessed the offence as above the middle range of objective seriousness, and had gone on to weigh both the objective gravity of the offence and the subjective factors bearing on the applicant. This approach was consistent with the methodology later endorsed in Muldrock.
Importantly, the sentencing judge had not engaged in the two-stage approach that Muldrock condemned, that is, first determining that the standard non-parole period applied and then asking whether there were grounds to depart from it. The Court of Criminal Appeal's earlier remarks, which touched on statistics and the legislative intent behind the standard non-parole period, were characterised by Latham J as no more than addressing the manifest excess argument and did not elevate the standard non-parole period to determinative status.
Latham J also noted that assessing the objective gravity of an offence relative to a mid-range has always been an integral part of the sentencing process, regardless of whether R v Way required it. The applicant's argument that a correct Muldrock analysis would have produced an appreciably lower sentence was therefore not made out.
Orders Made
No orders were made in this decision.
Key Takeaways
- A sentence is not infected by Muldrock error merely because the sentencing judge referred to the standard non-parole period, provided it was treated as a benchmark or legislative guidepost rather than a mandatory or determinative figure.
- The two-stage sentencing approach condemned in Muldrock involves first fixing a sentence by reference to the standard non-parole period and then asking whether departure is justified. Where a sentencing judge instead weighs all objective and subjective factors holistically, no Muldrock error arises.
- Assessing the objective gravity of an offence, including its position relative to a mid-range of seriousness, has always been an integral part of sentencing and does not of itself demonstrate impermissible reliance on a standard non-parole period.
- Referral under s 78(1) of the Crimes (Appeal and Review) Act 2001 requires the applicant to establish a "doubt or question as to a mitigating circumstance." A bare assertion that sentencing would have produced a lower result under Muldrock is insufficient without identifying a specific error in the sentencing judge's methodology.
- In dismissing the Muldrock challenge, the Supreme Court confirmed that pre-Muldrock sentencing remarks must be read in full context, and that references to statistical sentencing patterns by an appellate court do not necessarily amount to treating the standard non-parole period as determinative.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 78(1)
- Crimes Act 1900 (NSW), s 26
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Bou-Antoun v R [2008] NSWCCA 1
- Aitchison v R [2012] NSWCCA 82
- R v Potier [2004] NSWCCA 136
- R v Way [2004] NSWCCA 186