Citation: [2013] NSWSC 1705
Court: Supreme Court of New South Wales
Date: 19 November 2013
Judge: Latham J
Background
The applicant was convicted after trial in 2006 of four counts of aggravated sexual intercourse without consent involving a child slightly above ten years of age, contrary to s 61J of the Crimes Act 1900. The offences occurred on a single occasion at the applicant's home. In February 2007, Nield DCJ in the District Court sentenced the applicant to four concurrent sentences with a non-parole period of eight years and six months on each count, producing a full term of 13 years and four months.
The applicant had a significant history of drug abuse and had been diagnosed with schizophrenia in 2002. A prior appeal to the Court of Criminal Appeal against both conviction and sentence was dismissed in 2008, though Basten JA noted that the sentencing judge had adopted a "mechanistic approach" by fixing sentence by reference to the standard non-parole period.
The applicant subsequently sought an inquiry into his sentence under s 78(1) of the Crimes (Appeal and Review) Act 2001, arguing that his sentence was infected by the sentencing error identified by the High Court in Muldrock v The Queen (2011) 244 CLR 120, namely that the standard non-parole period had been accorded undue weight as a "starting point."
Legal Issues
- Whether a doubt or question arose as to a mitigating circumstance under s 78 of the Crimes (Appeal and Review) Act 2001, specifically whether the sentencing judge had committed Muldrock error by treating the standard non-parole period as a starting point rather than a guidepost.
- Whether the application for inquiry should be granted and the matter referred to the Court of Criminal Appeal.
Decision
Latham J noted that proceedings under s 78 of the Act are administrative in nature and do not require the court to assess whether there is actual merit warranting interference with the sentence. The threshold question is simply whether a doubt or question as to a mitigating circumstance arises.
The sentencing judge's remarks made clear that the standard non-parole period had been treated as a "starting point" for the sentencing exercise. This approach, which the High Court in Muldrock identified as erroneous, was also flagged by Basten JA in the earlier appeal as potentially problematic given the applicant's subjective circumstances, particularly his mental illness.
The Attorney General conceded that this material was sufficient to raise a doubt or question about a mitigating circumstance, consistent with the approach endorsed in Sinkovich v Attorney General of NSW [2013] NSWCA 383. On that basis, Latham J granted the application.
Orders Made
- The application under s 78 of the Crimes (Appeal and Review) Act 2001 was granted.
- The applicant's case was referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001, the inquiry threshold is low: the court need only identify whether a doubt or question as to a mitigating circumstance exists, not whether there is actual merit warranting interference with the sentence.
- Treating the standard non-parole period as a "starting point" in the sentencing process constitutes Muldrock error, which can form the basis of a mitigating circumstance sufficient to enliven the s 78 inquiry power.
- The Attorney General's concession that Muldrock error was apparent on the face of the sentencing remarks was a significant factor in the court's decision to grant the application.
- A prior unsuccessful appeal does not necessarily bar a subsequent s 78 application where a different ground, such as Muldrock error, can be identified.
- Observations made by a dissenting or concurring judge in an earlier appeal, such as Basten JA's comments about a "mechanistic approach" to sentencing, may remain relevant to a later inquiry application.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61J
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v The Queen (2011) 244 CLR 120 (High Court)
- Carlton v The Queen [2008] NSWCCA 244
- Sinkovich v Attorney General of NSW [2013] NSWCA 383