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9
Court of Criminal Appeal 20 February 2014

Carlton v R

[2014] NSWCCA 14

Sexual offences
CRIMINAL LAW SENTENCE APPEAL LEAVE TO APPEAL NOT REQUIRED EXTENSION OF TIME NOT REQUIRED MULDROCK ERROR CONCEDED NO UTILITY IN RESENTENCING

Citation: Carlton v R [2014] NSWCCA 14
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2014
Judges: Ward JA, Harrison J, R A Hulme J (unanimous, Hulme J writing)

Background

The appellant had been sentenced in the District Court in February 2007 for four offences of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The sentencing judge imposed concurrent terms of 13 years and 4 months, with non-parole periods of 8 years and 6 months. A standard non-parole period of 10 years applied to each offence.

The appellant's earlier appeal against conviction and sentence had failed in 2008. Following the High Court's landmark sentencing decision in Muldrock v The Queen [2011] HCA 39, the appellant applied under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his sentence. He argued his sentence was infected by error because undue weight had been given to the standard non-parole period in a manner inconsistent with Muldrock. The Crown conceded that error. A judge of the Supreme Court granted the application and referred the matter to the Court of Criminal Appeal under s 79(1)(b) to be dealt with as an appeal.

This case was apparently the first Part 7 sentence referral arising from Muldrock to reach the Court of Criminal Appeal. Two preliminary questions arose: whether leave to appeal was required for such a referral, and whether an extension of time was also required given the years that had elapsed.

  • Whether a convicted person whose matter is referred to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) requires leave to appeal against sentence.
  • Whether, if leave is required, an extension of time to seek that leave is also necessary where significant time has elapsed.
  • Whether the conceded Muldrock sentencing error in fact warrants resentencing, having regard to the principle of totality and the practical outcome any resentencing would produce.

Decision

On leave and extension of time: The Court held that neither leave to appeal nor an extension of time is required when a matter is referred under s 79(1)(b) (or s 77(1)(b)) of the Crimes (Appeal and Review) Act. The Court reasoned that s 86 of that Act requires it to deal with a referred case "as if the convicted person had appealed," but the referral mechanism itself already incorporates a merits assessment. A referral can only be made where the Supreme Court is satisfied there is a "doubt or question" as to guilt, a mitigating circumstance, or part of the evidence. Because that threshold has already been met before the matter arrives, requiring leave would be a redundant and incongruous step. The Court also noted that the referral process circumvents other ordinary preliminary requirements, such as the filing of a notice of appeal, further supporting the view that leave is not a separate condition.

On Muldrock error: The Crown conceded, and the Court accepted, that the original sentencing judge had followed the then-prevailing approach in R v Way, giving the standard non-parole period a prominence that Muldrock later held to be erroneous. An error was therefore established. However, identifying an error does not automatically produce a different result on resentencing.

On resentencing and utility: The Court assessed what sentences would be appropriate if it were to resentence. Individual terms of 11 years (rather than 13 years and 4 months) were considered appropriate for each offence. However, because the four offences involved a totality of criminality greater than any single offence, partial accumulation was still required. Applying the principles in Pearce v The Queen and Cahyadi v R, the Court found that an accumulation of 9 months would be warranted, producing an overall term only insignificantly different from that originally imposed, with the same non-parole component. Resentencing would therefore serve no practical utility, and the appeal was dismissed.

Orders Made

  • Appeal against sentence dismissed.

Key Takeaways

  • A referral to the Court of Criminal Appeal under s 77(1)(b) or s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) does not require the convicted person to obtain leave to appeal or an extension of time. The referral mechanism itself involves a prior merits determination, which the Court held renders those requirements redundant.

  • Under s 86 of the Crimes (Appeal and Review) Act, the Court treats a referred matter "as if" the person had appealed, but this does not import every procedural prerequisite applicable to ordinary appeals. The provision's language and purpose support reading out requirements such as leave where the referral process has already provided a gateway function.

  • Establishing a Muldrock error in an original sentence does not guarantee a different outcome on appeal. The court must still assess what individual sentences would be appropriate and then apply totality principles before determining whether any different result would follow.

  • Even where lesser individual sentences are warranted on resentencing, accumulation may be required where the total criminality across multiple offences exceeds what any single sentence could reflect. In dismissing the appeal, the Court applied the principle that concurrent sentences may understate the overall criminality of multiple discrete sexual offences.

  • No practical utility exists in resentencing where the outcome of a correct approach would be materially identical to the sentence already imposed. The Court declined to resentence in circumstances where the revised total term and non-parole period would differ only insignificantly from the original.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 77, 79, 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Carlton v R [2008] NSWCCA 244; (2008) 189 A Crim R 332
- A reference by the Attorney General re Frederick Lincoln McDermott [2013] NSWCCA 102; (2013) 303 ALR 143
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
- Abdul v R [2013] NSWCCA 247
- Alpha v R [2013] NSWCCA 292
- R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
- Beldon v R [2012] NSWCCA 194
- McLaren v R [2012] NSWCCA 284
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460