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Court of Criminal Appeal 28 February 2014

Kuehne v R

[2014] NSWCCA 22

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR CONCEDED LESSER SENTENCE WARRANTED APPEAL ALLOWED

Citation: Kuehne v R [2014] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 28 February 2014
Judge(s): Hoeben CJ at CL, Adams J, R A Hulme J (all agreeing)

Background

The appellant was convicted in the District Court at Penrith in August 2009 of break, enter and commit a serious indictable offence in circumstances of aggravation (being in company). The offence involved three men, including the appellant, forcing their way into a bakery in the early hours of the morning, terrorising the owner, and stealing a cash register. The appellant's fingerprints placed him at the scene.

In November 2009 the sentencing judge imposed a total sentence of 6 years 8 months with a non-parole period of 5 years, dating from 3 December 2008. At sentence, the judge found the appellant wholly unimpressive, unremorseful, and assessed his rehabilitation prospects as quite poor, given an extensive history of failed attempts and non-compliance with court orders.

An earlier appeal against both conviction and sentence was dismissed by the Court of Criminal Appeal in May 2011. That earlier appeal predated the High Court's decision in Muldrock v The Queen, which clarified the correct approach to standard non-parole period legislation. The appellant subsequently applied for a sentence review under s 78 of the Crimes (Appeal and Review) Act 2001, and Latham J referred the matter to the Court of Criminal Appeal to be dealt with as an appeal.

  • Whether the original sentencing judge had misapplied the standard non-parole period legislation in a manner that constituted "Muldrock error"
  • Whether, given that conceded error, a lesser sentence was warranted in light of all the circumstances, including the appellant's post-sentence progress towards rehabilitation

Decision

The Crown conceded that the sentencing judge had fallen into Muldrock error by treating the standard non-parole period as having a determinative or presumptive role, rather than as one of two legislative guideposts. That concession was accepted by the Court, which confirmed that neither the maximum penalty of 20 years nor the standard non-parole period of 5 years could have determinative significance.

The central question then was whether a lesser sentence was warranted. The Court acknowledged the seriousness of the offending and the significant aggravating factor that the appellant had committed the offence while on parole. However, the Court also found that the appellant's progress since sentence had been markedly positive.

Since sentencing, the appellant had been weaned off anti-psychotic medication, completed drug rehabilitation programs, attended Narcotics Anonymous meetings, obtained a forklift licence, and participated in a work release program with a commended work ethic. The Court described this as demonstrating "a far greater level of maturity and insight" that stood in sharp contrast to the negative assessment made at the time of sentence.

Taking all circumstances into account, the Court found that a lesser sentence was appropriate. As the appellant had already been released to parole in December 2013, the question of special circumstances under the sentencing legislation did not require further consideration.

Orders Made

  • Appeal against sentence allowed.
  • Sentence imposed by English DCJ on 27 November 2009 quashed.
  • In substitution, the appellant was sentenced to a non-parole period of 4 years 6 months and a balance of term of 1 year 6 months, dating from 3 December 2008. The non-parole period expired on 2 June 2013 and the total term expires on 2 December 2014.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following Muldrock, neither the prescribed maximum penalty nor the standard non-parole period can play a determinative role in sentencing; both function only as "legislative guideposts."
  • Where a sentence has been infected by Muldrock error, that error alone does not automatically produce a lesser sentence: the Court must still assess whether, on the totality of the circumstances, a lesser sentence is in fact warranted.
  • Compelling post-sentence evidence of rehabilitation can operate as a significant factor in favour of resentencing to a lesser term, particularly where it stands in marked contrast to the grim rehabilitation assessment made at the original sentencing hearing.
  • Under Part 7 of the Crimes (Appeal and Review) Act 2001, once a matter is referred to the Court of Criminal Appeal by a single judge, there is no additional requirement for leave to appeal or an extension of time, at least in respect of the grounds covered by the referral (confirming Carlton v R [2014] NSWCCA 14).
  • Serious objective criminality and aggravating circumstances (such as offending on parole) remain relevant considerations even when resentencing following a Muldrock referral, and they continue to limit how far a sentence reduction will go.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, s 78
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Carlton v R [2014] NSWCCA 14
- Kuehne v R [2011] NSWCCA 101
- Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537