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Court of Criminal Appeal 29 October 2014

Maglovski v R

[2014] NSWCCA 238

Homicide
CRIMINAL LAW SENTENCE APPEAL APPLICANT CONVICTED OF MURDER ALLEGED ERROR IN MAKING NON NO OVERSIGHT BY SENTENCING JUDGE PAROLE PERIOD BEYOND STATUTORY RATIO

Citation: Maglovski v R [2014] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 29 October 2014
Judge(s): Hoeben CJ at CL (with Hidden J and Davies J agreeing)

Background

The applicant was convicted of murder by a jury in November 2012, following a trial in which the sole issue was whether he had acted under provocation. The jury rejected that defence. The applicant had been married to the deceased for over 25 years, and the relationship had deteriorated significantly in the year before her death, with the deceased asserting greater independence and the relationship breaking down.

The sentencing judge imposed a total term of 20 years imprisonment, with a non-parole period of 16 years and a balance of term of 4 years. That non-parole period represented 80 percent of the head sentence, above the statutory default ratio of 75 percent. The sentencing judge found numerous mitigating factors, including good character, no prior convictions, minimal risk of reoffending, early cooperation with police, and genuine remorse.

The applicant sought leave to appeal his sentence on two grounds: that the sentencing judge erred by setting the non-parole period at 80 percent of the total sentence, and that the judge erred in failing to find special circumstances that would have justified a longer balance of term and correspondingly shorter non-parole period.

  • Whether the sentencing judge erred by fixing the non-parole period at 80 percent of the head sentence, above the statutory default ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by failing to find special circumstances that would have justified a longer parole period (and thus a reduced non-parole period)

Decision

On Ground 1, Hoeben CJ at CL found that the sentencing judge had not overlooked the standard ratio. Rather, the judge had made a deliberate and considered decision to set the non-parole period above the default 75 percent. Crucially, defence counsel had not submitted at the original sentence proceedings that special circumstances existed, and the judge's choice to increase the ratio beyond the default was a legitimate exercise of his discretion. There was no error.

On Ground 2, the Court observed that the failure of defence counsel to raise special circumstances during the sentence proceedings was itself significant. The Court examined the matters put forward as potential bases for a special circumstances finding: the applicant's status as a first-time prisoner, his age of 60, and the psychological findings. None of these, individually or together, reached the threshold required. The Court reaffirmed that an appellate court will only intervene on a special circumstances ground if the resulting non-parole period is manifestly excessive, and that standard was not met here.

The Court went further, noting that even if either ground had succeeded, it would not have substituted a lesser sentence. The sentencing judge's analysis of the objective seriousness of the offence and the applicant's subjective circumstances was described as comprehensive, and the Court was not satisfied that any lesser sentence was warranted in the circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge who deliberately increases the non-parole period beyond the statutory default ratio of 75 percent commits no error, provided the decision is a considered one rather than an oversight.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the default position fixes the non-parole period at 75 percent of the total sentence; a court may depart from this in either direction, but departure upward does not require a finding of special circumstances.
  • In dismissing the special circumstances ground, the Court of Criminal Appeal reconfirmed that appellate intervention on this basis is reserved for cases where the non-parole period is manifestly excessive or manifestly inadequate, not merely where a different result was open.
  • A failure by defence counsel to raise special circumstances at the original sentence proceedings is a relevant consideration on appeal and weighs against a finding of error by the sentencing judge.
  • Even where an applicant is a first-time prisoner of mature age with strong prospects of rehabilitation, those factors do not automatically compel a finding of special circumstances; they must be assessed in the context of all sentencing considerations.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Barton v R [2009] NSWCCA 164
- Briggs v R [2010] NSWCCA 250
- Clarke v R [2009] NSWCCA 49
- Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236; 189 A Crim R 178
- Edwards v R [2009] NSWCCA 199
- Goebel-McGregor v R [2006] NSWCCA 390
- Jiang v R [2010] NSWCCA 277
- Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424
- R v Cramp [2004] NSWCCA 264
- R v Dunn [2007] NSWCCA 312
- R v Fidow [2004] NSWCCA 172
- R v Maglovski (No 2) [2013] NSWSC 16
- Wakefield v R [2010] NSWCCA 12
- Zreika v R [2012] NSWCCA 44