AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
10
Court of Criminal Appeal 31 October 2014

Louizos v R

[2014] NSWCCA 242

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR SOLICIT TO MURDER REFERRAL OF "THE WHOLE CASE"

Citation: Louizos v R [2014] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 31 October 2014
Judges: Leeming JA; Fullerton J; R A Hulme J

Background

The appellant was convicted of soliciting to murder her former husband and sentenced in the District Court to 10 years imprisonment with a 6-year non-parole period. The Crown appealed that sentence as manifestly inadequate. In March 2009, the Court of Criminal Appeal allowed the Crown's appeal and imposed a heavier sentence of 13 years and 6 months with a non-parole period of 10 years.

Following the High Court's decision in Muldrock v The Queen [2011] HCA 39, the 2009 resentencing was acknowledged to contain errors in its reasoning regarding standard non-parole periods. A judge of the Supreme Court referred the whole case to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) on the basis of that Muldrock error.

The matter returned to the Court of Criminal Appeal to determine whether the 2009 sentence should be set aside, and if so, what sentence should replace it.

  • Whether the "quasi-appeal" created by ss 79(1)(b) and 86 of the Crimes (Appeal and Review) Act 2001 required the Court to review the sentence imposed by the District Court or the sentence imposed by the Court of Criminal Appeal in 2009
  • Whether leave was required for the appellant to advance grounds extending beyond the matters in the reference
  • What the appropriate resentencing outcome was once Muldrock error was established
  • Whether the original District Court sentence could be restored, rather than the Court exercising its power under s 6(3) of the Criminal Appeal Act 1912 to impose a fresh sentence

Decision

The Court unanimously agreed to allow the appeal and resentence the appellant, though the judges differed on some aspects of jurisdictional reasoning. Leeming JA (with R A Hulme J agreeing) held that the subject of the quasi-appeal was the 2009 sentence imposed by the Court of Criminal Appeal, not the original District Court sentence. Because the District Court sentence had been quashed in 2009, it was the Court's own sentence that constituted the only extant sentence and therefore the proper subject of review.

Leeming JA characterised the proceeding as a quasi-appeal to be approached as though the appellant had appealed against the 2009 sentence under s 5(1)(c) of the Criminal Appeal Act 1912. The effect of ss 79(1)(b) and 86 of the Crimes (Appeal and Review) Act was to confer on the Court jurisdiction to review and set aside its own sentence, something it would otherwise have no power to do. Critically, where error was established, the consequence was not a restoration of the original sentence but an exercise of the resentencing power under s 6(3).

All three judges agreed that the Muldrock error in the 2009 reasoning was established and conceded. Despite that error, the Court confirmed that the original District Court sentence had been manifestly inadequate. Taking into account the objective gravity of the offending, the appellant's subjective circumstances, and the former double jeopardy principle applicable to Crown appeals, the Court determined that a sentence of 12 years with a non-parole period of 8 years was warranted.

No leave was required for the appellant to advance grounds beyond those in the reference. The Court noted it was dealing with the matter as a quasi-appeal and that the reference of "the whole case" was broad enough to encompass the full resentencing exercise.

Orders Made

  • The appeal is allowed.
  • The sentence imposed by the Court on 20 March 2009 is quashed.
  • In lieu thereof, the appellant is sentenced to a term of imprisonment of 12 years, comprising a non-parole period of 8 years and a balance of term of 4 years, commencing 25 September 2008. The appellant is eligible for release to parole on 24 September 2016.

Key Takeaways

  • A Part 7 reference following a successful Crown appeal brings into review the sentence imposed by the Court of Criminal Appeal, not the original sentence imposed at first instance. Once the lower court's sentence is quashed on a Crown appeal, it ceases to be the extant sentence.
  • Sections 79(1)(b) and 86 of the Crimes (Appeal and Review) Act 2001 create a "quasi-appeal" that grants the Court of Criminal Appeal jurisdiction to review and set aside its own sentence, jurisdiction it would otherwise lack.
  • Where Muldrock error is established on a Part 7 reference, the proper outcome is not automatic restoration of the original sentence. The Court must exercise its fresh sentencing power under s 6(3) of the Criminal Appeal Act 1912.
  • Establishing error in a sentencing court's reasoning does not necessarily mean the sentencing outcome itself was wrong. The Court confirmed that the District Court sentence was manifestly inadequate even though the 2009 reasoning was infected by Muldrock error.
  • Under Part 7 referrals, no leave is required to advance grounds of appeal extending beyond the specific matters identified in the reference where the whole case has been referred.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1)(b), 86, Part 7
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6, 7, 26(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
- Crimes Act 1900 (NSW), s 26

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223
- Kazzi v R [2014] NSWCCA 73
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783
- Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573
- A reference by the Attorney General re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 231 A Crim R 183
- Allesch v Maunz [2000] HCA 40; 203 CLR 172
- Kentwell v The Queen [2014] HCA 37
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462