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7
Court of Criminal Appeal 9 April 2014

Ali v R

[2014] NSWCCA 45

Sexual offences
CRIMINAL LAW SENTENCE APPEAL AFTER REFERRAL MULDROCK ERROR CONCEDED CONDITIONS OF CUSTODY UNUSUALLY ARDUOUS

Citation: Ali v R [2014] NSWCCA 45
Court: Court of Criminal Appeal, New South Wales
Date: 9 April 2014
Judge(s): Leeming JA, Button J, RS Hulme AJ

Background

The appellant was convicted of sexual intercourse without consent and indecent assault, with the primary sentence imposed in November 2007. The original sentencing court and a subsequent appeal in 2010 were both bound by the then-prevailing approach in R v Way, which required close reference to the standard non-parole period as a determinative guide. The High Court's 2011 decision in Muldrock v The Queen rendered that approach legally erroneous.

Following Muldrock, the matter was referred back to the Court of Criminal Appeal under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW). This provision allows further review where there is a doubt or question as to any mitigating circumstance, and it had been established that Muldrock error answers that description.

By the time the matter returned for resentencing in 2014, the appellant's circumstances had changed substantially. Unlike at trial, he had acknowledged his wrongdoing, enrolled in and substantially completed a preparatory program for sexual offenders, and engaged with psychological assistance, all before being advised that his sentence was under review.

  • Whether the sentencing error arising from the mandatory use of the standard non-parole period under R v Way, subsequently condemned by Muldrock, constituted a sufficient basis for review under s 79 of the Crimes (Appeal and Review) Act 2001.
  • Whether a lesser sentence was "warranted in law" under s 6(3) of the Criminal Appeal Act 1912 (NSW), notwithstanding the Crown's submission to the contrary.
  • What weight, if any, should be given to post-sentence evidence of remorse, rehabilitation, and arduous conditions of custody when resentencing on appeal.
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole period and head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Crown conceded Muldrock error, and the Court proceeded on the basis that the original sentence was legally erroneous. The Court confirmed the established principle, drawn from Douar v R, that a court resentencing on appeal must have regard to evidence of the offender's circumstances throughout the entire period of imprisonment, not merely to what was known at the time of the original sentence.

Two significant developments distinguished the 2014 position from 2008. First, the conditions of the appellant's custody had been more arduous than typical, including an initial 12 months on protection with 23-hour-per-day lockdown. The Court treated this as a less weighty factor, however, since the nature of the offence made protective custody reasonably foreseeable at the time of sentencing. Second, and more importantly, the appellant had now acknowledged his guilt and expressed genuine remorse. He had participated extensively in a sexual offenders' preparatory program before being told his sentence was under review, which the Court found significant in assessing sincerity. The Crown did not cross-examine or otherwise challenge his sworn evidence of remorse.

Under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, remorse is a statutory mitigating factor, but only where the offender has accepted responsibility and acknowledged the injury caused. The unchallenged evidence satisfied those statutory conditions. Remorse also informed the related mitigating considerations of reduced likelihood of reoffending and improved prospects of rehabilitation under s 21A(3)(g) and (h). The original sentencing court in 2008 had seen an unremorseful offender; that picture had materially changed.

The Court declined to find special circumstances and did not disturb the existing sentence structure for the indecent assault counts. Applying the Muldrock approach to the most serious count, the head sentence was reduced from 10 years and 8 months to 8 years and 8 months, and the non-parole period was reduced from 8 years to 6 years and 6 months.

Orders Made

  • Appeal allowed with regard to count four (sexual intercourse without consent).
  • Sentence on count four quashed.
  • On count four, the appellant sentenced to a non-parole period of 6 years and 6 months, commencing 4 November 2007 and expiring 3 May 2014, with a parole period of 2 years and 2 months commencing 4 May 2014 and expiring 3 July 2016.
  • First eligible date for consideration for release: 4 May 2014.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing conducted under the R v Way standard non-parole period methodology, and therefore rendered legally erroneous by Muldrock, constitutes a "doubt or question as to any mitigating circumstance" sufficient to enliven the review jurisdiction under s 79 of the Crimes (Appeal and Review) Act 2001, following Sinkovich v Attorney General of New South Wales.
  • A resentencing court on appeal is required to consider evidence of all circumstances occurring throughout the period of imprisonment, not only facts known at the time of the original sentence. This principle, drawn from Douar v R, was applied without challenge from the Crown.
  • Post-sentence remorse and rehabilitation can constitute material mitigating factors on resentencing, provided the statutory conditions in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 are met, namely that the offender has accepted responsibility and acknowledged the injury caused.
  • Where sworn evidence of remorse is unchallenged by the Crown, including no application to cross-examine, the Court found it would be wrong to reject that evidence as insincere or opportunistic.
  • Leeming JA's reasons offer a candid observation about the systemic tension between retrospective legal change following appellate overruling and the principle of finality in litigation, noting that Parliament retains the power to address this if it chooses.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
- Douar v R [2005] NSWCCA 154; 159 A Crim R 154
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- Achurch v The Queen [2014] HCA 10
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Ha v State of NSW (1997) 189 CLR 465
- PGA v The Queen [2012] HCA 21; 245 CLR 355
- Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
- Viro v The Queen (1978) 141 CLR 88
- Montero v R [2013] NSWCCA 214
- R v Van Hong Pham [2005] NSWCCA 94
- R v Mirzaee [2004] NSWCCA 315
- Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342