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Court of Criminal Appeal 9 May 2014

Kazzi v R

[2014] NSWCCA 73

Drugs
CRIMINAL APPEAL AGAINST SENTENCE ALLEGED "MULDROCK ERROR" WHETHER "MULDROCK ERROR" ESTABLISHED

Citation: Kazzi v R [2014] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 9 May 2014
Judge(s): Leeming JA, Button J, RS Hulme AJ

Background

The appellant had been sentenced in the District Court in October 2007 for seven serious drug offences under the Drug Misuse and Trafficking Act 1985 (NSW), including supplying 196 grams of cocaine. The Director of Public Prosecutions successfully appealed that sentence, and in April 2008 the Court of Criminal Appeal quashed the original sentence and imposed a new, more severe one.

Following the High Court's 2011 decision in Muldrock v The Queen, the appellant applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the 2008 resentencing. A single judge of the Supreme Court (Latham J) formed the opinion that there was a doubt or question as to whether the 2008 sentence disclosed "Muldrock error" and referred the matter to the Court of Criminal Appeal.

The sole ground of appeal before the Court of Criminal Appeal was whether the 2008 decision, made by an earlier constituted Court of Criminal Appeal, had applied the since-disapproved rigid approach to standard non-parole periods identified in R v Way and rejected in Muldrock.

  • Whether a sentence imposed by the Court of Criminal Appeal (rather than a trial court) is capable of being the subject of a s 78 application and subsequent referral under the Crimes (Appeal and Review) Act 2001.
  • Whether the 2008 resentencing disclosed "Muldrock error," meaning that the Court had treated the standard non-parole period as a fixed or dominant sentencing benchmark rather than as a guidepost.
  • What procedural and jurisdictional framework governs a referral to the Court of Criminal Appeal under ss 79(1)(b) and 86 of the Crimes (Appeal and Review) Act 2001.

Decision

The Court unanimously dismissed the appeal, finding no Muldrock error in the 2008 resentencing. Button J, with whom Leeming JA and RS Hulme AJ agreed, examined the 2008 judgment and concluded that the Court had spoken of the standard non-parole period as a "guidepost," which is precisely the language and approach later endorsed by the High Court in Muldrock in 2011. The 2008 Court had not treated the standard non-parole period as a rigid or dominant benchmark; rather, the Crown appeal had succeeded because the sentencing judge had paid insufficient attention to both the standard non-parole period as a guidepost and to the maximum penalties.

On jurisdiction, Leeming JA confirmed that a sentence imposed by the Court of Criminal Appeal under s 5D(1) of the Criminal Appeal Act 1912 is capable of being the subject of a s 78 application. Sections 5(1)(c) and 6 of the Criminal Appeal Act ordinarily create an appeal only from a sentence imposed by the court of trial. However, ss 79(1)(b) and 86 of the Crimes (Appeal and Review) Act together operate as a distinct statutory mechanism, treating the referred sentence as if it were the subject of an ordinary criminal appeal and thereby conferring jurisdiction on the Court.

The Court also noted a separate, technical error in the 2008 orders: fixed terms had been imposed for two counts that were subject to a standard non-parole period, contrary to s 45 of the Crimes (Sentencing Procedure Act) 1999. Neither party sought correction of this error, and as those sentences had already expired and any amendment would have had no practical effect on the overall sentence structure, the Court declined to disturb them.

One point was expressly left open: whether the ss 78 and 79 inquiry and referral mechanism operates at all in respect of convictions and sentences made in the exercise of federal jurisdiction. The Court noted that no federal jurisdiction was involved in this case and that the question, described as a "large" one, did not arise for determination.

Orders Made

  • Appeal against sentence dismissed.

Key Takeaways

  • No Muldrock error was established where the 2008 Court of Criminal Appeal had described the standard non-parole period as a "guidepost" and criticised the sentencing judge for failing to pay adequate attention to it, rather than applying the rigid two-stage approach that Muldrock later disapproved.
  • A sentence imposed by the Court of Criminal Appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 is capable of being reviewed under s 78 of the Crimes (Appeal and Review) Act 2001, with no party contesting that point.
  • Sections 79(1)(b) and 86 of the Crimes (Appeal and Review) Act 2001 together create a distinct statutory pathway that treats the referred matter "as if" it were an ordinary criminal appeal, thereby conferring jurisdiction on the Court of Criminal Appeal to review sentences it originally imposed.
  • Where a referral is made under s 79(1)(b), leave to appeal is not required despite the passage of time, following Carlton v R [2014] NSWCCA 14.
  • The question of whether the ss 78 and 79 mechanism applies to convictions and sentences made in the exercise of federal jurisdiction was expressly reserved, with Leeming JA characterising it as a "large question."

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 68A, 78, 79, 86
- Criminal Appeal Act 1912 (NSW), ss 2, 5(1), 5D(1), 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Achurch v The Queen [2014] HCA 10
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Carlton v R [2014] NSWCCA 14
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
- Patsalis v Attorney General for New South Wales [2013] NSWCA 343
- Lodhi v Attorney General of New South Wales [2013] NSWCA 433
- A reference by the Attorney General re conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Mallard v R [2005] HCA 68; 224 CLR 125
- Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Butler v R [2012] NSWCCA 23