Citation: Versluys v R [2014] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 10 June 2014
Judges: Simpson J, Hidden J, Hamill J (Hamill J delivering the principal judgment)
Background
The appellant was convicted by a jury in December 2005 of murdering his de facto partner by strangulation. In March 2006, Newman AJ sentenced him to a non-parole period of 20 years, with an additional term of six years and eight months. Both a conviction appeal and a sentence appeal were dismissed by the Court of Criminal Appeal in 2008.
In December 2013, Latham J referred the matter back to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001, on the basis that the original sentencing proceedings were affected by what had since been identified as "Muldrock error." The sole ground of appeal was that Newman AJ, and subsequently the Court on appeal, had misapplied the standard non-parole period legislation.
The parties did not dispute that the error was made out. The central task for the Court on re-hearing was therefore to determine an appropriate sentence from scratch.
Legal Issues
- Whether the original sentencing miscarried because Newman AJ applied the standard non-parole period framework in accordance with R v Way, which the High Court later held was wrongly decided in Muldrock v The Queen [2011] HCA 391
- Whether the original sentence should serve as a "yardstick" when imposing a fresh sentence
- What total sentence and non-parole period were appropriate upon re-sentencing, taking into account objective gravity, subjective circumstances, and relevant guideposts including the 20-year standard non-parole period and the maximum of life imprisonment
Decision
In Muldrock v The Queen, the High Court held that R v Way was wrongly decided. A sentencing judge applying the standard non-parole period provisions is not required to commence by asking whether the offence falls within the middle range of objective seriousness, nor to adopt a two-stage approach. Instead, the judge must identify all relevant factors, assess their significance, and arrive at an appropriate sentence by a global value judgment.
Hamill J found that the original sentencing judgment was a particularly clear example of Muldrock error. Newman AJ had expressly applied R v Way and concluded that the objective features of the offence outweighed the mitigating factors such that the standard non-parole period should be imposed. This approach was fundamentally flawed, and Hamill J held the original sentence should not be used as a yardstick when re-sentencing.
The Court accepted the factual findings of Newman AJ as to the objective gravity of the offence without challenge. Those findings included that the appellant intended to cause grievous bodily harm when he strangled the deceased, that the fatal neck compression lasted at least four minutes, that he had previously threatened to do exactly what he did, and that there was a vast physical difference between the appellant and the victim.
On re-sentencing, Hamill J assessed 24 years as an appropriate starting point, then reduced the total by a modest amount to give effect to the utilitarian value of admissions and the manner in which the trial was conducted. A total sentence of 23 years and six months was imposed. The non-parole period of 17 years and six months was slightly rounded down from the figure that would result from a strict mathematical application of s 44 of the Crimes (Sentencing Procedure) Act 1999. Hamill J found special circumstances only to the extent necessary to justify that rounding adjustment, noting that a period of six years was adequate for the appellant to re-adjust to community life.
Orders Made
- Appeal allowed
- Sentence imposed by Newman AJ quashed
- Appellant re-sentenced to imprisonment for 23 years and six months, commencing 27 July 2004 and concluding 26 January 2028
- Non-parole period of 17 years and six months, commencing 27 July 2004 and concluding 26 January 2022
- Earliest parole eligibility date: 26 January 2022
Key Takeaways
- The Court of Criminal Appeal confirmed that applying the R v Way framework at original sentencing constituted a fundamental error following Muldrock v The Queen, and that this error warranted a full re-sentencing exercise rather than any adjustment from the original sentence.
- Where a sentencing judge has committed Muldrock error, the original sentence must not serve as a yardstick for re-sentencing; the appellate court approaches the task afresh.
- Under the correct Muldrock approach, a sentencing judge must identify all relevant factors and exercise a holistic value judgment, treating the standard non-parole period as one guidepost rather than the starting point of a two-stage inquiry.
- A referral under Part 7 of the Crimes (Appeal and Review) Act 2001 removes the requirement for leave to appeal when the matter returns to the Court of Criminal Appeal, following Carlton v R [2014] NSWCCA 14.
- Hidden J noted that finding "special circumstances" solely for the purpose of rounding off a non-parole period to a convenient figure is likely unnecessary, suggesting a degree of caution about relying on that mechanism for that purpose alone.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), including ss 78, 79
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 54A, 54B
Cases:
- Muldrock v The Queen [2011] HCA 391
- Markarian v The Queen [2005] HCA 25
- Carlton v R [2014] NSWCCA 14
- Kentwell v R [2013] NSWCCA 266; O'Grady v R [2013] NSWCCA 281; Kentwell v The Queen; O'Grady v The Queen [2014] HCATrans 113
- R v Douar [2005] NSWCCA 455
- Akkawi v R [2012] NSWCCA 11
- Lee v R [2011] NSWCCA 169
- R v Fahda [2013] NSWCCA 86
- Versluys v R [2008] NSWCCA 76
- Apps v R [2006] NSWCCA 290
- Beldon v R [2012] NSWCCA 194
- Various sentence comparison decisions including R v Borg, R v Cox, R v Edwards, R v Harvey, R v Heffernan, R v Holcroft, and Carr v R