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Court of Criminal Appeal 5 June 2014

Imnetu v R

[2014] NSWCCA 99

Homicide
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR CONCEDED MURDER DETERMINING EFFECT OF STANDARD NON PAROLE PERIOD ABSENT ERROR

Citation: Imnetu v R [2014] NSWCCA 99
Court: Court of Criminal Appeal, New South Wales
Date: 5 June 2014
Judge(s): Basten JA; Fullerton J; RA Hulme J

Background

The appellant had been convicted of murder and sentenced to imprisonment. His case reached the Court of Criminal Appeal not through an ordinary appeal but via a referral under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), following an application for an inquiry into his sentence. The sentencing judge had assessed the murder as above the mid-range of objective seriousness.

The basis for the referral was a so-called "Muldrock error": the sentencing judge had applied the standard non-parole period provisions in a way that was later found to be incorrect by the High Court in Muldrock v The Queen [2011] HCA 39. The Crown conceded that such an error had occurred.

Despite that concession, the question before the Court was whether the error actually warranted a different sentence, and whether post-sentence developments in the appellant's favour (including educational achievements and positive prison conduct) could or should influence the outcome.

  • Whether procedural requirements under the Criminal Appeal Act 1912 (NSW), including leave and extensions of time, apply to Part 7 referrals
  • Whether an appellant in a Part 7 referral may raise grounds beyond those that formed the basis of the inquiry application
  • How the standard non-parole period should be applied, correctly, following Muldrock, and whether re-sentencing was warranted despite the conceded error
  • Whether post-offence conduct (study, discipline, rehabilitation) is a relevant consideration on re-sentencing following a Part 7 referral

Decision

Procedural scope of Part 7 referrals

Basten JA addressed several threshold questions about the operation of Part 7 referrals. Following Carlton v R [2014] NSWCCA 14, the Court confirmed that the procedural requirements of leave and extension of time under the Criminal Appeal Act do not apply to Part 7 referrals. The earlier tentative conclusion in GAR v R (No 2) [2010] NSWCCA 163 that those requirements applied generally was rejected.

On the question of whether an appellant may raise grounds unrelated to the subject of the inquiry, the Court acknowledged that the statutory language of "the whole case" is broad, and that High Court authority in Mallard and Mickelberg does not readily permit confining the grounds to those that triggered the referral. Basten JA noted that the point remained somewhat unsettled but that the direction of authority favoured a general right to raise additional grounds, subject to the court's power to exclude frivolous or vexatious matters.

The Muldrock error and re-sentencing

Although the Crown conceded the Muldrock error, Fullerton J (with RA Hulme J agreeing) concluded that the error did not warrant a lesser sentence. Correctly applying the standard non-parole period as a legislative guidepost rather than a mandatory benchmark, and taking into account the maximum penalty alongside the objective seriousness of the murder (assessed as above mid-range), the appropriate sentence remained the one originally imposed.

Post-offence conduct

The appellant relied on evidence of his conduct since sentence, including completion of numerous TAFE courses, a largely unblemished prison record, and a willingness to participate in a Violent Offenders Rehabilitation Program. Fullerton J acknowledged these achievements as commendable, but found they did no more than confirm what the sentencing judge had already predicted: that the appellant had sound prospects of rehabilitation. The mere passage of time and apparent maturation were not, of themselves, significant on the question of re-sentencing. The mitigating factors, including his personal circumstances as a foreign national with limited family support in Australia, were considered but did not tip the balance toward a reduced sentence.

Orders Made

  • Appeal against sentence dismissed.

Key Takeaways

  • A conceded Muldrock error does not automatically result in a lesser sentence; the Court must assess whether, applying the standard non-parole period correctly as a guidepost, the original sentence remains within a proper range.

  • Part 7 referrals under the Crimes (Appeal and Review) Act 2001 are not subject to the leave and extension of time requirements that ordinarily apply under the Criminal Appeal Act 1912, confirming the position established in Carlton v R.

  • The Court of Criminal Appeal left open, but did not finally resolve, whether an appellant in a Part 7 referral can raise grounds entirely unrelated to the subject of the original inquiry; the weight of existing authority tends toward permitting such grounds unless they are frivolous or vexatious.

  • Post-offence conduct such as prison study, good behaviour, and participation in rehabilitation programs is a relevant consideration on re-sentencing following a Part 7 referral, but the court will assess whether that conduct adds anything beyond what was already predicted at the time of original sentence.

  • Where a murder is assessed as above the mid-range of objective seriousness, the standard non-parole period and maximum penalty retain substantial weight as legislative guideposts even after a Muldrock error is established.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, 86; Pt 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Pt 4, Div 1A
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 26

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Carlton v R [2014] NSWCCA 14
- Mallard v The Queen [2005] HCA 68; 224 CLR 125
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- Kearns v R [2011] NSWCCA 103; 213 A Crim R 150
- GAR v R (No 2) [2010] NSWCCA 163
- A reference by the Attorney General re Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v JJT [2006] NSWCCA 283; 67 NSWLR 152
- House v The King [1936] HCA 40; 55 CLR 499
- R v Chard [1984] AC 279
- Ali v R [2014] NSWCCA 45
- Grant v R [2014] NSWCCA 67