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Supreme Court 19 November 2014

Application by Jason Clive McCall pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001

[2014] NSWSC 1620

Homicide
CRIMINAL LAW WHERE APPLICANT WAS CONVICTED OF MURDER ERROR NOT MADE OUT APPLICATION REFUSED

Citation: Application by Jason Clive McCall pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1620
Court: Supreme Court of New South Wales
Date: 19 November 2014
Judge(s): Bellew J

Background

The applicant was convicted by jury in September 2007 of murder, following a planned kidnapping that ended with the victim being thrown from a cliff at The Gap, Watson's Bay. The sentencing judge, Barr J, imposed a non-parole period of 22 years, finding the offence was very serious and fell above the middle range of objective seriousness for murder. An application for leave to appeal against both conviction and sentence was refused out of time by the Court of Criminal Appeal in 2010.

The applicant then brought a fresh application under s. 78 of the Crimes (Appeal and Review) Act 2001, seeking referral of his matter to the Court of Criminal Appeal as a further appeal. The basis for the application was that the sentence imposed by Barr J was affected by what is known as "Muldrock error," arising from the High Court's 2011 decision in Muldrock v R.

  • Whether there was a "doubt or question as to a mitigating circumstance" sufficient to warrant referral to the Court of Criminal Appeal under s. 78 of the Crimes (Appeal and Review) Act 2001.
  • Whether the original sentencing judge gave the standard non-parole period for murder primary or determinative significance, constituting Muldrock error.
  • Whether the Court of Criminal Appeal, on the earlier sentence appeal, also fell into Muldrock error.

Decision

The application turned on whether the original sentencing fell into the error identified in Muldrock v R. In Muldrock, the High Court held that it was wrong to treat the standard non-parole period as a mandatory starting point, to give it primary or determinative weight, or to apply a two-stage sentencing process (first assessing whether the offence fell at the middle range of objective seriousness, then adjusting from there). The correct approach requires the sentencing court to identify all relevant factors and reach an overall value judgment.

Bellew J found no Muldrock error in Barr J's sentencing. Reading the judgment as a whole, Barr J had regard to all relevant factors, including the circumstances of the offending and the applicant's subjective case. His Honour's use of the phrase "bearing in mind...the standard non-parole period for murder of twenty years" indicated the standard non-parole period was used as a guide or yardstick only, which is a permissible approach. There was no indication that he gave it primary or determinative significance, nor that he applied a two-stage process.

Bellew J also rejected the submission that the Court of Criminal Appeal had fallen into Muldrock error. The single reference to the standard non-parole period in that court's reasons amounted to no more than noting that one existed. That fell well short of giving it primary or determinative significance.

Orders Made

  • The application was refused.

Key Takeaways

  • Using the standard non-parole period as a "guide or yardstick" in sentencing does not constitute Muldrock error; the error arises only where the standard non-parole period is treated as a mandatory starting point or given primary or determinative significance.
  • A sentencing judgment must be read as a whole when assessing whether Muldrock error occurred. Isolated references to the standard non-parole period do not establish error if the reasons, taken together, demonstrate that all relevant factors were considered.
  • Under s. 78 of the Crimes (Appeal and Review) Act 2001, an applicant must establish a "doubt or question as to a mitigating circumstance." Where alleged sentencing error is not made out, that threshold is not met and referral will be refused.
  • No Muldrock error was established in the Court of Criminal Appeal's earlier reasons simply because those reasons mentioned the standard non-parole period, where there was no indication that it was treated as determinative.
  • The High Court in Muldrock confirmed that R v Way had been wrongly decided, and the correct sentencing methodology requires a holistic value judgment incorporating all relevant factors, including any prescribed standard non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s. 78
- Crimes Act 1900 (NSW), s. 18
- Crimes (Sentencing Procedure) Act 1999 (NSW), s. 54B(2)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- McCall v R [2010] NSWCCA 174
- R v McCall [2007] NSWSC 1269
- The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468
- Achurch v R (No 2) [2013] NSWCCA 117; (2013) 84 NSWLR 328
- Black v R [2013] NSWCCA 265
- Butler v R [2012] NSWCCA 23
- Williams v R [2012] NSWCCA 172
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Application by Hoai Vin Tran pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 394