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Supreme Court 27 November 2014

Application by Malik Spania pursuant to s78 Crimes (Appeal and Review) Act 2001

[2014] NSWSC 1688

Homicide
APPLICATION OFFENCE OF MURDER GUILTY PLEA NO OTHER MITIGATING CIRCUMSTANCE RAISED APPLICATION REFUSED.

Citation: Application by Malik Spania pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1688
Court: Supreme Court of New South Wales
Date: 27 November 2014
Judge(s): Hoeben CJ at CL

Background

The applicant was sentenced in March 2009 by Barr J to 24 years imprisonment with an 18-year non-parole period after pleading guilty to the murder of his brother. The killing occurred in September 2007 when the applicant shot his brother with a .22 calibre firearm at his unit, with the victim's five-year-old son present.

The applicant did not pursue a conventional appeal to the Court of Criminal Appeal. Instead, he applied to the Supreme Court under s78(1) of the Crimes (Appeal and Review) Act 2001, seeking a referral of his sentence to the Court of Criminal Appeal to be dealt with as an appeal.

The applicant raised three grounds: that his sentence was infected by so-called "Muldrock error" (explained below); that inadequate evidence of his physical disability was placed before the sentencing court; and that his legal representatives failed to properly advise him of his prospects, causing him to enter his guilty plea very late rather than at an earlier stage when a greater discount would have applied.

  • Whether Barr J gave the standard non-parole period for murder undue emphasis in sentencing, constituting "Muldrock error" as identified by the High Court in Muldrock v The Queen [2011] HCA 39
  • Whether insufficient evidence of the applicant's disability (caused by childhood polio) was placed before the sentencing court, raising a doubt or question as to a mitigating circumstance
  • Whether inadequate legal advice about prospects led to a late guilty plea, resulting in a reduced discount and a heavier sentence
  • Whether any of those matters constituted a "doubt or question as to a mitigating circumstance" for the purposes of s79(2) of the Act, sufficient to justify referral or inquiry

Decision

The Muldrock error ground. Hoeben CJ at CL examined the sentencing remarks of Barr J in detail. In Muldrock, the High Court held that treating the standard non-parole period as a "yardstick" or dominant sentencing reference point was an error. The Chief Judge found that Barr J's approach did not fall into that trap. Although Barr J referred to the standard non-parole period, his Honour assessed the offence as falling "a little below the mid-range of seriousness" and then applied the full range of aggravating and mitigating factors before arriving at the sentence. The standard non-parole period was treated as a reference point rather than a dominant or controlling factor, and no Muldrock error arose.

The disability ground. Barr J acknowledged at the time of sentencing that the evidence about the applicant's disability was incomplete, as expert evidence had been sought but not provided. Nonetheless, his Honour expressly accepted that the disability would make it harder for the applicant to serve his sentence, particularly in accessing prison programs, and took that into account in fixing the overall sentence. The applicant placed no evidence before Hoeben CJ at CL to demonstrate how any additional disability evidence would have raised a doubt or question about a mitigating circumstance, given that the disability was already recognised and considered.

The late plea ground. The Chief Judge found no evidence that the delay in entering the guilty plea resulted from deficient legal advice. The sentencing remarks indicated that much of the delay arose from the applicant's own conduct, including withdrawing instructions from trial counsel and aborting the first trial shortly before it was due to begin. There was therefore no basis for the Court to experience the necessary "doubt or question" as to a mitigating circumstance on this ground either.

Discretionary considerations. Hoeben CJ at CL noted that the Act gives the Court a discretion to refuse an application where available appeal rights have not been exercised, and the applicant had not sought leave to appeal to the Court of Criminal Appeal. In the ordinary course, the application would have been refused on that basis alone. However, because the issues were capable of relatively straightforward resolution, the Chief Judge proceeded to address them on the merits rather than defer or refuse solely on procedural grounds.

Orders Made

  • The application was refused.

Key Takeaways

  • A sentence does not contain Muldrock error merely because the sentencing judge referred to the standard non-parole period. The error arises only where that period was given undue or dominant weight rather than treated as one of multiple sentencing considerations.

  • Under s79(2) of the Crimes (Appeal and Review) Act 2001, an application for inquiry based on mitigating circumstances requires the applicant to demonstrate a genuine "doubt or question" as to those circumstances; bare assertions unsupported by evidence are insufficient.

  • Where a sentencing judge expressly acknowledges and accounts for a mitigating factor, even imperfectly, the mere availability of additional supporting evidence does not of itself establish that the existing sentence should be questioned.

  • The s78 process is an exercise of administrative rather than judicial power, and the Act provides a discretion to refuse applications where conventional appeal rights have not been exercised first.

  • In this case, the Chief Judge departed from the usual practice of refusing on procedural grounds only because the substantive issues were straightforwardly resolved against the applicant, avoiding further delay.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78(1), 79(2), 79(3)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), s 18
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
- Sinkovich v Attorney General of NSW [2013] NSWCA 383
- Application by Bill Bayeh under Section 78 Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1358
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Application of Peter Holland [2001] NSWSC 251
- Application of Rendell (1987) 32 A Crim R 243
- R v Spania [2009] NSWSC 148