Citation: Application by AZ pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 256
Court: Supreme Court of New South Wales
Date: 17 March 2014
Judge(s): Hoeben CJ at CL
Background
The applicant had pleaded guilty in the Local Court to two serious offences: supplying a large commercial quantity of MDMA (over 1,000 grams, more than double the large commercial quantity threshold) and possessing a prohibited firearm. Police had discovered the drugs, a loaded keyring pistol, a substantial amount of cash, and equipment consistent with drug manufacturing when executing a search warrant at the applicant's home in western Sydney in November 2008.
The applicant was originally sentenced at Campbelltown District Court in August 2010. The sentencing judge allowed a 50 percent combined discount for an early guilty plea and significant assistance to authorities, which included information that led to a murder charge against another person. The Crown successfully appealed that sentence as manifestly inadequate, and the Court of Criminal Appeal re-sentenced the applicant in March 2011 to an overall term of eight years with a non-parole period of five years and ten months.
In this application, the applicant sought a further inquiry into that re-sentence under s 78 of the Crimes (Appeal and Review) Act 2001, asking the Supreme Court to refer the matter back to the Court of Criminal Appeal as a fresh appeal.
Legal Issues
- Whether there was a "doubt or question as to a mitigating circumstance" within the meaning of s 78 of the Crimes (Appeal and Review) Act 2001 sufficient to warrant referral to the Court of Criminal Appeal.
- Whether the re-sentencing by the Court of Criminal Appeal was infected by "Muldrock error," that is, whether the standard non-parole period was given undue or determinative weight in the sentencing process contrary to the High Court's decision in Muldrock v The Queen [2011] HCA 39.
Decision
The applicant's core submission was that the Court of Criminal Appeal judge (Johnson J) had impermissibly applied the standard non-parole periods as a primary or determinative reference point rather than as one of many relevant factors. This is the type of error identified by the High Court in Muldrock, which requires sentencing courts to engage in a holistic assessment of all relevant factors rather than treating the standard non-parole period as a fixed starting point.
Hoeben CJ at CL rejected that submission. His Honour found that Johnson J had not engaged in the two-stage sentencing process condemned in Muldrock. Rather, Johnson J had identified error on the part of the original sentencing judge (specifically, a failure to adequately assess the objective seriousness of the offences) and had then conducted a thorough re-sentencing exercise in accordance with the approach approved in Markarian v The Queen, taking all relevant factors into account and making a holistic value judgment.
The Chief Judge noted that when Johnson J referred to the standard non-parole period, he described it as a "persuasive benchmark or guidepost," not as a primary or determinative consideration. That characterisation was consistent with the proper role of the standard non-parole period as confirmed in Muldrock. No Muldrock error was established, and accordingly the Court found no doubt or question as to mitigating circumstances that would justify referral.
Orders Made
- The application was refused.
Key Takeaways
- Describing a standard non-parole period as a "persuasive benchmark or guidepost" rather than a primary or determinative factor is consistent with the approach required by Muldrock and does not constitute Muldrock error.
- A successful Crown appeal that results in re-sentencing shifts the focus of any subsequent s 78 application entirely to the sentence imposed by the Court of Criminal Appeal, not the original sentence.
- Under s 78 of the Crimes (Appeal and Review) Act 2001, the Supreme Court must identify an actual doubt or question as to a mitigating circumstance before referring a matter for further appellate review; the mere possibility of sentencing error is insufficient.
- Where a sentencing court identifies error in failing to assess objective seriousness and then conducts a thorough holistic re-sentencing exercise, that process satisfies the requirements of both Muldrock and Markarian.
- Assessing the objective gravity of an offence has always been an integral part of the sentencing process, and conducting such an assessment does not in itself give the standard non-parole period undue emphasis.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- 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
- R v AZ [2011] NSWCCA 43
- Aitchison v R [2012] NSWCCA 82