Citation: [2014] NSWSC 390
Court: Supreme Court of New South Wales
Date: 4 April 2014
Judge: Bellew J
Background
The applicant was convicted by a jury in the District Court of one count of sexual intercourse with a child under the age of 10 years, an offence under s 66A of the Crimes Act 1900 carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years. The sentencing judge imposed a total term of 16 years imprisonment, with a non-parole period of 12 years commencing 12 May 2005.
The applicant successfully appealed to the Court of Criminal Appeal in 2006. That court confirmed the 16-year head sentence but reduced the non-parole period to 11 years, applying the then-prevailing sentencing framework established in R v Way (2004) 60 NSWLR 168.
Following the High Court's 2011 decision in Muldrock v R, which held that the Way approach was wrongly decided, the applicant applied under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into whether his sentence was infected by that error and should be referred to the Court of Criminal Appeal.
Legal Issues
- Whether the sentence imposed on the applicant gave rise to a "doubt or question as to a mitigating circumstance" under s 78 of the Crimes (Appeal and Review) Act 2001
- Whether a Muldrock-type sentencing error can found such a doubt or question
- Whether the Court of Criminal Appeal's adoption of a two-stage sentencing approach (as condemned in Muldrock) constituted error, notwithstanding that the overall sentence was confirmed on appeal
Decision
The Attorney-General conceded, appropriately in Bellew J's view, that the Court of Criminal Appeal judgment disclosed a Muldrock error. Kirby J's reasoning in the 2006 appeal had adopted the impermissible two-stage approach: first assessing the offence's objective seriousness against the mid-range, then separately asking whether the offender's personal circumstances justified departure from the standard non-parole period.
The High Court in Muldrock had specifically rejected this methodology. The correct approach requires a sentencing court to identify all relevant factors, including any prescribed standard non-parole period, and reach a single value judgment as to the appropriate sentence. Treating the standard non-parole period as a mandatory starting point, or giving it primary or determinative significance, is an error.
The Attorney-General submitted that despite the conceded error, no sense of disquiet should arise because the Court of Criminal Appeal had ultimately imposed the same overall sentence. Bellew J rejected that submission. His Honour held that the critical point was not the outcome but the method: the sentence was confirmed through an approach that Muldrock has since identified as erroneous, and that error was sufficient to give rise to a doubt or question as to a mitigating circumstance warranting referral.
Orders Made
- The application under s 78 of the Crimes (Appeal and Review) Act 2001 was granted.
- The matter was referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.
Key Takeaways
- A Muldrock-type sentencing error can give rise to a "doubt or question as to a mitigating circumstance" for the purposes of s 78 of the Crimes (Appeal and Review) Act 2001, following the Court of Appeal's decision in Sinkovich v Attorney-General of NSW [2013] NSWCA 383.
- Confirmation of an overall sentence by the Court of Criminal Appeal does not foreclose a subsequent s 78 application where that confirmation was itself reached through an erroneous sentencing methodology.
- Under Muldrock, it is an error to treat the standard non-parole period as a starting point or to give it primary significance; the sentencing court must instead make a single, holistic value judgment across all relevant factors.
- Where the Court of Criminal Appeal applied the since-condemned Way two-stage approach on a first appeal, the error survives that appeal and can support a fresh referral back to that court.
- Bellew J's reasoning is consistent with the approach taken in Application of Victor Makarov [2013] NSWSC 1468 and Application of Joy Lorraine Knight [2014] NSWSC 285, reflecting a body of Supreme Court authority on Muldrock applications under s 78.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66A
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B(2)
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- MLP v R [2006] NSWCCA 271
- R v Way (2004) 60 NSWLR 168
- Sinkovich v Attorney-General of NSW [2013] NSWCA 383
- Application of Victor Makarov pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468
- Application of Joy Lorraine Knight pursuant to s 78 Crimes (Appeal and Review) Act [2014] NSWSC 285