Citation: [2014] NSWSC 394
Court: Supreme Court of New South Wales
Date: 9 April 2014
Judge: Bellew J
Background
The applicant was convicted of murder following a jury trial in October 2009 and sentenced to a non-parole period of 20 years imprisonment. He subsequently appealed to the Court of Criminal Appeal, which found error in the original sentence and re-sentenced him to a non-parole period of 18 years with a balance of term of 6 years, giving a total sentence of 24 years.
The applicant then brought an application under s. 78 of the Crimes (Appeal and Review) Act 2001, seeking to have the matter referred to the Court of Criminal Appeal as a further appeal. He argued that there was a doubt or question as to a mitigating circumstance, specifically that the sentence imposed on him was infected by so-called "Muldrock error."
Muldrock error arises from the High Court's 2011 decision in Muldrock v R, which held that sentencing courts had been wrongly treating the standard non-parole period as a mandatory starting point and adopting an impermissible two-stage sentencing process. The applicant contended that both the original sentencing judge and the Court of Criminal Appeal had fallen into this error.
Legal Issues
- Whether there was a doubt or question as to a mitigating circumstance sufficient to warrant referral under s. 78 of the Crimes (Appeal and Review) Act 2001
- Whether the original sentencing judge adopted an approach subsequently condemned in Muldrock v R
- Whether the Court of Criminal Appeal, when re-sentencing the applicant, also committed Muldrock error
- Whether a single passage from the Court of Criminal Appeal's judgment, read in isolation, was sufficient to establish that the re-sentencing was infected by error
Decision
Bellew J accepted that Mathews AJ, the original sentencing judge, had clearly adopted the two-stage sentencing approach and given the standard non-parole period primary significance, both of which Muldrock subsequently identified as erroneous. This aspect of the applicant's complaint was not contested.
However, the critical question was whether the Court of Criminal Appeal had replicated that error when it re-sentenced the applicant. The applicant pointed to a particular paragraph in Hidden J's judgment (at [39]) as evidencing an impermissible adherence to the two-stage approach and an overemphasis on the objective seriousness classification. Bellew J rejected that contention.
His Honour emphasised that it is incorrect to assess whether Muldrock error has been established by focusing on an isolated passage of a judgment. Consistent with the Court of Criminal Appeal's own repeated observations, the reasons for sentence must be read as a whole. When the Court of Criminal Appeal's judgment was viewed in that way, the passage the applicant highlighted reflected no more than a correct and uncontroversial observation about the importance of assessing objective gravity.
Bellew J found that Hidden J had considered both the objective seriousness of the offending and the applicant's subjective circumstances, and had arrived at the sentence by a process of instinctive synthesis, identifying all relevant factors and making an overall value judgment. There was no indication that the standard non-parole period was given primary or determinative significance, and the application was refused.
Orders Made
No formal orders were recorded beyond the refusal of the application.
Key Takeaways
- Muldrock error at first instance does not automatically infect a subsequent re-sentencing by the Court of Criminal Appeal; each stage must be assessed independently.
- Establishing Muldrock error requires reading the reasons for sentence as a whole, not extracting and relying on a single passage in isolation.
- The Court of Criminal Appeal confirmed on multiple occasions (including in Black v R) that a cherry-picked excerpt cannot, by itself, demonstrate that primary or determinative significance was given to the standard non-parole period.
- Where a sentencing court considers both objective seriousness and subjective factors and arrives at an overall value judgment, that process is consistent with the correct "instinctive synthesis" approach endorsed in Muldrock.
- Under s. 78 of the Crimes (Appeal and Review) Act 2001, an application for inquiry will be refused where the applicant fails to establish a doubt or question as to the existence of a mitigating circumstance.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s. 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss. 21A, 54B(2)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Black v R [2013] NSWCCA 265
- The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285
- The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468
- Sinkovich v Attorney-General of NSW [2013] NSWCA 383
- Versluys v R [2008] NSWCCA 76
- R v Way (2004) 60 NSWLR 168