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Supreme Court 29 April 2014

Application by FB pursuant to s 78 Crimes (Appeal and Review) Act 2001

[2014] NSWSC 485

Sexual offences
CRIMINAL LAW APPLICATION GRANTED

Citation: Application by FB pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 485
Court: Supreme Court of New South Wales
Date: 29 April 2014
Judge(s): Schmidt J

Background

The applicant had been convicted of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), involving sexual intercourse with a 14-year-old student at a school where he was principal. In November 2010, the District Court sentenced him to 6 years and 6 months imprisonment with a non-parole period of 4 years. That sentence was made concurrent with a sentence he was already serving for other sexual offences.

The Crown appealed the sentence as manifestly inadequate. The Court of Criminal Appeal allowed the appeal and re-sentenced the applicant to 10 years imprisonment with a non-parole period of 6 years. In doing so, the Court of Criminal Appeal applied sentencing principles derived from R v Way, which treated the standard non-parole period as effectively requiring justification before any departure from it.

The applicant then sought a review of the re-sentenced term under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), arguing that the Court of Criminal Appeal's approach was infected by what has come to be known as "Muldrock error."

  • Whether the Court of Criminal Appeal's sentencing decision contained a Muldrock error, that is, whether it wrongly treated the standard non-parole period as a dominant or presumptive benchmark rather than one of many relevant factors
  • Whether a Muldrock error can constitute a "mitigating circumstance" for the purpose of s 79(2) of the Crimes (Appeal and Review) Act 2001, thereby permitting a referral to the Court of Criminal Appeal
  • Whether the matter should first proceed to a formal inquiry under s 79(1)(a) or be referred directly to the Court of Criminal Appeal as an appeal under s 79(1)(b)

Decision

Both the applicant and the NSW Attorney General agreed that the Court of Criminal Appeal's 2011 re-sentencing decision displayed Muldrock error. The relevant passages of that judgment treated departure from the standard non-parole period as requiring justification, a method that the High Court subsequently held in Muldrock v The Queen [2011] HCA 39 to be legally incorrect. Schmidt J accepted that this common position raised the requisite "sense of disquiet" needed to warrant a referral under s 79.

The Court considered whether Muldrock error could constitute a "mitigating circumstance" within s 79(2) of the Crimes (Appeal and Review) Act. Relying on Sinkovich v Attorney General of New South Wales [2013] NSWCA 383, Schmidt J confirmed that such an error, where sentencing principles were applied incorrectly and may have produced a more severe sentence than was warranted, can give rise to a doubt or question about circumstances having the potential to mitigate the sentence. That threshold was met here.

Schmidt J declined to first order a formal inquiry under s 79(1)(a). Because the error was one of legal principle rather than factual dispute, and because no new evidence was in issue, there was no need for prior investigation. The matter was appropriate for direct referral to the Court of Criminal Appeal to determine whether the Muldrock error actually affected the sentence imposed following the Crown appeal.

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.

Key Takeaways

  • A Muldrock error, where a sentencing court treats the standard non-parole period as a dominant or presumptive benchmark requiring specific justification for departure, can constitute a "mitigating circumstance" for the purposes of s 79(2) of the Crimes (Appeal and Review) Act 2001, permitting referral to the Court of Criminal Appeal.
  • Sufficient evidence of Muldrock error existed here where the Court of Criminal Appeal expressly framed its analysis around whether the original sentencing judge had adequately justified a non-parole period substantially below the standard, a methodology disapproved in Muldrock.
  • Under s 79 of the Crimes (Appeal and Review) Act, once a referral threshold is met, the whole case goes to the Court of Criminal Appeal on all questions of fact and law, consistent with the approach confirmed in Mallard v R [2005] HCA 68.
  • Where Muldrock error is a pure question of legal principle and does not involve contested facts or new evidence, a preliminary inquiry under s 79(1)(a) is not required before direct referral.
  • The Attorney General's concession that the re-sentencing was infected by the erroneous R v Way approach carried significant weight, though the Crown did not concede that the sentence ultimately imposed was inappropriate, leaving that question for the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, 82
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B; Part 4, Division 1A

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- FB v Regina; Regina v FB [2011] NSWCCA 217
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
- Mallard v R [2005] HCA 68; 224 CLR 125
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251