Citation: Application by RHB pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 504
Court: Supreme Court of New South Wales
Date: 16 May 2014
Judge(s): Bellew J
Background
The applicant had been convicted of two offences: the manslaughter of a child in 1993, and the murder of a young child in 2004. At first instance, Hall J sentenced the applicant to a total of 30 years imprisonment with a non-parole period of 24 years and 6 months. The murder sentence included a non-parole period of 20 years, which was the standard non-parole period prescribed for that offence.
Both the applicant and the Director of Public Prosecutions appealed to the Court of Criminal Appeal. The Court of Criminal Appeal upheld the applicant's appeal on the basis of an internal inconsistency in the sentence structure, and resentenced the applicant accordingly. The Crown's appeal against the adequacy of the sentence was dismissed.
The applicant then brought a fresh application under s. 78 of the Crimes (Appeal and Review) Act 2001, seeking referral of the matter to the Court of Criminal Appeal as a further appeal. The applicant argued that the original sentence was infected by what has become known as "Muldrock error," a sentencing methodology later declared erroneous by the High Court.
Legal Issues
- Whether the sentencing judge at first instance committed "Muldrock error" by treating the standard non-parole period as a starting point rather than as a statutory reference point, contrary to what the High Court later held in Muldrock v R (2011) 244 CLR 120.
- Whether any such error in the original sentence survived the Court of Criminal Appeal's resentencing exercise.
- Whether there was a "doubt or question as to a mitigating circumstance" sufficient to warrant referral to the Court of Criminal Appeal under s. 78 of the Crimes (Appeal and Review) Act 2001.
Decision
Bellew J accepted that Hall J's original sentencing approach was infected by Muldrock error. Reading the sentencing remarks as a whole, his Honour found that Hall J had used the standard non-parole period as a starting point and then asked whether circumstances justified departure from it. This was precisely the methodology the High Court later held to be wrong in Muldrock v R.
However, the critical question was not whether the original sentence was erroneous, but whether that error had any continuing effect after the Court of Criminal Appeal resentenced the applicant. Bellew J concluded it did not. The judgment of Basten JA in the Court of Criminal Appeal demonstrated that, on resentencing, the standard non-parole period was used as a guide rather than in a determinative way. Basten JA had regard to all relevant factors, including the objective seriousness of the offending and subjective matters, without anchoring the analysis to the standard non-parole period.
Because the Court of Criminal Appeal had itself conducted a fresh and methodologically sound sentencing exercise, any Muldrock error in the original sentence was cured. There was therefore no surviving "doubt or question as to a mitigating circumstance" capable of founding a referral under s. 78. The application was refused.
Orders Made
- The application was refused.
Key Takeaways
- Muldrock error at first instance does not automatically warrant a further referral to the Court of Criminal Appeal under s. 78 where the Court of Criminal Appeal has already resentenced the offender using a correct methodology.
- The test under s. 78 of the Crimes (Appeal and Review) Act 2001 requires a demonstrated "doubt or question as to a mitigating circumstance." Establishing that a trial judge's original approach was erroneous is insufficient if the error was corrected on appeal.
- Where the Court of Criminal Appeal conducts a fresh sentencing exercise on appeal, that exercise must itself be examined for error. The original judge's flawed approach becomes irrelevant if the appellate court applied the correct principles independently.
- Sentencing remarks must be read as a whole when assessing whether Muldrock error is established, but that holistic reading does not rescue a judgment where the primary significance given to the standard non-parole period is clear from the remarks.
- The distinction between using the standard non-parole period as a "starting point" (impermissible after Muldrock) and using it as a "guide" alongside all relevant factors (permissible) remained central to the court's analysis.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s. 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss. 21A, 43, 54A, 61
- Criminal Appeal Act 1912 (NSW), s. 6(3)
- Crimes Act 1900 (NSW)
Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Way (2004) 60 NSWLR 168
- Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236
- R v RHB [2007] NSWSC 1466
- Black v R [2013] NSWCCA 265
- Sinkovich v Attorney-General of NSW [2013] NSWCA 383
- The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468
- The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285