Citation: [2014] NSWSC 505
Court: Supreme Court of New South Wales
Date: 16 May 2014
Judge(s): Bellew J
Background
The applicant was sentenced in the District Court on four sexual offences, including two offences of aggravated indecent assault, one aggravated indecent assault with circumstances of aggravation, and one offence of sexual intercourse with a child under 10. The sentencing judge imposed an aggregate term of 11 years imprisonment with a non-parole period of 8 years. Each offence carried a prescribed standard non-parole period under the relevant sentencing legislation.
The applicant unsuccessfully appealed to the Court of Criminal Appeal in 2011. He then brought this application under s. 78 of the Crimes (Appeal and Review) Act 2001, which allows a person to seek an inquiry into their conviction or sentence on the ground that a doubt or question arises as to a mitigating circumstance. The applicant argued his sentence was infected by what is commonly called "Muldrock error."
Muldrock error refers to an erroneous approach to sentencing established by the decision in R v Way (2004), which the High Court in Muldrock v R (2011) subsequently declared was wrong. Under Way, courts gave primary or determinative significance to standard non-parole periods as a starting point, rather than treating them as one of many relevant factors in a holistic sentencing assessment.
Legal Issues
- Whether the sentencing judge gave primary or determinative significance to the standard non-parole periods in a manner inconsistent with Muldrock v R.
- Whether the Court of Criminal Appeal's approach to the manifestly excessive ground was similarly infected by Muldrock-style error.
- Whether a doubt or question as to a mitigating circumstance arose, sufficient to warrant referral of the matter to the Court of Criminal Appeal.
- Whether the sentencing judge erred in stating that the standard non-parole period for one of the offences was 8 years rather than 5 years.
Decision
Bellew J rejected the argument that the sentencing judge had erred in stating the standard non-parole period applicable to one of the offences. Referring to his own earlier judgment in FD v R, which traced the relevant legislative history, his Honour was not satisfied that any such error had been made out.
On the Muldrock question, Bellew J examined the sentencing remarks carefully and found nothing to indicate that the sentencing judge had given primary or determinative significance to the standard non-parole periods, nor any indication that she had adopted the two-stage approach that Muldrock condemned. On the contrary, a reading of the remarks as a whole supported the conclusion that the judge had identified all relevant factors in determining the appropriate sentence.
Turning to the Court of Criminal Appeal's reasoning, Bellew J acknowledged that McClellan CJ at CL had referred to the standard non-parole periods at several points in his judgment. However, his Honour concluded that when the judgment was read as a whole, those references showed the non-parole periods were being used as a guide or benchmark, which was a permissible use. There was no indication that primary or determinative significance had been given to them.
Finding no Muldrock-type error in either the original sentencing or the appellate review, Bellew J was not satisfied that any doubt or question as to a mitigating circumstance arose. The application was refused.
Orders Made
- The application was refused.
Key Takeaways
- A Muldrock-type error is not established merely because a sentencing judge referred to standard non-parole periods; the court must be satisfied that those periods were given primary or determinative significance, or that a two-stage sentencing approach was adopted.
- When assessing whether Muldrock error infected a sentence, the relevant judgment must be read as a whole rather than in isolated passages.
- Referring to standard non-parole periods as a guide or benchmark in sentencing remains permissible following Muldrock v R; such references do not, of themselves, indicate error.
- The fact that Way was wrongly decided does not automatically vitiate sentences passed before Muldrock that made reference to standard non-parole periods, a principle Bellew J applied consistently with earlier Court of Criminal Appeal authority.
- Under s. 78 of the Crimes (Appeal and Review) Act 2001, an applicant must satisfy the court that a doubt or question as to a mitigating circumstance actually arises; an arguable or theoretical error that cannot be substantiated on a reading of the sentencing remarks will not meet that threshold.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss. 61M(1), 61M(2), 66A
- Crimes (Appeal and Review) Act 2001 (NSW), s. 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), s. 54B(2)
- Crime (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Way (2004) 60 NSWLR 168
- HJWG v R [2011] NSWCCA 50
- FD v R [2013] NSWCCA 139
- Williams v R [2012] NSWCCA 172
- Butler v R [2012] NSWCCA 23
- Achurch v R (No 2) [2013] NSWCCA 117
- 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
- R v McEvoy [2010] NSWCCA 110