Citation: [2014] NSWSC 709
Court: Supreme Court of NSW
Date: 3 June 2014
Judge(s): Bellew J
Background
The applicant was convicted by a jury in April 2008 on two counts of aggravated sexual assault upon a 15-year-old victim and one count of detaining for advantage. The offences were serious: both sexual assault counts involved force, penile/vaginal intercourse, and a breach of the employment relationship between the applicant and the victim. In December 2008, Judge Puckeridge QC in the District Court imposed a total effective sentence of 14 years and 6 months imprisonment, with a non-parole period of 10 years and 6 months.
The applicant subsequently appealed to the Court of Criminal Appeal (CCA), which found a calculation error in the head sentence on the second count and reduced that sentence accordingly. All other grounds of appeal, including manifest excess, were dismissed. The CCA noted that the standard non-parole period provisions had "direct application" to the case and confirmed that the sentences were not unreasonable or plainly unjust.
In this application, the applicant sought a further inquiry under s.78 of the Crimes (Appeal and Review) Act 2001, asking the Supreme Court to refer the matter to the CCA as a fresh appeal. The basis for that request was the contention that the original sentencing and the CCA's review were both infected by what is known as "Muldrock error."
Legal Issues
- Whether there was a "doubt or question as to a mitigating circumstance" sufficient to warrant referral to the CCA under s.78 of the Crimes (Appeal and Review) Act 2001
- Whether the District Court judge at first instance gave primary or determinative significance to the standard non-parole period, constituting Muldrock error
- Whether the CCA's reasoning on appeal was itself infected by Muldrock error
Decision
Bellew J explained the relevant legal framework by reference to Muldrock v R [2011] HCA 39, in which the High Court held that treating the standard non-parole period as a "target" or dominant sentencing factor is an impermissible approach to sentencing. The correct approach requires consideration of all relevant factors, with the standard non-parole period treated merely as a legislative guide.
On the sentencing judge's conduct, Bellew J found no Muldrock error. The sentencing judge had worked through the full range of aggravating and mitigating factors, including the applicant's background, remorse, difficult upbringing in Afghanistan, psychological reports, and the nature of the offending, before arriving at his sentences. His Honour expressly stated that he had "balanced" all those matters, and there was nothing to indicate he gave the standard non-parole period primary or determinative weight or employed an impermissible two-stage process.
On the CCA judgment, Bellew J rejected the applicant's argument that the CCA's reference to the "direct application" of the standard non-parole period mirrored the error identified in Achurch v R (No 2) [2013] NSWCCA 117. Bellew J emphasised that assessing Muldrock error requires reading the judgment as a whole, not focusing on an isolated passage. Read in full, the CCA's judgment demonstrated that the entirety of the circumstances had been taken into account.
Bellew J was therefore not persuaded that any Muldrock-type error arose at either stage of the proceedings, and found no "doubt or question" as to the existence of a mitigating circumstance. The application was refused.
Orders Made
- The application was refused.
Key Takeaways
- A s.78 application grounded in Muldrock error requires demonstration that the sentencing court gave primary or determinative significance to the standard non-parole period, rather than using it as one of many guiding considerations.
- Assessing whether Muldrock error occurred demands consideration of the judgment as a whole. Reliance on isolated passages or single statements, extracted without regard to the full reasoning, is an erroneous approach (Black v R [2013] NSWCCA 265).
- The fact that a sentencing judge or appellate court noted that the standard non-parole period had "direct application" to a case does not, on its own, establish Muldrock error.
- No two s.78 applications are decided by analogy alone. The existence of Muldrock error in one case (such as Achurch (No 2)) does not automatically produce the same outcome in a different case where the full reasoning discloses no equivalent error.
- Under s.78, referral to the CCA is only warranted where the court entertains genuine doubt or a question as to a mitigating circumstance. Where no such doubt exists, the application will be refused.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 86(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Majid v R [2010] NSWCCA 121
- Achurch v R (No 2) [2013] NSWCCA 117
- Black v R [2013] NSWCCA 265
- Butler v R [2012] NSWCCA 23
- R v Way (2004) 60 NSWLR 168
- Sinkovich v Attorney-General of New South Wales [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