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Supreme Court 3 June 2014

Application by Simon Monteiro pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001

[2014] NSWSC 710

Sexual offencesTheft & propertyPublic order & justice offences
CRIMINAL LAW WHETHER EVIDENCE OF MULDROCK ERROR ERROR ESTABLISHED APPLICATION GRANTED

Citation: [2014] NSWSC 710
Court: Supreme Court of New South Wales
Date: 3 June 2014
Judge(s): Bellew J

Background

The applicant had been convicted by a jury of aggravated sexual assault under s 61J of the Crimes Act 1900 and had pleaded guilty to two further offences involving destroying property and larceny. Judge Norrish QC in the District Court sentenced him to an overall term of 12 years and 3 months imprisonment, with a non-parole period of 7 years and 9 months. The head sentence for the s 61J offence was 11 years, with a non-parole period of 6 years and 6 months, well below the prescribed standard non-parole period of 10 years.

Both the applicant and the Crown appealed to the Court of Criminal Appeal. The Court of Criminal Appeal dismissed the applicant's conviction appeal, granted leave on the sentence appeal but dismissed it, and also dismissed the Crown's appeal against the sentence as manifestly inadequate.

The applicant subsequently applied under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his sentence. Section 78 allows the Supreme Court to refer a matter to the Court of Criminal Appeal if there is a doubt or question as to a mitigating circumstance. The applicant argued that the sentencing process was infected by error identified in the High Court's decision in Muldrock v R (2011) 244 CLR 120.

  • Whether a Muldrock-type error can give rise to a "doubt or question as to a mitigating circumstance" for the purposes of s 78 of the Crimes (Appeal and Review) Act 2001.
  • Whether the District Court sentencing judge applied an impermissible two-stage approach to the standard non-parole period, contrary to Muldrock.
  • Whether the Court of Criminal Appeal's approach to the standard non-parole period was infected by Muldrock error.
  • Whether any error found warranted referral of the matter to the Court of Criminal Appeal.

Decision

Bellew J first noted that the Attorney-General's submission that Muldrock error cannot found a s 78 application was unsustainable, following the Court of Appeal's decision in Sinkovich v Attorney-General of New South Wales [2013] NSWCA 383.

On the sentencing judge's remarks, Bellew J found no error. Reading the sentencing remarks as a whole, his Honour was satisfied that Judge Norrish QC had regard to all relevant factors and used the standard non-parole period as a guide or yardstick rather than as a mandatory starting point or determinative benchmark. That approach remains permissible under Muldrock.

The Court of Criminal Appeal's reasoning was a different matter. Simpson J had stated in terms that the standard non-parole period "is to be imposed unless the sentencing judge finds that there is a basis for departure." Bellew J held this formulation treated the standard non-parole period in a determinative way, precisely the approach the High Court condemned in Muldrock when it overruled R v Way. The Attorney-General's counsel ultimately accepted that the Court of Criminal Appeal judgment was infected by Muldrock error and that no discretionary basis existed to refuse the application.

Bellew J was satisfied that the error gave rise to a doubt or question as to a mitigating circumstance and granted the application, referring the matter to the Court of Criminal Appeal.

Orders Made

  • The application was granted.
  • The matter was referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

Key Takeaways

  • Muldrock error can constitute a "doubt or question as to a mitigating circumstance" for the purposes of a s 78 application, as confirmed by the Court of Appeal in Sinkovich.
  • A sentencing judge's use of the standard non-parole period as a guide or yardstick, alongside all other relevant factors, does not of itself constitute Muldrock error.
  • Where a court frames the standard non-parole period as the default sentence absent reasons to depart from it, that framing treats the period as determinative and falls into the error condemned by the High Court in Muldrock.
  • The Court of Criminal Appeal's dismissal of a sentence appeal does not insulate a sentence from later s 78 scrutiny where the appellate reasoning itself was infected by Muldrock error.
  • Counsel for the Attorney-General's express concession that the Court of Criminal Appeal judgment was infected by Muldrock error, and that no discretionary ground to refuse the application arose, was treated as determinative on those questions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 195(1)(a), 117
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(2)
- Criminal Appeal Act 1912 (NSW)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Way (2004) 60 NSWLR 168
- Sinkovich v Attorney-General of New South Wales [2013] NSWCA 383
- Monteiro v R; R v Monteiro [2011] NSWCCA 113
- Butler v R [2012] NSWCCA 23
- Zreika v R [2012] NSWCCA 44
- The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1468
- The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285