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Supreme Court 19 June 2014

Application by Duong Hai Nguyen pursuant to s78 Crimes (Appeal and Review) Act 2001

[2014] NSWSC 823

Assault & violenceHomicide
APPLICATION APPLICANT CONVICTED AFTER TRIAL APPLICATION REFUSED.

Citation: Application by Duong Hai Nguyen pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 823
Court: Supreme Court of New South Wales
Date: 19 June 2014
Judge(s): Hoeben CJ at CL

Background

The applicant was convicted after trial of murder and maliciously inflicting grievous bodily harm with intent, arising from a premeditated armed attack at a billiards venue in Cabramatta in January 2004. At the original sentencing in 2006, the applicant received a total non-parole period of 25 years. On appeal in 2007, the Court of Criminal Appeal allowed the murder sentence appeal, reducing the total non-parole period to 22 years commencing 30 January 2004.

The applicant then brought a further application under s78(1) of the Crimes (Appeal and Review) Act 2001, seeking referral of his sentence to the Court of Criminal Appeal as a fresh appeal. The basis for the application was that his sentence was affected by what is known as "Muldrock error," a sentencing error identified by the High Court in 2011 concerning the improper use of standard non-parole periods.

  • Whether there was a "doubt or question as to a mitigating circumstance" sufficient to warrant referral of the sentence to the Court of Criminal Appeal under s78 of the Crimes (Appeal and Review) Act 2001.
  • Whether the Court of Criminal Appeal's 2007 re-sentencing was infected by Muldrock error, specifically by treating the standard non-parole period as a mandatory starting point or by applying an impermissible two-stage sentencing process.

Decision

The central question was whether the Court of Criminal Appeal's re-sentencing in 2007 had applied the approach later condemned in Muldrock v The Queen (2011). That High Court decision held that it was an error to treat the standard non-parole period as a mandatory benchmark or to employ a two-stage process by which a court first assessed whether the offence fell at the midrange and then treated the standard non-parole period as a required starting point.

Hoeben CJ at CL examined the 2007 Court of Criminal Appeal judgment closely. He found that the Court had made no substantive reference to the standard non-parole period in its re-sentencing reasoning, referring to it only when recounting the original sentencing judge's findings. While the Court of Criminal Appeal did describe the murder as falling in the midrange of objective seriousness, the Chief Judge noted that assessing objective seriousness is not itself an error. The Court of Criminal Appeal had properly considered all objective and subjective factors using an intuitive synthesis approach, precisely the methodology endorsed by the High Court in Muldrock.

There was no indication that the Court of Criminal Appeal had treated s54B(2) of the Crimes (Sentencing Procedure) Act 1999 as mandatory, or that it had given the standard non-parole period determinative significance. Because no Muldrock error could be identified in the re-sentencing, the Chief Judge was not persuaded that any doubt or question arose as to a mitigating circumstance. The application was accordingly refused.

Orders Made

  • The application for inquiry into sentence under s78(1) of the Crimes (Appeal and Review) Act 2001 was refused.

Key Takeaways

  • A sentence will not be treated as infected by Muldrock error merely because the sentencing court described an offence as falling within the midrange of objective seriousness. Assessing objective seriousness is a legitimate and necessary part of the sentencing exercise.
  • Where the Court of Criminal Appeal re-sentenced an offender without engaging in a two-stage process and without treating the standard non-parole period as mandatory, no Muldrock error arises, even if the original first-instance sentencing predated that High Court decision.
  • Under s78 of the Crimes (Appeal and Review) Act 2001, an application for inquiry into sentence requires the court to be satisfied that a doubt or question exists as to a mitigating circumstance. The possibility of Muldrock error may constitute such a circumstance, but the applicant must establish a real basis for the claim.
  • No error was established on the facts here because the Court of Criminal Appeal's 2007 re-sentencing had applied the intuitive synthesis approach, identifying all relevant objective and subjective factors and making a value judgment as to the appropriate sentence.
  • In dismissing the application, the Supreme Court reinforced that merely showing a sentence was imposed pre-Muldrock is insufficient. What matters is whether reliance on the superseded Way approach sufficiently infected the actual sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 33
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Nguyen & Ors [2006] NSWSC 850
- Nguyen & Ors v R [2007] NSWCCA 363
- Butler v R [2012] NSWCCA 23
- Zarakas v R [2013] NSWCCA 144
- R v Way [2004] NSWCCA 131