Citation: [2014] NSWSC 824
Court: Supreme Court of New South Wales
Date: 19 June 2014
Judge: Hoeben CJ at CL
Background
The applicant was convicted by jury of murder and sentenced in April 2006 by Newman AJ to a non-parole period of 20 years with an additional term of 6 years and 8 months. The offence arose from a late-night altercation in Campsie following a birthday celebration, in which the applicant retrieved a knife from his home and stabbed the deceased, a close friend, multiple times. The maximum penalty for murder is life imprisonment, and the standard non-parole period is 20 years.
The applicant successfully appealed his sentence to the Court of Criminal Appeal (CCA) in 2008. The CCA found that the primary judge had erred both in assessing the objective seriousness of the offence and in treating the standard non-parole period as a starting point rather than a reference point. On re-sentencing, the CCA reduced the non-parole period to 18 years with an additional term of 6 years and 2 months.
The applicant then brought this application under s 78(1) of the Crimes (Appeal and Review) Act 2001, seeking referral of his sentence to the CCA for further review. He argued that the CCA's own re-sentencing was infected by "Muldrock error," that is, that the standard non-parole period had been given undue or determinative weight contrary to the High Court's later decision in Muldrock v The Queen [2011] HCA 39.
Legal Issues
- Whether there was a doubt or question as to a mitigating circumstance sufficient to warrant referral of the sentence to the CCA under s 78(1) of the Crimes (Appeal and Review) Act 2001
- Whether the CCA's 2008 re-sentencing was infected by Muldrock error, specifically by giving primary or determinative significance to the standard non-parole period rather than applying the intuitive synthesis approach mandated by Markarian v The Queen
Decision
Hoeben CJ at CL accepted that, had the application rested solely on the original sentencing remarks of Newman AJ, Muldrock error would readily have been established. The primary judge had plainly given the standard non-parole period determinative effect. However, because the CCA had already re-exercised the sentencing discretion on appeal, the applicant needed to demonstrate that Muldrock error infected the CCA's re-sentencing, not the original sentence.
His Honour found that the applicant's submissions misconceived the CCA's approach. Far from giving the standard non-parole period determinative or mandatory significance, the CCA had in fact overturned the primary judge's sentence on precisely that basis: the primary judge had given excessive weight to the standard non-parole period and had failed to apply the Markarian principles. The CCA's own re-sentencing was conducted using the intuitive synthesis methodology that Markarian requires and that Muldrock later confirmed.
No Muldrock error was established in the CCA's re-sentencing process. Accordingly, Hoeben CJ at CL was not satisfied that any doubt or question arose as to a mitigating circumstance in the applicant's case, and the application was refused.
Orders Made
- The application under s 78(1) of the Crimes (Appeal and Review) Act 2001 was refused.
Key Takeaways
- A s 78 inquiry application directed at Muldrock error must focus on the most recent sentencing exercise, not the original sentence, where the original sentence has already been quashed and a re-sentence undertaken on appeal.
- The Court confirmed that the 2008 CCA re-sentencing was conducted on an intuitive synthesis basis consistent with Markarian, and therefore did not involve the error later described in Muldrock.
- No Muldrock error arises simply because a standard non-parole period was considered during sentencing; the error occurs where the period is treated as a mandatory starting point or given determinative weight rather than serving as one of several reference points.
- In refusing the application, the Court found no doubt or question as to any mitigating circumstance, which is the threshold required under s 78(1) before a matter may be referred to the CCA.
- Where the CCA has itself identified and corrected a sentencing court's improper reliance on a standard non-parole period, that correction is likely to be fatal to a later argument that the same error persisted in the CCA's re-sentencing.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 78(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54A, 54B(2)
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Way (2004) 60 NSWLR 168
- Apps v R [2006] NSWCCA 290
- R v Gil Bum Yun [2006] NSWSC 258
- Yun v R [2008] NSWCCA 114