Citation: Application by Xiao Feng Wang pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825
Court: Supreme Court of NSW
Date: 19 June 2014
Judge(s): Hoeben CJ at CL
Background
The applicant was convicted after a jury trial in the NSW District Court in 2006 on two drug supply offences: supplying a large commercial quantity of a prohibited drug (almost 1,465 grams of MDMA, well above the 500-gram threshold for that category) and supplying a trafficable quantity of ecstasy. He was also convicted of assaulting a police officer. The offences arose from observations of a drug handover at Strathfield Park in July 2005, followed by the applicant's arrest a short distance away with a further 80 ecstasy tablets in his possession.
The District Court sentenced the applicant to 20 years imprisonment with a non-parole period of 15 years for the principal offence. The applicant successfully appealed to the Court of Criminal Appeal (CCA), which in 2009 found error in the sentencing judge's approach and re-sentenced him to a non-parole period of 12 years with a balance of term of four years.
In the present application, the applicant sought a further inquiry into his sentence under s78 of the Crimes (Appeal and Review) Act 2001, arguing that the CCA's re-sentencing was itself infected by so-called "Muldrock error," that is, giving undue determinative weight to the standard non-parole period in a way subsequently disapproved by the High Court in Muldrock v The Queen [2011] HCA 39.
Legal Issues
- Whether there was a doubt or question as to a mitigating circumstance in the applicant's sentence, so as to warrant referral to the CCA under s78 of the Crimes (Appeal and Review) Act 2001.
- Whether the CCA's 2009 re-sentencing was infected by Muldrock error, specifically by giving the standard non-parole period determinative significance rather than treating it as one of two legislative guideposts.
- Whether the CCA's reference to the objective seriousness of the offence was itself indicative of a Muldrock-type approach.
Decision
Hoeben CJ at CL refused the application. His Honour found that the CCA had, before Muldrock was decided, already identified and corrected the very error the applicant now raised. The sentencing judge (Sweeney DCJ) had given the standard non-parole period determinative significance, and the CCA expressly treated this as an error when granting leave and allowing the appeal.
Critically, when the CCA re-sentenced the applicant, it applied the instinctive synthesis approach described in Markarian v The Queen, which was subsequently endorsed by the plurality in Muldrock itself. The CCA did not refer to the standard non-parole period when re-sentencing, and there was nothing in its reasoning to suggest the period was given undue weight.
The applicant's argument that the CCA's focus on objective seriousness was indicative of Muldrock error was rejected. Hoeben CJ at CL noted that Muldrock itself recognised the importance of assessing objective seriousness as part of the overall sentencing exercise; the concept of objective seriousness is built into the statutory definition of the standard non-parole period and is not inherently problematic.
Because the CCA had already identified and remedied the relevant error, and had re-sentenced using a methodology consistent with Muldrock, his Honour concluded there was no basis for doubting that a further referral would produce any different outcome. Accordingly, no doubt or question as to a mitigating circumstance existed and the application was refused.
Orders Made
- The application was refused.
Key Takeaways
- A successful sentence appeal, in which the Court of Criminal Appeal identifies and corrects undue reliance on the standard non-parole period, can preclude a subsequent s78 inquiry application on the same Muldrock-error ground.
- The relevant sentencing for the purpose of a s78 inquiry is the sentence actually imposed by the CCA on re-hearing, not the original sentence imposed at first instance.
- Re-sentencing using the instinctive synthesis method described in Markarian, without reference to the standard non-parole period as a dominant factor, is consistent with the approach later confirmed by the High Court in Muldrock.
- Under Muldrock, assessing the objective seriousness of an offence is a legitimate and required part of the sentencing process; a court's reference to objective seriousness does not, of itself, indicate that the standard non-parole period was given determinative weight.
- No doubt or question as to a mitigating circumstance will arise where the alleged error has already been addressed, and there is no reasonable prospect that a further hearing would produce a different result.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s78
- Drug Misuse and Trafficking Act 1985 (NSW), ss25(1) and 25(2)
- Crimes Act 1900 (NSW), s58
- 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
- Xiao Feng Wang v R [2009] NSWCCA 223
- Bolt v Regina [2012] NSWCCA 50