Citation: [2014] NSWSC 825
Court: Supreme Court of New South Wales
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 5,000 ecstasy tablets, weighing over 1,464 grams against a threshold of 500 grams) and supplying a trafficable quantity of ecstasy (80 tablets found when he was later arrested). He also pleaded guilty to assaulting a police officer. The trial judge sentenced him to a principal term of 20 years imprisonment with a non-parole period of 15 years for the large commercial quantity offence.
The applicant successfully appealed to the Court of Criminal Appeal (CCA) in 2009. The CCA found the trial judge had erred both in assessing the objective seriousness of the offence and in her application of the standard non-parole period framework. The CCA re-sentenced the applicant, reducing the non-parole period to 12 years with a balance of term of 4 years.
The applicant then brought this further application to the Supreme Court under s78(1) of the Crimes (Appeal and Review) Act 2001, seeking referral of his sentence back to the CCA to be dealt with as a fresh appeal. He argued that the CCA's own 2009 re-sentencing was infected by "Muldrock error," meaning the standard non-parole period was given undue or determinative weight in that re-sentencing exercise.
Legal Issues
- Whether the applicant's sentencing gave the standard non-parole period determinative significance, constituting "Muldrock error" within the meaning of Muldrock v The Queen [2011] HCA 39
- Whether any such error in the original District Court sentencing survived the CCA's 2009 re-sentencing
- Whether the CCA's own re-sentencing was itself infected by Muldrock error, so as to raise a doubt or question about a mitigating circumstance warranting a further referral
Decision
The relevant judgment for review is the CCA's, not the District Court's.
Hoeben CJ at CL accepted that the District Court judge had given the standard non-parole period determinative significance, which would have constituted Muldrock error if that sentence had stood. However, because the CCA identified that error and re-exercised the sentencing discretion itself, it is the CCA's 2009 judgment that falls to be examined under the s78 application, not the original District Court sentence.
No Muldrock error in the CCA's re-sentencing.
A proper reading of the CCA's judgment showed that the court expressly identified the trial judge's excessive focus on the standard non-parole period as an error. Critically, when the CCA came to re-sentence the applicant, it did not refer to the standard non-parole period at all. It applied the instinctive synthesis approach endorsed by the High Court in Markarian v The Queen, which the plurality in Muldrock subsequently confirmed as the correct method.
Reference to objective seriousness does not indicate error.
The applicant argued that the CCA's focus on the objective seriousness of the offence showed it was still anchored to the standard non-parole period framework. Hoeben CJ at CL rejected this. The plurality in Muldrock itself recognised that assessing the objective seriousness of an offence is a legitimate and necessary part of the sentencing process. That assessment is distinct from treating the standard non-parole period as a mandatory starting point or giving it determinative weight.
No doubt or question warranting referral.
Because the CCA had already identified and corrected the relevant error, there was no basis to conclude that a further hearing before the CCA would produce a different outcome. Accordingly, no doubt or question as to a mitigating circumstance was established, and the application was refused.
Orders Made
- Application refused.
Key Takeaways
- Where the Court of Criminal Appeal has identified sentencing error and re-exercised the sentencing discretion itself, it is the CCA's re-sentencing judgment, not the original trial court sentence, that must be assessed in a subsequent s78 application under the Crimes (Appeal and Review) Act 2001.
- A Muldrock error claim will not succeed simply because the original sentencing judge gave the standard non-parole period determinative significance, if the CCA has already corrected that error on appeal and applied the instinctive synthesis approach in its own re-sentencing.
- Assessing the objective seriousness of an offence during sentencing does not, of itself, indicate Muldrock error. The Muldrock plurality expressly recognised objective seriousness as a legitimate and necessary consideration in determining an appropriate sentence.
- No doubt or question as to a mitigating circumstance arises for the purposes of s78 of the Crimes (Appeal and Review) Act 2001 where the court is satisfied that a further referral to the CCA would not result in any different approach to sentencing.
- In dismissing the application, the court confirmed that the Muldrock error doctrine requires examination of what the re-sentencing court actually did, not merely whether a lower court's approach was flawed before the appeal process corrected it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
- Criminal Appeal Act 1912
- Drug Misuse and Trafficking Act 1985 (NSW).
Cases
- Bolt v Regina [2012] NSWCCA 50
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Xiao Feng Wang v R [2009] NSWCCA 223