Citation: [2014] NSWSC 826
Court: Supreme Court of New South Wales
Date: 19 June 2014
Judge(s): Hoeben CJ at CL
Background
The applicant had pleaded guilty in the Local Court to multiple drug supply offences, including one count of supplying a large commercial quantity of a prohibited drug (cocaine) contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The District Court sentenced him in March 2010, imposing an overall term of 16 years with a non-parole period of 12 years and 6 months, after allowing a 45 percent discount for an early guilty plea and assistance to authorities.
The applicant successfully appealed to the Court of Criminal Appeal, which found error in the primary judge's assessment of the objective seriousness of the principal count and re-sentenced him. The re-sentence resulted in a total non-parole period of 9 years and 6 months with a balance of term of 3 years.
The applicant then brought this application under s78 of the Crimes (Appeal and Review) Act 2001, seeking a further inquiry into his sentence and a referral back to the Court of Criminal Appeal. He argued that his sentencing had been infected by "Muldrock error," meaning that the standard non-parole period had been given undue or determinative weight, contrary to the High Court's decision 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 case, within the meaning of s79(2) of the Crimes (Appeal and Review) Act 2001.
- Whether the Court of Criminal Appeal's re-sentencing was infected by Muldrock error, specifically by giving the standard non-parole period determinative significance or by engaging in an impermissible two-stage sentencing process.
Decision
Hoeben CJ at CL began by clarifying the correct focus of the application. Because the Court of Criminal Appeal had already identified error at first instance and re-exercised the sentencing discretion itself, the application needed to demonstrate that the Court of Criminal Appeal's own re-sentencing process was flawed. It was not sufficient to point to error by the original District Court sentencing judge.
The applicant's central difficulty was that the Court of Criminal Appeal had made no reference to the standard non-parole period at all, either in identifying the error below or in re-sentencing. The applicant's case effectively invited the court to infer Muldrock error from the length of the sentence imposed, without identifying any specific aspect of the Court of Criminal Appeal's reasoning that was infected by the error. Hoeben CJ at CL found that submission unpersuasive.
The court noted that what the Court of Criminal Appeal had actually focused on was the primary judge's erroneous factual finding about the objective seriousness of the principal offence, correcting that finding from "significantly above the midrange" to "modestly above the midrange." Properly assessing objective seriousness is not only permissible but required under Muldrock, which endorsed it as an essential element of the sentencing exercise.
Hoeben CJ at CL concluded that no Muldrock error had occurred in the re-sentencing, that there was no basis for any doubt or question as to a mitigating circumstance, and refused the application accordingly.
Orders Made
- The application for an inquiry into sentence was refused.
Key Takeaways
- A s78 application for an inquiry into sentence, where the Court of Criminal Appeal has already re-sentenced the applicant, must identify error in the Court of Criminal Appeal's own re-sentencing process rather than in the original first-instance sentence.
- No Muldrock error arises where the Court of Criminal Appeal makes no reference to the standard non-parole period, does not treat it as determinative, and does not engage in a two-stage sentencing process.
- Inviting an inference of Muldrock error from sentence length alone, without pointing to specific reasoning that gave the standard non-parole period undue emphasis, is insufficient to establish a doubt or question as to a mitigating circumstance.
- Under Muldrock, properly assessing the objective seriousness of an offence is not impermissible. The High Court confirmed that meaningful content must be given to the standard non-parole period by reference to objective seriousness, assessed without regard to characteristics of the offender.
- Refusing the application, the Supreme Court confirmed that general submissions about the effect of Muldrock on R v Way, expressed without direct application to the specific reasoning of the Court of Criminal Appeal, do not satisfy the threshold for referral.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 167
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Buttrose v R [2011] NSWCCA 35
- R v Way [2004] NSWCCA 131