Citation: Application by Henry Edgar Des Rosiers pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 830
Court: Supreme Court of New South Wales
Date: 20 June 2014
Judge(s): Hoeben CJ at CL
Background
The applicant had pleaded guilty in 2005 to supplying a large commercial quantity of LSD, along with several related drug supply offences. Police had found a substantial quantity of LSD-impregnated paper at his home, together with MDMA and cannabis. Evidence from a telephone intercept indicated the applicant was overseeing large-scale production of LSD, having requested between 50,000 and 100,000 individual doses with instructions reaching as far as Thailand.
The applicant was sentenced by the District Court to a non-parole period of 12 years with an additional term of 6 years. He successfully appealed to the Court of Criminal Appeal, which reduced the sentences on the lesser counts but left the primary sentence intact, with his earliest release date remaining 19 April 2016.
The applicant then brought this application under s78 of the Crimes (Appeal and Review) Act 2001, seeking a referral of his sentence back to the Court of Criminal Appeal. He argued that the sentencing process had been infected by what is known as "Muldrock error," meaning the standard non-parole period had been given undue weight.
Legal Issues
- 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 had given the standard non-parole period undue or determinative weight, contrary to the High Court's decision in Muldrock v The Queen [2011] HCA 39 ("Muldrock error")
- Whether, in circumstances where a guilty plea had been entered and the standard non-parole period was treated as a benchmark rather than a fixed point, the sentencing process was tainted by error
Decision
Hoeben CJ at CL noted that the relevant sentence for scrutiny was the one imposed by the Court of Criminal Appeal, not the original District Court sentence, because the appeal had been successful and the applicant had been re-sentenced at that stage. The threshold test for a s78 referral is whether the material gives rise to a doubt or question as to a mitigating circumstance, including whether the judge experiences unease or disquiet in allowing the sentence to stand.
The Chief Judge examined the judgment of Latham J in the Court of Criminal Appeal and found no Muldrock error. Although Latham J had noted the sentencing judge erred in failing to identify a basis for departing from the standard non-parole period, this observation did not itself constitute the kind of error condemned by Muldrock. Latham J had used the standard non-parole period only as a "benchmark" and had not treated it as determinative.
The Chief Judge also observed that Latham J had correctly assessed the objective seriousness of the offence independently, finding it lay at or above the mid-range of gravity. This was consistent with the approach required by Muldrock, which affirms that objective seriousness remains a central element of sentencing. Latham J had also followed the process mandated in Markarian v The Queen, taking all relevant factors into account before making an overall value judgment.
Accordingly, Hoeben CJ at CL was not persuaded that any Muldrock error had occurred. No doubt or question as to mitigating circumstances was established, and the application was refused.
Orders Made
- The application was refused.
Key Takeaways
- A sentence imposed following a guilty plea is less susceptible to Muldrock error than one imposed after a jury verdict, because the structured two-stage approach that tends to give the standard non-parole period a mandatory character is less likely to arise.
- Referring to a standard non-parole period as a "benchmark" or "guideline," without treating it as determinative, is consistent with the approach required by Muldrock and does not constitute error.
- Where the Court of Criminal Appeal has re-sentenced an applicant, the Supreme Court's scrutiny under s78 falls on that re-sentencing, not the original sentence.
- A court's independent assessment of the objective seriousness of an offence is not itself evidence of Muldrock error; Muldrock confirms that objective seriousness remains a central sentencing consideration.
- The threshold for a s78 referral requires that the material produce genuine unease or disquiet about the sentence; in this case, no such doubt was established.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s78
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss54, 54B(4)
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Butler v R [2012] NSWCCA 23
- CDPP v Moore (2000) 112 A Crim R 331
- R v Rendell (1987) 32 A Crim R 243
- Re Pedrana (2000) 117 A Crim R 459
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Des Rosiers v Regina [2006] NSWCCA 16