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Court of Criminal Appeal 12 June 2015

Aytugrul v R

[2015] NSWCCA 139

Homicide
APPEAL SENTENCING MURDER “MULDROCK ERROR” GROUND UPHELD APPLICANT RESENTENCED

Citation: Aytugrul v R [2015] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 12 June 2015
Judge(s): Beazley P, Simpson J, Adamson J (Simpson J delivering the principal judgment; Beazley P and Adamson J agreeing)

Background

The applicant was convicted in 2008 of the murder of a woman with whom he had previously been in a relationship. The sentencing judge, R A Hulme J, imposed a total term of 28 years' imprisonment with a non-parole period of 21 years, commencing 5 June 2007. The standard non-parole period for murder under the Crimes (Sentencing Procedure) Act 1999 (NSW) is 20 years.

The applicant had originally appealed only against conviction, not sentence. That appeal was dismissed by the Court of Criminal Appeal in 2010, and a subsequent High Court appeal was dismissed in 2012. He then sought leave to challenge the sentence out of time, arguing it was affected by the error identified in Muldrock v The Queen [2011] HCA 39.

Because significant time had passed since sentencing, the applicant required an extension of time to seek leave to appeal. The Crown initially opposed that extension but ultimately conceded both the extension and that leave ought to be granted.

  • Whether the sentencing judge had given primary or determinate weight to the standard non-parole period, constituting Muldrock error
  • Whether an extension of time to seek leave to appeal should be granted given the delay
  • What sentence was appropriate upon resentencing, taking into account all relevant circumstances

Decision

Simpson J, with whom Beazley P and Adamson J agreed, upheld the ground of appeal. The sentencing judge's remarks disclosed the hallmarks of Muldrock error: the judge had assessed whether the offence sat at or above the "middle of the range" and used that assessment to determine whether to impose the standard non-parole period, rather than treating that period as only one of many relevant factors in arriving at an appropriate sentence.

On the question of extension of time, the Court noted that the delay arose from the applicant's focus on his conviction appeal, which was not resolved until the High Court dismissed it in 2012. The concessions by the Crown were described as appropriate and reflecting the realities of sentence appeals following Muldrock.

On resentencing, the Court characterised the objective gravity of the offence as high. The murder was brutal, preceded by a sustained campaign of stalking and harassment, and committed in the victim's own home. The Court noted that the applicant was well aware the victim was the sole parent of an eight-year-old daughter, a circumstance relevant to objective gravity. While the Court found it possible to make a somewhat more favourable assessment of rehabilitation prospects than the sentencing judge had, that assessment was tempered by the applicant's continued refusal to accept responsibility.

The Court imposed a total sentence of 27 years' imprisonment, with a non-parole period of 20 years and 3 months. Applying the standard proportion under s 44(2) of the Crimes (Sentencing Procedure) Act, no special circumstances warranting departure from that ratio were found. The Court noted that a sentence different from the one originally imposed does not signal error in the original sentence; it reflects only that a range of sentences was properly available.

Orders Made

  • Time in which to file an application for leave to appeal extended to 29 July 2013
  • Leave to appeal granted
  • Appeal allowed; sentence imposed on 16 April 2009 set aside
  • Applicant resentenced to a non-parole period of 20 years and 3 months commencing 5 June 2007 and expiring 4 September 2027, with a balance of term of 6 years and 9 months expiring 4 June 2034

Key Takeaways

  • Muldrock error was established where the sentencing judge structured the analysis around whether the offence sat at the "middle of the range" and then used that finding to determine whether the standard non-parole period should apply, rather than treating it as one factor among many.
  • An extension of time to seek leave to appeal against sentence was granted where the applicant had pursued conviction appeals to the High Court before turning to sentence, and the Crown ultimately conceded the extension was appropriate.
  • Under Muldrock, the correct approach requires a court to take the standard non-parole period into account as a guidepost, without according it primary or determinative weight in the sentencing exercise.
  • When the Court of Criminal Appeal resentences after finding error, a different sentence from the one originally imposed does not indicate that the original sentence was itself outside the available range; it confirms only that multiple sentences within a range may all be lawful.
  • A victim's status as the sole parent of a young child was treated as a circumstance relevant to the objective gravity of a murder, where the offender was aware of that status before committing the offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A; s 44(2)

Cases:
- Aytugrul v R [2010] NSWCCA 272; 205 A Crim R 157
- Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- R v Davis [2015] NSWCCA 90
- R v Way [2004] NSWCCA 131; 60 NSWLR 168