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Court of Criminal Appeal 3 July 2015

O’Grady v R

[2015] NSWCCA 168

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR

Citation: O'Grady v R [2015] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 3 July 2015
Judges: Bathurst CJ, Rothman J, McCallum J

Background

The appellant was convicted after trial of specially aggravated break, enter and commit a serious indictable offence (robbery) under s 112(3) of the Crimes Act 1900 (NSW), carrying a maximum of 25 years imprisonment and a standard non-parole period of 7 years. The offence involved the appellant and two others entering the victim's apartment, seriously assaulting him, and stealing property while he was unconscious. The District Court sentenced the appellant to a non-parole period of 5 years and 6 months, with a balance of term of 3 years and 6 months.

The appellant filed his appeal almost three years after sentencing, seeking an extension of time to challenge the sentence on the basis that the sentencing judge had applied the now-disapproved approach from R v Way. A first appeal was dismissed by the Court of Criminal Appeal in November 2013, but the High Court allowed a further appeal and remitted the matter for redetermination in accordance with the principles set out in Kentwell v The Queen [2014] HCA 37.

  • Whether an extension of time to appeal should be granted, applying the principles from Kentwell v The Queen
  • Whether the sentencing judge committed "Muldrock error" by applying the two-stage R v Way approach to the standard non-parole period
  • Whether, if error was established, a lesser sentence was warranted in law on a fresh exercise of the sentencing discretion

Decision

The Court granted the extension of time, accepting that the delay was explained and that the interests of justice favoured allowing the appeal to proceed. Rothman J noted that the discretion to extend time is not confined to cases where refusal would cause substantial injustice, consistent with the High Court's guidance in Kentwell and in the earlier High Court decision in the appellant's own matter.

Leave to appeal was also granted. The Crown conceded that the sentencing judge had applied the R v Way two-stage approach, treating the standard non-parole period as a starting point and then making additions or subtractions. This was confirmed as an error following Muldrock v The Queen [2011] HCA 39, in which the High Court disapproved that methodology. The error was one that could have affected the sentence imposed.

Exercising the sentencing discretion afresh, Rothman J concluded that a head sentence of between 9 and 10 years was warranted, with a non-parole period of approximately 6 years. This exceeded the sentence that had actually been imposed. However, because no warning had been given to the appellant that an increased sentence might result from the re-sentencing exercise, it would have been erroneous to impose a greater sentence. Accordingly, no lesser sentence was found to be warranted in law and the appeal was dismissed.

Bathurst CJ, agreeing with Rothman J, added that where the Court considers a greater sentence warranted but cannot impose one due to the absence of a warning, it is not always necessary to specify the precise sentence that would have been imposed. It is generally sufficient for the judgment to demonstrate that the re-sentencing exercise was carried out and to provide reasons why a greater sentence was warranted.

Orders Made

  • Extension of time granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court confirmed that identifying a Muldrock error does not automatically result in a lesser sentence: the court must independently re-exercise the sentencing discretion and assess whether a lesser sentence is actually warranted.
  • Where no warning has been given to an appellant that a higher sentence may be imposed on re-sentencing, it would be erroneous for the Court of Criminal Appeal to increase the sentence when re-exercising the discretion under s 6(3) of the Criminal Appeal Act 1912.
  • The discretion to extend time to appeal is not limited to cases where refusal would cause substantial injustice; the broader interests of justice, assessed on the particular circumstances, govern the exercise of that discretion, as confirmed by the High Court in Kentwell v The Queen.
  • Bathurst CJ noted, without reaching a final conclusion, that it is generally sufficient for the judgment to demonstrate the re-sentencing exercise was conducted and to explain why a greater sentence was warranted, without specifying the precise sentence the Court would have imposed.
  • A sentence at the low end of the available range does not constitute an error warranting appellate interference, even where the appellate court would itself have imposed a higher sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947
- Kentwell v The Queen (No 2) [2015] NSWCCA 96
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- O'Grady v The Queen [2013] NSWCCA 281
- O'Grady v The Queen [2014] HCA 38; (2014) 88 ALJR 960
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- Parker v Director of Public Prosecutions (1992) 65 A Crim R 209