AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
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: 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, carrying a maximum of 25 years' imprisonment and a standard non-parole period of seven years. On 17 September 2010, the District Court sentenced him to a non-parole period of five years and six months, with a balance of term of three years and six months. The sentencing judge applied the two-stage approach then mandated by R v Way, setting the standard non-parole period as a starting point and adjusting from it.

The appellant sought an extension of time to appeal out of time, nearly three years after sentencing. An initial application was dismissed by the Court of Criminal Appeal in November 2013. The High Court allowed the subsequent appeal against that dismissal and remitted the matter to the Court of Criminal Appeal for fresh determination.

The sole ground of appeal was that the sentencing judge had committed what practitioners refer to as "Muldrock error," meaning the application of the two-stage Way approach to sentencing that the High Court later declared impermissible in Muldrock v The Queen.

Legal Issues

  • Whether an extension of time to appeal should be granted, and what principles govern that question following the High Court's decision in Kentwell v The Queen
  • Whether the sentencing judge committed identifiable error by applying the two-stage Way approach to sentencing
  • Whether, on re-sentencing, a lesser or greater sentence was warranted, and whether the absence of a warning against increased sentence constrained the Court's discretion

Decision

Extension of Time:
The Court granted the extension of time. The delay had been explained by a refusal of legal aid for the sentence appeal and a notice of intention to appeal being filed only in relation to conviction. Following the High Court's guidance in Kentwell, the interests of justice are not confined to cases of substantial injustice, and the prospect of success must be assessed alongside the s 6(3) question and all other relevant factors. The Crown consented to the extension, which the Court found further supported the grant (at [24]-[28]).

Muldrock Error:
The Court found that the sentencing judge had adopted an impermissible two-stage approach, setting the standard non-parole period and then making additions or subtractions from it. The Crown conceded this was an error of the kind described in House v The King, being a misapplication of principle (at [18]-[21]). The error could have affected the sentence imposed, so leave to appeal was granted (at [43]).

Re-sentencing and the Increased Sentence Constraint:
Having identified error, the Court was required to exercise the sentencing discretion independently, giving no weight to the sentence imposed below (at [41]). On that independent exercise, Rothman J concluded that a head sentence of between nine and ten years was warranted, with a non-parole period reduced by approximately nine months from the statutory ratio to reflect special circumstances (at [45]-[46]). However, because no warning had been given that an increased sentence was a possible outcome, it would have been erroneous to impose a greater sentence than that originally imposed (at [2], at [47]). Accordingly, the Court found no lesser sentence was warranted in law and dismissed the appeal (at [47]).

No Obligation to Always State the Sentence That Would Have Been Imposed:
Bathurst CJ and Rothman J each noted that, where the Court's re-sentencing exercise produces a figure higher than the sentence imposed, it is not always strictly necessary to specify the precise sentence the Court would have imposed. It is generally sufficient for the judgment to demonstrate that the re-sentencing exercise was genuinely carried out and to give reasons why a greater sentence was warranted in law (at [3], at [49]).

Orders Made

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

Key Takeaways

  • Where no warning has been given to an appellant that an increased sentence may result from re-exercise of the sentencing discretion under s 6(3) of the Criminal Appeal Act 1912, imposing a sentence higher than that originally imposed would be erroneous, even if the Court's independent re-sentencing exercise would otherwise warrant it (at [2], at [47]).

  • A sentencing judge's application of the two-stage Way methodology, involving additions or subtractions from the standard non-parole period, constitutes identifiable Muldrock error that may ground leave to appeal even where the application is brought well out of time (at [18]-[19], at [43]).

  • Under the principles confirmed in Kentwell v The Queen, the discretion to extend time is not confined to cases of substantial injustice. The court weighs the interests of justice broadly, including the prospects of success, the s 6(3) question of whether a different sentence is warranted, and any other relevant considerations (at [24]-[25]).

  • Once leave to appeal is granted and error disclosed, the Court of Criminal Appeal must exercise the sentencing discretion afresh and give no weight to the sentence imposed below (at [41]).

  • In dismissing the appeal despite finding error, the Court indicated it need not always specify the precise sentence it would have imposed when concluding that no lesser sentence is warranted in law. Demonstrating that the re-sentencing exercise was genuinely undertaken, with reasons why a greater sentence was warranted, will generally suffice (at [3], at [49]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Appeal Act 1912

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
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- O’Grady v The Queen [2013] NSWCCA 281
- O’Grady v The Queen [2014] HCA 38; (2014) 88 ALJR 960
- Parker v Director of Public Prosecutions (1992) 65 A Crim R 209
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465