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Court of Criminal Appeal 16 April 2015

Dennis v R

[2015] NSWCCA 61

Homicide
CRIMINAL LAW MURDER ASSERTED MULDROCK ERROR PAROLE PERIOD ERROR NOT ESTABLISHED APPLICATION TO EXTEND TIME REFUSED.

Citation: Dennis v R [2015] NSWCCA 61
Court: Court of Criminal Appeal, NSW
Date: 16 April 2015
Judges: R A Hulme J, Davies J, Bellew J (unanimous)

Background

The applicant was convicted by jury of murdering a 23-month-old child and sentenced in December 2009 to 26 years and 8 months imprisonment, with a non-parole period of 20 years. The prescribed standard non-parole period for the murder of a child under 18 is 25 years. A prior appeal against conviction was dismissed by the Court of Criminal Appeal in 2012.

Following the High Court's decision in Muldrock v R (2011), Legal Aid NSW reviewed the applicant's file for potential sentencing error. After legal aid was granted, submissions were filed and a notice of application for leave to appeal was lodged in July 2013. The matter was then held over pending related High Court decisions in Kentwell v R and O'Grady v R, which were handed down in October 2014.

The applicant then sought an extension of time to seek leave to appeal against sentence, arguing the sentencing judge had committed a Muldrock error in applying the standard non-parole period legislation.

  • Whether the applicant was entitled to an extension of time to seek leave to appeal against sentence
  • Whether the sentencing judge gave primary or determinative significance to the prescribed standard non-parole period (a Muldrock error)
  • Whether the sentencing judge adopted an impermissible two-stage approach to sentencing rather than the required instinctive synthesis
  • Whether the sentencing judge failed to make proper allowance for the applicant's youth and subjective circumstances

Decision

The Court refused the extension of time, finding that no Muldrock error had been established. A key factor in the extension of time analysis was whether the proposed appeal had genuine prospects of success: because no error could be made out, there was no basis to grant the extension.

The Court considered the sentencing remarks as a whole rather than focusing on isolated passages. Bellew J concluded that the sentencing judge had not adopted a two-stage process, and that his detailed treatment of objective seriousness and the applicant's subjective circumstances reflected the required approach of instinctive synthesis, in which all relevant considerations are weighed together rather than treated as sequential steps.

The applicant's argument that the non-parole period had "driven" the ultimate result was characterised as necessarily speculative. The submission required reading into the sentencing remarks words that were simply not there. Paragraphs [23] and [24] of the sentencing remarks, read together, showed the judge weighing the objective seriousness of the offending against the applicant's subjective case rather than mechanically applying the standard non-parole period.

The Court also rejected the submission that the sentencing judge had failed to properly account for the applicant's youth and subjective circumstances. The sentencing remarks contained exhaustive consideration of those matters across multiple paragraphs, explicitly describing the subjective features as "strong" and noting that the applicant's young age assisted him.

Orders Made

  • Application for an extension of time refused.

Key Takeaways

  • In assessing a Muldrock error, the sentencing remarks must be read in their entirety rather than by isolating discrete statements or passages.
  • A submission that the standard non-parole period "drove" the sentencing outcome will not succeed where it requires reading words into the reasons that the sentencing judge simply did not use.
  • The prospects of success of the proposed appeal constitute a material consideration when a court determines whether to grant an extension of time to seek leave to appeal.
  • No Muldrock error arises merely because a sentencing judge does not use the precise language of "reference point" or "guidepost," provided the reasons as a whole demonstrate a proper weighing of all relevant considerations.
  • Detailed and extensive treatment of an offender's subjective circumstances in the sentencing remarks is consistent with the instinctive synthesis approach and weighs against a finding that those circumstances were inadequately considered.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Kentwell v R [2014] HCA 37
- O'Grady v R [2014] HCA 38
- Dennis v R [2012] NSWCCA 120 (prior conviction appeal)
- R v Dennis [2009] NSWSC 1357 (original sentencing)
- Aldous v R [2012] NSWCCA 153
- Black v R [2013] NSWCCA 265
- Essex v R [2013] NSWCCA 11