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Court of Criminal Appeal 27 April 2015

Kutschera v R

[2015] NSWCCA 73

Homicide
CRIMINAL LAW OFFENCE OF MURDER EXISTENCE OF “MULDROCK ERROR” CONCEDED EXTENSION OF TIME SHOULD BE ALLOWED NEED TO RE SENTENCE

Citation: Kutschera v R [2015] NSWCCA 73
Court: Court of Criminal Appeal
Date: 27 April 2015
Judge(s): Hoeben CJ at CL, Hall J, R A Hulme J

Background

The applicant was convicted by jury of murder following an incident in Muswellbrook in July 2007. After a confrontation outside a hotel in the early hours of the morning, he drove back to the scene in his motor vehicle and ran over the deceased, who was lying on the footpath. He was sentenced in November 2008 to a non-parole period of 20 years with a balance of term of 6 years and 8 months. An earlier appeal against conviction was dismissed.

The applicant subsequently sought leave to appeal against the severity of his sentence, well outside the ordinary time limit. He relied on the High Court's 2011 decision in Muldrock v The Queen, which fundamentally changed the correct approach to standard non-parole periods in New South Wales sentencing. Legal Aid's post-Muldrock review team identified this case as one in which the sentencing error had likely occurred.

A further delay arose while the courts worked through the proper test for granting extensions of time in Muldrock-related appeals, ultimately resolved by the High Court in Kentwell v The Queen and O'Grady v The Queen in 2014.

  • Whether an extension of time should be granted to allow a late appeal against sentence
  • Whether the sentencing judge had applied the standard non-parole period in a manner that constituted "Muldrock error"
  • If error was established, what sentence should be imposed on re-sentencing, taking into account both the original facts and developments since the original sentence

Decision

The Crown conceded that Muldrock error had occurred. The sentencing judge had treated the standard non-parole period as determinative where the offence fell within the middle range of objective seriousness, then asked whether there were reasons to depart from it. This two-stage approach was the very methodology disapproved by the High Court in Muldrock.

Because specific error was established, the interests of justice required that an extension of time be granted. Following the guidance in Kentwell, the Court then exercised the sentencing discretion afresh rather than asking whether the error had affected the outcome. The Court was bound to adopt the factual findings of the original sentencing judge except where they had been successfully challenged or modified by subsequent events.

On the objective facts, the Court assessed the murder as falling squarely within the middle range of objective seriousness. The applicant had returned to the scene by vehicle and used it as a weapon in a cold and calculating way, even though the initial decision appeared impulsive. The standard non-parole period and the maximum of life imprisonment remained important guideposts.

On the subjective side, the Court noted that the applicant's position had improved meaningfully since the original sentence. His acceptance of responsibility, expressions of remorse, and strong performance and favourable reports in custody were all taken into account, particularly on the question of rehabilitation. Balancing the serious objective circumstances against the improved subjective case, the Court concluded that a lesser sentence was warranted in law.

Orders Made

  • Application for extension of time to apply for leave to appeal against sentence: granted
  • Leave to appeal against sentence: granted
  • Appeal against sentence: allowed
  • Original sentence quashed and replaced with imprisonment comprising a non-parole period of 18 years commencing 21 July 2007 and expiring 20 July 2025, with a balance of term of 6 years expiring 20 July 2031

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge gave determinative weight to the standard non-parole period by treating it as the starting point and then asking whether reasons to depart existed, Muldrock error is established.
  • An extension of time for a late sentence appeal will ordinarily be granted where Muldrock error is made out, because the interests of justice require it once the merits of the application are considered.
  • Once sentencing error of this kind is established, the appellate court does not assess whether or to what degree the error affected the outcome. It exercises the sentencing discretion entirely afresh.
  • Post-sentence developments in an offender's subjective circumstances, including conduct and progress in custody, are available to be taken into account when a court re-sentences following a successful appeal.
  • A sentence that falls within the range for the offence but was imposed through a legally flawed process is not "warranted in law" unless the appellate court independently determines it to be the appropriate sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B(2)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- O'Grady v The Queen [2014] HCA 38
- Abdul v R [2013] NSWCCA 247
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Kutschera v R [2010] NSWCCA 150
- R v Michael Kutschera [2008] NSWSC 1271
- R v Hall [2001] NSWCCA 202