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Court of Criminal Appeal 1 May 2015

McDonald v R

[2015] NSWCCA 80

Homicide
APPEAL SENTENCING APPEAL AGAINST SENTENCE MULDROCK ERROR ALLEGED

Citation: McDonald v R [2015] NSWCCA 80
Court: Court of Criminal Appeal, New South Wales
Date: 1 May 2015
Judges: Basten JA; R A Hulme J and Adamson J

Background

The applicant was sentenced in July 2007 following a guilty plea to the murder of a man at Lalor Park in August 2005. Price J imposed a non-parole period of 18 years and a balance of term of six years, for a total sentence of 24 years. The sentencing judge found that the applicant had deliberately armed himself with a knife before going to the deceased's home, intending a confrontation, and that the subsequent attack was of significant objective seriousness falling in the upper half of the middle range.

Almost six years after sentencing, the applicant sought an extension of time in which to apply for leave to appeal. Like many others, he sought to take advantage of the High Court's 2011 decision in Muldrock v The Queen, which identified that the Court of Criminal Appeal had itself erred in R v Way in its approach to standard non-parole periods.

The applicant's proposed ground of appeal was that the sentencing judge had committed "Muldrock error" by treating the standard non-parole period (20 years for murder) as a benchmark or two-stage determinant of sentence, rather than as a guidepost to be considered alongside all other sentencing factors.

  • Whether the sentencing judge applied the erroneous principles from R v Way when sentencing for a standard non-parole period offence, thereby committing "Muldrock error"
  • Whether, given the guilty plea context, the sentence nonetheless disclosed the kind of two-stage approach condemned in Muldrock
  • Whether an extension of time should be granted to bring the out-of-time appeal
  • If error were established, what re-sentence should follow

Decision

On the approach taken by Basten JA: Basten JA concluded that the sentencing judge's references to R v AJP and R v Simon, while not mentioning R v Way by name, demonstrated that the judge had applied the then-orthodox Way principles. On that basis, his Honour held that error was established and that the sentencing discretion should be re-exercised, proposing a reduced non-parole period of 15 years and balance of term of five years.

On the approach of R A Hulme J and Adamson J (the majority): The majority agreed that the sentencing judge had referred specifically to paragraphs in R v AJP and R v Simon that were themselves explicit applications of Way principles. However, after closely examining the sentencing remarks, the majority concluded that the judge had not in fact adopted a formulaic two-stage approach placing the standard non-parole period at the centre of the exercise. The sentencing remarks showed an orthodox balancing of all relevant factors, and the "formulaic" characterisation advanced by senior counsel for the applicant was rejected.

The majority emphasised that it ought not be lightly inferred that a judge acted otherwise than in accordance with the then-applicable law. Appellate intervention requires demonstrated error, and the majority found none arising from the sole proposed ground. Accordingly, despite the Crown's concession on the extension of time, the majority declined to grant the extension because there was no merit in the proposed ground of appeal.

The result of the division between the judges is that the majority orders prevailed: the application for an extension of time was refused.

Orders Made

  • The application for an extension of time in which to give notice of an application for leave to appeal against sentence was refused (majority orders of R A Hulme J and Adamson J).

Note: Basten JA proposed different orders (extending time, allowing the appeal, and imposing a reduced sentence of a 15-year non-parole period commencing 30 August 2005 and a five-year balance of term). Those orders did not prevail, as the majority refused the extension of time.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge need not cite R v Way by name for Muldrock error to be made out; references to cases that themselves applied Way principles may suffice to establish that the Way approach was followed.
  • Despite that threshold being crossed, the majority held that demonstrating a judge cited Way-derived authority is not, by itself, sufficient to establish reversible error: the sentencing remarks as a whole must disclose that the judge actually adopted the erroneous two-stage approach.
  • In dismissing the application, the majority reaffirmed the principle from Williams v R that it ought not be lightly inferred that a sentencing judge acted otherwise than in accordance with the law as then understood.
  • Appellate intervention in a sentence appeal requires demonstrated error; where no such error is disclosed, an extension of time to appeal out of time may be refused even if the Crown does not oppose the extension.
  • A division between the judges on the bench illustrates that the presence of Way-related citations in sentencing remarks does not automatically translate into Muldrock error: the character of the actual sentencing exercise remains the critical inquiry.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B, 61; Pt 4, Div 1A

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Simon [2005] NSWCCA 123
- Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573
- Williams v R [2012] NSWCCA 172
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159