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Court of Criminal Appeal 11 May 2015

Hohaia v R

[2015] NSWCCA 91

Assault & violenceHomicideTheft & property
APPEAL SENTENCING MURDER ROBBERY IN COMPANY “MULDROCK ERROR” APPEAL ALLOWED

Citation: Hohaia v R [2015] NSWCCA 91
Court: Court of Criminal Appeal, NSW
Date: 11 May 2015
Judge(s): Simpson J (with Harrison J and Adamson J agreeing)

Background

The applicant was convicted by jury in March 2006 of murder and robbery in company, both committed on 3 December 2003 when he was 18 years old. The victim died following a sustained and brutal assault. The applicant was found to have been the principal aggressor, acting under the influence of alcohol and cannabis. He was separately sentenced for an assault occasioning actual bodily harm committed three months before the murder.

In September 2006, the sentencing judge (Kirby J) imposed 24 years imprisonment for the murder with an 18-year non-parole period, placing the offence at the mid-range of objective seriousness under the standard non-parole period (SNPP) regime in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The murder carries an SNPP of 20 years.

The applicant filed a leave to appeal against sentence in June 2013, more than seven years after sentencing. The sole ground was that the sentencing judge erred in the manner in which the applicable SNPP was taken into account, a species of error now known as "Muldrock error."

  • Whether an extension of time to file the leave to appeal application should be granted, given the delay of approximately seven years and three months
  • Whether Kirby J committed "Muldrock error" by treating the SNPP as the starting point or a determinative factor, rather than as a legislative guidepost to be weighed alongside all other sentencing considerations
  • Whether, on re-sentencing, the applicant's youth, disadvantaged background, and rehabilitation warranted a reduction from the sentence originally imposed

Decision

The Crown conceded that sentencing error had occurred in the manner the SNPP was applied. Following the High Court's decision in Kentwell v The Queen [2014] HCA 37, the Crown's opposition to the extension of time application softened, and the Court granted the extension. The concession of error meant there was no need for extensive analysis of the delay issue.

The error identified was consistent with what the High Court condemned in Muldrock v The Queen [2011] HCA 39. Under Muldrock, the SNPP is not a starting point or a two-stage hurdle; it is a "legislative guidepost" to be considered alongside all other relevant sentencing factors, including subjective circumstances such as youth and prospects of rehabilitation.

On re-sentencing, the Court weighed the SNPP as one consideration among several. The youth of the applicant at the time of the offending was treated as a significant factor, as were his disadvantaged childhood, his personality disorders, and his (described as patchy) efforts at rehabilitation. These matters were balanced against the objective gravity of the offence, which Kirby J had placed at the mid-range.

After an independent exercise of the sentencing discretion, the Court arrived at precisely the same sentence: 24 years imprisonment with an 18-year non-parole period. Although the appeal was allowed and the original sentence set aside, the re-imposed sentence was identical in its terms. The Court declined to find special circumstances under s 44(2) of the Sentencing Procedure Act that would have altered the statutory proportion between the non-parole period and the balance of the head sentence.

Orders Made

  • Time for filing the leave to appeal application extended to 28 June 2013
  • Leave to appeal granted
  • Appeal allowed; original murder sentence set aside
  • Applicant re-sentenced to 24 years imprisonment commencing 4 December 2003 and expiring 3 December 2027, with a non-parole period of 18 years expiring 3 December 2021, and a balance of term of 6 years

Key Takeaways

  • The Court of Criminal Appeal confirmed that treating the standard non-parole period as a starting point or primary determinant, rather than a legislative guidepost, constitutes Muldrock error warranting appellate intervention.
  • A significant delay in filing a leave to appeal application does not automatically defeat the application where the Crown concedes the underlying sentencing error and relevant High Court authority (here, Kentwell) supports the extension.
  • Correcting a Muldrock error does not necessarily produce a different sentence. The re-exercise of an independent discretion can result in an identical sentence where all relevant factors, weighed correctly, produce the same outcome.
  • Youth at the time of offending is a recognised sentencing consideration that must be genuinely weighed alongside the objective gravity of the offence and the legislative guidepost represented by the SNPP.
  • Under the Muldrock framework, factors such as a disadvantaged background and efforts toward rehabilitation must receive genuine independent consideration rather than being assessed only in relation to whether they displace the SNPP.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A, ss 44(2), 54A(2), 54B
- Crimes Act 1900 (NSW), ss 18, 19A(1), 59, 97(1)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 10(1)(a)
- Criminal Appeal Rules, r 3B(1)(b)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282