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Court of Criminal Appeal 21 May 2015

Kentwell v R (No 2)

[2015] NSWCCA 96

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR PAROLE PERIOD COURT OF APPEAL TO RE CRIMINAL LAW

Citation: Kentwell v R (No 2) [2015] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 21 May 2015
Judge(s): Bathurst CJ, Rothman J, McCallum J

Background

The appellant was convicted by jury in the District Court at Parramatta in 2009 on multiple offences, including two counts of sexual intercourse without consent, recklessly causing grievous bodily harm, malicious damage, and assault. He was sentenced to an aggregate term with a non-parole period of approximately seven years, but the structure of the individual sentences was later found to contain legal errors.

A first appeal to the Court of Criminal Appeal in 2013 identified errors in the sentencing, including what is known as "Muldrock error" (that is, the sentencing judge treating the standard non-parole period as a de facto minimum or as a fixed benchmark rather than as a guidepost). The first appeal court also identified errors in imposing fixed terms for offences that had a standard non-parole period, and in using a finding of special circumstances to increase the head sentence. However, the Court of Criminal Appeal refused to extend the time to seek leave to appeal, concluding that the errors had not produced substantial injustice.

The appellant appealed to the High Court, which held that the Court of Criminal Appeal had applied the wrong test in refusing the extension. The matter was returned to the Court of Criminal Appeal to exercise the sentencing discretion afresh, which is what this second appeal decision concerns.

  • Whether an extension of time to seek leave to appeal against sentence should be granted, in circumstances where the High Court had already found the Court of Criminal Appeal had applied an incorrect test in refusing the extension.
  • Whether the identified sentencing errors, including Muldrock error, justified a lesser sentence upon a re-exercise of the sentencing discretion under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • How the court should approach the re-exercise of the sentencing discretion, including what weight to give to the appellant's subjective circumstances such as psychiatric illness, Aboriginal background, social disadvantage, and post-sentence rehabilitation.

Decision

The Court granted an extension of time and leave to appeal, accepting that the delay was not attributable to any fault of the appellant and that the interests of justice favoured the grant. The Court confirmed the High Court's ruling that the principle of finality has no role in the discretion to extend time for a sentence appeal, and that the correct question is what the interests of justice require in the particular case.

The Court found that all grounds of appeal relating to sentencing errors were made out. These included the sentencing judge using a finding of special circumstances to improperly increase the head sentence, imposing a fixed term for offences carrying a standard non-parole period, and applying the standard non-parole period in a manner inconsistent with Muldrock.

On re-sentencing, the Court took into account the serious objective circumstances of the offending, particularly the sexual offences. Against that, the Court gave weight to the appellant's psychiatric condition, which reduced the relevance of both specific and general deterrence. The Court also accepted that the appellant's removal from his natural parents as a child, and the resulting social exclusion from Aboriginal culture, constituted a form of social disadvantage and deprived background that mitigated the sentence, consistent with the principles articulated in Bugmy v The Queen, R v Fernando, and Neal v The Queen.

The Court was also satisfied that the appellant had taken significant steps towards rehabilitation during imprisonment, including participation in relevant programmes, abstaining from drugs, and maintaining excellent conduct in custody. Taking all these matters together, all three judges agreed that a lesser aggregate sentence was warranted in law.

Orders Made

  • Time for bringing an application for leave to appeal extended to 28 June 2013.
  • Leave to appeal against the sentence of 20 February 2009 granted.
  • Appeal allowed.
  • Sentences imposed by the District Court quashed and the following substituted:
  • Count 1 (recklessly cause grievous bodily harm): non-parole period of 3 years and 6 months from 6 April 2008, with a remainder of term of 18 months expiring 5 April 2013.
  • Count 3 (malicious damage): fixed term of 1 month from 6 April 2008.
  • Count 4 (sexual intercourse without consent): non-parole period of 4 years from 2 April 2010, with a remainder of term of 1 year expiring 1 April 2015.
  • Count 5 (assault): fixed term of 3 months from 2 April 2010.
  • Count 7 (sexual intercourse without consent): non-parole period of 4 years from 6 August 2011, with a remainder of term of 4 years expiring 5 August 2019.
  • Overall sentence: 11 years and 4 months imprisonment, comprising an overall non-parole period of 7 years and 4 months from 6 April 2008 to 5 August 2015, with a balance of term of 4 years expiring 5 August 2019.
  • Appellant first eligible for parole on 6 August 2015.

Key Takeaways

  • The High Court's ruling in the earlier Kentwell v The Queen [2014] HCA 37 had already established that refusing an extension of time for a sentence appeal by applying a "substantial injustice" test constituted error; this second Court of Criminal Appeal decision applies that ruling directly.
  • Finality of litigation is not a consideration that weighs against granting an extension of time in a sentence appeal based on Muldrock error, a principle confirmed by the High Court and applied here.
  • Where a Muldrock error is established, the Court of Criminal Appeal's task under s 6(3) of the Criminal Appeal Act 1912 is to re-exercise the sentencing discretion afresh, considering all relevant matters including events occurring since the original sentence was imposed.
  • An offender's removal from their Aboriginal family and culture as a child, and the resulting social exclusion and disadvantage, are mitigating factors that may reduce the weight otherwise given to general and specific deterrence, consistent with Bugmy v The Queen and R v Fernando.
  • Significant post-sentence rehabilitation, including programme participation, abstinence from drugs, and positive prison conduct, constitutes relevant material for the re-sentencing exercise and may support both a reduction in sentence and a longer supervision period in the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(2), 61, 61I, 195(1)(a)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451
- Kentwell v R [2013] NSWCCA 266 (first appeal)
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- R v Fernando (1992) 76 A Crim R 58
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Kennedy v R [2010] NSWCCA 260
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Johnson v The Queen [2004] HCA 15
- R v Burke [2002] NSWCCA 353
- R v Price [2005] NSWCCA 285
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