Citation: [2015] NSWSC 1851
Court: Supreme Court of New South Wales
Date: 4 December 2015
Judge(s): Wilson J
Background
The applicant had pleaded guilty to three drug supply offences, including one charge of supplying not less than the large commercial quantity of cocaine (5.9573 kilograms), which carried a maximum penalty of life imprisonment and a standard non-parole period (SNPP) of 15 years. The Court of Criminal Appeal (CCA) resentenced him in March 2011. Four additional offences were also taken into account on sentence.
The applicant subsequently made a first application under s 78 of the Crimes (Appeal and Review) Act 2001 (CAR Act), arguing his sentence was infected by what is known as "Muldrock error": the sentencing court had placed undue weight on the applicable SNPP when fixing the sentence. That first application was refused in June 2014.
The applicant challenged that refusal in the Court of Appeal, which upheld the challenge in Buttrose v Attorney General of New South Wales [2015] NSWCA 221. The Court of Appeal made a declaration that a legal error by the original sentencing judge, and then by the CCA on appeal, may have caused a more severe sentence than would otherwise have been imposed, giving rise to a doubt or question as to a mitigating circumstance within the meaning of s 79(2) of the CAR Act. The present application was the applicant's second s 78 application, made in light of that declaration.
Legal Issues
- Whether the Court of Appeal's declaration was sufficient to give rise to an "appearance" of a doubt or question as to a mitigating circumstance under s 79(2) of the CAR Act.
- Whether the case should be referred to the Court of Criminal Appeal under s 79(1)(b) of the CAR Act, to be dealt with as an appeal under the Criminal Appeal Act 1912.
Decision
Wilson J confirmed the nature of a s 78 application: it is an administrative act, not a judicial proceeding, and the jurisdiction is intended to address cases where the criminal justice system has run its course but a doubt or question remains as to conviction or sentence. The power available is limited to directing an inquiry or referring the matter to the CCA; the Supreme Court cannot itself quash a conviction or sentence.
The central question for Wilson J was not whether there actually was a doubt or question as to a mitigating circumstance, but whether there appeared to be one, which is the lower threshold set by s 79(2). Her Honour held that the Court of Appeal's declaration was, of itself and without more, sufficient to create that appearance.
Wilson J noted that Macfarlan JA, in the Court of Appeal, had gone so far as to say that a judge hearing a further s 78 application from the applicant, armed with such a declaration, would have "little choice" but to refer the case to the CCA. Wilson J found that threshold was met and was therefore obliged under s 79(1)(b) to refer the whole case to the CCA.
Orders Made
- The case of R v Richard William Buttrose is referred to the Court of Criminal Appeal of New South Wales, pursuant to s 79(1)(b) of the CAR Act, to be dealt with as an appeal under the Criminal Appeal Act 1912.
- The Registrar of the Criminal Division of the Supreme Court is to advise the Minister of the referral order, pursuant to s 79(5) of the CAR Act.
- The Registrar of the Court of Criminal Appeal is to be advised of the orders so that a hearing timetable can be fixed.
Key Takeaways
- A Court of Appeal declaration that a sentencing error may have resulted in a more severe sentence can, of itself, establish the appearance of a doubt or question as to a mitigating circumstance under s 79(2) of the CAR Act, triggering the referral power.
- Under s 79(2), the statutory threshold for referral is whether there appears to be a doubt or question, not whether such a doubt or question is definitively established. This distinction is significant in Muldrock error cases where courts are not required to reach a final conclusion on sentence.
- Proceedings under s 78 of the CAR Act are administrative, not judicial, in nature. The Supreme Court cannot itself alter a conviction or sentence; its role is confined to directing an inquiry or referring the matter to the CCA.
- A second s 78 application is not automatically barred by the refusal of a first application, particularly where an appellate declaration has subsequently been obtained that directly addresses the grounds of the new application.
- Muldrock error, arising from the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120, concerns the misuse of standard non-parole periods as a primary or dominant sentencing consideration, and remains a live basis for post-appeal review applications in appropriate cases.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Application by Richard William Buttrose pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 826
- Buttrose v R [2011] NSWCCA 35
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783
- Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
- Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146