AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 27 March 2015

Application of FD

[2015] NSWSC 285

Assault & violenceHomicideTheft & property
CRIMINAL LAW APPLICATION DISMISSED

Citation: Application of FD [2015] NSWSC 285
Court: Supreme Court of New South Wales
Date: 27 March 2015
Judge(s): Garling J

Background

The applicant, FD, was convicted in December 2004 following a trial on three charges: armed robbery, malicious wounding with intent to cause grievous bodily harm, and murder. The convictions arose from a planned robbery of a woman who had arranged to sell an engagement ring. During the robbery, FD stabbed the victim's son twice with fatal effect and also stabbed the victim's husband.

FD was sentenced by Levine J in February 2005. The sentencing judge found that FD had not intended to kill but had acted with intent to inflict grievous bodily harm. FD's subsequent appeal to the Court of Criminal Appeal against conviction was unsuccessful, though leave was granted to appeal against sentence.

FD applied to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001, seeking referral of his case to the Court of Criminal Appeal to be dealt with as a sentence appeal. The Attorney-General opposed the application.

  • Whether there was a "doubt or question" as to any mitigating circumstances in the case sufficient to warrant referral of FD's sentence to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001
  • Whether the sentencing judge, Levine J, had adopted an impermissible approach to the standard non-parole period for murder, in light of the High Court's later decision in Muldrock v The Queen [2011] HCA 39
  • Whether the Court of Criminal Appeal's handling of FD's sentence appeal gave rise to any doubt or question requiring further action

Decision

Garling J confirmed that proceedings under s 78 are administrative, not judicial, and that the function is not an additional avenue of appeal. The power to refer arises only where the material causes "unease or a sense of disquiet in allowing the sentence to stand," following the approach in Application of Peter James Holland [2008] NSWSC 251.

The applicant argued that the sentencing judge had incorrectly treated the standard non-parole period for murder as a sentencing benchmark or starting point rather than a legislative guidepost, an approach later disapproved in Muldrock v The Queen. Garling J examined the sentencing remarks closely and found that they did not reveal any such impermissible approach. Rather, Levine J had engaged in the required process of instinctive synthesis, recognising the standard non-parole period as a guidepost. Notably, the actual sentence imposed for murder fell below the standard non-parole period, notwithstanding the judge's findings about objective seriousness.

Garling J found no error of a kind that would require a court to intervene and was not left with any doubt or question as to mitigating circumstances. The Court also considered the Court of Criminal Appeal's handling of the sentence appeal. In dismissing the submission of manifest excess, the Court of Criminal Appeal had centred its reasoning on the nature and seriousness of the conduct across three victims, with aggregate totality as the dominant principle. No doubt or question arose from that approach either.

Orders Made

  • Application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, dismissed.

Key Takeaways

  • Under Part 7 of the Crimes (Appeal and Review) Act 2001, the Supreme Court performs an administrative function rather than a judicial one; referral to the Court of Criminal Appeal is only available where material raises a doubt or question as to mitigating circumstances, guilt, or the evidence.
  • A sentence imposed before Muldrock v The Queen does not automatically attract doubt or question merely because the later High Court decision reformulated how standard non-parole periods are to be applied. The critical inquiry is whether the actual sentencing remarks reveal an impermissible approach.
  • In dismissing the referral, Garling J confirmed that a careful reading of sentencing remarks showing instinctive synthesis, with the standard non-parole period treated as a guidepost, will not generate the necessary unease to found a Part 7 referral.
  • The fact that the sentence for murder was imposed below the standard non-parole period was a relevant consideration in assessing whether any error had occurred.
  • Part 7 applications are not a surrogate appeal mechanism; where the criminal justice process, including appeals, has run its full course without error, the threshold for further intervention is high and the Court may decline to act.

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)

Cases:
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v FD [2006] NSWCCA 31
- R v FD; R v JD [2005] NSWSC 128
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168