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Supreme Court 31 March 2015

Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

[2015] NSWSC 349

Sexual offences
CRIMINAL LAW APPEAL S 6(3) CRIMINAL APPEAL ACT APPLICATION DISMISSED

Citation: Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349
Court: Supreme Court of New South Wales
Date: 31 March 2015
Judge(s): R A Hulme J

Background

In October 2005, the applicant was sentenced in the District Court to 16 years' imprisonment with a non-parole period of 12 years for a single offence of sexual intercourse with a child under 10 years of age. The Court of Criminal Appeal affirmed the 16-year head sentence in 2006 but reduced the non-parole period to 11 years.

The applicant subsequently made a first application under Part 7, Division 3 of the Crimes (Appeal and Review) Act 2001 (NSW), which allows a person convicted of a serious offence to ask the Supreme Court to refer their case back to the Court of Criminal Appeal if there is a doubt or question about the conviction or sentence. That application succeeded in 2014 on the basis that the original sentencing had applied principles later overturned by the High Court in Muldrock v The Queen (2011). The Court of Criminal Appeal heard the matter afresh but dismissed the appeal, finding that no different sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW).

The applicant then brought a second Part 7, Division 3 application, this time arguing that the Court of Criminal Appeal had itself erred in 2014 by applying s 6(3) incorrectly, specifically by failing to exercise the sentencing discretion independently before concluding that a different sentence was not warranted.

  • Whether the Court of Criminal Appeal, in its 2014 decision, misdirected itself as to the proper operation of s 6(3) of the Criminal Appeal Act 1912 by failing to conduct a genuine, independent re-exercise of the sentencing discretion.
  • Whether the language and methodology used by Bellew J in the 2014 appeal suggested an impermissible intermediate step, rather than an independent assessment of the appropriate sentence.
  • Whether sufficient doubt or question remained about the sentence to justify a further referral under Part 7, Division 3 of the Crimes (Appeal and Review) Act 2001.

Decision

Hulme J examined the High Court's subsequent clarification of s 6(3) in Kentwell v The Queen (2014). Under that authority, once an identifiable error in the original sentencing process is established, the Court of Criminal Appeal must exercise the sentencing discretion afresh and independently. The court then compares that independent assessment against the sentence actually imposed to determine whether some other sentence is warranted in law. This is a single question, not a sequential two-step process.

The applicant argued that Bellew J had inserted an improper intermediate step by asking whether the sentence fell outside "an established range" and by expressing himself as "not persuaded" that another sentence was warranted, rather than conducting a fresh sentencing exercise first. Hulme J rejected that characterisation of the 2014 judgment. He found that isolating particular phrases from a judgment without regard to the whole was an unfair method of analysis.

Hulme J was satisfied that Bellew J had in substance conducted the required independent assessment. His Honour found no indication that Bellew J had overlooked any sentencing principle, any item of evidence, or any submission put on the applicant's behalf. Bellew J's references to the sentencing range and statistical material were properly understood as responses to submissions the applicant had himself advanced.

Hulme J added that, even setting aside that analysis, he had himself considered whether a lesser sentence was warranted and found no reason to be uneasy or disquieted by the negative answer reached by the Court of Criminal Appeal in 2014. The application was refused.

Orders Made

  • The application was refused.

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, as clarified in Kentwell v The Queen, the Court of Criminal Appeal must exercise the sentencing discretion afresh once a sentencing error is identified, comparing the result of that independent exercise against the sentence imposed to determine whether some other sentence is warranted in law.
  • This process poses a single question rather than a sequential two-step inquiry: there is no requirement first to be satisfied that the sentence is outside an established range before conducting the independent re-exercise.
  • No error was established in the 2014 Court of Criminal Appeal decision merely because the judge used language such as "not persuaded" or referenced sentencing ranges, where those phrases responded directly to submissions advanced by the applicant.
  • Assessing a judgment by isolating selected phrases, rather than reading it as a whole, is not an appropriate method of identifying appellate error.
  • A second application under Part 7, Division 3 of the Crimes (Appeal and Review) Act 2001 will not succeed where the court finds no substantive doubt or question about whether the previous appellate court properly applied sentencing principles.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, Division 3
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- MLP v R [2014] NSWCCA 183
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168