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6
Court of Criminal Appeal 9 February 2016

Efthimiadis v R (No 2)

[2016] NSWCCA 9

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL SOLICIT TO MURDER ‘MULDROCK ERROR’ CONCEDED BY THE CROWN SENTENCE WHETHER ASSESSMENT OF MID

Citation: Efthimiadis v R (No 2) [2016] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 9 February 2016
Judge(s): Price J (primary judgment), Harrison J (agreeing), Button J (agreeing on leave and error, dissenting on re-sentence)

Background

The applicant was convicted in 2009 of soliciting an undercover police operative to murder a person, contrary to s 26 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 10 years. The applicant was sentenced to 13 years and 4 months with a non-parole period of 10 years.

A first appeal was brought following the High Court's 2011 decision in Muldrock v R, which fundamentally altered how courts must treat standard non-parole periods. That earlier appeal to the Court of Criminal Appeal was refused in 2013. A second application for an extension of time was then filed in June 2015, on the basis that the first appeal had been determined using a legal test subsequently found to be wrong by the High Court in Kentwell v R (2014).

The Crown conceded that the original sentencing judge had committed a Muldrock error by treating the standard non-parole period as a fixed benchmark rather than as one of two guideposts in a broader sentencing synthesis.

  • Whether the 2013 refusal of a first extension of time application created a jurisdictional bar to the present (second) application
  • Whether the first appeal was in fact decided using the wrong legal test from Abdul v R, as later condemned in Kentwell v R
  • Whether, on the conceded Muldrock error, the court should exercise its discretion to grant the extension and leave to appeal
  • How the applicant should be re-sentenced, having regard to both aggravating and mitigating circumstances
  • Whether the original sentence should be reduced, and whether special circumstances warranting a longer parole period existed

Decision

Jurisdictional bar and extension of time

Price J confirmed, applying Lowe v R [2015] NSWCCA 46, that a prior refusal of leave to appeal does not create a jurisdictional bar to a subsequent application. Although the refusal of earlier proceedings provides a strong basis to exercise the discretion against a further application, it is not an absolute obstacle. On the question of whether the first appeal had actually applied the discredited Abdul principles, Price J rejected the Crown's "bold" argument that Johnson J had merely referenced Abdul while in practice applying the correct approach. His Honour found that the first appeal could not be said to have been determined free of the tainted test, and that the interests of justice therefore supported granting the extension.

Muldrock error and re-sentencing

All three judges agreed that the original sentencing remarks disclosed Muldrock error: the sentencing judge had treated the standard non-parole period as applicable because the offence fell in the mid-range, rather than using it as a guidepost among all relevant factors. Re-sentencing was therefore required.

Re-sentencing considerations

Price J (with Harrison J agreeing) identified several serious aggravating features: the offence was carefully planned; the applicant was on at least two forms of conditional liberty at the time; and he had shown no remorse despite many years having passed. The court noted that the offence is complete whether or not any harm is actually inflicted on the intended victim, and that dealing with an undercover officer rather than an actual hitman did not reduce the applicant's culpability. On the mitigating side, the applicant had engaged in custodial rehabilitation programs and addressed long-standing drug abuse, and the victim's continued support was treated as a factor relevant to rehabilitation prospects. The majority confirmed the original sentence, dismissing the appeal.

Button J's dissent on re-sentence

Button J agreed with the majority on the procedural and error questions but arrived at a different result when exercising the sentencing discretion afresh, proposing a head sentence of 12 years with a non-parole period of 9 years. His Honour acknowledged that the divergence from the majority reflected the nature of instinctive synthesis in sentencing, where reasonable minds can differ without any single answer being definitively correct.

Orders Made

  • Extension of time in which to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A prior refusal of an extension of time application does not create a jurisdictional bar to a subsequent application, though it does provide a powerful discretionary reason to refuse the later application.
  • Where an earlier appellate decision expressly referenced a legal test later held to be wrong (Abdul, as condemned in Kentwell), the Court of Criminal Appeal declined to treat that earlier decision as settling the matter against the applicant.
  • Muldrock error is established where the sentencing judge treats the standard non-parole period as the presumptive sentence for a mid-range offence, rather than as one of two guideposts to be weighed alongside all relevant sentencing factors.
  • For the offence of solicit to murder, culpability is not reduced merely because the person solicited was an undercover police officer; the offence is legally complete regardless of whether any harm reaches the intended victim.
  • Instinctive synthesis in sentencing can legitimately produce different outcomes among reasonable judges weighing the same facts, as illustrated by the 2-1 split on re-sentence, without any judge's approach being characterised as wrong.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 26 (solicit to murder)
- Criminal Appeal Act 1912 (NSW) s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 44B(2)

Cases
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Kentwell v R [2014] HCA 37; 252 CLR 601
- Abdul v R [2013] NSWCCA 247
- Efthimiadis v R [2013] NSWCCA 276
- Lowe v R [2015] NSWCCA 46
- Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- R v Pham [2015] HCA 39
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Ali v R [2010] NSWCCA 35
- Louizos v R [2014] NSWCCA 242
- Skocic v R [2014] NSWCCA 225
- MLP v R [2014] NSWCCA 183
- Various other NSW Court of Criminal Appeal sentencing decisions cited in the judgment