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Supreme Court 25 November 2016

Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001

[2016] NSWSC 1670

Drugs
CRIMINAL LAW APPLICATION GRANTED

Citation: Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670
Court: Supreme Court of New South Wales
Date: 25 November 2016
Judge: Bellew J

Background

The applicant was convicted in the District Court of supplying not less than a large commercial quantity of a prohibited drug, among other offences. In November 2006, the sentencing judge imposed 20 years imprisonment with a 15-year non-parole period for the principal drug offence. The applicant appealed to the Court of Criminal Appeal, which found the sentencing judge had erred in assessing the objective seriousness of the offending and re-sentenced him to 16 years imprisonment with a 12-year non-parole period in September 2009.

Following the High Court's decision in Muldrock v R (2011), the applicant made a first application to the Supreme Court under s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking a review on the basis that his sentence was infected by what is now called "Muldrock error." That application was refused in 2014. The applicant then brought a second s. 78 application, again raising Muldrock error, this time focusing on the Court of Criminal Appeal's own re-sentencing exercise rather than the original District Court sentence.

The Attorney-General conceded that there is no limit on the number of s. 78 applications a person may bring, and further conceded that it was open to the Court to find that a relevant doubt or question existed.

  • Whether a second application under s. 78 of the Crimes (Appeal and Review) Act 2001 is permissible where a first has already been refused.
  • Whether the Court of Criminal Appeal's 2009 re-sentencing appeared to be infected by Muldrock error, specifically by giving determinative or primary significance to the standard non-parole period.
  • Whether the Court of Criminal Appeal's reliance on the since-overruled decision in R v Way (which underpinned the standard non-parole period framework later rejected in Muldrock) gave rise to a doubt or question as to a mitigating circumstance.

Decision

Bellew J accepted the Attorney-General's concession that multiple s. 78 applications are permitted under the Act, and proceeded to consider the merits of the second application on their own terms.

The critical question was whether the Court of Criminal Appeal's 2009 re-sentencing was itself tainted by Muldrock error, despite that Court having identified and corrected the sentencing judge's excessive focus on the standard non-parole period. Hoeben CJ at CL had refused the first application on the basis that the Court of Criminal Appeal had already recognised and remedied the error, and that its re-sentencing did not expressly reference the standard non-parole period.

Bellew J reached a different conclusion on the second application. His Honour drew particular attention to the fact that Hidden J, in the Court of Criminal Appeal, had expressly described R v Way as a "seminal" decision governing the approach to standard non-parole periods. The High Court in Muldrock had subsequently held that Way was wrongly decided, specifically rejecting the two-stage sentencing approach and the treatment of the standard non-parole period as a mandatory starting point or primary consideration.

In those circumstances, Bellew J was satisfied that it appeared there was a doubt or question as to a mitigating circumstance, namely whether the Court of Criminal Appeal had given determinative significance to the standard non-parole period when re-sentencing the applicant in a manner consistent with the erroneous Way framework. That finding was sufficient to grant the application, without needing to resolve the other issues raised.

Orders Made

  • The s. 78 application is granted.
  • The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).

Key Takeaways

  • There is no statutory limit on the number of applications a person may make under s. 78 of the Crimes (Appeal and Review) Act 2001, as the Attorney-General conceded and Bellew J accepted.
  • A second s. 78 application may succeed on grounds that a first application rejected, particularly where the legal analysis of the underlying sentence is approached differently or with fresh focus.
  • Where a Court of Criminal Appeal re-sentences an offender by expressly endorsing the Way framework as "seminal," that endorsement can itself ground a doubt or question of Muldrock error, even where the standard non-parole period is not mentioned explicitly in the re-sentencing reasoning.
  • Under s. 78, the threshold for granting an application is not proof of error but the appearance of a doubt or question as to a mitigating circumstance. Bellew J confirmed that this lower threshold was met on the facts.
  • Referring a matter to the Court of Criminal Appeal under s. 78 does not resolve whether Muldrock error was in fact made; it simply permits the Court of Criminal Appeal to examine the sentence as a fresh appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), particularly s. 78 and Part 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s. 54B(2) and s. 54B(3)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s. 25(1) and s. 25(2)

Cases:
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Xiao Feng Wang v R [2009] NSWCCA 223
- Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825
- Application by Richard William Buttrose pursuant to s. 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 826
- Buttrose v Attorney-General of NSW (2015) 324 ALR 562; [2015] NSWCA 221