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Supreme Court 4 April 2016

Further application of Henry Edgar Des Rosiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

[2016] NSWSC 365

Drugs
CRIMINAL LAW APPEAL SECOND S 78 APPLICATION ASSERTED “MULDROCK ERROR” “AXIOMATIC ERROR” ASSERTED “KENTWELL ERROR”

Citation: [2016] NSWSC 365
Court: Supreme Court of New South Wales
Date: 4 April 2016
Judge: Wilson J

Background

In 2005, the applicant was sentenced in the District Court on multiple drug supply offences, including supply of not less than the large commercial quantity of LSD under s 25(2) of the Drug Misuse and Trafficking Act 1985. Police had found substantial quantities of LSD, MDMA, cannabis, and related materials at his home on the NSW north coast. The original District Court sentence of 18 years imprisonment with a 12-year non-parole period was later reduced on some counts by the Court of Criminal Appeal (CCA) in February 2006, though the principal sentence and earliest release date remained unchanged.

In 2014, the applicant made his first application under s 78 of the Crimes (Appeal and Review) Act 2001 (the CAR Act), seeking referral of his case to the CCA. That application argued the 2006 CCA sentence was infected by "Muldrock error," meaning the standard non-parole period (SNPP) had been given undue or determinative weight in the sentencing process. Hoeben CJ at CL refused that application, finding no such error was apparent.

The applicant then brought this second s 78 application, again asserting Muldrock error, but grounding the argument in developments in the case law that had emerged since 2014, including the High Court's decision in Kentwell v The Queen (2014) 252 CLR 601.

  • Whether a second s 78 application was available to the applicant, given the first had been refused on the same general ground
  • Whether post-2014 developments in the jurisprudence around "Muldrock error" (including "axiomatic error" and "Kentwell error") raised a fresh doubt or question as to a mitigating circumstance in the applicant's sentence
  • Whether the "neatness" of the mathematics of the sentence imposed by the CCA in 2006 itself indicated that the SNPP had been given determinative significance
  • Whether the matter should be referred to the CCA to be dealt with as an appeal under the Criminal Appeal Act 1912

Decision

Wilson J first addressed whether a second application was procedurally available. The CAR Act does not expressly bar successive applications, and the court accepted that the applicant could make a further application where there was a proper basis to do so, particularly where relevant jurisprudence had evolved since the earlier refusal.

On the substantive question, the court examined whether the CCA's 2006 sentencing process had given the SNPP a primary or determinative role, contrary to Muldrock v The Queen (2011) 244 CLR 120. The applicant pointed to developments in how courts had come to identify Muldrock error, including the concept of "axiomatic error" (where the sentencing judge treated the SNPP as a correct or appropriate starting point by default) and principles derived from Kentwell (concerning the relationship between head sentence and non-parole period). The applicant also argued that the mathematical precision of the 2006 sentence suggested the SNPP had been used as a determinative benchmark, relying on Bolt v R [2012] NSWCCA 50.

Wilson J concluded that, in light of the evolved case law and the particular features of the sentencing exercise undertaken by the CCA in 2006, there was sufficient doubt or question as to a mitigating circumstance to warrant referral. The court was not required to be satisfied that error had actually occurred, only that a doubt or question had been raised. That threshold was met.

The court also noted the breadth of the post-Muldrock litigation, appending a substantial schedule of CCA decisions dealing with similar issues. The referral was granted so the CCA could assess the matter as an appeal, with the outcome on the merits remaining for that court to determine.

Orders Made

  • The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912, pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001
  • 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 timetable for hearing can be fixed

Key Takeaways

  • A second application under s 78 of the Crimes (Appeal and Review) Act 2001 is not automatically barred where a prior application on the same general ground has been refused, provided the applicant advances a fresh basis, such as materially changed jurisprudence.
  • The threshold for referral under the CAR Act is not proof of error, but the existence of a "doubt or question" as to guilt or a mitigating circumstance; Wilson J confirmed that this is a comparatively low bar.
  • Developments in Muldrock error jurisprudence following Kentwell v The Queen (2014) 252 CLR 601, including the concept of "axiomatic error," may provide a new foundation for a s 78 application even where an earlier application on Muldrock grounds was refused.
  • The mathematical relationship between a sentence and the applicable SNPP can, in some circumstances, support an inference that the SNPP was given determinative significance, as illustrated by the approach in Bolt v R [2012] NSWCCA 50.
  • Referral to the CCA under this provision does not itself determine the outcome; the merits of any alleged sentencing error remain entirely for the CCA to assess when hearing the matter as an appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25(2)

Key Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
- Application by Henry Edgar Des Rosiers pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 830
- Bolt v R [2012] NSWCCA 50
- Davis v R [2015] NSWCCA 90
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Crawford v R [2013] NSWCCA 269
- Dulihanty v R [2013] NSWCCA 275
- Aytugrul v R [2015] NSWCCA 139