Citation: [2016] NSWSC 561
Court: Supreme Court of New South Wales
Date: 3 May 2016
Judge: R A Hulme J
Background
The applicant was convicted by a jury of two counts of aggravated sexual intercourse without consent and one count of detaining a person for advantage, all under the Crimes Act 1900 (NSW). He was sentenced in the District Court in December 2008 to a total effective sentence of 14 years and 6 months, with a non-parole period of 10 years and 6 months.
On appeal to the Court of Criminal Appeal in 2010, one ground was upheld: the sentencing judge had committed a mathematical error in structuring the sentence for Count 2 that did not comply with section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which governs the ratio between a head sentence and a non-parole period. The Court of Criminal Appeal resentenced the applicant, reducing the total head sentence to 14 years while keeping the non-parole period at 10 years and 6 months.
The applicant then brought the present application under Part 7 Division 3 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking referral of the whole case back to the Court of Criminal Appeal to be dealt with as a fresh appeal against sentence. The basis for the application was that both the original sentencing and the resentencing were infected by legal errors subsequently identified in Muldrock v The Queen (2011) and Kentwell v The Queen (2014).
Legal Issues
- Whether the sentencing judge in the District Court applied the standard non-parole period (SNPP) framework in a manner that was erroneous under the principles later clarified in Muldrock v The Queen (244 CLR 120), by treating the SNPP as the primary reference point rather than one of two main guideposts
- Whether the resentencing by the Court of Criminal Appeal perpetuated that same Muldrock-error, given that the resentencing occurred before Muldrock was decided
- Whether the resentencing also involved Kentwell-error, being a failure to apply the correct approach to the assessment of objective seriousness when using the SNPP
- Whether these apparent errors gave rise to a "doubt or question" as to the sentence passed, sufficient under section 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to warrant referral to the Court of Criminal Appeal
Decision
Hulme J examined the sentencing remarks of the District Court judge carefully. His Honour identified that the sentencing judge appeared to have adopted a two-stage approach: first determining where the offences fell relative to the mid-range of objective seriousness, and then fixing the non-parole period by reference to the standard non-parole period. This approach was consistent with the framework endorsed in R v Way (2004), which was the prevailing understanding at the time, but was later found to be erroneous by the High Court in Muldrock.
His Honour also rejected a subsidiary submission that the District Court judge had impermissibly conflated subjective factors into the assessment of objective seriousness. The reference in the sentencing remarks to "matters previously considered" was found on reading to concern objective matters going to the offending, not subjective features of the offender.
On the resentencing, Hulme J observed that the Court of Criminal Appeal in 2010 did not reassess the sentence using the correct approach later mandated by Muldrock. This was understandable, given that Muldrock had not yet been decided. However, because the resentencing proceeded on the same erroneous framework as the original sentence, the Muldrock-error was found to have carried over into the resentencing exercise.
Hulme J was satisfied that these circumstances gave rise to an apparent doubt or question as to the correctness of the sentence, meeting the threshold under section 79(2) of the Crimes (Appeal and Review) Act. The case was accordingly referred to the Court of Criminal Appeal for consideration as an appeal against sentence.
Orders Made
- The whole of the case was referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).
Key Takeaways
- A Muldrock-error occurring at original sentencing can flow through to a resentencing conducted before Muldrock was decided, where the Court of Criminal Appeal does not independently reassess the sentence on the correct approach.
- Under section 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), a "doubt or question as to the sentence passed" is sufficient to enliven the Supreme Court's power to refer a case to the Court of Criminal Appeal; the threshold does not require the applicant to establish the error conclusively at the Part 7 stage.
- The prevailing legal understanding at the time of sentencing does not insulate a sentence from later scrutiny if that understanding was subsequently identified as erroneous by a higher court.
- Where a sentencing judge's remarks reveal an apparent two-stage approach using the SNPP as the primary benchmark (the Way methodology), this may indicate Muldrock-error even if the remarks also address subjective factors elsewhere.
- The mere fact that a previous appeal addressed one sentencing error does not exhaust the grounds on which a later Part 7 application may be brought, provided a distinct doubt or question as to the sentence can be identified.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7 Division 3, section 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 44(2)
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783
- Majid v R [2010] NSWCCA 121
- Application by Darush Majid pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 709
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Liles v R (Cth) [2014] NSWCCA 289
- Youssef v R [2014] NSWCCA 285