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Court of Criminal Appeal 15 December 2017

Yun v R

[2017] NSWCCA 317

Homicide
CRIMINAL LAW SENTENCE APPEAL ASSERTED MULDROCK ERROR SENTENCE APPEAL

Citation: Yun v R [2017] NSWCCA 317
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2017
Judges: Latham J, Bellew J, Campbell J

Background

The appellant was convicted of murder in 2005 and sentenced to a non-parole period of 20 years with an additional term of 6 years and 8 months. On a 2008 appeal, the Court of Criminal Appeal found error in the original sentencing, quashed the sentence, and re-sentenced the appellant to a head sentence of 24 years with a non-parole period of 18 years.

The appellant subsequently made two applications for an inquiry into his sentence under the Crimes (Appeal and Review) Act 2001. The first, in 2014, was dismissed. The second, in 2017, was referred to the Court of Criminal Appeal following the intermediate decision in Buttrose v Attorney General of New South Wales [2015] NSWCA 221.

The second application was referred on the basis that the Court of Criminal Appeal had been sentencing under the shadow of R v Way [2004] NSWCCA 131, and that there was an arguable appearance of "arithmetical neatness" in the re-sentence imposed. Johnson J nonetheless expressed reservations about whether actual error existed, and the matter proceeded to hearing.

  • Whether the Court of Criminal Appeal, when re-sentencing in 2008, committed "Muldrock error" by giving primary or determinative significance to the standard non-parole period of 20 years, contrary to Muldrock v R (2011) 244 CLR 120.
  • Whether arithmetical neatness in the sentence imposed (18 years non-parole from a 24-year head sentence, measured against the 20-year standard non-parole period) was evidence of that error.
  • Whether the Court of Criminal Appeal erred by taking into account matters personal to the appellant when assessing the objective seriousness of the offending.
  • Whether a distinction exists between the assessment of objective seriousness for offences carrying a standard non-parole period and objective seriousness assessed for all other offences.

Decision

The Court found no Muldrock error in the 2008 re-sentence. The 2008 judgment had expressly identified the sentencing judge's over-reliance on the standard non-parole period as a starting point as the basis for error, and the Court had re-sentenced using the instinctive synthesis method consistent with Markarian v R (2005) 228 CLR 357. The re-sentence proceeded by reference to objective seriousness, identified mitigating circumstances, and arrived at both a head sentence and non-parole period without treating the standard non-parole period as a mathematical fulcrum.

On the question of arithmetical neatness, the Court found that the figures in the re-sentence did not in themselves demonstrate error. The non-parole period of 18 years was less than, not equal to, the 20-year standard non-parole period, and the relationship between the head sentence and non-parole period reflected a proper balance between those components rather than a mechanical calculation anchored to the standard non-parole period.

The appellant also argued that the 2008 Court had impermissibly considered matters personal to him when assessing objective seriousness. The Court of Criminal Appeal rejected this, finding that the 2008 judgment had correctly distinguished between objective factors (including intent, use of a weapon, and degree of premeditation) and personal mitigating factors (including remorse, low likelihood of reoffending, and lack of family support), with the latter properly addressed at a separate stage of sentencing.

Campbell J, in a concurring judgment, addressed the broader question of whether Muldrock had overruled everything said in R v Way about the relationship between objective seriousness and matters personal to the offender. His Honour concluded that Muldrock overruled the two-staged approach in Way, but did not disapprove of the analysis in Way regarding the distinction between objective circumstances and personal characteristics. The mental element of an offence, he confirmed, is an aspect of the objective seriousness of the offending and not a personal characteristic of the offender.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that arithmetical neatness in a sentence does not automatically establish Muldrock error; the numbers must be assessed in the context of the full sentencing reasons to determine whether the standard non-parole period was used as a starting point rather than a reference point.
  • A sentence imposed using instinctive synthesis, which weighs objective seriousness and personal mitigating factors distinctly, is not rendered erroneous simply because it was imposed at a time when R v Way had currency.
  • Muldrock v R overruled the staged or stepped approach to sentencing for Division 1A offences as described in R v Way, but did not disapprove of Way's analysis of the distinction between objective circumstances of the offending and matters personal to the offender.
  • The mental element of an offence, including the intent required for murder, forms part of the objective seriousness of the offending and is not a personal characteristic of the offender for sentencing purposes.
  • In dismissing the appeal, the Court also confirmed that personal circumstances such as youth or prior abuse may impinge on moral culpability but do not alter the assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 (NSW)

Cases:
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Way [2004] 60 NSWLR 168; [2004] NSWCCA 131
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Maxwell v R [2007] NSWCCA 304
- Davis v R [2015] NSWCCA 90
- Giang v R [2017] NSWCCA 25
- Biddle v R [2017] NSWCCA 128
- Application by Gil Bum Yun pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 824
- Further Application by Gil Bum Yun pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 825
- SKA v R; R v SKA [2009] NSWCCA 186
- Aytugrul v R [2015] NSWCCA 139