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Court of Criminal Appeal 13 April 2017

DL v R (No 2)

[2017] NSWCCA 58

Homicide
SENTENCE APPEAL APPLICATION FOR AN EXTENSION OF TIME MULDROCK ERROR ERROR CONCEDED JUVENILE OFFENDER JUVENILE VICTIM

Citation: DL v R (No 2) [2017] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 13 April 2017
Judges: Leeming JA at [1]; Rothman J at [41]; Wilson J at [118]

Background

The appellant, a juvenile offender, was convicted on 27 March 2008 of the murder of a young female victim. He was sentenced on 14 November 2008. At the time of sentencing, an amended standard non-parole period of 25 years applied to the murder of a person under 18, and the trial judge was bound by the then-prevailing approach in R v Way to treat that standard non-parole period as a primary consideration.

The High Court later decided Muldrock v The Queen (2011), which altered the correct approach to standard non-parole periods. Under Muldrock, the standard non-parole period is one of two factors in a range rather than a primary or determinative benchmark. The appellant sought an extension of time to appeal his sentence, relying on that error.

The Crown conceded that Muldrock error had occurred and that the error was material to the sentence imposed. The question for the Court of Criminal Appeal was whether, on a re-exercise of the sentencing discretion, a lesser sentence was warranted in law.

  • Whether an extension of time to seek leave to appeal should be granted, given the delay since sentencing
  • Whether Muldrock error had occurred and whether it was material
  • Whether, on a fresh exercise of the sentencing discretion, a lesser sentence was warranted in law
  • How the resentencing exercise should proceed, including which findings from the original sentencing were available to the Court and what evidence could be considered

Decision

The Court granted the extension of time and leave to appeal, accepting the Crown's concession that Muldrock error had occurred and was material. The trial judge had explicitly benchmarked the non-parole period against the 25-year standard, and had declined to find an aggravating circumstance partly to avoid double-counting against the standard non-parole period. Both steps were inconsistent with the approach Muldrock later required.

On resentencing, the Court was not bound by the original judge's findings, particularly given the substantially different evidence before it in 2017 compared to 2008. That evidence included expert psychiatric assessments of the appellant's current and former mental states, detailed records of his conduct in custody over approximately 11 years, and information about the conditions of his detention. The Court was required to take account of facts as they existed at the time of resentencing.

Wilson J, with whom the majority agreed, found that several of the original sentencing judge's findings had been unduly favourable to the appellant or were not borne out by subsequent events. The finding of special circumstances, for instance, was considered to arguably involve double-counting in the appellant's favour. The Court also noted ongoing concerns about the appellant's conduct record in both juvenile and adult custody, and his continued refusal to acknowledge responsibility for the murder, which undermined any finding that rehabilitation was likely.

Having conducted the fresh sentencing exercise, the majority concluded that no lesser sentence was warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW). Following the approach in Abdulrahman v R [2016] NSWCCA 192, the Court did not proceed to specify the sentence it would have imposed, as doing so could leave a provisional quality attaching to the original sentence and potentially affect decisions such as parole or prison classification. The appeal was dismissed by majority.

Orders Made

  • Extension of time to seek leave to appeal on ground 1 granted
  • Leave to appeal on ground 1 granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the approach from Abdulrahman v R: once sentencing error is established, the Court re-exercises the sentencing discretion to determine whether a lesser sentence is warranted, but need not specify a hypothetical sentence if it concludes none is warranted.
  • A conceded Muldrock error does not automatically result in a reduced sentence. The re-exercise of the sentencing discretion is conducted afresh, on all the evidence available at the time of the appeal, and may still yield the conclusion that no lesser sentence is warranted.
  • Resentencing by an appellate court following Muldrock error requires consideration of current facts, including post-sentence developments in custody conduct, mental state, and rehabilitation prospects, not merely the circumstances as they stood at first instance.
  • In dismissing the appeal despite conceded error, the majority found that some original findings had been unduly favourable to the appellant, and that the appellant's ongoing refusal to accept responsibility and his conduct record in custody weighed against any reduction in sentence.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), an offender's appeal against sentence will be dismissed where the appellate court, having identified error and re-exercised the discretion, is satisfied that no lesser sentence is warranted in law.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Crimes Act 1900 (NSW)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Key Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Abdulrahman v R [2016] NSWCCA 192
- MB v R [2013] NSWCCA 254
- Gal v R [2011] NSWCCA 242
- Denham v R [2016] NSWCCA 309
- Drew v R [2016] NSWCCA 310
- House v The King (1936) 55 CLR 499; [1936] HCA 40