Citation: Application by FD pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2017] NSWSC 869
Court: Supreme Court of New South Wales
Date: 30 June 2017
Judge(s): Latham J
Background
The applicant, FD, was sentenced in 2005 following his conviction for murder, robbery with an offensive weapon, and malicious wounding with intent to cause grievous bodily harm. The offences arose from a planned robbery in which a prospective seller of a diamond ring was lured to a Glebe backyard, where her son was fatally stabbed and her husband was also stabbed. Levine J imposed a non-parole period of 18 years with a balance of term of six years, and FD's appeals against conviction and sentence were dismissed by the Court of Criminal Appeal in 2006.
FD had previously made an application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), which Garling J dismissed in 2015. This second application again sought referral of the sentence to the Court of Criminal Appeal on the basis that a doubt or question existed as to a mitigating circumstance in the case.
The fresh application relied primarily on two arguments: that Garling J had applied the wrong legal test when dismissing the earlier application, and that the original sentencing judge and the Court of Criminal Appeal had committed what is known as "Muldrock error" by treating the standard non-parole period as a sentencing benchmark rather than a guidepost.
Legal Issues
- Whether Garling J applied the correct test under s 78 and s 79 of the Crimes (Appeal and Review) Act 2001 in dismissing the first application.
- Whether the test for referral under Part 7 requires a judge to be satisfied only that there "appears" to be a doubt or question, rather than that a doubt or question objectively exists.
- Whether Levine J committed Muldrock error by treating the standard non-parole period as a de facto starting point or numerical benchmark in sentencing FD for murder.
- Whether the Court of Criminal Appeal itself committed Muldrock error when it dismissed FD's appeal against sentence severity.
Decision
Latham J first addressed the argument that Garling J had applied the wrong test, rejecting it squarely. Her Honour confirmed that the correct test under s 79 of the Act is whether it "appears" to the judge that there is a doubt or question. This is a reference to the judge's own satisfaction, not an objective determination. Buttrose v Attorney General of New South Wales [2015] NSWCA 221 did not alter this approach; it confirmed what had already been established in Sinkovich v Attorney General of NSW [2013] NSWCA 383. Where a judge phrases a conclusion by saying there "is" or "is not" a doubt, that does not automatically reveal an error in the test applied.
On the Muldrock error argument, Latham J examined Levine J's sentencing remarks in detail. Her Honour found that Levine J had announced his intention to set a non-parole period below the standard non-parole period, on totality grounds, before turning to aggravating and mitigating circumstances. This sequencing meant there was no occasion for Levine J to have used the standard non-parole period as a numerical starting point for calibrating aggravating or mitigating factors. Levine J had also expressly declined to take aggravating circumstances into account to avoid double-counting.
Regarding the Court of Criminal Appeal's treatment of the sentence, Latham J found no appearance of Muldrock error there either. The 2006 judgment made no reference to the standard non-parole period in the context of the applicant's appeal against sentence severity. The only reference to the standard non-parole period arose when addressing the Crown's inadequacy appeal, and solely in response to the Crown's own submissions. The Court of Criminal Appeal had accepted that Levine J approached sentencing by way of instinctive synthesis, which is the correct methodology. Accordingly, no doubt or question appeared as to the sentence, and the application was dismissed.
Orders Made
- The application was dismissed.
Key Takeaways
- The test under s 79 of the Crimes (Appeal and Review) Act 2001 requires only that it "appears" to the judge that a doubt or question exists, meaning the judge's own satisfaction is what matters, not an objective finding. This position was established in Sinkovich and confirmed in Buttrose, with no change to the underlying standard.
- A judge expressing a conclusion in terms of whether a doubt "is" or "is not" present does not, without more, indicate that the wrong test was applied. The form of words used in a judgment does not necessarily reveal error in the underlying approach.
- Where a sentencing judge applies the principle of totality to set a non-parole period below the standard non-parole period before considering aggravating and mitigating factors, that sequencing is inconsistent with the Muldrock-type error of treating the standard non-parole period as a numerical benchmark.
- No Muldrock error was established against the Court of Criminal Appeal where that court made no reference to the standard non-parole period in considering the applicant's severity appeal, and expressly accepted that instinctive synthesis governed the sentencing exercise.
- A second Part 7 application will not succeed merely because the applicant asserts that the judge who dismissed the first application applied the wrong test, absent a demonstrable error in the threshold analysis.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 29A
Cases
- Application of FD [2015] NSWSC 285
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Sinkovich v Attorney General of NSW [2013] NSWCA 383
- Sinkovich v R [2014] NSWCCA 97
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Davis v R [2015] NSWCCA 90
- Ayturgrul v R [2015] NSWCCA 139
- Bolt v R [2012] NSWCCA 50
- R v Dehaybi; R v JD [2005] NSWSC 158
- Regina v F.D; Regina v F.D; Regina v J.D [2006] NSWCCA 31
- Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423
- Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 432
- Application by Xiao Feng Wang pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670
- Application by Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 561
- Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 210