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Court of Criminal Appeal 21 December 2018

DL v R

[2018] NSWCCA 302

Homicide
SENTENCING APPEALS AGAINST SENTENCE AMENDMENT FAVOURABLE TO OFFENDER SENTENCE CONDUCT CRIMINAL APPEAL ACT 1912 (NSW), S 6(3) APPEAL AGAINST SENTENCE

Citation: DL v R [2018] NSWCCA 302
Court: Court of Criminal Appeal
Date: 21 December 2018
Judge(s): Basten JA at [1]; Schmidt J at [78]; Fagan J at [80]

Background

The appellant, whose identity is suppressed because he was under 18 at the time of the offence, was convicted of the murder of a girl, also under 18, following a violent knife attack on 19 July 2005. The victim sustained approximately 48 stab wounds; one penetrated her heart and proved fatal. The appellant was convicted by a jury in March 2008 and sentenced in November 2008 to a non-parole period of 17 years with a further term of 5 years, giving a total sentence of 22 years.

The sentencing judge applied a standard non-parole period of 25 years, which applied to murders where the victim was under 18. That approach was subsequently held to be erroneous by the High Court in Muldrock v The Queen in 2011. The appellant sought leave to appeal in 2016. After a first appeal to this Court, in which a majority held no lesser sentence was warranted, the High Court set aside that order and remitted the matter for redetermination.

The matter returned to the Court of Criminal Appeal for fresh resentencing. The only question before the Court was whether a lesser sentence was warranted in law and, if so, what sentence should be imposed.

Legal Issues

  • Whether, on resentencing, the Court is bound to apply the sentencing law as it stood at the time of the original sentencing, or the law as it stands at the time of resentencing (including a subsequent legislative amendment removing standard non-parole periods for offenders under 18).
  • Whether the prosecution's withdrawal of its concession that some adjustment to sentence was required affected the resentencing exercise.
  • The extent to which the appellate court may or should rely on the sentencing judge's factual findings when resentencing.
  • Whether, on the facts, a lesser sentence was warranted in law, having regard to the offender's age, mental state, conditions of imprisonment, and other sentencing factors.
  • Whether special circumstances existed to justify varying the statutory proportion between the non-parole period and the balance of the term.

Decision

Issue 1: Which law applies on resentencing

Basten JA identified a live question as to whether s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which from 1 January 2009 excluded offenders under 18 from the standard non-parole period regime, applied on resentencing (at [32]-[49]). His Honour reviewed Australian and comparable authority suggesting that the resentencing court must apply the law as it stood at the time of the original sentence, not current law (at [40]-[43]). However, because both parties adopted the position that no standard non-parole period applied on resentencing, and that position operated in the offender's favour, Basten JA declined to resolve the question without further argument (at [49]). Schmidt J and Fagan J expressly reserved their views on this issue (at [78], [80]).

Issue 2: Effect of the prosecution's withdrawal of its concession

The prosecution had previously conceded that the original sentence required some adjustment, but withdrew that concession on the remitted appeal. Basten JA held that nothing turned on this withdrawal (at [50]). A concession of minimal adjustment was, in any event, not a significant concession. His Honour confirmed the established principle from Baxter v R and Kentwell v The Queen that, once error is identified, the appellate court exercises the sentencing discretion afresh rather than making a mechanical adjustment to the original sentence (at [51]-[52]).

Issue 3: Role of the sentencing judge's findings

The Court affirmed that, while it exercises the resentencing discretion afresh, it must give appropriate weight to the sentencing judge's advantages (at [53]-[55]). Those advantages included familiarity with the full trial evidence, direct observation of the three psychiatrists giving conflicting evidence, and the sentencing judge's finding that none of the experts was shaken in cross-examination (at [55]). The Court accepted the sentencing judge's factual findings, including that the offender's conduct defied rational explanation and that the jury's verdict was consistent with an intention to cause grievous bodily harm rather than an intention to kill (at [15], [69]).

Issue 4: Whether a lesser sentence was warranted

The Court held unanimously that a lesser sentence was warranted. The sentencing judge would have imposed a lower sentence but for the standard non-parole period of 25 years (at [68], [79]). The original sentence reflected that distorting effect. The Court identified several factors supporting a reduced sentence: the offender's age of 16 (and immaturity) at the time of the offence; the finding that he likely suffered some form of mental disability, reducing the weight to be given to general and personal deterrence (at [67], [69]); the severity of his actual experience of custody, which had exceeded what the sentencing judge would have anticipated (at [66], [70]); and the absence of a finding of intention to kill, which the first Court of Criminal Appeal had erroneously substituted for the sentencing judge's finding (at [69]). The Court also noted the offender's lack of acceptance of responsibility and the ongoing difficulty in assessing rehabilitation prospects (at [71]).

Issue 5: Special circumstances

The Court found special circumstances, warranting a departure from the standard one-third ratio between balance of term and non-parole period, based on the offender's age, absence of any prior criminal record, it being his first time in custody, and the established severity of imprisonment for him (at [72]).

Orders Made

  • The appeal was allowed and the sentence imposed on 14 November 2008 was set aside.
  • The offender was resentenced to a non-parole period of 13 years dating from 19 July 2005, with a further term of 5 years, giving a total sentence of 18 years imprisonment.
  • The offender became eligible for parole on 19 July 2018. The sentence expires on 18 July 2023.

Key Takeaways

  • Where a sentencing judge applied undue weight to a standard non-parole period, in a manner later condemned by the High Court in Muldrock, the Court of Criminal Appeal will exercise the sentencing discretion afresh rather than treating the original sentence as presumptively correct (at [51]-[52]).

  • A significant unresolved question remains under NSW law as to whether, on resentencing, the appellate court must apply the sentencing law as at the date of original sentencing or the law as it stands at the time of resentencing. Basten JA reviewed divergent authority from Queensland and South Australia, as well as the text of s 6(3) of the Criminal Appeal Act 1912 (NSW), but left the point open because the parties agreed to proceed on the more favourable current-law basis (at [32]-[49]). Schmidt J and Fagan J expressed no view on this question (at [78], [80]).

  • On resentencing, an offender's mental disability at the time of the offence, even where it falls short of a diagnosable psychosis, remains a mitigating factor that reduces the weight properly given to general and personal deterrence (at [67], [69]).

  • Conditions of imprisonment that prove more severe than anticipated at the original sentencing are a matter the resentencing court may take into account (at [66], [70]).

  • Special circumstances justifying an extended balance of term can be established by a combination of youth, first time in custody, absence of prior criminal history, and demonstrated severity of the custodial experience, even where the offender has not accepted responsibility for the offence (at [72]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54D; Sch 2, cll 45, 57, 60
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), s 2; Sch 1[8]
- Crimes Act 1958 (Vic), s 568
- Criminal Appeal Act 1912 (NSW), ss 6, 12
- Criminal Appeal Act 1968 (UK), s 11
- Criminal Code 1899 (Qld), s 668E
- Criminal Law Consolidation Act 1935 (SA), s 353
- Criminal Procedure Act 1921 (SA), s 158

Cases
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Crump v R [2016] NSWCCA 2
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCA 194
- DL v R (No 2) [2017] NSWCCA 58
- DL v The Queen [2018] HCA 32; 92 ALJR 764
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v GDP (1991) 53 A Crim R 112
- R v Hearne (2001) 124 A Crim R 451
- R v Hughes [2018] 2 Qd R 134; [2017] QCA 178
- R v MAH [2005] NSWSC 871
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v MS [2004] NSWSC 730
- R v MTN; R v CVH [2002] NSWSC 1160
- R v O’Grady [2000] NSWSC 1255
- R v Pishdari [2018] SASCFC 94
- R v Raine [2017] QCA 204
- R v SB; R v AE; R v MG [2015] NSWSC 659
- R v Wruck [2014] QCA 39; 239 A Crim R 111
- Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54
- The Queen v Cornale, Nicholson & Parker [1993] 2 Qd R 294
- Younger v The Queen [2017] VSCA 199