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Court of Criminal Appeal 16 August 2019

Lechmana v R

[2019] NSWCCA 112

Assault & violenceHomicide
CRIMINAL LAW APPEALS LESSER SENTENCE NOT WARRANTED.

Citation: Lechmana v R [2019] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 16 August 2019
Judge(s): Payne JA; Bellew J; Campbell J

Background

The applicant was convicted after trial of the murder of his wife and sentenced in 2010 by Latham J in the Supreme Court. The victim weighed approximately 50 kilograms. On the night in question, the applicant punched her, pulled her by the hair, and then choked her while she was pinned to the bed, rendering her unconscious and causing her death. The sentencing judge found the offending fell marginally below the mid-range of objective gravity for murder and that the applicant had demonstrated a complete absence of remorse.

The applicant was sentenced to a total term of 23 years with a non-parole period of 17 years and 3 months. He sought leave to appeal against that sentence many years later, the application being well out of time.

The sole ground of appeal was that the sentencing judge had fallen into what is known as "Muldrock error": a two-stage sentencing approach, inconsistent with the instinctive synthesis method later confirmed by the High Court in Muldrock v The Queen (2011), under which standard non-parole periods are treated as determinative benchmarks rather than as one of several guideposts to be weighed in an overall assessment.

  • Whether the sentencing judge, sentencing in 2010 under the then-governing approach from R v Way (2004), committed Muldrock error by adopting a two-stage sentencing process that was later found to be incorrect
  • If Muldrock error was established, whether the sentence should be reduced on resentencing
  • Whether the comparable cases relied on by the applicant demonstrated that the sentence was excessive

Decision

The Court of Criminal Appeal accepted that the sentencing judge had, in fact, employed a two-stage approach consistent with the framework then required by R v Way. Because Way governed sentencing at the time, and the two-stage methodology it prescribed was later held by the High Court in Muldrock to be an error, the Court was satisfied that error had been established. All three judges agreed on this conclusion, though Payne JA noted the caution with which such a finding should be drawn: sentencing judges of that era were simply following the law as it then stood.

Having accepted the error, the Court proceeded to consider the appropriate sentence afresh. It adopted the factual findings of the original sentencing judge without challenge, including findings about the nature and gravity of the assault, the applicant's anger and refusal to accept his wife's autonomy, his complete absence of remorse, and the limited weight his depression carried in reducing his moral culpability. Additional material tendered for the resentencing, including his custodial history, employment and education activities, and current mental health, was also taken into account.

The Court then turned to the five comparable cases advanced by the applicant, each involving non-parole periods between 15 years 9 months and 16 years 6 months and total sentences between 21 and 23 years. Payne JA and Campbell J both rejected the submission that these cases revealed Muldrock error or established that the sentence was excessive. Each comparable case was distinguishable on its facts, and the Court noted that five cases do not provide a complete picture of sentencing practice. Cases imposing sterner sentences also existed. Consistent application of legal principle, not numerical equivalence across cases, is what matters in sentencing.

On completing the resentencing exercise, the Court was satisfied that the original sentence was appropriate for the offender and the offence. No lesser sentence was warranted in law.

Orders Made

  • Time for bringing the application for leave to appeal extended to 30 October 2018
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court which applied the two-stage Way methodology before Muldrock was decided in 2011 may be found to have committed Muldrock error, even where that court was simply following the law as it then stood.
  • Despite finding such error, the Court conducted a resentencing exercise and arrived at the same sentence, illustrating that the identification of Muldrock error does not automatically produce a reduced sentence.
  • Comparable cases can inform the sentencing task, but the Court reaffirmed the principle from Barbaro and Hili that such cases do not fix binding outer limits on the sentencing discretion. What matters is consistent application of unifying legal principles.
  • Where comparable cases are relied upon to demonstrate excessiveness, five cases were found insufficient to represent the full range of sentencing practice, particularly where each was factually distinguishable and cases with higher sentences also existed.
  • Findings about an applicant's lack of remorse, failure to take responsibility, and limited impact of mental health on moral culpability remained well-founded on the evidence and were not disturbed on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, Div 1A Pt 4
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Davis v R [2015] NSWCCA 90
- Majid v R [2016] NSWCCA 289
- Abdulrahman v R [2016] NSWCCA 192
- Aytugrul v R [2015] NSWCCA 139
- Rajendran v R [2014] NSWCCA 113
- R v Fesus (No 9) [2018] NSWSC 176
- R v Haydar (No 4) [2017] NSWSC 615
- R v Hejabian [2016] NSWSC 1692
- R v Do (No 4) [2015] NSWSC 512
- R v Serutawke [2014] NSWSC 1762
- R v DeBeyer [2017] NSWSC 1700
- R v Biles (No 2) [2017] NSWSC 525