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Court of Criminal Appeal 13 June 2023

Snibson v R

[2023] NSWCCA 127

Homicide
CRIME APPEAL AGAINST SENTENCE MURDER PAROLE PERIOD “ MULDROCK ERROR” WHERE NON

Citation: Snibson v R [2023] NSWCCA 127
Court: Court of Criminal Appeal, New South Wales
Date: 13 June 2023
Judges: Beech-Jones CJ at CL, Davies J, Hamill J

Background

The appellant pleaded guilty on the ninth day of her trial to two counts of murder and two counts of specially aggravated kidnapping. The offences concerned the deaths of a couple who lived near the appellant's property, with the sentencing judge finding that the male victim was strangled and the female victim was suffocated. The court could not determine who delivered the fatal acts, what precipitated the deaths, or precisely when they occurred.

The appellant was sentenced in September 2008 as a principal in the second degree, reflecting her pivotal role in the events leading to the murders and her participation in concealing the crimes. The original sentence was an overall term of 32 years' imprisonment with a non-parole period of 24 years.

A Notice of Intention to Appeal was filed in 2009 but expired without being renewed. The appellant filed a fresh Notice of Appeal in April 2022, relying on the High Court's 2011 decision in Muldrock v The Queen, which post-dated her original sentencing. She sought leave to appeal out of time, explaining a prolonged inability to obtain legal representation or funding.

  • Whether the sentencing judge applied the standard non-parole period (SNPP) for murder as a "primary" or "determinative" factor, contrary to the approach later mandated by Muldrock v The Queen (2011) 244 CLR 120.
  • Whether leave to appeal out of time should be granted, given the delay was explained by the appellant's inability to access legal representation.
  • If error was established, what sentence should be substituted, including whether fresh evidence about rehabilitation and COVID-related custodial conditions should be taken into account.

Decision

The Court granted leave to appeal out of time. The appellant's delay was explained by her lack of legal representation and inability to obtain funding, and the Court accepted that explanation as sufficient.

On the substantive ground, the Court held that the sentencing remarks must be read as a whole when determining whether a sentencing judge gave impermissible primary or determinative weight to the SNPP. Applying that approach, the Court found that error had been demonstrated. Two features were particularly telling: the sentencing judge's remarks closely mirrored the language he had used when sentencing a co-offender, where the R v Way approach (later overruled by Muldrock) was plainly applied; and the undiscounted overall sentence was so arithmetically unusual as to suggest the entire exercise had been driven by the SNPP rather than an independent assessment of the objective and subjective circumstances.

Having established error, the Court was required under Kentwell v The Queen (2014) 252 CLR 601 to re-exercise the sentencing discretion afresh. The Court received further evidence not before the original sentencing judge, including evidence of the appellant's progress toward rehabilitation during custody and the more onerous conditions of imprisonment experienced during the COVID-19 pandemic. Beech-Jones CJ at CL noted that, applying the correct Muldrock approach to the original material alone, the sentence imposed by Buddin J would likely have been the same or possibly higher. The fresh evidence, however, supported a modest reduction.

The non-parole period for each murder was reduced from 18 years to 17 years, with the balance of term reduced from 8 years to 7 years.

Orders Made

  • Time for bringing the appeal extended to 1 April 2022.
  • Leave to appeal granted.
  • Appeal upheld.
  • Sentences imposed by Buddin J for both counts of murder quashed.
  • For the murder of Gregory Hosa: non-parole period of 17 years commencing 29 January 2006, expiring 28 January 2023, with a balance of term of 7 years expiring 28 January 2030.
  • For the murder of Kathryn McKay: non-parole period of 17 years commencing 29 July 2011, expiring 28 July 2028, with a balance of term of 7 years expiring 28 July 2035.
  • The appellant warned that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to her and these offences, with her lawyers directed to advise her of its possible implications.
  • Non-publication order made under the Courts (Suppression and Non-publication) Orders Act 2010 (NSW) for redacted portions of the judgment for 15 years.

Key Takeaways

  • The Court of Criminal Appeal confirmed that determining whether a sentencing judge committed Muldrock error requires reading the sentencing remarks as a whole, rather than isolating particular phrases or passages.
  • Where a sentencing judge had previously sentenced a co-offender using the R v Way approach, and used similar language in the appellant's sentencing remarks, that similarity constitutes strong evidence that the same erroneous framework was applied.
  • An arithmetically unusual undiscounted sentence can independently support a finding that the sentencing exercise was impermissibly driven by the standard non-parole period.
  • Once Muldrock error is established, the appellate court must re-exercise the sentencing discretion entirely afresh, and must take into account further evidence adduced on appeal, including evidence of rehabilitation and changed custodial conditions.
  • Delay in appealing, explained by a demonstrated inability to obtain legal representation or funding, can be accepted as a sufficient basis to grant leave to appeal out of time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Courts (Suppression and Non-publication) Orders Act 2010 (NSW), ss 7, 8

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
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Aldous v R [2012] NSWCCA 153
- Zreika v R [2012] NSWCCA 44
- Robert Anthony Mark Aslett v R [2012] NSWCCA 235
- Bolt v R [2012] NSWCCA 50
- Black v R [2013] NSWCCA 265
- Williams v R [2012] NSWCCA 172
- Yun v R [2017] NSWCCA 317
- Davis v R [2015] NSWCCA 90
- Buttrose v Attorney-General (NSW) [2015] NSWCA 221
- R v Stacey Lea-Caton [2007] NSWSC 1294
- R v Kim Leanne Snibson [2008] NSWSC 905