Application by FB pursuant to s 78 Crimes (Appeal and Review) Act 2001

[2014] NSWSC 485

Supreme Court

New South Wales

Medium Neutral Citation:	Application by FB pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 485
Hearing dates:	On the papers
Decision date:	29 April 2014
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Application granted. Matter referred to the Court of Criminal Appeal to be deal with as an appeal under the Criminal Appeal Act 1912.
Catchwords:	CRIMINAL LAW - application for inquiry into sentence under s 78 of the Crimes (Appeal and Review) Act - whether sentence infected by Muldrock error - application granted - matter referred to the Court of Criminal Appeal
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 FB v Regina; Regina v FB [2011] NSWCCA 217 Mallard v R [2005] HCA 68; 224 CLR 125 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
Category:	Principal judgment
Parties:	FB (Applicant) Regina (Respondent)
Representation:	Solicitors: Heffernan Legal (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	2013/314452
Publication restriction:	None

Judgment

1. The applicant was convicted of an offence of aggravated sexual assault under s 61J(1) of the Crimes Act1900 (NSW). The maximum penalty for that offence was 20 years imprisonment. The standard non-parole period was 10 years (see s 54B of the Crimes (Sentencing Procedure) Act1999 (NSW)). In November 2010, Lakatos DCJ sentenced the applicant to a term of imprisonment of 6 years, 6 months, with a non-parole period of 4 years. An appeal against conviction was dismissed, but a Crown appeal on sentence was allowed, with the result that the applicant was re-sentenced to a term of imprisonment of 10 years and a non-parole period of 6 years (see FB v Regina; Regina v FB [2011] NSWCCA 217). He is eligible for release on 8 August 2015.

1. The applicant seeks a review of that sentence under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). He requests that his case be referred to the Court of Criminal Appeal as an appeal against sentence, under s 79(1)(b) of that Act. The basis for the application is error in the Court of Criminal Appeal's sentencing decision of the kind discussed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26] - [27].

1. Submissions have been made both by the applicant and by the New South Wales Attorney General. The Attorney General submitted that Muldrock substantially changed the way a sentencing court is to apply the provisions of Part 4, Division 1A of the Crimes (Sentencing Procedure) Act, with a standard non-parole period no longer being a dominant factor in sentencing. The Attorney General conceded that in the result, a fair reading of the appeal judgment established that the decision to allow the Crown appeal was made on the application of erroneous legal principle. The Attorney General accepted that the circumstances were such that the application ought to be granted, there being no discretionary reasons for its refusal.

1. The applicant's circumstances are briefly that he was convicted of having penile/vaginal intercourse with a 14 year old, year 8 student of a school of which he was Principal, after giving her two tablets, while she was staying at his family home. She later awoke to find him having intercourse with her.

1. At the time of sentencing the applicant was already serving a custodial sentence for other sexual intercourse offences. This offence had occurred earlier in time. It was found by the sentencing judge to have fallen just below the mid-range of objective seriousness. The sentence imposed was made concurrent with the sentence already being served.

1. The grounds of appeal pressed by the Crown were that the sentence did not adequately reflect the objective seriousness of the offence, given the finding that it fell just below the middle range of objective seriousness and that it was manifestly inadequate.

1. The sentence was found to be manifestly inadequate. As to the standard non-parole period it was observed at [150] - [154]:

150 It is plainly the position, the respondent having been found guilty after trial, that the standard non-parole period had direct application by force of statute. It was not merely there to serve as a guidepost on sentence in the situation where a plea of guilty has been entered (R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 184 [68]). The sentencing judge was obliged to have regard to both the maximum penalty and the standard non-parole period (R v Achurch [2011] NSWCCA 186 per Garling J at [180]).

151 In the present matter, the sentencing judge concluded that the objective gravity of the offence fell "just below the mid range of objective seriousness". Although perhaps somewhat generous to the respondent, there was no challenge by the Crown to this finding.

152 The real question arising on the Crown appeal is whether there was any justification, in the findings his Honour made in relation to subjective circumstances or otherwise, that would permit the imposition of a non-parole period of no more than four years. The standard period for this offence if it were in the mid-range of objective seriousness was 10 years. In my opinion, with all due respect to the sentencing judge, I have been forced to conclude that his Honour's reasoning fails to justify such a substantial departure from the standard non-parole period.

153 First, it may be observed that the non-parole period imposed is only 40 per cent of the standard non-parole period. Secondly, the overall term of the sentence was 6 years, a sentence itself well below the standard non-parole period. Each of these factors in itself is sufficient, in my opinion, to suggest or point strongly to error, unless the apparent discrepancy can be explained by the respondent's subjective circumstances, or by some other matter.

154 However, there is nothing in those subjective circumstances, or elsewhere in the sentencing material, that would warrant such a substantial departure from the standard non-parole period. The respondent was entitled to have the sentencing court take into account his depressive state and the judge did so. However, this circumstance could not, in the present matter, possibly outweigh or undermine the objective seriousness of the offence. As the courts have repeatedly stated in this context, ill health cannot be allowed to become a licence to commit crime, nor should offenders expect to escape punishment because of the condition of their health. Of course, it will be the responsibility of the Correctional Service authorities to provide appropriate care and treatment for prisoners with illness and disabilities (R v Vachalec (1981) 1 NSWLR 351 at 353 - 354). This factor could not have explained the selection of a four year non-parole period.

1. The parties' agreement that these observations reveal Muldrock error must be accepted, it having there been concluded that R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. An approach to sentencing such as here, followed by a consideration as to whether a "departure from the standard non-parole period" was warranted, was not available as a matter of law.

1. Section 79(2) of the Crimes (Appeal and Review) Act permits an application such as this to be referred to the Court of Criminal Appeal to be dealt with as an appeal only if "there is a doubt or question as to ...any mitigating circumstances in the case". The term "mitigating circumstances" is not defined. In Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 it was concluded that a Muldrock error such as here occurred, can constitute a relevant "mitigating circumstance". In the result it was ordered that:

"[79] The form of the declaration should take account of the fact that Latham J was persuaded that the sentencing judge and Court of Criminal Appeal had applied sentencing principles which should not have been applied in the light of the High Court's judgment in Muldrock: at [9]. Both courts approached the sentencing exercise on an erroneous view of the law. That was an error capable of giving rise to a doubt or question as to the correctness of the sentence imposed. The court should make a declaration in the following terms:

Declare that an error of law on the part of the sentencing judge and, on appeal, the Court of Criminal Appeal, which may have caused a sentence to be imposed of greater severity than would otherwise have been the case, constitutes an aspect of the proceedings giving rise to the sentence which may form the basis of a doubt or question as to circumstances having the potential to mitigate the sentence imposed, for the purpose of considering an application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW).

1. If such a situation is established, the whole case is referred to be dealt with as an appeal, including all questions of fact and law involved (see Mallard v R [2005] HCA 68; 224 CLR 125 at [10] - [13]).

Conclusion

1. In the result I am satisfied that there is sufficient evidence of Muldrock error in this case to justify the referral of the matter to the Court of Criminal Appeal. The common position of the applicant and the Attorney General that the Court of Appeal's reliance on R v Way has sufficiently infected the sentence imposed that the Court must now intervene by granting this application, should be accepted as raising the sense of disquiet necessary to be established, before a reference under s 79 is made (see Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [6]).

1. The Crown raised the question of whether before such a reference, an inquiry should be held under s 79(1)(a). The result of such an inquiry may also lead to a referral of the matter to the Court of Criminal Appeal under s 82(2).

1. This is not a case where the applicant seeks to rely on new evidence, but rather where the application of sentencing principles arises for consideration. Despite conceding the Muldrock error, the Crown does not concede that the sentence imposed on appeal was inappropriate. Given that there is no issue as to the nature of the error here in question, in my view the application should be referred to the Court of Criminal Appeal to determine whether the Muldrock error affected the sentence imposed on the applicant as the result of the Crown appeal.

1. In the circumstances, that is a matter which must be determined by the Court of Criminal Appeal and does not require prior investigation under s 79(1)(a).

1. The application is accordingly granted and the matter referred to the Court of Criminal Appeal as an appeal under the Criminal Appeal Act.

**********

Decision last updated: 13 May 2014