Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001
[2013] NSWSC 1342
•17 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342 Decision date: 17 September 2013 Jurisdiction: Common Law Before: Latham J Decision: Application refused
Catchwords: CRIMINAL LAW - application for inquiry into sentence following conviction - s 78, Crimes (Appeal and Review) Act 2001 - whether change in sentencing practice brought about by High Court decision in Muldrock v The Queen capable of constituting "mitigating circumstance" in s 79, Crimes (Appeal and Review) Act 2001 - "mitigating circumstances" confined to errors of fact, not law - principle of finality - disparity between offenders who exercised right to appeal sentence pre-Muldrock and those who did not resolved by concept of merger - application refused Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Law Amendment Act 1883
Crimes Act 1900
Crimes Amendment (Review of Convictions and Sentences) Act 1996Cases Cited: Application of Antoun El Hani [2007] NSWSC 330
Application of Peter James Holland [2008] NSWSC 251
The Application of Stevens (unreported, 23 May 2012)
D'Orta Ekenaike v Victori Legal Aid (2005) 223 CLR 1
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Etchell v R [2010] NSWCCA 262
Montero v R [2013] NSWCCA 214
Muldrock v The Queen (2011) 244 CLR 120
R v Gregory [2002] NSWCCA 199
R v Ramsden [1972] Crim LR 547
R v Unger [1977] 2 NSWLR 990
R v Way (2004) 60 NSWLR 168
Sinkovich v R [2011] NSWCCA 90
Stevens - Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2011] NSWSC 1252
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
White v The King (1906) 4 CLR (Pt 1) 152
X7 v Australian Crime Commission [2013] HCA 29
Yin v R [2007] NSWCCA 350Texts Cited: New South Wales Law Reform Commission (Sentencing; Interim Report on Standard Minimum Non-Parole Periods, Report 134 (2012)) Category: Principal judgment Parties: Frank Sinkovich - (Applicant)
Regina - (Respondent)Representation: Solicitors
Legal Aid New South Wales - (Applicant)
Crown Solicitor - (Respondent)
File Number(s): 2013/215547
DECISION
The applicant, Frank Sinkovich, applies to the Court pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (the Act) for an inquiry into his sentence following his conviction after trial on two drug offences. The applicant submits that there is a doubt or question as to a mitigating circumstance in his case that warrants the referral of the sentence to the Court of Criminal Appeal.
Sections 78 and 79 in Part 7 (Review of convictions and sentences) of the Act provide :-
78 (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
79 (1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
In November 2009, the applicant was sentenced to four years' imprisonment, including a non-parole period of two years, for the offence of knowingly take part in the supply of methylamphetamine. He was sentenced to thirteen years' imprisonment, including a non-parole period of nine years, for the offence of supply a commercial quantity of methylamphetamine (count 2 on the indictment). The latter offence carries a standard non-parole period of ten years.
The aggregate sentence was one of fourteen years, including an aggregate non-parole period of ten years.
The applicant sought leave to appeal against sentence on the grounds that the sentences were individually and in the aggregate manifestly excessive, and on the ground of disparity. On 15 April 2011, the applicant's appeal was dismissed : Sinkovich v R [2011] NSWCCA 90.
In October 2011, the High Court delivered judgment in Muldrock v The Queen (2011) 244 CLR 120. In the light of the High Court's disapproval of R v Way (2004) 60 NSWLR 168, the present application is based upon the imposition of sentence in accordance with the approach to the standard non-parole period previously established by the Court in Way, and the disposition of the applicant's appeal by the Court of Criminal Appeal consistent with Way. The applicant maintains that an erroneous approach to the assessment of an appropriate sentence, notwithstanding compliance with authority as it existed at sentence and on appeal, raises a doubt or question as to a mitigating circumstance in the case : s 79 of the Act.
The findings made by the sentencing judge for the purposes of the offence carrying the standard non-parole period were set out in the course of Hoeben J's judgment in the Court of Criminal Appeal :-
17 In relation to count 2, his Honour noted that a standard non-parole period of 10 years applied and that s54B of the Crimes (Sentencing Procedure) Act , 1999 (the Act) required that a Court set the standard non-parole fixed for the offence unless the Court determined that there were reasons for setting a non-parole period which was either longer or shorter than the standard non-parole period. By reference to R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 his Honour noted that where a standard non-parole period applied to an offence, one had to ask whether reasons existed for not imposing it. As a first step, it was necessary to assess the objective seriousness of the offence to determine whether it fell within the mid-range of objective seriousness for offences of the relevant kind. Such a determination would include a consideration of the applicable circumstances of aggravation and mitigation provided for in s21A(2) and s21A(3) of the Act.
18 In relation to the objective seriousness of the offence in count 2, his Honour said:
"... I am satisfied as I have already indicated that it involved a considerable degree of planning. First there were those negotiations between Lowe and the UCO in respect of the purchase price and the timeframe when the delivery could be made. The offender was the go to man for the supply of the commercial quantity. It involved this offender organising for the supply and collection of the commercial quantity and then organising its supply to Lowe so that he could on-supply it to the UCO. A driver had to be organised to take Lowe and Tutton to the Sweetenham Road location. A large sum of money changed hands. The amount supplied was almost twice the prescribed commercial quantity (250 grams). The offender Sinkovich waited at Lowe's premises while the transaction was going down. My assessment of the objective seriousness of this offence, so far as this offender is concerned, is that it falls slightly above the midrange." (ROS 6.1)
19 In assessing the objective seriousness of the count 2 offence, his Honour also took into account under s21A(3) of the Act, that the applicant did not have any significant history of criminal offending and that he had reasonable prospects of rehabilitation. His Honour did note, however, that no remorse had been exhibited and that despite an overwhelming prosecution case, he continued to deny his guilt.
On the hearing of the appeal, the applicant challenged the sentencing judge's finding in relation to the objective gravity of count 2. The Court (Hoeben J, Macfarlan JA and Garling J agreeing) said in response to these submissions :-
50 Moreover, the applicant's submissions are silent as to the effect of the standard non-parole period of 10 years applicable in respect of the offence in count 2 and the applicant's relatively modest subjective case.
51 Once it is accepted that his Honour was entitled to assess the objective seriousness of the offence, at or slightly above the mid-range for offences of this kind, s54B of the Act requires that the standard non-parole period be applied unless the Court determines that there are reasons for setting a non-parole period which is either longer or shorter than that fixed for the offence. Howie J referred to this issue in Davis v R [2009] NSWCCA 279 at [21]:
"One of the problems with statistics in cases where the standard non-parole period applies is that they tend to suggest that the standard non-parole period is being largely disregarded. If an offence is within midrange of seriousness and there is no reason to reduce the standard non-parole period, then the appropriate sentence is the standard non-parole period whatever the sentencing statistics might reveal."
The Submissions of the Parties
It is patently clear from these extracts that the applicant's submissions on this application are well-founded, to the extent that the sentencing judge and the Court of Criminal Appeal applied sentencing principles that have since been discredited. The Attorney General takes no issue with this aspect of the application. However, the Attorney General does take issue with the proposition that the change in sentencing practice brought about by the High Court's decision in Muldrock is capable of meeting the criteria in s 79. In other words, the Attorney General contends that an error of this type does not constitute a "mitigating circumstance".
The relevant mitigating circumstance identified by the applicant is "the possibility that had proper sentencing principles been applied .... the resulting sentence would have been markedly less than that actually imposed." In particular, reliance is placed upon Kirby J's judgment in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 37 - 38 wherein his Honour said of the predecessor to s 79 :-
It should, in my view, be given a beneficial construction and one which furthers and does not frustrate the purpose evident in the legislation. This purpose is the safeguarding of the administration of justice and the assurance that, to the extent that our legal procedures permit it, no person shall suffer the stigma of a conviction, still less the burden of continuing deprivation of liberty or the imposition of other sanctions, where a doubt or question has arisen as to his guilt or as to evidence upon which he has been convicted. These are, after all, very serious concerns. The law must put a high store on finality, especially in criminal trials. It must uphold the decisions of the juries and of courts, duly arrived at. But it must also attend sensitively to the correction of errors where they can be demonstrated. Section 475 affords a legislative warrant to the Executive Government and the Court in certain limited circumstances, to require a review of a conviction although duly entered. Such a provision should not be given an unduly narrow construction by adopting an approach to the initiation of proceedings which tends to impede their commencement. (italics not in original)
The applicant points out that Varley was referred to with approval by Heydon J (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ agreeing) in Eastman v Director of Public Prosecutions(ACT) (2003) 214 CLR 318.
In Eastman, McHugh J described the predecessor to s 79 in these terms (at 324) :-
Section 475 can be seen as intended to authorise the Executive Government to inform itself of possible miscarriages of justice resulting from deficiencies in the evidence adduced at the trial. The section left it to the Executive Government to determine whether any actual or suspected miscarriages of justice had occurred. It also left to the discretion of the Executive Government what steps should be taken to remedy any actual or suspected miscarriage of justice.
The applicant maintains that a referral to the Court of Criminal Appeal was made in similar circumstances to this application in Yin v R [2007] NSWCCA 350. The mitigating circumstance in that case was said to be the reduction on appeal of a co-offender's sentence after the offender had been unsuccessful in appealing the severity of his sentence. It appears that Barr J referred Yin's matter to the Court of Criminal Appeal on the basis that a parity ground had been enlivened after Yin's appeal against sentence had been determined. However, the Attorney General points out that a change in the evidence in the case on sentence (the emergence of apparently disparate sentences) underpinned the application in Yin, not legal error.
The applicant further contends that the recommendation of the New South Wales Law Reform Commission (Sentencing; Interim Report on Standard Minimum Non-Parole Periods, Report 134 (2012)) that the use of Part 7 as a mechanism for the review of cases, where there was a doubt or question as to the sentence arising from the misapplication of the standard non-parole period scheme, as interpreted by Muldrock, ought be followed, subject to one qualification. That qualification is that the referral to the Court of Criminal Appeal ought not be determined on the basis that no lesser sentence is warranted in law. The applicant submits that the only criteria for referral is whether a doubt or question arises as to the sentence imposed, and that any consideration of whether a lesser sentence is warranted in law is to be undertaken by the Court of Criminal Appeal. I accept the latter submission.
It is also submitted that the failure on the part of the applicant to exhaust his appeal rights to the High Court should not stand in the way of this application, given the impracticability of that course.
The Attorney General's response to the applicant's argument presents a powerful case for a construction of Part 7 that confines applications under s 78 to the correction of factual, not legal error.
The authorities upon which the applicant relies, including White v The King (1906) 4 CLR (Pt 1) 152, Varley and Eastman all refer to deficiencies in the evidence, or facts which come to the notice of the Crown after conviction, suggesting that there had been a miscarriage of justice. To the same effect is Johnson J's decision in Application of Peter Holland [2008] NSWSC 251 at [10]. The NSW Law Reform Commission's recommendation in Report 134 was made without a detailed consideration of the scope of Part 7.
The Attorney General also calls in aid the principle of finality as a "central and pervading tenet of the judicial system" : D'Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17. It must be acknowledged that in the criminal law, that principle is qualified by the appellate system :-
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". (citations omitted)
D'Orta at 17 - 18.)
The existence of the procedure under Part 7 of the Act should also be regarded as a qualification to the principle of finality with respect to convictions and sentence matters, but to what extent ?
By way of answer to that question, the Attorney General submits that the principle of finality forms part of the general system of law for the purposes of the application of the rules of statutory construction. The Attorney General relies upon the following dicta by Hayne and Bell JJ (Kiefel J agreeing) in X7 v Australian Crime Commission [2013] HCA 29 at [86] and [87] :-
The question of statutory construction which arises in this case requires the consideration and application of a well-established rule. That rule, often since applied, was stated by O'Connor J in Potter v Minahan by quoting Maxwell's On the Interpretation of Statutes :
"It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness ; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used." (emphasis added)
This rule of construction has found most frequent application in this Court with respect to legislation which may affect rights. In that context, it has come to be referred to as a "principle of legality" : But the rule is not confined to legislation which may affect rights. It is engaged in the present case because of the effects which the asserted construction of the ACC Act provisions authorising compulsory examination would have not only on the rights, privileges and immunities of a person charged with an indictable Commonwealth offence, but also on a defining characteristic of the criminal justice system. In particular, it would alter to a marked degree the accusatorial nature of the criminal justice system. To hold that the general words of the relevant provisions of the ACC Act authorise compulsory examination of a person charged with an indictable Commonwealth offence about the subject matter of the offence charged would thus depart in a marked degree from the "general system of law".
Whilst acknowledging that Part 7 is remedial and should be interpreted beneficially, the Attorney General maintains that if the legislature intended that Part 7 displace the principles of finality, merger and res judicata where errors of law are concerned, it would have expressed its intention clearly. It is accepted that Part 7 displaces the principle of finality where errors of fact are concerned.
An applicant under the section cannot determine the outcome of the application, that is, whether there is an inquiry by a judicial officer or a referral to the Court of Criminal Appeal. It is therefore submitted that the restriction of the mechanism under s 78 to an application for an inquiry is suggestive of the centrality of the availability of new evidence, rather than a consideration of the possibility of legal error.
Resolution
The construction of "mitigating circumstances" in s 79(2) cannot, in my view, be strained to accommodate errors of law. I have reached that conclusion for the following reasons.
Section 79 has remained largely unchanged since the introduction of its predecessor in NSW in the Criminal Law Amendment Act 1883. Section 383 of that Act provided that :-
Whenever after the conviction of a prisoner any doubt or
question arises as to his guilt or any mitigating circumstance in the
case or any portion of the evidence therein it shall be lawful for any
Justice by direction of the Governor on the petition of the prisoner or some person on his behalf representing such doubt or question-or by direction of a Judge of the Supreme Court of his own motion-to summon and examine on oath all persons likely to give material information on the matter suggested.
In this original provision, the doubt or question (admittedly a low threshold : Eastman per Heydon J at [134]) arises either as to the guilt of the applicant or as to any mitigating circumstance or as to any part of the evidence in the case. The disjunctive indicates that the legislature always envisaged the availability of an inquiry into guilt or sentence. In other words, the reference to "mitigating circumstance" distinguishes matters capable of compromising guilt from matters capable of mitigating the penalty. Section 383 was re-enacted largely unchanged in the Crimes Act 1900 as s 475. These versions of the provision simply grounded the application as one made "after conviction".
In late 1993, Part 13A was introduced in lieu of s 475. For the first time, the procedure was framed in terms of an inquiry "into a conviction". Section 474E changed the relevant criteria to the extent of the omission of "or" : that is, "a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". These amendments inadvertently restricted inquiries into convictions only until the position was corrected in 1996 with the Crimes Amendment (Review of Convictions and Sentences) Act, which amended Part 13A by the insertion of the words "and sentences" in s 474D of the Crimes Act 1900. Otherwise, over the life of the various incarnations of s 79, "mitigating circumstances" was interpreted as material capable of lessening a person's culpability for the offence (for example, evidence going to provocation, substantial impairment or excessive self-defence) or material providing an alternative basis for leniency (for example, excessive hardship to others affected by the applicant's incarceration, or assistance to authorities not taken into account at sentence). In such circumstances, a reduction in penalty may be warranted.
It is clear from the history of the provision and from the applications made to this Court that an inquiry invariably proceeds on the basis of fresh material or additional evidence that casts the conviction and/or the sentence in a different light to that prevailing at first instance or on appeal : see Application of Peter James Holland [2008] NSWSC 251 at [5] to [11] .
McHugh J in Eastman said as much at 327 :-
Section 475 as a whole was concerned with what happened at the trial and with new evidence that suggests the prisoner should not have been convicted or that his or her culpability is less than might appear from the conviction.
In Eastman, McHugh J interpreted "mitigating circumstances" in that way (at 326) :-
Mitigating circumstances of the case may cover - indeed ordinarily would cover - matters other than the acts or omissions that constitute the offence. In most cases, that limb would be concerned with evidence that could not be or was not given at the trial. In a murder case, for example, the mitigating circumstances limb might cover matters that were legally irrelevant to the guilt or innocence of that accused. Take a case where a woman was convicted of murder but claimed that, although she was a victim of the "battered wives syndrome", the law did not permit her to raise the defence of provocation. The "mitigating circumstance" limb of s 475 was wide enough to authorise a direction to take evidence concerning the claim. Similarly, that limb would have authorised a direction to take evidence concerning the diminished responsibility of the accused in the days before the law permitted a jury to use the diminished responsibility of the accused to find manslaughter rather than murder. And there is no reason why such a direction could not have been given after the law recognised diminished responsibility as an ameliorating factor, if it appeared that the accused might have suffered from that condition, whether or not that "defence" was raised at the trial.
Significantly, McHugh J considered that :-
The power conferred by s 475 did not extend to investigating every possible miscarriage of justice. It did not, for example, extend to doubts or questions concerning any element of the trial process that might have affected the conviction of the prisoner. That seems to follow inevitably from the direction to... "summon and examine on oath all persons likely to give material information .." ..... Thus, the section would not have authorised a direction concerning the directions of the trial judge. (at 324)
There have been a limited number of applications for referral or inquiry concerning sentence only : Application of Antoun El Hani [2007] NSWSC 330 ; Yin ; Stevens - Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2011] NSWSC 1252 ; The Application of Stevens (unreported, 23 May 2012). One of those applications considered a claim that the judge had committed factual errors in the sentencing process : Stevens [2011]. El Hani and Yin were solely concerned with additional evidence going to the imposition of sentence.
In The Application of Stevens (unreported, 23 May 2012), Beech-Jones J considered an application based upon disparity with a co-offender, who was sentenced after Stevens and after his appeal against severity to the Court of Criminal Appeal. The Attorney General queried whether the application of the parity principle was a "mitigating circumstance" but the point was not decided. In any event, the matter appears to be on all fours with Yin.
I am not aware of any application for an inquiry into conviction or sentence that has proceeded solely on the basis that the law, although correctly applied at the time of the relevant proceedings before a court, has changed after the applicant had exhausted his/her appeal rights. Even before an offender's appeal rights have been exhausted, the principle of finality may play a decisive role in dismissing an appeal or refusing to grant an extension of time within which to file an appeal, where the law has changed between conviction, sentence and appeal.
Examples of the consideration of the principle of finality in the context of conviction and/or sentence appeals to the Court of Criminal Appeal, where an extension of time within which to appeal was necessary, are R v Ramsden [1972] Crim LR 547, R v Unger [1977] 2 NSWLR 990, R v Gregory [2002] NSWCCA 199, Etchell v R [2010] NSWCCA 262 and most recently, Montero v R [2013] NSWCCA 214 per Leeming JA. The latter case is pertinent because it concerned an appeal against sentence which was filed out of time and which complained of Muldrock error (in addition to a further ground).
Leeming JA said at [2] to [7] :-
There is a further reason for refusing the application for an extension of time. It is well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal. This is an aspect of the principle of finality.
That principle was applied in R v Ramsden [1972] Crim LR 547, where a subsequent decision of the Court of Criminal Appeal had laid down the law differently from that which had been applied when Mr Ramsden was convicted, yet his application for an extension of time to appeal was refused, notwithstanding that it was assumed that the summing up at his trial was with the benefit of hindsight shown to be defective.
This Court applied the same principle in Reg v Unger [1977] 2 NSWLR 990, where the applicant had been convicted of selling Indian hemp pursuant to a provision under the Poisons Act which deemed possession of in excess of a prescribed quantity of a drug of addiction to amount to possession for supply or sale. Street CJ, with whom Begg and Ash JJ agreed, proceeded on the basis that the regulation prescribing the quantity was invalid and had not been validated retrospectively by the remedial legislation (at 996B). The Chief Justice said that there was no taint necessarily introduced into the conviction by reason of the subsequent finding that the regulation on which it depended was invalid. That was a consequence of the doctrine of merger, as explained by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106 (another conviction permitted to stand notwithstanding it was based upon a disallowed regulation). Gageler J referred to the same doctrine as underpinning the independent legal force possessed by judicial orders in State of NSW v Kable [2013] HCA 26; (2013) 87 ALJR 737 at [53] (another case where a man was imprisoned pursuant to orders which would never have been made had the judges at first instance and on appeal correctly determined that the Community Protection Act1994 was invalid).
It may seem hard for a conviction to be permitted to stand when it is based upon a superseded view of the common law or upon an Act or regulation which has later been held to be invalid. That serves to illustrate the importance of the broader issues which are involved. Street CJ explained the position, in a highly influential passage, as follows (at 995F-996A):
"This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and
statutory concept - it finds no basis in the common law itself. This
finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon CJ referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law."
For those reasons, the Court in Unger did not exercise its discretion to extend time.
Those principles have been applied in this Court, including in R v Gregory [2002] NSWCCA 199 at [38]-[45] and Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 at [19]-[24]. They were applied by the New Zealand Court of Appeal in R v Knight [1998] 1 NZLR 583 at 587 - 588 on which in turn the Hong Kong Court of Final Appeal has consistently relied (the most recent decision is Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478: see at [9]-[11] and [53]-[59]). All four of those decisions recognise that "exceptional" circumstances must be shown to warrant departing from the principle of finality.
What will amount to the requisite exceptional circumstances cannot be defined exhaustively. However, in the present case, the application is more than three years out of time, and the majority of the sentence has been served. Most importantly, there is no explanation at all for the delay from 30 October 2009 until late 2011, save that the decision in Muldrock pointed to the possibility of an argument that the sentencing judge, who was bound by R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, had erred. That demonstrates the wholly adventitious background to the application which is now made. In my view this is a clear case for not departing from the principle stated in Unger.
These remarks are obiter, given that Hulme J and Button J expressly refrained from expressing a concluded view on that matter. However, they suggest that an applicant seeking leave to appeal against sentence solely on the ground of Muldrock error, who requires an extension of time within which to file such an appeal, may encounter a significant hurdle. Do the principles that influence the resolution of that issue play a part in the determination of a s 78 application which proceeds on exactly the same basis ? If they don't, one is confronted with a somewhat unsatisfactory outcome : a referral of a sentence to the Court of Criminal Appeal under s 79 will allow for a reconsideration of sentence that might be denied to an applicant who has not previously exercised a right of appeal, but who is relevantly out of time.
There is yet another consideration : whilst this Court has the power, on an application for an extension of time within which to file an appeal, to consider the merits of the appeal, grant that extension and allow the appeal in order to correct a miscarriage of justice, notwithstanding the principle of finality, a judge performing the administrative act pursuant to ss 78 and 79 is bound by the terms of the legislation. As McHugh J noted in Eastman, the provisions do not allow for the correction of every miscarriage of justice.
I am of the view that the Attorney General's submissions concerning the interpretation of s 79 must be accepted, despite the evident disparity between those offenders who exercised their right of appeal against sentence pre-Muldrock and those who did not. That disparity is the result of a change in the law, the consequences of which have been resolutely met by the application of the concept of merger. There is nothing in the statutory scheme of Part 7 of the Crimes (Appeal and Review) Act that evinces an intention to depart from that precept.
The application is refused.
Decision last updated: 17 September 2013
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