Application by HJWG pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001

[2014] NSWSC 505

Supreme Court

New South Wales

Medium Neutral Citation:	Application by HJWG pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 505
Hearing dates:	On the papers
Decision date:	16 May 2014
Before:	Bellew J
Decision:	The application is refused.
Catchwords:	CRIMINAL LAW - application under s. 78 of the Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentence imposed by Court of Criminal Appeal infected by Muldrock error
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crime (Sentencing Procedure) Amendment Act 2007
Cases Cited:	Achurch v R (No 2) [2013] NSWCCA 117 Butler v R [2012] NSWCCA 23 FD v R [2013] NSWCCA 139 HJWG v R [2011] NSWCCA 50 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285 The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468 R v McEvoy [2010] NSWCCA 110 R v Way (2004) 60 NSWLR 168 Sinkovich v Attorney-General of NSW [2013] NSWCA 383 Williams v R [2012] NSWCCA 172
Category:	Principal judgment
Parties:	HJWG - Applicant Attorney-General for NSW - Respondent
Representation:	Counsel: - Solicitors: Legal Aid New South Wales - Applicant Crown Solicitor for New South Wales - Respondent
File Number(s):	2013/214801
Publication restriction:	Nil

Judgment

INTRODUCTION

1. HJWG ("the applicant") makes an application pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 ("the Act") for an inquiry into the sentence imposed upon him by English DCJ in respect of:

(i) two offences contrary to s. 61M(1) of the Crimes Act 1900 (NSW) ("the Act");

(ii) one offence contrary to s. 61M(2) of the Act; and

(iii) one offence contrary to s. 66A of the Act.

1. The offences contrary to s. 61M(1) each carried a maximum penalty of 7 years imprisonment, and prescribed standard non-parole period of 5 years.

1. The offence contrary to s. 61M(2) carried a maximum penalty of 10 years imprisonment, and a prescribed standard non-parole period of 5 years.

1. The offence contrary to s. 66A carried a maximum penalty of 25 years imprisonment, and a prescribed standard non-period of 15 years.

1. The overall term of imprisonment imposed by her Honour was one of 11 years imprisonment, with a non-parole period of 8 years. On 1 April 2011 the Court of Criminal Appeal granted the applicant leave to appeal, but dismissed his appeal (see HJWG v R [2011] NSWCCA 50).

1. The applicant has submitted that the matter should be referred to the Court of Criminal Appeal as an appeal pursuant to the Criminal Appeal Act 1912. In making the application, the applicant has argued that there is a doubt or question as to a mitigating circumstance, namely that the sentence imposed upon him was infected by error in light of the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.

1. The principles which apply to an application such as this are set out in full in The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468 at [5] to [6].

THE APPLICANT'S SENTENCE

1. In sentencing the applicant her Honour made reference to the maximum penalties and standard non-parole periods which applied to each of the offences (at ROS 2). It was submitted on behalf of the applicant that it was "arguable" that in stating that the standard non-parole period applicable to the offence against s 61M(2) was 8 years imprisonment rather than 5 years, her Honour had erred. In FD v R [2013] NSWCCA 139, with the concurrence of Simpson J and Harrison J, I set out (commencing at [10]) the legislative history which resulted in the standard non-parole period applicable to offences against s. 61M(2) being increased. In light of that legislative history, I am not satisfied that her Honour erred in the manner for which the applicant has contended.

1. Having recited the facts (which need not be canvassed for present purposes) her Honour (commencing at ROS 9) set out the applicant's subjective circumstances before returning (commencing at ROS 11) to the objective seriousness of the offending. Her Honour concluded that two of the offences fell above the mid range of objective seriousness, whilst two fell below that point. In reaching those conclusions, her Honour did not expressly refer to the decision in R v Way (2004) 60 NSWLR 168 which, at the time, governed the approach to be taken in respect of sentencing in respect of offences for which a standard non-parole period was prescribed.

1. In the Court of Criminal Appeal, McClellan CJ at CL (with whom Johnson J and McCallum J agreed) concluded (at [14]) that her Honour had erred by failing to properly detail her findings as to the objective seriousness of each offence (see R v McEvoy [2010] NSWCCA 110 at [89]). However, his Honour was not persuaded that such error justified the Court's intervention. In particular his Honour said (at [13]):

"The approach which her Honour took to these findings was essentially the same approach which she took in R v McEvoy where Simpson J in this Court described her Honour as making an error of process (R v McEvoy [2010] NSWCCA 110 at [89]). Her Honour's decision in the present matter was handed before the judgment of Simpson J was published in McEvoy.

[14] Her Honour should have provided greater detail with respect to her findings. To merely indicate that the offence fell above or below the midrange is insufficient. However, as will be apparent from these reasons I am not persuaded that error justifies the intervention of this Court."

THE SUBMISSIONS OF THE PARTIES

1. It was submitted on behalf of the applicant that the sentencing judge had, in accordance with the decision in Way (supra), given primary or determinative significance to the applicable standard non-parole periods and that her approach to sentence was therefore erroneous in light of the subsequent decision of the High Court in Muldrock (supra). It was further submitted that the Court of Criminal Appeal had been required to decide whether or not the sentences were manifestly excessive, and that consideration of that question had also been undertaken in accordance with Way (supra).

1. It was submitted that the case constituted a "clear example" of both the sentencing judge and the Court of Criminal Appeal adopting an approach which, although correct at the time, was later found by the High Court in Muldrock (supra) to be erroneous.

1. It was submitted on behalf of the Attorney-General that a doubt or question as to any mitigating circumstance could not arise by reference to a Muldrock - type error. However, as Johnson J pointed out in The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285 at [17] such a submission cannot be sustained in light of the decision of the Court of Appeal in Sinkovich v Attorney-General of NSW [2013] NSWCA 383.

1. The Attorney-General also relied upon the fact that in dealing with cases involving so-called Muldrock error, the Court of Criminal Appeal has emphasised that the fact that Way was wrongly decided does not mean that all sentences passed before Muldrock, relying upon the decision in Way, are necessarily vitiated by operative error (see Williams v R [2012] NSWCCA 172 at [2]; Butler v R [2012] NSWCCA 23 at [26]; Achurch v R (No 2) [2013] NSWCCA 117 at [73]; [110]; and [161] to [162]). It was submitted that as a consequence of such emphasis, it was necessary to read the relevant judgment(s) as a whole and that when the matter was approached in that way, it was evident that the standard non-parole periods had been used by both the sentencing judge and the Court of Criminal Appeal as a benchmark. It was submitted that in these circumstances, no sense of unease or disquiet concerning the sentences which were imposed reasonably arose.

CONSIDERATION AND CONCLUSION

1. In Muldrock (supra) the High Court concluded (at [25]) that it was an error to categorise s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") as being framed in mandatory terms, which required a sentencing judge to use the standard non-parole period as the starting point for determining whether an offence was appropriately assessed as being in the middle of the range.

1. The Court also concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period, and held that the correct approach was to identify all relevant factors (including any prescribed standard non-parole periods) and make a value judgment as to the appropriate sentence.

1. Further, (at [28]) the Court specifically rejected the adoption of a two stage approach to sentencing, which commenced with an assessment of whether the offence falls in the middle of the range of objective seriousness, and which was followed by an inquiry as to whether there are matters justifying a non-parole period which is longer or shorter than that prescribed.

1. In arriving at these various conclusions, the court held that Way (supra) had been wrongly decided.

1. In my view, there is nothing in the remarks of the sentencing judge which indicates that she gave primary or determinative significance to the standard non-parole periods. Further, there is nothing which would suggest that her Honour adopted a two stage approach to sentencing. On the contrary in my view, a reading of the sentencing remarks (particularly at ROS 9 to 11) supports a conclusion that her Honour identified all of the relevant factors in determining the appropriate sentence.

1. In the Court of Criminal Appeal McClellan CJ at CL found (at [13]) that her Honour had erred in failing to properly detail her findings as to the objective seriousness of each offence. His Honour then said (at [24]):

"I have previously indicated the sentences which were imposed for the individual offences. The aggregate term of imprisonment was 11 years with an effective non-parole period of 8 years. In large part the overall sentence is a result of the standard non-parole periods which the legislature has provided in relation to the individual offences. The sentence for count 2 dominates the effective sentence. This was inevitable given the nature of this offence, the sentence for which is not individually challenged.

1. His Honour concluded (at [35]):

"In these circumstances I am not persuaded that the penalty for the individual offences or the effect of the extent of concurrency provided is excessive to the extent that this Court should intervene. The sentences imposed were severe but not manifestly excessive when the prescribed standard non-parole periods are considered."

1. Although there were various references by his Honour to the applicable standard non-parole periods (for example at [25], [28] and [31]) those references do not, in my view, indicate that in reaching his conclusions his Honour gave those non-parole periods primary or determinative significance. In my view, when the judgment is read as a whole, it is evident that the standard non-parole periods were used, in each case, as a guide or a benchmark. That was perfectly permissible.

1. In these circumstances, I am not satisfied that any Muldrock type error has been made out. Accordingly, I do not entertain any doubt or question as to the existence of a mitigating circumstance in the applicant's case.

ORDER

1. For the reasons given I make the following order:

1.   The application is refused.

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Decision last updated: 20 May 2014