Application by Jason Clive McCall pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001
[2014] NSWSC 1620
•19 November 2014
Supreme Court
New South Wales
Medium Neutral Citation: Application by Jason Clive McCall pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1620 Hearing dates: On the papers Decision date: 19 November 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 a doubt or question as to a mitigating circumstance - where applicant was convicted of murder - whether sentence imposed was infected by Muldrock error - error not made out - application refused Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999Cases Cited: Achurch v R (No 2) [2013] NSWCCA 117; (2013) 84 NSWLR 328
Black v R [2013] NSWCCA 265
Butler v R [2012] NSWCCA 23
McCall v R [2010] NSWCCA 174
The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v McCall [2007] NSWSC 1269
Application by Hoai Vin Tran pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 394
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Williams v R [2012] NSWCCA 172
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460Category: Principal judgment Parties: Jason Clive McCall - Applicant
Attorney-General for NSW - RespondentRepresentation: Counsel:
Solicitors:
Kiki Kyriacou Lawyers - Applicant
Crown Solicitor for NSW - Respondent
File Number(s): 2014/00116851 Publication restriction: Nil
Judgment
INTRODUCTION
Jason Clive McCall ("the applicant") makes application pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 ("the Act") for an inquiry into the sentence imposed upon him following his conviction for the murder of Robert Ljubic ("the deceased").
BACKGROUND
On 17 September 2007, following a trial before a jury, the applicant was found guilty of the murder of the deceased, an offence contrary to s. 18 of the Crimes Act 1900. On 16 November 2007 Barr J sentenced the applicant to a non-parole period of 22 years imprisonment, commencing on 1 January 2006 and expiring on 31 December 2027. He set a balance of term of 7 years and 4 months imprisonment, expiring on 30 April, and ordered that the first day upon which the applicant would become eligible for release on parole would be 31 December 2027: R v McCall [2007] NSWSC 1269.
An appeal against conviction, and an application for leave to appeal against sentence, were both filed out of time. The Court of Criminal Appeal refused leave in each case: McCall v R [2010] NSWCCA 174.
The applicant now submits that the matter should be referred to the Court of Criminal Appeal as an appeal pursuant to the Criminal Appeal Act 1912. In making that 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.
The principles which apply to an application under the Act 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]-[6].
The CIRCUMSTANCES OF THE APPLICANT'S OFFENDING
The circumstances in which the offence was committed by the applicant are set out in full at [1] of Barr J's reasons. In summary, the applicant, in the company of a Mr Petrou ("Petrou") and a person known by the pseudonym "X", formed a plan to kidnap the deceased for the purposes of extorting money from him. They met with the deceased on the evening of 23 March 2005 and kidnapped him at gunpoint. The deceased was restrained and bound, before being taken by X and the applicant to The Gap at Watson's Bay. In the course of travelling to that location, the deceased was told that he was being taken to see a friend, the implication being that he was going to be tortured, although Barr J was satisfied that at that stage, the applicant and X had no intention of inflicting any serious injury on the deceased.
When the vehicle stopped at Watson's Bay the deceased's bonds were cut, other than those binding his wrists. He was walked up the path to the fence at The Gap and with the assistance of X, the applicant lifted the victim up and over the fence, placing him on the edge of the cliff face overlooking the ocean. The reasons why the deceased was lifted over the fence were not entirely clear. Barr J had some doubt as to whether, at that stage, either the applicant or X was minded to push the deceased over the edge, although he found that the risk of the deceased falling to his death in the course of a struggle must have been obvious.
When the deceased was standing on the edge of the cliff face the applicant demanded money from him. The applicant then lost his temper, took hold of the deceased, and threw him over the edge and into the water. The body of the deceased was found in the sea several days later, some kilometres south of the point at which it had entered the water. The condition of the body was such that the forensic pathologist could not come to a firm view about the cause of death, although he thought that the deceased had probably drowned.
THE REASONS OF BARR J
Having summarised the circumstances of the applicant's offending, his Honour reached the following conclusion as to its objective seriousness (at 17]):
"Objectively, the murder was very serious. The offender did it with intent to kill. That intent was formed suddenly but after a violent and cruel kidnapping done in the hope of financial gain. The planning for the kidnap was meticulous and the steps taken were calculated to divert suspicion from the perpetrators. They were persistent in their enterprise. They took on hired help. When the first attempt failed they persevered and set up a further meeting so as to carry their plan into action. They put the deceased into a position that was fraught with danger. All those things were done in company, first three on one and then two on one, up the point immediately before the offender did the act causing death. The deceased never had a chance to avoid danger, to protect himself or to defend himself."
His Honour then turned (commencing at [18]) to consider the applicant's subjective case. In doing so he comprehensively summarised (commencing at [20]) a report of a psychologist which had been tendered on sentence. His Honour also found (at [23]) that the applicant needed a proper opportunity to rehabilitate himself although he was not persuaded that a case had been made out for an adjustment of the prima facie relationship between the non-parole and the parole periods.
Having considered the objective seriousness of the offending and applicant's subjective case, his Honour concluded (at [25]):
"In my opinion the findings I have made demonstrate that this offence was a very serious one, above the middle of the range of objective seriousness of offences of its kind. I propose to impose a non-parole period bearing in mind that conclusion and the standard non-parole period for murder of twenty years."
THE PROCEEDINGS IN THE COURT OF CRIMINAL APPEAL
Following his sentence, the applicant sought leave to appeal to the Court of Criminal Appeal against his conviction and sentence. Only one ground was sought to be agitated in support of the appeal against conviction which related to a decision given by the trial judge to allow the Crown to cross-examine X pursuant to s. 38 of the Evidence Act 1995 without notice. This was said to be an error resulting in a substantial miscarriage of justice.
McClellan CJ at CL (with whom the other members of the court agreed) said (commencing at [26]):
"[26] In so far as the applicant's counsel says being caught by surprise he was disadvantaged I am not persuaded the argument has merit. Every opportunity was offered to counsel to address any problem which had arisen. However, no application was made to have Mr "X" recalled and counsel was able to cross-examine Mr Petrou.
[27] Accordingly I am satisfied that the trial judge was correct in granting the prosecutor leave to cross-examine Mr Petrou and in the circumstances no injustice was occasioned to the applicant.
[28] Both because the applicant has not established exceptional circumstances and the ground advanced is so lacking in merit in my view the application for leave to appeal out of time should be refused."
In terms of the application for leave to appeal against sentence, his Honour said (at [34]-[35]):
"[34] His Honour found that the murder was very serious and above the mid range of objective seriousness. The offence of murder has a standard non-parole period of 20 years. To my mind the sentence which his Honour imposed was entirely appropriate.
[35] In my opinion leave to appeal the conviction should be refused. Leave to appeal against the sentence should also be refused."
The BASIS OF THE PRESENT APPLICATION
The basis of the present application is that the sentence imposed by Barr J was infected by Muldrock error.
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 as being framed in mandatory terms, which required the court 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 of objective seriousness.
The High Court concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period, and that the correct approach was to identify all relevant factors, including any prescribed standard non-parole period, and make a value judgment as to the appropriate sentence.
The Court specifically rejected (at [28]) the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle of the range of objective seriousness, followed by an inquiry as to whether there are matters justifying the imposition of a non-parole period which is longer or shorter than that prescribed.
In arriving at these conclusions, the Court held that R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 had been wrongly decided.
Submissions of the parties
It was submitted on behalf of the applicant that the standard non-parole period had operated as a dominant factor in the sentencing and reasoning of Barr J. It was submitted that on a reading of the sentencing remarks as a whole, it was evident that his Honour's reliance on the decision in Way had infected the sentence.
In advancing these submissions, and in the course of submissions filed in reply, the applicant's solicitor made it clear that the point which was sought to be made on behalf of the applicant, with respect to both the approach of Barr J and that of the Court of Criminal Appeal, was that standard non-parole period had been given primary, or perhaps even determinative, significance. The applicant's solicitor emphasised that in sentencing an offender the court is required to consider all relevant factors: Muldrock at [27]; Markarian v R [2005] HCA 25; (2005) 228 CLR 357.
It was submitted that when all relevant factors were properly taken into account, the only available conclusion was that contrary to the decision in Muldrock, inappropriate weight had been given to the standard non-parole period during the sentencing process. It was submitted that the standard non-parole period was used more than a guideline or yardstick, and that this was evidenced by his Honour's finding that the circumstances of the offending were above the mid-range.
Counsel for the Attorney-General submitted that nothing in the judgment of Barr J was reflective of error. Counsel submitted that even having regard to the decision in Muldrock, the standard non-parole period remains a guide post and that Barr J's reasons should be construed as a reference to adopting that approach. Accepting that this was his Honour's approach, it was submitted that no error was made out.
Counsel further submitted that there was nothing in the decision of Barr J which suggested that primary, much less determinative, significance had been given to the standard non-parole period and that on the contrary, the language employed by his Honour clearly indicated that he used the standard non-parole period as a guide.
Counsel also submitted that the reasoning of Barr J did not disclose his Honour having applied a two-stage approach to sentencing. It was submitted that when his Honour's reasons were read as a whole, the approach that was adopted was consistent with the principles applied in Muldrock, and that all relevant factors were taken into account in determining sentence.
Finally, counsel submitted that in circumstances where the basis of the application focused on the reasons of Barr J, any reference to the judgment of the Court of Criminal Appeal was unnecessary.
Consideration
In considering the application and the submissions made in support of it, a number of fundamental principles must be borne in mind.
Firstly, when considering whether or not a Muldrock error has been made out, it is necessary to view the reasons for sentence as a whole. Confining examination to one particular passage or sentence which is said to reflect error is not the correct approach: Black v R [2013] NSWCCA 265 at [41] and the authorities cited therein; Application by Hoai Vin Tran pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 394 at [22].
Secondly, merely demonstrating that a sentencing judge sentenced pre Muldrock, following the dictates of Way, will not be sufficient to demonstrate error. What is to be ascertained in each case is whether a reliance on the decision in Way has sufficiently infected a sentence with such error that some intervention is required. Put simply, 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: Williams v R [2012] NSWCCA 172 at [2]; Butler v R [2012] NSWCCA 23 at [26]; Achurch v R (No 2) [2013] NSWCCA 117; (2013) 84 NSWLR 328 at [73]; [110]; and [161]-[162].
Thirdly, the use of the prescribed standard non-period as a guide or yardstick is perfectly permissible. It reflects an approach which is entirely consistent with the decision in Muldrock: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [43] per Johnson J.
Finally, the suggestion that the words "yardstick" or "guideline" might carry some different emphasis or meaning as a consequence of Muldrock is to apply an overly analytical approach to the use of those terms: Butler (supra) at [27].
The submissions filed in support of the application made it clear that the applicant relied on the fundamental proposition that error lay in the fact that the standard non-parole period was given primary or determinative significance by both Barr J and by the Court of Criminal Appeal. In my view, for a number of reasons, there is no merit in that submission.
Firstly, a reading of Barr J's judgment as a whole makes it clear that in imposing sentence he had regard to all relevant factors, including the circumstances of the offending and the applicant's subjective case. That approach was entirely consistent with Muldrock and Markarian.
Secondly, there is nothing in his Honour's judgment which indicates that he gave the prescribed standard non-parole period primary or determinative significance, nor is there any indication that he applied a two-stage approach to sentencing of the kind described in Muldrock. His Honour did not focus upon the prescribed standard non-parole period. On the contrary, his reasons make it plain that he took all relevant factors into account.
Thirdly, it is clear from his Honour's remarks at [25] that he used the prescribed standard non-parole period as a guide or yardstick. His Honour's use of the words "bearing in mind...the standard non-parole period for murder of 20 years" bespeaks of no other possible interpretation. That approach was perfectly permissible.
Finally, his Honour found that the offence was a "very serious one" which fell above the middle range of objective seriousness for offences of its kind. On the facts, that finding was well open to him. The sentence was imposed following a consideration of all relevant factors.
The sole reference to the standard non-parole period made by McClellan CJ at CL in the Court of Criminal Appeal was at paragraph [34] (set out in [14] above). It amounted to nothing more than a statement that the offence carried a standard non-parole period of 20 years. That statement does not suggest that the standard non-parole period was given primary or determinative significance, nor does it suggest that a two-stage process was applied to sentencing.
CONCLUSION
For the foregoing reasons I do not entertain any doubt or question as to the existence of a mitigating circumstance in the applicant's case.
ORDERS
I make the following order:
(i) The application is refused.
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Decision last updated: 20 November 2014
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