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

[2014] NSWSC 390

Supreme Court

New South Wales

Medium Neutral Citation:

Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390

Hearing dates:

On the papers

Decision date:

04 April 2014

Before:

Bellew J

Decision:

(i) The application is granted;

(ii) The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

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 infected by Muldrock error - where applicant convicted after trial of one count of sexual intercourse with a child - error established - application granted

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

MLP v R [2006] NSWCCA 271
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

Category:

Principal judgment

Parties:

MLP - 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):

2013/215629-1

Publication restriction:

Nil

Judgment

INTRODUCTION

1. MLP ("the applicant") seeks, pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 ("the Act"), an inquiry into the sentence imposed upon him following his conviction of an offence pursuant to s. 66A of the Crimes Act 1900, namely that between 1 February 2003 and 1 July 2003, near Forster in the State of New South Wales, he had sexual intercourse with a child under the age of 10 years.

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 his 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]-[6].

THE APPLICANT'S CONVICTION AND SENTENCE

1. The applicant stood trial before Judge Garling and a jury in the District Court. The offence of which he was found guilty carries a maximum penalty of 25 years imprisonment. A standard non-parole period of 15 years imprisonment is prescribed.

1. Following his conviction, the applicant was sentenced by Judge Garling to imprisonment for a total of 16 years, made up of a non-parole period of 12 years and an additional term of 4 years. Both the non-parole period and the additional term were expressed to date from 12 May 2005. The applicant will be eligible for release on parole on 11 May 2017.

1. When sentencing the applicant, and having made reference to the provisions of s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") his Honour said (at ROS 8):

"The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole are those referred to in s. 21A. If the court is to do that they have to make a record. The Court of Criminal Appeal considered these matters in the decision of R v Way (2004) 60 NSWLR at 168. Particularly, at paras 41 and onwards where the court set out the purpose of sentencing and those aggravating and mitigating factors. At para 117 the court said:

"In order to give the division (that is this refers to s 54B) practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: 'Are there reasons for not imposing the standard non-parole period?' That question will be answered by considering the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind. The circumstances of aggravation and mitigation which are present in the subject case and which may apply to a particular offender as listed in s. 21A(2) and (3) and as incorporated by the general provisions of s. 21A(1)(c) and by the concluding sentence to s. 21A(1). Depending upon the considerations referred to in the first of these paragraphs it may become immediately apparent that the case is not one for which the standard non-parole period.."

1. His Honour then said (at ROS 9):

"Therefore I am required to undertake that sentencing exercise in this case".

1. His Honour's reference to "that sentencing exercise" can only be construed as a reference to the approach set out in Way.

1. Following his sentence, the applicant sought leave to appeal to the Court of Criminal Appeal. In a judgment delivered on 6 September 2006 (see MLP v R [2006] NSWCCA 271) the Court:

(i)   granted leave to appeal;

(ii)   allowed the appeal;

(iii)   confirmed the sentence of 16 years imprisonment; and

(iv)   reduced the non-parole period to one of 11 years commencing on 12 May 2005 and expiring on 11 May 2016.

1. Kirby J (with whom Grove J and Hislop J agreed) made reference to the decision in Way (at [31]) and posed the question (at [32]):

"... are there other reasons in the matters identified in s21A (relating to the offender) for departing from the standard non parole period?"

1. His Honour concluded (at [39]) that the approach taken by the sentencing judge did not conform with the approach set out in Way (supra) and that as a consequence, the sentencing judge was in error. However, his Honour then said (at [55]):

"The personal circumstances of the applicant furnish, in my view, a reason for departing from the standard non-parole period".

1. In Muldrock (supra) the High Court concluded (at [25]) that Way was wrongly decided and that it was an error to characterise s. 54B(2) of the Sentencing Act as being framed in mandatory terms, requiring the court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. The Court 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 the factors relevant to sentence (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence, given all those factors.

1. Further, (at [28]) the Court specifically rejected the adoption of a two stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle range of objective seriousness and, in the event that it does, by inquiring as to whether there are matters justifying a longer or shorter period. It was the second of those issues which Kirby J addressed in the passage at [55] (set out in [10] above).

SUBMISSIONS OF THE PARTIES

1. It was submitted on behalf of the applicant that notwithstanding that the applicant's appeal was successful, the sentence imposed upon him was infected by error as a consequence of the adoption of a two stage approach to sentencing.

1. It was firstly submitted on behalf of the Attorney-General that a doubt or question as to any mitigating circumstance could not arise by reference to Muldrock - type error. However as Johnson J pointed out in 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. Counsel for the Attorney-General specifically conceded that the judgment of Kirby J (at [55]) disclosed a Muldrock error because it indicated the adoption, by his Honour, of an impermissible two-stage approach to sentencing. However counsel submitted that in light of the fact that the Court of Criminal Appeal had imposed the same overall sentence, no sense of disquiet arose despite the obvious error.

CONSIDERATION AND CONCLUSION

1. The concession made on behalf of the Attorney-General is, in my view, an appropriate one. It is evident that Kirby J engaged in a two stage process of sentencing.

1. In my view, it is not to the point that the Court of Criminal Appeal confirmed the overall sentence which had been imposed upon the applicant at first instance. The more important consideration is that the Court did so by adopting an approach which, in light of the decision in Muldrock, discloses error. The existence of that error gives rise, in my view, to a doubt or question as to a mitigating circumstance, the existence of which warrants a referral of the matter to the Court of Criminal Appeal.

ORDERS

1. For the foregoing reasons I make the following orders:

(i)   The application is granted;

(ii)   The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

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Decision last updated: 10 April 2014