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

[2014] NSWSC 504

Supreme Court

New South Wales

Medium Neutral Citation:	Application by RHB pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 504
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 infected by Muldrock error
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Black v R [2013] NSWCCA 265 Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 R v RHB [2007] NSWSC 1466 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 Way (2004) 60 NSWLR 168 Sinkovich v Attorney-General of NSW [2013] NSWCA 383
Category:	Principal judgment
Parties:	RHB - 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):	2013/215584
Publication restriction:	Nil

Judgment

INTRODUCTION

1. RHB ("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 following his conviction for the following offences:

(i)   the manslaughter, on 28 January 1993 at St Helen's Park in the State of New South Wales, of Caleb Paul;

(ii)   the murder, on 16 February 2004 at Peakhurst in the State of New South Wales, of Isaac Schoer.

1. In respect the first of those offences, the applicant was sentenced by Hall J to a non-parole period of 4 years and 6 months imprisonment with a balance of term of 1 year and 6 months.

1. In respect of the second, the applicant was sentenced to a non-parole period of 20 years imprisonment with a balance of term of 10 years.

1. The overall sentence imposed was one of 30 years imprisonment with a non-parole period of 24 years and 6 months.

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 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.

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 (R v RHB [2007] NSWSC 1466) Hall J stated (commencing at [100]):

"[100] The application of the standard non-parole period was discussed by this Court in R v Way (2004) 60 NSWLR 168, in particular at 183-193.

[101] I have had regard to all the circumstances to which I have referred in determining whether a lesser or greater non-parole period should be applied to this case. I have concluded that the standard non-parole period to which I have referred should be applied.

[102] In determining whether there are reasons for not imposing the standard non-parole period, I have had regard to the objective seriousness of the offence in the light of the facts which relate directly to its commission, and to the circumstances of aggravation and of mitigation as listed in s. 21A(2) and (3). In relation to the objective circumstances it is apparent that the standard non-parole of 20 years does apply to this case. The factors to be taken into account in that respect include the fact that the victim of the offence was a very young child who was vulnerable and that the offender abused his position of trust and authority in relation to the victim. They also include the factual circumstances surrounding the offence and the other matters to which I have referred including the issue of premeditation and the subjective factors, as earlier discussed."

1. The judgment of Hall J was the subject of appeals to the Court of Criminal Appeal by both the applicant and the Crown (see Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236).

1. The Court of Criminal Appeal upheld the applicant's appeal, but dismissed that brought by the Crown against the asserted inadequacy of the sentence imposed. The basis on which that decision was reached is set out in the judgment of Basten JA (with whom Hislop J and Price J agreed) commencing at [44]:

"44 In the present case, it is not possible to reconcile his Honour's conclusion that the standard non-parole period should be set and the conclusion that there were no special circumstances warranting an increase in the balance of the sentence beyond one-third of the non-parole period with the imposition of a sentence of 30 years imprisonment. It would not have been inappropriate for the inconsistencies to have been corrected on the application under s 43 of the Sentencing Procedure Act. However, that step not having been taken, this Court must intervene to pass that sentence which is warranted in law and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3).

45 With respect to the Director's appeal, there is force in the submission that this case fell above the middle of the range. That the victim was an infant; that the respondent had prior knowledge of the potentially fatal consequences of violent behaviour towards an infant; the likely effects on the family generally; that the child was in his care; the absence of any explanation or circumstances mitigating culpability are all factors tending to support that conclusion.

46 Nevertheless, were it not for the inconsistency, the Director's contention with respect to the application of the standard non-parole period would not be upheld. Although there are features which suggest that the murder was a very serious offence, similar features will arise with respect to many murders. It is significant that in Merritt Wood CJ at CL described a number of factors as tempering the objective criminality: these were not mitigating factors, but an absence of certain aggravating circumstances. Some of those applied in the present case; others did not. Against the characterisation of the offence as being in the high range, were the lack of planning and the appearance of a spontaneous and impulsive act resulting from an unexplained rage, the lack of any gratuitous cruelty or prolonged suffering and the absence of sexual gratification. On the other hand, there was no psychological evidence of depression or other psychiatric disorder; although he did not seek to conceal the consequence of his conduct, he did not accept his guilt and, as already noted, there was a prior instance of similar violence.

47 The unchallenged conclusion reached by the trial judge was that this case did not fall within s 61 of the Sentencing Procedure Act so as to warrant a sentence of life imprisonment. On the other hand, the adoption of the standard non-parole period was consistent with a sentence in excess of 20 years imprisonment.

48 It seems likely, in relation to murder, that the middle of the range of objective seriousness must be seen to encompass a variable set of circumstances and an assessment, based on no precise criteria, which will allow a broad discretion to the trial judge. In assessing objective seriousness, it must be borne in mind that the range will not include the most extreme cases which warrant the imposition of a sentence of life imprisonment. Further, it must be borne in mind that the 20 years standard non-parole period is not applicable in relation to a range of murders involving other circumstances of aggravation identified in the Table to Division 1A.

49 In considering whether to intervene on the basis that the standard non-parole period was manifestly inadequate, some weight can be given to the circumstances of imprisonment, as revealed by the fresh evidence because, even if the trial judge had reached the conclusion that the precondition to the imposition of a standard non-parole period identified in s 54A was satisfied, it would still be necessary to consider whether factors subjective to the offender and unrelated to the offence warranted a different non-parole period. Evidence of particularly harsh conditions of imprisonment would be relevant at that stage. The likelihood is that the respondent will suffer a degree of severity in the conditions of his imprisonment beyond that faced by most of the prison population for a significant portion of his sentence.

50 In combination, these reasons require rejection of the Director's appeal with respect to the imposition of the standard non-parole period.

51 The next question is whether the balance of the term for the sentence of murder should constitute one-third of the standard non-parole period or a lesser proportion. (There being no finding of special circumstances, it cannot result in a higher proportion.)

52 It is true that his Honour indicated an intention that the non-parole period for the offence of murder should be 80% of the term of the sentence: at [106]. That was not a statement of intent, but a statement of fact. In its terms it was in error. Nevertheless, it was only marginally in error, arithmetically, if one took account, not merely of the sentence with respect to the murder, but the cumulative non-parole period of 24.5 years, as compared with the 30 year sentence of imprisonment for murder. More importantly, his Honour gave no reason for decreasing the proportion of the balance of the term below the statutory maximum of one-third. Such a calculation was open in the absence of special circumstances, but some justification might have been expected. As this Court is now re-sentencing the respondent, the appropriate course is to impose a sentence with the addition of one-third of the standard non-parole period, to give a term of sentence of 26 years eight months.

53 To take that step necessarily involves upholding the respondent's cross-appeal with respect to the term of the sentence for murder."

THE SUBMISSIONS OF THE PARTIES

1. It was submitted on behalf of the applicant that Hall J (particularly at [100] and [101]) had given the standard non-parole period determinative significance, and had engaged in a two-stage process of sentencing. It was submitted that in light of the decision of the High Court in Muldrock (supra) such an approach reflected error. It was further submitted that the Court of Criminal Appeal had adopted the same erroneous approach.

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 any 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 Court of Appeal in Sinkovich v Attorney-General of NSW [2013] NSWCA 383.

1. It was further submitted on behalf of the Attorney-General that although Hall J had made reference to the decision in R v Way (2004) 60 NSWLR 168 in sentencing the applicant, it was clear from a reading of the whole of the remarks on sentence that his Honour had used the standard non-parole period as a benchmark or guideline, rather than as a starting point or a determining factor.

1. Counsel for the Attorney-General acknowledged that when the matter was before the Court of Criminal Appeal it had been accepted by both parties that Hall J had been required to sentence the applicant in accordance with the decision in Way (see [26]). However, it was submitted that the Court had approached the application of Way with "due sensitivity to the complexities of applying the standard non-parole period as a benchmark", and had appropriately balanced each of the relevant objective and subjective criteria in dismissing the Crown appeal and in determining the appropriate sentence. It was submitted that there was nothing in the judgment of the Court which suggested that the standard non-parole period had been impermissibly used, or that the Court had engaged in a two-stage process of sentencing.

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 as being framed in mandatory terms which required a 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. The High Court further 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 in sentencing for an offence for which a standard non-parole period was prescribed was to identify all relevant factors (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence.

1. Further, (at [28]) the Court 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 then followed by an inquiry as to whether there were matters justifying the imposition of a non-parole period which was longer or shorter than that prescribed.

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

1. In my view, there is little doubt that Hall J sentenced the applicant according to the decision in Way, and therefore in a manner which the High Court has since concluded was incorrect. In particular, it is evident from his Honour's observations at [101]-[102] that he posed the question of whether there were circumstances which warranted a departure from the standard parole period.

1. I am mindful of those authorities which make it clear that in determining whether a Muldrock - type error is established, sentencing remarks are to be read as a whole (see for example Black v R [2013] NSWCCA 265). However, even giving full allowance to that factor it is clear, in my view, that his Honour used the applicable standard-parole period as a starting point in determining an appropriate sentence, before asking whether or not there were factors which justified a departure from it.

1. In the Court of Criminal Appeal Basten JA pointed out that Hall J had not made an express finding that the offending fell within the middle range of objective seriousness. However, the fact remains that Hall J posed the question (at [101]) whether there were matters justifying a departure from the prescribed standard non-parole period. That, in my view, reflects the fact that his Honour gave at least primary, and possibly determinative, significance to the standard non-parole period. This is so, notwithstanding his Honour's subsequent reference (at [103]) to the applicable mitigating factors.

1. It follows that in my view, Hall J approached the sentence of the applicant in a manner which the High Court subsequently concluded was erroneous.

1. As I have previously noted, in the proceedings before the Court of Criminal Appeal the Director of Public Prosecutions accepted that Hall J's approach had been in accordance with Way (per Basten JA at [26]). However, it does not follow from such an acceptance that the Court of Criminal Appeal adopted that same approach in determining an appropriate sentence. On the contrary, it is evident from the judgment of Basten JA (particularly at [46], [48] and [49]) that his Honour had regard to all relevant factors, and used the standard non-parole period, not in a determinative way, but as a guide. There was nothing impermissible in such an approach.

1. In these circumstances, I am unable to accept the submission that there is any doubt or question as to a mitigating circumstance, the existence of which warrants a referral of the matter to the Court of Criminal Appeal.

ORDER

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

1.   The application is refused.

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Decision last updated: 20 May 2014