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

[2016] NSWSC 1670

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670
Hearing dates:	Written submissions
Date of orders:	25 November 2016
Decision date:	25 November 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The application brought by the applicant pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is granted. 2. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).
Catchwords:	CRIMINAL LAW – Application under s. 78 of the Crimes (Appeal and Review) Act 2001 – Whether there appeared to be doubt or question as to a mitigating circumstance – Whether it appeared that a sentence imposed upon the applicant was infected by Muldrock error – Application granted – Matter referred to the Court of Criminal Appeal
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Application by Richard William Buttrose pursuant to s. 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 826 Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825 Buttrose v Attorney-General of NSW (2015) 324 ALR 562; [2015] NSWCA 221 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Xiao Feng Wang v R [2009] NSWCCA 223
Category:	Principal judgment
Parties:	Xiao Feng Wang – Applicant Attorney General of NSW – Respondent
Representation:	Counsel:    G Bashir SC and J Roy – Applicant L C Hutchinson – Respondent   Solicitors: Legal Aid NSW – Applicant Crown Solicitor for NSW – Respondent
File Number(s):	2016/188661
Publication restriction:	Nil

Judgment

INTRODUCTION

1. Xiao Feng Wang (“the applicant”) has made an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”) for a review of the sentence imposed upon him by the Court of Criminal Appeal on 10 September 2009. The applicant contends that there appears to be a doubt or question as to a mitigating circumstance, namely whether he was sentenced in a manner which was erroneous having regard to the decision in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39.

2. This is the applicant’s second application pursuant to the Act. The first was refused by Hoeben CJ at CL on 19 June 2014 (see [12] below). However, counsel for the Attorney-General has expressly conceded that there is no limit on the number of applications that can be made.

3. Further, as outlined below, counsel for the Attorney-General has conceded that it would be open to me to form a view that there does appear to be a doubt or question of the kind for which the applicant contends. For the reasons set out more fully below, I have come to the view that such concession is an appropriate one, and that the application should be granted.

FACTUAL BACKGROUND

4. On 3 November 2006, following a trial in the District Court, the applicant appeared for sentence before her Honour Judge Sweeney in respect of the following offences:

1. supplying not less than a large commercial quantity of a prohibited drug (“the principal offence”) contrary to s. 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”); and

2. supplying not less than a trafficable quantity of a prohibited drug contrary to s. 25(1) of the DMT Act.

5. The applicant also appeared for sentence in respect of a charge of assaulting a police officer in the execution of his duty, to which he had previously pleaded guilty.

6. The applicant was sentenced as follows:

1. in respect of the principal offence, 20 years imprisonment with a non-parole period of 15 years;

2. in respect of the offence contrary to s. 25(1) of the DMT Act, imprisonment for 3 years with a non-parole period of 2 years and 3 months; and

3. in respect of the charge of assaulting a police officer, a fixed term of 1 year imprisonment.

7. The sentences imposed in respect of the offences in [6](ii) and (iii) above were ordered to be served wholly concurrently with the sentence imposed in respect of the principal offence.

8. The applicant sought, and was granted, leave to appeal to the Court of Criminal Appeal against the severity of the sentence imposed in respect of the principal offence. He argued (inter alia) that the sentencing judge had erred in assessing the objective seriousness of that offending, and that this error had arisen by virtue of her Honour’s approach to the standard non-parole period. The applicant also argued that the sentence was manifestly excessive.

9. The Court of Criminal Appeal upheld the applicant’s appeal. The sentence imposed by the primary judge in respect of the principal offence was quashed, and the applicant was re-sentenced to imprisonment for 16 years, with a non-parole period of 12 years: Xiao Feng Wang v R [2009] NSWCCA 223.

10. Hidden J (with whom Giles JA and McCallum J agreed) said (at [17]-[19]):

[17] Put shortly, Mr Boulten argued that it was not open to her Honour to have found that the offence fell within the mid range of objective seriousness. In any event, it was argued, a departure from the standard non-parole period was warranted by the applicant’s subjective case and there should have been a finding of special circumstances. Generally, Mr Boulten submitted that her Honour allowed the standard non-parole period to dominate the exercise of her sentencing discretion in a manner inconsistent with the approach to the relevant legislation expounded in R v Way [2004] NSWCCA 131, 60 NSWLR 168.

[18] That seminal decision about the approach to the provisions relating to standard non-parole periods in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act places those provisions within a framework which recognises and retains the broad discretion which has always attended the sentencing exercise. Importantly for present purposes, the court said at [131]:

“What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender’s guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act”.

[19] With respect to her Honour, there is some force in Mr Boulten’s argument. In particular, her observation that the applicant’s prospects of rehabilitation and low to moderate prospects of recidivism were not “striking”, so as to warrant a departure from the standard non-parole period, concerns me. Whether there should be such a departure depends upon an assessment of the objective and subjective factors peculiar to each case, and there is no requirement that an offender’s subjective case, or any part of it, should rise above some notional threshold before the standard non-parole period can be ameliorated. However, I find it unnecessary to express a concluded view about this aspect of Mr Boulten’s argument because I am satisfied that it was not open to her Honour to assess the objective gravity of the offence as she did (emphasis added).

The previous application

11. Following the decision in Muldrock (supra) the applicant made application to this Court pursuant to s. 78 of the Act (“the previous application”). The relevant doubt or question upon which the applicant relied for the purposes of the previous application was said to have arisen because the Court of Criminal Appeal gave inappropriate weight to the standard non-parole period. The applicant also argued that the Court’s reliance upon previous decisions for the purposes of ascertaining a sentencing range was erroneous.

12. Hoeben CJ at CL refused the previous application: Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825. His Honour said (commencing at [17]):

[17] I do not accept that "Muldrock error" has been made out in this matter. If the only judgment under consideration were that of Sweeney DCJ my conclusion would be otherwise. However, since the Court of Criminal Appeal found error in her Honour's judgment and re-exercised the sentencing discretion for itself, it is the judgment of the Court of Criminal Appeal which has to be considered not that of Sweeney DCJ.

[18] A proper reading of the judgment of the Court of Criminal Appeal makes it clear that albeit before Muldrock, the Court identified the very error to which the applicant has adverted in his submissions. The Court regarded as erroneous her Honour's excessive focus on the standard non-parole period. Apart from identifying this error in her Honour's approach, the Court of Criminal Appeal did not otherwise refer in terms to the standard non-parole period and in particular did not do so when re-sentencing the applicant.

[19] It is true that one of the bases for the intervention of the Court of Criminal Appeal was a finding of error in her Honour's characterisation of the objective seriousness of the offence. The reference to objective seriousness, however, and the Court of Criminal Appeal's approach to it is not of itself indicative of error. On the contrary, the plurality in Muldrock recognised the importance of determining the objective seriousness of an offence as part of the overall sentencing process.

[20] In Muldrock the plurality said:

"Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."

[21] A proper reading of the Court of Criminal Appeal decision shows that the Court focused on the very issue which the applicant has identified in this application, identified error and taking all relevant information into account re-sentenced him. Accordingly, there is no basis for the submission that were this matter to once again come before the Court of Criminal Appeal, it would be dealt with in any different way. It follows that I do not entertain any doubt or question as to the mitigating circumstances in the applicant’s case.

Submissions of the applicant

13. Senior counsel for the applicant relied upon a series of matters in support of the application. Firstly, in terms of the previous decision of the Court of Criminal Appeal, senior counsel submitted that the Court had:

1. engaged in a two-step approach to sentencing, by firstly determining whether there were any matters which justified a departure from the standard non-parole period; and

2. given primary, if not determinative, significance to the standard non-parole period applicable to the principal offence by:

3. being guided, in terms of the appropriate sentencing range, by sentences imposed in contravention of the principles in Muldrock;

4. expressly applying the decision in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 which the High Court found in Muldrock to have been incorrectly decided;

5. engaging in little analysis on sentence, other than making findings in respect of objective seriousness;

6. imposing what was described as a “mathematically neat” sentence, having regard to the standard non-parole period and the findings as to objective seriousness; and

7. ascribing an erroneous meaning to the term “objective circumstances”, and consequently failing to give full weight to the applicant’s subjective case.

14. Senior counsel for the applicant further submitted that the reasoning adopted by Hoeben CJ at CL in refusing the application was contrary to the subsequent decision of the Court of Appeal in Buttrose v Attorney-General of NSW (2015) 324 ALR 562; [2015] NSWCA 221. It was submitted that (at [21] of his judgment on the previous application) his Honour had failed to properly apply the test set out in s. 79(2) of the Act, and had instead applied a more onerous test. It was submitted, in particular, that in order to grant the previous application, his Honour was not required to entertain a doubt or question as to a Muldrock-type error, he was only required to be satisfied that there appeared to be such a question: Buttrose (supra) at [16]-[17] per Beazley P and Leeming JA.

Submissions of the Attorney-General

15. Counsel for the Attorney-General conceded that it would be open to me to form a view that there appeared to be a doubt or question as to whether the sentence imposed by the Court of Criminal Appeal was infected by Muldrock error. In adopting that position, counsel emphasised that the statutory language of the Act is not whether there is a doubt or question, but rather whether that appears to be the case.

16. Counsel for the respondent advanced two principal submissions in support of the Attorney-General’s position. The first was based upon the approach taken by the Court of Appeal in Buttrose. The second involved the effective acceptance of the “mathematical neatness” submission advanced on behalf of the applicant (referred to in [13](ii)(d) above).

Consideration

17. Like the present applicant, the appellant in Buttrose had made an application pursuant to Part 7 of the Act: Application by Richard William Buttrose pursuant to s. 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 826. In refusing that application, Hoeben CJ at CL said (at [21]):

The assertion that ‘the Court of Criminal appeal only reduced the sentence to a limited extent, again relying upon the important role to be played by the standard non-parole period referable to Count 3’ is unsubstantiated. This is because the Court of Criminal Appeal made no reference to the standard non-parole period. There was no assertion, either implicitly or expressly, by the Court of Criminal Appeal that the standard non-parole period was determinative, nor did the Court of Criminal Appeal engage in a two stage sentencing process (emphasis added).

18. In refusing the application which had been made by the appellant in Buttrose, his Honour (as set out in [17] above) noted that the Court of Criminal Appeal had not made any reference to the standard non-parole period. His Honour made a similar notation when refusing the present applicant’s previous application (at [21]). It is evident that the absence of reference, by the Court of Criminal Appeal, to the standard non-parole period was one of the factors to which his Honour had regard in refusing each of those applications. In this respect, Beazley P and Leeming JA said in Buttrose (at [24]):

Although his Honour correctly said that the Court of Criminal Appeal made no reference to the standard non-parole period, that is no answer to the inference the plaintiff invited his Honour to draw about the determinative role that it played in the resentencing exercise undertaken by the Court of Criminal Appeal (emphasis in original).

19. In the present case, the applicant invites me to a draw a similar inference to that of which their Honours spoke. Plainly, when sentencing the applicant, the Court of Criminal Appeal made no express reference to the standard non-parole period. However, as counsel for the Attorney-General pointed out, Hidden J (at [10] above) described the decision in Way (supra) as “seminal about the approach to the provisions relating to standard non-parole periods“.

20. In Muldrock the High Court concluded (at [25]) that it was an error to categorise s. 54B(2) of the Crimes Sentencing Procedure Act 1999 (NSW) 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. 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 relevant factors (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence. 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 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 Way (supra) had been wrongly decided.

21. In these circumstances, and particularly having regard to Hidden J’s references to Way in the passage set out in [10] above, I am satisfied that it appears that there is a doubt or question as to a mitigating circumstance in the applicant’s case, namely whether his sentence was infected by Muldrock error as a consequence of the Court of Criminal Appeal giving determinative significance to the standard non-parole period. Having reached that conclusion, it is not necessary for me to canvass the other issues raised in support of the application.

ORDERS

22. I make the following orders:

1. The application brought by the applicant pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is granted.

2. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act1912 (NSW).

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Decision last updated: 16 December 2016