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Black v R

Black v R

Case [2013] NSWCCA 265 14 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Black v R [2013] NSWCCA 265
Hearing dates: 18 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J [3]
Decision:
1.The application for an extension of time is dismissed

Catchwords:
CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - where sentencing judge made reference to the standard non-parole period being highly relevant - where necessity to read the reasons for sentence as a whole - error not established
CRIMINAL LAW - appeal - application for extension of time - where sentencing judge imposed fixed terms of imprisonment for offences for which a standard non-parole period was prescribed - error made out - no other sentence warranted in law - application for extension of time dismissed
Legislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999 NSW
Criminal Appeal Act 1912 NSW
Cases Cited: Abdul v R [2013] NSWCCA 247
Aslett v R [2012] NSWCCA 235
Baxter v R (2007) 173 A Crim R 284
Bellchambers v R [2011] NSWCCA 131
Black v R [2013] NSWCCA 183
Collier v R [2012] NSWCCA 213
Essex v R [2013] NSWCCA 11
FB v R; R v FB [2011] NSWCCA 217
Hristovski v R [2010] NSWCCA 129
Lang v R [2013] NSWCCA 29
Mammone v R [2013] NSWCCA 95 Markarian v R [2005] HCA 25; (2006) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
R v Dunn [2004] NSWCCA 346
R v Nguyen [2013] NSWCCA 195
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
SGJ v R; KU v R [2008] NSWCCA 258
Vandeventer v R [2013] NSWCCA 77
Category: Principal judgment
Parties: Stephen Black - Applicant
Regina - Respondent
Representation: Counsel:
Mr C Smith - Applicant
Ms J Girdham SC - Respondent
Solicitors:

File Number(s): 2007 / 7395011
Publication restriction: Nil
Decision under appeal

Date of Decision:

2008-12-11 00:00:00

Before:

Coolahan DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.

JOHNSON J: I agree with Bellew J.

BELLEW J: The applicant was found guilty of the following offences following a trial by jury:

(i) on or about 6 March 2006 did have sexual intercourse with JA without her consent, knowing she was not consenting, and immediately before the sexual intercourse threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife (count 1);

(ii) on or about 6 March 2006 did have sexual intercourse with JA without her consent, knowing she was not consenting, and immediately before the sexual intercourse threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife (count 2);

(iii) on or about 6 March 2006 did assault JA and at the time of such assault did commit an act of indecency on her (count 3);

(iv) on or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Black v R

Details

AGLC: Black v R [2013] NSWCCA 265
Case: [2013] NSWCCA 265
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the case of Black v R, the appellant sought an extension of time to appeal against his conviction and sentence. The dispute involved the interpretation and application of the legal principles surrounding sentencing and the impact of a so-called Muldrock error on the timeliness of an appeal. The High Court of Australia was tasked with determining whether the sentencing judge's reference to the standard non-parole period constituted a legal error and whether the appellant's application for an extension of time should be granted.

The primary legal issue before the court was whether the sentencing judge's reference to the standard non-parole period amounted to a Muldrock error. The appellant argued that the error warranted an extension of time for the appeal. The court had to consider the necessity of reading the sentencing reasons as a whole and whether such a reading revealed that the error did not exist. Additionally, the court examined whether the sentencing judge had imposed fixed terms of imprisonment for offences where a standard non-parole period was prescribed, and if so, whether the error was significant enough to justify an extension of time.

The court found that while the sentencing judge had indeed referenced the standard non-parole period, this did not constitute a Muldrock error when the reasons for sentence were read as a whole. The court concluded that the error, if any, was not established because the sentencing judge's overall approach to sentencing was correct. Furthermore, the court determined that since the appellant had been sentenced to fixed terms of imprisonment for offences where a standard non-parole period was prescribed, the error made out did not warrant an extension of time. Consequently, the application for an extension of time was dismissed.

In summary, the High Court held that the appellant's application for an extension of time to appeal was not justified. The court found that the sentencing reasons, when read as a whole, did not establish a Muldrock error, and the error made out did not warrant an extension of time. The appeal was therefore dismissed without any further orders being made.

Orders