Buttrose v Attorney General of New South Wales

In *Buttrose v Attorney General of New South Wales*, the plaintiff sought judicial review under section 78 of the *Crimes (Appeal and Review) Act 2001* (NSW) for an order referring his sentences for drug supply and related offences to the Court of Criminal Appeal for review. The central dispute concerned whether the precondition for such a referral – that there be a doubt or question as to the correctness of the sentences – had been satisfied. The case was heard by Beazley P, Leeming and Macfarlan JJA in the Court of Criminal Appeal of New South Wales.

The legal issues before the court were whether the precondition for referral under section 78 of the *Crimes (Appeal and Review) Act 2001* was met, specifically concerning a potential doubt or question as to the correctness of the plaintiff's sentences. This involved determining whether the sentencing involved what is known as *Muldrock* error, referencing the High Court decision in *Muldrock v The Queen* and the New South Wales Court of Criminal Appeal decision in *R v Way*. The court had to consider whether the satisfaction of this precondition depended on the decision-maker's subjective state of mind or on the objective existence of a relevant doubt or question.

The Court reasoned that the satisfaction of the precondition for referral under section 78 of the *Crimes (Appeal and Review) Act 2001* turned on the decision-maker's state of mind, rather than the objective existence of a doubt or question. The court considered that an error of law by the sentencing judge, and potentially by the Court of Criminal Appeal on a prior appeal, could lead to a sentence of greater severity than would otherwise have been imposed. Such an error could give rise to a doubt or question as to any mitigating circumstances in the plaintiff's case, thereby satisfying the statutory precondition.

The Court ordered, to the extent necessary, an extension of time for the commencement of the proceeding until 17 November 2014. It further declared that an error of law on the part of the sentencing judge, and on appeal, the Court of Criminal Appeal, may have caused a sentence to be imposed of greater severity than would otherwise have been the case, such as may give rise to a doubt or question as to any mitigating circumstance in the plaintiff’s case within the meaning of section 79(2) of the *Crimes (Appeal and Review) Act 2001*.