Further application of Henry Edgar Des Rosiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

[2016] NSWSC 365

Supreme Court

New South Wales

Medium Neutral Citation:

Further application of Henry Edgar Des Rosiers pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 365

Hearing dates:

On the papers

Date of orders:

04 April 2016

Decision date:

04 April 2016

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. Pursuant to s 79(1)(b) of the Criminal (Appeal and Review) Act 2001 the matter is referred to the Court of Criminal Appeal of New South Wales to be dealt with as an appeal under the Criminal Appeal Act 1912.

 

2. Pursuant to s 79(5) of the Criminal (Appeal and Review) Act 2001 the Registrar of the Criminal Division of the Supreme Court is to advise the Minister of Order 1.

 3. The Registrar of the Court of Criminal Appeal is to be advised of these orders, so that a timetable for the hearing of the matter can be fixed.

Catchwords:

CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act 2001 (NSW) – second s 78 application – asserted “Muldrock error” – “axiomatic error” - asserted “Kentwell error” - doubt or question as to the convicted person’s guilt as to any mitigating circumstances – question of referral to the Court of Criminal Appeal

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

Cases Cited:

Application by Henry Edgar Des Rosiers pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 830
Aytugrul v R [2015] NSWCCA 139
Bolt v R [2012] NSWCCA 50
Butler v R [2012] NSWCCA 23
Buttrose v Attorney General of New South Wales [2015] NSWCA 221
Crawford v R [2013] NSWCCA 269
Davis v R [2015] NSWCCA 90
Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
Devaney v R [2012] NSWCCA 285
Dulihanty v R [2013] NSWCCA 275
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465
Madden v R [2011] NSWCCA 254
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Dodd (1991) 57 A Crim R 349
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783
Thammavongsa v R [2015] NSWCCA 107
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Weatherall v R [2013] NSWCCA 282

Texts Cited:

Principles of Sentencing, 2nd edition, 1979

Category:

Principal judgment

Parties:

Henry Edgar Des Rosiers (Applicant)
Regina (Respondent)

Representation:

Legal Aid NSW (Applicant)
Attorney General of NSW (Respondent)

File Number(s):

2015/00310944

Publication restriction:

None

JUDGMENT

1. In 2005 Henry Edgar Des Rosiers (“the applicant”) was sentenced in the District Court of New South Wales in relation to a number of drug offences. The following year he was resentenced by the Court of Criminal Appeal (“CCA”) after an appeal to that Court: Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549.

2. In 2014 the applicant sought a review of the sentences imposed upon him by the CCA, submitting an application to this Court pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (“the CAR Act”) for a referral of his case to the CCA. The application was refused: Application by Henry Edgar Des Rosiers pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 830.

3. The applicant has now made a further Part 7 application, and again asks this Court to refer his case to the CCA to be dealt with as an appeal under the Criminal Appeal Act 1912.

4. The sentences the applicant seeks to have considered on appeal are those imposed by the CCA on 10 February 2006.

The Facts of the Applicant’s Crimes

5. After receiving information that the applicant was in possession of prohibited drugs, NSW Police obtained a warrant authorising a search to be made of his home on the north coast of the State. The warrant was executed on 20 April 2004, and a substantial quantity of prohibited drugs was found. The following items were seized:

1. 196 grams of the prohibited drug LSD in liquid form(that being 98 times the large commercial quantity);

2. 101 sheets of blotting paper, printed with 1, 000 heart shaped logos on each sheet, in readiness to be impregnated with LSD;

3. 90.6 grams of MDMA (that being 72 times the indictable quantity) which was at a level of purity between 68% and 73%;

4. 724.4 grams of dried cannabis leaf (that being more than twice the traffickable quantity);

5. Three cannabis plants;

6. Ten pieces of blotting paper impregnated with LSD;

7. Six capsules containing Nexus, a prohibited drug; and

8. The sum of $2,340 in cash.

6. Investigators had also lawfully intercepted a number of telephone communications between the applicant and a co-offender, Phillip Martin. During the conversations the applicant gave Mr Martin instructions in the preparation of blotting paper to be used for “tabs” of LSD, and referred to a need to send money to Thailand, a country to which an associate of the applicant had travelled briefly in March 2004.

7. Blotting paper identical to that found at the applicant’s home was found at the home of Phillip Martin.

8. There was also evidence that the applicant had supplied a small amount of LSD, being one paper tab, to an acquaintance on 7 February 2004.

9. The street value of the drugs depended upon the purity of the product sold, and was the subject of dispute, but it was substantial on any estimation.

The Procedural History of the Matter

10. The applicant was committed for sentence from the Lismore Local Court with respect to four supply offences. He was ultimately dealt with in the District Court for those offences, and for a number of other crimes, which were taken into account by the sentencing judge, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. The offences were as follows,

1. Supply not less than the large commercial quantity of a prohibited drug (LSD), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”);

2. Supply prohibited drug (MDMA) contrary to s 25(1) of the DMTA;

3. Supply prohibited drug (LSD) contrary to s 25(1) of the DMTA; and

4. Supply prohibited drug (cannabis), also contrary to s 25(1) of the DMTA.

11. There were four charges taken into account when sentence was imposed for the s 25(2) DMTA offence, being offences of possess prohibited drug (LSD), cultivate cannabis plant, goods in custody, and possessing a prohibited drug (Nexus).

12. In the District Court on 24 February 2005 a sentence of 18 years imprisonment with a non-parole period (“NPP) of 12 years was imposed with respect to the s 25(2) offence, taking into account the offences on the Form 1 document. The sentences imposed for the remaining counts were shorter terms of imprisonment, to be served concurrently with the sentence for the first count, and wholly subsumed by it. The earliest possible date for release to parole was specified as 19 April 2016.

13. The applicant subsequently sought leave in the CCA to appeal against the sentences imposed upon him. He complained of four specific errors on the part of the sentencing judge, and additionally asserted that the sentences were manifestly excessive.

14. The Court found that there were patent errors in the sentencing process which were such as to require the Court to proceed to re-sentence. An error had been made as to the maximum penalty applicable to the s 25 (1) DMTA charges, and the sentencing judge had failed to abide by the requirements of Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

15. Errors constituting the remaining grounds of appeal – that the sentencing judge should have regarded the supply of LSD as less serious than a comparable supply of a “more dangerous” drug; that there was a failure to properly consider s 21A of the Crimes (Sentencing Procedure) Act 1999; and that the sentencing judge failed to specify the discount applied to the sentences to reflect the pleas of guilty – were not established.

16. As to the complaint of manifest excess, the Court concluded (at [36] per Latham J, with whom McClellan CJ at CL and Howie J agreed) that the sentence, whilst a heavy one, was not manifestly excessive.

17. Because of the patent errors identified in the original sentence proceedings, the CCA proceeded to re-sentence the applicant, on 10 February 2006. The sentences for counts 2 and 4, being sentences infected by error as to the maximum penalty applicable, were reduced. The reduced sentences were imposed concurrently with the sentence imposed for the s 25(2) offence, and were wholly subsumed by it. The sentences imposed for the s 25(1) supply of LSD offence and the s 25(2) offence were unchanged. Accordingly, the applicant’s earliest release date, 19 April 2016, also remained unchanged.

18. It is the sentence imposed by the CCA that the applicant challenges.

The First s 78 Application

19. The application before me is the second of this nature.

20. On 20 June 2014 Hoeben CJ at CL determined the applicant’s first application to have his case dealt with as an appeal under the Criminal Appeal Act 1912.

21. In that first application, the applicant contended that the sentence imposed upon him by the CCA was infected by what is commonly known as “Muldrock error.” Specifically, it was argued that the standard non-parole period (“SNPP”) was given undue emphasis in the sentencing process, contrary to the principles set out by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. Had the SNPP not been given determinative significance, the applicant asserted, the sentence would have been appreciably less.

22. In the determination of the application, Hoeben CJ at CL concluded that, in determining the sentence to be imposed upon the applicant for the s 25(2) offence, Latham J had properly referred to the SNPP only as a benchmark, without giving it determinative significance. His Honour considered that the sentence had been fixed by reference to the objective gravity of the offence, taking into account the applicant’s subjective case, and in accordance with principle.

23. Ultimately, Hoeben CJ at CL was not persuaded that “Muldrock error” had occurred in the sentencing of the applicant and thus concluded that there did not appear to be a doubt or question as to a mitigating circumstance warranting a review of the matter as an appeal. Accordingly, the application for referral to the CCA was refused.

The Current Application

24. In this second application pursuant to s 78 of the CAR Act the applicant again asserts that the sentence was infected by error in that the SNPP was given primary or determinative significance, contrary to the principle laid down in Muldrock v The Queen. What raises the issue for further consideration, it is said, are changes in the jurisprudence as to the identification of “Muldrock error” and its assessment.

25. The applicant refers to and relies upon a number of decisions from the High Court, the Court of Appeal, and the CCA including Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601; Buttrose v Attorney General of New South Wales [2015] NSWCA 221; and Davis v R [2015] NSWCCA 90, in arguing that the sentence imposed by the CCA in 2006 was contrary to law.

26. Although this argument in support of “Muldrock error” was available to the applicant when making his first s 78 application, and was not then advanced, he now additionally contends that the “neatness” of the mathematics of the sentence imposed in 2006 is such as to indicate the significant role given to the SNPP, and therefore that there has been error. Reliance is placed in that regard on Bolt v R [2012] NSWCCA 50.

The “Muldrock Error” Issue

27. The applicant’s contention is that the application by the CCA of a process of determining the “objective gravity” or “objective seriousness” of the crime, as those terms and that process were understood in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, is indicative of “Muldrock error”, calling for appellate intervention.

28. It is submitted that, in determining the applicant’s first s 78 application, Hoeben CJ at CL overlooked the meaning and content of “objective seriousness” as it was considered in Muldrock v The Queen, and wrongly concluded that there was no doubt or question as to the applicant’s case.

29. Additionally, the applicant contends that there has been a major shift in the relevant jurisprudence in recent years, such that the sentence imposed upon any person sentenced in the period after R v Way and before Muldrock v The Queen must necessarily be erroneous.

30. Finally, as noted, the applicant contends that the mathematical neatness of the sentence imposed upon him is capable of demonstrating “Muldrock error”.

31. It is submitted that the question of the materiality or otherwise of the error is irrelevant. In reliance on Kentwell v The Queen it is contended that the language used by the CCA (per Latham J) is such as to demonstrate “Muldrock error”, and thus an appellate court should move to resentence the applicant, in the exercise of its independent discretion.

The Submissions Filed by the Attorney General

32. The Attorney General was invited by the Court to provide written submissions in relation to the applicant’s s 78 application and, pursuant to s 79(4) of the CAR Act, did so. The Attorney’s focus in submission was on the applicant’s argument founded on the asserted mathematical “neatness” of the sentence imposed by the CCA. Helpfully setting out the context of the relevant comments in the judgment of Latham J, the Attorney acknowledged the evolution of the jurisprudence, and ultimately concluded that it would be open in determining the current application to form the requisite view that there appears to be a doubt or question as to a mitigating circumstance such that the matter should be referred to the CCA to be dealt with as an appeal.

33. The Attorney referred in submission to the perceived role of the Crown as a contradictor, in light of decisions such as Davis v R and Aytugrul v R [2015] NSWCCA 139. In each of those decisions Simpson J (as she then was) was critical of the Crown for its “frivolous opposition” (Davis, at [34]) in appeal matters asserting “Muldrock error” which were determined pursuant to the Criminal Appeal Act 1912. Her Honour concluded that error in such matters was axiomatic, this being a reality the Court and the Crown had to “live with” (Aytugrul, at [21]).

34. Those criticisms of the Crown appear to have led the Attorney to feel a degree of constraint in the submissions that might be provided to the Court in this matter, particularly so given the lower threshold that applies to determination of an application of this nature, that being the appearance of a question or doubt as to the sentence imposed.

Consideration

35. The application has been brought pursuant to s 78 of the CAR Act. The provision is in these terms.

“78Applications to Supreme Court

(1)    An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf   of the convicted person.

(2)    The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.”

36. The applicant seeks a referral of his case to the CCA pursuant to s 79(1)(b) of the CAR Act. Section s 79 relevantly provides,

“79Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a)    […] or

(b)    the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)    Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)    The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a)    it appears that the matter:

(i)    has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)    has previously been dealt with under this Part or under the previous review provisions, or

(iii)    has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv)    has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b)    the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A)    […]

(3B)    […]

(4)    Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5)    The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).”

37. The determination of an application of this nature is an administrative, rather than judicial act: see Varleyv Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Directorof Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124]; Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465 at [9].

38. The statutory provisions provide a mechanism for administrative review where there is a basis to conclude that a conviction or sentence may have been entered contrary to proper principles: Sinkovichv Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783 at [52] - [53].

39. That is the contention in the present matter.

40. The applicant’s complaints can usefully be separated and categorised as complaint of “Muldrock error”, and complaint of “Kentwell error”, the latter being the asserted failure of the CCA to independently exercise the sentencing discretion when moving to re-sentence the applicant.

41. Other than the issue of mathematical neatness which the applicant now complains of, but did not refer to in his first application, the question of “Muldrock error” was considered and dealt with in Application by Henry Edgar Des Rosiers pursuant to s78 Crimes (Appeal and Review) Act 2001. Hoeben CJ at CL was not satisfied that a doubt or question as to a mitigating feature arose.

42. Section 79 of the CAR Act provides that the Court may refuse to consider or otherwise deal with the application where an application has been previously dealt with under Part 7 (ss (3)(a)(ii)), or where the Court is not satisfied that there are special facts or circumstances that justify the taking of further action (ss (3)(b)). Whilst the applicant does not have a right of appeal against the sentence imposed upon him, it is a relevant consideration that the applicant did not seek special leave from the High Court to appeal against the 2006 decision of the CCA, and he has not sought judicial review of the decision made in 2014 in Application by Henry Edgar Des Rosiers pursuant to s78 Crimes (Appeal and Review) Act 2001.

43. The applicant asserts in his submissions in support of his second s 78 application that there are a number of asserted errors in the determination of the first Part 7 application, but it is not necessary to consider any purported errors. Although I do not regard a second such application as the proper means by which to expose error, determination of the present application does not turn on consideration of that question.

37. There are aspects of the application which have not previously been argued or considered, they being the asserted mathematical neatness of the sentence imposed by the CCA for the s 25(2) offence, and the purported failure of that Court to exercise the sentencing discretion afresh, after having found error in the lower court proceedings.

The Bolt v R Argument

45. In Bolt v R it was held that, even in the absence of specific remarks by the sentencing judge indicative of “Muldrock error”, such error can still be found where there is a correlation, or “neatness of the mathematics” between the SNPP for the particular offence and the NPP in fact imposed: at [36], per McCallum J. That principle was applied in Devaney v R [2012] NSWCCA 285, and referred to with approval in Buttrose v The Attorney General of New South Wales.

46. The applicant asserts that there is such a correlation between the SNPP of 15 years specified for a s 25(2) DMTA offence, and the NPP of 12 years imposed upon him by the CCA.

47. That argument has force only if Latham J’s comments about the objective gravity of the applicant’s crime are understood as meaning that the offence fell at the mid-range of objective seriousness. Having considered the whole of what her Honour said on the subject, I do not understand that to be the correct interpretation of those comments.

48. At [35] of DesRosiers v R Latham J said,

“As noted at par 15, there can be no doubt that the supply large commercial quantity offence lay at least at, if not above, the mid-range of objective gravity.”

49. That comment should be considered in the context in which it was made, and in light of the whole of her Honour’s remarks.

50. The context was consideration given to the apparent absence of any assessment by the primary judge of the objective gravity of the s 25(2) offence, which was found to be an error. At [14] Latham J said,

“[The primary judge] next referred to the standard non-parole period (15 years) prescribed for the offence by s 54 of the Crimes (Sentencing Procedure) Act 1999 and to this Court’s decision in R v Way [2004] NSWCCA 131. Apart from noting that it was “not to be regarded as either a starting post or a finishing post or anything apart from that”, there was no further discussion of the relevance of the standard non-parole period to the sentencing exercise being undertaken. The Crown’s written submissions on sentence canvassed the authorities relating to Way and sought to place the offence “well beyond the middle range of objective seriousness”, having regard to the quantity of the drug and its commercial value. In these circumstances, his Honour erred in not identifying a basis for departing from the standard non-parole period. Nowhere in the remarks on sentence does his Honour assess the objective gravity of the offence in terms of the spectrum of offences of this type, nor is there any attempt to meet the requirements of s 54B(4) of the Crimes (Sentencing Procedure) Act; R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175.” (formatting removed)

51. Her Honour referred to the concession made by the applicant’s counsel that the s 25(2) offence fell in the upper range of objective gravity for an offence of that nature (with the Crown submitting that the crime was well beyond the middle range of seriousness). Reference was also made by her Honour to the quantity of LSD involved in the offence, and the evidence of large scale production of the drug for profit.

52. When considering the question of manifest excess, and the quantification of the discount on sentence to reflect the utilitarian value of the plea of guilty, Latham J concluded that a “starting point” of 24 years imprisonment could not be considered manifestly excessive.

53. Taking into account all that her Honour said about the gravity of the crime, it is my view that the Court proceeded to re-sentence on the basis that the applicant’s crime was an extremely grave one, and was above any notional middle point of the range of seriousness. If the additional offences before the Court on the Form 1 document, the discount on sentence to which the applicant was entitled for his plea of guilty, and the finding of special circumstances are also added into the mix of features relevant to the determination of sentence, together with the applicant’s subjective case, any correlation between the figure of 12 years fixed as the NPP, and the 15 year SNPP, falls away.

The “Kentwell Error” Issue

54. Much of what has been advanced by the applicant relates to a broader question of the approach of the appellate courts to assertions of “Muldrock error” and, on re-sentence, the relevance or otherwise of the sentence imposed at first instance to the re-exercise of the sentencing discretion.

55. Since Muldrock v The Queen was handed down by the High Court in 2010, there have been a large number of cases considered by the CCA where error of the nature identified in Muldrock v The Queen has been asserted. Annexed to this decision, as Annexure A, is a list of relevant cases, there being (at the present time) around eighty of them.

56. The first such judgment dealt with by the CCA appears to have been Madden v R [2011] NSWCCA 254. In that case, the grounds of appeal had been formulated prior to the decision in Muldrock v The Queen being handed down, and so it was the Court that raised the issue of possible error, in light of the High Court’s decision. Simpson J (as her Honour then was) noted, at [35]- [36],

“It remains the case, even post- Muldrock, that a sentencing judge is to be "mindful" of both the maximum sentence for which provision is made, and the standard non-parole period as "legislative guideposts": (Muldrock, at [27]). However, the standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction (at [56]); even less is the standard non-parole period the starting point for sentence after a plea of guilty.

Although I have considered it necessary, in fairness to the applicant, to raise the Muldrockissue, I have concluded that no error of the kind exposed in that judgment has been disclosed. While it was not necessary (Muldrock, [25]) to fix the offence on a scale of objective seriousness that his Honour did so (in accordance with the law as it was understood at the time of sentencing) did not deflect the judge onto an erroneous course.”

57. In Butler v R [2012] NSWCCA 23, the Court took an approach which was consistent with that adopted in Madden v R. At [26], Davies J, with whom, Whealey JA and Rothman J agreed, said,

“In my opinion no error has been shown in relation to the way the Sentencing Judge approached the standard non-parole period. Merely showing that a sentencing judge sentenced pre- Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick.”

58. In those cases where error was found, the Court often considered the materiality of the error, as part of the process of determining whether a lesser sentence was warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912. See Dulihanty v R [2013] NSWCCA 275; Crawford v R [2013] NSWCCA 269 and (although error was not found) Weatherall v R [2013] NSWCCA 282 for example.

59. The decision in Kentwell v The Queen was handed down by the High Court on 9 October 2014.

60. In Kentwell v The Queen, the High Court said at [35] per French CJ, Hayne, Bell and Keane JJ,

“[…] In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

61. Although there appears to have been some divergence of opinion expressed in the judgments of individual justices of the CCA subsequent to Kentwell v The Queen as to the relevance of the sentence imposed at first instance to the re-sentencing exercise (see Thammavongsa v R [2015] NSWCCA 107, for example), it is clear that, whatever relevance the earlier sentence may have, where error has been established the sentencing discretion must be independently exercised by the Court.

62. When moving to re-sentence in Des Rosiers v R, Latham J referred to the sentence at first instance, using the language of re-sentence that was then typical of that process. That does not, in my view, necessarily establish the failure to independently exercise the sentencing discretion, to use the phrase now familiar from Kentwell v The Queen.

63. Her Honour referred to the features material to the determination of sentence, including the gravity of the crimes, a matter which has long been a feature of considerable significance to the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354. Also taken into account were the offences on the Form 1 document, the subjective case advanced by the applicant, and relevant principles of sentence, in proposing the sentences fixed by the Court.

64. One of the principles of sentencing law that applied to the re-sentencing exercise in 2006 was the requirement to take “a last look” at the sentences imposed to ensure that they complied with the principle of totality and were just and appropriate: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63, per Wilson, Deane, Dawson, Toohey and Gaudron JJ, adopting a statement from Thomas, Principles of Sentencing, 2nd edition, 1979, at pp. 56–57.

65. The last look taken at the sentence is one which, in its nature and function, is not without similarity to the process of instinctive synthesis. It allows a sentencing judge to consider the evidence relevant to sentence, in light of sentencing principles, and to assess whether the putative sentence is a proper and just one. It allows for adjustment of the putative sentence before its imposition.

66. It may be concluded that Latham J, having taken the last look at the sentence she proposed, determined it to be a just one in all of the circumstances. The balance of the Court agreed.

67. Whilst her Honour may not have used the language of Kentwell v The Queen, that does not, of itself, establish that the Court failed to independently exercise the sentencing discretion, and fell into “Kentwell error”.

68. A Part 7 application however is not considered through the prism of certain error. It is considered by applying the language of s 79(2) of the CAR Act, and in the light of dicta from the High Court in Kentwell v The Queen, and from the CCA in decisions such as Davis and Aytugrul.

69. Applying the language of the statute, and the relevant law, I have concluded that there does appear to be a doubt or question as to a mitigating circumstance in the case. Accordingly, it is proper to grant the application, and refer the matter to the CCA pursuant to s 79(1)(b) of the Act.

orders

70. The orders I make are:

1. Pursuant to s 79(1)(b) of the Criminal (Appeal and Review) Act 2001 the matter is referred to the Court of Criminal Appeal of New South Wales to be dealt with as an appeal under the Criminal Appeal Act 1912.

2. Pursuant to s 79(5) of the Criminal (Appeal and Review) Act 2001 the Registrar of the Criminal Division of the Supreme Court is to advise the Minister of Order 1.

3. The Registrar of the Court of Criminal Appeal is to be advised of these orders, so that a timetable for the hearing of the matter can be fixed.

**********

annexure a

2011

Madden v R [2011] NSWCCA 254

2012

Butler v R [2012] NSWCCA 23

Zreika v R [2012] NSWCCA 44

Bolt v R [2012] NSWCCA 50

Satuala Nanai v R [2012] NSWCCA 141

Williams v R [2012] NSWCCA 172

FP v R [2012] NSWCCA 182; (2002) 224 A Crim R 82

Christie v R [2012] NSWCCA 228

Jones v R [2012] NSWCCA 262

PK v R [2012] NSWCCA 263

Qian v R [2012] NSWCCA 283

2013

KW v R [2013] NSWCCA 31

Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

ZZ v R [2013] NSWCCA 83

Achurch v R (No 2) [2013] NSWCCA 117; (2013) 84 NSWLR 328; (2013) 234 A Crim R 154

White v R [2013] NSWCCA 242

Abdul v R [2013] NSWCCA 247

Doe v R [2013] NSWCCA 248

Kertai v R [2013] NSWCCA 252

Martin v R [2013] NSWCCA 253

SW v R [2013] NSWCCA 255

Tan v R [2013] NSWCCA 262

George v R [2013] NSWCCA 263

AG v R [2013] NSWCCA 264

Black v R [2013] NSWCCA 265

Kentwell v R [2013] NSWCCA 266

Currie v R [2013] NSWCCA 267

Zahorsky v R [2013] NSWCCA 268

Crawford v R [2013] NSWCCA 269

Greenaway v R [2013] NSWCCA 270

Duncombe v R [2013] NSWCCA 271

AB v R [2013] NSWCCA 273

Dulihanty v R [2013] NSWCCA 275

Efthimiadis v R [2013] NSWCCA 276

Diaz v R [2013] NSWCCA 277

Radi v R [2013] NSWCCA 278

Ith v R [2013] NSWCCA 280

O’Grady v R [2013] NSWCCA 281

Weatherall v R [2013] NSWCCA 282

Koh v R [2013] NSWCCA 287

Harris v R [2013] NSWCCA 296

Ngati v R [2013] NSWCCA 307

Brown v R [2013] NSWCCA 309

Ramea v R [2013] NSWCCA 310

Peters v R [2013] NSWCCA 324

2014

Carlton v R [2014] NSWCCA 14

Kuehne v R [2014] NSWCCA 22

Ali v R [2014] NSWCCA 45

Kazzi v R [2014] NSWCCA 73

RJA v R [2014] NSWCCA 89

Tan v R [2014] NSWCCA 96

Sinkovich v R [2014] NSWCCA 97

Versluys v R [2014] NSWCCA 98

Imnetu v R [2014] NSWCCA 99

Mencarious v R [2014] NSWCCA 104

Rajendran v R [2014] NSWCCA 113

Pham v R [2014] NSWCCA 115

Ingham v R [2014] NSWCCA 123

Huynh v R [2014] NSWCCA 147

MLP v R [2014] NSWCCA 183

Louizos v R [2014] NSWCCA 242

Ibrahim Jidah v R [2014] NSWCCA 269

FB v R [2014] NSWCCA 282

Monteiro v R [2014] NSWCCA 277

2015

Dennis v R [2015] NSWCCA 61

Kutschera v R [2015] NSWCCA 73

Laurie v R [2015] NSWCCA 77

McDonald v R [2015] NSWCCA 80

Davis v R [2015] NSWCCA 90

Hohaia v R [2015] NSWCCA 91

Kentwell v R (No 2) [2015] NSWCCA 96

Thammavongsa v R [2015] NSWCCA 107

Wilson v R [2015] NSWCCA 128

Aytugrul v R [2015] NSWCCA 139

O’Grady v R [2015] NSWCCA 168

El-Zeyat v R; Aouad v R; Osman v R [2015] NSWCCA 196

Bravo v R [2015] NSWCCA 302

Turner v R [2015] NSWCCA 322

2016

Efthimiadis v R (No 2) [2016] NSWCCA 9

Decision last updated: 04 April 2016