Louizos v R - [2014] NSWCCA 242

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Louizos v R [2014] NSWCCA 242
Hearing dates: 9/05/2014
Decision date: 31 October 2014
Before: Leeming JA at [1];
Fullerton J at [40];
R A Hulme J at [108]
Decision:
1. The appeal is allowed.
2. The sentence imposed by this Court on 20 March 2009 is quashed.
3. In lieu thereof the appellant is sentenced to a term of imprisonment of 12 years comprised of a non-parole period of 8 years and a balance of term of 4 years. The sentence is to commence on 25 September 2008. The appellant is eligible to be released to parole on 24 September 2016.

Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error - solicit to murder - referral of "the whole case" - significance of motive for sentencing purposes
Legislation Cited: Crimes Act 1900 (ACT), s 427(2)
Crimes Act 1900 (NSW), s 26
Crimes (Appeal and Review) Act 2001 (NSW), Part 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
Criminal Appeal Act 1907 (UK), s 19
Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6, 7, 26(a)
Criminal Code (WA), s 689
Sentencing Act 1995 (WA), s 140(1)
Cases Cited: A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 231 A Crim R 183
Allesch v Maunz [2000] HCA 40; 203 CLR 172
Barlow v R [2008] NSWCCA 96; 184 A Crim R 187
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Benitez v R [2006] NSWCCA 21; 160 A Crim R 166
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Carlton v R [2014] NSWCCA 14
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318
Everett v R [1994] HCA 49; 181 CLR 295; 74 A Crim R 241
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
House v The King [1936] HCA 40; 55 CLR 499
Imnetu v R [2014] NSWCCA 99
JJT v R [2006] NSWCCA 283; 67 NSWLR 152
Kazzi v R [2014] NSWCCA 73
Kearns v R [2011] NSWCCA 103; 213 A Crim R 150
Kentwell v The Queen [2014] HCA 37
Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573
Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
MLP v R [2014] NSWCCA 183
McLaren v R [2012] NSWCCA 284
Mallard v R [2005] HCA 68; 224 CLR 12; 157 A Crim R 121
Malvoso v R [1989] HCA 58; 168 CLR 227; 43 A Crim R 451
Mickelberg v R [1989] HCA 35; 167 CLR 259
Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254
Quealey v R [2010] NSWCCA 116
R v Caborn-Waterfield [1956] 2 QB 379
R v Chard [1983] 3 All ER 637
R v Dole; R v Nguyen [2010] NSWCCA 101
R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151
R v Gavel [2014] NSWCCA 56
R v Gunn [No 1] (1942) 43 SR (NSW) 23
R v Gunn [No 2] (1942) 43 SR (NSW) 27
R v Loveridge [2014] NSWCCA 120
R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94
R v Potier [2004] NSWCCA 136
R v Rayment [2010] NSWCCA 85
R v Reeves [2014] NSWCCA 154
R v Wall [2002] NSWCCA 42; 71 NSWLR 692
R v Way [2004] NSWCCA 131; 60 NSWLR 168
RJA v R [2008] NSWCCA 137; 185 A Crim R 178
RJA v R [2014] NSWCCA 89
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783
Texts Cited: R Pattenden, English Criminal Appeals 1844-1994, Clarendon Press, Oxford, 1996
Category: Principal judgment
Parties: Freda Louizos (Appellant)
The Crown (Respondent)
Representation: Counsel:
I McLachlan (Appellant - hearing)
T Game SC and J Roy (Appellant - submissions filed after the hearing)
V Lydiard (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/599
Decision under appeal

Jurisdiction:

9004

Citation:

[2009] NSWCCA 71

Date of Decision:

2009-03-20 00:00:00

Before:

McClellan CJ at CL; Grove J; Howie J

File Number(s):

2008/599

Judgment

LEEMING JA: Freda Louizos (the appellant) was tried before a judge of the District Court and a jury of twelve between 6 and 25 August 2008. She was found guilty of soliciting to murder her former husband. On 25 September 2008, she was sentenced to imprisonment for 10 years with a non-parole period of 6 years. Her appeal against conviction and the Crown's appeal against sentence were heard, concurrently and rapidly, in December 2008. By judgment delivered in March 2009, this Court dismissed the appeal against conviction, but allowed the Crown's appeal against sentence: Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223. This Court set aside the sentence imposed at first instance and imposed a new sentence of imprisonment of 13 years and 6 months, with a non-parole period of 10 years.

Although the Court's reasoning in the Crown's appeal accorded with settled authority at the time, aspects were concededly erroneous following the High Court's decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The matter returns to this Court because of a reference by a judge of the Supreme Court pursuant to s 79 of the Crimes (Appeal and Review) Act 2001 (NSW), on 19 December 2013.

I agree, substantially for reasons given by Fullerton J, that notwithstanding the erroneous Muldrock reasoning, this Court was correct in 2009 to conclude that the original sentence was manifestly inadequate. Although the sentence imposed in 2009 must be quashed, I agree with her Honour that in its place this Court should impose a sentence of imprisonment of 12 years with a non-parole period of 8 years.

I respectfully disagree with some aspects of her Honour's reasoning on the threshold question of the nature of this Court's jurisdiction. That question is not straightforward where, as here, there has been a reference following a successful Crown appeal. So far as I am aware, this is the first time this Court has enjoyed the benefit of full submissions on the point. Indeed the appellant has advanced two distinct positions to this Court (first, orally and in written submissions filed in advance of the hearing, and secondly, by lengthy written submissions filed 2 June 2014, by counsel who had not previously been briefed, whose approach was radically different. In what follows, references to the appellant's submissions are to those dated 2 June 2014.).

The issue arose for determination for two reasons. First, the Crown said that leave was required for the appellant to advance a ground of appeal extending beyond the matters addressed in the reference. Secondly, the appellant submitted that in certain circumstances this Court should restore the decision of the primary judge (in so saying, I am considerably simplifying the appellant's elaborate submission in this respect; it is reproduced in full below).

Contrary to the Crown's submissions, I do not consider that leave is required to advance the new ground. Contrary to the appellant's submissions, I have concluded that the proceeding is to be approached as if the Court of Criminal Appeal's sentence was itself the subject of an appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), such that if error be detected, it is for this Court itself to impose the appropriate sentence pursuant to s 6(3). Error may be detected if it be found that the principles applicable to Crown appeals were misapplied by the previous decision of this Court. However, the result of error is not restoring the original sentence; it is instead the exercise of the power under s 6(3), made applicable by ss 79(1)(b) and 86 of the Crimes (Appeal and Review) Act. It is in this respect that I respectfully disagree with Fullerton J, although I share her Honour's ultimate conclusion.

Non-controversial aspects of the statutory regime

Section 78 of the Crimes (Appeal and Review) Act relevantly provides:

"(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."

Section 79(1)(b) provides:

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

...

(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."

Section 79(1)(b) is to be read with s 86, which relevantly provides:

"On receiving a reference under section ... 79(1)(b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly."

Section 78 authorises an inquiry into a conviction or sentence. Following consideration of an application under s 78, there is power conferred by s 79 to "refer the whole case to the Court of Criminal Appeal". A precondition of the exercise of the power is that "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". It is established that sentencing which arguably discloses Muldrock error (as it has come to be called) answers the description of a "doubt or question as to any mitigating circumstances in the case": Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783. A judge of the Supreme Court so found. The only basis of the reference was Muldrock error.

The closing words of s 79(1)(b) ("to be dealt with as an appeal under the Criminal Appeal Act 1912") and s 86 give rise to a new statutory creature, whose incidents closely resemble those of an appeal created by the Criminal Appeal Act. I shall call it a "quasi-appeal", to distinguish it from an ordinary appeal against sentence pursuant to s 5(1)(c) and 6(3). (I prefer not to use the language in the appellant's submissions of a "virtual appeal", because the process is a real exercise of judicial power with real consequences whose result may be to set aside a sentence of imprisonment.)

It was common ground that the inquiry into a conviction or sentence authorised by s 78 of the Crimes (Appeal and Review) Act extended to a sentence imposed by the Court of Criminal Appeal, consistently with the course followed in other decisions of this Court: see Kazzi v R [2014] NSWCCA 73 at [3]. As Bathurst CJ said in A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143 at [22]:

"The words 'as if' [in s 86], in my opinion, indicate that the Court is to treat the appeal as one properly brought and which it had power to deal with under s 6 of the Criminal Appeal Act."

That echoes what was said by Jordan CJ, with the concurrence of Davidson J, in R v Gunn [No 1] (1942) 43 SR (NSW) 23 at 26, about the predecessor section (s 26(a) of the Criminal Appeal Act 1912 (NSW)) being treated as an investment of jurisdiction to deal with the matter "as if it were an appeal against conviction duly instituted by the prisoner himself in the ordinary way."

It follows that the effect of ss 79(1)(b) and 86 is that this Court has authority to review and, if appropriate, set aside the sentence imposed by it in 2009. That is something it would otherwise be incapable of doing: see Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [24] and the authorities there mentioned. Sections 5(1)(c) and 6 of the Criminal Appeal Act, read with the definition of "sentence" in s 2, only create an appeal from a "sentence" imposed by the court of trial.

The critical effect of s 79(1)(b) read with s 86 in this case is that the sentence imposed in 2009 by this Court pursuant to s 5D(1) is deemed to be the sentence to be dealt with following a reference. That must be so; there is after all only one extant sentence requiring the appellant to be imprisoned, namely, the sentence imposed when the Crown appeal was allowed in 2009.

Nature of the quasi-appeal created by ss 79(1)(b) and 86

The function imposed by ss 79(1)(b) and 86 is to be performed "as an appeal", and "as if the convicted person had appealed against" the sentence imposed in 2009 by this Court. What legal content is to be given to the quasi-appeal thereby created? An appeal is a creature of statute, and the precise nature of appellate jurisdiction will be expressed in, or is to be inferred from, the statute including its context: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [56]. So too here, the legal nature of the quasi-appeal falls to be determined from the statute including its context.

In some contexts an "appeal" can refer to a hearing de novo whereby the matter is determined afresh irrespective of the need to identify error: see Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23]. In some contexts, an "appeal" can refer to a "strict appeal", where the only question is whether the decision under appeal was or was not erroneous on the evidence before it and on the law as it stood when the original decision was given: Lacey at [57]. It is plain that neither of those possibilities is presently applicable to the quasi-appeal created by ss 79(1)(b) and 86. The natural meaning in this context of the Criminal AppealAct is for the procedure created by ss 79(1)(b) and 86 to be determined similarly to the appeal elsewhere created in the same Act. That is to say, it amounts to an appeal by way of rehearing, whose success depends upon the identification of error. No party expressly submitted to the contrary, although it will be seen that the appellant's submissions contended for an outcome which was different from that obtaining if s 6(3) applied.

Within the context of the Criminal Appeal Act, "appeals" invariably have grounds, so as to identify error in the decision the subject matter of the appeal. Indeed, the nature of the grounds determine whether the appeal lies as of right, or only by leave. The process created by ss 79(1)(b) and s 86 also involves grounds.

What constraints (if any) govern the grounds raised?

It has been held that once there has been a reference, leave is not required: Carlton v R [2014] NSWCCA 14, at least in relation to the grounds which were the subject of the inquiry. The question whether leave is required for new grounds not raised in the original application under s 78 was left open in Imnetu v R [2014] NSWCCA 99 at [4] (which is the most recent decision in this State, delivered after judgment was reserved) and has been the subject of conflicting dicta. Whether the distinction in s 5 of the Criminal Appeal Act between grounds of appeal against conviction which involve a question of law alone, and other grounds of appeal against conviction and against sentence is preserved is also undetermined, although it has been said that s 5 is effectively "bypassed" by ss 79(1)(b) and 86: R v Doyle [2001] NSWCCA 252; 123 A Crim R 151 at [62]- [63]; McDermott at [16]. The position in relation to a notice of appeal is similar. What invokes the jurisdiction of the Court in the present case is the reference, under s 79(1)(b), as opposed to a notice of appeal: see also Imnetu at [5]-[6].

The substantial question is how and when are the grounds of appeal necessary to establish error (without which the quasi-appeal will fail) to be identified? It was common ground that the grounds raised in the s 78 inquiry were part of the "whole case" which is to be dealt with under s 86. But can they be enlarged as of right, and at any stage? The appellant submitted that they could; the Crown that they could not. Taking the appellant's submissions to their logical extreme, would it be open to the appellant, at the hearing of the quasi-appeal (or even after judgment was reserved) to propound new grounds to challenge the correctness of the sentence? Can fresh evidence said to be relevant to the new ground be introduced as of right? Indeed, would it be open to challenge the correctness of her conviction, a doubt only having been raised at the time of inquiry and reference as to her sentence? However, it will not be necessary to resolve those questions on this occasion.

There are statements endorsing a broad approach by the High Court in Mickelberg v The Queen (1989) 167 CLR 259 at 312 and Mallard v The Queen [2005] HCA 68; 224 CLR 125 at [10]-[12]. Nevertheless, leave was refused to re-argue a ground which had been the subject of an application for leave to appeal in the previous appeal in JJT v R [2006] NSWCCA 283; 67 NSWLR 152. However, I agree with Fullerton J's observation that JJT is not authority for the proposition that leave is required, the point not having been taken.

The appellant pointed to the obligation to deal with "the whole case", and in substance contended that the whole case was as large or small as the appellant might choose to make it, with the Court being obliged to consider any question of fact or law raised by her at any time.

The language of "the whole case" reflects the original form of the antecedent to the provision, in s 26 of the Criminal Appeal Act as originally enacted, which copied the substance of s 19 of the Criminal Appeal Act 1907 (UK). Section 26 empowered (emphasis added):

" ... the Minister of Justice, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence other than the sentence of death passed on a convicted person, may -

(a) refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted;

(b) if he desires the assistance of the court on any point arising in the case with a view to the determination of the petition, refer that point to the court for their opinion thereon, and the court shall consider the point so referred and furnish the Minister with their opinion thereon accordingly."

The reference to the whole case arose in the context of a petition for mercy, and was in contradistinction to the possibility of referring any point arising in the case. Indeed, as Heydon J observed in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [74] and as Basten JA observed in Sinkovich at [21] and [34]-[35], the statutory language in New South Wales pre-dates by some decades any statutory right of appeal, let alone Crown appeals against sentence.

However, the "whole case" having been referred, in a provision which is plainly intended to confer a benefit upon the convicted person and to put in place a mechanism to ensure fairness in the ultimate outcome, there is no good reason for there to be a limitation upon the grounds of the quasi-appeal. It has been observed (R Pattenden, English Criminal Appeals 1844-1994, Clarendon Press, Oxford, 1996, p 361) of the English legislation that:

"Once a reference is made, the parties decide what the issues are, and the [Court of Criminal Appeal] decides on the basis of what the parties have argued and not the terms of the reference."

That approach reflected the result of R v Chard [1983] 3 All ER 637, which overruled R v Caborn-Waterfield [1956] 2 QB 379 to the opposite effect. In Australia too, Chard has been approved by the High Court in Mallard v The Queen at [12]. In Mallard at [10], the High Court said, of materially identical language in the Western Australian counterpart:

"Subject only to what we will say later about the words 'as if it were an appeal' which appear in s 140(1)(a) of the Act, the explicit reference to 'the whole case' conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words 'the whole case' embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words 'as if it were an appeal' are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code."

Accordingly, I agree with Fullerton J that leave is not required to advance a new ground, merely because it was not part of the reference. However, it does not follow that the quasi-appeal created by ss 79(1)(b) and 86 wholly displaces the Court's ordinary procedures designed to ensure a fair hearing. To the contrary, the ordinary language of those provisions is that a person who has the benefit of a reference under s 79(1)(b) is to be placed substantially in the position as if he or she had properly brought an appeal, in which there are limits to the extent to which grounds may be taken. However those considerations do not arise here.

It is also not necessary for present purposes to resolve a related issue raised by the appellant. The appellant accepted, properly, that it was not necessary to deal with matters which were frivolous or vexatious. However, the appellant submitted that:

"the mere fact that a previous Court has considered a matter now raised by the appellant does not make it frivolous or vexatious. It is the nature of a Pt 7 referral to reconsider a case already determined, such that the Court may 'derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it' if it think it useful (Mallard at [10])."

There is, at least arguably, a tension between that submission and earlier authorities. In R v Gunn [No 2] (1942) 43 SR (NSW) 27, Jordan CJ said with the concurrence of Davidson and Halse Rogers JJ that (at 29):

"In a case in which there has already been an appeal which has been disposed of on the merits, I am of opinion that the Court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable."

That passage was reproduced in the reasons of Toohey and Gaudron JJ in Mickelberg v The Queen at 311-312, immediately before their Honours concluded (citations omitted):

"It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."

Their Honours were there addressing the way in which the Court of Criminal Appeal had dealt with ground 8 of Peter Mickelberg's appeal. They concluded at 312:

"Whatever the Court of Criminal Appeal might previously have said relating to Peter's conviction for conspiracy, it was not said in the course of an adjudication on the merits as to that conviction. As previously noted, Peter's earlier appeal was limited to his convictions for breaking and entering and setting fire to the premises from which the cheque forms were stolen. That being so, the issue of inconsistency as raised in ground 8 of Peter's grounds of appeal could not properly be excluded as vexatious or frivolous on the basis that it had already been determined on the merits after full opportunity for argument."

Mason CJ and Brennan J agreed with that reasoning of Toohey and Gaudron JJ.

It is not entirely clear whether Mallard is to be read as supplanting the approach stated in Gunn [No 2] and seemingly endorsed in Mickelberg. However, it is likely, for the reasons given below, that any tension between the two approaches is illusory, once the true nature of the quasi-appeal is appreciated. For only if the appellant persuades a court that there is error will the sentence be set aside and a new sentence imposed. That may occur where, as here, the earlier court has applied principles subsequently held to be incorrect, or otherwise made some error of fact or law in its reasoning process. It may also arise where the earlier court has not dealt with a particular matter. However, where the earlier court has dealt with a matter, and the appellant makes no submission that there is error, then the approach of Jordan CJ in Gunn [No 2] as endorsed in Mickelberg will be available.

What if error is identified following a successful Crown appeal?

How do those provisions apply where, as here, a reference follows a successful Crown appeal? The appellant's written submissions were elaborate; it is best to reproduce them in their entirety:

"32. This is a novel scenario that has only recently arisen in the context of Muldrock error Pt 7 referrals. The matters to be determined by this Court on such an appeal can be summarised as follows:

(1) Whether the CCA erred in determining that the original sentencing judge made material errors sufficient to warrant a Crown appeal. If the CCA so erred, this Court must overturn the Crown appeal and determine:

(a) Whether the Crown had established in the original CCA that the sentencing judge otherwise erred to the requisite extent to permit a Crown Appeal, in which case this Court must proceed to consider (2) below; or

(b) If the Crown had not established that the sentencing judge otherwise erred to the requisite extent, this Court should reinstate the original sentence.

(2) If this Court determines that the CCA did not err in finding that the sentencing judge materially erred, or else determines that the CCA did so err but that the Crown appeal should have been allowed on another of the Crown's original grounds, it must then consider whether:

(a) It was or is now correct to allow the Crown appeal, having regard to all of the legal principles applicable to Crown appeals in March 2009, including the residual discretion, and

(b) In the case that this Court finds that the Crown appeal should have been allowed on one of the Crown's grounds other than the ground upon which the CCA first allowed the appeal, this Court must also take into account whether the Crown appeal should now be allowed, many years after the original sentence and re-sentence, having regard to the appellant's subjective circumstances since the first appeal, and taking into account the residual discretion.

If neither 2(a) nor 2(b) are satisfied, this Court must overturn the Crown appeal and should reinstate the original sentence.

(3) If, having determined in accordance with (1) and (2) above that, either the CCA did not err in allowing the Crown appeal or else that such an appeal should nevertheless have been allowed on another of the Crown's grounds, this Court must then proceed to determine whether the CCA's sentencing discretion miscarried. If it did (as is conceded in this case) this Court must compare its re-exercise of the sentencing discretion (as though on the Crown appeal put before the CCA, but having regard to the appellant's present subjective circumstances) against the sentence imposed by the CCA, to determine whether some other sentence is warranted in law.

It must then either dismiss the appeal or impose the new sentence accordingly.

33. In other words, this Court is effectively reassessing the original Crown appeal, and it must re-exercise its discretion from the point at which material error in the original CCA decision is identified, informed by the appellant's current circumstances and the residual discretion."

I do not agree that the concise language of ss 79(1)(b) and 86 leads to such an elaborate outcome.

Sections 79(1)(b) and 86 bypass the rights of appeal created by s 5 of the Criminal Appeal Act and create what I have termed a quasi-appeal. Although there are some differences, to which I have made reference, both sections require the process to be dealt with "as an appeal". The subject matter of the appeal is the sentence imposed by the earlier Court of Criminal Appeal. It is for the appellant to identify error in that sentence. The identification of error is to be undertaken in light of the grounds advanced by the appellant, and in light of the fact that the sentence was imposed following a Crown appeal. If material error be found, then s 6(3) applies, for s 86 requires the assumption to be made that "the convicted person had appealed against the ... sentence under the Criminal Appeal Act, and that Act applies accordingly." Those words can have but one meaning. They mean (at least in ordinary cases - I am putting to one side provisions such as s 7(1A)) that the power conferred by s 6(3) extends to quashing the sentence imposed following the earlier successful Crown appeal, and imposing the sentence which "is warranted in law", in accordance with what was said in Kentwell v The Queen [2014] HCA 37 at [42]-[43], confirming what Spigelman CJ had said in Baxter v R (2007) 173 A Crim R 284.

In short, the new process created is not a rehearing of the Crown appeal. It is a new "appeal" by the offender against the sentence imposed following the Crown appeal.

What follows from the foregoing in the present case is this. Ms Louizos is taken to have appealed under s 5(1)(c) against the sentence imposed by the Court of Criminal Appeal. She does not need leave to prosecute these proceedings. She is entitled to identify grounds which go beyond the matters raised in the inquiry and reference under ss 78 and 79. She points to two matters: Muldrock error (which is conceded) and error in assessing her objective criminality. There is no reason not to consider those grounds on their merits. They are to be assessed as if an appeal. For the reasons given by Fullerton J, Muldrock error is made out, and it was material to the sentence imposed. It follows that the sentence imposed in 2009 must be quashed. Also for reasons given by Fullerton J, the sentence which is warranted in law, having regard to objective seriousness of the offence and her subjective circumstances to date, is a sentence of 12 years imprisonment with a non-parole period of 8 years.

I agree with the orders proposed by Fullerton J.

FULLERTON J: On 25 August 2008 the appellant was convicted after trial of soliciting to murder her former husband contrary to s 26 of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years and a standard non-parole period of 10 years.

On 25 September 2008 she was sentenced to 10 years imprisonment with a non-parole period of 6 years.

The Crown successfully appealed the sentence under s 5D of the Criminal Appeal Act1912 (NSW) (Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223). On 20 March 2009 the sentence imposed by the trial judge was quashed and the appellant was re-sentenced to imprisonment for 13 years and 6 months with a non-parole period of 10 years. An appeal against conviction was dismissed.

Following the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 the appellant sought an inquiry under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) into the sentence imposed by the Court of Criminal Appeal following the successful appeal.

On 19 December 2013 Latham J was satisfied that in allowing the Crown appeal against sentence and on re-sentence, the standard non-parole period assumed a primary or determinative significance, contrary to the decision of the High Court in Muldrock, as a result of which she referred the matter to this Court pursuant to s 79(1)(b) within Part 7 of the Crimes (Appeal and Review) Act to be dealt with as an appeal under the Criminal Appeal Act.

Section 79 of the Crimes (Appeal and Review) Act is in the following terms:

79 Consideration of applications

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

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, 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.

[Emphasis added]

(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.

...

On receiving a referral, the Court of Criminal Appeal is required by s 86 of the Crimes (Appeal and Review) Act "to deal with the case so referred in the same way as if the convicted person had appealed the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly".

One of a number of the issues arising on the appeal is what is meant by a referral of "the whole [of the appellant's] case" under s 79(1)(b). It will also be necessary to consider what is involved in dealing with the case "as if" the appellant had appealed (the approach mandated by s 86 of the Crimes (Appeal and Review) Act) when the proceedings are not brought pursuant to s 5(1) of the Criminal Appeal Act, and where s 6(3) of that Act (a section to which both parties referred as governing the outcome of the appeal) is confined to applications for leave to appeal against sentence under s 5(1).

Another question that arises on the appeal is whether the considerations that inform the operation of s 6(3) of the Criminal Appeal Act have any practical application where the matter referred under Part 7 of the Crimes (Appeal and Review) Act is from a sentence imposed after a successful Crown appeal, in this case in circumstances where the Court of Criminal Appeal found that the original sentencing discretion had miscarried because of the failure on the part of the sentencing judge to apply the provisions of s 54B of Div 1A of the Crimes (Sentencing Procedure) Act1999 (NSW) in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168, the law that applied in this State before the High Court decision in Muldrock.

In its submissions filed in advance of the hearing the Crown conceded that in both allowing the Crown appeal and in re-sentencing the appellant, the reasoning and approach of the Court of Criminal Appeal revealed Muldrock error. The Crown submitted, however, that when all relevant statutory requirements and sentencing principles are applied to the exercise of this Court's sentencing discretion in accordance with Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 (including the legal principles applicable to Crown appeals as they applied at that time), this Court would be satisfied that no other sentence other than that imposed by the Court of Criminal Appeal is warranted in law and the appeal should be dismissed in accordance with s 6(3) of the Criminal Appeal Act. The appellant's original filed submissions implicitly accepted that s 6(3) would govern the outcome of the appeal. On the appellant's behalf, however, it was submitted that on re-sentence a lesser sentence is warranted at law and that the sentence originally imposed by the sentencing judge is consistent with such a finding and should be reinstated.

In the appellant's supplementary submissions, filed with leave after the hearing by senior counsel and junior counsel, neither of whom appeared on the hearing of the appeal, the nature of the jurisdiction that is invoked by a Part 7 referral was reconsidered and a different analysis of the questions that arise in the disposition of the appeal was proffered. The appellant's counsel submitted that if this Court were satisfied that there was Muldrock error in both allowing the Crown appeal against sentence and in the exercise of the Court's re-sentencing discretion (as conceded by the Crown), the decision of the Court of Criminal Appeal must be set aside in its entirety. It was submitted that the question with which this Court is then concerned is not whether some sentence other than that imposed by the Court of Criminal Appeal is warranted at law (the language of s 6(3) of the Criminal Appeal Act) but whether this Court is persuaded that the Crown appeal against the sentence imposed by the primary judge should be allowed in any event, referable to the grounds of appeal formulated and argued in 2009 but not formally dealt with by the Court in allowing the Crown appeal.

On that analysis it follows that if this Court is not persuaded that the Crown appeal should be allowed (having regard to the legal principles that applied in Crown appeals in 2009, including the residual discretion to dismiss the appeal even if error is identified - see Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152), it seems to me to follow that this Court must reinstate the sentence imposed by the sentencing judge, since the exercise of the re-sentencing discretion by this Court would simply not arise. Conversely, it also follows that were this Court persuaded that the Crown appeal should be allowed (again having regard to the legal principles that applied in Crown appeals in 2009), then it will be necessary for this Court to consider whether, in the exercise of its re-sentencing discretion, and having regard to the appellant's current subjective circumstances, the original sentence should be disturbed. The appellant submitted that were this Court persuaded that the Crown appeal should be allowed (and that the residual discretion is not to be exercised in the appellant's favour), then a comparison between the sentence this Court is minded to impose and the sentence imposed by the Court of Criminal Appeal in 2009 might be undertaken, not by applying the terms of s 6(3) of the Criminal Appeal Act, but with a view to assisting the Court to arrive at a sentence that is both just and proportionate, having regard to the objective seriousness of her offending and her subjective circumstances at the time of trial and her current circumstances, including the time that has elapsed both before and after the Crown appeal. Since reconsideration of the Crown appeal against the inadequacy of the sentence imposed on this appellant after trial must be decided by this Court referable to the Crown's original grounds of appeal, the arguments advanced by the parties in 2009 and the analysis of those arguments in the judgment of Howie J (with whom McClellan CJ at CL and Grove J agreed) will be of some guidance in reconsidering whether the Crown appeal should be allowed.

The appellant submitted that after undertaking that exercise this Court would be satisfied that the sentence imposed by the sentencing judge is the appropriate sentence.

For my part, I am persuaded that the approach to this appeal contended for in the appellant's revised submissions is the correct approach, and that the submissions filed by the parties in advance of the hearing, which focused on the application of s 6(3) of the Criminal Appeal Act, understated or overlooked the principled enquiry that is engaged by the Part 7 referral in this case.

Leaving to one side for the moment what is comprehended by a referral of "the whole case" in s 79(1)(b) of the Crimes (Appeal and Review) Act as a matter of statutory construction, at least for the purposes of this appeal it is inevitable that the evidence at trial and the findings of the sentencing judge based upon that evidence, will be the subject of consideration on the appeal. Put another way, the question whether the Crown appeal as formulated in 2009 should be allowed and the appellant re-sentenced in accordance with Muldrock principles, including application of the settled principles which constrain the exercise of the jurisdiction under s 5D of the Criminal Appeal Act, cannot be decided without "the whole case" being reviewed. That question must also be decided referable to the legislation that was in force at the time of the Crown appeal, including the "double jeopardy" considerations which applied prior to the amendment to the Crimes (Appeal and Review Act) by the insertion of s 68A in September 2009, given that the transitional provisions provide that s 68A "extends to an appeal that was commenced but not finally determined before the insertion of the section".

A question which was raised in the hearing of the appeal was whether the appellant was required to file a notice of appeal and, even if not required, whether its effect, if filed, confined the appellant to the ground of appeal. That question arose because of the Crown's opposition to an application by the appellant's counsel for leave to amend the notice of appeal to add, as a ground additional to Muldrock error (the sole ground of appeal as filed), that the Court of Criminal Appeal erred in finding that the objective seriousness of the offending was "significantly above" the mid-range. It was that question which attracted the grant of leave to file supplementary submissions in the course of which the jurisdiction exercised by this Court on a Part 7 referral, and the way that jurisdiction is to be understood where a successful Crown appeal is infected by Muldrock error, was addressed for the first time.

In developing the argument in support of leave to amend the notice of appeal being granted, the appellant's counsel (then appearing) accepted it was open to the Court of Criminal Appeal to regard the appellant's offending as above mid-range but submitted that the Court was in error in finding it was "significantly" above mid-range. He submitted the appropriate finding was that the offending was somewhere between the mid-range and significantly above it. He further submitted that, to the extent that the appellant's motive in having her former husband killed was able to be discerned from the evidence, it neither aggravated nor mitigated the objective seriousness of her offending, and that Howie J's criticism of the way the sentencing judge dealt with the question of motive, by converting the absence of any finding that the appellant's motive (whatever it might be presumed to be) was an aggravating factor into a mitigating factor, failed to factor in the neutrality of motive in assessment of the objective seriousness in this case. That was then relied upon as an additional basis to challenge the appointment of the objective gravity of her offending at significantly above the mid-range.

If it be the case that "the whole case" that was before the Court of Criminal Appeal on the Crown appeal is under review on this appeal (which, for the reason set out above, I regard as the proper approach), the question for this Court is whether the sentencing judge's finding of offending at below the mid-range was a sentencing error, as contended for by the Crown in its filed grounds of appeal in 2009, not whether the Court of Criminal Appeal was in error in its assessment of objective seriousness at significantly above mid-range. While this Court might be informed by the consideration given to that question by the Court of Criminal Appeal, it is neither bound by that finding nor is that finding under review for error. The concession by the appellant's counsel at the hearing of the appeal that the offending was above mid-range offending, must however be taken to be the appellant's instructed position. The question remains whether error in the sentencing judge's finding of objective seriousness will justify allowing the Crown appeal and the exercise of the re-sentencing discretion.

In summary, although the appellant's application for leave to add a further ground of appeal and the Crown's opposition squarely raised the question whether leave to amend the notice of appeal was required (or, for that matter, whether a notice of appeal specifying grounds of appeal was required at all), and although it was that issue which prompted a number of related questions concerning the jurisdiction that is exercised by the Court of Criminal Appeal when a matter is referred to it under Part 7, for the reasons already discussed, in my view the issue of leave to amend the notice of appeal simply does not arise on this appeal.

If that analysis is misconceived, and it is the sentence imposed by the Court of Criminal Appeal which is under appeal, the question whether it is open to an appellant to raise grounds additional to the "doubt or question" that formed the basis of the Part 7 referral does arise. That question has been considered in a number of recent decisions in this Court where Muldrock error in a sentence at first instance (or following an appeal brought under s 5(1) of the Criminal Appeal Act) was the basis of a Part 7 referral, without any concluded view being reached, either because the Court did not consider it necessary to decide the point (Carlton v R [2014] NSWCCA 14) or because it was not fully argued (Kazzi v R [2014] NSWCCA 73) or it was not raised in argument at all (Imnetu v R [2014] NSWCCA 99).

Carlton is authority for the proposition that an appellant does not require leave to bring the appeal under s 5(1) of the Criminal Appeal Act, or to seek an extension of time within which to appeal in respect of the matters that were the subject of referral, where the matter is on a referral under Part 7, those procedural requirements effectively being bypassed by the referral itself. At [39] RA Hulme J expressed the view, without the need to decide it, that were an appellant to raise matters on the appeal additional to the aspect of the proceedings that gave rise to the referral, they ought to be considered by the Court unless they were considered to be "frivolous or vexatious", language used in Mickelberg v R [1989] HCA 35; 167 CLR 259 as adopted in the joint judgment of Gummow, Hayne, Callinan and Heydon JJ in Mallard v R [2005] HCA 68; 224 CLR 12; 157 A Crim R 121 at [11]. In Mallard, the High Court was considering the referral of a petition for clemency under s 140(1) of the Sentencing Act 1995 (WA) to the Court of Criminal Appeal for determination under s 689 of the Criminal Code (WA). Section 140(1)(a) provides for the referral of "the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be)".

The approach taken by RA Hulme J in Carlton was consistent with the approach of Giles JA (with whom Latham J agreed) in Kearns v R [2011] NSWCCA 103; 213 A Crim R 150, a case which concerned the question whether there had been a miscarriage of justice in the trial of the appellant where it was said that the trial judge was asleep during the proceedings. While that was the only question that grounded the Part 7 referral, further grounds had been added by the time of the hearing of the appeal. As RA Hulme J observed in Carlton at [34], Giles JA cited the High Court in Mallard as authority for the proposition that as "the whole case" was the subject of the referral, the Court was obliged to consider all grounds (unless frivolous or vexatious) and that if leave were required to consider those grounds it ought be granted. In Kazzi at [11], Leeming JA did not consider it necessary to express any final view as to what follows from the fact that it is "the whole case" which is the subject of the referral under s 79(1)(b), his Honour merely noting that although it may not have been necessary to do so, in the case under consideration the appellant filed a notice of appeal where the sole ground of appeal was Muldrock error following a successful Crown appeal and that the written and oral submissions were confined to that issue. Button and RA Hulme JJ did not consider the question at all.

In Imnetu, Basten JA gave detailed consideration to a number of jurisdictional questions raised by a Part 7 referral, including whether a notice of appeal is required in bringing the appeal, although none of the issues considered by his Honour arose for consideration in the hearing of the appeal or its disposition. Basten JA expressed the view that although, as a matter of statutory construction, the reasoning underlying the decision in Carlton was persuasive, it may be necessary to consider, in a particular case, questions of leave in relation to grounds of appeal not the subject of the enquiry which led to the referral. His Honour went on to say that although the question whether a notice of appeal is required might be covered by the reasoning in Carlton (as distinct from it being adopted as a matter of administrative convenience in the Registry of the Court of Criminal Appeal), he doubted whether the referral of "the whole case", of itself, entitled an appellant to raise grounds of appeal unrelated to the matter which gave rise to a doubt or question leading to the referral. As his Honour saw it, this was seemingly inconsistent with the legislative purpose of Part 7.

Since both parties filed supplementary written submissions which addressed the question of jurisdiction on a referral under Part 7 of the Crimes (Appeal and Review) Act, I propose to set out the arguments of the parties as to what is comprehended by a referral of "the whole case", albeit in a summary way.

The Crown submitted that leave was required to amend the notice of appeal despite "the whole case" being referred under s 79(1)(b) and despite it being this Court's statutory duty under s 86 to deal with the appeal on that basis. The Crown submitted that the referral of what was perceived by Latham J to be Muldrock error in the disposition of the Crown appeal in 2009, does not entitle the appellant to expand her case on appeal to this Court as of right. The Crown repeated its earlier submission that the matter referred by her Honour was whether Muldrock error allows for the conclusion by this Court that a lesser sentence is warranted in law. While the Crown accepted that the appellant does not require leave to challenge the sentence on that basis, it submitted that leave is required to argue any additional ground of appeal. This submission seems to me to expose the same error in the Crown's approach to the disposition of the appeal as appears in the submissions filed in advance of the appeal, in that it appears to focus on s 6(3) of the Criminal Appeal Act as governing the outcome.

The appellant submitted that the terms of ss 79(1), 79(2) and 86 of the Crimes (Appeal and Review) Act mandate that these proceedings be treated "as" an appeal (per s 79(1)(b)) and "as if the convicted person had appealed" thereby attracting the power to dispose of the appeal under the Criminal Appeal Act. The appellant sought to emphasise, however, that because the proceedings are not brought under that Act the procedural steps preliminary to commence an appeal are bypassed by the referral, as is the need to obtain leave to appeal against a sentence under s 5 of the Criminal Appeal Act. Counsel submitted that the language of "the whole case" may be contrasted with a significantly revised version of the legislation (otherwise of the same historical origin) in force in the ACT. In that jurisdiction, the type of matters which may be referred are expressly limited by the legislation. An inquiry following referral is similarly limited to such matters as are stated in the order for inquiry (equivalent to an order for inquiry under s 79(l)(a); see s 427(2) of the Crimes Act 1900 (ACT)). This is in marked contrast with the referral of "the whole case" mandated under the New South Wales Act.

In short, the appellant submitted that for the Crown to seek to maintain the argument that the only matter referred by Latham J was Muldrock error is to confuse why the appellant's case was referred with what was actually referred. In the exercise of the administrative power under s 79 of the Crimes (Appeal and Review) Act, the appellant submitted (correctly in my view) that Latham J could have done no more than to have referred "the whole" of the appellant's case to this Court since that is the only category of referral her Honour was empowered to make.

Applying the same reasoning, the appellant submitted that no question of leave to amend the notice of appeal arises on a Part 7 referral since the Court is obliged by the terms of the referral under s 79(1)(b) to consider the whole of the appellant's case, including any issues of fact or law, whether or not raised by the referral, subject only to the Court's inherent jurisdiction to restrict the hearing of the appeal to matters that are not frivolous or vexatious. Further, it was submitted that since the Crown has conceded that in allowing the Crown appeal in this case the Court of Criminal Appeal committed a Muldrock error, it is inevitable that the matters bearing on an assessment of objective seriousness will need to be considered afresh by this Court in determining whether the Crown appeal (absent Muldrock error) would have succeeded in any event and, if so, in the re-exercise of the sentencing discretion that would inevitably follow from that finding. The appellant submitted that the Crown's description of the Court's consideration of that question as "vexatious and frivolous", as they sought to argue in the supplementary submissions, fails to appreciate the nature of the current proceedings and the matters that fall to be determined in them. In that connection, it was submitted that it is inevitable that the appellant's motive in soliciting to have her former husband killed will fall to be considered by this Court, since it forms part of the facts and circumstances of her offending as disclosed by the findings of the primary judge, informed by the consideration given to those findings by the Court of Criminal Appeal.

Both parties referred to authorities which have considered similar legislative provisions to those in Part 7 of the Crimes (Appeal and Review) Act.

In my view, the Crown's reliance upon a passage at [10] in the joint judgment of Gummow, Hayne, Callinan and Heydon JJ in Mallard (as extracted below) in support of the proposition that the Court is to merely follow the procedures apposite to an appeal when considering "the whole case as if it were an appeal" and not to reconsider "the whole case", is too narrow a reading of that decision. On a proper reading of the passage at [10], it does not constrain the manner in which an appellant might bring an appeal following a Part 7 referral under the Crimes (Appeal and Review) Act.

In Mallard, the High Court found that the approach of the Court of Criminal Appeal in Western Australia to considering not merely the evidence at the appellant's trial, but the relevance of that evidence to further evidence upon which the appellant sought to rely, as if the Court were inhibited by the term of the referral, was erroneous. The Court said:

[10] ... Subject only to what we will say later about the words "as if it were an appeal" which appear in s 140(1)(a) of the Act, the explicit reference to "the whole case conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.

[Emphasis added.]

[11] This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen:

"The words of s 21(a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."

[12] It is also consistent with the construction adopted by Lord Diplock (Lords Scarman, Roskill, Brandon of Oakbrook and Templeman agreeing) in R v Chard of like language of s 17(1)(a) of the Criminal Appeal Act 1968 (UK):

"In my view, which I understand is shared by all your Lordships, the words of paragraph (a) of subsection (1) in their natural and ordinary meaning are free from any trace of ambiguity; the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court.

...

Since it is the 'whole case' that is referred, this must include all questions of fact and law involved in it ..." (emphasis added)

In A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 231 A Crim R 183 was cited by the appellant in support of the construction of s 79(1)(b) advocated in counsel's supplementary submissions.

In considering the operation of s 76 of the Crimes (Appeal and Review) Act, where application may be made for a review of a conviction or sentence in the exercise of the Governor's pardoning power, Bathurst CJ referred to s 77(1)(b) which provides that after the Governor has considered the petition, the Minister may refer "the whole case" to the Court of Criminal Appeal to be dealt with "as an appeal" under the Criminal Appeal Act. As to the operation of that provision, his Honour said:

[15] There are a number of matters which should be noted. First, a petition to the Governor under s 76 may be made by the convicted person or by another person on behalf of the convicted person. In this case the relevant application was, of course, made by Ms Sheelah on behalf of Mr McDermott. There is no reason from the text of the legislation why such an application cannot be made on behalf of a deceased person.

[16] Second, s 77(1)(b) of the Act empowers the Minister to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. There is no requirement for a Notice of Appeal to be lodged or, for that matter, any action to be taken by the convicted person. As Spigelman CJ said in R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151 at [62]-[63] in respect of equivalent provisions in the Crimes Act, s 5 of the Criminal Appeal Act which confers a right of appeal on a person convicted on indictment, effectively is bypassed. Thus, a reference under the equivalent of s 77(1)(b) of the Act in that case both empowered and required the Court of Criminal Appeal under the s 86 equivalent to deal with the matter on appeal, notwithstanding the fact that it was a summary conviction to which the appeal rights conferred by s 5 of the Criminal Appeal Act would not apply...

Counsel submitted that while it may be preferable, and is certainly practical, for matters relied upon in favour of and against the appellant to be enunciated in advance of the hearing of the appeal (as is customarily the case where directions are made by the Registrar for the filing of submissions), the Court's inherent jurisdiction to control its own proceedings and to ensure procedural fairness may, as in the present case, result in the grant of leave to file further submissions to respond to any matters arising in the proceedings not otherwise ventilated in the filed submissions or identified as an issue in advance of the hearing. However, that does nothing to derogate from the fact that preliminary procedures having been bypassed by the referral, there is no statutory obligation upon an appellant in a Part 7 referral to provide a notice of appeal.

Finally, the Crown also relied on JJT v R [2006] NSWCCA 283; 67 NSWLR 152. Although that case involved a petition under s 474B in the Crimes Act (since repealed), the predecessor to the referral process in Part 7 of the Crimes (Appeal and Review) Act, the Crown submitted that there were no substantive difference between the two statutory processes since under both, the "doubt or question" is to be dealt with as an appeal under the Criminal Appeal Act on a review of "the whole case". After having referred to "the whole case" and the High Court decision in Mallard, McClellan CJ at CL (James and Simpson JJ agreeing) considered that leave was required to argue a ground of appeal which had been the subject of an application for leave to appeal in the previous appeal, which had been refused. McClellan CJ at CL said:

[87] There are powerful considerations which would point to this Court denying leave. As was said, admittedly in a different context, in Gregory [2002] NSWCCA 199 the interests of justice include consideration of the administration of the law generally, including "considerations supporting the finality of judicial decisions" ...

[88] There is another aspect of the present matter favouring a grant of leave. The appeal comes to this Court following referral by the Minister. Mindful of the breadth of approach to the appeal which the High Court required in Mallard this Court should be slow to refuse leave to raise this ground even after the lapse of time.

The Crown's reliance upon JJT as support for the proposition that leave to amend the notice of appeal is required also seems to be misplaced. In that case, the Court appears to have assumed leave was required, and granted it accordingly. In those circumstances, no principle of the kind argued by the Crown can be derived from what appears to have been an unchallenged assumption.

The Crown did not seek to file any submissions in reply directed to the issues as both clarified and reformulated in the appellant's further submissions.

I am of the opinion that the construction of s 79(1)(b) for which the Crown contends, such that "the whole case" refers only to the reason for which a referral under Part 7 was granted, cannot be supported. It is contrary to binding authority and unduly hinders the statutory duty imposed upon the Court by s 86 for which there is no statutory warrant.

Crown appeal to the Court of Criminal Appeal

The facts on which the appellant was sentenced are conveniently set out in the judgment of the Court of Criminal Appeal:

[6] BB, the victim, was the former husband of the appellant. There were three children of the marriage. The appellant and the victim had separated in 2001 and there had been an ongoing custody dispute in the Family Court. As at February 2006 there was an interim custody order in favour of the appellant. However the eldest child, KB aged 13, was voluntarily living with the victim. The victim had weekend access to the two younger children. There was a further hearing in the Family Court listed for 22 October 2006.

[7] On Monday 27 February 2006, the victim left home in his Landcruiser at about 3am to attend his place of employment. He came across a number of wheelie bins placed across his driveway. He stopped the vehicle and alighted to remove the bins. As he was about to move the second bin, a man armed with a knife attacked him. The victim tried to enter his vehicle but was stabbed in the stomach. He was stabbed a number of times after he fell from the vehicle onto the roadway. The assailant entered the victim's Landcruiser and it was driven away. It was later found burned out. The victim was left for dead but regained consciousness in hospital. The appellant and their son visited him there. KB went to live with the appellant shortly after the stabbing.

[8] There was no dispute at the trial that the man responsible for the stabbing was Morgan Denning. He was unknown to both the victim and the appellant. Denning had been engaged to attack the victim by Chad Williams. There was also no dispute that Leigh Moyes acted as a get away driver and had been engaged by Williams to carry out that role.

[9] The chief Crown witness was Williams. According to his evidence the appellant asked him to kill the victim and she was party to the planning of the attempt on the victim's life. By the time he gave evidence against the appellant he had been convicted of an offence of inflicting grievous bodily harm arising from the stabbing and sentenced to a prison term for that offence. He had been given the benefit of a 45 per cent discount for the assistance he had provided to the investigating police including giving evidence against the appellant at the trial.

[10] Williams lived at the Wyoming Caravan Camp that was owned by the appellant and her second husband. Williams had three children from a previous relationship who were living with foster parents. He was at the time of the offending living with a partner who was pregnant with their first child. Williams was employed as caretaker of the caravan park. His duties involved cleaning toilets, general maintenance and attending the office when the appellant and other staff were unavailable. After the birth of their child, Williams and his partner moved into a house adjoining the office rent-free. He was attempting to regain custody of his children and was keen to have stable employment and accommodation.

[11] It was William's evidence that in January 2006 the appellant asked him whether he was interested in "knocking off" her ex-husband. He declined to do it himself but said that he knew some people who might be interested. He agreed to make inquiries. Thereafter the appellant frequently spoke to him about whether these persons would carry out the murder. She told Williams that it was the only way she would get custody of the children. Eventually Williams decided that Denning would do the killing and the appellant agreed that he was to be paid $2000. Williams approached Denning in mid-January 2006 and asked if he was prepared to earn some money. He told Denning that the victim had molested a child whom Denning knew. Denning agreed to carry out the killing.

[12] According to Williams, in February 2006 the appellant drove him in her vehicle to show him where the victim lived. She drove to the vicinity of the victim's home but did not want to be seen by him. She gave Williams the registration number of the victim's vehicle and told him what time the victim left for work. She showed him a photograph of the victim.

[13] Williams gave evidence as to the circumstances surrounding the stabbing of the victim at which he was present. [He received nine stab wounds to the back, neck and abdomen]. After the attack Williams assisted in burning the victim's motor vehicle. He then returned to the caravan park and fell asleep. He woke up and saw the appellant entering the house. She said that her husband was in hospital. Some time later she asked him why the victim was not dead.

[14] Some weeks after the stabbing the appellant's husband told Williams to leave the caravan park for supplying drugs. He ultimately moved to a caravan park at Coolah near Dubbo where he was arrested on 6 September 2006. Police had identified Moyes as being involved in the stabbing and arrested him at the appellant's caravan park Williams learned that Moyes had implicated him in the stabbing and thereafter agreed to assist police. As part of that assistance Williams agreed to take part in telephone calls with the appellant that were to be recorded by police.

The admissibility of these calls was considered as part of the appeal against conviction. The Court was satisfied that they were properly admitted and summarised the content of the calls as follows:

[27] Williams made three telephone calls to the appellant at the instigation of police after he and Moyes had been arrested. The first two were made on 7 September 2006 the day after Williams' arrest and the third on 20 September 2006. Det Milton suggested that Williams should speak to the appellant in the conversation "as if you knew that [Moyes] had rolled". In respect of the third of the calls the detective suggested that Williams should tell the appellant that he had been in custody for traffic matters.

[28] An employee of the caravan park answered the first call from Williams and he asked her to pass on an urgent message to the appellant that "Leigh [Moyes] had rolled". A few minutes later the appellant rang Williams. That conversation, included the following:

Williams: Urn, I've just found out that Lee's (sic) rolled on us.

Appellant: Yeah.

Williams: I've got coppers all over town fuckin' chasin' me.

Appellant: Huh uh. Why you?

Williams: Um...

Appellant: Why you?

Williams: Why me? Because I was involved in it, Freda.

Appellant: Listen, let me say...

Williams: Lee's told 'em

Appellant:... let me say something to ya.

Williams: Yeah.

Appellant: You keep your mouth shut, no one else will talk.

...

Appellant: All I can say to you is, you keep your mouth shut, they've got no DNA, they've got no nothing.

Williams: Mm hm.

Appellant: They've got no fingerprints. They've got...

Williams: Yep.

Appellant: ...nothing. The car was sold, the car's gone.

Williams: Yep, yep. Righto. Ah....

Appellant: He can't ID. In the paper apparently they're looking for a white European looking male.

Williams: Yep, all right.

Appellant: So does that fit your description?

Williams: No it doesn't.

Appellant: Right

...

Williams: ...[Moyes] said that you paid some money.

Appellant: Well I paid nothing.

Williams: ..he said - well, that's what he said. He said that you've paid money, he said that fuckin' I went out there and fuckin' me and Morgan done the fuckin' job.

Appellant: Well you, keep your mouth shut...

...

Appellant: Um, anyway, like I said to you before, you can be guaranteed it's all tight this end, mate.

Williams: Yep, yep, all right. So just keep me mouth

Appellant: Yeah.

Williams: ...shut and

Appellant: Keep your...

Williams:...I should be right.

Appellant: Deny the whole thing.

Williams: Yep, deny it?

Appellant: Because there's nothing on you.

Appellant: But if they do, if they grab ya...

Williams: You know what I'm like, I've done nothing anyway, Freda. Fuck you know what I mean? It's all Morgan.

Appellant: You weren't there, mate.

Williams: Fuck, I was only up the road, Freda, so it doesn't fuckin' matter, like for me.

Appellant: You don't know nothing about it.

This was the conversation that the Crown chiefly relied upon to support the evidence of Williams.

[29] The third conversation contained some material that revealed knowledge by the appellant of the role of Moyes and his connection with Williams when she referred to him as "your other mate" and when Williams said, "the one with the car that [you're] talking about?" she replied, "Yes".

The sentencing reasons of the trial judge

After referring to the appellant's family and domestic circumstances at the time of the offending, the sentencing judge was satisfied that the telephone calls (extracted in the judgment of the Court of Criminal Appeal at [27]-[28] and above) corroborated the evidence of Williams that he was contracted by the appellant to kill her former husband and that the appellant told him that she could get custody of the children if he "disappeared". On that basis, and there being nothing else in the evidence at trial suggestive of any other reason the appellant would wish her former husband dead, the sentencing judge appeared to proceed to sentence on the basis that the appellant's only motive was to secure custody of all her children. At one point in his sentencing remarks, his Honour described this as "obscure, even mysterious" since there was no evidence of family violence or obvious antagonism over the custody of the children despite there being Family Court proceedings where the question of custody was in contest.

His Honour was not satisfied to the criminal standard that the appellant was motivated to intentionally derail or pervert those proceedings. He was satisfied that the offending was aggravated by the fact that it involved preplanning and the implication of others as accessories, and that the intended victim of the murder sustained serious injuries and suffered ongoing mental trauma.

His Honour also expressed the view that a desire to be with one's children (even, it would seem, if that motivated the appellant to contract to have their father killed) is different from, and not as serious as, being motivated to kill to secure a financial or other material advantage and soliciting another to secure that objective. He concluded that to the extent that the appellant's motive was able to be discerned from the evidence, it was "a crime of passion rather than one of profit" and that this mitigated the objective seriousness of her offending. His Honour also took into account, in mitigation on sentence, the fact that the appellant had no previous criminal record, that she was a person of previous good character and that she was unlikely to reoffend.

He made the following observation in relation to the maximum penalty and the applicable standard non-parole period:

For the present offence there is a maximum possible penalty of twenty five years imprisonment. There is a standard non-parole period of ten years. However, I do not regard this as a case where the imposition of such a minimum term as the standard non-parole period in this case would be appropriate.

In particular, notwithstanding the objective seriousness of the offence, the apparent absence of comprehensible motivation causes me to impose a lesser non-parole period than the standard non-parole period. In the range of offences involving soliciting to murder, there are commonly motivations involving the diversion of legal proceedings and financial gain. These are the common ones. Love gone wrong is another one. Hatred and revenge are other motives which do appear from time to time. In this case, as I have said, it is difficult to discern a motivation but there are certainly many worse motivations to crime than the desire to be with one's children, even if that desire provokes, as the jury has found in this case it did, seriously wrong conduct.

Having regard to the appellant's lack of criminal antecedents, her motives (insofar as they were discernible), and that separation from her children would make the conditions of custody more onerous, his Honour made a finding of special circumstances.

The Crown appeal against sentence in 2009

The Crown relied upon three grounds of appeal: the first that the sentencing judge erred in finding the offence fell below the mid-range of objective seriousness; the second that he erred in making findings with respect to the appellant's motive for the offence which lessened its objective seriousness; and, third, that the sentence was manifestly inadequate.

Grounds 1 and 2

In the Court of Criminal Appeal, Howie J (McClellan CJ at CL and Grove J agreeing) described the offence as "a very serious example of its kind" and that the appellant's role in initiating the plan to kill her former husband for her own purposes (whatever they might have been), repeatedly encouraging Williams to carry the plan out, arranging payment to him to do so and the cold-blooded nature of the intended killing, coupled with the serious physical injuries and the psychological harm that were inflicted as a consequence, attracted an assessment of offending significantly above the mid-range of objective seriousness and that the sentencing judge had erred in finding otherwise.

As noted at [57] above, on the hearing of this appeal the appellant's counsel conceded in oral submissions that the offending was above mid-range but not "significantly above it". No similar concession was made when the appellant was respondent to the Crown appeal in 2009. In those proceedings the appellant submitted that the sentencing judge was justified in finding the offending was less than the mid-range and that an assessment of objective seriousness by a sentencing judge after trial was an exercise of a discretionary judgment with which this Court should not lightly interfere.

In the view I have taken of the jurisdictional question that is exercised on this appeal, this Court must determine for itself whether it was open to the Court of Criminal Appeal to have allowed the Crown appeal in 2009, based on the case that was presented at that time, including the first ground of appeal which asserts error in the sentencing judge's assessment of objective seriousness, in accordance with House v The King [1936] HCA 40; 55 CLR 499.

In reviewing the reasons for sentence on the Crown appeal, Howie J concluded that because the primary judge did not undertake any principled assessment of the objective seriousness of the offending against an offence in the mid-range of seriousness, there was no proper determination of whether the standard non-parole period should be imposed, or whether there were reasons to depart from it, the approach required by the law as it stood at that time. It was for that reason that the Court was ultimately satisfied that the sentencing discretion miscarried and that the resultant sentence fell so far short of the standard non-parole period that it was necessary to intervene and re-sentence. That being so, the Court did not consider it necessary to determine the other grounds of appeal relied upon by the Crown, including, in addition to the sentencing judge's finding as to objective seriousness, whether there was error in the way the sentencing judge approached the issue of motive (the second ground of appeal) and the weight given to his finding on that question in imposing a non-parole period less than the standard non-parole period.

Given the intersection between the way the sentencing judge dealt with the issue of motive and his assessment of objective seriousness, the first two grounds of appeal can conveniently be dealt with together. If error is made out in respect of either or both grounds, that will likely inform the question whether the sentence was manifestly inadequate, being the third ground of appeal.

As I see it, because this Court is bound to apply the law post Muldrock, consideration of the first ground of appeal does not so much require consideration of whether the sentencing judge was in error in his appointment of the offending as below the mid-range (a finding which was only ever made implicitly) or whether the Court of Criminal Appeal was justified in describing the offending as significantly above the mid-range, but whether the sentencing judge's approach to the assessment of objective seriousness was flawed. An assessment of objective seriousness remains a feature of the process of synthesising the full range of factors relevant to sentence in the approach as mandated by Muldrock, being part of the process of reasoning to arrive at a just and proportionate sentence. In contrast, an appointment of offending relative to the mid-range or to mid-range offending is no longer required for sentencing purposes although it is not an error to do so (see McLaren v R [2012] NSWCCA 284 at [28]-[29]).

In considering the way the sentencing judge dealt with the appellant's motive (or presumed motive), at [80]-[82] Howie J considered the offence of solicit to murder and a range of potential motives a person may have in seeking to have someone murdered. Although this Court is not bound by Howie J's approach to that question, I regard it as both instructive and principled. The appellant does not submit to the contrary. His Honour said:

[80] The offence of solicitation is of such a nature that there is less scope for significant variation in the factual basis for the offence or the degree of culpability of the offender than might be the case with other offences to which a standard non-parole period applies. The intention of the offender will never vary; the death of the victim is always intended. The offence will always be unsuccessful in achieving its intended result. One exceptional mitigating factor would be where the offender having solicited the killing of another later, on reflection, takes action to ensure that the murder does not take place. But generally it will be unusual to find a case of solicitation that is not premeditated. There can be variations in the role played by the offender, so that, for example, it may be less serious if the offender is merely the go-between for the principal and the would-be killer. But again given the nature of the offence, in the normal case the fact that the offender was not the instigator will not be significantly mitigating.

[81] There can of course be variations in the motive or reason for which a person seeks to have another murdered but, given the intended consequence of the offender's actions, there generally can be little mitigation found in the purpose behind the solicitation. An exceptional mitigating factor might be that the offence is a result of provocation or that the offender suffers from some form of mental disturbance at the time of the solicitation. These are matters that reduce the offence of murder and, therefore, would be mitigating of the offence of solicitation to murder. But putting those matters to one side it is unlikely that the motivation for the offence will be mitigating. It is more likely that a particular motivation will be an aggravating factor.

[82] I make these comments because, as will be seen, the ascertainment of the appellant's motivation became a matter of crucial significance to his Honour's determination of the sentence he imposed upon the appellant. With respect, in my opinion the Judge paid far too much attention to this factor and allowed it to distract him from a proper evaluation of the appellant's criminality. Ultimately it became decisive in his decision to depart from the standard non-parole period notwithstanding that he acknowledged the seriousness of the appellant's offending.

His Honour went on to conclude that the consideration given by the sentencing judge to the appellant's motive was seriously flawed:

[90] Having regard to the very serious nature of the offence, it was unlikely that the motive of the appellant in seeking the death of her husband was going to be a factor that would significantly reduce the objective seriousness of the crime or the offender's criminal culpability. Yet, as has already been noted, the substantial part of his Honour's consideration of the seriousness of the offence was taken up with this issue and it was ultimately decisive in his determination of the sentence to be imposed.

[91] In considering this issue his Honour appears to have fallen into the error of converting the absence of a finding of an aggravating factor into a mitigating factor. For example, his Honour was not satisfied that the motive was to "derail or pervert" the pending Family Court proceedings. But this finding did not mitigate the offence because had the offence been so motivated this would have been a seriously aggravating factor and would have resulted in the offence being in the most serious category. Unless his Honour concluded that there was a motive that could truly be characterised as mitigating, the offence remained a very serious one; it simply was not as serious as it might have been had a motive been found that could be characterised as aggravating.

...

[93] ... The fact that there might have been worse motives than a desire to be with one's children does not reduce the objective seriousness of the offence.

...

[102] An offence is not mitigated by the fact that no comprehensible motive can be shown. Motive is like any other aspect of the circumstances surrounding the commission of an offence. The Crown is only required to prove the elements of the crime charged. If the Crown wishes to rely upon motive as an aggravating feature, the Crown must prove it beyond reasonable doubt. If the accused contends that the motive is a mitigating factor, the accused is required to prove it on the balance of probabilities. If the court cannot determine what motivated the offender, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing.

This Court was not taken by either counsel to any authority to the contrary of the consideration Howie J gave to the significance of motive for sentencing purposes generally, or as they apply to the crime of solicit to murder or any authority which supports the distinction the sentencing judge drew between the financial, quasi-financial or non-financial motives that may prompt a person to have another kill on their behalf or his attribution of graduating levels of moral culpability referable to motives of that kind. In Quealey v R [2010] NSWCCA 116 at [24]-[27], Latham J reviewed a number of decisions where the motive for an offence was retribution or vigilantism, including R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94, Barlow v R [2008] NSWCCA 96; 184 A Crim R 187, R v Rayment [2010] NSWCCA 85, and R v Dole; R v Nguyen [2010] NSWCCA 101. These cases emphasise that no countenance is to be given to a person's resort to criminal conduct as a response to another's misconduct, however genuinely motivated an offender may be to right a perceived wrong or to exact revenge. As her Honour said at [28], these authorities establish that while such motives might provide an explanation for the infliction of intentional violence, they do not reduce the moral culpability of an offender who embarks upon deliberate and considered criminal conduct of that kind to any significant degree. The same obtains, in my view, with even greater force in this case.

Was the sentence manifestly inadequate?

In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] Gleeson CJ and Hayne J said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reason is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

In the submission filed in support of the Crown appeal in 2009, and maintained in the submissions filed in support of this appeal, the Crown contends that the sentence failed to adequately reflect the seriousness of her offending, including what the Crown identified as an aggravating factor additional to those found by the sentencing judge, since the intended victim of the offence was the father of her children who would have been deprived of their father and his role in their lives were the attack to have proved fatal (see Benitez v R [2006] NSWCCA 21; 160 A Crim R 166 at [44]). In the Crown submissions, the sentencing judge's failure to make a proper and informed assessment of the objective seriousness of the offending was compounded by using the appellant's motive, such as it appeared from the evidence at trial, to reduce the objective seriousness of her offending (seemingly by reducing her moral culpability for it). Although the Crown submissions on the present appeal departed from the Crown's submissions on the Crown appeal, post Muldrock, as to the significance of the standard non-parole period, the Crown maintained the submission that, in the sentencing remarks and in the sentence actually imposed, the sentencing judge failed to pay proper heed to the significance of the maximum penalty and the need for the sentence to reflect the fact that an intention to kill is an essential ingredient of the offence of solicit to murder.

Although the Crown did not submit that there was any proper warrant for the imposition of the maximum penalty in this case (having made no submission that it might be viewed as in, or close to, a category of worst case), a sentence of 10 years with a non-parole period of 6 years for the gravity of the appellant's offending, even with consideration given to her favourable subjective circumstances, was to fail to reflect the fact that to solicit a person to kill someone is itself a most serious offence and the appellant's conduct is a most serious example of it (see R v Potier [2004] NSWCCA 136 at [55]).

In this Court, the appellant submitted that the Crown has failed to establish that the sentence was manifestly inadequate irrespective of whether that assessment is informed by the decision of the Court of Criminal Appeal in 2009 or by this Court undertaking its own enquiry without reference to that decision. In the appellant's supplementary submissions, it was suggested that the view of the Court of Criminal Appeal as expressed by Howie J at [112] that the original sentence was "half of what it should have been" was an analysis infected with Muldrock error, since the Court was comparing the original sentence with the sentence it would have imposed were it not hearing a Crown appeal. There is some force in that submission. Although I consider the approach by Howie J to the evidence bearing upon the objective seriousness of the offending to be a principled approach, and although I regard his Honour's consideration of the relevance of the issue of motive to the appellant's moral culpability supported by authority both in the context of an offence of solicit to murder and more generally, on my own review of the evidence I am driven to conclude that the offending reveals a high degree of objective seriousness and serious moral culpability in the absence of any significant factors mitigating that finding. I am unable to see how the appellant's desire to be rid of her former husband to secure her custody of their children by having him killed does anything at all to mitigate her offending. In the result, having regard to the combination of aggravating factors, including the circumstances in which the murderous attack was launched and the injuries that were inflicted, and the relatively modest weight that can be afforded her prior good character, I am satisfied that the sentence is unreasonable and plainly unjust. In this case there was such a disconnect between the offending and the factors bearing upon the appellant's subjective circumstances that the only conclusion is that the sentence imposed at first instance was "manifestly too short" (see Dinsdale at [6]).

The pendency of the Family Court proceedings to the commission of the offence, coupled with the evidence that the appellant wanted her former husband to "disappear", lends very great weight to the submission, advanced by the Crown in 2009, that in contracting Williams to have her former husband killed the appellant was, by necessary inference, attempting to interfere with the due process of the Family Court proceedings by foreclosing on their outcome in her favour. As the Crown pointed out, the appellant admitted under cross-examination that the proceedings in which her former husband sought custody were costly and that a hearing which was listed in October 2006 would have necessarily entailed more expense. The fact that these additional dimensions to her wish to have her former husband killed were not proved to the satisfaction of the sentencing judge to the criminal standard was an unduly favourable finding which, in the circumstances of a review of the Crown appeal, I would not disturb.

Residual discretion

Manifest error having been established in the sentence imposed and patent error in the reasoning of the sentencing judge, having regard to the limiting purpose of Crown appeals the question whether the Crown appeal ought to have been allowed does not admit of an easy answer. While the principles are clear (see Malvoso v R [1989] HCA 58; 168 CLR 227; 43 A Crim R 451; Everett v R [1994] HCA 49; 181 CLR 295; 74 A Crim R 241; R vWall [2002] NSWCCA 42; 71 NSWLR 692 at [70]) and I can discern nothing in the approach of the Court of Criminal Appeal to suggest that the Court was unaware of them (Howie J having made it clear at [14] that the sentence ultimately imposed on re-sentence was reduced by reason of double jeopardy principles), the evidence available at that time bearing on the exercise of the residual discretion cannot be readily disentangled from the evidence upon which the appellant relies in seeking to have the residual discretion exercised in her favour at this time.

Another difficult question which also does not admit of an easy answer is whether the sentence imposed by the primary judge was so outside the appropriate range for offending against s 26 of the Crimes Act (not using the standard non-parole period in s 54B of the Crimes (Sentencing Procedure) Act prescriptively, using it as a yardstick or indicator of an appropriate sentence) that intervention is required to govern and guide sentencing courts and to avoid a manifestly inadequate sentence being undisturbed (per Barwick CJ in Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at [310] as applied in Green v R; Quinn v R at [1] and [36]). Since no submissions were directed to this question and where no comparative cases were referred to, I do not regard it an exercise that should be undertaken on this appeal.

Doing the best I can to make an informed judgment in this case, and after taking into account the principle of double jeopardy and the exercise of the residual discretion to dismiss the Crown appeal at this time despite the erroneous leniency of the sentence, I have concluded that the Crown appeal should be allowed (or would have been allowed in 2009 absent Muldrock error).

The exercise of the residual discretion was considered most recently in R v Reeves [2014] NSWCCA 154 where the Court (Bathurst CJ, Hall and RA Hulme JJ) said:

[13] In exercising the residual discretion, it is for the appellate court to answer two questions:

(1) Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from.

(2) To what extent, if the appeal is allowed, the sentence appealed from should be varied: Green v R; Quinn v R at [35].

[14] In Green v R; Quinn v R it was noted by the plurality (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen [1997] HCA 44; 137 CLR 293 at 310 [53] (Barwick CJ), that the primary purpose of Crown appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": at [1]. This was similarly expressed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]:

"... the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong."

[15] This purpose is a "limiting purpose" that does not extend to the general correction of errors made by sentencing judges. Rather, it provides a framework within which to assess the significance of factors relevant to the exercise of the discretion: Green v R; Quinn v R at [36].

[16] Accordingly, it has been held that it may be appropriate for the appellate court, in the exercise of its discretion, to dismiss a Crown appeal where "circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice": Green v R; Quinn v R at [2].

The interests of justice require the imposition of appropriate sentences for serious offending (see R v Loveridge [2014] NSWCCA 120 at [264] citing R v Gavel [2014] NSWCCA 56 at [126]). This is a matter to which I have given predominant weight in declining to exercise the residual discretion in the appellant's favour.

I am also of the view, however, that the sentence imposed on re-sentence in 2009 cannot be sustained (principally because it is infected by Muldrock error) and that a lesser sentence than that imposed by the Court of Criminal Appeal should be imposed, utilising the maximum penalty of 25 years and the standard non-parole period of 10 years as important indicators to an appropriate sentence.

In considering the re-sentencing discretion that is enlivened by that finding, and after taking into account the appellant's subjective circumstances following the successful Crown appeal in 2009, as deposed to in the affidavits filed on this appeal, including the significant personal advancements she has made while in custody since then (despite the active steps she has taken to challenge her conviction after her conviction appeal was dismissed and the maintenance of her denial of guilt); the fact that her classification as a prisoner was downgraded as a consequence of the very significant increase in her sentence in 2009 with a corresponding diminution of her conditions in custody; and the fact that she has already once been through a Crown appeal, I would preserve the finding of special circumstances by the sentencing judge and impose a sentence of 12 years with a non-parole period of 8 years.

The orders I propose are as follows:

1. The appeal is allowed.

2. The sentence imposed by this Court on 20 March 2009 is quashed.

3. In lieu thereof the appellant is sentenced to a term of imprisonment of 12 years comprised of a non-parole period of 8 years and a balance of term of 4 years. The sentence is to commence on 25 September 2008. The appellant is eligible to be released to parole on 24 September 2016.

R A HULME J: I agree with the reasoning and conclusions of Leeming JA in relation to the nature of this Court's jurisdiction.

To my mind there can be no doubt that the subject matter of the "quasi-appeal", as Leeming JA has referred to it, is the sentence imposed by this Court. There was an application to the Supreme Court for an inquiry into a sentence (s 78(1)). The sentence in respect of which the inquiry was sought was the one imposed by this Court in 2009, not that which was imposed in the District Court in 2008. Upon referral of the whole case to this Court to be dealt with as an appeal under the Criminal Appeal Act (s 79(1)(b)) this Court is required to deal with the case so referred in the same way as if Ms Louizos had appealed against "the ... sentence" (s 86). As Leeming JA has pointed out (at [15]), there is only one extant sentence, that which was imposed in 2009.

This is not the first occasion the Court has had a sentence previously imposed by it referred under Part 7 of the Crimes (Appeal and Review) Act. In none of the three cases of which I am aware has it been doubted that the sentence in question is the one imposed by this Court.

In Kazzi v R [2014] NSWCCA 73, the appellant had been resentenced by this Court upon a successful Crown appeal: R v Kazzi [2008] NSWCCA 77. It was contended that there had been Muldrock error in the resentencing exercise but the contention failed. In the course of discussing generally the nature of the jurisdiction being exercised by the Court, Leeming JA said (at [9]):

"the sentence imposed in 2008 by this Court pursuant to s 5D(1) is taken to be a sentence supporting a further appeal".

Button J, with whom R S Hulme AJ agreed, referred (at [40]) to a submission made by the appellant's counsel that there was an issue as to whether it was this Court's sentence, or the original sentence imposed in the District Court, that was the subject of the appeal. But counsel, upon reflection, conceded that the District Court sentence had been quashed and the appeal was concerned with this Court's sentence. The judgment of Button J continued in apparent acceptance of this approach.

In RJA v R [2014] NSWCCA 89 and MLP v R [2014] NSWCCA 183, appeals against the severity of sentences had been allowed and this Court had resentenced: RJA v R [2008] NSWCCA 137; 185 A Crim R 178 and MLP v R [2006] NSWCCA 271; 164 A Crim R 93. The matters came back to this Court via Pt 7 referrals. Muldrock error in the resentencing exercises by this Court was established. In both cases the Court turned immediately to a consideration of whether a lesser sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act.

I agree with Fullerton J as to the disposition of this appeal but I do so through a reasoning process consistent with the jurisdictional issue as explained by Leeming JA. The starting point is that error has been established (and conceded) in the reasoning of this Court in 2009 as to the sentence it imposed. A question of resentencing is thereby enlivened. Her Honour has expressed conclusions in relation to the objective gravity of the offending with which I agree. She has also considered the appellant's subjective circumstances including the evidence provided in the event of resentence. I am of the view that a lesser sentence is warranted and should have been passed: s 6(3) Criminal Appeal Act. Although her Honour has also factored the "double jeopardy" principle that formerly applied to Crown appeals into her assessment of sentence, I nevertheless agree that the 12 year term, with a non-parole period of 8 years, is the lesser sentence that is warranted.

**********

Decision last updated: 31 October 2014

Medium Neutral Citation:	Louizos v R [2014] NSWCCA 242
Hearing dates:	9/05/2014
Decision date:	31 October 2014
Before:	Leeming JA at [1]; Fullerton J at [40]; R A Hulme J at [108]
Decision:	1. The appeal is allowed. 2. The sentence imposed by this Court on 20 March 2009 is quashed. 3. In lieu thereof the appellant is sentenced to a term of imprisonment of 12 years comprised of a non-parole period of 8 years and a balance of term of 4 years. The sentence is to commence on 25 September 2008. The appellant is eligible to be released to parole on 24 September 2016.
Catchwords:	CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error - solicit to murder - referral of "the whole case" - significance of motive for sentencing purposes
Legislation Cited:	Crimes Act 1900 (ACT), s 427(2) Crimes Act 1900 (NSW), s 26 Crimes (Appeal and Review) Act 2001 (NSW), Part 7 Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B Criminal Appeal Act 1907 (UK), s 19 Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6, 7, 26(a) Criminal Code (WA), s 689 Sentencing Act 1995 (WA), s 140(1)
Cases Cited:	A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 231 A Crim R 183 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Barlow v R [2008] NSWCCA 96; 184 A Crim R 187 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Benitez v R [2006] NSWCCA 21; 160 A Crim R 166 Burrell v The Queen [2008] HCA 34; 238 CLR 218 Carlton v R [2014] NSWCCA 14 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 Everett v R [1994] HCA 49; 181 CLR 295; 74 A Crim R 241 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 House v The King [1936] HCA 40; 55 CLR 499 Imnetu v R [2014] NSWCCA 99 JJT v R [2006] NSWCCA 283; 67 NSWLR 152 Kazzi v R [2014] NSWCCA 73 Kearns v R [2011] NSWCCA 103; 213 A Crim R 150 Kentwell v The Queen [2014] HCA 37 Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 MLP v R [2014] NSWCCA 183 McLaren v R [2012] NSWCCA 284 Mallard v R [2005] HCA 68; 224 CLR 12; 157 A Crim R 121 Malvoso v R [1989] HCA 58; 168 CLR 227; 43 A Crim R 451 Mickelberg v R [1989] HCA 35; 167 CLR 259 Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 Quealey v R [2010] NSWCCA 116 R v Caborn-Waterfield [1956] 2 QB 379 R v Chard [1983] 3 All ER 637 R v Dole; R v Nguyen [2010] NSWCCA 101 R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151 R v Gavel [2014] NSWCCA 56 R v Gunn [No 1] (1942) 43 SR (NSW) 23 R v Gunn [No 2] (1942) 43 SR (NSW) 27 R v Loveridge [2014] NSWCCA 120 R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94 R v Potier [2004] NSWCCA 136 R v Rayment [2010] NSWCCA 85 R v Reeves [2014] NSWCCA 154 R v Wall [2002] NSWCCA 42; 71 NSWLR 692 R v Way [2004] NSWCCA 131; 60 NSWLR 168 RJA v R [2008] NSWCCA 137; 185 A Crim R 178 RJA v R [2014] NSWCCA 89 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783
Texts Cited:	R Pattenden, English Criminal Appeals 1844-1994, Clarendon Press, Oxford, 1996
Category:	Principal judgment
Parties:	Freda Louizos (Appellant) The Crown (Respondent)
Representation:	Counsel: I McLachlan (Appellant - hearing) T Game SC and J Roy (Appellant - submissions filed after the hearing) V Lydiard (Crown) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2008/599
Decision under appeal	Jurisdiction: 9004 Citation: [2009] NSWCCA 71 Date of Decision: 2009-03-20 00:00:00 Before: McClellan CJ at CL; Grove J; Howie J File Number(s): 2008/599