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

Supreme Court of NSW|2015-12-04|Before: Wilson J

The Applicant's Subjective Case as Tendered to the Sentencing Judge

The applicant was born on 25 September 1972. He tendered and relied upon a report from a consultant neuro-psychologist, which noted that the applicant had an ambivalent relationship with his parents, although he enjoyed a good relationship with an aunt and uncle, with the latter (a former police officer) giving evidence on his behalf.
The applicant had a solid employment history, which commenced when he was aged 15 and still at school. He worked in the hospitality industry, later opening and operating a successful restaurant. He was also involved in small but successful property development business.
The applicant gave evidence to the sentencing judge, deposing that he had become involved in the sale of illicit drugs having first been a user of that substance. He claimed that, during 2008, his supplier urged him to purchase larger amounts of cocaine than he had previously and pass some on to friends. The applicant said that he was supplied on credit, but gave most of the drugs away without being paid. Although he was not pressured for payment, the applicant found himself in debt to his supplier, a debt that he contemplated resolving by taking some kilograms of cocaine on consignment from the supplier. The applicant took the drugs and stored them in a vacant apartment that he owned, later repackaging the drug into smaller amounts of 0.75 grams suitable for sale.

The Sentence at First Instance

On 18 March 2007 Sorby DCJ, sitting in the District Court of New South Wales, imposed an overall term of imprisonment of 16 years with a non-parole period of 12 years and 6 months upon the applicant. The sentence imported the discount of 45% for an early plea and assistance to the authorities. The sentence imposed with respect to the s 25(2) offence, it being the only offence which attracted a SNPP, and being the offence against which the offences on the Form 1 document were to be taken into account, was a non-parole period ("NPP") of 10 years 6 months imprisonment, with a balance of term of 3 years and 6 months.

The Proceedings before the Court of Criminal Appeal

The applicant subsequently lodged an appeal to the Court of Criminal Appeal: Buttrose v R [2011] NSWCCA 35. Five grounds of appeal were identified, with the applicant arguing that the sentencing judge had erred in his assessment of the objective seriousness of the offending conduct, was in error in concluding that the offences were part of organised criminal conduct, erred in the degree of accumulation of sentence, had given insufficient weight to the applicant's subjective case, and was in error in the application of the discount. A number of factual errors were highlighted in support of the grounds advanced, factual errors which, for the most part, the Crown conceded had occurred.
In his judgment, McClellan CJ at CL (with whom Hall J agreed; Garling J generally agreeing with additional comments) concluded that error had occurred and, although the applicant had been involved in a large scale retail drug supply operation, the sentence imposed upon him for the s 25(2) offence was excessive, due to errors by the sentencing judge in the assessment of the gravity of the offences and in the application of the discount awarded to the applicant.
The Court also concluded that error had occurred in the degree of accumulation between the two counts contrary to s 25(1) of the DM&T Act, and reduced the sentence imposed with respect to the second count by six months.
Excepting the sentence imposed in relation to the proceeds of crime charge, the sentences imposed at first instance were quashed and, on re-sentence, an overall term of imprisonment of 12 years and 6 months with a non-parole period of 9 years and 6 months was imposed by the Court of Criminal Appeal. The individual sentences were as follows: 1. Count 1: a period of imprisonment of 12 months to date from 26 February 2009 and conclude on 25 February 2010. 2. Count 2: a period of imprisonment of 2 years to date from 26 August 2009 and conclude on 25 August 2011. 3. Count 3: having regard to the offences on the Form 1, a period of imprisonment comprising a non-parole period of 9 years commencing on 26 August 2009 and concluding on 25 August 2018 with a balance of term of 3 years commencing on 26 August 2018 and concluding on 25 August 2021.
In imposing those sentences, the Court of Criminal Appeal had regard to the objective gravity of the offences, which the Court concluded to be above the mid-range of objective seriousness by a modest degree for the s 25(2) offence. McClellan CJ at CL commented at [39] that: "There can be no doubt that the applicant has committed a number of serious offences each related to his involvement in a "large scale retail drug supply" operation. His counsel accepted as much. Irrespective of the numerical outcome from the application of the identified discounts the applicant's offending required a severe sentence."
(It is noted that Garling J, whilst agreeing with the orders proposed by McClellan CJ at CL, observed that he would not have concluded that there had been error by the sentencing judge in assessing the gravity of the offences as "well-above" the mid-range, had the Crown not conceded during the hearing of the appeal that such an assessment was erroneous.)
The Court noted that the applicant was engaged in supplying cocaine of a high degree of purity on a very significant scale, albeit not as an organizer of a supply chain, or through the employment of other individuals as distributors. The applicant's contention that he supplied only to friends and friends of friends was rejected as inconsistent with the objective evidence (which included evidence of supplies to a previously unknown undercover police operative). The financial reward that the applicant received from his illicit activities was noted to be very significant, and was accompanied by the personal gratification derived from recognition from his wide eastern suburbs clientele. The evidence established the applicant's involvement in a significant drug supply arrangement that involved large sums of money.
The judgment of the Court of Criminal Appeal was handed down on 10 March 2011.
On 5 October 2011 the High Court delivered its judgment in Muldrock v The Queen. It was on the basis that a Muldrock error had occurred that the applicant filed his first s 78 application. The significant delay between the High Court's decision being delivered and the applicant making his s 78 application was explained by reference to difficulties with the expeditious determination of an application for legal aid.

The First s 78 Application

The applicant's 2014 application to have his case referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 was determined by Hoeben CJ at CL on the papers on 19 June 2014.
The applicant had contended that it was open to conclude that the sentencing judge had given primary or determinative significance to the SNPP applicable to count 3 in imposing sentence upon the applicant, and the Court of Criminal Appeal, in reducing that sentence only to a limited extent, had also relied upon the important role played by the SNPP with respect that charge.
In determining the application, Hoeben CJ at CL considered the remarks of the sentencing judge, and the principal judgment in Buttrose v R, and determined that there was no basis upon which to conclude that either the sentence imposed at first instance, or that imposed by the Court of Criminal Appeal, were wrongly inflated by giving the SNPP determinative significance, or by approaching the determination of sentence in a two-stage process.
His Honour observed that, beyond a reference to the SNPP as applicable to count 3 when setting out the relevant maximum penalties, neither court had referred to that feature of the matter again. The judgments of both courts focused on the scale and seriousness of the offences, and the matters revealed by the case tendered on sentence for the applicant.
Hoeben CJ at CL refused the application, having concluded that there did not appear to be a doubt or question as to any mitigating circumstance in the case, pursuant to s 79(2) of the CAR Act.

The Appeal to the Court of Appeal

By summons, Mr Buttrose invoked the supervisory jurisdiction of the Court of Appeal, and sought declaratory relief. In its final form, the contention of the applicant was that there were both errors of law and jurisdictional error in the consideration of the first s 78 application.
The Court of Appeal considered whether there was jurisdictional error in the judge failing to be satisfied that there appeared to be a doubt or question as to the existence of a Muldrock error in the sentence imposed by the Court of Criminal Appeal. The Court concluded that there was such error: at [20] - [25] per Beazley P and Leeming JA; [34] per Macfarlan JA.
It is not necessary for the purposes of determining this further s 78 application to set out the nature of the jurisdictional errors found to have occurred.
What is of particular significance in the decision of the Court of Appeal is the Court's conclusion that it appears that there is a doubt or question as to a mitigating circumstance: [26] and [34].

The Supplementary Application

The applicant relies on asserted Muldrock error in the sentence imposed by the Court of Criminal Appeal, arguing that error may be inferentially concluded to be present by reference to the sentence itself, and demonstrated by "the neatness of the arithmetic in the applicant's sentence for count 3" ([34] of the applicant's written submissions). The reference to the neatness of the arithmetic is drawn from Bolt v R [2012] NSWCCA 50, and builds upon what was said in the judgment of Beazley P and Leeming JA in Buttrose v Attorney General, at [22] - [23].
It is contended that, absent the discount on sentence of 45% that was allowed to the applicant at first instance and by the Court of Criminal Appeal, the notional starting point of the sentence imposed upon the applicant for the s 5(2) offence by the latter Court must have been a little over 16 years. The SNPP specified for the offence is 15 years. Since a starting point of a little over 16 years fits with some exactitude against an assessment of the criminality of that offence, carrying as it does a 15 year SNPP, of above the mid-range to a modest degree, the SNPP must have been given impermissible significance.
(Whilst the applicant mounts an argument for reconsideration more broadly of what constitutes Muldrock error, contending that there is a divergence in the manner in which the Court of Criminal Appeal has treated Muldrock error, and asserting that error has occurred where the SNPP is given something less than primary or determinative significance, that contention need not be resolved for the purposes of determining this application. Any divergence, if such divergence exists, cannot, in any event, be resolved by a single justice of this Court.)
The Attorney General, in her written submissions in reply (received and considered pursuant to s 79(4) of the CAR Act) concedes at [26] that it "would be open to the Supreme Court to be satisfied of the existence of a doubt or question" and refer the matter to the Court of Criminal Appeal.
The test to be applied in determining an application of this nature is whether it appears there is a doubt or question as to the convicted person's guilt or as to any mitigating circumstances in the case: s 79 (2) of the Act.
The appearance of a doubt or question is to be distinguished from the reality of such a doubt or question.
Having considered the judgment of the Court of Criminal Appeal in resentencing the applicant I, like Hoeben CJ at CL, cannot conclude on the basis of that material that a Muldrock error has occurred.
There is certainly a degree of mathematical correlation between the sentence imposed upon the applicant for the s 25(2) DM&T Act offence, and the SNPP specified against an offence of that nature, in a matter where the objective gravity of the crime was assessed as modestly above the mid-range of objective seriousness.
However, having considered all of the features of the case against the applicant that was presented at sentence, and the subjective case that was before the Court, in my view the apparent correlation amounts to no more than a coincidental similarity between the SNPP and the sentence that was imposed upon proper application of sentencing principles.
What does not appear to have been taken into account in the applicant's submissions arguing for Muldrock error are the four serious offences which were before the sentencing court pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, and which must have had the effect of increasing - probably to a significant degree - the sentence imposed for the s 25(2) offence.
When sentence was imposed for the s 25(2) offence, the Court was obliged to take into account four further offences. Although the Form 1 document that was before the sentencing court is not among the material filed in support of the application, it would appear from the factual material that the offences are as follows: 1. Supply prohibited drug contrary to s 25(1) of the DM&T Act, being the supply of thirteen resealable bags containing a total of 8.10 grams of high purity cocaine, to an undercover operative previously unknown to the applicant, for the sum of $2500. On conviction, a maximum penalty of 15 years imprisonment, and/or a fine, may be imposed. 2. A further offence of supply prohibited drug contrary to s 25(1) of the DM&T Act, being the supply of two resealable bags containing a total of 1.44 grams of high purity cocaine, to a male at Woollahra, for a sum of money. On conviction, a maximum penalty of 15 years imprisonment, and / or a fine, may be imposed. 3. An offence of having goods in custody contrary to s 527C(1) of the Crimes Act 1900, being the applicant's possession of $3,740 in cash, suspected of being the proceeds of unlawful drug transactions. On conviction, a maximum penalty of 6 months imprisonment, and/or a fine, may be imposed. 4. A further offence of having goods in custody contrary to s 527C(1), being the applicant's possession of $50,000 in cash, suspected of being the proceeds of unlawful drug transactions. On conviction, a maximum penalty of 6 months imprisonment, and/or a fine, may be imposed.
These were all serious offences which materially added to the overall criminality of the applicant's crimes. It was necessary that the sentence imposed for the s 25(2) DM&T Act offence properly recognise those offences, as a means of ensuring personal deterrence, and to reflect the community's entitlement to exact retribution from the applicant. Such an approach is consistent with what was said by Spigelman CJ in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. At [42] of that decision the then Chief Justice said: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."
The jurisprudence surrounding the approach to be taken by a Court dealing with matters pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 is now well settled. A sentencing court is to impose sentence only for the principal offence and not for the Form 1 offences, but the point of that process is to impose a longer sentence than that which would apply to the principal offence alone. The increase in sentence need not be minor: Dionys v R [2011] NSWCCA 272 at [64] - [65] per Hoeben J (as he then was) and with whom McClellan CJ at CL agreed.
The sentence imposed for the principal offence must reflect the totality of the offender's criminal involvement, as was held in R v Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL: "When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence": R v Bavadra (2000) 115 A Crim R 152 at [30] per Wood CJ at CL, with whom Beazley JA and Greg James J agreed.
See also Butler v R [2012] NSWCCA 23, and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115.
When the upwards adjustment that must have been made to the sentence imposed upon the applicant for the s 25(2) offence is taken into account, any purported correlation between the sentence imposed upon him and the SNPP falls away.
However, the question to be resolved by me is not whether there is a doubt or question as to a mitigating circumstance relevant to sentence, it is whether there appears to be such a doubt or question.
There must be the appearance of a doubt or question in light of the declaration made by the Court of Appeal in Buttrose v Attorney General, and having regard to the reasons given by the Court for making the declaration. Indeed, although I do not conclude that his Honour intended to fetter the consideration by this Court of any further s 78 application made by Mr Buttrose, Macfarlan JA went so far as to say, at [41], "If the plaintiff makes such an application armed with a declaration of the type that I have described, his prospects of success will be improved immeasurably. Indeed, the judge hearing the application will have little choice but to make an order under s 79(1)(b) referring the plaintiff's case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act."
The declaration made by the Court of Appeal is of itself, without anything more, sufficient to give rise to an appearance of a doubt or question as contemplated by s 79(2) of the CAR Act.
Having regard to the matters raised in Buttrose v Attorney General there must be the appearance of a doubt or question as to a mitigating circumstance within the case, and I so find: s 79(2) CAR Act. Having reached that conclusion, I am obliged to refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912: s 79(1)(b) CAR Act.

orders 1. Pursuant to s 79(1)(b) of the Criminal (Appeal and Review) Act 2001 the case of R v Richard William Buttrose is referred to the Court of Criminal Appeal of New South Wales to be dealt with as an appeal under the Criminal Appeal Act 1912. 2. Pursuant to s 79(5) of the Criminal (Appeal and Review) Act 2001 the Registrar of the Criminal Division of the Supreme Court is to advise the Minister of Order 1. 3. The Registrar of the Court of Criminal Appeal is to be advised of these orders, so that a timetable for the hearing of the matter can be fixed.

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Drugs Misuse and Trafficking Act 1985(NSW)

Judgment

Before the Court for determination is an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 ("the CAR Act") by Richard William Buttrose for an inquiry into the sentences imposed upon him on 10 March 2011 by the Court of Criminal Appeal with respect to a number of drug related offences. The current application is supplementary to an application dealt with, and refused, by the Court on 19 June 2014: Application by Richard William Buttrose pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 826 ("the first application").
The Court's determination of the first application was challenged on appeal to the Court of Appeal, in an application for judicial review and declaratory relief. The challenge was upheld in Buttrose v Attorney General of New South Wales [2015] NSWCA 221. A declaration was made by the Court of Appeal, at [29], that, "…an error of law on the part of the original sentencing judge and, on appeal, the Court of Criminal Appeal, may have caused a sentence to be imposed of greater severity than would otherwise have been the case, such as may give rise to a doubt or question as to any mitigating circumstance in the plaintiff's case within the meaning of s 79(2) of the Crimes (Appeal and Review) Act 2001".
Following that decision Mr Buttrose makes further application for an inquiry into the sentences imposed upon him by the Court of Criminal Appeal, pursuant to s 78 of the CAR Act. That provision is in the following terms, "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister."
Specifically, the applicant is seeking a referral of his case to the Court of Criminal Appeal pursuant to s 79(1)(b) of the CAR Act. Section s 79 relevantly provides, "79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) […] or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) […] (3B) […] (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
An application of this nature gives rise to an administrative, rather than a judicial act: see Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at [48]-[50]; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [362]; Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156; (2008) 173 IR 465.
The statutory provisions provide a mechanism for administrative review where there is a basis to conclude that a conviction or sentence may have been entered contrary to proper principles. In Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783, Basten JA observed, at [52] to [53]: "History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible. The fact that the gateway to an inquiry is now by seeking to satisfy a Supreme Court judge of a doubt or question as to a conviction or sentence reflects both the importance placed upon the procedure and an appropriate mechanism to ensure that it is exercised responsibly and, no doubt, sparingly. However, this mechanism militates against an unduly narrow construction of the statutory gateway."
The principles to be applied in determining an application pursuant to s 78 were considered by Johnson J in Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (commencing at [4]) are as follows: 1. The court performs an administrative act in determining such an application (at [5]); 2. Determination of an application under s 78 is not intended to provide an additional avenue of appeal after the usual avenues have been exhausted (at [9]); 3. The jurisdiction exercised under Division 3 of Part 7 of the CAR Act is an administrative function which may be activated when the criminal justice system has run its course, frequently because additional evidence has come to light which may raise a doubt or question as to guilt or sentence (at [10]); 4. The powers available under s 79 are limited to the direction of an inquiry, or referral of the case to the Court of Criminal Appeal, there being no power to quash a conviction or sentence (at [10]); and 5. The nature of the jurisdiction under Part 7 allows for flexibility in the material which may be placed before the court relevant to an application (at [11]).
Here, the applicant contends that there is a doubt or question as to a mitigating circumstance in the case. He submits that the sentence imposed upon him by the Court of Criminal Appeal was infected by what is commonly known as "Muldrock error", that being that the sentencing process miscarried because undue regard was given by the Court to the applicable standard non-parole period ("SNPP") in determining the sentence to be imposed: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 ("Muldrock").

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