Achurch v R

Supreme Court of NSW|2014-06-03|Before: Bellew J

Judgment 1Darush Majid ("the applicant") makes application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 ("the Act") for an inquiry into the sentences imposed upon him by Judge Puckeridge QC in the District Court on 18 December 2008. 2On 22 April 2008 a jury returned a verdict of guilty in respect of each of three counts against the applicant. The first two counts alleged offences of aggravated sexual assault upon a victim aged 15 years. Each of those offences was contrary to s. 61J of the Crimes Act 1900 NSW and each carried a maximum penalty of 20 years imprisonment, with a standard non-parole period of 10 years. 3The third count of which the applicant was found guilty was an offence of detaining for advantage contrary to s. 86(1)(b) of the Crimes Act. That offence carried a maximum penalty of 14 years imprisonment. No standard non-parole period was prescribed. 4The applicant was sentenced by his Honour as follows: (i)in respect of count 1, a period of 12 years imprisonment, with a non-parole period of 9 years; (ii)in respect of count 2, 14 years imprisonment with a non-parole period of 10 years imprisonment; and (iii)in respect of count 3, a fixed term of 8 years imprisonment. 5The total effective sentence was one of 14 years and 6 months imprisonment, with a non-parole period of 10 years and 6 months imprisonment. 6The applicant has submitted that the matter should be referred to the Court of Criminal Appeal as an appeal pursuant to the Criminal Appeal Act 1912. In making that application the applicant has argued that there is a doubt or question as to a mitigating circumstance, namely that the sentence imposed upon him was infected by error in light of the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. The principles which apply to an application such as this are set out in full in The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468 at [5]-[6].

THE APPLICANT'S SENTENCE 7It is not necessary for the purposes of the present application to set out the circumstances of the applicant's offending. The sentencing judge did so at some length (at ROS 1 - 5) before finding (at ROS 6) that the applicant had admitted his guilt following the jury's verdict, and had expressed remorse for his actions. His Honour took this into account along with evidence given by the applicant as to difficulties he had experienced in his youth (commencing at ROS 11). His Honour also took into account (at ROS 13-15) two psychological reports which were tendered before him. 8His Honour concluded (at ROS 15) that the offending was "serious" and noted (at ROS 16) that in respect of count 1 it was aggravated by the fact that the applicant was in a position of authority. He also concluded (at ROS 16) that the emotional harm to the victim of the offending was "substantial". His Honour then said (at ROS 16): "I do take into account in balancing the mitigating factors the remorse which the offender has now expressed. I also take into account his background and the evidence which he has given as to events which has (sic) occurred in his past life, and the evidence and history which he gave to Mr Tim Watson-Munro. Consideration of that evidence is such however that I accept the submission that has been made by the Crown that whilst his background and his drug abuse may have had some effect on his impulse control he, the offender, knew that what he was doing was wrong. I accept that the offender by his admission now of guilt and from what has been stated in his statement to the court, exhibit 1, accepts responsibility for his actions and for the wrong which he has committed on the victim". 9His Honour concluded (at ROS 17-18): "It had been put on behalf of the offender that the offence (in count 1) was not in the mid range of objective seriousness. The offence subject of the first count and the offence the subject of the second count carries (sic) a standard non-parole period of ten years. It is in relation to that standard non-parole period that the court was addressed as to whether the offence fell in the mid range of seriousness or not. I accept in relation to the offence (in count 1), balancing those matters which I have previously considered and with the absence of calculated planning by the offender, that it does not fall within the mid-range but not significantly below it. The offender took advantage of a young person and ought to have known better. I would consider that the appropriate sentence in relation to the first count would be a period of imprisonment of twelve years and a non-parole period of nine years. I have taken into account the background of the offender and taken into account the effect of what he observed and saw in the turmoil in Afghanistan and the effect of what occurred when a bomb went off in the vicinity of his home. Having taken that into account, I do not consider that there should be any further discount in respect of that non-parole period of nine years. In respect of the second count which as I have stated is of a more calculated nature I consider that in the circumstances of that offence a standard non-parole period should apply. The sentence in relation to that offence will be a period of a imprisonment of fourteen years with a non-parole period of ten. In respect of the third count, again I have taken into account the vulnerable position of the victim and that the purpose of the detention was to obtain an advantage, namely sexual gratification. I will (sic) consider the period of imprisonment appropriate for that offence would be a period of imprisonment of eight years. In view of the non-parole period which I have set in respect of the first and second count, I do not propose to impose a non-parole period". 10His Honour then proceeded to impose the sentences that I have previously outlined. 11The applicant sought leave to appeal to the Court of Criminal Appeal against the sentences imposed and advanced five separate grounds in that regard. The Court of Criminal Appeal found that the sentencing judge had erred in calculating the head sentence in respect of the second count. Leave to appeal against sentence was granted, and the sentence of imprisonment on the second count was quashed. The remaining grounds of appeal were dismissed. The effect of the Court's orders was that the total term imposed in respect of the second count was reduced from one of 14 years imprisonment to one of 13 years and 4 months imprisonment (see Majid v R [2010] NSWCCA 121). 12One of the grounds advanced by the applicant before the Court of Criminal Appeal was that the sentences were manifestly excessive. In determining this ground Johnson J (with whom Simpson and McCallum JJ agreed) said the following (at [63]): "[63] The Applicant, then aged 25 years, committed separate and serious sexual assault offences upon a 15-year old girl. Having regard to the employment relationship between the Applicant and the victim, the offences constituted a breach of trust on the part of the Applicant. The Applicant used force and penile/vaginal intercourse took place on both occasions. The standard non-parole period had direct application to this case as the Applicant was convicted after trial. The sentencing Judge assessed the first sexual assault offence as not falling within the mid-range but not being significantly below it, and the second sexual assault offence was assessed as lying within the middle of the range of objective seriousness, so as to attract application of the standard non-parole period. These assessments with respect to objective seriousness were not challenged in any ground of appeal. [64] The second offence involved a repeated sexual assault offence against the victim committed about a month after the first offence. Both were serious offences involving the taking of the victim to an isolated place so that the Applicant could use her, without her consent, for his own sexual purposes. [65] The Applicant's criminal history revealed a range of offences for which non-custodial sentences had been passed. It may be inferred that the Applicant's troubled and traumatic childhood in Afghanistan had been taken into account in his favour on sentence on more than one occasion. However, by December 2006, the Applicant had been living in Australia for 13 years and had been raised and educated here and was in gainful employment. [66] The application and operation of the standard non-parole period provisions to the sentencing of the Applicant assist an understanding of the length of the sentences imposed. It has not been demonstrated that the sentences imposed were unreasonable or plainly unjust (my emphasis)."

THE SUBMISSIONS OF THE PARTIES 13On behalf of the applicant it was submitted that the standard non-parole period was a dominant factor, both at first instance and on appeal, and that the outcome in each case was "heavily influenced by the prevailing approach mandated by R v Way (2004) 60 NSWLR 168 to the sentencing of offenders for standard non-parole period offences". 14It was submitted, in particular, that Johnson J's reference to the standard non-parole period having "direct application" was a clear error. In this regard, reliance was placed on the judgment of the High Court in Muldrock (supra) at [29] as well as the judgment of the Court of Criminal Appeal in Achurch v R (No 2) [2013] NSWCCA 117 at [70]. 15Finally, it was submitted that the present case was a clear example of both the sentencing judge, and the Court of Criminal Appeal, giving determinative significance, in respect of counts 1 and 2, to the application of the standard non-parole period. This, it was submitted, was evident from the remarks of the sentencing judge extracted at [9] above, and from the observations of Johnson J at [63]-[66]. 16Counsel for the Attorney-General submitted that a doubt or question as to any mitigating circumstance could not arise by reference to a Muldrock type error. However as Johnson J pointed out in The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285 at [17], such a submission cannot be sustained in light of the decision of the Court of Appeal in Sinkovich v Attorney-General of New South Wales [2013] NSWCA 383. 17Counsel for the Attorney-General further submitted that careful consideration needed to be given to the role that the standard non-parole period played in the sentencing process, both at first instance and on appeal. It was submitted that merely showing that the sentencing judge had sentenced, pre-Muldrock, by following the dictates of Way was not sufficient to demonstrate error, and that what was required to be ascertained in such a case was whether reliance on Way had sufficiently infected a sentence with error, such that intervention was warranted (see generally Butler v R [2012] NSWCCA 172). 18It was submitted that the sentencing judge had considered the entirety of the objective and subjective features of the case before reaching his conclusions and that there was accordingly no error in that regard. In respect of the decision of the Court of Criminal Appeal, counsel for the Attorney-General appeared to acknowledge that Johnson J's reference to the standard non-parole period having "direct application" was of some significance. However, it was submitted that it was necessary to read and consider that observation in light of the entirety of the judgment and that when such an approach was taken, it was evident that Johnson J had done nothing more than view the standard non-parole period as benchmark. 19Finally, it was submitted that there was nothing arising out of the judgment of Johnson J which indicated that his Honour had adopted a two-stage approach to the question of sentence.

CONSIDERATION 20In Muldrock (supra) the High Court concluded at [25] that it was an error to categorise s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 as being framed in mandatory terms which required the court to use the standard non-parole period as the starting point for determining whether an offence was appropriately assessed as being in the middle of the range. The Court also concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period and held that the correct approach was to identify all relevant factors (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence. 21Further (at [28]) the Court specifically rejected the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle of the range of objective seriousness, followed by an inquiry as to whether there are matters justifying the imposition of a non-parole period which is longer or shorter than that prescribed. 22In arriving at these conclusions, the court held that the decision in Way (supra) was incorrect. 23In my view, there is nothing within the remarks of the sentencing judge in the present case which would indicate that he gave primary or determinative significance to the standard non-parole period, or that he engaged in a two-stage approach to sentencing. As I have outlined, his Honour spent some considerable time identifying the entirety of the aggravating and mitigating factors before arriving at what he considered to be an appropriate sentence. Indeed, his Honour (at ROS 17) expressly noted that he had balanced all of the matters to which he had previously referred in arriving at a conclusion as to the appropriate sentence. 24In support of the submission that error was demonstrated in the judgment of the Court of Criminal Appeal, the applicant placed some considerable reliance upon the decision in Achurch (No 2) (supra). In particular, the applicant drew attention to the fact that in that case, an observation as to the direct applicability of the standard non-parole period had also been made at the time of the sentence being imposed. It was submitted, in effect, that because the Court of Criminal Appeal had found error in that case, the same conclusion should be reached in the case of the applicant. 25I am unable to accept that submission. It reflects an approach which disregards those authorities which make it clear that when determining whether or not there has been a Muldrock-type error, the entirety of the judgment in question must be considered. An approach which has, as its focus, an isolated passage or statement is an erroneous one (see for example Black v R [2013] NSWCCA 265). 26In my view, when the judgment of Johnson J is read as a whole it becomes evident that the entirety of the circumstances were taken into account in reaching the conclusion that the sentences imposed upon the applicant were not manifestly excessive. There is nothing in the Court's judgment which would indicate that the standard non-parole period was used in a determinative (and thus impermissible) way, or that a two-stage process of sentencing was undertaken.

CONCLUSION 27For the reasons set out above I am not persuaded that there was any Muldrock- type error, either when the applicant was sentenced or when he was subsequently dealt with by the Court of Criminal Appeal. 28Accordingly I do not entertain any doubt or question as to the existence of a mitigating circumstance in the applicant's case.

ORDERS 29For the foregoing reasons I make the following order: (i)The application is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2014

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