(2002) 324 ALR 562
Davis v R [2015] NSWCCA 90
Kentwell v The Queen [2014] HCA 37
(2002) 252 CLR 601
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
(2011) 244 CLR 120
R v Dehaybi
R v JD [2005] NSWSC 158
R v Way [2004] NSWCCA 131
Source
Original judgment source is linked above.
Catchwords
(2002) 324 ALR 562
Davis v R [2015] NSWCCA 90
Kentwell v The Queen [2014] HCA 37(2002) 252 CLR 601
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120
R v DehaybiR v JD [2005] NSWSC 158
R v Way [2004] NSWCCA 131(2004) 60 NSWLR 168
Regina v F.DRegina v F.DRegina v J.D [2006] NSWCCA 31
Sinkovich v Attorney General of NSW [2013] NSWCA 383
Judgment (6 paragraphs)
[1]
Judgment
This is an application by FD pursuant to ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for referral of his sentence to the Court of Criminal Appeal on the basis that there appears to be a doubt or question as to a mitigating circumstance. The applicant previously applied to Garling J: (Application of FD [2015] NSWSC 285), who dismissed the application.
FD was first sentenced by Levine J in 2005 to a non-parole period of 18 years and a balance of term of six years for the offences of robbery with an offensive weapon; malicious wounding with intent to cause grievous bodily harm and murder. Only the sentence imposed for the murder offence remains to be served. FD is eligible for parole on 22 March 2023.
The relevant facts were extracted at length by Garling J at [9] and come from the judgment of Levine J (adopting the latter's numbering) in R v Dehaybi; R v JD [2005] NSWSC 158:
23 Mrs Rosalie Taylor put an advertisement in the "Trading Post" on 11 March 2003 to sell a diamond engagement ring for $15,000. The rind had been given to her by her son, Simon Taylor, to look after upon the break-up of his engagement. At about 11 o'clock on Friday, 21 March 2003, she received a call on her mobile from a man named "John", who was [FD], who gave her his mobile phone number. Arrangements were ultimately made for her to go to Glebe between 7:30pm and 8:00pm at the address of 1D Wigram Road. The last telephone call she had with the offender [FD] was whilst she, her husband and her son were driving across the Harbour Bridge at about 7.25pm. The Taylors arrived shortly thereafter at Wigram Road, Glebe. Mrs Taylor had the ring inside her bag and also available to her some documents in a envelope relating to valuation. [FD] was standing outside 1D Wigram Road. They introduced themselves. Mrs Taylor walked back to the car and obtained the valuation papers. Outside 1D Wigram Road, [FD] feigned a telephone conversation with his girlfriend and explained that her being away required them to get access to the house via the backyard. That is where [FD] led the party of the three Taylors.
24 Once the backyard, there was a very brief exchange of conversation, which I am satisfied beyond reasonable doubt did not amount to an argument and did not amount to shouting or screaming. This is important with respect to the intrusion into the events of JD. In any event JD burst into the backyard carrying a replica pistol. Thereupon, not surprisingly, there are confused accounts.
25 After what must have been a very short time, the bag had been snatched from Mrs Taylor and there was a pursuit down the lane. JD was tackled by Simon Taylor and whilst he had HD down, Simon was stabbed four times by [FD], two of the wounds being fatal. Prior to that, Mr Robert Taylor had been stabbed in the chest. That [FD] was the stabber has been established beyond reasonable doubt. After the stabbing of Simon Taylor, [FD] and JD ran away. [FD] put that bag under a car and threw the knife in a park where it was found by the police. The bag was also located.
Following conviction and sentence, FD appealed. The appeal against both conviction and sentence was dismissed, as was a Crown appeal against the inadequacy of the sentence: R v F.D; R v F.D; Regina v J.D [2006] NSWCCA 31.
[2]
The Test under s 78
This application for referral to the Court of Criminal Appeal is in part premised upon the proposition that the Court in Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2002) 324 ALR 562. clarified the approach to be taken in such applications, such that it is now clear that Garling J applied the wrong test in rejecting the earlier application. It is necessary to deal with this contention before addressing the balance of the applicant's arguments.
Buttrose was a judicial review of a decision pursuant to s 78. The salient passage from the judgment of Beazley P and Leeming JA appears at [16] and [17]:
[16] The question is whether the decision made by the judge is attended by jurisdictional error. That in turn depends upon the nature of the function his Honour was performing. The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) 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". The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26], "it is the satisfaction of the judge as to the relevant condition which is critical."
[17] We regard that question as having been determined by what was said in Sinkovich at [26], and Mr Buttrose's submission to the contrary, which fell short of asking this Court to find that this aspect of Sinkovich was clearly wrong, as merely formal. In any event, unassisted by authority, we would readily reach the same conclusion, and not merely from the language of s 79, but also its context. The structure of s 79(1) is clear. Only if s 79(1) be satisfied will there be an inquiry or a referral to the Court of Criminal Appeal, in which case the later steps will take place with the benefit of full submissions from the parties. In that context, it is only natural that all that is required is the judge forming the view - ordinarily, on limited material only - that there is a doubt or question.
For completeness, the relevant passages of Basten JA's judgment in Sinkovich v Attorney General of NSW [2013] NSWCA 383, (2013) 85 NSWLR 783 are here set out:
[25] The direction of an inquiry or referral of the case to the Court of Criminal Appeal are actions available under s 79(1) which "may only be taken if" the gateway in sub-s (2) is passed. That is language of confinement: there is no power in the court to take action under s 79(1) unless a specified condition is fulfilled.
[26] The action is to be taken by the Supreme Court, which means a judge authorised by the Chief Justice pursuant to s 75(1). Action can be taken only if it "appears" to the judge that the condition is satisfied. In other words, it is the satisfaction of the judge as to the relevant condition which is critical. (That does not, of course, mean that the judge's decision is for that reason unreviewable, although the grounds and basis of review involve questions which will be addressed below.)
[27] The content of the condition as to which the judge must be satisfied is somewhat obscurely worded. The necessary state of mind requires a "doubt or question" as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case
It is palpably clear from these authorities that the reference to the appearance of a doubt or question is a reference to the satisfaction of the judicial officer undertaking the administrative function. In other words, "all that is required is the judge forming the view…that there is a doubt or question." (Buttrose at [17]) The test is necessarily cast in terms of an appearance because the judge considering the application must do so on the limited material available, and without the benefit of full argument. In such circumstances, it is not possible for a judge to objectively determine that there is a doubt or question.
The application of the s 79 test in decisions since Buttrose has been entirely consistent with this approach: see Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 at [34] per Davies J; Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 432 at [3] per R A Hulme J and Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670 at [14] per Bellew J.
The fact that a judge considering an application pronounces at the end of that consideration that there is, or is not, a doubt or question as to a mitigating circumstance does not, of itself, indicate that the judge has not applied the correct test; see Buttrose per Macfarlan JA at [69]: see also Application by Darush Majid Pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 561 wherein Hulme J said at [25] - [26]:
One matter that does warrant comment is the assertion (at [10]-[11] of the submissions) that Bellew J, in determining the first Part 7 application, applied a test that was contrary to what was subsequently held in Buttrose v Attorney General of New South Wales by saying that he was "not persuaded that there was any Muldrock-type error".
I do not accept that criticism as valid. As I read his Honour's reasons, he was saying that he did not perceive any error; in other words, it did not "appear" to him that there was any such error. Moreover, his Honour was not considering the matter in the absence of some later elucidation of the legislation. The legislation is clear in its terms in that s 79(2) explicitly states that the question is one of whether "it appears there is a doubt or question".
At the beginning of Garling J's judgment, his Honour sets out the terms of ss 78 and 79 and then turns to the applicable principles. At [5] of the judgment, the following appears:
The power which this Court is exercising is one limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. The test to be applied is whether it appears that there is a doubt or question as to any mitigating circumstance in the case. This view may be formed where the material causes "the person considering the matters unease or a sense of disquiet in allowing the sentence to stand": Holland at [6]
Following a review of the facts, the sentence, the proceedings in the Court of Criminal Appeal and the applicant's submissions, his Honour says at [41]:
I am unable to conclude with respect to Levine J's sentence, that there has been any error of a kind that would require a court to intervene. I do not have a doubt or question as to any mitigating circumstances in the case of FD considering the sentence imposed.
It is this passage in Garling J's judgment on which the applicant relies to demonstrate error in the approach to the previous application. I do not accept this submission. The expression "I do not have a doubt or question" is to be understood in the light of his Honour's appreciation of the test reflected at [5] of the judgment. His Honour was doing no more than expressing the subjective view he had formed.
In any event, the application falls to be considered afresh, given the disavowal on behalf of the Attorney General of a submission that the matter be dismissed under s79(3)(a)(ii) of the Act. The submissions advanced by the applicant are substantially the same as those advanced before Garling J.
[3]
The Applicant's Submissions
The applicant's submissions may be summarised as follows:
1. The sentencing judge gave primary or determinative significance to the standard non-parole period and engaged in a two stage approach to sentencing, thus committing "Muldrock error".
2. "Muldrock error" is demonstrated by the "neatness of the arithmetic", relying upon Bolt v R [2012] NSWCCA 50.
3. The applicant's sentences, both individually and in totality, were manifestly excessive, given that the Court of Criminal Appeal disposed of the applicant's appeal against sentence by giving the standard non-parole period determinative significance.
4. Accordingly, there is the appearance of a doubt or question as to the applicant's sentence justifying referral of the matter to the Court of Criminal Appeal.
[4]
The Attorney General's Submissions
The Attorney General's submissions may be summarised as follows:
1. "Muldrock error" cannot be assumed on the basis that a sentence was imposed after R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 but before Muldrock.
2. No error is disclosed in Levine J's sentencing remarks, in that R v Way is cited only in support of the proposition that the mid-range of objective seriousness is represented by the standard non-parole period which is to be taken as a "guide or benchmark".
3. The Court of Criminal Appeal judgment made no mention at all of the standard non-parole period, other than in the course of dealing with the Crown appeal against inadequacy.
4. It is nonetheless open to the Court to conclude that Levine J adopted a two stage approach to sentencing, in that reference to R v Way was followed by a determination of objective seriousness, before considering factors in mitigation and aggravation.
5. There is no "neatness" in the arithmetic in the absence of any indication that Levine J adopted the standard non-parole period as a starting point.
[5]
Muldrock Error
It is common ground that the following passages from the decision of Levine J expose the judge's reasoning towards sentence:
15 In relation to the operation of the Crimes (Sentencing Procedure) Act, I have had regard to the statements made in Regina v Way (2004) 60 NSWLR 168, ….
…
52 It must be recognised that to identify the ambit of the notion of "more serious category of murder" is extremely difficult. The standard non-parole period, as I have said, is 20 years for the crime of murder and is said to relate to a mid-range of objective seriousness. As a result of the decision in Way, that mid-range represented by that standard non-parole period is now to be taken as a guide or a benchmark. It seems to me that if there is one factor that would distinguish "more serious" from "most serious" it is whether or not the act causing death was done with an intention to kill or an intention to inflict grievous bodily harm. I am of the view that no other finding beyond reasonable doubt is open in this trial than that the act which brought about the death of Simon Taylor was done with the intention of causing grievous bodily harm. I have already indicated that I accept that neither offender anticipated at the beginning of the enterprise that anyone would be harmed, let alone killed.
53 The two characteristics to which the Crown refers would place this matter outside the middle range but still not in the most serious category. That is almost the best one can say. There is no doubt minds would differ as to the ambit of all the categories and ranges within the crime of murder, especially when the intention was not to kill but to cause grievous bodily harm.
54 The upshot of this is that I will treat the standard non-parole period as a guide and as I propose partially to cumulate the sentences in relation to those offences to attain the requisite totality, the non-parole period will in the end be less than the standard non-parole period.
At [58] to [62], his Honour considered the applicant's subjective circumstances and the question of remorse and contrition. At [64] to [66], his Honour considered relevant aggravating and mitigating circumstances pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), although ultimately his Honour applied s 21A(5) .
The construction to be placed upon these remarks and the consideration of the current application are to be undertaken having regard to the judgments of Simpson J in Davis v R [2015] NSWCCA 90 (Basten JA and Adamson J agreeing) and Aytugrul v R [2015] NSWCCA 139 (Beazley P and Adamson J agreeing). Both of these decisions post-date Garling J's consideration of the earlier application. That is a matter of some significance, given the tenor of Simpson J's remarks at [33] of Davis:
It is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way. That is particularly so where the conviction is after trial (because Way held that standard non-parole periods did not apply to conviction following pleas of guilty, but stood as "a reference point, or benchmark, or sounding board, or guidepost" (at [122]). Even if the language of Way is not reproduced in the Remarks on Sentence, thus clearly identifying "Muldrock error" (probably more correctly called "Way error"), the strong likelihood is that the Way approach governed the sentencing. If that were not so, it would have to be concluded that the sentencing judge failed to apply the law as it was then understood and widely known. To contend otherwise, in respect of a sentence imposed for an offence to which a standard non-parole period applied between 2006 (Way) and 2011 (Muldrock) is to contend that the sentencing process miscarried and the sentencing judge failed to sentence in accordance with then established principle. As I have said above, such a conclusion is not to be lightly drawn.
To like effect are the remarks in Aytugrul at [20] to [22].
Returning to Levine J's approach to sentence, the passages extracted above establish that his Honour dealt with the Crown submission (that the offence of murder was in "the more serious" range of objective gravity) by distinguishing "more serious" from "outside the middle range" on the basis that the applicant intended to cause grievous bodily harm, as opposed to an intention to kill. His Honour concluded that the most that could be said was that the offence was outside the middle of the range (by inference, above the middle of the range) and that the standard non-parole period could only be treated as a guide in the circumstances of this case.
It is worthwhile to be reminded of the particular terms of the criticism of the High Court in Muldrock, at [26] to [30], towards the approach to sentencing established by Way:
Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word "unless". Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen.
"[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added)
Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.
A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.
The full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellate review and in this way promotes consistency in sentencing for Div 1A offences. It may also increase public awareness of the sentencing process.
I do not accept the submission that Levine J attributed primary or determinative significance to the standard non-parole period. To draw that conclusion from his Honour's remarks would be to ignore completely his Honour's unambiguous reference to the standard non-parole period as a guide and no more. That was a permissible approach to s 54B.
Nor is there any "arithmetic neatness" that demonstrates "Muldrock error". The line of authority relied upon by the applicant accepts that error has been otherwise demonstrated. The "arithmetic neatness" merely reinforces that finding: Bolt v R [2012] NSWCCA 50; Sinkovich v R [2014] NSWCCA 97.
The more contentious aspect of the application is whether his Honour engaged in a two staged approach to sentence. This submission was not specifically advanced before Garling J. The two-staged approach of which the High Court in Muldrock disapproved was described by the Court in Way in these terms:
117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period'"
118 That question will be answered by considering:
(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).
119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.
120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.
The difficulty with the applicant's contention that Levine J approached sentence in this subsequently proscribed way is that his Honour announced that the non-parole period would be less than the standard non-parole period, having regard to the principle of totality, before his Honour turned to a consideration of the aggravating and mitigating circumstances. Thus, there was no occasion for his Honour to reduce or increase the standard non-parole period in order to account for those factors.
Furthermore, his Honour declined in fact to take into account any aggravating circumstance because of the risk of falling into error by way of "double counting", having regard to the findings already made with respect to the objective factors affecting the sentencing exercise (at [63]).
Paying due regard to the force of the remarks in Davis and Aytugrul, and taking into account the whole of the sentencing remarks of Levine J, I cannot discern the appearance of any doubt or question with respect to the sentence imposed upon the applicant. I have reached this conclusion notwithstanding the submission of the Attorney General summarised at 16 above.
Finally, in relation to the applicant's submission that the CCA committed "Muldrock error", I am not persuaded that the Court ascribed any significance to the standard non-parole period in considering the applicant's appeal against the severity of his sentence. As Garling J has already observed, the Court made no reference to the standard non-parole period at all, other than in the course of considering the Crown appeal against inadequacy, and then only to address the Crown's argument that the murder fell into the "more serious category": see R v F.D; R v F.D; Regina v J.D at [110] to [116].
The Court accepted that the task confronting Levine J was one of instinctive synthesis. In the light of that finding, there is no appearance of a doubt or question with respect to the treatment of the applicant's sentence by the Court of Criminal Appeal.
The application is dismissed.
[6]
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Decision last updated: 30 June 2017
Parties
Applicant/Plaintiff:
Ayturgrul
Respondent/Defendant:
R
Legislation Cited (3)
Crimes (Sentencing and Procedure) Act 1999(NSW)s 29A