Black v R

Supreme Court of NSW|2014-05-16|Before: Bellew J, Hall J

INTRODUCTION 1RHB ("the applicant") makes an application pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 ("the Act") for an inquiry into the sentence imposed upon him following his conviction for the following offences: (i)the manslaughter, on 28 January 1993 at St Helen's Park in the State of New South Wales, of Caleb Paul; (ii)the murder, on 16 February 2004 at Peakhurst in the State of New South Wales, of Isaac Schoer. 2In respect the first of those offences, the applicant was sentenced by Hall J to a non-parole period of 4 years and 6 months imprisonment with a balance of term of 1 year and 6 months. 3In respect of the second, the applicant was sentenced to a non-parole period of 20 years imprisonment with a balance of term of 10 years. 4The overall sentence imposed was one of 30 years imprisonment with a non-parole period of 24 years and 6 months. 5The 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. 6The 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] to [6].

THE SUBMISSIONS OF THE PARTIES 10It was submitted on behalf of the applicant that Hall J (particularly at [100] and [101]) had given the standard non-parole period determinative significance, and had engaged in a two-stage process of sentencing. It was submitted that in light of the decision of the High Court in Muldrock (supra) such an approach reflected error. It was further submitted that the Court of Criminal Appeal had adopted the same erroneous approach. 11It was submitted on behalf of the Attorney-General that a doubt or question as to any mitigating circumstance could not arise by reference to any 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 Court of Appeal in Sinkovich v Attorney-General of NSW [2013] NSWCA 383. 12It was further submitted on behalf of the Attorney-General that although Hall J had made reference to the decision in R v Way (2004) 60 NSWLR 168 in sentencing the applicant, it was clear from a reading of the whole of the remarks on sentence that his Honour had used the standard non-parole period as a benchmark or guideline, rather than as a starting point or a determining factor. 13Counsel for the Attorney-General acknowledged that when the matter was before the Court of Criminal Appeal it had been accepted by both parties that Hall J had been required to sentence the applicant in accordance with the decision in Way (see [26]). However, it was submitted that the Court had approached the application of Way with "due sensitivity to the complexities of applying the standard non-parole period as a benchmark", and had appropriately balanced each of the relevant objective and subjective criteria in dismissing the Crown appeal and in determining the appropriate sentence. It was submitted that there was nothing in the judgment of the Court which suggested that the standard non-parole period had been impermissibly used, or that the Court had engaged in a two-stage process of sentencing.

CONSIDERATION AND CONCLUSION 14In 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 a 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 High Court further concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period, and that the correct approach in sentencing for an offence for which a standard non-parole period was prescribed was to identify all relevant factors (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence. 15Further, (at [28]) the Court rejected the adoption of a two-stage approach to sentencing, which commenced with an assessment of whether the offence falls in the middle of the range of objective seriousness, and which was then followed by an inquiry as to whether there were matters justifying the imposition of a non-parole period which was longer or shorter than that prescribed. 16In arriving at these various conclusions, the High Court held that Way (supra) had been wrongly decided. 17In my view, there is little doubt that Hall J sentenced the applicant according to the decision in Way, and therefore in a manner which the High Court has since concluded was incorrect. In particular, it is evident from his Honour's observations at [101]-[102] that he posed the question of whether there were circumstances which warranted a departure from the standard parole period. 18I am mindful of those authorities which make it clear that in determining whether a Muldrock - type error is established, sentencing remarks are to be read as a whole (see for example Black v R [2013] NSWCCA 265). However, even giving full allowance to that factor it is clear, in my view, that his Honour used the applicable standard-parole period as a starting point in determining an appropriate sentence, before asking whether or not there were factors which justified a departure from it. 19In the Court of Criminal Appeal Basten JA pointed out that Hall J had not made an express finding that the offending fell within the middle range of objective seriousness. However, the fact remains that Hall J posed the question (at [101]) whether there were matters justifying a departure from the prescribed standard non-parole period. That, in my view, reflects the fact that his Honour gave at least primary, and possibly determinative, significance to the standard non-parole period. This is so, notwithstanding his Honour's subsequent reference (at [103]) to the applicable mitigating factors. 20It follows that in my view, Hall J approached the sentence of the applicant in a manner which the High Court subsequently concluded was erroneous. 21As I have previously noted, in the proceedings before the Court of Criminal Appeal the Director of Public Prosecutions accepted that Hall J's approach had been in accordance with Way (per Basten JA at [26]). However, it does not follow from such an acceptance that the Court of Criminal Appeal adopted that same approach in determining an appropriate sentence. On the contrary, it is evident from the judgment of Basten JA (particularly at [46], [48] and [49]) that his Honour had regard to all relevant factors, and used the standard non-parole period, not in a determinative way, but as a guide. There was nothing impermissible in such an approach. 22In these circumstances, I am unable to accept the submission that there is any doubt or question as to a mitigating circumstance, the existence of which warrants a referral of the matter to the Court of Criminal Appeal.

ORDER 23For the foregoing reasons I make the following order: 1.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: 20 May 2014

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