Butler v R

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

Judgment 1Simon Monteiro ("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 his Honour Judge Norrish QC in the District Court of New South Wales in respect of offences contrary to sections 61J, 195(1)(a) and 117 of the Crimes Act 1900. 2The applicant was found guilty by a jury of the offence contrary to s. 61J. He had earlier pleaded guilty to the other charges. 3The maximum penalty for an offence contrary to s. 61J is 20 years imprisonment. The offence carries a standard non-parole period of 10 years imprisonment. 4Judge Norrish QC sentenced the applicant as follows: (i)in respect of the charge contrary to s. 61J, imprisonment for 11 years with a non-parole period of 6 years and 6 months; (ii)in respect of the charge contrary to s. 195(1)(a), a fixed term of imprisonment of 2 years and 8 months; (iii)in respect of the charge contrary to s. 117, a fixed term of 1 year and 9 months. 5The overall term of imprisonment which was imposed was one of 12 years and 3 months, with a non-parole period of 7 years and 9 months. 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. He 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. 7The principles which apply to an application such as this is are set out in full in The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1468 at [5]-[6].

THE APPLICANT'S SENTENCE 8The sentencing judge delivered lengthy sentencing remarks in which he canvassed all of the relevant factors. He noted (at ROS 32) that most of the submissions "centred on the issue of the standard non-parole period for the aggravated sexual assault offence". He concluded (at ROS 40): "...that the conduct here does reach to the cusp of the mid range of the (sic) seriousness but I am not prepared to conclude that it does fall within the mid range. But it is very close. Noting the factors to be taken into account under s. 21A to which I will return in a moment, I am required, as the Court of Criminal Appeal says, to note of course that the standard non-parole period can still take its place as a reference point, a benchmark, a sounding board, a guidepost along with other assistance from statistics, judgments of other courts and the like. It can have direct relevance as a reference point to be compared with a sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence and of the various aggravating and mitigating factors as well as any other subjective factor that may be present. The reference point has an important role to play in ensuring consistency in sentencing." 9Immediately prior to those observations his Honour had made reference to, and quoted passages from, the decision of the Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168. 10The applicant appealed to the Court of Criminal Appeal against both his conviction and sentence. The Crown also appealed against what was said to be the manifest inadequacy of the sentence (see Monteiro v R; R v Monteiro [2011] NSWCCA 113). Simpson J (with whom Hoeben J (as his Honour then was) and Price J agreed) dismissed both the applicant's appeal against his conviction and the Crown appeal. In respect of the applicant's appeal against his sentence, leave to appeal was granted and the appeal was dismissed. Simpson J (at [240]) said the following: "As I understand it, the Crown bases its appeal substantially upon the degree to which the non-parole period imposed (6 years and 6 months) departs from the standard non-parole period (10 years). This is a case in which, because the appellant was convicted after trial, Pt 4 Div 1A directly applies: see R v Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period is to be imposed unless the sentencing judge finds that there is a basis for departure" (my emphasis).

SUBMISSIONS OF THE PARTIES 11It was submitted on behalf of the applicant that the standard non-parole period applicable to the offence contrary to s61J was a dominant factor, both before the sentencing judge and before the Court of Criminal Appeal. It was further submitted that error was apparent in both proceedings, constituted by the fact that primary significance was given to the standard non-parole period. 12In terms of the approach of the sentencing judge, it was submitted that notwithstanding his Honour's references to the standard non-parole period having been used as benchmark, it was apparent from a reading of the whole of the sentencing remarks that he had adopted a two-stage approach to sentencing, which was erroneous in light of the decision of the High Court in Muldrock. It was further submitted that the same approach had been adopted by Simpson J in the passage set out in [10] above. 13It 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 the Court of Appeal in Sinkovich v Attorney-General of New South Wales [2013] NSWCA 383. 14It was further submitted on behalf of the Attorney-General that the sentencing judge had assessed all relevant factors and had specifically stated that he had regard to the standard non-parole period as (inter alia) a benchmark. It was submitted that in these circumstances no error had arisen. Particular reliance was placed in this regard upon the observations of Davies J (with whom Whealy JA and Rothman J agreed) in Butler v R [2012] NSWCCA 23 at [26] and following. It was further submitted that the sentencing judge had not treated the standard non-parole period in any way which might be regarded as mandatory. 15However, counsel for the Attorney-General took a different position in respect of the judgment of the Court of Criminal Appeal. Counsel accepted that it was apparent that "the CCA judgment was infected by Muldrock error" and that in the circumstances "it would be open to this Court to consider that there is a 'sense of disquiet' concerning the sentence imposed". It was further accepted that in the event that error were found, there was no discretionary basis upon which to refuse to consider the application. Counsel's submissions concluded by expressly accepting that there was sufficient evidence of Muldrock error to justify the application being granted.

CONSIDERATION AND CONCLUSION 16In 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 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. 17Further, (at [28]) the Court 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 were matters justifying the imposition of a non-parole period which was longer or shorter than that prescribed. 18In arriving at these various conclusions, the High Court held that Way (supra) had been wrongly decided. 19In my view, no error arises from the remarks of the sentencing judge in the present case. A reading of those remarks as a whole makes it plain that his Honour had regard to all relevant factors, and used the applicable standard non-parole period as a guide or yardstick. Such an approach is perfectly permissible and entirely consistent with the decision in Muldrock (see Zreika v R [2012] NSWCCA 44 at [43] per Johnson J). 20However, as counsel for the Attorney-General expressly accepted, there was error in the approach taken by the Court of Criminal Appeal. As previously noted, Simpson J expressly stated that the standard non-parole period was to be imposed unless a conclusion were reached that there was some basis upon which to depart from it. In making that observation her Honour was, of course, dealing with the matter in accordance with the decision in Way. The High Court concluded in Muldrock that Way was wrongly decided. In particular, the High Court concluded that it is erroneous, in a case to which a standard non-parole period applies, to ask (as her Honour did) whether or not there are circumstances which warrant a departure from it. In my view, it is clear that the standard non-parole period was used in a determinative way which, in light of the decision in Muldrock is no longer permissible.

ORDERS 21For these reasons I am satisfied that error has been made out, and that such error gives rise to a doubt or question as to a mitigating circumstance, the existence of which warrants a referral of the matter to the Court of Criminal Appeal. 22I therefore make the following orders: (i)The application is granted. (ii)The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

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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