Butler v R

Judgment 1HIS HONOUR: Decision Application The applicant, Duong Hai Nguyen, has applied for an inquiry into his sentence pursuant to s78(1) Crimes (Appeal and Review) Act 2001 (the Act). The application seeks the referral of the sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant submits that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentence was infected by Muldrock error in that the standard non-parole period was given undue emphasis in the sentencing process, contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3The applicant was convicted after trial of the offences of murder and maliciously inflict grievous bodily harm with intent, contrary to ss19A and 33 of the Crimes Act 1900 respectively. 4The maximum penalty for murder is life imprisonment and it has a standard non-parole period of 20 years. The maximum penalty for maliciously inflict grievous bodily harm with intent is imprisonment for 25 years and it has a standard non-parole period of 7 years. 5On 11 August 2006 RS Hulme J sentenced the applicant as follows (R v Nguyen & Ors [2006] NSWSC 850): Murder: Imprisonment with a non-parole of 23 years commencing 30 January 2006 and expiring 29 January 2029 with a balance of term of 8 years expiring 29 January 2037. Maliciously inflict grievous bodily harm with intent: Imprisonment with a non-parole period of 7 years commencing 30 January 2004 and expiring 29 January 2011 with a balance of term of 2 years and 4 months expiring 29 May 2013. The total sentence imposed on the applicant was imprisonment with a non-parole period of 25 years commencing 30 January 2004 with a balance of term of 8 years expiring 29 January 2037. The applicant's earliest release date was 29 January 2029. 6On 21 December 2007 the NSW Court of Criminal Appeal dismissed the applicant's appeal against conviction and his application for leave to appeal against sentence for the count of maliciously inflict grievous bodily harm (Nguyen & Ors v R [2007] NSWCCA 363). The Court allowed his appeal against sentence for the count of murder. 7Accordingly, the Court of Criminal Appeal re-sentenced the applicant as follows: Murder: Imprisonment with a non-parole period of 20 years commencing 30 January 2006 and expiring 29 January 2026 with a balance of term of 7 years and 4 months expiring 29 May 2033. Maliciously inflict grievous bodily harm with intent: Imprisonment with a non-parole period of 7 years commencing 30 January 2004 and expiring 29 January 2011 with a balance of term of 2 years and 4 months expiring 29 May 2013. The total sentence imposed by the NSW Court of Criminal Appeal was imprisonment with a non-parole period of 22 years commencing 30 January 2004, with a balance of term of 7 years and 4 months expiring 29 May 2033. The applicant's earliest release date is now 29 January 2026. Factual background 8On the night of 6 January 2004 Tien Duc Nguyen was celebrating his birthday with a party in the courtyard of Billiards 2000 in Cabramatta. Around 11pm that night four men, some few seconds apart, entered the front pool hall and walked through it in a purposeful fashion to the rear of the premises. The first man to enter had a handgun and on the Crown case was the applicant. The next two men were ATCN aged 16 and Minh. Lastly came Khanh, who was carrying a samurai sword concealed under some material. 9The applicant advanced some distance with a pistol pointed at, or in the direction of Tien Duc Nguyen and fired at least twice. One of the guests, Linda H Huynh was shot fatally in the chest and another guest, Hien Duc Phan, was shot in the arm. The four men then left. 10The sentencing judge found that the four men were all close friends or acquaintances and that the three men other than the applicant were each actively, knowingly and with premeditation participating in the offences he committed and that each was there either to both provide support and encouragement to the gunman and deter if not deal with any resistance. 11In sentencing the primary judge noted that the applicant was 21 years old at the time of the offence and that he had suffered two major traumas. Firstly his mother had died of cancer in 1996 when he was aged 14. Secondly, the death of his mother led to his father re-partnering the following year which brought about an acrimonious relationship between the stepmother and the applicant which culminated in him leaving the family home at age 15. In the year before the offence, the applicant's sister had died in a car crash. 12Apart from some relatively minor offences committed between the ages of 18 and 20, this was the first major offence committed by the applicant. The applicant had been engaged intermittently in employment since he left school. This was the first time the applicant had been to prison. 13The primary judge regarded the murder offence as substantially above midrange in objective seriousness and because he "saw no subjective factors arguing significantly for lesser sentences", he took the view that the "non-parole period of the sentence for murder should exceed the standard non-parole period". 14The applicant relied upon the following grounds of appeal in the Court of Criminal Appeal: Ground 1: The learned sentencing judge erred by finding that the objective seriousness of the murder offence was above midrange. Ground 2: The learned sentencing judge erred by assessing the objective culpability of Ngo and Khanh as being equal to the objective culpability of the applicant. Ground 3: The learned sentencing judge erred by failing to give effect to his finding of special circumstances in relation to the partial accumulation of sentences. Ground 4: The sentence was manifestly excessive. 15The Court of Criminal Appeal found error in relation to Ground 1 and determined that another sentence was warranted in law. In the sentence proceedings, both the Crown and senior counsel for the applicant had submitted that the objective seriousness of the offences was midrange. The sentencing judge had rejected that submission and had found that it was above midrange. 16Smart AJ (with whom Mason P and Adams J agreed) took issue with a number of the factual findings by the sentencing judge. In particular, he disagreed that the non-concealment by the offenders of their identity without anything further could take the offences above the middle range of objective seriousness. The Court of Criminal Appeal accepted that an intention to kill and premeditation were usual elements in a murder of midrange objective seriousness and that the primary judge had erred in using those features to justify a finding that the offence was above midrange. Accordingly, the Court of Criminal Appeal found the murder to be midrange in objective seriousness and upheld the appeal on the basis of the error found in relation to Ground 1. The application 17The applicant accepted that the test to be applied in determining an application of this kind is whether it appeared that there was a doubt or question as to any mitigating circumstances in the case: s79(2) of the Act. The applicant submitted that such a doubt or question as to sentence may be formed where the material causes the judge considering the matter unease or a sense of disquiet in allowing the sentence to stand. 18The applicant submitted that the mitigating circumstance in this application was the possibility that had proper sentencing principles been applied, either by Hulme J at first instance or the Court of Criminal Appeal on the hearing of the appeal, the resulting sentence would have been less than that actually imposed. The applicant submitted that if he had been sentenced correctly in accordance with the decision in Muldrock, his sentence would have been appreciably less than it currently is. He submitted that this was a mitigating circumstance for the purpose of Part 7. 19The applicant submitted that the standard non-parole period was a dominant factor in both the first instance sentencing and appeal decision outcome. The applicant submitted that the effect of the decision in Muldrock v The Queen was that the decision in R v Way [2004] NSWCCA 131 regarding the proper approach to the sentencing of offenders for standard non-parole period offences was wrongly decided. 20The applicant submitted that Muldrock identified the following errors in sentencing: (i) It was an error to characterise s54B(2) of the Crimes (Sentencing Procedure) Act 1999 as being framed in mandatory terms requiring the Court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. (ii) The High Court specifically rejected a two stage approach beginning with an assessment of whether the offence fell within the middle of the hypothetical range and if it did, turning to an inquiry as to matters that justified a longer or shorter period. (iii) The Court said that the correct approach was to identify all the factors relevant to sentence (including any prescribed standard non-parole periods) and make a value judgment as to the appropriate sentence given all those factors. 21The applicant submitted that although his appeal was successful in one respect, the incorrect principles applied by the sentencing judge remained on re-sentence. In particular, the Court of Criminal Appeal erred by: (i) Adopting a two stage approach to sentencing. (ii) Overstating the significance of the fact that the applicant had been convicted after trial and determining that the standard non-parole had "application". (iii) Giving primary or determinative significance to the standard non-parole period. 22The applicant submitted that upon finding that the murder was in fact midrange in objective seriousness, the Court of Criminal Appeal then imposed the standard non-parole period of 20 years. He submitted that this gave rise to an inference that the Court of Criminal Appeal thought that upon determining that the matter was of midrange objective seriousness, the standard non-parole period must apply. Consideration 23While it can be said that the primary judge appeared to follow the sentencing principles set out in Way, when formulating the sentence that provides little assistance for the applicant in this application. Once the Court of Criminal Appeal identified error in the primary judge's assessment of the objective seriousness of the murder offence and that a lesser sentence was warranted in law, it became necessary for the Court of Criminal Appeal to re-exercise the sentencing discretion. Accordingly, for this application to be successful the applicant has to establish that Muldrock error has occurred in that exercise of discretion. 24It is not sufficient to merely say that because the applicant was sentenced after Way but before Muldrock, therefore error must have occurred in the sentencing process. In Butler v R [2012] NSWCCA 23 Davies J (with whom Whealy JA and Rothman J agreed) said: "26 ... Merely showing that a sentencing judge sentenced pre- Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick." 25A major difficulty for the applicant here is that the Court of Criminal Appeal made no reference to the standard non-parole period, except when recounting (at [136]) the findings by the sentencing judge. It is true that the Court of Criminal Appeal referred to the murder being "midrange of objective seriousness" but there is no error in making an assessment of the objective seriousness of an offence (Zarakas v R [2013] NSWCCA 144 at [36] per Button J (with whom Latham J and Grove AJ agreed)). There is no suggestion in the Court of Criminal Appeal judgment that the Court engaged in an impermissible two stage approach to the standard non-parole period. On the contrary, the Court appropriately considered the objective and subjective factors, using an intuitive synthesis approach. 26Moreover, there is no suggestion in the Court of Criminal Appeal judgment that s54B(2) is framed in mandatory terms requiring the Court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. On the contrary, the Court of Criminal Appeal identified all the factors relevant to sentence and made a value judgment as to the appropriate sentence. This was the very approach recommended in Muldrock. 27It follows that I am not persuaded that "Muldrock error" has occurred in the re-sentencing of the applicant by the Court of Criminal Appeal. Accordingly, I do not entertain any doubt or question as to the mitigating circumstances in the applicant's case. 28The application is refused.