Buttrose v Attorney General of New South Wales

Supreme Court of NSW|2016-05-03|Before: Hulme J, Ms J

Solicitors: Legal Aid NSW Crown Solicitor's Office File Number(s): 2016/28270

DECISION

This is an application made pursuant to Part 7 Division 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (a "Part 7 application") for an inquiry into the sentence imposed upon Darush Majid ("the applicant").
What is sought is a referral of the whole of the case to the Court of Criminal Appeal in order for it to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW). Such a course is authorised by s 79(1)(b) of the Crimes (Appeal and Review) Act but, pursuant to s 79(2), only "if 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". This extends to a "doubt or question" as to the sentence passed: Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at 791-792 [28]-[32].

Sentencing in the District Court

The sentencing remarks of Puckeridge QC DCJ may be summarised: His Honour noted some procedural history; the offences; and the evidence relating to each of the offences. (ROS 1-5) His Honour referred to some procedural aspects of the sentencing proceedings. (ROS 5) His Honour summarised some evidence by and about the applicant. (ROS 6-10). His Honour referred to matters relevant to an assessment of the objective seriousness of the offences. (ROS 10-11). These were: The nature of the sexual penetration. The applicant was in a position of authority. The victim was in a vulnerable position. Substantial emotional harm was inflicted. His Honour referred to some subjective mitigating features. (ROS 11- 12) These were: Remorse the applicant "has now expressed". He now "accepts responsibility for his actions and for the wrong which he has committed on the victim". The applicant's background and events which had occurred in his past life as well as "the evidence and history which he gave to [the author of a psychological report]. The offence in count 1 was opportunistic; it did not have the same calculation and planning as the events with which counts 2 and 3 were concerned. (ROS 12) The offences in counts 1 and 2 carried a standard non-parole period of 10 years. Submissions were made as to their relative seriousness. Having regard to the matters previously addressed and with the absence of planning, the offence in count 1 "does not fall within the mid-range but [is] not significantly below it". An appropriate sentence would be 12 years with a non-parole period of 9 years. (ROS 12) His Honour proceeded to say: "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 9 years." (ROS 12-13) The offence in count 2 was 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 imprisonment of fourteen years with a non-parole period of ten." (ROS 13) Taken into account in relation to the offence in count 3 were the vulnerable position of the victim and the purpose of the detention being to obtain an advantage by way of sexual gratification. A period of imprisonment for 8 years is appropriate. Having regard to the non-parole periods for counts 1 and 2, no non-parole period for the count 3 offence was imposed. (ROS 13) The sentences for count 2 and 3 would be concurrent, but accumulated upon the sentence for count 1. (ROS 13) After a discussion about backdating, his Honour proceeded to formally pronounce the sentences. The sentences for counts 2 and 3 were specified to commence 6 months after the commencement of the sentence for count 1. (ROS 13-14)
The Crown Prosecutor raised with his Honour the fact that he had not made a finding of special circumstances in connection with his imposition of a parole period on count 2 that exceeded one-third of the non-parole period: s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW). In the discussion which ensued it is clear that his Honour had intended to impose a total effective sentence of 14 years for all of the offences, whereby the non-parole period would be 10 years 6 months, precisely three-quarters of the total term. The Crown Prosecutor took it as an indication that special circumstances were found on the basis of accumulation of sentences. However, the effect of the individual sentences was that the total effective sentence was one of 14 years 6 months with a non-parole period of 10 years 6 months.

The appeal to the Court of Criminal Appeal

There were five grounds of appeal: Ground 1 - his Honour erred in failing to express the sentences in accordance with s.44 Crimes (Sentencing Procedure) Act 1999 in that, when sentencing for Count 2, his Honour set a total sentence of 14 years with a non-parole period of 10 years, contrary to s.44(2), and with no finding of "special circumstances" for the extension of the total sentence by approximately eight months. Ground 2 - his Honour gave insufficient weight to the fact that the Applicant was suffering from post-traumatic stress disorder at the time of, prior to and after the commission of these offences. Ground 3 - his Honour gave insufficient weight to the Applicant's expression of contrition and remorse. Ground 4 - his Honour gave insufficient weight to the fact that the Applicant would be serving his sentence in protective custody. Ground 5 - the sentences imposed are manifestly excessive.
Ground 1 was upheld. It is appropriate to set out in full what was said about it by Johnson J (with whom Simpson J (as her Honour then was) and McCallum J agreed): "[31] The Applicant was sentenced for two offences of aggravated sexual intercourse without consent, each of which carried a standard non-parole period of 10 years. For Count 1, a term of imprisonment of 12 years was imposed with a non-parole period of nine years. With respect to the second count, the sentencing Judge determined to fix a term of imprisonment for 14 years with a non-parole period of 10 years. The sentence for the second count was partially accumulated, with a direction that it commence six months after the commencement of the sentence for the first count. [32] With respect to the first count, his Honour found that the offence did not fall within the mid-range but was not significantly below it (ROS12.7). With respect to the second count, his Honour found that it was one to which the standard non-parole period of 10 years should apply (ROS13.2). Accordingly, the sentencing Judge found that the second count lay within the middle of the range of objective seriousness. Submissions [33] Mr Dawe QC, for the Applicant, submits that the sentence imposed for the second count did not comply with the requirements of s.44 Crimes (Sentencing Procedure) Act 1999. It was submitted that no finding of "special circumstances" was made so that, if his Honour intended to fix a non-parole period of 10 years on the second count, to comply with s.44(2), the balance of term ought to have been three years and four months and not four years. [34] The Crown acknowledged that a mathematical error appeared to have resulted in the manner complained of. Although his Honour appeared to have failed to comply strictly with the requirements of s.44, the Crown submitted that it did not follow that the error would necessarily require the intervention of this Court: Itaoui v R [1005] NSWCCA 415; 158 A Crim R 233 at 237-238 [17]-[18]. In any event, the Crown submitted that any adjustment should affect the head sentence only and not the non-parole period with respect to the second count. Decision [35] The problem identified under this ground arises from the sentencing Judge's non-compliance with s.44 Crimes (Sentencing Procedure) Act 1999. The Court is first required by s.44(1) to set a non-parole period for the sentence with the balance of term to be calculated by reference to s.44(2) of the Act. If his Honour had followed the section, then the balance of term would flow from the formula in s.44(2) given the absence of a finding of "special circumstances". This formula would have seen a balance of term of three years and four months. [36] From a discussion which ensued between the sentencing Judge and the Crown after sentences were pronounced, it seems clear that his Honour was looking at the total picture, and not the precise sentence being passed on the second count. However, no finding of "special circumstances" had been made. His Honour did not purport to apply the practice recognised in Hejazi v R [2009] NSWCCA 282 at [35]-[36]. [37] In the circumstances of the present case, error has been demonstrated in the calculation of the head sentence on the second count. This is not a mere technical error flowing from the announcement of sentence in a form which did not comply with s.44. To give effect to s.44 and the sentencing Judge's intention, the sentence to be fixed for Count 2 ought to have comprised a non-parole period of 10 years with a balance of term of three years and four months. I will return to this issue after considering the other grounds of appeal."
Ground 2 (insufficient weight to post-traumatic stress disorder) was rejected on the basis that "it is difficult to see how the applicant's condition could have warranted greater weight on sentence in the circumstances of this case": Johnson J at [42].
Ground 3 (insufficient weight to expressions of contrition and remorse) was rejected on the basis that "no error has been demonstrated in the way in which the sentencing judge had regard to the very late expression of contrition and remorse by the applicant": Johnson J at [51].
Ground 4 (insufficient weight to protective custody) was rejected, essentially on the basis of there being a lack of evidence of the circumstances pertaining to the applicant's experience in protective custody: Johnson J at [56]-[59].
Ground 5 (manifest excess) was rejected because it had not been demonstrated that the sentences were unreasonable or plainly unjust (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]). It is useful to note the reasoning in the judgment of Johnson J: "[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." (Emphasis added)
The success of Ground 1 of the appeal necessitated the Court resentencing the applicant. The judgment of Johnson J dealt with that issue as follows: "[68] No error has been demonstrated by reference to any of the grounds of appeal, apart from the error referred to in the first ground of appeal. This Court should intervene only to the extent necessary to correct the error found under the first ground of appeal. In light of the findings of the sentencing Judge, I am satisfied that a lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912 in the form of a balance of term of three years and four months instead of four years. However, I am satisfied that no lesser non-parole period than one of imprisonment for 10 years is warranted with respect to the second count. [69] I propose the following orders: (a) leave to appeal against sentence granted; (b) sentence of imprisonment on the second count is quashed and, in its place, the Applicant is sentenced to a non-parole period of 10 years commencing on 13 October 2008 and expiring on 12 October 2018 with a balance of term of three years and four months commencing on 13 October 2018 and expiring on 12 February 2022; (c) appeal dismissed with respect to sentences imposed on Counts 1 and 3. [70] The earliest date upon which the Applicant will be eligible for release on parole remains 12 October 2018." (Emphasis added)
In summary, it is apparent that the Court of Criminal Appeal resentenced on the basis confined to correcting an obviously unintended mathematical error by the primary judge. No other error by the sentencing judge had been established. The Court did not engage in a complete re-exercise of the sentencing discretion. It is also at least arguable that both the primary judge and the Court considered that the prescribed standard non-parole period for the offence in counts 1 and 2 had determinative significance once the relative level of objective seriousness of the offence in those counts had been assessed. A two-staged approach to the assessment of sentence is also arguably evident, at least in the judgment of the primary judge perhaps implicitly endorsed by the Court.
In the foregoing I have couched my language guardedly ("arguable") because it is not my function to make a determination of whether error occurred. My function is to determine whether there "appears" to be a doubt or question as to the sentence.

Muldrock v The Queen

Subsequent to the Court of Criminal Appeal's judgment, on 5 October 2011 the High Court gave judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. It held that previous authority in the Court of Criminal Appeal for the manner in which sentencing is to proceed for an offence for which there is prescribed a standard non-parole period (R v Way [2004] NSWCCA 131; 60 NSWLR 168) was wrongly decided. It was held, inter alia, that it was wrong to give the standard non-parole period determinative significance; to adopt a two-staged approach to sentencing; and to take into account subjective circumstances in assessing the objective seriousness of the offence.

First Part 7 Application

The applicant subsequently made his first Part 7 application based upon an assertion that there had been "Muldrock-error" both at first instance and in the Court of Criminal Appeal. The application was determined by Bellew J on 3 June 2014: Application by Darush Majid pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 709. His Honour's reasons for refusing the application were as follows: "[20] In 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. [21] Further (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. [22] In arriving at these conclusions, the court held that the decision in Way (supra) was incorrect. [23] In 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. [24] In 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. [25] I 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). [26] In 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 [27] For 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. [28] Accordingly I do not entertain any doubt or question as to the existence of a mitigating circumstance in the applicant's case."

Kentwell v The Queen

Subsequent to Bellew J's determination, on 9 October 2014 the High Court gave judgment in Kentwell v The Queen [2014] HCA 37; 252 CLR 601. It held (in part): "[42] … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. [43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal."

Buttrose v Attorney General of New South Wales

On 31 July 2015 the Court of Appeal gave judgment in Buttrose v Attorney General of New South Wales [2015] NSWCA 221. It made clear that the issue for a judge determining (administratively) a Part 7 application was concerned with whether there "appears" to be a doubt or question on a relevant matter; not whether there is in fact such a doubt or question: see Beazley P and Leeming JA at [16].

The present application

The present Part 7 Application was made after the decision in Kentwell v The Queen whereas the determination of the first Part 7 Application was made before it. "Kentwell error" is now relied upon as part of the basis upon which it is said there appears to be a doubt or question as to the applicant's sentence. For this reason it is appropriate for the application to be considered and determined, notwithstanding there has been a previous application (see s 79(3)(a)(ii)).
The application was filed on 27 January 2016. A copy was sent to the Attorney General and to the Crown Solicitor's Office the following day. Submissions on behalf of the Attorney General were filed on 3 March 2016. A copy of the latter was provided to the applicant's solicitor. Further written submissions in support of the application were filed on 23 March 2016.

Applicant's submissions

Written submissions in support of the application made plain from the beginning that its basis is that "there is the appearance of a doubt or question as to a mitigating circumstance in the applicant's case. The applicant may have been erroneously sentenced in two respects, first contrary to Kentwell v The Queen … and second, in accordance with sentencing principles held by the High Court to be incorrect in Muldrock v The Queen".
The submissions by counsel for the Attorney General concede Kentwell-error but dispute Muldrock-error. No specific submissions were made in relation to the latter in the light of the former. However, it was also said that "it would be open to the judge considering this application to form the subjective view that it 'appears' to him or her that there is a doubt or question as to a mitigating circumstance in the applicant's case, namely whether his sentence was infected by Muldrock error.

Asserted error in the determination of the first Part 7 application

Having regard to the view I have formed it is unnecessary to review all of the submissions that were made on the applicant's behalf (which were extensive). 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".
As the determination of the present application does not turn on the correctness or otherwise of the determination by Bellew J of the first application there is no need to say anything more about it.

Asserted Kentwell-error in the Court of Criminal Appeal's resentencing

It was submitted that the Court of Criminal Appeal erred in adopting an approach to resentencing that was confined to the identified error. The submissions quoted the passage from Kentwell v The Queen at [42]-[43] that I have earlier set out.
The submissions also cited the judgment of Hoeben CJ at CL in Liles v R (Cth) [2014] NSWCCA 289 in which his Honour said (at [55]): "As was made clear in Kentwell v R the re-exercise of the sentence discretion by the court does not simply involve an adoption of findings already made by the sentencing judge. It involves a genuine re-exercise of the discretion which extends to all matters relevant to sentencing …".
It was argued that because the Court of Criminal Appeal held that the primary judge's error was not "a mere technical error" it did not fall within the category of errors that do not vitiate the sentencing discretion envisaged in Kentwell v The Queen at [42]. Accordingly, it was contended, it became the duty of the Court to completely exercise the sentencing discretion afresh. As illustrative of the asserted failure of the Court to do this, reference was made to there having been an affidavit of the applicant's solicitor read at the hearing of the appeal which contained material relating to the applicant's good conduct in custody since sentencing. No reference was made to this in the Court's judgment.
In my view there is a very real question about whether the High Court in Kentwell v The Queen was speaking about the approach to resentencing in every possible situation in which the sentencing discretion of the primary judge is found to have been vitiated. The case before it, and the case of Liles v R (Cth) to which the applicant referred (and Youssef v R [2014] NSWCCA 285 to which the Attorney General referred), were concerned with errors that had a potential impact upon the entire sentence. There are cases in which the only error for which an appellant contends, or the only error upheld on appeal, concerns some discrete component of the sentence that could have no bearing upon the entire sentence.
I have written in draft in a judgment presently reserved before the Court of Criminal Appeal the following "observations" which I am prepared to adopt for present purposes to illustrate the point just made: "Observations about what Kentwell v The Queen requires The plurality judgment in Kentwell v The Queen includes (at [40]-[42]) a discussion of the differing views expressed by the members of this Court in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284. It held that the analysis of Spigelman CJ should be accepted. The judgment continued with the following explanation (in [42]): "When a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration [House v The King (1936) 55 CLR 499 at 505], the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing [s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"] and the factors that the Sentencing Act [s 21A] and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that is the appropriate sentence for the offender and the offence." Importantly for present purposes, the judgment immediately continues: "This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion." An example was then provided of a sentence being affected by "legal error" by specifying the non-parole and parole periods in a sequence that is contrary to that mandated by the legislation. Such an error, without more, "does not affect the exercise of the sentencer's discretion". This indicates to me that it was not held that any error in sentencing requires a fresh exercise of the sentencing discretion. Arguably, it was held that only an error that potentially had an effect on the sentencing outcome that invokes that requirement. Put another way, it is what has been held to have been affected by House v The King error that should be the subject of the "fresh exercise". Some errors potentially affect the entire sentencing outcome. The error in Kentwell v The Queen was of that type and it is understandable that in such a case the entire sentencing discretion must be re-exercised. But some errors only affect a discrete component of the outcome: for example, the commencement date of the sentence; the proportion of the sentence represented by the non-parole period; or the extent of the discount for a plea of guilty or assistance to authorities. If an error of that limited type is all that is the subject of complaint on appeal, or is the only error in respect of which an appellant is successful in establishing, it seems illogical that the Court is nevertheless required to re-determine the sentence in its entirety. In the present case the only error found in the sentencing of the applicant was a failure to give appropriate effect to the finding of special circumstances. No error in the assessment of the overall sentence has been found. In these circumstances it can be said that there has been no House v The King error that is held to have vitiated the exercise of the sentencing judge's discretion in the assessment of the overall term of the sentence. In such circumstances, why then should this Court do more than exercise afresh the sentencing discretion in so far as it concerns the setting of the non-parole component? Kentwell v The Queen is silent on this point as it was concerned with error that affected the entire sentence rather than a discrete component of it. There are even more stark examples that come to mind where, in my view, it would be illogical for this Court to engage in a fresh exercise of the entire sentencing discretion. Say, for example, the sole complaint on appeal was that a judge failed to take into account a period of pre-sentence custody by backdating the sentence. Or, perhaps the judge, contrary to s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), post-dated the commencement of a sentence because the offender was serving an existing sentence but for which the non-parole period had expired. Examples of this Court's application of Kentwell v The Queen The approach this Court has taken thus far when responding to an error that affected only a component of a sentence sometimes has been to re-exercise the entire sentencing discretion afresh because it has been understood that Kentwell v The Queen requires it to do so. In MD v R [2015] NSWCCA 37 the only ground of appeal was concerned with a sentence that failed to give effect to a finding of special circumstances because of a mathematical error. Gleeson JA (Johnson and Hall JJ agreeing) engaged in a thorough analysis of all factors bearing upon the total term of the sentence as well as the non-parole period before determining to impose the same overall term but with a reduced non-parole period. The Court also expressed itself as having to re-exercise the sentencing discretion in other cases where the identified error was confined to the non-parole component: Hutchen v R [2015] NSWCCA 101 at [44] (Hoeben CJ at CL, Adams and McCallum JJ agreeing) (the head sentence was maintained but the non-parole period reduced) and Wakeling v R [2016] NSWCCA 33 at [58]) (the applicant conceded that no variation of the head sentence was required so the focus was upon the non-parole period). In Arsiotis v R [2015] NSWCCA 275 the sentencing judge was found to have made a mathematical error in calculating the reduction of the sentence on account of the offender's plea of guilty. (The judge allowed a 25 per cent discount but reduced a 24 month sentence to 20 instead of 18 months.) This was the sole ground of appeal. But rather than merely correcting the error the Court (Bathurst CJ, Hidden and Davies JJ agreeing, at [8]) considered it "necessary for this Court to independently exercise its sentencing discretion". In the result, the same starting point was adopted but an 18 month term of imprisonment was imposed with a proportional reduction in the recognisance release order. In Marrow v R [2015] NSWCCA 282 the only error was that the sentencing judge allowed a 20 per cent reduction for an early plea of guilty which was held to have warranted a 25 per cent reduction. There was a complete re-exercise of the sentencing discretion in accordance with Kentwell v The Queen which resulted in a lower starting point being adopted and hence a lesser effective sentence being imposed. In Alpha v R [2015] NSWCCA 225, with the agreement of Leeming JA and Price J, I expressed doubt about whether a complete re-exercise of the sentencing discretion was required where the sole issue was a mathematical error in reducing a sentence on account of an offender's plea of guilty and assistance to authorities: "[53] The submissions for the Crown pointed out that where an arithmetical error is the sole basis of this Court's intervention in a sentencing appeal such intervention has been confined to simple correction. Burns v R [2008] NSWCCA 260 at [34], [37] and Young v R [2007] NSWCCA 114 at [26]-[28] were provided as examples. However, the Crown submitted that after Kentwell v The Queen [2014] HCA 37; 252 CLR 601 it seems necessary for the Court to re-exercise the sentencing discretion afresh. I am not sure that this will always be necessary; it seems to me that it would depend upon the nature of the error. However, in the present case I am prepared to carry out the task. A more confined approach was taken in O'Connell v R [2016] NSWCCA 43. The sole complaint was that a finding of special circumstances was not reflected in the total effective sentence where individual sentences had been partially accumulated. The Crown contended that there was no principled basis for special circumstances to have been found. Fullerton J (Hoeben CJ at CL and Adams J agreeing) said (at [29]): "Since the appeal is limited to the question whether the sentencing judge erred in failing to adjust the non-parole period in accordance with his conclusion that special circumstances warranted such an adjustment pursuant to s 44 of the Crimes (Sentencing Procedure) Act, it is not necessary for this Court to consider whether the non-parole period and the additional term, taken together, were affected by an error of law. The only question for this Court was the propriety of the proportion of the sentence constituted by the non-parole period. Accordingly, it is necessary for this Court, in accordance with the principles in Kentwell v R (No 2) [2015] NSWCCA 96, to independently consider the application of s 44 of the Crimes (Sentencing Procedure) Act to the applicant's sentence and, in substance, if a lesser non-parole period should have been imposed, quash the sentence and pass the appropriately adjusted sentence." Similarly, in Carroll v R [2015] NSWCCA 219 the only error identified was concerned with the application of the totality principle in sentencing for multiple offences. The Court (McCallum J; Hoeben CJ at CL and Adams J agreeing) stated (at [40]) that "in accordance with the principles stated by the High Court in Kentwell v R [2014] HCA 37, it is necessary to re-sentence the applicant". However, that exercise was confined to re-determining the degree of concurrence/accumulation of the sentences and followed a concession by Mr Game SC on behalf of the appellant that "it would not be inconsistent with the principles stated in Kentwell to preserve the terms of sentence determined by the sentencing judge". There is nothing to indicate that the concession was based upon what Kentwell v The Queen requires and I suspect it was a practical one based upon the facts of the particular case. Daniels v R [2016] NSWCCA 35 involved a sentencing judge purporting to make a parole order with conditions in the context of imposing a sentence of 4 years 6 months when the making of a parole order and imposing conditions is only permitted in the case of sentences not exceeding 3 years (per ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999 (NSW)). A question was raised as to whether the error should nonetheless be characterised as a sentencing error invoking the operation of s 6(3) of the Criminal Appeal Act 1912 (NSW) and thereby requiring the Court to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen. Fullerton J (Hoeben CJ at CL and RS Hulme AJ agreeing) referred to the passage of the plurality judgment in Kentwell v The Queen at [42] that I have quoted above. She then said (at [28]-[29]): "In my view, the error in the sentencing exercise the subject of the second ground of appeal is an example of an error of the kind to which the High Court in Kentwell was referring. ['That is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion.'] After setting aside the parole condition (it being of no legal effect being made beyond power), the sentencing judge's appointment of a non-parole period of 3 years as the minimum period the applicant is to spend in custody is unaffected. … I do not regard the error in imposing a parole condition as part of the sentencing order as vitiating the exercise of the sentencing judge's discretion in this case. I would order that the parole condition be set aside but I would not move to re-sentence the applicant." RS Hulme AJ added (at [61]): "Furthermore, while fully conscious of the decision of the High Court in Kentwell v R to which Fullerton J has referred, I am satisfied that in no way was any other aspect of the sentence affected adversely to the Applicant by his Honour's unauthorised imposition of a parole condition." Viewed broadly, the approach taken in Daniels v R is consistent with confining the fresh exercise of the sentencing discretion to where an error has had potential impact upon the actual sentence imposed. In that case, the error was regarded as having had no potential impact at all. Conclusion The purpose of my engaging in this analysis is to make the general observation that there is, in my view, a persuasive argument in favour of this Court regarding Kentwell v The Queen as requiring a fresh exercise of the sentencing discretion in relation to the whole sentence when the sentencing discretion in relation to the whole of it is vitiated by error. Where there is error that does not entail vitiation of the entire sentencing discretion, but is an error that only affects a discrete component of the sentence that could have no potential bearing on the whole, the discretion should be re-exercised but only in relation to that particular component. "
As indicated there, the point has not been the subject of any considered decision of the Court of Criminal Appeal. So, for the purposes of this application, it has to be said that there "appears" to be question or doubt as to whether the Court of Criminal Appeal, in determining the applicant's appeal in 2010, proceeded to resentence in a fashion that was contrary to what was subsequently held by Kentwell v The Queen to be necessary.

Asserted Muldrock-error

With great respect to Bellew J, I am satisfied that there appears to have been "Muldrock-error" in the approach by the primary judge to sentencing. It is evident from the following passage that he gave the standard non-parole period determinative significance. "It had been put on behalf of the offender that the offence on 7 December 2006 (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 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 on 7 December 2006, 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 period of imprisonment of fourteen years with a non parole period of ten years."
His Honour's reasoning indicates that he may have considered that unless there was some reason not to impose the standard non-parole period for an offence which he implicitly found was within the middle of the range of objective seriousness he had to impose a sentence with a non-parole period the same as the prescribed standard.
It is also apparent that his Honour may have adopted a two-staged approach by having first determined the objective seriousness of the offence in count 1 as "not significantly below" the middle of the range and the offence in count 2 as being within the middle of the range. The non-parole periods then imposed fell into place in accordance with such findings by reference to the prescribed standard.
It was also argued for the applicant that his Honour also took into account subjective matters in his assessment of the objective seriousness. I do not accept that this appears to be the case. The submission was based upon his Honour's statement within the passage quoted above: "balancing those matters which I have previously considered". It was argued that the matters "previously considered" included subjective matters. I do not consider that submission has been made good. The matters he previously considered included objective matters relevant to the offending and I take his Honour as having them in mind.
There was no reassessment of the sentence pursuant to the correct approach identified in Muldrock by the Court of Criminal Appeal when moving to the question posed by s 6(3) of the Criminal Appeal Act. It is implicit that the Court saw nothing wrong with the approach adopted by the primary judge. That is understandable as it was consistent with the prevailing (but erroneous) understanding of the law. Accordingly, the possibility of Muldrock-error in the original sentencing exercise appears to have permeated the resentencing exercise.
For these reasons I am of the view that there appears to have been Muldrock-error in the sentencing of the applicant by the Court of Criminal Appeal.

Conclusion

The applicant's submissions, as I have said, were extensive. They raised a considerable number of other points to which I have not referred because to do so is unnecessary. It is sufficient for me to state my conclusions as follows: It appears that there may have been errors in sentencing that are contrary to the principles identified in Muldrock v The Queen and Kentwell v The Queen. It therefore appears there is a doubt or question as to the sentence passed upon the applicant by the District Court and subsequently by the Court of Criminal Appeal.
I refer the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).

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