Dennis v R

His Honour's (sic) erred in his application of the standard non-parole period legislation in the light of the principles identified in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.

The findings of the sentencing judge

1. The sentencing judge set out (at [2]-[15]) the circumstances of the infant's death and the applicant's offending. His Honour then said (at [16]): "[16] The features of this case which would ordinarily be regarded as aggravating the seriousness of the offence and sounding in the sentence, apart from those inherent in the nature of the offence of violent murder itself, are that the offender's act constituted an abuse of a position of trust and that the offence was committed in the house of a person who, because of his tender age, was vulnerable. However, those matters in effect determine the standard non-parole period for this offence, and they must not be brought into account twice."
2. In oral argument counsel for the applicant made it clear that it was not suggested that any error arose from anything said by the sentencing judge in [16].
3. His Honour considered the applicant's subjective case at some length. He set out (at [10]) the circumstances of the applicant's upbringing, which included the death of his mother when he was only 15 years of age. He found that the applicant was a person of exemplary character (at [14] and [18]), that the attack on the deceased infant was unplanned (at [18]), that the applicant had demonstrated some remorse (at [20]) and that he had reasonable prospects of rehabilitation (at [20]).
4. His Honour then said (commencing at [22]): "[22] The standard non-parole period for the murder of a child under the age of 18 years is 25 years. Such a non-parole period would apply to a case in the middle range of objective seriousness. I bear that in mind. [23] The manner of the attack on such a young child and the serious nature of the resulting injuries tend to make this objectively a more serious case. There are balancing features, however. The offence was unplanned and must, I think, have resulted from sudden anger and loss of self control. I am not satisfied that there was any intent to kill. In my opinion this case falls in about the middle range of objective seriousness, perhaps a little below it. [24] There are strong subjective features. The prior good character and remarkable work history of the offender help him. So do his young age and good prospects and the fact that he will have to serve at least a substantial part of his sentence on protection. [25] It was not submitted that I should vary the prima facie relationship between non-parole and parole periods and I do not think that I should. In my view the period of parole that I have allowed for will be sufficient to enable the offender to begin to make his way again in the community with the support of officers of the Probation and Parole Service. In any case, the non-parole period is in my opinion the minimum that could be imposed for an offence as serious as this one. … [27] Matthew Allen Dennis, I sentence you to imprisonment for the murder of the child I have called J. I set a non-parole period of 20 years. It will be taken to have commenced on 17 April 2008 and will expire on 16 April 2028. You will become eligible for release to parole on that day. The balance of the term of the sentence will be six years and eight months, expiring on 16 December 2034."

Submissions of the applicant

1. Counsel for the applicant submitted that granting of an extension of time in which to seek leave to appeal was in the interests of justice. It was submitted that although there had been a delay in bringing the matter before the Court, that delay had been fully explained and that the reasons for it were, generally speaking, outside the applicant's control. It was submitted that once the applicant had been informed of the possibility of his sentence being reviewed, he had acted swiftly and in accordance with the advice which had been provided to him by his legal representatives. It was also pointed out that further delay had been occasioned as a consequence of the need to await the decisions of the High Court in Kentwell and O'Grady and that this was not the result of any inaction on the part of the applicant. Generally speaking the Crown did not take issue with the proposition that the delay was adequately explained.
2. In terms of the ground of appeal relied upon, it was submitted on behalf of the applicant that the sentencing judge had erred by: 1. adopting a two stage approach to sentencing; 2. approaching the sentencing exercise on the basis that prima facie, the standard non-parole period applied; 3. giving determinative significance to the standard non-parole period; and 4. failing to make proper allowance for the applicant's youth and subjective case.
3. Counsel submitted that paragraphs [22]-[27] of the sentencing remarks, and in particular paragraph [24], reflected the errors in (i), (ii) and (iii) above. He submitted, in particular, that the inference to be drawn was that his Honour had decided upon a non-parole period and, having done so, had then determined the balance of the term by a strictly mathematical process so that the non-parole period imposed equated to exactly 75 per cent of the head sentence. This it was submitted, reflected the adoption of a two stage approach to sentence, in which his Honour had given primary or perhaps determinative significance to the standard non-parole period. It was submitted that as a consequence of this approach, the non-parole period had "driven" the ultimate outcome.
4. Counsel also relied upon the fact his Honour's reasoning did not make reference to the standard non-parole period being a reference point or a guidepost, and that there was similarly no reference to the applicable maximum penalty. These matters, it was submitted, lent further support to the conclusion that the non-parole period had assumed determinative significance.

Submissions of the Crown

1. Although the Crown accepted that the reasons for the delay were largely explained, it was submitted that no Muldrock error was made out and that accordingly, no extension of time ought be granted.
2. It was submitted by the Crown that in determining whether or not a Muldrock error was made out it was necessary to view the sentencing remarks of the primary judge in their entirety, rather than focus attention on a discrete statement or statements which were suggested to be reflective of error.
3. It was submitted that when this approach was adopted, it was clear that the sentencing judge did not treat the standard non-parole period in any determinative way and did not engage in a two stage approach of sentencing. Rather, it was submitted that the sentencing judge had engaged in a process of instinctive synthesis in which he took into account all relevant factors.

The application for extension of time

1. The approach which is to be taken by the Court in determining whether or not to grant an extension of time is set out in Kentwell (supra) where the plurality (French CJ, Hayne, Bell and Keane JJ) said (commencing at [32]): "…The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power. [33] Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted. Contrary to the appellant's submission, the Court of Criminal Appeal's acceptance that his grounds of appeal were established did not conclude its consideration of the merits of the appeal. As the appellant acknowledged on the hearing of the appeal, notwithstanding conceded "Muldrock error", a sentence may be so demonstrably lenient that the Court of Criminal Appeal concludes that there is no prospect that a lesser sentence would be imposed were the appeal to be entertained".

The nature of Muldrock error

1. In Muldrock (supra) the High Court concluded (at [25]) that the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 was incorrect. In particular, the Court found that it was an error to characterise s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 NSW ("the Sentencing Act") as being framed in terms which required a sentencing judge to use the standard non-parole period as the starting point for an offence assessed as being in the middle of the range of objective seriousness.
2. The Court further concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period. It was held that the correct approach was to identify all the factors relevant to sentence, including any prescribed standard non-parole period, and make a value judgment as to the appropriate sentence, given all such factors.
3. In reaching those conclusions the Court (at [28]) specifically rejected the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence fell in the middle of the range of objective seriousness, followed by an enquiry as to whether there were matters justifying a longer or shorter period.
4. This Court has previously set out a number of general principles to be applied in approaching the question of whether or not a Muldrock error is made out in a particular case. In doing so, the Court has stressed the importance of considering the sentencing remarks as a whole. An approach which tends to parse such remarks, or which has, as its focus, an isolated passage or statement within such remarks, is erroneous: Black v R [2013] NSWCCA 265 at [41] per Bellew J, Hoeben CJ at CL and Johnson J agreeing, citing Essex v R [2013] NSWCCA 11 at [30] citing Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44 at [43].

Consideration

1. In my view, when the sentencing remarks in the present case are read as a whole it is apparent that his Honour took into account all relevant factors, both objective and subjective, which had a bearing on the determination of an appropriate sentence. Notwithstanding the absence of any reference to the standard non-parole period being a guidepost the sentencing remarks do not, in my view, indicate that his Honour regarded himself as being "tethered" to the standard non-parole period. This is particularly so in circumstances where his Honour found (at [23]) that the offending was "in about the middle range ….perhaps a little below it".
2. Similarly, in circumstances where the Crown had not sought the imposition of the maximum penalty, the absence of any express reference to that penalty by the sentencing judge is of no significance.
3. In particular, I am unable to accept the submission made by counsel for the applicant that the sentencing remarks reflect his Honour having adopted a two stage process to sentencing, or having given primary or determinative significance to the standard non-parole period. The lengthy and detailed terms in which the sentencing judge dealt with all of the relevant considerations tends against the conclusion urged on behalf of the applicant, and reflects the sentencing judge having adopted a process of instinctive synthesis in which all relevant considerations were taken into account.
4. Further, the submission that the non-parole period had "driven" the ultimate result was necessarily speculative. It relied upon reading into the sentencing remarks words which were simply not said by the sentencing judge. Moreover, paragraphs [23] and [24] of the sentencing remarks tend, in my view, against the conclusion urged by counsel for the applicant. In particular, those paragraphs reflect an approach in which his Honour determined the objective seriousness of the offending, against which he balanced the applicant's subjective case.
5. I am similarly unable to accept the submission that his Honour failed to make proper allowance for the applicant's youth and subjective case. His Honour exhaustively considered all of the relevant subjective considerations (at [10]-[15]; [17]-[21]). He ultimately concluded (at [24]) that the applicant's subjective features were "strong". Those features included his prior good character, his "remarkable" work history and his reasonable prospects of rehabilitation. His Honour was obviously aware of the applicant's youth (having referred to it specifically at [10], [13] and [14]). In expressing his conclusions about the applicant's subjective case, his Honour concluded (at [24]) that the applicant's young age assisted him. In my view it is clear that his Honour gave full consideration to all aspects of the applicant's subjective case.

CONCLUSION

1. It will be evident from the passages in Kentwell to which I earlier referred that one of the factors relevant to the determination of whether an extension of time should be granted is whether the proposed appeal has prospects of success. For the reasons above, the applicant's complaint of error on the part of the sentencing judge cannot be made out.
2. In these circumstances I propose the following order: 1. The application for an extension time is refused.

Amendments 17 April 2015 - Correction to bench 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: 17 April 2015