Eastman v Director of Public Prosecutions

Judgment 1HIS HONOUR: DECISION Application The applicant, Malik Spania, 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 maintains 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 also relies upon an assertion that his sentence was affected by the absence of evidence of his disability due to a failure by his legal representatives to place such evidence before the Court. He also relies upon his sentence having been affected by the failure of his legal advisers to advise him as to his prospects of success in the proceedings so that the entry of his plea of guilty was delayed. He asserts that had he been properly advised, he would have entered a plea of guilty earlier and his sentence would have been markedly less than that which was ultimately imposed. 4On 2 February 2009 the applicant pleaded guilty in the Supreme Court before Barr J to the following offences: (1)Murder contrary to s 18 of the Crimes Act 1900 for which the maximum penalty is imprisonment for life. The offence carries a standard non-parole period of 20 years. (2)Possess an unauthorised pistol contrary to s7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years. This offence carried a standard non-parole period of 3 years. 5On 13 March 2009 Barr J sentenced the applicant to concurrent sentences (R v Spania [2009] NSWSC 148) as follows: In respect of Count 1, imprisonment for 24 years with a non-parole period of 18 years commencing 26 September 2007. In respect of Count 2, imprisonment for 6 months commencing 26 September 2007. The earliest date for the applicant's release is 25 September 2025. 6The applicant has not sought leave from the Court of Criminal Appeal to appeal against his sentence, but has chosen to proceed under the Act. Factual Background 7The applicant and the victim were brothers and had a difficult relationship. Shortly before 2.45pm on 26 September 2007 the victim attended the applicant's unit with his 5 year old son. The applicant asked the victim to leave but he refused to do so. The applicant collected a loaded firearm from his bedroom, pointed it at the victim and again demanded that he leave. The victim became agitated and threatened to call the police. At some point thereafter the applicant discharged a .22 calibre round into the left side of the victim's chest. The victim then called triple 0, passed the telephone to the applicant who said to the operator "I shot my brother. Please come". 8As of the date of sentence, the applicant was aged 47. He was born in Iraq and lived there with his family. He contracted polio when he was 9 months old and this affected the muscles in his leg. The family moved to Australia when the applicant was aged 9. There were 8 children of the marriage and the deceased was the boy next oldest in the family to the applicant. 9The effect upon the applicant of the polio was that he found himself unable to pursue normal relationships with other boys at school. He required remedial education when he arrived in Australia. Throughout his developmental years, his disability prevented him from taking part in the normal activities of boys and young men. One of the effects was that he was subject to bullying at school. The applicant had a number of jobs earlier in his life but ultimately received a disability pension. The applicant's submissions 10The applicant relied upon the following extracts from the sentence judgment of Barr J: "12 The evidence about the offender's disability is not entirely satisfactory. Although the court adjourned the sentence hearing to enable expert evidence to be obtained about its significance, none was forthcoming. Some hearsay evidence was furnished in the report of a psychologist, Mr Borenstein, but I have been left with an incomplete understanding of the present and likely future effect of his disability upon the offender. I have been told, and accept, that he cannot run and has pain in the legs. He does not wear braces or callipers, as he did as a child. There is a suggestion that he may need to resort to such aids in the future. ... 19 The plea of guilty came very late and not before the Crown had been to the trouble and expense of twice preparing for trial and the offender had, by his own action, aborted the first trial. There was a saving of court time and expense after the entry of the plea, but its effect in mitigation of sentence is modest. ... 23 I accept that the offender's disability will make it harder for him to serve his sentence because he is likely to be prevented from fully participating in the various programs likely to be offered in the corrective system. Quite what the effect on him will be I am unable to say, but I think that there will be some. I accept that it is possible that his condition may deteriorate to the point at which medical intervention is needed. 24 It was submitted that the offender's disability justified an increase in the proportion of the sentence to be allocated to eligibility for parole, with a corresponding reduction in the non-parole period. Although I shall take the disability into account in fixing the overall sentence, I do not think that it can have the effect contended for. 25 The standard non-parole period for murder is 20 years, and that is appropriate for a case falling into the middle range of seriousness. Having taken into account the aggravating and mitigating factors identified earlier in these remarks, I assess the offence as falling a little below the mid-range of seriousness." 11The applicant relied upon the following provisions of the Act: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. ... 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken 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." 12By reference to s79(2) of the Act, the applicant only relied upon the "existence of mitigating circumstances" as the basis for this application and expressly repudiated any reliance upon the "emergence of further evidence". There is, of course, no challenge as to the finding of guilt. 13The applicant submitted that the standard non-parole period was a dominant factor in the sentencing and reasoning of Barr J. He submitted that had he been sentenced in accordance with the principles mandated in Muldrock, his sentence would have been appreciably less. He submitted that because of "Muldrock error", it was necessary for the Court of Criminal Appeal to re-exercise the sentencing discretion. He submitted that in doing so the Court of Criminal Appeal would give appropriate weight to the standard non-parole so that there was a strong likelihood that on re-sentence he would receive a lower sentence. 14In relation to the other matters relied upon, the applicant submitted: "46 In addition had adequate material been made available by the legal representatives of the accused at the time of the offence concerning features of his disability the resulting sentence would have been markedly less than that actually imposed. 47 Furthermore, the failure of his legal representatives at the time leading up to trial (both first and second) to accurately advise him of his prospects of success resulted in a very late plea of guilty to the charge of murder. Had he been properly advised at a time prior to committal to enter a plea of guilty his sentence would have been markedly less than that actually imposed." Consideration 15The following principles are relevant to the consideration of an application under s 78 of the Act: (i)The Court's consideration of an application is an exercise of administrative not judicial power (Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at 362 [124]. (ii)The s78 process may be activated when the criminal justice system has "run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence" (Application of Peter Holland [2001] NSWSC 251 at [10] (Johnson J). "Section 78 is not intended to provide a convicted person with yet another avenue of appeal after the appeal process has been exhausted nor an opportunity to run the trial again on paper" (Holland at [9]). (iii)There has to be available material which as a matter of practical reality gives rise to a relevant sense of unease or disquiet: Varley at [48]; Application of Rendell (1987) 32 A Crim R 243 at 245. (iv)Sinkovich v Attorney General of NSW [2013] NSWCA 383 concluded that a Muldrock error in sentencing could constitute "mitigating circumstances" in the context of s78 of the Act. Sinkovich clarified that legal errors were capable of forming the basis of a doubt or question under the Act and that "any procedural error which possibly gave rise to a more severe sentence than should properly have been imposed may found a doubt or question as to a mitigating circumstance." (at [31]) Did "Muldrock error" occur? 16There was no "Muldrock error" in the approach followed by Barr J when sentencing the applicant. Barr J did not apply a two-stage process, nor did he give the standard non-parole period determinative effect. What his Honour did do was to assess the objective seriousness of the offending but that of itself does not constitute error of the kind alleged by the applicant. 17A proper reading of his Honour's sentencing judgment shows that he took into account all relevant factors, including the circumstances of the offending and the applicant's subjective case. His Honour's approach was in every way consistent with instinctive synthesis approach described in Markarian v the Queen [2005] HCA 25; 228 CLR 357 and approved in Muldrock. His Honour's reference to the objective seriousness of the offending, far from involving "Muldrock error", was consistent with what the High Court said in Muldrock. 18In Muldrock the High Court made it clear that the assessment of objective seriousness of an offence remains an important element of the sentencing process. Their Honours said: "27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 19It follows that "Muldrock error" did not arise when the applicant was sentenced. Are there other mitigating circumstances? 20In addition to asserting "Muldrock error", the applicant's submissions raised two further matters said to be "mitigating circumstances" that give rise to "doubt and questions" and warrant an inquiry or referral under s78 of the Act. Firstly, that the applicant's legal representatives failed to make available to the court at the time of sentencing adequate material addressing the applicant's disability. Secondly, that the applicant did not receive timely and accurate legal advice as to his prospects of success and had he done so, he would have entered a guilty plea to the charge of murder at an earlier time. 21While these assertions were contained in the applicant's written submissions, he did not place any additional evidence before the Court that could be said to raise a doubt or question as to his sentence. The assertions in the applicant's written submissions do not constitute evidence for the purpose of s 78: Application by Bill Bayeh under Section 78 Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1358 at [7] (Latham J). 22Despite his Honour observing that the evidence before the court as to the applicant's disability was "not entirely satisfactory", Barr J accepted that the applicant could not run and had pain in his legs. He further accepted that the applicant's disability would make it "harder for him to serve his sentence because he is likely to be prevented from fully participating in various programs likely to be offered in the corrective system". While in the absence of evidence his Honour was not able to specify what the effect would be, he accepted that any sentence would have some effect and that his "condition may deteriorate to the point at which medical intervention is needed". His Honour clearly took those matters into account when fixing the overall sentence. 23Even if further evidence about the applicant's disability could have been put before the Court, he has not put on any evidence as to how that additional evidence would raise any "doubt or question" as to "any mitigating circumstance in the case". In light of the above, it is clear that Barr J considered the applicant's disability as a relevant factor when imposing sentence. It follows that there is nothing to give rise to any "unease or sense of disquiet" in allowing the sentence to stand. 24While the applicant's failure to enter a plea of guilty at an earlier stage may have impacted on the severity of his sentence, there is no evidence to support the submission that the decision to enter a plea of guilty at a late stage resulted from insufficient or inadequate legal advice as to his prospects of success. On the contrary, it is apparent from the preamble to the sentence judgment of Barr J and from [19] that much of the delay was due to the applicant withdrawing his instructions from trial counsel and aborting the first trial which was due to begin on 1 September 2008. 25In those circumstances, there is no basis for the Court to experience a "doubt or question" as to "any mitigating circumstances in the case". Discretionary considerations 26Section 79(3)(iii) of the Act provides the Court with a discretion to refuse to consider or deal with an application if a right to appeal has not been exercised. Alternatively, the Court may defer consideration of the application if such appeal rights are current (s79(3A)(b)). 27In that regard, it is noted that the applicant has not applied to the Court of Criminal Appeal for leave to appeal against sentence. 28Under normal circumstances, the Court would have refused to consider the matter pursuant to s 79(3). In this case, however, the resolution of the issues raised by the applicant was relatively simple so that further delay in dealing with the matters raised was not justified. 29The application is refused.