Kazzi v R

Judgment 1LEEMING JA: I agree with Button J that the appeal must be dismissed, for the reasons his Honour has succinctly given: no "Muldrock error" is disclosed on a fair reading of the earlier decision of this Court when resentencing the appellant in 2008. By "Muldrock error", I mean the imposition of a sentence which, by reason of what was determined in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, discloses material error (see for example Achurch v The Queen [2014] HCA 10 at [2] and [7]). Because the nature of the present "appeal" is a little unusual, and would give rise to novel issues had the position been otherwise, I describe the position below. 2The orders made by this Court on 21 April 2008, on the application of the Director of Public Prosecutions, quashed the sentence imposed by the District Court and imposed a new sentence, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). After Muldrock was delivered, that new sentence was the subject of an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). 3Section 78 provides that "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". There is no reason to exclude from the operation of s 78 sentences imposed by the Court of Criminal Appeal. Indeed, the nature and the history of this and cognate powers to hold an inquiry into a conviction or sentence (see Patsalis v Attorney General for New South Wales [2013] NSWCA 343 at [8] and [17]-[20]) support it being given a wide and unfettered construction as to the convictions and sentences to which it applies. Neither party contended otherwise. 4Section 79 of the Crimes (Appeal and Review) Act 2001 (NSW) provides that after considering an application under s 78, but 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", there may be either an inquiry pursuant to s 79(1)(a) or a referral pursuant to s 79(1)(b). It is established that sentencing which arguably discloses Muldrock error answers the description of a "doubt or question as to any mitigating circumstances in the case": Sinkovich v Attorney General of New South Wales [2013] NSWCA 383. Latham J formed the opinion that there was such a "doubt or question", and granted the application on 19 December 2013, and this Court was told that her Honour had referred the matter to this Court. 5Two things may be noted about her Honour's decision. First, her Honour was not exercising judicial power, but was making an administrative determination. As much is established by Patsalis. Secondly, the question presented by s 79 was not to determine whether there was Muldrock error, but merely whether there was a "doubt or question" as to that issue, such that it warranted a further hearing in this Court, with the benefit of full submissions from the parties. 6Section 79(1)(b) provides: "(1) After considering an application under section 78 or on its own motion: ... (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." 7That paragraph is to be read with s 86, which relevantly provides: "On receiving a reference under section ... 79(1)(b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly." 8The closing clause of s 79(1)(b) ("to be dealt with as an appeal under the Criminal Appeal Act 1912") and s 86 are directed to this Court. Together, they give rise to a new statutory creature, whose incidents closely resemble those of an appeal created by the Criminal Appeal Act. 9Appeals are, of course, themselves creatures of statute. There is no difficulty in the Legislature providing that, where the opinion required by s 79 has been formed and the "whole case" is referred to the Court of Criminal Appeal, it be determined as if there were an appeal. Sections 79(1)(b) and 86 are required (or else something to their effect would need to be implied), for otherwise this Court would lack jurisdiction. Sections 5(1)(c) and 6 of the Criminal Appeal Act, read with the definition of "sentence" in s 2, only create an appeal from a "sentence" imposed by the court of trial. The critical effect of s 79(1)(b) read with s 86 in this case is that the sentence imposed in 2008 by this Court pursuant to s 5D(1) is taken to be a sentence supporting a further appeal. 10Hence, the position is as described by Bathurst CJ in A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143 at [22]: "The words 'as if' [in s 86], in my opinion, indicate that the Court is to treat the appeal as one properly brought and which it had power to deal with under s 6 of the Criminal Appeal Act." 11It is established by Carlton v R [2014] NSWCCA 14 (where these provisions and many of the authorities on them were considered by RA Hulme J) that the appellant does not require leave, notwithstanding the time that has elapsed. It is not necessary to express a view on what flows from the fact that it is the "whole case" which is the subject of the referral, words which have a lengthy history in legislation throughout Australia and in the United Kingdom, as may be seen from Mallard v R [2005] HCA 68; 224 CLR 125 at [10]-[12]. Although it may not have been necessary to do so, the appellant filed a notice of appeal, whose sole ground (after being amended at the commencement of the hearing) was that there was Muldrock error in the decision of the Court of Criminal Appeal delivered on 21 April 2008, and the parties' written and oral submissions were confined to that issue. 12The appellant's written submissions (filed with leave on 24 March 2014) made three submissions consequential upon the nature of this "appeal". First, they contended that, if the resentencing discretion were to be re-exercised, s 68A of the Crimes (Appeal and Review) Act would not apply (because the present "appeal" is not a "prosecution appeal"); with this the Crown agreed. Nevertheless, the submissions contended that any resentencing discretion should be exercised as if it were a Crown appeal - in particular invoking what was said in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] as to the practice for "the appellate court to impose a substituted sentence towards the lower end of the range of available sentences". Thirdly, they contended that the appellant should not be disadvantaged by any more recent sentencing practices, by reference to R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31]. In light of the absence of Muldrock error, it is not necessary to express a view on any of those contentions. 13Finally, it may be noted that the appellant was charged with offences arising under State law, and no federal questions arose during the course of the trial or the appeal. Neither the District Court in 2007 nor this Court in 2008 was exercising federal jurisdiction. Nor is this Court exercising federal jurisdiction today. Again, it is not necessary to express a view on how these provisions operate (and indeed, whether they operate at all) upon convictions and sentences made in the exercise of federal jurisdiction, which as I presently see it is a large question; see Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 and, especially, the analysis by Basten JA in Lodhi v Attorney General of New South Wales [2013] NSWCA 433 at [47]-[64]. 14BUTTON J: This is an appeal against sentence that comes before the Court by way of a referral pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). As a result, leave to appeal is not required: Carlton v R [2014] NSWCCA 14. 15The foundation of the appeal is the proposition that, in upholding a Crown appeal brought some years ago, this Court proceeded in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168, and thereby offended against the principles subsequently enunciated in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Chronological background 16The course of the matter may be summarised as follows. 17On 19 October 2007, the appellant was sentenced in the District Court of New South Wales by Williams DCJ. He was dealt with for seven serious offences against the Drug Misuse and Trafficking Act 1985 (NSW). Due to the nature of the single ground of appeal, there is no need to provide any great detail about the facts of the offences. 18To state the offences succinctly: count one was an offence of supplying a prohibited drug, namely 196 grams of cocaine. The appellant supplied the drug in exchange for between $3,500 and $4,200. The maximum penalty for this offence was imprisonment for 15 years. There was no applicable standard non-parole period. 19Count two was an offence of supplying a commercial quantity of a prohibited drug. It pertained to 338 grams of methylamphetamine, of which the appellant supplied 140 grams at $2,100 per ounce (that is, for approximately $10,500). The maximum penalty was imprisonment for 20 years, and there was an applicable standard non-parole period of 10 years. 20Count three was an offence of supplying a prohibited drug. It related to 196 grams of cocaine that the appellant had supplied in three lots for a total of $18,000. The maximum penalty for this offence was imprisonment for 15 years. There was no applicable standard non-parole period. 21Count four was an offence of supplying a large commercial quantity of a prohibited drug. The maximum penalty was imprisonment for life, and there was an applicable standard non-parole period of 15 years. In short, the appellant agreed to supply two kilograms of cocaine for $187,500 per kilogram. The transaction fell through due to the inability of the purchaser to complete it, and not through any reticence on the part of the appellant. 22Count five was an offence of supplying a large commercial quantity of a prohibited drug. Again, the applicable maximum penalty was imprisonment for life, with a standard non-parole period of 15 years. This count related to 2.892 kilograms of methylamphetamine that the appellant stored for later supply. 23Count six alleged the supply of a prohibited drug, namely 139.7 grams of cocaine that the appellant stored for supply. The maximum penalty for this offence was imprisonment for 15 years. There was no applicable standard non-parole period. 24The seventh and final count alleged the supply of a commercial quantity of a prohibited drug. Again, the maximum penalty was imprisonment for 20 years, with a standard non-parole period of 10 years. In a nutshell, the appellant purchased 990 grams of cocaine for $155,000 and sold it for $175,000 (though that profit was to be shared between the appellant and another). 25His Honour determined that the role of the appellant was "clearly nearer the top than the bottom" of the hierarchy engaged in the ongoing supply of large quantities of prohibited drugs, and found that the objective seriousness of the offences fell "just below" mid-range. 26Turning to subjective matters, the appellant was aged 32 years at the date of sentence. He received a 30% combined discount for his plea of guilty and his assistance to the authorities. His Honour found that he was a drug user, but his criminality was undoubtedly organised, and his resultant lifestyle was lavish. His Honour described his criminal record as "minor" and considered that it "really has no bearing on the matters before [the Court]". 27As a result of subsequent events, there is no need for me to detail the particular sentence imposed for each offence, or its position in the overarching sentencing structure. It is sufficient to say that his Honour imposed a total head sentence of imprisonment for 8 years with a total non-parole period of 6 years. 28The Crown appealed to the Court of Criminal Appeal. On 28 March 2008, that appeal was upheld. James J (with whom Mason P and Hoeben J (as his Honour then was) agreed) held that the appeal should be allowed. The central portion of the judgment of James J is as follows: [54] With regard to offences 2, 4, 5, and 7 there are statutory non-parole periods. Although the Court of Criminal Appeal held in Way at 184 [68] that statutory non-parole periods are to be taken as intended for a middle range case where the offender was convicted after a trial, the Court said at 192 [122] that, even where there are reasons for not imposing a standard non-parole period for an offence such as that there was a plea of guilty, "the standard non-parole period can properly take its place as a reference point or benchmark or sounding board or guide post". [55] In the present case the sentencing judge did not assess the level of objective seriousness of the offences, taken individually. However, his Honour did categorise the offences generally as being "just below" the middle of the range of objective seriousness. Having regard to this assessment by the sentencing judge of the objective seriousness of the offences, I consider that his Honour did fail to take into account the standard non-parole periods to the extent which is required by Way even where there has been a plea of guilty. [56] In sentencing the respondent the sentencing judge also had to pay "careful attention" to the maximum penalties set by the legislature for the offences. Markarian v R (2005) 79 ALJR 1048 at 1056 [31]. In the present case the maximum penalty for offences 4 and 5 was imprisonment for life and the maximum penalty for the other offences was imprisonment for 15 years or imprisonment for 20 years. The sentencing judge did correctly state the maximum penalties for the various offences in his remarks on sentence but the sentences set by his Honour suggest that he did not pay careful attention to the maximum penalties for the offences. [57] After taking into account the objective facts of the offences, including the role of the respondent and the quantities of prohibited drugs involved, my assessment of the level of objective seriousness of the offences which would not be below the level found by the sentencing judge, the maximum penalties for the offences and the standard non-parole periods for offences 2, 4, 5 and 7 and even after allowing the respondent a combined discount for his pleas of guilty and assistance of the same order as that allowed by the sentencing judge, I have concluded, after paying due regard to the principles stated in Wall [R v Wall [2002] NSWCCA 42], that this Court should hold that some of the sentences imposed by the sentencing judge were manifestly inadequate and that the overall sentences were manifestly inadequate to punish the respondent for the totality of his criminality. [Emphasis added] 29The result was that the sentences imposed by Williams DCJ for counts one, three, and six were retained. The sentences for counts two, four, five, and seven were quashed, and new sentences imposed. 30For counts one, three, and six of supplying a prohibited drug, fixed terms of imprisonment for 18 months, to commence on 23 February 2006 and expire on 22 August 2007, were maintained. 31On count two, supplying a commercial quantity of a prohibited drug, a fixed term of imprisonment for 4 years, to commence on 23 February 2007 and expire on 22 February 2011, was imposed. 32On count seven, supplying a commercial quantity of a prohibited drug, a fixed term of imprisonment for 5 years to commence on 23 February 2008 and expire on 22 February 2013, was imposed. 33On count four, supplying a large commercial quantity of a prohibited drug, a non-parole period of 7 years 6 months with a balance of term of 2 years 6 months was imposed, the non-parole period to commence on 23 February 2009 and expire on 22 August 2016, and the balance of term to commence on 23 August 2016 and expire on 22 February 2019. 34On count five, supplying a large commercial quantity of a prohibited drug, a non-parole period of 6 years 6 months with a balance of term of 3 years 6 months was imposed, the non-parole period to commence on 23 February 2010 and expire on 22 August 2016, and the balance of the term to commence on 23 August 2016 and expire on 22 February 2020. 35Annexed to this judgment is a diagram that seeks to set out the sentencing structure in a readily comprehensible form. 36It can be seen that the total head sentence imposed by the Court of Criminal Appeal was 14 years, to commence on 23 February 2006 and expire on 22 February 2020, with a total non-parole period of 10 years 6 months to commence on 23 February 2006 and expire on 22 August 2016. 37Returning to the chronology, on 5 October 2011 the judgment of the High Court of Australia in Muldrock v The Queen was handed down. 38On 19 December 2013, Latham J granted an application for referral to this Court. That was on the basis that her Honour experienced 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" that warranted referral: s 78 of the Crimes (Appeal and Review) Act. Ground of appeal 39The single ground relied upon by the appellant was as follows: The Court of Criminal Appeal erred in its consideration of the standard non-parole period in light of Muldrock v The Queen (2011) 244 CLR 120 with respect to counts 2, 4, 5 and 7. Submissions 40Counsel for the appellant submitted at first that there was some question as to which sentences - those of Williams DCJ or those of the Court of Criminal Appeal - were the subject of this second appeal. On reflection, he accepted that the sentences imposed by Williams DCJ for the offences that carried a standard non-parole period had been quashed, and that this appeal must be directed to the sentences imposed by the Court of Criminal Appeal. 41He submitted that the approach of the Court of Criminal Appeal was consistent with those portions of R v Way that had been overruled in Muldrock v The Queen; that therefore the sentences of the Court of Criminal Appeal had been imposed on an erroneous basis; and that this Court would be satisfied that lesser sentences are warranted in law and proceed to resentence. 42The Crown Prosecutor submitted that the passages that formed the basis of the intervention of the Court of Criminal Appeal did not reveal any error. In particular, she submitted that nothing was said in the paragraphs that I have extracted from the judgment of James J that was inconsistent with the principles subsequently promulgated in Muldrock v The Queen. 43After the hearing, detailed written submissions were provided by both parties about the nature of an appeal by way of referral when it is an earlier judgment of this Court that is said to demonstrate error. Those written submissions were helpful; but in light of the view that I have taken of the basal question of whether the judgment of the Court of Criminal Appeal shows the error of which the applicant complained I will not refer to them further. Determination 44To summarise the changes wrought by Muldrock v The Queen with succinctness, in R v Way it was held that, in imposing a sentence after trial for offences that attracted a standard non-parole period, a court was required to determine whether there were reasons for not imposing the standard non-parole period. The first step was to conduct an assessment of the seriousness of an offence by reference to one falling within the mid range of objective seriousness. The second step was to consider whether there were circumstances that militated against the imposition of the standard non-parole period. In Muldrock v The Queen the High Court held that, whether the proceedings on sentence had been preceded by a trial or a plea of guilty, a standard non-parole period (along with the applicable maximum penalty) played the role of a guidepost for a sentencing judge: at [27]. That was a significant alteration to the interpretation that had pertained for some years of the statutory provisions that created the system of standard non-parole periods. 45However, during the years when R v Way was binding authority on sentencing judges, sentencing after a plea of guilty had been entered did not call for the rigidly structured approach. So much was clear from the judgment of this Court in R v Way. At [68] - [71] it was said: [68] Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial. This follows from the fact that factor (k), being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify a departure from the standard non-parole period, is "a plea of guilty by the offender (as provided by s 22A)". A plea of not guilty can never be an aggravating factor. [69] If the standard non-parole period had been intended to apply to cases where there had been a plea, then it may be safely inferred that such circumstance, which s 22 says "must be taken into account" would have already been factored into the assessment of the appropriate period. It would, in any event, be contrary to long-standing sentencing practice, save in exceptional circumstances, for there to be no differentiation in the setting of a non-parole period, between matters resolved by plea, and at trial. ... [71] Notwithstanding, a plea will, in most instances, have a utilitarian value such as to attract some level of discount. Absent the specification of separate standard non-parole periods, we are of the view that the periods specified in the Table should be understood as having been specified for sentences imposed for midrange cases after conviction at trial. We do not understand the Crown to be contending for the contrary. [Emphasis in original] And at [122] it was said: In this approach [that is, the approach to be adopted once it has been determined that there are reasons for not imposing the standard non-parole period] the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the 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, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount. 46So much was recognised by the High Court in Muldrock v The Queen. At [23] of the judgment of the Court it was said: The Court [of Criminal Appeal] held that the standard non-parole period only applies to sentencing for an offence after conviction at trial. This is because the Sentencing Act provides that a sentencing judge may impose a lesser sentence on an offender to take into account the fact of a plea of guilty. [Footnotes omitted] A footnote within that paragraph referred to in R v Way at [71]. 47In short, although Muldrock v The Queen effected significant changes to sentencing practice in New South Wales with regard to offences attracting a standard non-parole period after a trial, the same cannot be said about sentencing practice with regard to such offences after a plea of guilty. 48That view is reflected in a number of decisions of this Court since Muldrock v The Queen. In Butler v R [2012] NSWCCA 23 it was said at [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. 49Turning to analyse the approach of the Court of Criminal Appeal in this matter, it can be seen that, at the end of [54], James J spoke of the standard non-parole period as being "a reference point or benchmark or sounding board or guide post." 50At [55], the Court of Criminal Appeal held that the learned sentencing judge had failed "to take into account the standard non-parole periods to the extent which is required by Way even where there has been a plea of guilty." 51At [56], the Court of Criminal Appeal held that the learned sentencing judge had not paid sufficient attention to the maximum penalties applicable to the offences for which the appellant was to be sentenced. 52In short, the judgment of the Court of Criminal Appeal does not demonstrate any inconsistency with Muldrock v The Queen. Rather, it proceeded upon principles of sentencing with regard to sentencing after a plea of guilty that were first promulgated in R v Way and that have survived Muldrock v The Queen. The Court spoke of the standard non-parole period as being a guidepost, just as Muldrock v The Queen did three years later. The foundation of the success of the Crown appeal was the finding by the Court of Criminal Appeal that inadequate regard had been paid by the sentencing judge to that guidepost, along with the maximum penalty. It was not the finding by the Court of Criminal Appeal that the sentencing judge had failed to adopt the (subsequently disapproved) rigid approach. 53It follows that I do not consider that any error has been established in the approach of the Court of Criminal Appeal in upholding the Crown appeal in 2008. 54Finally, in his written submissions counsel for the appellant noted that the Court of Criminal Appeal had made an error by imposing fixed terms for offences that were subject to a standard non-parole period; namely counts two and seven. That was contrary to s 45 of the Crimes (Sentencing Procedure Act) 1999 (NSW). He did not, however, submit that there was any utility in correcting that error many years later. Nor did he seek to be heard against the submission of the Crown that to do so would be otiose, in light of the expiry of the last of those sentences over a year ago, and the fact that any such adjustment could have no effect on the sentence structure in general, or on the date of expiry of the total head sentence and total non-parole period in particular. 55Neither party having submitted that that ineffectual error should be corrected, I do not consider that this Court should proceed to do so. 56No error having been demonstrated in the judgment of the Court of Criminal Appeal, I propose the following order: (1)Appeal against sentence dismissed. 57RS HULME AJ: I agree with Button J. 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: 12 May 2014