Snibson v R

Court of Criminal Appeal (NSW)|2022-10-05|Before: Beech-Jones CJ, Davies J, Hamill J, Buddin J

entation: Counsel: I McLachlan (Applicant) E Wilkins SC (Respondent)

Solicitors: Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2007/1226 Publication restriction: Nil. Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Kim Leanne Snibson [2008] NSWSC 905 Date of Decision: 05 September 2008 Before: Buddin J File Number(s): 2007/1226

Judgment

BEECH-JONES CJ AT CL: I have had the benefit of reading the judgment of Davies J. I am doubtful that there are really "two different lines of authority" concerning the approach to analysing sentencing judgments that were published during the period that R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 ('Way") held currency (before it was overruled by Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; "Muldrock"). Instead the judgment as a whole needs to be considered to determine whether it was relevantly affected by what was held in Muldrock to be the erroneous construction of the standard non-parole periods enunciated in Way, although I agree with Simpson J, as her Honour then was, in Davis v R [2015] NSWCCA 90 at [33] that "[i]t is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way". It is not necessary to consider this further as I agree with Davies J that the sentencing judgment the subject of the appeal in this case is relevantly affected by the erroneous approach to standard non-parole periods articulated in Way.
It is important to understand that it follows from the Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 that this finding of error means that the Court must undertake an independent re-exercise of the sentencing discretion. Had I been considering this matter at the time the applicant was sentenced by Buddin J, on the material that was before his Honour and utilising the approach to standard non-parole periods articulated in Muldrock, I would have imposed the same sentence as His Honour (or possibly higher). However, the sentencing discretion is to be independently re-exercised having regard to the further evidence summarised by Davies J at [68] to [71]. When that evidence is considered, I agree with the sentence proposed by His Honour."
DAVIES J: On the ninth day of her trial the applicant pleaded guilty to two counts of murder contrary to s 18 of the Crimes Act 1900 (NSW), and two counts of specially aggravated kidnapping contrary to s 86(3) of the Crimes Act. The maximum penalty for murder is life imprisonment and there is a standard non-parole period of 20 years' imprisonment. The maximum penalty for specially aggravated kidnapping is 25 years' imprisonment.
The applicant was sentenced on 5 September 2008 by Buddin J as follows: Count 1: For the specially aggravated kidnapping of Gregory Hosa sentenced to a fixed term of eight years and six months' imprisonment to commence on 29 January 2006 and to expire on 28 July 2014. Count 2: For the murder of Gregory Hosa sentenced to a non-parole period of 18 years' imprisonment to commence on 29 January 2006 and to expire on 28 January 2024 with a balance of term of eight years expiring on 28 January 2032. Count 3: For the specially aggravated kidnapping of Kathryn McKay sentenced to a fixed term of eight years and six months' imprisonment to commence on 29 January 2012 and to expire on 28 July 2020. Count 4: For the murder of Kathryn McKay sentenced to a non-parole period of 18 years' imprisonment to commence on 29 January 2012 and to expire on 28 January 2030 with a balance of term of eight years expiring on 28 January 2038.
The overall sentence was imprisonment for 32 years commencing 29 January 2006 and expiring 28 January 2038 with a non-parole period of 24 years expiring 28 January 2030: R v Kim Leanne Snibson [2008] NSWSC 905.
By a Notice of Appeal filed 1 April 2022 the applicant seeks leave to appeal against the severity of her sentence upon one ground as follows: The learned sentencing judge erred in his approach to the significance of the standard non-parole period for the offences of murder when sentencing the applicant. It will be perceived that this is another appeal in reliance upon what was said by the High Court in Muldrock.
Although a Notice of Intention to Appeal was filed on 23 July 2009, the Notice was not renewed and expired in 2010. The applicant seeks leave to appeal out of time on the basis of information contained in her affidavit sworn 22 March 2022 and an affidavit of her present solicitor, Michael Blair, sworn 23 March 2022.
The evidence explaining the delay can be summarised as follows. After the applicant was sentenced, she met with a person from the Legal Aid Commission with regard to an appeal but was informed that there was no merit to the appeal and she would need to pay for any appeal herself. She had no funds or means of raising funds.
Later in 200, the Legal Aid Commission arranged for an advice as to merit relating to an appeal against conviction. That was obtained in October 2009. Thereafter, the applicant wrote letters to a number of lawyers in Sydney, but no one was prepared to act for her without a grant of aid from the Legal Aid Commission.
From 2012 to 2015 she spoke with a number of solicitors. Ultimately, a solicitor, Paul J Donnelly, agreed to look at her case pro bono. In September 2015 Mr Donnelly advised her that he could not continue to act for her because of his deteriorating health.
Thereafter from 2016 to 2018 the applicant spoke with a number of solicitors. A further application was made to the Legal Aid Commission, but legal aid was again refused.
In 2017, as a result of correspondence with the Court of Criminal Appeal registry at the Court, the applicant obtained copies of transcripts and exhibits from the file.
Ultimately, the applicant became friends with another woman in custody who, after that woman's release, agreed to fund the legal fees for an appeal in November 2020. On 12 November 2020 the applicant signed instructions for her present solicitors to act for her in the matter.
In his affidavit, Mr Blair said that he retained Mr David Barrow of counsel to provide an advice as to the merit of an appeal against conviction and sentence on 30 July 2021. The advice was provided by Mr Barrow on 13 December 2021.

The offending

The deceased couple lived at a property near Nowra. Mr Hosa was 56 and Ms McKay was 44. They bred and agisted horses at their property, and the applicant agisted horses with them.
The applicant inherited a property in Nowra from a neighbour, whom she had befriended, and she, her husband, and children moved in and took up residence there in 2001. By 2005, the applicant's marriage had broken down, and her husband left with the children.
The applicant knew both the co-offenders, Flentjar and Lea-Caton, who also resided in Nowra. In December 2005, once the applicant and her family had left their property in Nowra, she agreed to rent it to Lea-Caton for $50 per week in return for him looking after the property and the applicant's animals. He moved in only days before the murders.
The sentencing judge was not able to find positively what the motive of the applicant was in organising the kidnapping of the deceased persons. There was some evidence that the applicant claimed Mr Hosa had done something sexual to her while she was drunk and that a video tape had been made of the sexual acts.
Although the applicant denied on sentence having recruited Flentjar and Lea-Caton to kidnap the two deceased, the sentencing judge concluded beyond reasonable doubt that she did recruit them to assist her in the kidnappings, and that she deliberately told them different stories to increase the likelihood that they would each assist her.
Telephone records showed that on the day of the murders, 28 January 2006, the applicant used her mobile phone to call Mr Hosa's mobile phone at 4:59pm. A short time later he arrived alone at the applicant's property.
When Mr Hosa arrived at the property, he was set upon, overpowered and struck on the head causing him to bleed. He was then forced to the ground. The sentencing judge could not determine who of Flentjar or Lea-Caton struck the blow, but they and the applicant were present when this occurred. Mr Hosa was then hogtied by one or more of the offenders and was restrained with masking tape.
The sentencing judge found that the applicant became concerned that Ms McKay would raise the alarm if her husband did not return home. The telephone records showed that the applicant used her mobile phone to call Ms McKay at 5:26pm. A short time later she also arrived at the applicant's property.
When Ms McKay arrived, she was set upon and forced to the ground where she also was hogtied.
Ms McKay's vehicle was returned to Ms McKay's property. The applicant obtained cleaning products and returned to her property where the deceased persons were being held.
The sentencing judge found that Ms McKay was suffocated and Mr Hosa was strangled, but his Honour was unable to determine at whose hand they died, what precipitated their deaths, or when they died.
Following the killings, the bodies were placed in the barrels obtained by the applicant for that purpose. They were left in the back area of the house until darkness fell, when the applicant and Lea-Caton took Mr Hosa's vehicle to a road and set it alight. The barrels were taken to Tomerong State Forest and set alight with petrol that Lea-Caton purchased at a service station along the way.
The applicant then drove Lea-Caton to his premises. She returned to the Flentjar residence where there was a bonfire, and various items were destroyed that may have inculpated the applicant. Later she returned with Lea-Caton to the barrels to destroy what remained of the bodies.
Lea-Caton went to Nowra Police station the following morning. He was interviewed and later charged with the murders.
In due course, the police found Ms McKay's burnt-out vehicle and the bodies of the two deceased in the barrels in the forest. Post-mortem examination of the deceased could not confirm the causes of death, due to extensive fire damage to the bodies. Mr Hosa's remains were charred, lengths of rope matching rope found at the applicant's premises were found around his wrists, and fragments of brown tape were found around his ankles. Thin wire was found looped around his neck.
Ms McKay's remains consisted of multiple fragments of charred bone, and lengths of rope were found around her feet.
His Honour was not able to find that the applicant embarked on the enterprise with the intention to kill the deceased couple. Contrary to the submission made by counsel for the applicant at the sentence proceedings that the offence should be characterised as felony murder, his Honour determined that the applicant should be sentenced as a principal in the second degree.
The sentencing judge found that the applicant performed a pivotal role in the events culminating in the murders, and that she enthusiastically participated in attempting to cover up the crimes. Later, whilst she was in custody, the applicant made clear and damaging admissions to her husband.

Remarks on Sentence (ROS)

The sentencing judge found that the criminality in relation to the kidnapping offences was "of a very high order". In relation to the two counts of murder his Honour said: [123] On any analysis of the matter, each of the murders constituted an extremely serious crime. Having said that, I am mindful of the fact that the offender is not being sentenced as the person who actually inflicted the fatal injuries. It is clear however that an aider and abettor is not necessarily less culpable than a principal offender: see GAS v The Queen; SJK v The Queen (2004) 217 CLR 198. I am satisfied however that her culpability is somewhat reduced in the present circumstances because her role was not that of the principal offender. [124] As I have said there was a significant measure of premeditation at least so far as the kidnapping offences are concerned. Moreover as I have also said, each of the victims was lured by the offender to the premises in circumstances in which she knew that they were to be detained. Viewed in that sense, the offences of murder could be said to have been "part of a planned or organised activity": s21A(2)(n). However, I do not regard that as a factor which aggravates the offence because the offender's participation in the kidnapping of the victims represents an "inherent characteristic" of the offences of murder. Although, as I have said, there is no evidence to suggest that either of the murders was originally within the contemplation of the offender, it is tolerably clear that at some stage during the course of the entire episode, although I cannot identify when precisely it was, the offender realised that the victims were to be killed. It was because of her involvement in the deaths of the victims, that the offender then played an integral role in covering up the deaths by assisting in the disposal of the bodies and Mr Hosa's vehicle. Each of the victims would inevitably have experienced a slow and painful death. I am unable to determine for how long they remained alive after being tied up but it was a span of time which lasted considerably longer than a matter of minutes.
Justice Buddin discounted the sentence he would otherwise have imposed by 10% because of the utilitarian value of the plea and because the applicant had facilitated the course of justice (at [127]). His Honour said at [128] that he was prepared to allow a further modest reduction on account of her contrition.
He then said: [129] As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness". In approaching this aspect of the matter, I have had regard to the principles set out in R v Way (2004) 60 NSWLR 168 especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93. [130] The circumstances which I have outlined, in my view demonstrate that the offence of murder should, in each case, be characterised as lying slightly above the "middle of the range of objective seriousness" even though her role was not that of a principal in the first degree. Notwithstanding her pleas of guilty, I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance "as a reference point, benchmark, sounding board or guidepost".
His Honour went on to find that there was considerable room for optimism concerning her prospects of rehabilitation. His Honour next considered matters of totality, concurrency and accumulation of sentences. His Honour then considered issues of parity with Lea-Caton, whom his Honour had earlier sentenced. Finally, his Honour considered the issue of special circumstances, and said that he was only departing from the statutory ratio to accommodate the fact that four sentences were imposed with a partial accumulation of those sentences.

Ground 1: The learned sentencing judge erred in his approach to the significance of the standard non-parole period for the offences of murder when sentencing the applicant

Submissions

The applicant submitted that where Buddin J made specific reference to paragraphs of Way that were disapproved in Muldrock, it is likely that his Honour was influenced in his approach to the standard non-parole period ("SNPP") by those paragraphs. The applicant submitted that support for this comes from the fact that the fixing of the non-parole period is explicable by the 10% discount for the guilty plea. Further, the undiscounted starting point for the overall sentence is sufficiently unusual (about 28 years, 7 months and a little over 1 week) as to make it likely that the focus was on the non-parole period with the balance of term added.
The applicant pointed also to what the sentencing judge said when sentencing the co-offender Lea-Caton as follows (R v Stacey Lea-Caton [2007] NSWSC 1294): [58] As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness". In approaching this aspect of the matter, I have had regard to the principles set out in Way (supra) especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93. [59] Although it was suggested on behalf of the offender in written submissions that the offences fell below the "middle of the range of objective seriousness" the submission was not pressed in oral argument. In any event in my view, the circumstances which I have outlined demonstrate that the offence of murder should, in each case, be characterised as lying at or even slightly above the "middle of the range of objective seriousness". In coming to that conclusion, I have not overlooked the fact that his role was a subsidiary one and that his psychological condition compromised his capacity to react appropriately to the circumstances in which he found himself. Nonetheless, it is common ground that I should impose a non-parole period which is in each case considerably shorter than the standard non-parole period. I intend to do so primarily because of the offender's plea of guilty and his assistance to the authorities and for the contrition which he has demonstrated. I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance "as a reference point, benchmark, sounding board or guidepost". (emphasis added)
The applicant submitted that those remarks clearly demonstrated error because of what was said in Muldrock, and the close similarity of those remarks in the ROS in respect of the applicant show that his Honour took the same approach, contrary to Muldrock.
The applicant drew attention to what was said in Bolt v R [2012] NSWCCA 50 at [32] by McCallum J, and in DL v R (No 2) [2017] NSWCCA 58 at [48]-[50] by Rothman J to submit that error should be found where the sentencing judge imposed the sentence prior to Muldrock.
The Crown submitted that the sentencing judge simply used the SNPP as a reference point, benchmark, sounding board or guidepost, and that was, and always has been, a correct approach where there are pleas of guilty.
The Crown submitted that the ROS did not suggest a two-stage process had been followed, and the ROS did not suggest that determinative significance had been given to the SNPP. In particular, the Crown submitted that a non-parole period of 18 years for each murder did not suggest a mathematical relationship arising from an impermissible two-stage sentencing process.
The Crown submitted that his Honour's reduction of the statutory ratio of the non-parole period to the overall sentence by the finding of special circumstances suggests that his Honour was not slavishly following an approach mandated by Way.

Consideration

The Crown made no submissions in relation to the extension of time sought by the applicant.
There is no doubt that this appeal is well out of time. It is clear from the explanation given that the applicant had been endeavouring from the earliest time to bring an appeal. She was unable to do so because of Legal Aid's refusal to assist and her lack of funds. I consider that, because error has been shown, an extension of time should be granted to bring the appeal.
The paragraphs in Way to which Buddin J made reference are as follows: (f) The Approach to s 54B [117] In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?" [118] That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). [119] Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. [120] Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. [121] If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act. [122] In this approach 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. [123] The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range. [124] The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.
In Muldrock, the High Court said: [21] …The appellant submits that Way was wrongly decided to the extent that it held that the standard non-parole period operates as a benchmark or guidepost in sentencing for a Div 1A offence that does not fall within the middle of the range of objective seriousness. The respondent, while not critical of the analysis in Way, submits that later decisions purporting to apply that decision have evidenced a "more categorical" two-stage approach to the sentencing of offenders for Div 1A offences. The respondent acknowledges that this approach is apt to distort the exercise of the sentencing discretion and that it is not required by the terms of Div 1A. … [24] The appellant's submission, that the standard non-parole period has no role in sentencing for an offence in the low (or high) range for offences, assumes that s 54B(2) "prima facie mandates" the specification of the standard non-parole period for a midrange offence. The respondent correctly submits that there is nothing in the scheme of Div 1A to suggest that the provisions respecting standard non-parole periods apply only to a particular category of offending, whether low, middle or high range. The respondent submits that: Section 54B(2) has been said to be "mandatory" because it is in terms that "the court is to set the standard non-parole period" [respondent's emphasis] but the effect of the section is not to mandate a particular [non-parole period] for a particular category of offence rather it preserves the full scope of the judicial discretion to impose a non-parole period longer or shorter than the [standard non-parole period]. This is especially evident when read in the context of s 54C where the provisions contemplate that the court may impose no custodial sentence at all: s 54C(1). [25] The respondent's submission should be accepted. It follows from that acceptance that Way was wrongly decided. As will appear, it was an error to characterise s 54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness. Sentencing of offenders pursuant to s 54B(2) [26] Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word "unless". Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v R: [T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. (emphasis added) [27] Section 54B(2) and (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. [28] Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.
There are a number of decisions in this Court which pull in different directions when considering sentences imposed after Way and before Muldrock. On a number of occasions this has occurred because earlier decisions of this Court were not cited to the later Court.
In Butler v R [2012] NSWCCA 23, I said (Whealy JA and Rothman J agreeing): [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. [27] In the present case the remarks of the Sentencing Judge suggest that little can be pointed to as constituting error. The Sentencing Judge referred both to the maximum penalty and the standard non-parole period as two factors to be considered (Muldrock at [27]), did not engage a two stage process to sentencing (Muldrock at [28]), and did not point to any factors to justify any departure from the standard non-parole period even used only as a guideline or yardstick. To suggest that the words "yardstick" or "guideline" might now carry some different emphasis or meaning by reason of matters in Muldrock is to apply an overly analytical approach to the use of those terms.
What was said there was followed in Robert Anthony Mark Aslett v R [2012] NSWCCA 235 ("Aslett") at [29] and in Williams v R [2012] NSWCCA 172 at [27], [29], [33] and [37].
In Williams, Allsop P said at [2]: The decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 made clear that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. That does not mean that all sentences passed before Muldrock relying on Way are necessarily vitiated by operative error.
A similar approach was taken by this Court in Black v R [2013] NSWCCA 265 at [41], although neither Butler nor Williams appears to have been cited to the Court.
On the other hand, in Davis v R [2015] NSWCCA 90, where Butler, Williams and Aslett were not cited, Simpson J said (Basten JA and Adamson J agreeing) at [33]: It is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way. That is particularly so where the conviction is after trial (because Way held that standard non-parole periods did not apply to conviction following pleas of guilty, but stood as "a reference point, or benchmark, or sounding board, or guidepost" (at [122]). Even if the language of Way is not reproduced in the Remarks on Sentence, thus clearly identifying "Muldrock error" (probably more correctly called "Way error"), the strong likelihood is that the Way approach governed the sentencing. If that were not so, it would have to be concluded that the sentencing judge failed to apply the law as it was then understood and widely known. To contend otherwise, in respect of a sentence imposed for an offence to which a standard non-parole period applied between 2006 (Way) and 2011 (Muldrock) is to contend that the sentencing process miscarried and the sentencing judge failed to sentence in accordance with then established principle. As I have said above, such a conclusion is not to be lightly drawn.
In Aytugrul v R [2015] NSWCCA 139, where Butler, Williams and Aslett were not cited, Simpson J (with whom Beazley P and Adamson J agreed) made reference to what her Honour had said in Davis as follows: [20] The Crown maintained that "Muldrock error" had not been established. The written submissions were prepared, and the argument in this case was heard, before the hearing in R v Davis [2015] NSWCCA 90 and the judgment therein. In Davis, I expressed my views (which have the concurrence of Basten JA and Adamson J) concerning the approach taken by the Crown to applications for leave to appeal against sentences imposed during the period 2006-2011 in respect of offences that carry a standard non-parole period. At that time, it was understood that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 stated the law to be applied. It is to be expected that judges sentenced in accordance with what was said in Way. However, in 2011, in Muldrock, the High Court declared that Way was wrongly decided. [21] If judges during that period sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error. That is a reality that the Crown and this Court have to live with. It does not serve the administration of justice for the Crown to maintain that such error has not been shown. Implicit in such a submission is that the judge did not sentence in accordance with sentencing principles as then understood.
In DL v R (No 2), where Butler, Williams and Aslett were not cited, Rothman J said: [49] As this Court has made clear, there is every reason to suppose that a sentencing judge, prior to the delivery of the reasons for judgment in Muldrock, was having regard to the standard non-parole period in accordance with the approach, then understood to be correct, as identified in Way: see McDonald v R [2015] NSWCCA 80 (per Basten JA); Aytugrul v R [2015] NSWCCA 139 (per Simpson J, Beazley P & Adamson J agreeing); Davis v R [2015] NSWCCA 90 (per Simpson J, Basten JA & Adamson J agreeing). [50] As Simpson J (with the concurrence of Beazley P and Adamson J) said in Aytugrul: "[20] The Crown maintained that 'Muldrock error' had not been established. The written submissions were prepared, and the argument in this case was heard, before the hearing in R v Davis and the judgment therein. In Davis, I expressed my views (which had the concurrence of Basten JA and Adamson J) concerning the approach taken by the Crown to applications for leave to appeal against sentences imposed during the period 2006-2011 in respect of offences that carry a standard non-parole period. At that time, it was understood that the decision in R v Way stated the law to be applied. It is to be expected that judges sentenced in accordance with what was said in Way. However, in 2011, in Muldrock, the High Court declared that Way was wrongly decided. [21] If judges during that period sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error." The other members of the bench, Leeming JA and Wilson J, simply noted that the Crown had conceded in that case that the sentencing judge had sentenced in error contrary to what was said in Muldrock.
It may be that what appear to be two different lines of authority can be reconciled by what was said in Aldous v R [2012] NSWCCA 153 at [2]; Zreika v R [2012] NSWCCA 44 at [43]; Aslett at [32]; Bolt at [35]; Black at [41], Williams at [29] and Yun v R [2017] NSWCCA 317 at [25] that, to determine if error is identified it is necessary to read the remarks on sentence as a whole.
For the reasons which follow, if the two lines of authority are irreconcilable, it is not necessary in this present matter to determine which is correct, because a reading of the ROS as a whole indicates that the error complained of has been established.
The sentencing judge had sentenced Lea-Caton on 19 November 2007. It is scarcely surprising that when both offenders were to be sentenced for the same murder of the two deceased persons, his Honour drew on his earlier remarks concerning Lea-Caton when preparing his ROS in respect of the applicant. There were similarities in the approach to sentencing which made that appropriate.
I have already drawn attention to the submission on behalf of the applicant that the sentencing judge employed similar language concerning s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when he sentenced both Lea-Caton and the applicant. Paragraph [58] of his remarks concerning Lea-Caton is identical to par [129] of his ROS concerning the applicant. Paragraph [130] of his ROS concerning the applicant is a condensed version of par [59] of his remarks concerning Lea-Caton, with the additional portions concerning Lea-Caton reproduced in italics at [38] above.
Those additional portions of that paragraph indicate without much doubt that the approach the sentencing judge took when sentencing Lea-Caton was precisely the way mandated by Way at [117] and [118], paragraphs that seem clearly to have been disapproved in Muldrock. That is because his Honour said in Lea-Caton at [59]: It is common ground that I should impose a non-parole period which is in each case considerably shorter than the standard non-parole period. I intend to do so primarily because of the offender's plea of guilty… I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance "as a reference point, benchmark, sounding board or guidepost".
Although his Honour did not expressly say at [130] of his ROS in respect of the applicant that he should depart from the SNPP, there is a strong inference that his Honour has adopted the same approach with regard to the applicant as he did with Lea-Caton. That inference is strengthened by his Honour's express regard for the principles set out in Way, as his Honour said at [129].
The inference is further strengthened when regard is had to the arithmetic. This was a consideration which was regarded as relevant in Bolt at [35]-[37], in Yun at [30] and in Buttrose v Attorney-General (NSW) [2015] NSWCA 221 at [21] - [23].
The non-parole period of 18 years' imprisonment for each of the murders represents a 10% discount which his Honour recorded for the guilty plea from the SNPP. Further, although his Honour found that the objective seriousness was "slightly above the 'middle of the range'", he allowed a further reduction of "modest proportions" for her contrition. All of that, together with the positive finding about rehabilitation immediately after the discussion about the SNPP, leads to a strong inference that the SNPP was the pivotal matter.
Again, if one were to increase the overall sentence of 26 years by the 10% discount, the starting point would be so unusual as to suggest that the entire sentencing process was in fact driven by the SNPP. The balance of term of eight years appears to have been calculated to fit in with the non-parole period, and an adjustment for special circumstances that his Honour explained at [137] was made only because of the partial accumulation of the four sentences.
In my opinion, error is shown, and the ground should be upheld.

Resentence

Both parties agreed that if the applicant was to be resentenced, she should be sentenced on the basis of the findings and determinations of the sentencing judge. It was also agreed that the 30 year starting point in respect of the sentence on Lea-Caton was a convenient yardstick to take into account when sentencing the applicant, given the finding that the same level of objective gravity applied to their involvement in the murders. The undiscounted starting point for Lea-Caton was said by the sentencing judge to be 30 years' imprisonment for each of the murders.
Independently of the concession and agreement by the parties concerning the assessment of objective seriousness, I would have concluded that the objective seriousness was slightly above the mid-range.
A number of affidavits were read on the usual basis, if the Court came to resentence. Those affidavits included one from the applicant which attached a lengthy letter to this Court, affidavits from her mother and her brother, an affidavit from Shyfali Jain, the applicant's present partner and the person who funded the present appeal, and an affidavit from the applicant's solicitor. That material bears out the sentencing judge's assessment that there was considerable room for optimism concerning her prospects of rehabilitation. His Honour said his only reservation about that was that the applicant was, at the time of sentence, "still unable to accept anything approaching complete responsibility for her actions".
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I would discount the sentences by 10% for the applicant's late plea. There will be a combined discount of 12.5%.
I find special circumstances only by reason of the accumulation of the two sentences, so that the overall sentence maintains the statutory ratio. The accumulation, in combination with the adjustment for special circumstances, means the total effective non-parole period will be around 76% of the total sentence.
I would commence with a total sentence of 27½ years for each of the murder charges. Applying the 12.5% discount, the total sentence (slightly rounded down) for each of those offences would be 24 years. I would set a non-parole period of 17 years for each offence. Staggering the commencement dates of these sentences will result in accumulation of the two sentences by a period of 5½ years. The total effective sentence would be one of 29½ years with a total effective non-parole period of 22½ years.
I propose the following orders: 1. Extend time for the bringing of the appeal to 1 April 2022. 2. Grant leave to appeal. 3. Uphold the appeal. 4. Quash the sentences imposed by Buddin J in this Court on 5 September 2008 for Counts 2 and 4. 5. In lieu, sentence the appellant as follows: 1. For the murder of Gregory Hosa, sentenced to a non-parole period of 17 years imprisonment to commence on 29 January 2006 and to expire on 28 January 2023 with a balance of term of 7 years expiring on 28 January 2030. 2. For the murder of Kathryn McKay, sentenced to a non-parole period of 17 years imprisonment to commence on 29 July 2011 and to expire on 28 July 2028 with a balance of term of 7 years expiring on 28 July 2035. 1. The applicant will first be eligible for release to parole at expiration of the non-parole period for the murder of Kathryn McKay. 2. The applicant is warned that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to her and to these offences and her lawyers are directed to advise her of the possible implications to her of the provisions of that Act. 3. Order pursuant to s 7 of the Courts (Suppression and Non-publication) Orders Act 2010 (NSW) that there be no publication of the redacted parts of the judgment throughout the Commonwealth for a period of 15 years on the grounds contained in s 8(1)(a) and (c) of the Act.
HAMILL J: I agree with the orders proposed by Davies J and with his Honour's reasons. I also agree that it is not necessary to attempt to resolve any perceived conflict in the authorities as to the proper application of Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 to cases decided before that decision was published. Each case will be determined by a review of the reasons of the sentencing Judge and on its own facts. In this case, as Davies J demonstrates, error is established by reference to the text of the sentencing remarks in the applicant's case and that of her co-offender, and by the arithmetic and unusual starting point suggesting, as Davies J puts it, that the process was "driven by" the standard non-parole period.

Amendments 30 June 2023 - Interim non-publication order revoked and new order put on coversheet and para [75] of judgment. 30 June 2023 - Typographical note on title page 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: 30 June 2023

Courts (Suppression and Non-publication) Orders Act 2010(NSW)s 10

Crimes Act 1900(NSW)ss 18, 86

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