Further Application by Gil Bum Yun Pursuant to s.78 Crimes (Appeal and Review) Act 2001

1. [1]

   JOHNSON J: The Applicant, Gil Bum Yun, applies for an inquiry into his sentence under s.78(1) Crimes (Appeal and Review) Act 2001 (“Appeal and Review Act”).

2. [2]

   The Applicant seeks the referral of his matter to the Court of Criminal Appeal to be dealt with as a sentence appeal under the Criminal Appeal Act 1912. The application is based upon suggested error arising from the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”)

3. [3]

   The Applicant is presently serving a sentence of imprisonment for murder imposed by the Court of Criminal Appeal on 2 June 2008. The sentence is comprised of a non-parole period of 18 years commencing on 9 May 2003 and expiring on 8 May 2021 with a balance of term of six years commencing 9 May 2021 and expiring on 8 May 2027: Yun v R (2008) 185 A Crim 58; [2008] NSWCCA 114.

An Earlier s.78 Application

1. [4]

   On 19 June 2014, Hoeben CJ at CL refused an earlier application by the Applicant under s.78 Appeal and Review Act with respect to the same sentence: Application by Gil Bum Yun pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 824. Hoeben CJ at CL was not persuaded that Muldrock error occurred in the resentencing of the Applicant by the Court of Criminal Appeal.

The Present Application

1. [5]

   By application filed on 14 December 2016, the Applicant renewed his s.78 application with particular reliance being placed upon the judgment of the Court of Appeal in Buttrose v Attorney-General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221 (“Buttrose”).

2. [6]

   In written submissions filed in response to the application, Mr McGorey, counsel for the Attorney-General for New South Wales (“the Respondent”), accepted that it was open to the Court to be satisfied that it appears there is a doubt or question as to mitigating circumstances in the Applicant’s case, so that referral of the matter to the Court of Criminal Appeal was open in the exercise of discretion. The Respondent’s submissions explained that this approach did not constitute a concession that the Court of Criminal Appeal would, on appeal, find error established or that a lesser sentence is warranted in law.

3. [7]

   In written submissions filed in reply, counsel for the Applicant noted the position of the Respondent and requested that the whole of the Applicant’s matter be referred to the Court of Criminal Appeal to be determined as if an appeal.

The Applicant’s Offence of Murder

1. [8]

   The Applicant was convicted of the stabbing murder of Sun Chun Zie following a trial before Newman AJ and a jury in 2005. Newman AJ sentenced the Applicant to a total term of imprisonment of 26 years and eight months with a non-parole period of 20 years commencing on 9 May 2003: R v Yun [2006] NSWSC 258.

2. [9]

   In the judgment arising from the 2014 application, Hoeben CJ at CL summarised the facts of the offence at [5]-[9]:

3. [10]

   Hoeben CJ at CL continued at [10]-[11]:

4. [11]

   In the course of allowing the appeal and resentencing the Applicant on 2 June 2008, the Court of Criminal Appeal (Beazley JA, Barr and Hoeben JJ) said at 63-64 [29]-[31]:

5. [12]

   With respect to resentencing, the Court said at 65 [34]-[35]:

6. [13]

   In refusing the 2014 application, Hoeben CJ at CL said at [20]-[22]:

Sections 78 and 79 Appeal and Review Act

1. [14]

   The terms of ss.78 and 79(1) and (2) Appeal and Review Act should be noted:

Muldrock and Subsequent Decisions Concerning the Proper Construction of ss.78-79

1. [15]

   The decision in Muldrock has given rise to a significant number of applications being made to the Supreme Court under s.78 Appeal and Review Act.

2. [16]

   The decision of the Court of Appeal in Sinkovich v Attorney-General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (“Sinkovich”) made clear that a claim of Muldrock error could give rise to a s.78 application. The Court accepted that “a doubt or question … as to any mitigating circumstances in the case or as to any part of the evidence in the case” for the purpose of s.79(2) Appeal and Review Act was capable of accommodating a claim of Muldrock error in a particular case. In Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10, the High Court, at 162-163 [35], noted the decision in Sinkovich with respect to Muldrock error.

3. [17]

   It must be said that there is some tension in the description of s.79(2) in Sinkovich. In the leading judgment of the Court, Basten JA referred to the “gateway” in s.79(2) at 790 [25]-[26] using the words contained in that provision (emphasis added):

4. [18]

   Later, at 796 [51], Basten JA described the process without reference to the word “appears” (emphasis added):

5. [19]

   Basten JA said at 795 [53] (emphasis added):

6. [20]

   On 19 June 2014, Hoeben CJ at CL was not satisfied that Muldrock error had occurred in the Applicant’s case and the first s.78 application was refused.

7. [21]

   On 31 July 2015, the Court of Appeal gave judgment in Buttrose. Beazley P and Leeming JA emphasised the low threshold set by s.79(2). Their Honours said at 566 [16]-[17] (emphasis added):

8. [22]

   Beazley P and Leeming JA said at 567 [26] (emphasis added):

9. [23]

   The submissions of the Applicant in support of the present application rely upon what was said in Buttrose to contend that Hoeben CJ at CL did not apply the correct test under s.79 in determining the first application in 2014. It is said, amongst other things, that his Honour considered whether there was a doubt or question rather than whether it appeared that there was a doubt or question.

10. [24]

    The written submissions for the Respondent make clear that it is the low threshold confirmed by the Court of Appeal in Buttrose which founds the concession made that the Supreme Court should refer the matter to the Court of Criminal Appeal under s.79 Appeal and Review Act.

11. [25]

    Having considered the matters raised, I propose to refer the matter to the Court of Criminal Appeal as requested.

Some Observations Concerning the Operation of ss.78 and 79 Appeal and Review Act With Respect to Sentence

1. [26]

   Before doing so, I wish to make a number of observations concerning the operation of ss.78 and 79 in the area of sentencing.

2. [27]

   As noted in Sinkovich (at 792-793 [33]-[41]), these provisions are the statutory successor to s.475 Crimes Act 1900 and s.26 Criminal Appeal Act 1912.

3. [28]

   Prior to its removal in 1993, s.475(1) Crimes Act 1900 was expressed as follows (emphasis added):

4. [29]

   In 1993, s.475 was removed and replaced by provisions contained in Part 13A Crimes Act 1900. These changes were effected by the Crimes Legislation (Review of Convictions) Amendment Act 1993. It was that Act which inserted ss.474D and 474E which (subject to amendment in 1996) are now contained in ss.78 and 79 Appeal and Review Act. The words contained in s.475(1) were not repeated. As enacted in 1993, s.474E(1) and (2) provided (emphasis added):

5. [30]

   It was the 1993 amendments which introduced the formula “if it appears that there is a doubt or question”.

6. [31]

   In the second reading speech for the Crimes Legislation (Review of Convictions) Amendment Bill 1993, the Attorney-General, the Honourable JP Hannaford, noted that the background to the 1993 amendments included an Issues Paper prepared by the Criminal Law Review Division in November 1992 entitled “Reform of Section 475 of the Crimes Act”. It is clear that the focus of the amendments was on convictions, with no reference in the second reading speech to sentence. In the course of the second reading speech, the Attorney-General said (Hansard, Legislative Council, 27 October 1993):

7. [32]

   The Attorney-General concluded the second reading speech in the following way:

8. [33]

   Perusal of the Issues Paper prepared by the Criminal Law Review Division in November 1992 indicates that no proposal was made which would affect the operation of these sections in the area of sentencing. Nor was there any reference to a proposed formula as included in s.474E(2) - “it if appears that there is a doubt or question”.

9. [34]

   The Issues Paper explained its origin as follows:

10. [35]

    The provisions in Part 13 of the Crimes Act 1900 were amended further by the Crimes Amendment (Review of Convictions and Sentences) Act 1996. In Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143, Wood CJ at CL described the 1996 Act at 155 [23]:

11. [36]

    In September 1996, Barr J held that the provisions in Part 13 were concerned only with inquiries into convictions and not into sentences: Application Pursuant to s.474D Crimes Act 1900 by James William Shepherd (unreported, 13 September 1996); Application of Pearson at 159 [45]; Sinkovich at 793 [40].

12. [37]

    At the time of Barr J’s decision, steps were already underway to amend the provisions in Part 13A. In the second reading speech for the Crimes Amendment (Review of Convictions and Sentences) Act 1996, the Attorney General, the Hon JW Shaw, said (Hansard, Legislative Council, 12 September 1996):

13. [38]

    Against this background, the decision in Sinkovich is of particular significance. The New South Wales Law Reform Commission referred to this decision in Report 140, “Criminal Appeals” (March 2014) at paragraphs 13.37-13.41 (footnotes omitted) (emphasis added):

14. [39]

    Since that Report was published in March 2014, the decision in Buttrose has demonstrated further the low threshold involved for the purpose of a s.78 application with respect to sentence.

15. [40]

    It is necessary to keep in mind that the test in s.79(2) involves the appearance of a doubt or question, and not satisfaction that there is a doubt or question. It is this distinction which was emphasised in Buttrose (see [21] above).

16. [41]

    It might be thought that the present construction of s.79(2) is distant from the understanding of s.475 Crimes Act 1900, and the replacement provisions in ss.474D and 474E as introduced in 1993 and further amended in 1996. Although it is clear (at least since 1996) that an application may relate to sentence only, the test to be applied in s.79(2) is limited to the appearance of a doubt or question and not satisfaction of the existence of a doubt or question.

17. [42]

    In Cornall v AB (A Solicitor) [1995] 1 VR 372, the Appeal Division of the Supreme Court of Victoria (Ormiston, Coldrey and O’Bryan JJ) observed at 392:

18. [43]

    Their Honours concluded, in the context of a provision which involved the formation of an “opinion that there appears to have been misconduct or a standards breach” on the part of a legal practitioner, that the provision was not intended to require more than the proof of a prima facie case. In explaining this conclusion, their Honours said at 392-393 (emphasis added):

19. [44]

    The operation of ss.78 and 79 since Buttrose means that a Judge of the Supreme Court will be considering, in the area of sentencing, a past decision of a sentencing court for the purpose of deciding if there appears to be a doubt or question as to a suggested sentencing error arising in the case. The Judge will not be considering whether there is a doubt or question in this respect, but whether it appears that there is a doubt or question. If it so appears, the gate is opened and the Judge will refer the matter to the Court of Criminal Appeal to decide the case as if on appeal to that Court under the Criminal Appeal Act 1912.

20. [45]

    The process being undertaken by the Supreme Court Judge under s.79(2) is not analogous to that considered in cases such as Cornall v AB where the decision maker is determining, as a filtering process, whether a matter should proceed further for hearing and determination on the evidence which will be adduced at what would ordinarily be a hearing on the merits.

21. [46]

    In the case of s.79(2), the sentencing hearing will have already occurred in the first-instance court and there may have been (as in the Applicant’s case) an appeal to the Court of Criminal Appeal after the original sentence. In this case, the Applicant brought an unsuccessful s.78 application in 2014 and now seeks to bring another one taking advantage of the construction of ss.78 and 79 arising from the decisions in Sinkovich and Buttrose.

22. [47]

    The test involved under s.79(2) is to be contrasted with an application for leave to appeal against sentence to the Court of Criminal Appeal or for an extension of time to appeal: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

23. [48]

    Further, if a referral under ss.78 and 79 is made to the Court of Criminal Appeal, then any requirement for an extension of time or leave to appeal against sentence under s.5(1)(c) Criminal Appeal Act 1912 is bypassed: Carlton v R [2014] NSWCCA 14 at [9]-[38].

24. [49]

    It may be seen that satisfaction of the low threshold in s.79(2) permits an applicant to side step the requirements for leave to appeal and extension of time which would otherwise apply. This would have been achieved by discharge of the low threshold in s.79(2). It might be suggested that this is a curious, if not anomalous, position.

25. [50]

    The concept of finality in the area of sentencing must be approached with the interests of justice in mind: Sinkovich at 793-796 [42]-[54]. However, it might be thought that the low threshold contained in s.79(2) is not consistent with a reasonable expectation of finality in the area of sentencing.

26. [51]

    In my view, there is scope for these provisions to be revisited by the relevant authorities with a view to narrowing their scope in the area of sentencing.

27. [52]

    As the Attorney-General for New South Wales is a party to these proceedings, I will proceed upon the basis that these observations will be brought to his attention without any recommendation from the Court that this should occur.

Returning to the Present Application

1. [53]

   If I was determining whether there was a doubt or question as to sentence in this case, I would reach the same conclusion as Hoeben CJ at CL with respect to the 2014 application (see [13] above).

2. [54]

   However, the task under s.79(2) is to consider whether it appears that there is a doubt or question as to sentence. The appearance of a doubt or question arises here because:

3. [55]

   The low statutory threshold in s.79(2) has been reached in this case. This conclusion, of course, does not mean that I am satisfied that a doubt or question as to sentence actually exists, let alone that the Applicant has demonstrated error under the Criminal Appeal Act 1912, so as to engage s.6(3) of that Act.

4. [56]

   On the material placed before the Court in support of the present application, and having regard to the submissions of the parties, I accept that it appears that there is a doubt or question as to whether Muldrock error occurred when the Court of Criminal Appeal sentenced the Applicant for murder on 2 June 2008.

5. [57]

   I refer the whole of the Applicant’s case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912.