Application by Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   This is an application made pursuant to Part 7 Division 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (a "Part 7 application") for an inquiry into the sentence imposed upon Darush Majid ("the applicant").

2. [2]

   What is sought is a referral of the whole of the case to the Court of Criminal Appeal in order for it to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW). Such a course is authorised by s 79(1)(b) of the Crimes (Appeal and Review) Act but, pursuant to s 79(2), 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". This extends to a "doubt or question" as to the sentence passed: Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at 791-792 [28]-[32].

3. [3]

   The applicant was found by a jury to be guilty of three offences against the Crimes Act 1900 (NSW). He was sentenced in the District Court by Puckeridge QC DCJ on 18 December 2008 to a total of 14 years 6 months with a non-parole period of 10 years 6 months. He appealed and was resentenced by the Court of Criminal Appeal on 11 June 2010: Majid v R [2010] NSWCCA 121 to a total of 14 years with a non-parole period of 10 years 6 months.

4. [4]

   The offences and the original sentences were as follows:

5. [5]

   The total effective sentence was 14 years 6 months with a non-parole period of 10 years 6 months from 13 April 2008.

Sentencing in the District Court

1. [6]

   The sentencing remarks of Puckeridge QC DCJ may be summarised:

2. [7]

   The Crown Prosecutor raised with his Honour the fact that he had not made a finding of special circumstances in connection with his imposition of a parole period on count 2 that exceeded one-third of the non-parole period: s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW). In the discussion which ensued it is clear that his Honour had intended to impose a total effective sentence of 14 years for all of the offences, whereby the non-parole period would be 10 years 6 months, precisely three-quarters of the total term. The Crown Prosecutor took it as an indication that special circumstances were found on the basis of accumulation of sentences. However, the effect of the individual sentences was that the total effective sentence was one of 14 years 6 months with a non-parole period of 10 years 6 months.

The appeal to the Court of Criminal Appeal

1. [8]

   There were five grounds of appeal:

2. [9]

   Ground 1 was upheld. It is appropriate to set out in full what was said about it by Johnson J (with whom Simpson J (as her Honour then was) and McCallum J agreed):

3. [10]

   Ground 2 (insufficient weight to post-traumatic stress disorder) was rejected on the basis that "it is difficult to see how the applicant's condition could have warranted greater weight on sentence in the circumstances of this case": Johnson J at [42].

4. [11]

   Ground 3 (insufficient weight to expressions of contrition and remorse) was rejected on the basis that "no error has been demonstrated in the way in which the sentencing judge had regard to the very late expression of contrition and remorse by the applicant": Johnson J at [51].

5. [12]

   Ground 4 (insufficient weight to protective custody) was rejected, essentially on the basis of there being a lack of evidence of the circumstances pertaining to the applicant's experience in protective custody: Johnson J at [56]-[59].

6. [13]

   Ground 5 (manifest excess) was rejected because it had not been demonstrated that the sentences were unreasonable or plainly unjust (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]). It is useful to note the reasoning in the judgment of Johnson J:

7. [14]

   The success of Ground 1 of the appeal necessitated the Court resentencing the applicant. The judgment of Johnson J dealt with that issue as follows:

8. [15]

   In summary, it is apparent that the Court of Criminal Appeal resentenced on the basis confined to correcting an obviously unintended mathematical error by the primary judge. No other error by the sentencing judge had been established. The Court did not engage in a complete re-exercise of the sentencing discretion. It is also at least arguable that both the primary judge and the Court considered that the prescribed standard non-parole period for the offence in counts 1 and 2 had determinative significance once the relative level of objective seriousness of the offence in those counts had been assessed. A two-staged approach to the assessment of sentence is also arguably evident, at least in the judgment of the primary judge perhaps implicitly endorsed by the Court.

9. [16]

   In the foregoing I have couched my language guardedly ("arguable") because it is not my function to make a determination of whether error occurred. My function is to determine whether there "appears" to be a doubt or question as to the sentence.

Muldrock v The Queen

1. [17]

   Subsequent to the Court of Criminal Appeal’s judgment, on 5 October 2011 the High Court gave judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. It held that previous authority in the Court of Criminal Appeal for the manner in which sentencing is to proceed for an offence for which there is prescribed a standard non-parole period (R v Way [2004] NSWCCA 131; 60 NSWLR 168) was wrongly decided. It was held, inter alia, that it was wrong to give the standard non-parole period determinative significance; to adopt a two-staged approach to sentencing; and to take into account subjective circumstances in assessing the objective seriousness of the offence.

First Part 7 Application

1. [18]

   The applicant subsequently made his first Part 7 application based upon an assertion that there had been "Muldrock-error" both at first instance and in the Court of Criminal Appeal. The application was determined by Bellew J on 3 June 2014: Application by Darush Majid pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 709. His Honour's reasons for refusing the application were as follows:

Kentwell v The Queen

1. [19]

   Subsequent to Bellew J's determination, on 9 October 2014 the High Court gave judgment in Kentwell v The Queen [2014] HCA 37; 252 CLR 601. It held (in part):

Buttrose v Attorney General of New South Wales

1. [20]

   On 31 July 2015 the Court of Appeal gave judgment in Buttrose v Attorney General of New South Wales [2015] NSWCA 221. It made clear that the issue for a judge determining (administratively) a Part 7 application was concerned with whether there "appears" to be a doubt or question on a relevant matter; not whether there is in fact such a doubt or question: see Beazley P and Leeming JA at [16].

The present application

1. [21]

   The present Part 7 Application was made after the decision in Kentwell v The Queen whereas the determination of the first Part 7 Application was made before it. "Kentwell error" is now relied upon as part of the basis upon which it is said there appears to be a doubt or question as to the applicant's sentence. For this reason it is appropriate for the application to be considered and determined, notwithstanding there has been a previous application (see s 79(3)(a)(ii)).

2. [22]

   The application was filed on 27 January 2016. A copy was sent to the Attorney General and to the Crown Solicitor's Office the following day. Submissions on behalf of the Attorney General were filed on 3 March 2016. A copy of the latter was provided to the applicant's solicitor. Further written submissions in support of the application were filed on 23 March 2016.

Applicant's submissions

1. [23]

   Written submissions in support of the application made plain from the beginning that its basis is that "there is the appearance of a doubt or question as to a mitigating circumstance in the applicant's case. The applicant may have been erroneously sentenced in two respects, first contrary to Kentwell v The Queen … and second, in accordance with sentencing principles held by the High Court to be incorrect in Muldrock v The Queen”.

2. [24]

   The submissions by counsel for the Attorney General concede Kentwell-error but dispute Muldrock-error. No specific submissions were made in relation to the latter in the light of the former. However, it was also said that “it would be open to the judge considering this application to form the subjective view that it ‘appears’ to him or her that there is a doubt or question as to a mitigating circumstance in the applicant’s case, namely whether his sentence was infected by Muldrock error.

3. [25]

   Having regard to the view I have formed it is unnecessary to review all of the submissions that were made on the applicant’s behalf (which were extensive). One matter that does warrant comment is the assertion (at [10]-[11] of the submissions) that Bellew J, in determining the first Part 7 application, applied a test that was contrary to what was subsequently held in Buttrose v Attorney General of New South Wales by saying that he was “not persuaded that there was any Muldrock-type error”.

4. [26]

   I do not accept that criticism as valid. As I read his Honour’s reasons, he was saying that he did not perceive any error; in other words, it did not “appear” to him that there was any such error. Moreover, his Honour was not considering the matter in the absence of some later elucidation of the legislation. The legislation is clear in its terms in that s 79(2) explicitly states that the question is one of whether “it appears there is a doubt or question”.

5. [27]

   As the determination of the present application does not turn on the correctness or otherwise of the determination by Bellew J of the first application there is no need to say anything more about it.

6. [28]

   It was submitted that the Court of Criminal Appeal erred in adopting an approach to resentencing that was confined to the identified error. The submissions quoted the passage from Kentwell v The Queen at [42]-[43] that I have earlier set out.

7. [29]

   The submissions also cited the judgment of Hoeben CJ at CL in Liles v R (Cth) [2014] NSWCCA 289 in which his Honour said (at [55]):

8. [30]

   It was argued that because the Court of Criminal Appeal held that the primary judge’s error was not “a mere technical error” it did not fall within the category of errors that do not vitiate the sentencing discretion envisaged in Kentwell v The Queen at [42]. Accordingly, it was contended, it became the duty of the Court to completely exercise the sentencing discretion afresh. As illustrative of the asserted failure of the Court to do this, reference was made to there having been an affidavit of the applicant’s solicitor read at the hearing of the appeal which contained material relating to the applicant’s good conduct in custody since sentencing. No reference was made to this in the Court’s judgment.

9. [31]

   In my view there is a very real question about whether the High Court in Kentwell v The Queen was speaking about the approach to resentencing in every possible situation in which the sentencing discretion of the primary judge is found to have been vitiated. The case before it, and the case of Liles v R (Cth) to which the applicant referred (and Youssef v R [2014] NSWCCA 285 to which the Attorney General referred), were concerned with errors that had a potential impact upon the entire sentence. There are cases in which the only error for which an appellant contends, or the only error upheld on appeal, concerns some discrete component of the sentence that could have no bearing upon the entire sentence.

10. [32]

    I have written in draft in a judgment presently reserved before the Court of Criminal Appeal the following “observations” which I am prepared to adopt for present purposes to illustrate the point just made:

11. [33]

    As indicated there, the point has not been the subject of any considered decision of the Court of Criminal Appeal. So, for the purposes of this application, it has to be said that there “appears” to be question or doubt as to whether the Court of Criminal Appeal, in determining the applicant’s appeal in 2010, proceeded to resentence in a fashion that was contrary to what was subsequently held by Kentwell v The Queen to be necessary.

12. [34]

    With great respect to Bellew J, I am satisfied that there appears to have been “Muldrock-error” in the approach by the primary judge to sentencing. It is evident from the following passage that he gave the standard non-parole period determinative significance.

13. [35]

    His Honour’s reasoning indicates that he may have considered that unless there was some reason not to impose the standard non-parole period for an offence which he implicitly found was within the middle of the range of objective seriousness he had to impose a sentence with a non-parole period the same as the prescribed standard.

14. [36]

    It is also apparent that his Honour may have adopted a two-staged approach by having first determined the objective seriousness of the offence in count 1 as “not significantly below” the middle of the range and the offence in count 2 as being within the middle of the range. The non-parole periods then imposed fell into place in accordance with such findings by reference to the prescribed standard.

15. [37]

    It was also argued for the applicant that his Honour also took into account subjective matters in his assessment of the objective seriousness. I do not accept that this appears to be the case. The submission was based upon his Honour’s statement within the passage quoted above: “balancing those matters which I have previously considered”. It was argued that the matters “previously considered” included subjective matters. I do not consider that submission has been made good. The matters he previously considered included objective matters relevant to the offending and I take his Honour as having them in mind.

16. [38]

    There was no reassessment of the sentence pursuant to the correct approach identified in Muldrock by the Court of Criminal Appeal when moving to the question posed by s 6(3) of the Criminal Appeal Act. It is implicit that the Court saw nothing wrong with the approach adopted by the primary judge. That is understandable as it was consistent with the prevailing (but erroneous) understanding of the law. Accordingly, the possibility of Muldrock-error in the original sentencing exercise appears to have permeated the resentencing exercise.

17. [39]

    For these reasons I am of the view that there appears to have been Muldrock-error in the sentencing of the applicant by the Court of Criminal Appeal.

Conclusion

1. [40]

   The applicant’s submissions, as I have said, were extensive. They raised a considerable number of other points to which I have not referred because to do so is unnecessary. It is sufficient for me to state my conclusions as follows:

2. [41]

   I refer the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).