Application of FD

1. [1]

   Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (“the Act”), FD (“the applicant”) applies for an inquiry into the sentence imposed upon him. The applicant seeks that his case be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912: s 79(1)(b) of the Act.

2. [2]

   The application is opposed by the Attorney-General for the State of New South Wales.

Relevant Legislation

1. [3]

   Sections 78 and 79 of the Act are relevantly in the following terms:

Applicable Principles

1. [4]

   In determining this application, the Court is engaged in an administrative task or function. That function is not another avenue of appeal, but is rather a function engaged in when the criminal justice system has run its course: see Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4] ff per Johnson J. That the proceedings are not judicial proceedings is made clear by the legislation: s 79(4) of the Crimes (Appeal and Review) Act.

2. [5]

   The power which the Court is exercising is one limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. The test to be applied is whether it appears that there is a doubt or question as to any mitigating circumstances in the case. This view may be formed where the material causes “… the person considering the matters unease or a sense of disquiet in allowing the sentence to stand”: Holland at [6].

Relevant Facts

1. [6]

   On 10 December 2004, FD was found guilty of three charges:

2. [7]

   The convictions followed not guilty pleas to each of the offences, and a trial lasting some weeks.

3. [8]

   Levine J sentenced FD on 25 February 2005. It is with respect to that sentence that FD seeks a referral to the Court of Criminal Appeal pursuant to Pt 7 of the Act. The sentencing remarks of Levine J are to be found in R v FD; R v JD [2005] NSWSC 128.

4. [9]

   His Honour described the facts in the following way:

5. [10]

   His Honour drew the following conclusions:

The Sentence

1. [11]

   Levine J noted that at the time he committed the offences, FD was on a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.

2. [12]

   His Honour then noted that it was the Crown’s submission that he would be persuaded that whilst the offence did not fall within the most serious category of murder, it fell within the “more serious category”. His Honour considered the basis upon which the Crown put that submission, and ultimately came to the conclusion that:

3. [13]

   His Honour had earlier indicated that he did not accept that the murder was committed by FD with an intention to kill, but rather found that it was committed whilst he had an intention to inflict grievous bodily harm.

4. [14]

   In the course of discussing the objective seriousness of the murder, Levine J dealt with the decision of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, and the standard non-parole period in two passages to which the applicant points as indicating that his Honour fell into error. Those passages are as follows:

5. [15]

   His Honour then went on to deal with the offence of malicious wounding, which he regarded as particularly serious and above the mid-range. With respect to the robbery, his Honour described the crime as callous and that FD was the principal planner of the joint enterprise.

6. [16]

   His Honour then referred to the subjective case of FD. He noted that he could find no evidence of contrition and that he did not regard there to have been any expression of remorse.

7. [17]

   His Honour then addressed the mitigating and aggravating factors set forth in s 21A of the Crimes (Sentencing Procedure) Act and noted that:

8. [18]

   His Honour the concluded in the following terms:

9. [19]

   Ultimately, he imposed the following sentences:

10. [20]

    Putting it simply, the sentences on the first two terms would all expire during the non-parole period for the offence of murder. That non-parole period of 18 years was accumulated by a period of 2 years on the earlier sentences.

11. [21]

    In total FD was sentenced to an effective non-parole period of 20 years with a balance of term, effectively, of 6 years.

Court of Criminal Appeal

1. [22]

   In February 2006, the Court of Criminal Appeal dismissed FD’s appeal against his conviction. It granted him leave to appeal against his sentence, but dismissed the appeal. It also dismissed the Crown appeal against sentence. The reasons are to be found in R v FD [2006] NSWCCA 31; (2006) 160 A Crim R 392

2. [23]

   In his Application for Leave to Appeal against sentence, the applicant argued that Levine J had erred in three respects, namely:

3. [24]

   As well, the applicant argued that his sentence was manifestly excessive.

4. [25]

   The reasons of the Court of Criminal Appeal dealing with each ground of appeal against sentencing were concise. Sully J (with whom Hall J agreed) held, having regard to the facts of each of the offences, and in particular, that the offences were committed against three separate victims, that it was appropriate for the sentencing Judge, Levine J, to reflect in a real way the total criminality of the applicant’s conduct by “… a prudent measure of cumulation”.

5. [26]

   With respect to the second ground, the Court held that Levine J had made a proper assessment of the relative subjective features of FD’s case, and that there was no remaining basis.

6. [27]

   The Court of Criminal Appeal noted that there had been a concession by counsel at first instance that he could point to no real special circumstances.

7. [28]

   When dealing with the third ground of appeal, the Court of Criminal Appeal held that there was no parity issue which arose between the cases of FD and JD, because by the time they stood for sentence their respective positions were “so manifestly different in substance that no parity point … could be said to arise at all”.

8. [29]

   With respect to the final submission of manifest excess of the sentences, Sully J said this at [87]:

9. [30]

   It will be observed that in dealing with the application for leave to appeal against sentence, and the appeal itself, Sully J (with whom Hall J agreed) made no mention at all of the standard non-parole period for any of the offences, and undertook no analysis whatsoever by reference to the standard non-parole period. Of course, in the introduction to the appeal, and the issues with which the Court was confronted, Sully J did set out with respect to each offence, the statutory maximum penalty of imprisonment and, where applicable, the standard non-parole period.

10. [31]

    However, in the course of considering the Crown appeal against sentence, Sully J made these remarks:

11. [32]

    It can be seen that the reference by Sully J in the extract above to the existence of the standard non-parole period was in the context, not of considering whether the sentencing Judge had erred, or fixed a manifestly excessive sentence, but rather in the context of the necessity to determine where the objective seriousness of the offence of murder a finding should be made, so as to deal with a submission (which was unsuccessful) being made by the Crown, that the sentence of FD ought to be increased.

12. [33]

    Paradoxically, in the circumstances of this application, the complaint made by the Crown on its appeal against sentence, which was ultimately dismissed, was that the sentencing Judge did not say that he was taking a staged approach to the sentence (as was submitted he was required to do). The substance of the Crown appeal on sentence was that his Honour had, without addressing correctly the principles in R v Way, imposed a non-parole period for the offence of murder which was less than the statutory non-parole period.

13. [34]

    In dealing with these complaints, Sully J said:

14. [35]

    It is convenient to record here the short contents of [54] of Levine J’s Remarks on Sentence, which were in this form:

Discernment

1. [36]

   It is submitted by the applicant that Levine J, having found that the offence was above a mid-range offence, must be taken to have used the standard non-parole period of 20 years as the starting point for the assessment of the appropriate sentence, and that the only reason the sentence fell below the standard non-parole period was because of totality.

2. [37]

   This, it was submitted, is an error of law having regard to the way in which the High Court has in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 expressed the correct principles for sentencing.

3. [38]

   I am quite unable to see that Levine J made any error of law in imposing the sentence on the applicant.

4. [39]

   Muldrock establishes the proposition that a sentencing Judge is required, amongst other things, to have regard to the maximum penalty for an offence, and any standard non-parole period which has been fixed for that offence, as “legislative guideposts” with respect to the appropriate sentence. Those guideposts are to be considered together with all other relevant factors, not including characteristics of an offender, in a process of instinctive synthesis to arrive at the appropriate sentence.

5. [40]

   It seems to me that a careful reading of the Sentencing Remarks of Levine J does not enable a conclusion that his Honour engaged in an impermissible approach to the sentencing of FD. On the contrary, he undertook the process of instructive synthesis, recognising that the standard non-parole period was a guidepost. Notwithstanding his conclusion about the objective seriousness of FD’s conduct, Levine J in fact imposed a sentence for the offence of murder which was less than the standard non-parole period.

6. [41]

   I am unable to conclude with respect to Levine J’s sentence, that there has been any error of a kind that would require a court to intervene. I do not have a doubt or question as to any mitigating circumstances in the case of FD considering the sentence imposed. There is no basis for any referral under Pt 7 of the Crimes (Appeal and Review) Act with respect to Levine J’s sentence.

7. [42]

   The Court of Criminal Appeal did not impose a sentence. Accordingly, it is, strictly speaking, unnecessary to consider whether there has been any doubt or question of the kind necessary to cause an order under the legislation with respect to the sentence.

8. [43]

   However, having carefully read the remarks of Sully J (with whom Hall J agreed), I am not left with any doubt or question of the way in which the applicant’s appeal against sentence was dealt with.

9. [44]

   In particular, when dismissing the applicant’s submission that the sentence was manifestly excessive, it is clear that his Honour’s remarks centred upon the nature of the conduct involved in the offence, the fact that the conduct involved three different victims and that the offences were serious. The dominating principle was one of aggregate totality for all three of the convictions.

Conclusion

1. [45]

   It follows that the applicant’s application under Pt 7 of the Crimes (Appeal and Review) Act must be dismissed.

Orders

1. [46]

   Application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, dismissed.