Buttrose v Attorney General of New South Wales

BEAZLEY P and LEEMING JA: We have had the advantage of reading the reasons of Macfarlan JA in draft, which have enabled us to express our reasons concisely.

Richard William Buttrose pleaded guilty to drug supply offences, including supplying a large commercial quantity of a prohibited drug (5.9573 kilograms of cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), which offence has a maximum penalty of life imprisonment, and a standard non-parole period of 15 years. He was sentenced to an overall term of imprisonment of 16 years with a non-parole period of 12 years and 6 months. That sentence reflected a discount of 45% for an early plea and assistance to the authorities.

In 2011, Mr Buttrose’s appeal against sentence was allowed by the Court of Criminal Appeal, which resentenced him to an overall term of imprisonment of 12 years and 6 months with a non-parole period of 9 years and 6 months: Buttrose v R [2011] NSWCCA 35. The sentence for the offence contrary to s 25(2) was 12 years with a non-parole period of 9 years.

A Supreme Court judge has considered and refused an application made by Mr Buttrose in 2013 for an inquiry into his sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). His Honour considered the application on the papers, and refused it, giving reasons which have been given a media neutral citation: [2014] NSWSC 826. However, as the name “Application by Richard William Buttrose pursuant to s 78 Crimes (Appeal and Review) Act 2001” suggests, the refusal of Mr Buttrose’s application was not “a judgment or order of the Court in a Division”. It is established that his Honour was not exercising judicial power, nor were the proceedings judicial in nature: Patsalis v Attorney General for New South Wales [2013] NSWCA 343; 85 NSWLR 463 at [2], [7] and [22]. Accordingly, no appeal lies pursuant to s 101(1)(a) of the Supreme Court Act 1970 (NSW). However, the determination is reviewable for jurisdictional error: Patsalis at [3], [7], and [23]-[24].

Mr Buttrose has by summons invoked this Court’s supervisory jurisdiction, now regulated by s 69 of the Supreme Court Act, in respect of the administrative function exercised by the judge. His summons is entitled “Summons (Judicial Review)” and seeks solely declaratory relief. As originally formulated, it was confined to errors of law. By supplementary submissions filed (with leave) after the hearing, he made it plain that he contended that there were errors which constituted jurisdictional error, the first two of which were as follows:

(The references to “Muldrock” above and to “Muldrock error” in the submissions are references to 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; 88 ALJR 490 at [2] and [7]).)

Australian law insists upon a distinction between “want of jurisdiction” and “excess of jurisdiction”, on the one hand, and “the manner of its exercise” on the other, to use the terms employed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389. The joint judgment in Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146 at [5] traces the ancestry of “jurisdictional error” to the former.

It is sensible to deal first with Mr Buttrose’s submissions based on jurisdictional error, for these reasons. First, it is the anterior legal concept. Whether a person is authorised to decide a question precedes the issue whether the decision is attended by legal error.

Secondly, and for that reason, jurisdictional error may be established by “any admissible evidence relevant for that purpose”: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [15]. In contrast, as Basten JA there noted, “the broader concept of error of law must identify the relevant error as appearing ‘on the face of the record’”.

Thirdly, in Futuris at [4] the joint judgment identified as the “central issue” in an application invoking the jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth) whether there had been an error in the exercise of power which amounted to jurisdictional error, as opposed to whether there had been merely error of law or fact. The same is true of Mr Buttrose’s application, invoking as it does the State counterpart jurisdiction under s 69 of the Supreme Court Act.

Fourthly, the exchange of submissions after the hearing disclosed questions as to the nature of the “record”. Mr Buttrose submitted that there was no need to identify a record, since he sought merely declaratory relief. That proposition is not one which we would necessarily accept. If Mr Buttrose’s proposition were not correct, then the question noted in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [37] would arise whether s 69(4) of the Supreme Court Act applied to the reasons given by the judge. That question is not free from difficulty. Not least because it was not the subject of full submissions, it is best left undecided, since, on the view we take, it need not be determined.

We turn to the relief sought. There are difficulties concerning the granting of relief in the nature of certiorari or mandamus in a case such as this. It is sufficient to refer to what was said by Basten JA in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at [63]-[76]. Mr Buttrose sought to avoid those difficulties by following the course taken in Sinkovich of seeking declaratory relief.

Contrary to the position taken by the parties, we would not lightly conclude that merely because the relief sought is declaratory that the general provisions in Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) do not apply. That Part applies generally to “proceedings under section 65 and section 69 of the Supreme Court Act and other proceedings in the supervisory jurisdiction of the Supreme Court”: r 59.1(1)(a). Rule 59.10 provides that proceedings for judicial review must be commenced within three months of the date of the decision, and confers a power for that time period to be extended at any time. Although the rule does not apply “to any proceedings in which the setting aside of a decision is not required”: see r 59.10(5), our preliminary view is that the three month period would either apply directly, or alternatively inform the Court’s discretion to grant declaratory relief, even though the formal setting aside of a decision is not required. The substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur.

In the present case, the summons was filed some five months after the decision, but was accompanied by an affidavit explaining the reasons for that delay in appropriate detail. The Attorney General confirmed that “we certainly don’t take any issue with the delay”. For that reason, it is unnecessary to express concluded views about the operation of Part 59. Instead, to the extent necessary, there should be an extension of time for the commencement of proceedings.

More generally, and contrary to the tenor of Mr Buttrose’s submissions, just because a plaintiff seeks purely declaratory relief, it does not follow that the ordinary principles relating to judicial review cease to apply. In substance, this proceeding was one for judicial review, although (for good reason) no relief quashing a decision nor compelling the performance of a duty was sought.

The question is whether the decision made by the judge is attended by jurisdictional error. That in turn depends upon the nature of the function his Honour was performing. The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) is that “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”. The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26], “it is the satisfaction of the judge as to the relevant condition which is critical.”

We regard that question as having been determined by what was said in Sinkovich at [26], and Mr Buttrose’s submission to the contrary, which fell short of asking this Court to find that this aspect of Sinkovich was clearly wrong, as merely formal. In any event, unassisted by authority, we would readily reach the same conclusion, and not merely from the language of s 79, but also its context. The structure of s 79(1) is clear. Only if s 79(1) be satisfied will there be an inquiry or a referral to the Court of Criminal Appeal, in which case the later steps will take place with the benefit of full submissions from the parties. In that context, it is only natural that all that is required is the judge forming the view – ordinarily, on limited material only – that there is a doubt or question.

Judicial review of the exercise of executive power turning upon the state of mind of the donee is familiar: see for example Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118. The question for determination here, therefore, was whether there was jurisdictional error in the judge failing to be satisfied that there was a doubt or question as to whether there was Muldrock error in the sentence imposed by the Court of Criminal Appeal.

Despite submissions to the contrary, it is fair to say, as the judge said at [18], that there was a single basis for Mr Buttrose’s challenge identified in the application, which was “that ‘Muldrock error’ must have occurred because of the length of the sentence imposed for Count 3.” It is sufficient to deal with that matter alone, and in light of the outcome of this proceeding, it is desirable to say no more than is necessary, and nothing which would fetter the parties or the judge who considers the application in the future, or indeed the Court of Criminal Appeal if a referral is made under s 79(1)(b).

Three things persuade us that there was jurisdictional error in refusing the application. The first is that his Honour mis-stated the effect of the application before him. He said at [20] that [58]-[70] of the applicant’s submissions do “no more than to review the High Court’s decision in Muldrock and its effect on the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168. It is expressed in general terms and has no direct application to any of the matters considered by the Court of Criminal Appeal in this matter.”

True it is that most of those paragraphs of the applicant’s submissions are in general terms and answer his Honour’s description. The submission could have been put much more clearly and concisely than it was, especially since it was known that the application would be resolved on the papers. However a particular argument was advanced in paragraphs [68]-[69] on the last page of the submissions, which resembled that accepted by the Court in Bolt v R [2012] NSWCCA 50.

Secondly, that argument is not without force. The earlier decision of the Court of Criminal Appeal found that “the objective seriousness of the offence was above the mid-range but modestly so”. The standard non-parole period for the count under s 25(2) of the Drugs Misuse and Trafficking Act 1995 (NSW) was 15 years imprisonment. The sentence imposed for that offence was 12 years imprisonment with a non-parole period of 9 years. Allowing for the 45% discount for an early plea and assistance, the notional starting point was just over 16 years, squarely answering the description of “modestly” above the mid-range. Precisely the same form of “neat” arithmetic was employed by McCallum J in Bolt to strengthen her inference that the standard non-parole period had been used impermissibly as the starting point: see at [36]-[37].

Indeed, the fact that the standard non-parole period was much greater (15 years as opposed to 5 years in Bolt) only makes the coincidence (which is the only other possibility so far as we can see) all the more unlikely.

Thirdly, the submission made on the last page of the written submissions in support of the application was not squarely addressed by his Honour at all. Although his Honour correctly said that the Court of Criminal Appeal made no reference to the standard non-parole period, that is no answer to the inference the plaintiff invited his Honour to draw about the determinative role that it played in the resentencing exercise undertaken by the Court of Criminal Appeal.

For those three reasons, there was jurisdictional error because a substantial argument was not addressed. In reaching that conclusion, it is not necessary to determine whether the failure to address a substantial argument made by Mr Buttrose amounted to a denial of procedural fairness, or a constructive failure to exercise jurisdiction, or both: see Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [90], the decisions mentioned by Robertson J in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 at [102]-[103], Roger v De Gelder [2015] NSWCA 211 at [89]-[96] and M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed, 2013, Lawbook Co), at 264-266.

It is unnecessary to say anything more, although the parties’ submissions ranged broadly. It is unnecessary in this proceeding to express a conclusion whether or not the inference to which the plaintiff pointed was made out. That is because the question arising under s 79(2) is merely whether “it appears that there is a doubt or question”. It is certainly possible that there may be a doubt or question sufficient to engage the power to refer to the Court of Criminal Appeal, in a process in which the other side is not heard and which ordinarily takes place on the papers, but nonetheless, after full argument, the appeal might be dismissed.

But that is looking ahead. This Court was not asked to exercise the power under s 79, and it is far from clear to us that it can do so in proceedings of this nature. Mr Buttrose sought a declaration in the terms made in Sinkovich:

The same declaration should be made here. Mr Buttrose’s application has not yet been determined in accordance with law: Sinkovich at [77]. As in that case, no formal direction is required. It may be assumed that the application will be determined by a judge in due course in light of these reasons. The parties were agreed that, irrespective of the outcome, there should be no order as to costs.

We propose the following orders:

MACFARLAN JA: Following pleas of guilty in the Local Court, the plaintiff, Mr Richard William Buttrose, was sentenced in the District Court by Sorby DCJ on 18 March 2010 for various drug supply and related offences. The Court of Criminal Appeal subsequently quashed his sentences ([2011] NSWCCA 35) and re-sentenced him to a total term of imprisonment of 12 years and 6 months with a non-parole period of 9 years and 6 months. On the most serious of the charges, supplying a large commercial quantity of a prohibited drug, he was, after regard was had to Form 1 offences, sentenced to imprisonment comprising a non-parole period of 9 years commencing 26 August 2009 and concluding on 25 August 2018 with a balance of term of 3 years concluding on 25 August 2021. The maximum penalty for that offence is life imprisonment with a standard non-parole period of 15 years specified.

On 5 October 2011 the High Court delivered its judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 identifying the manner in which the standard non-parole periods specified in Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are to be taken into account in sentencing. The High Court’s decision overruled the Court of Criminal Appeal’s decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 which previously governed the issue in New South Wales.

Subsequently, the plaintiff applied to the Supreme Court under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his sentences and a direction that the Court refer his case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) ([2014] NSWSC 826). The plaintiff contended that he had been sentenced in accordance with the law stated in R v Way, which the High Court in Muldrock later found to be incorrect. On 19 June 2014, Hoeben CJ at CL refused the application on the basis that no doubt or question existed as to whether the applicant had been sentenced in accordance with law.

By a Summons filed on 17 November 2014, the plaintiff now seeks a declaration in the following terms:

For reasons that appear below I consider that, with one change, this declaratory relief should be granted to the plaintiff to facilitate him making a further application under s 78(1) of the Crimes (Appeal and Review) Act. The change is that the words “as may give rise to a doubt or question as to any mitigating circumstance” should be replaced with the words “as gives rise to a doubt or question as to a mitigating circumstance”.

Sections 78 and 79 of the Crimes (Appeal and Review) Act are, so far as is relevant, in the following terms:

In Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342, Latham J found that “mitigating circumstances” in s 79(2) of that Act did not include errors of law (see [52]-[57]). Subsequently, a five judge bench of this Court found that that view was erroneous and that an error of law was indeed capable of giving rise to a “doubt or question” as to “any mitigating circumstances in the case”, including circumstances that have the potential to lower a convicted person’s sentence (Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783). This Court made a declaration to reflect that position and also concluded that the decision in Muldrock did not change the law but, rather, revealed what the law had been at the time that Mr Sinkovich had been sentenced (pre-Muldrock).

In the present case, the judge recognised that relief under s 79(1) of the Crimes (Appeal and Review) Act may be available if an error of law is established but found that the pre-condition imposed by s 79(2) to the court exercising its powers under s 79(1) had not been established. That is, there was no relevant “doubt or question” concerning the plaintiff’s sentences.

The plaintiff does not seek judicial review of that finding in the present proceedings. Thus, he does not seek any order in the nature of certiorari or mandamus, or otherwise, under s 69 of the Supreme Court Act 1970 (NSW). Rather, he seeks declaratory relief, as was granted in Sinkovich.

The Attorney General did not contest the plaintiff’s submission that “the Court has jurisdiction to grant a declaration on the basis of error of law and/or failure to accord procedural fairness, even where mandamus and certiorari may not issue” (written submissions [5], referring to Plaintiff M61/2010E v The Commonwealth; Plaintiff M69/2010 v The Commonwealth [2010] HCA 41; 243 CLR 319 at [8] and Sinkovich at [76]). Moreover, the Court’s broad jurisdiction to make a declaration does not depend upon the establishment of legal error (see Forster v Jododex [1972] HCA 61; 127 CLR 421 at 435 and 437-8; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-2 as to the width of the jurisdiction). As the plaintiff submitted a declaration may be made where, as here, it would effectively determine a legal controversy in which the plaintiff has a real interest (Plaintiff M61/2010E at [103]). There is practical utility in the making here of a declaration because the plaintiff is not precluded from making a further application under s 78 (Sinkovich at [77] and [88]). As to the latter point, I note that s 79(3)(a)(ii) of the Crimes (Appeal and Review) Act provides that one of the bases upon which an application under s 78 may be refused is that a previous application has been made and dealt with. The circumstances in which the discretion to refuse an interlocutory application (such as a s 78 application) because a previous application has been made were referred to by Emmett JA (with whom Leeming JA and Adamson J agreed) in Bajramovic v Calubaquib [2015] NSWCA 139 at [40]-[45]).

In their written submissions lodged prior to the hearing before this Court, the parties assumed that the question to be determined was whether, as a matter of objective fact, a relevant “doubt or question” concerning the plaintiff’s sentences existed and that if it did, whether it was appropriate for the Court to make the declaration that the plaintiff sought. This Court, in the course of oral argument, queried whether the jurisdictional fact specified in s 79(2) of the Crimes (Appeal and Review) Act referred to the decision-making judge’s satisfaction as to the existence of a relevant “doubt or question” or the existence, in an objective sense, of that “doubt or question” (see for example Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [140]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [28]-[38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [16]-[31]). The parties were given leave to file further written submissions addressing that and other questions. In them Attorney General submitted that the relevant jurisdictional fact was the subjective satisfaction of the decision-making judge that there was a relevant “doubt or question”. On the other hand, the appellant submitted that the relevant jurisdictional fact was whether the “doubt or question” existed as a matter of objective fact.

In my view, it is unnecessary to resolve this issue as, even if the Attorney General’s position is correct, a declaration as sought by the plaintiff, to the effect that as a matter of objective fact there is a relevant “doubt or question”, would have utility. The reason that it would have utility is, as I have noted above, that it is open to the plaintiff to make a further application under s 78. If the plaintiff makes such an application armed with a declaration of the type that I have described, his prospects of success will be improved immeasurably. Indeed, the judge hearing the application will have little choice but to make an order under s 79(1)(b) referring the plaintiff’s case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. Although it would be open to the judge hearing the further application to dismiss it on the basis that an earlier application had been made, this Court’s making of a relevant declaration after the previous application had been heard would be a powerful basis for resisting such a dismissal.

The table in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act specifies the standard non-parole periods for identified offences. Relevant parts of that Division include:

In R v Way, the Court of Criminal Appeal concluded that the standard non-parole periods specified in Division 1A were to be understood as applicable to sentences imposed after conviction at trial and not to those imposed after a plea of guilty (at [71]). The Court considered that where a standard non-parole period applied to an offence, the question: “Are there reasons for not imposing the standard non-parole period?” should be asked and then answered by determining whether the objective seriousness of the offence fell into the mid-range of seriousness and considering the aggravating and mitigating circumstances listed in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act (at [117]-[118]). Where the question was answered in the affirmative, sentencing was to be in accordance with the established sentencing practice and relevant statutory provisions outside Division 1A (at [121]). In this exercise, “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” (at [122]). The Court stated that subjective features that were relevant because of their causal connection to the commission of the offence (such as motivation and mental illness) were to be considered in assessing the objective seriousness of an offence for the purposes of s 54A(2) (at [56]).

Subsequent applications of R v Way included the following.

In R v Reyes [2005] NSWCCA 218, Grove J (with whom Wood CJ at CL and Hoeben J, as his Honour then was, agreed) criticised the sentencing judge for not adverting to the statutory non-parole period provisions and assessing, as a first step, whether the subject offence lay in the middle of the range of objective seriousness (at [44]).

In R v Knight [2007] NSWCCA 283; 176 A Crim R 338, McClellan CJ at CL said that the sentencing judge should have defined the extent to which he considered that the objective seriousness of the offence fell above mid-range (at [4]). In the same case, Howie J (with whom McClellan CJ at CL and Hidden J agreed) said that the sentencing judge must give some indication as to the degree to which the objective seriousness of the subject offence departs from the mid-range (at [39]).

In R v McEvoy [2010] NSWCCA 110, Simpson J (with whom Grove and R A Hulme JJ agreed) surveyed earlier authorities, including R v Knight, and expressed a preference for what she saw as McClellan CJ at CL’s “slightly less prescriptive” approach, compare to that of Howie J in that case (at [75]-[87]).

In R v Sellars [2010] NSWCCA 133, McClellan CJ at CL (with whom Grove and Johnson JJ agreed) noted that on a number of occasions the Court of Criminal Appeal had stated that it was “necessary for sentencing judges to specify the extent or degree to which an offence depart[ed] from the notional offence in the mid-range of objective seriousness” (at [11]).

In Muldrock, the High Court concluded:

Consistent with this reasoning, the High Court overruled R v Way on the basis that its approach, manifested in the passages quoted above from Reyes, Knight, McEvoy and Sellars (see [45]-[48] above), “is apt to distort the exercise of the sentencing discretion and … is not required by the terms of Div 1A” (at [21]). The High Court’s view that the concept of “objective seriousness” should not take account of any subjective factors was also conflicted with the view on that topic expressed in R v Way.

On a large number of occasions, the Court of Criminal Appeal has since had to consider whether appeals determined in the period between the decisions in R v Way and Muldrock were erroneous in light of the pronouncements the latter made. Most of these involved an appeal by an offender, unlike the present case where the plaintiff exhausted his appeal rights (by the Court of Criminal Appeal’s decision of 10 March 2011) prior to Muldrock being decided.

The Court of Criminal Appeal has decided that Muldrock error cannot be assumed simply because a sentence was imposed between the dates of R v Way and Muldrock (see Aslett v R [2012] NSWCCA 235 at [29] per Bellew J, with whom McClellan CJ at CL and Button J agreed; Butler v R [2012] NSWCCA 23 at [26] per Davies J with whom Whealy JA and Rothman J agreed; Diaz v R [2013] NSWCCA 277 at [109] per Button J with whom Macfarlan JA and Adams J agreed). The plaintiff does not challenge the correctness of this proposition.

In Rajendran v R [2014] NSWCCA 113, Bellew J (with whom Gleeson JA and Hamill J agreed) stated:

In Butler v R [2012] NSWCCA 23 Davies J (with whom Whealy JA and Rothman J agreed) said:

His Honour’s suggestion that it is necessary to ascertain whether “a reliance on Way has sufficiently infected a sentence with such error that this court must intervene” is now incorrect in light of the subsequent High Court decision in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 in which the plurality rejected the proposition that it is Court of Criminal Appeal’s function to “assess whether and to what degree an identified error influenced the outcome” of a sentencing process (at [42]).

In Kazzi v R [2014] NSWCCA 73, Button J (with whom Leeming JA and R S Hulme AJ agreed) observed that “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 [45]). His Honour concluded:

In the present case, the plaintiff disputed the accuracy of the observations above. In particular, the plaintiff pointed out that R v Way itself, as well as Knight, McEvoy and Sellars, concerned sentences following pleas of guilty and that the High Court criticised each of those decisions in Muldrock. However, it is unnecessary to resolve this issue because whether or not the general practice prior to Muldrock was to apply principles inconsistent with Muldrock in cases involving pleas of guilty is not of present significance. Rather, the point to be determined is whether the Court of Criminal Appeal’s decision in Mr Buttrose’s case was erroneous for that reason.

The plaintiff relied heavily on the decision in Bolt v R [2012] NSWCCA 50, a case of conviction following a plea of guilty, the correctness of which was not challenged by the Attorney General.

In Bolt, McCallum J (with whom Beazley JA, as she then was, and Harrison J agreed) said:

In Devaney v R [2012] NSWCCA 285, Allsop P (with whom Price J agreed) took a similar approach, as follows:

Likewise, in Sinkovich v R [2014] NSWCCA 97, R A Hulme J (with whom Basten JA and Fullerton J agreed), in finding Muldrock error, noted that without a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, the non-parole period imposed would have been almost the same as the standard non-parole period for the relevant offence (at [35]). Bearing in mind that the sentencing judge’s assessment of the objective seriousness of the relevant offence was “slightly above the mid-range”, his Honour took the view that this reflected too much weight being placed on the standard non-parole period (ibid).

Earlier this year in McDonald v R [2015] NSWCCA 80, R A Hulme and Adamson JJ concluded that the sentencing judge had simply used the standard non-parole period as a legislative guidepost without giving it determinative significance or adopting a two-stage approach (see [43]-[46]). In dissent, Basten JA said that “there is no reason to suppose that the sentencing judge was doing [anything] other than having regard to the standard non-parole period in accordance with the approach, then understood to be correct, as identified in Way” (at [7]).

In Davis v R [2015] NSWCCA 90 Simpson J (with whom Basten JA and Adamson J agreed) took a different view in relation to the sentencing judgment in that case. Her Honour observed:

McClellan CJ at CL gave the principal judgment in Mr Buttrose’s pre-Muldrock appeal (see [30] above). His Honour found error in the sentencing process relating to the most serious offence that the applicant (the present plaintiff) was convicted of, namely, that the sentence was manifestly excessive and that the sentencing judge’s determination of the objective seriousness of that offence was erroneous. As to the latter, his Honour found, contrary to the sentencing judge’s finding, that the evidence did not demonstrate that Mr Buttrose “was involved in the organisation of a supply chain or had himself employed others to assist in the distribution of drugs” (at [48]).

On the present application the Attorney General accepts that his Honour then proceeded to have regard to evidence of the applicant’s motivation in assessing the objective seriousness of the offence. In this respect his Honour referred to the scale of the applicant’s business appearing to have been a product of his engaging personality and to his apparent “personal gratification from his recognition as the supplier of cocaine to many people in the Eastern Suburbs” (ibid). His Honour held that the objective seriousness of the offence was “above the mid-range but modestly so” (at [51]), that the applicant had significant prospects of rehabilitation and had given assistance to authorities.

His Honour noted that he had been referred to earlier decisions including Wang v R [2009] NSWCCA 223; R v XX [2009] NSWCCA 115; 195 A Crim R 38; Coetzee v R [2007] NSWCCA 12; Sukkar v R [2007] NSWCCA 298; R v El Helou [2010] NSWCCA 111 and R v Stankovic [2006] NSWCCA 229 and said that they were “useful in providing an understanding of some other sentences of varying degrees of significance to the present matter” (at [40]).

His Honour concluded as follows:

His Honour’s reasons for concluding that Mr Buttrose had not identified any Muldrock error in the Court of Criminal Appeal’s judgment, and that there was no “doubt or question” as to the existence of such an error, appear from the following passages in his Honour’s decision:

For the following reasons, I conclude that, in terms of s 79(2) of the Crimes (Appeal and Review) Act, there is a “doubt or question” as to whether there is the Court of Criminal Appeal’s re-sentencing of Mr Buttrose involved Muldrock error and therefore gives rise to a doubt or question, again in terms of that section, as to a “mitigating circumstance[e] in the case”. It is unnecessary for this Court to decide whether such error in fact arose. Indeed, it is undesirable that it do so as that would pre-empt the decision that the Court of Criminal Appeal will need to make when, as seems inevitable, the plaintiff’s case is referred to it by the Supreme Court under s 79(1)(b) following a further application under s 78(1).

My conclusion does not involve any criticism of the earlier Court of Criminal Appeal decision because, as was its duty, the Court applied the then binding decision in R v Way, Muldrock not having then been decided. I also reiterate that the arguments put to this Court on the present application extended well beyond those put to Hoeben CJ at CL (see further [40] above). The Attorney General objected to the plaintiff putting arguments to this Court that were not put to Hoeben CJ at CL but in my view the plaintiff should not be precluded from doing so as such arguments, if sound, might well form the basis of a further application under s 78. Given that the parties have now fully addressed those arguments, it is better that they be dealt with in this judgment.

I note at the outset, without attaching any particular significance to it, that it was not strictly correct for his Honour to say that the Court of Criminal Appeal made no reference to the standard non-parole period in its re-sentencing of the applicant. It did so in paragraphs [3] and [5] when describing the principal offence and total sentence respectively. More importantly, as in Bolt, Devaney and Sinkovich (see [59], [60] and [61] above), the mathematics involved in the re-sentence suggest that, consistently with R v Way, that the Court of Criminal Appeal may have taken the standard non-parole period of 15 years as a starting point, and, using the two stage approach proscribed in Muldrock, adjusted it to reach an appropriate non-parole period. In light of the 45% discount given for the plaintiff’s guilty plea and assistance to authorities the Court of Criminal Appeal’s starting point for the head sentence for the principal offence (disregarding that discount) must have been 21.8 years. Applying the statutory ratio of the non-parole period to the head sentence (see s 44 of the Crimes (Sentencing Procedure) Act), the resulting non-parole period would have been approximately 16 years and 4 months compared to a statutory non-parole period of 15 years. This appears to reflect the Court of Criminal Appeal’s determination that the principal offence was above the mid-range of objective seriousness but only “modestly so” (see [65] above).

The inference that the Court of Criminal Appeal reasoned in this fashion is consistent with the structure of its judgment which proceeds from a determination of objective seriousness to a determination of sentence, with little intruding in the analysis other than the discount that I referred to earlier. The only other matter mentioned by the Court was Mr Buttrose’s rehabilitation, about which the Court made only a guarded finding that the applicant had prospects of rehabilitation (at [52]).

To adopt the expression of McCallum J in Bolt, “it would hardly be surprising if the decision entailed the application of the principles overturned in Muldrock” (at [32]) as R v Way was then binding and McClellan CJ at CL had himself, in the authoritative decision in Knight (see [46] above), quoted and applied the R v Way principles.

The Court of Criminal Appeal also took into account a subjective factor, namely, Mr Buttrose’s motivation, when assessing the objective seriousness of the principal offence (see [65] above). This conflicted with the express proscription of this course in Muldrock (see [49] above).

Prior to the introduction of standard non-parole periods in 2002, whether or not any particular subjective factor was taken into account in assessing objective seriousness was of no particular significance, as long as it was taken into account somewhere in the sentencing process. Statutory standard non-parole periods introduced in 2002 are however referable to offences “in the middle of the range of objective seriousness” (s 54A(2)). Regard to the standard non-parole period in accordance with R v Way or in accordance with Muldrock could not, and cannot, sensibly occur without an appreciation of whether the offence of which the offender has been convicted is in the middle of the range of objective seriousness. This determination requires an understanding of what is or is not relevant to the concept of objective seriousness. To relate the point to the present case, the Court of Criminal Appeal must be considered as having applied the standard non-parole period to the offence because it took motivation into account in assessing objective seriousness when Muldrock requires that that factor be excluded.

Accordingly, whilst it is true that, even under Muldrock, objective seriousness must be assessed (so that the guidepost of the standard non-parole period can be properly understood), the factors relevant to that assessment are significant and if a factor excluded from consideration by Muldrock is taken into account, error will have occurred.

Thirdly, the Court of Criminal Appeal’s reliance on earlier decisions is of some, although limited, significance when considering whether its judgment as a whole reveals Muldrock error. Of those decisions (listed at [66] above), XX and Sukkar compared the non-parole periods fixed with the standard non-parole period and the Court in El-Helou expressly relied upon Knight in criticising the sentencing judge for not giving reasons for departing from the standard non-parole period (at [72]). As noted earlier, Muldrock expressly rejected the reasoning in Knight.

For the reasons that I have given there is a “doubt or question” whether the 2011 Court of Criminal Appeal decision involved Muldrock error. As a result, the Court should make a declaration in the terms that I have described in [33] and [34] above. The parties agreed that the Court should not make any order as to costs.