Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

1. [1]

   R A HULME J: MLP was sentenced by his Honour Judge Garling in the District Court on 6 October 2005 to imprisonment for 16 years with a non-parole period of 12 years with effect from 12 May 2005. This was for an offence of sexual intercourse with a person under the age of 10 years (namely 9 years) for which the applicable maximum penalty was imprisonment for 25 years and for which there was a standard non-parole period of 15 years.

2. [2]

   On 6 September 2006 the Court of Criminal Appeal "confirmed" the 16 year sentence but "varied" the non-parole period to one of 11 years: MLP v R [2006] NSWCCA 271; 164 A Crim R 93.

3. [3]

   MLP made an application pursuant to Pt 7 Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) which resulted in the matter of sentence being referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390. The basis of the referral was that the assessment of sentence by the Court in 2006 was based upon the principles set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168 since held to be erroneous in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

4. [4]

   The Crown conceded the error when the matter was back before the Court last year: MLP v R [2014] NSWCCA 183 (MLP v R (2014)). Bellew J, with whom Macfarlan JA and Adamson J agreed, said (at [8]) that "the sole issue to be determined … is whether some other sentence is warranted in law: Criminal Appeal Act 1912 s 6(3)". After referring to various aspects of the case his Honour arrived at the conclusion that some other sentence was not warranted. The appeal was dismissed.

5. [5]

   MLP has now made another application pursuant to Pt 7 Div 3. The basis of the application is that Bellew J "misdirected himself as to the operation of s 6(3); without exercising the sentencing discretion afresh, he concluded that while there was 'no doubt that the sentence imposed upon the appellant was stern … I am not persuaded that some other sentence is warranted in law'" (Application submissions at [6]).

6. [6]

   Submissions were made by the applicant and by the Attorney General. The latter succinctly characterised the application as posing a question whether there was a doubt or question as to a mitigating feature in the case, namely the proper application of sentencing principles in the applicant's second appeal.

Section 6(3) of the Criminal Appeal Act

1. [7]

   Subsequent to MLP v R (2014), the High Court of Australia delivered judgment in Kentwell v The Queen [2014] HCA 37; 313 ALR 451. That case was concerned (in part) with the correct application of s 6(3) of the Criminal Appeal Act:

2. [8]

   The correct approach to s 6(3) was described in the joint judgment (French CJ, Hayne, Bell and Keane JJ) at [42]-[43] (with citations omitted) as follows:

3. [9]

   Two things emerge from the above that are pertinent to the present application. The first (and this is emphasised in the applicant's submissions) is that in considering the issue in s 6(3) the Court must exercise the sentencing discretion afresh. It is a matter of moving directly from the identification of error to an independent determination of what sentence was warranted in all the circumstances (including matters that have arisen since the original sentencing exercise). The second is that it is a matter of comparison of what that determination yields with what the original sentence was.

4. [10]

   There is nothing that indicates that this involves a sequential or two-step process; the two issues may be considered simultaneously. This is because there is but one question posed by s 6(3): whether the Court is "of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed".

Submissions and consideration

1. [11]

   It was submitted by senior counsel for the applicant that Bellew J had misdirected himself by inserting "an intermediate step requiring that he be 'persuaded' that some other sentence was warranted in law or that the sentence was outside an established range, prior to exercising the sentencing discretion afresh" (Application submissions at [9]). This was said to arise from two aspects of his Honour's judgment:

2. [12]

   Focus was placed by the applicant upon the following paragraphs:

3. [13]

   There is another important matter to be borne in mind aside from the two matters that emerge from Kentwell v The Queen that I have referred to above. The Court does not consider those two matters in a vacuum. It considers them in the context of submissions made by the parties. An appellant's submissions focus upon an attempt to persuade the Court that a lesser sentence than that originally passed is warranted whilst the Crown's submissions (not necessarily but usually) focus upon an attempt to persuade the Court that a lesser sentence than that originally passed is not warranted. It is understandable then that the Court will express itself in terms of whether it is persuaded by one or the other. It naturally follows from this that having made its own independent assessment of what sentence should have been passed, the Court would provide reasons for why it is not persuaded by the submissions of the unsuccessful party to a different conclusion either generally or in relation to submissions on discrete topics (here, for example, in relation to statistics and comparisons with other cases).

4. [14]

   The submissions for the applicant (at [10]) identify that Bellew J referred in his reasons for judgment to a number of matters that had been the subject of his submissions to the Court:

5. [15]

   The applicant's submissions also referred (at [12]) to the following matters that Bellew J had considered:

6. [16]

   The applicant's submissions took no issue with the description by Bellew J (at [18]) of the applicant's submission in MLP v R (2014) that "sentencing statistics, along with a number of sentences imposed in other [similar] cases … demonstrated that the sentence imposed upon the [applicant] was unduly harsh and unwarranted".

7. [17]

   The submissions for the Attorney General, while disagreeing with every other aspect of the applicant's submissions, conceded that it would be open to conclude the matter should be referred to the Court of Criminal Appeal because the use of terms like "harsh" may suggest that the assessment was confined to whether the sentence was within a "permissible range". If that were the case, there would be error because the task with which the Court was engaged under s 6(3) requires more than that as the joint reasons in Kentwell v The Queen explain.

8. [18]

   I respectfully disagree that the use of these terms was erroneous. The Attorney General argued that every other aspect of the judgment is indicative of an independent discretion being exercised. The use of "harsh" in the context of addressing submissions by the applicant that statistics and comparable cases demonstrated that the sentence was "unduly harsh and unwarranted" is perfectly explicable and not inconsistent with his Honour engaging in the correct approach. Similarly the use of the term “stern” is not indicative of error. A 16 year sentence is self-evidently amenable to such a description. But his Honour was clearly of the view that such an outcome was warranted.

9. [19]

   It was submitted by the applicant that his Honour failed to take into account in a "genuine re-sentencing exercise" the matters I referred to in the applicant's submissions (at [10]) which I have listed above (at [14]). The fact that his Honour troubled himself to refer to them does not support a proposition that he did not take them into account.

10. [20]

    The fact that Bellew J engaged in an independent exercise of sentencing discretion is further indicated by the fact that he did not simply adopt findings made by the primary judge; without necessarily descending into every detail he did refer to all significant objective and subjective circumstances of the case; and he did not ignore evidence of matters that had arisen since sentence.

11. [21]

    I cannot identify any error in the approach taken by Bellew J, with the concurrence of the two other members of the Court, to the assessment of the issue posed by s 6(3) of the Criminal Appeal Act.

12. [22]

    Isolating a few words here or there ("not persuaded" for example) is not a fair approach to the assessment of the judgment as a whole and fails to appreciate the complete task with which his Honour was engaged. Statements such as his Honour not being persuaded that the sentence was "at odds with some established sentencing range" have to be seen in the context of submissions by the applicant that the sentence was "at odds".

13. [23]

    There is no suggestion that his Honour failed to take into account any sentencing principle; any evidentiary matter (I reject the applicant's submissions (at [18]-[20]) that some particular matters were not expressly referred to; his Honour sufficiently referred to the gist of all that had been put on the applicant's behalf); or any submission advanced on the applicant's behalf. To the contrary, it appears that his Honour thoroughly canvassed all of the evidence and submissions.

Conclusion

1. [24]

   The applicant submitted that the doubt or question that warranted the referral pursuant to Div 3 of Pt 7 of the Crimes (Appeal and Review) Act last year remains because of the erroneous approach taken to the re-sentencing exercise by the Court in MLP v R (2014). It was submitted (at [1]) that "despite two appeals, the applicant has still not been sentenced according to law, as is his entitlement: Kentwell at [44]". With respect to the learned authors of that submission, I reject it.

2. [25]

   To reiterate, what was required was for the Court to make an independent assessment of the appropriate sentence and compare it with that which had been imposed in order to determine whether there should be a lesser sentence. Necessarily, that had to be done in the context of the submissions that had been made in an endeavour to persuade the Court one way or the other. This was done.

3. [26]

   I feel no unease or sense of disquiet that this task was not undertaken in MLP v R (2014). And, not that it is necessary to fulfil my present function, I have nevertheless considered for myself the question whether a lesser sentence was warranted and should have been passed. I have no unease or sense of disquiet about the answer to that question being answered by the Court of Criminal Appeal in the negative.

Decision

1. [27]

   The application is refused.