Application by FD pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2)

1. [1]

   This is an application by FD pursuant to ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for referral of his sentence to the Court of Criminal Appeal on the basis that there appears to be a doubt or question as to a mitigating circumstance. The applicant previously applied to Garling J: (Application of FD [2015] NSWSC 285), who dismissed the application.

2. [2]

   FD was first sentenced by Levine J in 2005 to a non-parole period of 18 years and a balance of term of six years for the offences of robbery with an offensive weapon; malicious wounding with intent to cause grievous bodily harm and murder. Only the sentence imposed for the murder offence remains to be served. FD is eligible for parole on 22 March 2023.

3. [3]

   The relevant facts were extracted at length by Garling J at [9] and come from the judgment of Levine J (adopting the latter’s numbering) in R v Dehaybi; R v JD [2005] NSWSC 158:

4. [4]

   Following conviction and sentence, FD appealed. The appeal against both conviction and sentence was dismissed, as was a Crown appeal against the inadequacy of the sentence: R v F.D; R v F.D; Regina v J.D [2006] NSWCCA 31.

The Test under s 78

1. [5]

   This application for referral to the Court of Criminal Appeal is in part premised upon the proposition that the Court in Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2002) 324 ALR 562. clarified the approach to be taken in such applications, such that it is now clear that Garling J applied the wrong test in rejecting the earlier application. It is necessary to deal with this contention before addressing the balance of the applicant’s arguments.

2. [6]

   Buttrose was a judicial review of a decision pursuant to s 78. The salient passage from the judgment of Beazley P and Leeming JA appears at [16] and [17]:

3. [7]

   For completeness, the relevant passages of Basten JA’s judgment in Sinkovich v Attorney General of NSW [2013] NSWCA 383, (2013) 85 NSWLR 783 are here set out:

4. [8]

   It is palpably clear from these authorities that the reference to the appearance of a doubt or question is a reference to the satisfaction of the judicial officer undertaking the administrative function. In other words, “all that is required is the judge forming the view…that there is a doubt or question.” (Buttrose at [17]) The test is necessarily cast in terms of an appearance because the judge considering the application must do so on the limited material available, and without the benefit of full argument. In such circumstances, it is not possible for a judge to objectively determine that there is a doubt or question.

5. [9]

   The application of the s 79 test in decisions since Buttrose has been entirely consistent with this approach: see Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 at [34] per Davies J; Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 432 at [3] per R A Hulme J and Application by Xiao Feng Wang pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670 at [14] per Bellew J.

6. [10]

   The fact that a judge considering an application pronounces at the end of that consideration that there is, or is not, a doubt or question as to a mitigating circumstance does not, of itself, indicate that the judge has not applied the correct test; see Buttrose per Macfarlan JA at [69]: see also Application by Darush Majid Pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 561 wherein Hulme J said at [25] – [26]:

7. [11]

   At the beginning of Garling J’s judgment, his Honour sets out the terms of ss 78 and 79 and then turns to the applicable principles. At [5] of the judgment, the following appears:

8. [12]

   Following a review of the facts, the sentence, the proceedings in the Court of Criminal Appeal and the applicant’s submissions, his Honour says at [41]:

9. [13]

   It is this passage in Garling J’s judgment on which the applicant relies to demonstrate error in the approach to the previous application. I do not accept this submission. The expression “I do not have a doubt or question” is to be understood in the light of his Honour’s appreciation of the test reflected at [5] of the judgment. His Honour was doing no more than expressing the subjective view he had formed.

10. [14]

    In any event, the application falls to be considered afresh, given the disavowal on behalf of the Attorney General of a submission that the matter be dismissed under s79(3)(a)(ii) of the Act. The submissions advanced by the applicant are substantially the same as those advanced before Garling J.

The Applicant’s Submissions

1. [15]

   The applicant’s submissions may be summarised as follows:

   1. (1)

      The sentencing judge gave primary or determinative significance to the standard non-parole period and engaged in a two stage approach to sentencing, thus committing “Muldrock error”.

   2. (2)

      “Muldrock error” is demonstrated by the “neatness of the arithmetic”, relying upon Bolt v R [2012] NSWCCA 50.

   3. (3)

      The applicant’s sentences, both individually and in totality, were manifestly excessive, given that the Court of Criminal Appeal disposed of the applicant’s appeal against sentence by giving the standard non-parole period determinative significance.

   4. (4)

      Accordingly, there is the appearance of a doubt or question as to the applicant’s sentence justifying referral of the matter to the Court of Criminal Appeal.

The Attorney General’s Submissions

1. [16]

   The Attorney General’s submissions may be summarised as follows:

Consideration

1. [17]

   It is common ground that the following passages from the decision of Levine J expose the judge’s reasoning towards sentence:

2. [18]

   At [58] to [62], his Honour considered the applicant’s subjective circumstances and the question of remorse and contrition. At [64] to [66], his Honour considered relevant aggravating and mitigating circumstances pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), although ultimately his Honour applied s 21A(5) .

3. [19]

   The construction to be placed upon these remarks and the consideration of the current application are to be undertaken having regard to the judgments of Simpson J in Davis v R [2015] NSWCCA 90 (Basten JA and Adamson J agreeing) and Aytugrul v R [2015] NSWCCA 139 (Beazley P and Adamson J agreeing). Both of these decisions post-date Garling J’s consideration of the earlier application. That is a matter of some significance, given the tenor of Simpson J’s remarks at [33] of Davis:

4. [20]

   To like effect are the remarks in Aytugrul at [20] to [22].

5. [21]

   Returning to Levine J’s approach to sentence, the passages extracted above establish that his Honour dealt with the Crown submission (that the offence of murder was in “the more serious” range of objective gravity) by distinguishing “more serious” from “outside the middle range” on the basis that the applicant intended to cause grievous bodily harm, as opposed to an intention to kill. His Honour concluded that the most that could be said was that the offence was outside the middle of the range (by inference, above the middle of the range) and that the standard non-parole period could only be treated as a guide in the circumstances of this case.

6. [22]

   It is worthwhile to be reminded of the particular terms of the criticism of the High Court in Muldrock, at [26] to [30], towards the approach to sentencing established by Way:

7. [23]

   I do not accept the submission that Levine J attributed primary or determinative significance to the standard non-parole period. To draw that conclusion from his Honour’s remarks would be to ignore completely his Honour’s unambiguous reference to the standard non-parole period as a guide and no more. That was a permissible approach to s 54B.

8. [24]

   Nor is there any “arithmetic neatness” that demonstrates “Muldrock error”. The line of authority relied upon by the applicant accepts that error has been otherwise demonstrated. The “arithmetic neatness” merely reinforces that finding: Bolt v R [2012] NSWCCA 50; Sinkovich v R [2014] NSWCCA 97.

9. [25]

   The more contentious aspect of the application is whether his Honour engaged in a two staged approach to sentence. This submission was not specifically advanced before Garling J. The two-staged approach of which the High Court in Muldrock disapproved was described by the Court in Way in these terms:

10. [26]

    The difficulty with the applicant’s contention that Levine J approached sentence in this subsequently proscribed way is that his Honour announced that the non-parole period would be less than the standard non-parole period, having regard to the principle of totality, before his Honour turned to a consideration of the aggravating and mitigating circumstances. Thus, there was no occasion for his Honour to reduce or increase the standard non-parole period in order to account for those factors.

11. [27]

    Furthermore, his Honour declined in fact to take into account any aggravating circumstance because of the risk of falling into error by way of “double counting”, having regard to the findings already made with respect to the objective factors affecting the sentencing exercise (at [63]).

12. [28]

    Paying due regard to the force of the remarks in Davis and Aytugrul, and taking into account the whole of the sentencing remarks of Levine J, I cannot discern the appearance of any doubt or question with respect to the sentence imposed upon the applicant. I have reached this conclusion notwithstanding the submission of the Attorney General summarised at [16](d) above.

13. [29]

    Finally, in relation to the applicant’s submission that the CCA committed “Muldrock error”, I am not persuaded that the Court ascribed any significance to the standard non-parole period in considering the applicant’s appeal against the severity of his sentence. As Garling J has already observed, the Court made no reference to the standard non-parole period at all, other than in the course of considering the Crown appeal against inadequacy, and then only to address the Crown’s argument that the murder fell into the “more serious category”: see R v F.D; R v F.D; Regina v J.D at [110] to [116].

14. [30]

    The Court accepted that the task confronting Levine J was one of instinctive synthesis. In the light of that finding, there is no appearance of a doubt or question with respect to the treatment of the applicant’s sentence by the Court of Criminal Appeal.

15. [31]

    The application is dismissed.