Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537

Supreme Court New South Wales

Medium Neutral Citation: Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537 Hearing dates: On the papers Decision date: 19 November 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Application granted. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. Catchwords: APPLICATION - application for inquiry into sentence pursuant to s 78, Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - offence of breaking into premises in company and stealing - sentencing judge engaged in two step sentencing process - Muldrock error - application granted Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120 Sinkovich v Attorney General of NSW [2013] NSWCA 383 Category: Principal judgment Parties: Walter James Kuehne - (Applicant) Regina - (Respondent) Representation: Solicitors Legal Aid New South Wales - (Applicant) Crown Solicitor - (Respondent) File Number(s): 2013/215640

decision 1The applicant, Walter James Kuehne, applies for an inquiry into his sentence pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (the Act). The applicant submits that his sentence should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2This application is one of several made by persons who have been convicted and sentenced for offences carrying a standard non-parole period, have unsuccessfully appealed against the conviction and/or sentence to the Court of Criminal Appeal, and now seek a further hearing in the Court of Criminal Appeal on the basis that there is a doubt or question as to "a mitigating circumstance" in the case, namely the infection of the original sentencing exercise by Muldrock error : Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120. 3The submissions of the New South Wales Attorney General take issue with the applicant's contention that Muldrock error relevantly constitutes a mitigating circumstance for the purposes of this application. However, for reasons which need not be canvassed in the instant case, the Court of Appeal has rejected that argument: Sinkovich v Attorney General of NSW [2013] NSWCA 383. 4In the light of that determination, the Attorney General concedes that there is sufficient evidence of Muldrock error in the instant case to justify action being taken under s 79 of the Act. The Attorney General does not maintain that the application ought not be dealt with for any of the discretionary reasons referred to in s 79(3) of the Act. 5The applicant was convicted after trial in the District Court on 7 August 2009 of an offence committed on 15 November 2007, namely that the applicant in company with others broke into and entered commercial premises in Blackett, wherein the applicant stole a sum of money the property of those premises. That offence under s 112(2) of the Crimes Act 1900 carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 5 years' imprisonment. 6In brief terms, the applicant broke into the yard of a bakery in the early hours of the morning of 17 November 2007 in the company of two other men. They were armed with a pole and a knife. The baker surprised the offenders as they were attempting to enter the premises. The baker took refuge in the store room and observed the offenders remove the cash register from the shop. The fingerprints of the applicant were found on the top of the boundary fence. 7The judge's remarks on sentence included a review of the applicant's subjective circumstances, including the fact that he was 28 years of age at the date of sentence, that he was described by a psychologist as "of low cognitive functioning and socially unsophisticated" and that he was raised in a dysfunctional environment where he was exposed to domestic violence. The offender was educated to year 12. He commenced consuming alcohol and smoking cannabis at 12 years of age. At 17 years of age he commenced intravenous use of amphetamines. He has also used ecstasy, cocaine and heroin. The applicant had a criminal history which included failed attempts at completing the Drug Court programme and residential rehabilitation. The applicant was on parole at the time of the commission of the instant offence. 8The sentencing judge found the offence to be "at the mid range of objective seriousness" and that there was "no good reason to depart from that guideline, benchmark or guidepost." It is clear that the judge therefore engaged in a two-stage sentencing process. 9The applicant was sentenced to a non-parole period of 5 years commencing 3 December 2008, with a balance of term of one year and 8 months. The applicant is therefore eligible for release on 3 December 2013. 10The applicant's appeal against conviction and sentence to the Court of Criminal Appeal on 10 March 2011 was dismissed on 4 May 2011. The decision in Muldrock v The Queen was handed down on 5 October 2011. 11The sentencing judge erred in failing to synthesise the objective and subjective factors before arriving at an appropriate sentence, having regard to the standard non-parole period. There is, in my view, a doubt or question as to a mitigating circumstance in the case warranting a referral of the matter to the Court of Criminal Appeal. I accept the applicant's submission that the merits of the case, in so far as a reduction in sentence may be warranted, are not within the purview of this application. Rather, that question is one for the Court of Criminal Appeal. 12In these circumstances, the application is granted. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2013