Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ngati v R [2013] NSWCCA 307 Hearing dates: 23 October 2013 Decision date: 09 December 2013 Before: Hoeben CJ at CL at [1] Johnson J at [2] Latham J at [3] Decision: Application for extension of time within which to seek leave to appeal sentence refused. Catchwords: CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - guilty plea - specially aggravated break, enter and steal - every circumstance of aggravation in s 105A(1) Crimes Act 1900 present in offence - whether trial judge erred in approach to standard non-parole period - whether Muldrock error - whether substantial injustice would follow from refusal of application - standard non-parole period did not have determinative significance - application refused Legislation Cited: Crimes Act 1900 Cases Cited: Abdul v R [2013] NSWCCA 247 Bolt v R [2012] NSWCCA 50 Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120 Category: Principal judgment Parties: Mata Glassie Ngati - (Applicant) Regina - (Crown Respondent) Representation: Counsel: C Bruce SC - (Applicant) N Noman SC - (Crown Respondent) Solicitors: Legal Aid NSW - (Applicant) Solicitor for Public Prosecutions - (Crown Respondent) File Number(s): 2008/00003573 Decision under appeal Date of Decision: 2009-04-09 00:00:00 Before: Sides QC DCJ File Number(s): 2008/00003573 Judgment 1HOEBEN CJ at CL : I agree with Latham J. 2JOHNSON J : I agree with Latham J. 3LATHAM J : The applicant, Mata Glassie Ngati, applies for an extension of time within which to seek leave to appeal against a sentence imposed upon him by Sides QC DCJ on 9 April 2009 for a specially aggravated break, enter and steal committed on 7 January 2007. 4The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years. Following the applicant's plea of guilty, he received a non-parole period of 6 years and 7 months, commencing 19 September 2007 with a balance of term of 2 years and 5 months expiring on 18 September 2016. 5There is a single ground upon which the applicant seeks leave for an extension of time within which to appeal, namely that the judge erred in his approach to the standard non-parole period. This ground is now pressed on the basis of the decision in Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120. 6For the reasons identified by this Court in Abdul v R [2013] NSWCCA 247, the applicant must establish that a substantial injustice would follow if the Court refused the grant of the extension of time and failed to deal with the appeal on its merits. In effect, this requires the Court to assess the prospects of success of the appeal, having regard also to the length of the delay, the reasons for it and the interests of the community. 7The applicant has not previously lodged a notice of intention to appeal. The applicant contacted the review team in Legal Aid New South Wales on 22 November 2012. On 5 December 2012 the applicant was advised that his case was being reviewed. Between 19 February 2013 and 18 June 2013, the applicant's case was progressed internally by Legal Aid, including obtaining counsel's advice, seeking copies of exhibits and transcripts and preparing submissions. A notice of application for extension of time within which to appeal was filed on 28 June 2013. 8Having regard to this history, the only explanation for the delay is the applicant's awareness of the review process in relation to standard non-parole period offences. It would be reasonable to conclude that, but for the change in sentencing law brought about by Muldrock, neither the applicant nor his legal representatives at the time of sentence, considered the sentence infected by error or outside the appropriate range. 9The offence was a particularly serious example of aggravated break enter and steal. On 7 January 2007, the applicant and five other young men (three of whom were between the ages of 14 and 16, the remaining two being aged 20 and 21 respectively) discussed and executed a home invasion on domestic premises in Macquarie Fields, whilst armed. The applicant, then aged 32, directed the juveniles to the rear of the premises while he and the others remained at the front door. At about 6:30pm, the applicant knocked on the door and asked for directions from the 33-year-old female victim who answered. The applicant attempted to force entry as the victim opened the door, however she struggled and a male victim ran to the front door to assist her. 10At about this time the two juveniles who had gone to the rear of the house forced their way into the house. They were both armed with knives. The male victim was stabbed under the left armpit. The male victim and a juvenile struggled over the knife in the presence of the victim's 12-year-old son and the female victim. Another child aged 11 was also in the room. 11Meanwhile, the other juvenile unlocked the front door allowing the applicant and others to enter. The female victim attempted to use the phone but was threatened by one of the juveniles who held a knife to her throat and asked her to hand over the phone. After taking the phone, he again pointed the knife at her throat and asked where the money was. The male victim was kicked in the back and then forced to the floor. The knife was pressed to his face. He was repeatedly kicked in the head and ribs while his female partner screamed. The applicant stood over the male victim demanding money and then car keys. The male victim was then struck a number of times on the left knee with a mattock handle. A plasma TV and a number of Sony PlayStation games were stolen from the premises. The female victim managed to record the registration number of the vehicle. 12After leaving the premises, an offender reported the car as stolen. However, following a pursuit, the police were able to stop the vehicle carrying the two juveniles. The fingerprints of all of the offenders were located within the vehicle. On 27 April 2007 the applicant declined to be interviewed but provided a buccal swab and allowed the police to photograph him. On 12 July 2007 the applicant was interviewed but denied any knowledge of the offence and said that he was not in the Macquarie Fields area at the time. 13At the time of the offence, the applicant was unlawfully at large, having been sentenced in his absence on 4 May 2007 to a six-month non-parole period for a number of larceny offences. The applicant had failed to appear on a number of occasions in relation to these offences. In addition, the applicant was on parole for robbery offences. The applicant's parole was originally revoked on 6 March 2006, however he was again released to parole on 26 March 2006. Parole was again revoked on 3 November 2006, however the applicant was not returned to custody until 19 January 2007. The balance of parole was to expire on 6 April 2008. The judge correctly noted that the offence was aggravated by these factors. 14After setting out the circumstances of the offence, the judge reviewed the applicant's subjective case. His Honour then returned to the objective gravity of the offence, noting that, in addition to the commission of the offence in the knowledge that persons were in the home, every circumstance of aggravation provided for by s 105A(1) of the Crimes Act 1900 was present in the offence, namely, that the offenders were armed, the offence was committed in company, corporal violence was used, actual bodily harm was inflicted and the victims were deprived of their liberty. The circumstance of special aggravation charged against the applicant was the wounding of the male victim. The judge observed that the violence was prolonged and gratuitous. 15Immediately thereafter, the judge said :- In the court's view, having considered the offence in accordance with R v Way (2004) 60 NSWLR 168, this offence falls above the mid range. Although falling above the mid range the court treated the standard non-parole period as a type of benchmark or guidepost. 16This constituted the one and only reference to the standard non-parole period in the entire remarks on sentence. The judge went on to refer to the victim impact statements, the applicant's prospects of rehabilitation, questions of parity and other relevant authorities. Finally, the judge concluded that a sentence of 9 years' imprisonment was appropriate to the circumstances of the case. Issues of totality that arose from the commission of the larceny offences and the applicant's return to custody for breach of parole determined that a degree of partial accumulation was necessary. On this basis the judge found special circumstances and then pronounced sentence. 17The height of the applicant's submission on the sole ground of appeal is that :- It appears the sentencing judge may well have offended [Muldrock] ... in that he was of the view that it was mandatory to make a finding of where within the notional range the offence fell. It is further submitted that the "neatness of the mathematics", the Judicial Commission sentencing statistics, and comparable authorities all strongly suggest that the standard non-parole period had "determinative significance" in the sentencing of the applicant. 18With respect, this submission invites the Court to draw an inference that is not supported by the judge's comprehensive reasons. At its heart, it seeks support from matters external to the reasons and relies upon retroactive analysis. There is no indication anywhere in the remarks that the judge considered it mandatory to determine where the offence fell in the notional range. Considering the offence in accordance with Way does not, of itself, support that conclusion. There is nothing in Muldrock which prohibits a court from determining whether an offence falls within the mid range of objective gravity, rather the prohibition lies in adopting a two-stage approach to sentencing, that is by commencing with the standard non-parole period and oscillating around that figure, depending on the presence or absence of aggravating and/or mitigating factors. 19The applicant's reference to the "neatness of the mathematics" derives from Bolt v R [2012] NSWCCA 50. However, the submission is, for my part, inscrutable. The applicant commences by noting that the notional starting point, prior to the application of the discount for the plea of guilty (25%), was "somewhere in excess of 12 years with a non-parole period of approximately 9 years." The applicant then goes on to say that "it was possibly even higher having regard to the aggravating features that the applicant was on parole and bail at the time of the commission of the subject offence." Finally, the applicant concludes by asserting that "a notional non-parole period of 9 years generally fits the description as 'falling above the mid range'. 20There is nothing "neat" about these calculations. On the contrary, they acknowledge that the presence of several aggravating factors may well have disposed the judge to a notional sentence of more than 12 years. It is of no moment that the judge did not specify that notional sentence. His reasons disclose an application of the discount for the plea of guilty, and a consideration of all the relevant factors, objective and subjective, before determining a head sentence of 9 years. Given that the standard non-parole period is 7 years, that the offence was considered one falling above the mid range and the non-parole period actually imposed was 6 years and 7 months, it is difficult to discern how the standard non-parole period had "determinative significance." 21In my view, there is no merit in this ground. I propose that the extension of time within which to seek leave to appeal be refused. ********** 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: 09 December 2013