Application by Raouf Maurice Philopos pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 271

Supreme Court New South Wales

Medium Neutral Citation: Application by Raouf Maurice Philopos pursuant to s.78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 271 Hearing dates: On the papers Decision date: 18 March 2014 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Application refused Catchwords: CRIMINAL LAW - application under s.78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - whether Muldrock error - doubt or question not demonstrated - application refused 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 Philopos v R [2008] NSWCCA 66 Sinkovich v Attorney General of NSW [2013] NSWCA 383 Texts Cited: --- Category: Principal judgment Parties: Raouf Maurice Philopos (Applicant) Regina (Respondent) Representation: Counsel: --- Solicitors: Legal Aid NSW (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2013/215577 Publication restriction: ---

Judgment 1JOHNSON J: The Applicant, Raouf Maurice Philopos, applies for an inquiry into his sentence under s.78(1) Crimes (Appeal and Review) Act 2001 ("Appeal and Review Act"). The Applicant submits that his matter 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, having 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, in the form of suggested Muldrock error which affected the original sentencing exercise: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3Section 79(1) and (2) Appeal and Review Act provide: "(1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if 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." 4The Applicant was convicted after trial by jury of six counts, being four counts of indecent assault contrary to s.61L Crimes Act 1900 and two counts of having sexual intercourse without consent contrary to s.61I of that Act. The offence under s.61L carries a maximum penalty of five years' imprisonment. The offence under s.61I carried a maximum penalty of 14 years' imprisonment with a standard non-parole period of seven years. 5On 10 August 2006, Knox DCJ sentenced the Applicant to a total effective term of 12 years' imprisonment, with a non-parole period of eight years to expire on 30 August 2014. 6On 1 April 2008, the Court of Criminal Appeal dismissed an appeal against conviction and sentence: Philopos v R [2008] NSWCCA 66. 7The NSW Attorney General opposes the application, submitting that a doubt or question as to any mitigating circumstance may not arise by reference to Muldrock error and that, in any event, there is insufficient evidence of Muldrock error to justify referral to the Court of Criminal Appeal. 8The first submission of the Attorney General cannot be sustained in view of the decision of the Court of Appeal in Sinkovich v Attorney General of NSW [2013] NSWCA 383. 9The issue on the application is whether there is a doubt or question concerning suggested Muldrock error to warrant referral of the case to the Court of Criminal Appeal under s.79(1)(b) Appeal and Review Act. 10The facts of the offences may be stated briefly. On 2 April 2003, the Applicant attended Westmead Children's Hospital with his three-year old son, who was suffering from a severe asthma attack. In the early hours of 3 April 2003, the Applicant's son was transferred to a room on a ward. The Applicant was allowed to spend the night with his son and was provided with a chair bed to sleep on. 11The victim, who was 16 years old, was occupying another bed in the room, having been admitted for depression and severe social phobia. During the night, the Applicant engaged the victim in conversation a number of times before massaging her shoulders and touching her lower back, waist and thighs. He touched the victim on her genital area on the outside of her underpants and digitally penetrated the folds of the victim's vagina. He then placed the victim's hand on the outside of his pants, in the groin area, while the Applicant's penis was erect. The Applicant then pressed his penis into the folds of the victim's genitalia until he ejaculated, whilst the victim pressed her legs together to avoid any deeper penetration. The Applicant lifted the victim's pants and placed a piece of toilet paper on the victim's vagina. Finally, the Applicant kissed the right nipple of the victim's breast. The period of offending occurred over about an hour. 12The sentencing Judge imposed entirely concurrent sentences for each of the six offences. A fixed term of imprisonment for four months was imposed for each of the four s.61L offences. With respect to each of the s.61I offences, the Applicant was sentenced to imprisonment for 12 years with a non-parole period of eight years. 13The Applicant relied upon parts of the remarks on sentence in support of the claim of Muldrock error. Following consideration of the objective facts and the Applicant's subjective circumstances, Knox DCJ turned to the relevance of the standard non-parole period (ROS10): "The standard non-parole period for the more serious of these offences is, as I have said, one of seven years' imprisonment. That would reflect normally a finding of mid-range criminality following a trial - which is the case here. In my view there must be a finding at the very least of mid-range criminality. My overall assessment of the section 21A factors described under the Crimes (Sentencing Procedure) Act does not warrant any downward adjustment. I should specify that I have not taken this into account as the starting point but I indeed have a greater regard to the maximum penalty and the fact that there are two separate counts of sexual intercourse which would attract the penalty, albeit arising from the same incident." 14A little later, his Honour said (ROS10-11): "There were six counts on an indictment which all involved the same victim, the same date, the same time and the one location. To some extent it must be said that they would have involved a separate feeling of violation by the complainant herself and that becomes apparent when one reviews as I have, the evidence given by [the victim] in that regard. In my view the relevant standard non-parole period is relevant but is, in fact, less than what is an appropriate sentence in this regard." 15In determining the sentence appeal in Philopos v R, the Court of Criminal Appeal (McClellan CJ at CL, James and Barr JJ agreeing) said at [81]: "Finally it was submitted that the sentence should have provided a non-parole period no greater than the standard for the sexual intercourse offences; being 7 years "and probably less." The non-parole period which his Honour provided was 8 years. However, in my opinion these were particularly serious offences. Advantage was taken of a 16 year old girl who had been hospitalised with psychiatric problems. The appellant assaulted her over a period of time during which, because of her condition, she was unable to complain or effectively resist his advances. The offences involved digital penetration followed ultimately by penile/vaginal penetration. In my opinion a total non-parole period for all of the offences in excess of the standard non-parole period was not excessive." 16The Applicant submitted that the standard non-parole period was the determinative factor in the sentencing exercise at first instance. The sentencing Judge structured his reasoning by reference to the applicable standard non-parole period and the conclusion that the offending fell at least in the mid-range of objective seriousness. It was submitted that the standard non-parole period had been utilised in a way which went beyond use as a guideline or yardstick. 17It was submitted for the Attorney General that neither the approach of the sentencing Judge, nor that of the Court of Criminal Appeal, disclosed Muldrock error so that no doubt or question arose with respect to sentence. 18It is necessary to read fairly the remarks on sentence. The sentencing Judge found "at the very least ... mid-range criminality". His Honour stated that an overall assessment of s.21A factors "does not warrant any downward adjustment". However, the sentencing Judge then stated that the standard non-parole period was not being taken into account as a starting point, with greater regard being had to the maximum penalty and that fact that several offences were committed by the Applicant against the victim. 19The maximum penalty and the standard non-parole periods are both important legislative guideposts: Muldrock at [27]. 20I am not satisfied that the approach of the sentencing Judge or the Court of Criminal Appeal discloses a two-stage sentencing process, nor that the standard non-parole period was accorded determinative significance. 21In these circumstances, no doubt or question as to any mitigating circumstance has been demonstrated. 22The application is refused.