Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Imnetu v R [2014] NSWCCA 99 Hearing dates: 5/05/2014 Decision date: 05 June 2014 Before: Basten JA at [1]; Fullerton J at [39]; RA Hulme J at [57] Decision: Appeal against sentence dismissed Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - murder - above mid range of objective seriousness - determining effect of standard non-parole period absent error - whether lesser sentence warranted at law - relevance of post-offence conduct Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, 86; Pt 7 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Pt 4, Div 1A; Sch 2, Pt 7, cl 45 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 3 [9] Criminal Appeal Act 1912 (NSW), ss 5, 6, 26 Cases Cited: A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the Conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143 Ali v R [2014] NSWCCA 45 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Carlton v R [2014] NSWCCA 14 Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 GAR v R (No 2) [2010] NSWCCA 163 Grant v R [2014] NSWCCA 67 House v The King [1936] HCA 40; 55 CLR 499 Imnetu v R [2006] NSWCCA 203 Kearns v R [2011] NSWCCA 103; 213 A Crim R 150 Mallard v The Queen [2005] HCA 68; 224 CLR 125 Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Burke [2002] NSWCCA 353 R v Chard [1984] AC 279 R v Douar [2005] NSWCCA 455; 159 A Crim R 154 R v JJT [2006] NSWCCA 283; 67 NSWLR 152 R v Way [2004] NSWCCA 131; 60 NSWLR 168 RLS v R [2012] NSWCCA 236 ZZ v R [2013] NSWCCA 83 Category: Principal judgment Parties: Youssef Tecle Imnetu (Appellant) The Crown (Respondent) Representation: Counsel: I McLachlan (Appellant) R Herps (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2004/2875 Decision under appeal Date of Decision: 2005-08-26 00:00:00 Before: Newman AJ File Number(s): 2004/2875 Judgment 1BASTEN JA: This matter comes before the Court pursuant to a referral by a judge of the Court pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). The referral was consequent upon an application for an inquiry into the sentence imposed on Mr Imnetu, pursuant to s 78(1) of the Appeal and Review Act. The referral to this Court is to be dealt with "in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912 (NSW), and that Act applies accordingly": Appeal and Review Act, s 86. 2The language of these provisions, all contained in Pt 7 of the Appeal and Review Act, give rise to a number of questions, including the following: (a) whether the procedural requirements of the Criminal Appeal Act, relevantly with respect to leave and extensions of time, apply; (b) whether the person the subject of the referral is required to file a notice of appeal (or application for leave to appeal) with grounds; (c) whether there are limits on the scope of the proceedings given the referral of "the whole case" to the court, and (d) how s 6(3) of the Criminal Appeal Act applies and, in particular, whether, and if so when, the court may have regard to post-sentencing events. 3The details of the trial and first appeal and the circumstances of the offending have been sufficiently recounted by Fullerton J. Jurisdiction on a referral (a) procedural requirements 4In Carlton v R [2014] NSWCCA 14, the Court (RA Hulme J; Ward JA and Harrison J agreeing) held that the requirements with respect to leave and extension of time did not apply: at [38]. The reasoning underlying that conclusion, as a matter of statutory construction, is persuasive; however it may be necessary to consider such questions separately in relation to new grounds, not the subject of the inquiry. GAR v R (No 2) [2010] NSWCCA 163, which reached a tentative conclusion that the requirements of s 5(1) of the Criminal Appeal Act applied generally, should not be followed. (b) notice of appeal 5The second question, namely whether a notice of appeal is required, might be thought to fall within the same reasoning. Indeed, so much was accepted in Carlton at [21] and [36], applying the reasoning in A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the Conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143 at [16] (Bathurst CJ, Johnson and Button JJ agreeing). 6The practice of filing a notice of appeal appears to have been adopted in recent cases (including the present), possibly for the administrative convenience of the Registry. Accepting that such a document is not required, there remains a question as to its effect if filed. Thus the notice in the present case identified as the sole ground of appeal, error on the part of the sentencing judge in applying the provisions of Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") in contravention of the correct principles identified by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. That ground reflected the ground raised in the application for an inquiry under s 78 of the Appeal and Review Act. The practical significance of filing a notice of appeal arises primarily in circumstances where the appellant seeks to agitate grounds other than those which were the subject of the application for inquiry. That issue turns upon the answer to the next question. (c) referral of "the whole case" 7The third issue requires identification of the subject matter of the referral, which is to be treated as an appeal under the Criminal Appeal Act. Section 79(1)(b) provides for referral of "the whole case". Section 86 provides for the Court to deal with "the case so referred". It is possible that in some cases the Court will not be satisfied that the "doubt or question" which was sufficient to found the referral (pursuant to s 79(2)) involved error on the part of the trial judge, once the issue raised is fully addressed. On the other hand, the Court might be satisfied that there was other error which would warrant intervention if the matter were dealt with as an appeal, but which did not form part of the ground for referral. 8The answer to the question must depend upon what is meant by the phrase "the whole case", read in its statutory context. The same language is to be found in s 26 of the Criminal Appeal Act, as originally enacted. (It was not found in the provisions of the Crimes Act 1900 (NSW) which formed a second source of the provisions now in Pt 7 of the Appeal and Review Act.) 9Where no issue was raised on the application for an inquiry with respect to the conviction, it would be incongruous to suppose that once the matter reached the Court of Criminal Appeal, the appellant was at liberty to challenge the conviction. That may follow from the mandate in s 86 to deal with the case so referred as if the person had appealed against the "conviction or sentence". However, there is no doubt that where a specific challenge is raised as to either conviction or sentence, it is clear that the whole matter must be before the Court of Criminal Appeal in order that the relevant orders can be set aside, if that course is warranted. That purpose is satisfied by referring "the whole case" to the Court. 10On the other hand, it may be doubted, uninstructed by authority, that in respect of a sentence (if that is the matter which was the subject of the inquiry) the appellant is entitled to raise grounds of appeal unrelated to the matter which gave rise to a doubt or question and thus led to the referral. It would not seem to be consistent with the purpose of Pt 7 to allow satisfaction of the precondition to a further appeal to permit re-litigation of the case on grounds which formed no part of the application for an inquiry. 11This issue was not determined in Carlton. RA Hulme J stated that if an appellant "seeks to raise additional grounds, I tend to agree with Giles JA in Kearns that a Court is required to consider them unless they are thought to be frivolous or vexatious": at [39]. However no final view was expressed, because the point was not argued. In Kearns v R [2011] NSWCCA 103; 213 A Crim R 150, Giles JA (with whom Latham J agreed) stated at [23] that the Court was aware that the grounds of appeal went beyond the matters raised in the petition for review. No firm conclusion was reached as to whether leave was required in respect of the additional grounds; nor was there any separate discussion of whether they could be raised. The suggestion that they should be considered if not "frivolous or vexatious" was an adoption of language used by Toohey and Gaudron JJ in Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 at 312, and adopted in the joint reasons in Mallard v The Queen [2005] HCA 68; 224 CLR 125 at [11] (Gummow, Hayne, Callinan and Heydon JJ). 12Two further aspects of those cases should be noted. First, both cases (together with R v JJT [2006] NSWCCA 283; 67 NSWLR 152 in which they were applied) involved referrals based on fresh evidence said to cast doubt upon the original convictions. It is inevitable in such cases that the whole case relating to the conviction must be considered in order to determine the weight and effect of the new evidence. As noted in Mallard at [10], "the words 'the whole case' embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or 'previously adduced', in the case against, and the case for the appellant." The error on the part of the Western Australian Court of Appeal in Mallard was identified as the adoption of "serious inhibitions" in carrying out that exercise: at [9]. 13Secondly, the joint judgment in Mickelberg suggested that a ground of appeal could properly be excluded as vexatious or frivolous "on the basis that it had already been determined on the merits after full opportunity for argument" (that was in the earlier appeal): at 312. 14These considerations do not, however, permit departure from the broad statements of principle by the High Court and, in particular the approval in Mallard of the abandonment of a line of contrary authority with respect to the English provision (in equivalent terms) stating that the jurisdiction conferred on the court was that of "a general right of appeal to the Court of Appeal on any ground [upon] which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court": R v Chard [1984] AC 279 at 289 (Lord Diplock). 15Despite that language, this Court appeared to consider that leave was required in respect of an additional ground in R v JJT, at [89] (McClellan CJ at CL, James and Simpson JJ agreeing). 16Rothman J in Kearns adopted a somewhat different approach to the majority. He accepted that the question of leave with respect to the additional grounds depended upon the proper interpretation of the phrase "the whole case": at [112]. He referred to three cases in which a further appeal was sought on the basis of new evidence casting doubt on the original conviction, namely Mickelberg, Mallard and R v JJT. He further noted, correctly, that in each the ground for inquiry required that the new evidence be assessed against the whole of the evidence in order to determine whether there had been a miscarriage of justice. Rothman J concluded: "117 In the case now before the Court, no ground was raised in the petition other than a miscarriage of justice based upon the allegation that the judge was asleep. It was not suggested that any ruling was incorrect. Nor was it suggested that the summing-up was deficient. Further, it was not suggested that the result was unreasonable. The petition raised one matter. The justiciable controversy was whether, because the judge had fallen asleep during the trial, there had been a miscarriage of justice. 118 In resolving that justiciable controversy, it would be necessary to examine the trial, in its entirety, for evidence of inattentiveness or otherwise supporting (or excluding) the allegation of inattentiveness, or any resulting miscarriage. 119 But the controversy is defined by the pleadings, in this case, the petition and the reference. The 'whole case' is the whole of that controversy. The reference replaces, where it may otherwise have been required, the grant of leave by the Court or the issue of a certificate by the trial judge. 120 After reference, any ground of appeal that is not within the justiciable controversy referred is to be treated in the same way as if it were an appeal under s 5(1) of the Criminal Appeal Act. The alternative construction would lead to some anomalies." 17It is not necessary to decide whether that conclusion should be accepted. Even if the "whole case" is to be identified by reference to the ground relied on in seeking an inquiry, it does not follow that other grounds could not be relied upon, or if able to be relied upon, that leave is required. Nor was there consideration of whether a ground which involved a question of law only, within s 5(1) of the Criminal Appeal Act, would nevertheless require leave. There will be a further question in virtually all cases raising additional grounds, namely whether an extension of time is required, which would involve factors similar to those relevant to leave. On the one hand, a purposive construction might suggest that the subject matter of the appeal on referral was properly confined to the justiciable controversy defined by the application for an inquiry and the referral. On the other hand, the weight of authority is to the contrary. 18In Carlton, the issue might have called for resolution; the appellant submitted that the majority in the first appeal erred because they had adopted an erroneous approach to the standard non-parole period contrary to Muldrock, but also a failure to take proper account of the appellant's mental illness: Carlton, at [63]. It was not clear whether the second ground was related to the Muldrock error, which was the basis of the inquiry, or independent of it. The matter was ultimately determined by application of s 6(3) of the Criminal Appeal Act. The issue does not arise in the present case because no ground was raised beyond the Muldrock error, the subject of the inquiry. (d) application of s 6(3) 19The fourth question concerns the proper application of s 6(3) to a Pt 7 referral. In particular, it requires consideration as to how the Court should deal with evidence of post-sentence events. 20The operation of s 6(3) in respect of an appeal against sentence was carefully examined by this Court in Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 (Johnson J; McClellan CJ at CL and Adams J agreeing). It is now not in doubt that the process of determining an appeal may comprise two or three steps. First, the court must determine that an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 has been established: for that purpose it may be possible to conclude only that the sentence imposed was manifestly excessive. In that case, the finding of error will include the conclusion that some other sentence is warranted in law, with the result that the court will quash the sentence and pass such other sentence as it determines to be appropriate. By contrast, if a specific error is identified (of a kind which is not immaterial in the sense that it could not affect the outcome) the court must then proceed to a second stage of determining whether another sentence is warranted in law and should have been passed. That step will require consideration of the likely effect of the identified error on the sentence passed which, not being manifestly excessive, is within an acceptable range. Douar is authority for the proposition that reference to evidence of post-sentencing events is only appropriate after a relevant error has been determined and the court is proceeding to re-exercise (or is considering re-exercising) the sentencing discretion. 21There are two additional qualifications which appear to be assumed rather than expressed in the authorities. The first is that when this Court comes to re-exercising (or considering whether to re-exercise) the sentencing discretion it does so on the basis of findings of fact and inferences drawn by the sentencing judge, to the extent that they are unaffected by the error identified on appeal. That point was illustrated by Sperling J (Giles JA and Hidden J agreeing) in R v Burke [2002] NSWCCA 353 at [88], in a passage cited with approval in Douar at [123]. Where the error is the failure to order that an offender be released on the expiration of a non-parole period which is not more than three years, such an order would properly be made without the need (or, it is suggested, the power) to resentence the appellant afresh. Similarly, there is no reason in principle why the court, in a case where a Muldrock error has been identified, should reassess the objective seriousness of the offending where no separate error attended that assessment by the sentencing judge. 22The second point of qualification is that subsequent events may lead to a variation in the sentence which should have been passed at the time of the original sentencing, in circumstances where assumptions as to likely events were proved wrong, or where unforeseen events have come to pass. 23The further evidence commonly placed before the Court by way of affidavit from the appellant or others with knowledge of his incarceration, simply gives a history of that incarceration. However, if that material merely demonstrates circumstances within the usual range of expectations, it cannot properly affect the resentencing process. By contrast, where the further evidence indicates that the conditions of imprisonment have proved significantly more onerous than those assumed or expected at the time of sentencing, or that the appellant has subsequently been diagnosed with a serious illness, that may warrant a lesser sentence than that which would have been imposed at the time of sentencing, other things being equal. 24It may appear anomalous that such factors could result in a lesser sentence where error is otherwise established in the sentencing process, but not in circumstances where the subsequent events exist but no call for resentencing arises. In the latter case, the offender is limited to whatever administrative relief may be available (including possibly under Pt 7). 25There is no reason why the principles applicable to sentencing appeals generally, in these regards, should not apply on a referral under Pt 7. Approach to resentencing 26The mitigating circumstance which formed the basis of the referral was the failure to accord proper weight to the standard non-parole period. If it were correct that the sentencing judge (and this Court on the first appeal) erred, it was because determinative weight was given to the standard non-parole period in breach of the principles later established in Muldrock. 27The sentencing judge (Newman AJ) identified the principles to be applied in accordance with then accepted authority in this Court: par 33. He noted submissions as to certain mitigating factors, including that the offender's parents and most of his siblings lived in Belgium, a circumstance which would make his incarceration "particularly hard". The trial judge then stated that "countermanding this submission to a significant degree" was the fact that his brother and sister-in-law lived in Australia and that he had no psychological problems of significance. Having particular regard to the finding that the crime fell above the mid-range of objective seriousness for the offence, he concluded that "the fact that his parents and certain of siblings live overseas [is] not in this case sufficient to constitute special circumstances which would cause the Court to deviate from imposing the standard non-parole period." 28The reasoning set out above on the part of the sentencing judge (which was not challenged on the first appeal) is sufficient to demonstrate that undue weight was given to the standard non-parole period. The question is how one assesses what sentence would have been imposed if that error had not arisen. That is an exercise of some complexity. First, it is not possible simply to look to the range of sentencing for murders committed prior to 1 February 2003, when the standard non-parole period provisions commenced: as to the temporal element, see Sentencing Procedure Act, Sch 2, Pt 7, cl 45(1) inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 3 [9]. That is because, given proper weight, the standard non-parole period may well have affected the pre-existing sentencing range. On the other hand, it is not appropriate to adopt the sentencing range which existed after that date without knowing whether it was affected by the approach to standard non-parole periods found to be erroneous in Muldrock. 29These considerations would suggest that the correct approach might involve three steps, namely: (a) identifying a range of sentencing for murder with respect to offences committed prior to 1 February 2003; (b) identifying a comparable range for offences committed thereafter, and (c) identifying the extent to which any increase in sentencing might be ascribed to the effect of the standard non-parole period, properly considered in accordance with the principles established in Muldrock. However, the Court was not provided with assistance along those lines. Sentencing for murder 30Sentencing for murder has been restructured several times over the years since the abolition of the death penalty in 1955: Crimes (Amendment) Act 1955 (NSW), s 5. In its first phase, a mandatory sentence of penal servitude for life was imposed which was not subject to variation under s 442 of the Crimes Act. The first element of flexibility was introduced in 1982, allowing s 442 to operate where the offender's "culpability for the crime is significantly diminished by mitigating circumstances": Crimes (Homicide) Amendment Act 1982 (NSW), amending s 19. 31In 1989 s 19 was replaced by new s 19A which provided for imprisonment "for the term of the person's natural life" but removed any restriction on the operation of s 442: Crimes (Life Sentences) Amendment Act 1989 (NSW), Sch 1(4). Prior to 1989, persons convicted of murder could be released on licence, granted by the Governor and, from 1983, only on the recommendation of the Release on Licence Board: Crimes (Further Amendment) Act 1983 (NSW), inserting new s 463(5). It was not uncommon in the 1970s and 1980s for prisoners to apply for licences after serving 12 years, or sometimes less: see, eg, Johns v Release on Licence Board (1987) 9 NSWLR 103; Rendell v Release on Licence Board (1987) 10 NSWLR 499. 32Since 1996, the sentence of life imprisonment is reserved for the most serious forms of culpability: Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW) Sch 1, and see now, Sentencing Procedure Act, s 61(1). 33Provision for an offender to be released on parole was introduced by the Parole of Prisoners Act 1966 (NSW). The structure of a sentence involving a non-parole period has been varied on a number of occasions since that Act was repealed in 1983. With the commencement of the Sentencing Act 1989 (NSW), there has been a general requirement that the non-parole period be not less than 75% of the total sentence. The introduction of a system of standard non-parole periods commenced with respect to offences committed after 1 February 2003. 34In May 2010 the Judicial Commission of New South Wales published Monograph 33, The Impact of the Standard Non-parole Period Sentencing Scheme on Sentencing Patterns in New South Wales. It compared sentencing in two periods, namely that from 3 April 2000 to 31 January 2003 (before the standard non-parole period provisions) and from 1 February 2003 to 31 December 2007 (after the introduction of the standard non-parole period). With respect to offences of murder which went to trial on a not guilty plea, there were 51 cases in the "pre-period" and 33 in the "post-period": p 26, Fig 1. The median full term sentence increased by almost 28% (from 18 years to 23 years) and the median non-parole period increased by almost 18% (from 14 years to 16.5 years). There do not appear to be reliable post-Muldrock figures which might indicate what proportion of the increase resulted from a correct use of the standard non-parole period and what proportion revealed an illegitimate use. Application of principles 35The seriousness of the offending is undeniable: it was a carefully planned and brutal murder. Further, it was part of a joint criminal enterprise, of which the co-offender (who escaped the jurisdiction) was the ringleader. However, although the applicant may be legally responsible for all of the shocking acts of violence against the deceased, it is not possible to be satisfied beyond reasonable doubt that he personally inflicted any particular injury. That factor is relevant to moral culpability which must be distinguished from legal responsibility, for the purpose of sentencing. 36The applicant was young (being 22 years of age at the date of the offending), was without other criminal convictions and was described by the sentencing judge as a person of past good character with above average prospects of rehabilitation: par 30. 37In the absence of detailed assistance, the following considerations must operate at a level of generality. On the one hand, it is not in doubt that the enactment of a standard non-parole period for the offence of murder increased minimum periods of imprisonment by some years. What is almost a matter of speculation is the extent to which the increases resulted from according the standard non-parole period an illegitimate and determinative influence in the sentencing process. Given its proper role as a guidepost, there is no doubt that the standard non-parole period could properly have resulted in an increase in minimum custodial terms. On the other hand, there are a significant number of cases in which persons convicted of murder after a trial, where the offence was committed at a young age, received non-parole periods of less than 20 years. 38In these circumstances, the matter is one of impression, about which minds might well differ. I would propose that the sentence be set aside and that the applicant be sentenced to a non-parole period of 18 years with a balance of term of six years. The total sentence would therefore be 24 years to date from 22 July 2003. The applicant would be eligible for release on parole on 21 July 2021. 39FULLERTON J: On 1 July 2005 the appellant was convicted after trial before Newman AJ and a jury of the murder of Shoukat Ali Mohammed. 40On 26 August 2005 he was sentenced to 26 years and 8 months with a non-parole period of 20 years against a maximum penalty of life imprisonment to which a standard non-parole period of 20 years applied. 41On 30 June 2006 an application for leave to appeal against sentence was granted but the appeal dismissed. An appeal against conviction was dismissed on the same date (Imnetu v R [2006] NSWCCA 203). 42The evidence led at trial from which the facts were found for sentencing purposes is conveniently summarised in [2]-[16] of the judgment of the Court of Criminal Appeal as follows: "[2] The Crown case against the appellant was that he was party with Basheeruddin Mohammed ("Ben") in a joint criminal enterprise to kill Shoukat Ali Mohammed ("the deceased"). The evidence as to motive was not entirely clear. However, the deceased had put up a $20,000 bond for Ben as a condition of Ben's obtaining a bridging visa allowing him to remain in Australia. The deceased's own bridging visa was about to expire which meant that he would shortly have to leave the country. [3] The Crown case was that the deceased was killed in the appellant's bedroom in a unit he shared with others at 13/187 Cleveland Street, Redfern, at some time between 2.13 pm and 8.15 pm on 29 June 2003. The primary mode of death was strangulation although the deceased was also given a large dose of heroin and was violently assaulted with a baseball bat, suffering a severe head injury. In the evidence of Dr Botterill the cause of death was given as strangulation with opiate intoxication described as a "significant contributing condition." [4] Ben did not stand trial with the appellant. He had left the country on 17 July 2003 after his visa had been cancelled. [5] The case against the appellant was wholly circumstantial. Evidence of the movements of Ben, the appellant and the deceased on 29 June 2003 was available from video surveillance footage in the car park basement at the Cleveland Street premises. [6] The appellant was with Ben when they left the premises at 12.38 pm and went to a "Rebel-sport shop" in Broadway where Ben purchased a baseball bat and sleeping bag. The deceased made a telephone call from his mobile phone to Ben's phone at 12.45 pm. After first buzzing at the front door Ben and the appellant are seen returning to the appellant's premises through the underground car park with Ben carrying a parcel at 1.38 pm. At this time the appellant is also seen adjusting a surveillance camera in the underground car park. [7] At 2.25 pm Ben is seen leaving the premises. At 2.31 pm the deceased drives into the underground car park in his motor vehicle with Ben in the passenger seat. Both are seen approaching the internal lift. This is the last occasion the deceased is seen alive. [8] At 3.09 pm the appellant is seen entering the underground car park from the elevator. Ben joined the appellant for some two minutes and then leaves. The appellant is observed to walk into the view of camera 2, look up at it, and then move back from it. At 3.11 pm the appellant is seen standing near the fire stairs and doing a little dance. At 3.13 pm Ben is seen wearing a white top and the appellant a black top. [9] At 3.17 pm the appellant went back to the lift and returned to his unit. At 4.06 pm Ben and the appellant re-entered the car park. Ben is now wearing a dark top having changed from his white top. Both appear to be doing some form of surveillance. They also both approach the deceased's motor vehicle. During this sequence the motor vehicle is moved and returned and cameras are again interfered with. The appellant said he moved the cameras so that Ben could not be seen changing the number plates on the deceased's car. At 4.28 pm the appellant's flatmate, Mr Legarth returned home. On the Crown case the murder may and most probably had already taken place in the appellant's bedroom. The Crown submitted that the deceased had, at least, already suffered head injuries by this time. [10] At 5.09 pm Ben left the building through the front door and returned through that door at 6.06 pm. At 6.54 pm Ben left the building through the underground car park and returned shortly after at 6.59 pm with a wheelie bin which he took into the lift. [11] At 7.53 pm Legarth left the building. Legarth made no mention of a wheelie bin in his evidence and it was the Crown case that this could have been brought into the flat while he was showering. [12] It was the defence case that the first the appellant knew of the killing was when he came out of the shower, at or about 7.53 pm, when he saw the deceased in the wheelie bin in front of the exit door and that he was thereafter forced by the co-accused to assist in disposal of the body. [13] At 8.15 pm the appellant exited the lift, walked around and then went back into the lift. At 8.18 pm both exit. Ben was pushing a wheelie bin. Cameras are again interfered with. A few minutes later they re-enter the car park and enter the elevator. Some time later they are seen leaving in the deceased's vehicle. The vehicle was disposed of. [14] The evidence established that the deceased had been orally administered a large dose of heroin (he was not a drug user), had been violently hit over the head and then strangled with an electrical cord which was later found in the appellant's bedroom. Blood was subsequently identified on the carpet of the appellant's bedroom. [15] The Crown case was that the appellant and Ben were engaged in a "joint criminal enterprise." It was put that the jury could infer that the appellant was involved from at least the time of purchase of the baseball bat and sleeping bag, that he acted as a lookout in the basement car park, that he attempted to move the surveillance cameras on three occasions to avoid detection and that he was involved with the disposal and removal of the body of the deceased. The Crown also relied on mobile phone calls from the appellant to Ben and Legarth, which were made while both were at the premises and which were not answered by either of them. This was said to be a method of communication between the appellant and Ben and a method whereby the appellant tested whether Legarth was still in the unit. [16] There was also some evidence from which it could be inferred that the shirt worn by Ben got blood on it when the deceased was assaulted with the baseball bat, Ben took the shirt off and was then lent another, larger, dark shirt by the appellant. Ben is seen in the dark shirt at 4.06 pm." 43The sentencing judge made the following findings as to the appellant's subjective circumstances: "[26] ...First, he is a very young man. He is 24... He is a Belgium national, albeit of Eritrean extraction. He came to Australia in August 2001 on a student visa. His brother had migrated to this country in 1999. His brother is married and, indeed, his sister-in-law gave evidence at the trial as to the prisoner's character. On coming to this country the prisoner commenced and finished a business management course in this city. At the time of the commission of this offence he was working as a room attendant in a city hotel. [27] He has no criminal convictions and is regarded by character witnesses called at the trial as being a person of good character who lived a normal life for a person of his years. The only negative factor in his past is his use of cannabis. Indeed, there was evidence that he and Basheeruddin had intended to go out during the course of the afternoon of 29 June 2003 to purchase cannabis. [28] His parents still live in Belgium. Unfortunately his mother has been diagnosed with cancer, a matter that, naturally enough, the prisoner finds very distressing. [29] Since he has been in prison the prisoner has participated successfully in prison programs and has conducted himself properly in custody. [30] Taking all these matters into account I have considered sentence on the basis that the prisoner is a person of past good character with above average prospects of rehabilitation." 44The sentencing judge approached the standard non-parole period consistent with R v Way [2004] NSWCCA 131; 60 NSWLR 168 as summarised by the decision of Simpson J in R v AJP [2004] NSWCCA 434; 150 A Crim R 575, which he set out at length in his sentencing reasons. He also noted that a finding of special circumstances could allow a departure from the standard non-parole period that would otherwise be imposed following his finding that the offence was above the mid range, but was not satisfied that the appellant's status as a foreign national was sufficient in itself for a finding of special circumstances, as to which he said at [34] of his sentencing reasons: "... In my view the fact that his parents and certain of his siblings live overseas are not in this case sufficient to constitute special circumstances which should cause the Court to deviate from imposing the standard non-parole period. I say this particularly in the light of my finding that this crime indeed falls above the mid-range. I should also add in this regard that I do, as I have already indicated, accept the submission put on behalf of the prisoner by Ms McSpedden that Basheeruddin was the ring-leader in these events. I have determined to set the standard non-parole period rather than a longer period because of this factor together with the prisoner's past good character, his good prospects of rehabilitation, his youth and the fact that most of his family reside overseas. Whilst, as I have said, this latter factor does not constitute special circumstances, it is a factor to be taken into account in determining the appropriate non-parole period." 45One of the grounds of the appeal against sentence in 2006 was that the sentencing judge erred in his assessment of the objective gravity of the offence at above the mid range. Given the appellant's complicity with a co-offender in what McClellan CJ at CL described as a "premeditated and vicious killing" (a murder which Latham J, in a separate judgment, described as involving a relatively high degree of planning and in which the appellant played a pivotal role), the characterisation of the appellant's culpability as above the mid range was not found to admit of error. In dealing with a further submission advanced by the appellant that the evidence supported a finding that he did no more than act as a lookout and a decoy and not that he was actually involved in the murder, Latham J said as follows at [54]: "Not only did the appellant jointly engage with Ben in doing all that was necessary to carry out the murder and to avoid, as far as possible, detection, but he provided the premises where the offence might be committed without the risk of intervention by others. I do not regard a finding by his Honour that Ben was "the leader of these criminal activities" as in any way detracting from the objective gravity of the appellant's role. Similarly, the absence of evidence capable of establishing who administered the heroin to the deceased, who struck him with the baseball bat and who strangled him does not equate to the proposition that the appellant did not participate in those activities. Given the length of time during which the appellant and Ben were in each other's company, and in the company of the deceased, inside the unit when the injuries were undoubtedly inflicted, his Honour was entitled to find that the acts leading to the deceased's death were committed in concert." 46A separate ground of appeal concerned whether it was open to his Honour to regard the degree of planning involved in the murder, and the fact that it was committed in company, as features of aggravation under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), it being submitted that the proviso in s 21A(2) applied as both factors were elements of the offence. That ground of appeal was also rejected. McClellan CJ at CL held that they were not elements of the offence of murder for the purposes of s 21A(2), but merely descriptive of how this particular murder was carried out and that the sentencing judge was entitled to take both matters into account in characterising the seriousness of the offence and informing an appropriate sentence. Latham J considered that the circumstance of aggravation in s 21A(2)(e) (where the offence is committed in company) reflects the criminality inherent in the commission of an offence by the combined force of two or more offenders and does not equate with a joint criminal enterprise which is a basis of criminal liability. 47Following the decision in Muldrock v R [2011] HCA 39, (2011) 244 CLR 120 the appellant sought an enquiry into his sentence under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) on the grounds that there was a doubt or question as to circumstances having the potential to mitigate sentence, because undue weight was accorded to the standard non-parole period contrary to the decision in Muldrock. Although there was no reference in the Court of Criminal Appeal to the sentencing judge's application of s 54B(2) of the Crimes (Sentencing Procedure) Act, or to his Honour's approach to sentence for an offence where a standard non-parole period applied in accordance with R v Way, since disapproved of in Muldrock, Latham J was satisfied that it was implicit in the disposition of the ground of appeal that alleged error in the assessment of the offence as above mid range that the Court of Criminal Appeal saw no error in that approach. 48On 19 December 2013 her Honour granted the application and referred the matter to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) on the basis that the sentencing judge and the Court of Criminal Appeal applied sentencing principles that have since been discredited. 49The sole ground of appeal is in the following terms. "The sentencing judge erred in his consideration of the standard non-parole period in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120." 50There was no challenge to the sentencing judge's finding that the offence was above the middle of the range of objective seriousness or the views expressed by McClellan CJ at CL and Latham J in the Court of Criminal Appeal as to the nature and extent of the appellant's complicity in the murder. As RA Hulme J observed in Carlton v R [2014] NSWCCA 14 at [78], an assessment of objective seriousness referable to a mid range offence does not run counter to Muldrock. The question is whether in undertaking the re-sentencing exercise, enlivened by a finding of Muldrock error, the imposition of a lesser sentence is warranted at law as provided for in s 6(3) of the Criminal Appeal Act. That exercise requires that all relevant statutory requirements and sentencing principles are taken into account to inform the positive opinion provided for in the section (see Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; see also RLS v R [2012] NSWCCA 236 at [98]; and ZZ v R [2013] NSWCCA 83 at [97]). 51The approach to sentence mandated in Muldrock requires a synthesis of all factors bearing upon an appropriate sentence for the murder of the deceased, including the objective gravity of the appellant's offending, the impact of any aggravating factors, the appellant's subjective circumstances and the legislative guidance offered by the maximum penalty and the standard non-parole period, without the latter being prescriptive or exerting undue influence in the determination of an appropriate sentence. 52In determining whether another sentence is warranted at law, it is also necessary to consider the evidence relied upon by the appellant concerning his custodial conditions and his conduct as a prisoner since he was sentenced in October 2008 (see R v Douar [2005] NSWCCA 455; 159 A Crim R 154 at [123] where Johnson J considered the admissibility of evidence for the purposes of s 6(3) adopting the principled approach to that question in R v Burke [2002] NSWCCA 353 at [82]-[92]). The relevance of post-offence conduct in cases where a Muldrock error has been conceded or established will vary from case to case. In Ali v R [2014] NSWCCA 45 the appellant's acceptance of criminal responsibility and expressed remorse for the offending hitherto denied over many years, coupled with his efforts to obtain psychological help to provide insight to his offending, including having completed 11 of 14 sessions in the CUBIT preparatory program before he was advised by the Legal Aid Commission that his sentence was being reviewed following the High Court decision in Muldrock, were amongst factors which led the Court to conclude that a lesser sentence was warranted in law. In Grant v R [2014] NSWCCA 67 the appellant's deteriorating health whilst serving the sentence under review also attracted the intervention of the Court. 53The appellant is currently 33 years of age. He has spent 10 years and 8 months in custody, including a period on remand following his arrest for this offence. He has been punished for a breach of prison discipline in May 2012 when he was found with three USB devices which contained music, television shows and a wrestling training video. He expressed a desire to acquire tertiary qualifications in engineering. However, because he is serving his sentence as a foreign citizen he does not receive any assistance from the Australian government and the Belgian government does not provide financial support to their citizens who are studying overseas. He is unable to appeal to his family for financial support. The successful completion of a range of TAFE courses was confirmed by his instructing solicitor who annexed to his affidavit a large number of certificates of achievement. The appellant has worked in various jobs within the prison system and, at the time of these proceedings, is the head sweeper of his wing at Lithgow Correctional Centre. Aside from an older brother who lives in Sydney and who visits every two or three months, his other family members, including his parents, live in Brussels. His mother has visited on three occasions (in 2008, 2011 and 2013) and other family members were either at his trial or have visited since that time. 54The fact that the appellant has committed himself to study and has not breached prison discipline other than one relatively minor breach in May 2012 (notably not an offence of violence or associated with drug use), is to be commended. However there is nothing in the evidence upon which he relies for present purposes which does more than endorse what the sentencing judge predicted to be his sound prospects of rehabilitation. I also note that although the appellant has not taken the additional step of acknowledging responsibility for the murder or expressing any remorse for it, he does indicate a willingness to participate in the Violent Offenders Rehabilitation Program when it is offered to him. He is of course nine years older than his age at the time of sentence and ten years and eight months older than when he murdered the deceased. The mere passage of time, and what appears to be his maturation over that period, is not of itself of any significant weight of the question of re-sentence. 55For my part, despite the findings that are still able to be made in the appellant's favour operating in mitigation of sentence, and to a lesser extent his personal circumstances as a foreign national, the continuing relevance of the standard non-parole period and the maximum penalty as legislative guideposts for a murder of this level of objective seriousness, persuade me that no other sentence than that which was imposed by the sentencing judge is warranted in law. 56The order I propose is as follows: Appeal against sentence dismissed. 57RA HULME J: I agree with Fullerton J. ********** 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: 05 June 2014