Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349

Supreme Court New South Wales

Medium Neutral Citation: Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349 Hearing dates: On the papers Decision date: 31 March 2015 Jurisdiction: Common Law Before: R A Hulme J Decision: Application refused Catchwords: CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act – whether sentencing principles properly applied - s 6(3) Criminal Appeal Act – no error in independent exercise of sentencing discretion – application dismissed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 MLP v R [2014] NSWCCA 183 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: MLP (Applicant) NSW Attorney General (Respondent) Representation: Counsel: Mr T A Game SC (Applicant) Ms N Adams SC (Crown Advocate)

Solicitors: Legal Aid NSW Crown Solicitors File Number(s): 2014/366199

DECISION 1. R A HULME J: MLP was sentenced by his Honour Judge Garling in the District Court on 6 October 2005 to imprisonment for 16 years with a non-parole period of 12 years with effect from 12 May 2005. This was for an offence of sexual intercourse with a person under the age of 10 years (namely 9 years) for which the applicable maximum penalty was imprisonment for 25 years and for which there was a standard non-parole period of 15 years. 2. On 6 September 2006 the Court of Criminal Appeal "confirmed" the 16 year sentence but "varied" the non-parole period to one of 11 years: MLP v R [2006] NSWCCA 271; 164 A Crim R 93. 3. MLP made an application pursuant to Pt 7 Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) which resulted in the matter of sentence being referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 390. The basis of the referral was that the assessment of sentence by the Court in 2006 was based upon the principles set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168 since held to be erroneous in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 4. The Crown conceded the error when the matter was back before the Court last year: MLP v R [2014] NSWCCA 183 (MLP v R (2014)). Bellew J, with whom Macfarlan JA and Adamson J agreed, said (at [8]) that "the sole issue to be determined … is whether some other sentence is warranted in law: Criminal Appeal Act 1912 s 6(3)". After referring to various aspects of the case his Honour arrived at the conclusion that some other sentence was not warranted. The appeal was dismissed. 5. MLP has now made another application pursuant to Pt 7 Div 3. The basis of the application is that Bellew J "misdirected himself as to the operation of s 6(3); without exercising the sentencing discretion afresh, he concluded that while there was 'no doubt that the sentence imposed upon the appellant was stern … I am not persuaded that some other sentence is warranted in law'" (Application submissions at [6]). 6. Submissions were made by the applicant and by the Attorney General. The latter succinctly characterised the application as posing a question whether there was a doubt or question as to a mitigating feature in the case, namely the proper application of sentencing principles in the applicant's second appeal.