Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Grady v R [2015] NSWCCA 168 Hearing dates: 16 March 2015 Date of orders: 03 July 2015 Decision date: 03 July 2015 Before: Bathurst CJ: [1] Rothman J: [4] McCallum J: [51] Decision: (1) Extension of time granted; (2) Leave to appeal granted; (3) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – Muldrock error – application of principles on extension of time to appeal following High Court in Kentwell v The Queen – extension of time granted as reasons for delay explained and in the interests of justice – appeal dismissed as no lesser sentence warranted in law. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947 Kentwell v The Queen (No 2) [2015] NSWCCA 96 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 O'Grady v The Queen [2013] NSWCCA 281 O'Grady v The Queen [2014] HCA 38; (2014) 88 ALJR 960 Parker v Director of Public Prosecutions (1992) 65 A Crim R 209 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Andrew O'Grady (Accused) Regina (Crown) Representation: Counsel: G. Bashir SC/with J. Roy (Applicant) J. Girdham SC (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/9964 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Division Date of Decision: 17 September 2010 Before: Murrell DCJ File Number(s): 2009/9964 Judgment 1. BATHURST CJ: I agree with the orders proposed by Rothman J and with his Honour's reasons. I would, however, add the following remarks. 2. As Rothman J pointed out, no warning was given in the present case that an increased sentence may be imposed as a possible outcome of the re-exercising of the sentencing discretion under s 6(3) of the Criminal Appeal Act 1912 (NSW). In those circumstances, it would have been erroneous to impose a greater sentence on the appellant than that imposed by the primary judge. 3. In the present case, Rothman J has indicated the sentence which he regarded as appropriate on re-exercising the sentencing discretion in the manner required by Kentwell v The Queen [2014] HCA 37; 88 ALJR 947. I agree that the sentence suggested by Rothman J was warranted. I also agree with Rothman J that where, as in this case, the Court is of the view, on the re-exercise of the sentencing discretion, that a greater sentence than the one imposed by the sentencing judge is warranted, it is not always necessary to specify the actual sentence which the Court believes is warranted. My present view is that it would generally be sufficient that the judgment demonstrates that the re-sentencing exercise has in fact been carried out and provides reasons as to why the Court was of the view that a greater sentence was warranted in law. However, it is not necessary to come to a final conclusion on this matter. 4. ROTHMAN J: Andrew O'Grady (the applicant) seeks an extension of time in which to file an application for leave to appeal. If the extension of time were granted, the applicant also seeks leave to appeal and to appeal the sentence imposed upon him in the District Court at Sydney on 17 September 2010. The application for the extension of time, the application for leave to appeal and the appeal, to the extent that the extension of time and leave to appeal were granted, were heard concurrently. 5. The application for extension of time was initially heard by the Court of Criminal Appeal on 21 October 2013, but the application was dismissed on 18 November 2013 (the first appeal judgment). The applicant thereupon appealed to the High Court of Australia and the High Court, on 9 October 2014, allowed the appeal against the first appeal judgment, set aside that judgment and remitted the matter back to this Court for determination in accordance with law. 6. The charge against the applicant was contravention of s 112(3) of the Crimes Act 1900, being the charge of specially aggravated break, enter and commit serious indictable offence, namely robbery, for which is prescribed a maximum sentence of imprisonment for 25 years and a standard non-parole period of 7 years' imprisonment. 7. The offence was committed on 12 May 2008. The applicant pleaded not guilty and was convicted after trial. The sentence imposed by the District Court was a sentence of a non-parole period of 5 years and 6 months, commencing 23 May 2010 and expiring on 22 November 2015, with the balance of term of 3 years and 6 months expiring on 22 May 2019. 8. One ground of appeal is raised, namely, what is known as "Muldrock error". More formally, the ground is expressed in the following terms: "(i) Her Honour erred in her approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120." 1. The appeal was filed on 27 June 2013, almost 3 years after the imposition of the sentence. It is necessary to reiterate the facts, which have now been summarised a number of times, and to deal briefly with the Remarks on Sentence and the subjective circumstances of the applicant. Facts 1. On 12 May 2008, the applicant and two other men (together, "the offenders"), consumed drugs and alcohol before driving around for approximately 2 hours in a stolen vehicle. The applicant had been involved in a "bad drug deal" and wanted to "rectify the situation with the dealer" (see evidence of co-offender). 2. The offenders drove to the apartment building of the victim, whom the applicant knew. They approached the victim's unit through a car park, up the fire escape stairs and through the fire escape door, which the applicant opened with a screwdriver. 3. The victim was alone in his apartment and when he opened his apartment door, the offenders pushed him onto a couch. As the victim attempted to protect himself, the situation "erupted" and the offenders seriously assaulted him, during which assault the victim lost consciousness. 4. The offenders stole the victim's television, DVD player and other items of value. They left the victim's apartment and the two co-offenders dropped the applicant at a location in the Central Business District. The robbery occurred during the time that the victim was unconscious. 5. The victim regained consciousness the next morning and went to the hospital. He was diagnosed with severe lacerations to his face and scalp and fractures to the floor of his right orbit. 6. These matters were reported to police and later that morning police found the two co-offenders in the stolen vehicle with the items from the victim's house. On 6 April 2009, after the arrest of the two co-offenders, the applicant was arrested. 7. I should also note that the sentencing judge found that it was "probably" the applicant who, prior to the assault, had demanded that the victim disclose the location of his money and drugs. A more complete summary of the facts is set out in the first appeal judgment: O'Grady v The Queen [2013] NSWCCA 281 at [10]-[19]. The Ground of Appeal 1. As earlier stated, the only ground of appeal is the adoption by the sentencing judge of the approach to sentencing mandated by this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. It is appropriate to set out the salient passage from the Remarks on Sentence (ROS at [2]), in which the sentencing judge stated: "The offence carries a maximum available penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment. The standard non-parole period of 7 years represents the non-parole period for an offence in the middle of the range of objective seriousness for an offence of this type. When determining the sentence for the offence, the Court is to set the standard non-parole period unless the Court determines that there are reasons for setting a non-parole period that is longer or shorter than a standard non-parole period. The relevant reasons are confined to those referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999." 1. The foregoing represents an impermissible approach to the exercise of the sentencing discretion, as was clarified by the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. In that judgment, the High Court expressly disapproved the approach previously applied by this Court, arising from the judgment in R v Way. 2. As a consequence, the sentencing judge, while applying the law as she was then bound to do, adopted an erroneous two–stage approach to sentencing, involving the setting of the standard non-parole period, with additions or subtractions depending upon reasons considered appropriate for departing from the said standard non-parole period. 3. As is conceded by the Crown on appeal, the approach of the sentencing judge was, in hindsight, an error of the kind described by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499, being a misapplication of the principles, or the application of a wrong principle, in the exercise of the sentencing discretion. 4. There is identifiable error, which may possibly have affected the sentence that was imposed. Extension of Time and Leave to Appeal 1. In Kentwell v The Queen (No 2) [2015] NSWCCA 96, the Court, as presently constituted, summarised the principles associated with an extension of time, leave to appeal and the operation of s 6(3) of the Criminal Appeal Act 1912. 2. The appeal with which these reasons for judgment is concerned was heard at the same time as the appeal in Kentwell v The Queen (No 2). Further, the High Court heard the appeal in the applicant's appeal together with the appeal to it in Kentwell v The Queen: see O'Grady v The Queen [2014] HCA 38; (2014) 88 ALJR 960 at [1] and Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947. 3. In Kentwell v The Queen, the High Court held that the determination of an application for an extension of time involves the consideration of the interests of justice in the circumstances of a particular case: see Kentwell v The Queen at [30]. The High Court acknowledged that the interests of justice varied and often pointed to different conclusions, or pulled in different directions. 4. As has been made clear by the High Court, the discretion conferred on a court to extend time is not confined to cases in which the refusal of the extension of time would occasion substantial injustice: see O'Grady v The Queen in the High Court at [13]. The High Court there held that, while the prospect of success in the appeal itself is a relevant factor, that assessment does not end with the establishment of error, but also involves consideration of the issues under s 6(3) of the Criminal Appeal Act, as to whether some other sentence is warranted in law and any other factor affecting the interests of justice. 5. In this case, as in Kentwell v The Queen (No 2), the Crown no longer opposes an extension of time. 6. The applicant had initially instructed legal representatives to lodge a Notice of Intention to appeal against both conviction and sentence. A Notice of Intention to appeal was, it seems, only filed in relation to the conviction appeal. The conviction appeal was dismissed on 13 April 2012. It appears that there had been a refusal of the grant of Legal Aid for an appeal against sentence, as originally instructed. 7. As a consequence of the foregoing, it seems to me that the reasons for delay have been explained and the interests of justice are such that the application for an extension of time ought be granted. I am comforted in that view by the consent of the Crown. Leave to Appeal and Appeal 1. The sentencing judge determined that the offence fell within the mid-range of objective seriousness. There is no appeal ground seeking to overturn that categorisation. 2. The applicant was the "orchestrator of the offence" and was the only offender who possessed the motivation to seek out the victim. The applicant identified the victim and the victim's apartment to his co-offenders and opened the fire door to the victim's apartment building door with a screwdriver. 3. The sentencing judge acknowledged, as do I, that the victim's injuries were "towards the lower range of seriousness". However, her Honour found that the "robbery itself was a matter of a very considerable seriousness" and I agree with that description. The robbery involved the actual use of serious violence. The violence continued until the victim was unconsciousness and the offence occurred in the victim's home. 4. The applicant had three prior convictions, which, while not for offences of the seriousness of the instant offence, denied the offender the leniency available to a first offender. Further, the offence was committed while the applicant was on conditional liberty (a 12 month s 9 bond). 5. As earlier stated, the assault and robbery occurred in the victim's home, which the sentencing judge determined was "a very significant factor" and I agree with that assessment. Next, the applicant committed the offence with two other persons and, although the sentencing judge determined that that was not "a significantly aggravating factor", in my view, it renders the offence more serious in a way not encompassed by the special aggravation in the offence itself. 6. The sentencing judge determined that the applicant had good prospects of rehabilitation, partly as a result of the psychologist's report. The sentencing judge also determined that special circumstances existed and imposed a non-parole period significantly shorter than the prescribed ratio, because the applicant would need an extended period of supervision when he ultimately returned to the community. 7. I agree with the finding of special circumstances and would independently so find. The applicant is, on the current sentence, due to return to the community (or first eligible for parole) on 22 November 2015. 8. One cannot ignore the psychologist's report when determining the applicant's subjective circumstances and mental health. The applicant had, according to the psychologist, witnessed the stabbing murder of his partner, after which he developed Post-Traumatic Stress Disorder (PTSD), anxiety and depression. The psychologist testified that, to deal with the symptoms of those conditions, the applicant began to use drugs heavily, which led to the circumstances of the offence in question. The applicant had consumed a substantial quantity of drugs and alcohol, in the company of the co-offenders, prior to the commission of the offence. 9. While evidence has been adduced of courses undertaken by the applicant during his prison sentence and of the effect of the prison sentence on his family, these effects are ones that an experienced sentencing judge, such as the sentencing judge below, would necessarily contemplate. They do not affect the correctness of the finding that there were special circumstances and that the applicant had good prospects of rehabilitation. Indeed, the material adduced in the affidavits, available on re-sentencing, attests to the correctness of the finding of the sentencing judge and allows a degree of comfort in independently coming to the same conclusion. 10. Issue is taken, in the applicant's submissions on appeal, with the determination by the sentencing judge that the objective seriousness of the offence was within the middle range of objective seriousness for the offence of "specially aggravated" break, enter and commit serious indictable offence. As stated, the "error" in the categorisation of the objective seriousness of the offence is not a separate ground of appeal. 11. Nevertheless, I should make clear, given that I am required to re-sentence the applicant, that there is no error in the categorisation by the sentencing judge below. Since the violence was perpetrated to a point where the victim was unconscious, was done in the company of two others and was premeditated, the circumstances warrant the offence being categorised in the mid-range. 12. The maximum sentence is 25 years' imprisonment. The standard non-parole period is 7 years' imprisonment. Each is a guidepost in fixing the sentence for the offence. The sentence imposed upon the applicant was a 5 1/2 year non-parole period as part of a head sentence of 9 years. 13. However, the sentence imposed below ought be given no weight in the process now being undertaken. Once leave to appeal is granted and error disclosed, this Court must independently come to its conclusion on the sentence to be imposed. I note that the Court did not warn the applicant that an increased sentence may be imposed as a possible outcome: see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 and also see Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305. 14. The applicant points to statistics that show that only 15% of offenders were sentenced more severely than the applicant. There are significant limits in the manner in which one may use statistics. Apart from any other aspect, such an approach becomes a self-perpetuating limitation on the sentencing discretion to be exercised. 15. Ultimately, the sentencing judge relying, as her Honour did, on the decision of this Court in R v Way, was led into error. The correct approach to the exercise of the sentencing discretion is that described by the High Court in Muldrock and does not involve adding to and subtracting from the standard non-parole period. Error having been identified, which error could have affected the sentence imposed (see Kentwell v The Queen (No 2)). Leave to appeal should be granted. 16. As earlier stated, error having been disclosed and leave having been granted, the Court must independently come to a view as to the appropriate sentence for the applicant and impose that sentence. The guideposts are the objects and purposes of sentencing (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465), and the maximum sentence and standard non-parole period. 17. In my view, given the subjective circumstances and the objective culpability, a head sentence over 9 years' imprisonment is warranted. I would fix between 9 years and 10 years as a head sentence. It is unnecessary, in the present circumstances, to be more precise. 18. Further, a reduction of the standard non-parole period to allow three and a half years' parole gives too much weight to the special circumstances. The statutory ratio would result in 6 years and 9 months non-parole period and a reduction of 9 months would, in my view, suffice. 19. However, no warnings having been given, I do not suggest an increase in the sentence. Exercising the sentencing discretion afresh, no lesser sentence is warranted in law and I would not interfere with the sentence imposed by her Honour. 20. The foregoing comments relating to the sentence I would have imposed are not intended to suggest that the sentence imposed by her Honour below is outside the range available to be imposed; the sentence below is at a low or the lowest end of the range. Nevertheless, I am required to exercise the sentencing discretion independently and, when exercising that discretion independently, would have arrived at a sentence of the kind described above. 21. Further, the above analysis of the sentence I consider should have been determined is not intended to suggest the Court needs, in all cases, or at all, to specify the sentence it would have imposed, before coming to the conclusion that no lesser sentence is warranted. It is simply unnecessary, in this case, to deal with the issue. 22. I propose that the Court make the following orders: 1. Extension of time granted; 2. Leave to appeal granted; 3. Appeal dismissed. 1. MCCALLUM J: I agree with Rothman J and with the additional remarks of the Chief Justice. ********** 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: 03 July 2015