Supreme Court New South Wales Medium Neutral Citation: Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (No 2) [2016] NSWSC 1301 Hearing dates: On written submissions Decision date: 15 September 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 79(1)(b) of the Crimes (Appeal And Review) Act 2001 (NSW), the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against sentence pursuant to the Criminal Appeal Act 1912 (NSW). Catchwords: CRIMINAL LAW – Pt 7 of the Crimes (Appeal and Review) Act 2001 – whether "Muldrock error" at first instance – error conceded by Attorney-General Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 79, 79(1)(b) Criminal Appeal Act 1912 (NSW) Cases Cited: Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260 Cvetkovic v R [2010] NSWCCA 66 Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 561 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Macadam-Kellie [2001] NSWCCA 170 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Category: Principal judgment Parties: Dragan Cvetkovic (Applicant) Attorney-General of New South Wales (Respondent) Representation: Counsel: A Chhabra (Applicant) T Hammond (Respondent) Solicitors: O'Brien Solicitors (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2015/191159 Judgment Procedural background 1. On 17 March 2016, I delivered a judgment with regard to an application by Mr Dragan Cvetkovic (the applicant) for referral to the Court of Criminal Appeal of his conviction and sentence for wound with intent to murder. The application was refused, except with regard to the issue of whether a "Muldrock error" affected the sentence at first instance, and whether that question had already been determined by the Court of Criminal Appeal: see Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260. 2. With regard to that issue, I invited counsel for the Attorney-General (the respondent) to provide my Associate and the applicant with a complete copy of the transcript of the proceedings on sentence and the remarks on sentence: at [115] of my judgment. Once those documents were received, further submissions focused only upon the question of "Muldrock error" were to be provided within four weeks: at [115] of my judgment. 3. On 31 March 2016, Legal Aid sent a letter to my Associate on behalf of the applicant requesting an extension of time so that private solicitors could be engaged in the matter. On 5 April 2016, the solicitor for the respondent sent correspondence explaining that there was no objection to such an extension being granted. On 8 April 2016, it was conveyed to the parties that I was not opposed to that course; no formal orders were made. 4. On 22 April 2016 and again on 17 May 2016, my Chambers were advised electronically by the respondent that there was some difficulty in obtaining the materials to be provided; it was anticipated, however, that they would be provided on 20 May 2016. 5. On 13 May 2016, Part 1 of the submissions of the applicant of 15 April 2016 (accompanied by a covering letter of 1 May 2016) was received. Those submissions were prepared by the applicant himself. 6. On 18 May 2016, my Associate received correspondence to the effect that the applicant had instructed solicitors; however, further time was requested in order to file submissions. 7. A further extension was granted, with all materials with regard to the matter to be provided on or before 14 June 2016. 8. On 20 May 2016, the following documents were received electronically in my Chambers from the solicitor for the respondent: the transcript of proceedings after conviction of 22 July 2009; the transcript of proceedings after conviction of 7 August 2009; the remarks on sentence of 7 August 2009; a "Crown sentencing summary"; the Crown's written submissions on sentence of 5 August 2009; the exhibits tendered at the sentencing hearing (they being the criminal history of the applicant and a victim impact statement); and a copy of the judgment in R v Macadam-Kellie [2001] NSWCCA 170. 9. The respondent's submissions were filed on 9 June 2016. 10. Finally, submissions prepared by counsel for the applicant were filed on 14 June 2016. A foreshadowed issue, subsequently abandoned 1. As I have said, the only part of the application that I reserved for consideration was whether there was a "Muldrock error" at first instance. And that was the only topic upon which I invited further submissions. Without invitation from me, however, the applicant made submissions about other topics in his document of 15 April 2016. In particular, the applicant made the following submission (it appears verbatim and as formatted): "1. The Not Addressed Issue: Verdict of Not Guilty Due to Mental Illness [4] In para 65 of my application to the NSWSC, for the 1st time, I have asked a Court to consider my defence and a verdict of Not Guilty Due to Mental Illness, based on the following facts. [5] Dr Westmore's evidence: That was primary, firm, and unshaken opinion of Dr Westmore: A: "The very fact that this incident occurred in a public car park, in front of so many witnesses, automatically suggests to me that this is not the ordinary crime, this is a most unusual event,…" (T:1856; 2-5) Q: But if he had been unable to get her in a private place and if this is one of the few option he's got for access to her then it is a fairly logical place to do it? A: Not if he wanted to get away. Not if he really wanted to commit a crime and not to be detected, not at all, … (T:1856; 8-12). [6] Dr Westmore held, "… that's further evidence of his distorted thought processes… there was probably a compulsive component to it as well and so at same [sic] stage he's snapped in my view, probably the precipitant of the breakdown relationship, irrevocable. That on top of all his other sorrows and woes, the business, the finance and all those other things, and his depression has finally caused him to lose control to a degree, and that's what I believe has happened," (T:1856; 12-18) [7] Dr Westmore, unreservedly, disagreed with the prosecutor's proposition that I, "was aware that [my] actions in stabbing [my] wife were morally wrong", and did not believe that I, "was able to reason with a sufficient degree" and "understand the rightness and wrongness of what [I] was doing at that time" (T:1887; 30-39). [8] Dr Nielssen's evidence: "Insane automatism" was secondary opinion of Dr Nielssen. I have quoted that evidence in para 20 of my application. Dr Nielssen, in his second report of 15 March 2009, wrote: "However, any loss of voluntary control would have been at least partly due to the effect of an underlying depressive illness and would hence be considered an "insane automatism." (Transcript:page-s;line-s, T:1539; 1-18). [9] Please note that this Dr Nielssen's opinion was not a result of cross-examination, but existed in his report, and was just confirmed in the cross-examination. [10] Thus, both expert witnesses in psychiatry gave evidence from which a verdict of Not Guilty Due to Mental Illness should be available to me. [11] Further support for that verdict is in facts of my behaviour before, during and after the incident. In particular, in the evidence of my twilight state of mind in the weeks before the incident: [a] On one side, I was thinking of ending my life by overdose, drowning, jumping out of my hotel window and stabbing myself, and [b] On the other side, I was doing all I could do to reorganise my life – not to end my and my wife's lives, or to harm my wife and end in prison. [12] I plead to your Honour and the Court to refer my case to the CCA for consideration of substituting my verdict of guilty by verdict of Not Guilty Due to Mental Illness, based on: [a] Medical opinion and support for that verdict by both psychiatrists; [b] The fact that, at the time of the offence, not only that I was suffering from major depressive illness, but that I caused to me life-threatening injuries too; [c] Extensive exonerating facts of my behaviour before, during and after the incident; [d] The fact that not considering verdict of Not Guilty Due to Mental Illness, on the face of the evidence, would result in substantial injustice to me." 1. I came to the view that those paragraphs appeared to be a submission by the applicant that the conviction should be referred to the Court of Criminal Appeal on the basis that a verdict of not guilty on the ground of mental illness should be substituted for the verdict of guilty entered in the District Court. 2. I formed the view that the question of referral on this separate basis should be clarified and determined before any final decision was made by me about referral of the sentence, in order to avoid yet further delay and duplication attaching to this extended litigation arising from an incident that occurred in 2007. 3. On 10 August 2016, my Associate therefore, at my request, sent an email to the parties and, among other things, asked that the lawyers for the applicant confirm whether the submission was maintained: apart from anything else, in light of the consequences of a verdict of not guilty on the ground of mental illness. If it was to be maintained, I invited detailed submissions from both parties, including detailed analysis of the trial transcript, with regard to it. 4. On 19 August 2016, the solicitor for the applicant sent an email to my Chambers. He informed me that the applicant abandons any submissions with respect to his conviction being referred to the Court of Criminal Appeal on the basis that a verdict of not guilty on the ground of mental illness should be substituted for the guilty verdict. 5. As a result of that correspondence, I put the submission to that effect from the applicant to one side, and proceed to resolve the question that I reserved six months ago. Test to be applied 1. I am to apply the same test as I detailed in [3]-[4] of my earlier judgment. It is as follows: [3] With regard to the test that I am to apply to the material placed before me, in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, Johnson J said at [6]: The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [4] I respectfully adopt that formulation. I have therefore approached my task on the basis that, having read all the material with which I have been provided, I should ask myself whether I feel a sense of unease or disquiet about the conviction entered, or the sentence imposed, or both. The relevant portion of the remarks on sentence 1. It will be recalled that the sentence imposed upon the applicant was a head sentence of imprisonment for 17 years and 4 months, with a non-parole period of 13 years, to commence on 6 June 2007. 2. As I have said, I have now been provided with her Honour's complete remarks on sentence. 3. The relevant passages are as follows (at pp 12 and 15): I assess this offence as in the high range of seriousness, at the higher end of the scale of offences of this kind. As the Court of Criminal Appeal observed of a similar, though less serious, stabbing in R v Macadam-Kellie [2001] NSWCCA 170 the offender's culpability falls little short of the complete crime. … Having assessed the offence as in the high range of seriousness, and noting the standard non-parole period prescribed at 10 years for an offence in the mid range of seriousness after trial, and there being no reasons which have been advanced to me or are apparent from the circumstances of the offence or offender to depart from the standard non-parole period, the non-parole period I fix must be more than the standard non-parole period of 10 years. The relevant portion of the judgment of the Court of Criminal Appeal 1. The relevant passage of the judgment of McCallum J in Cvetkovic v R [2010] NSWCCA 66 (in which Price and Schmidt JJ agreed), is at [74], where the following was said: [74] The six cases identified by the applicant in support of this ground must be considered with those principles in mind. Each was a case of wounding with intent to murder, carrying a maximum penalty of 25 years imprisonment. It may be noted, however, that five of the six were determined prior to the introduction of standard non-parole periods, which came into force on 22 November 2002: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, schedule 1[4]. The standard non-parole period of 10 years for the offence of wounding with intent to murder now stands as a second legislative guidepost (in addition to the maximum penalty of 25 years) to which the court must have regard among the full range of factors to be taken into account in determining the appropriate sentence for the offence: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [27]. Submissions of the applicant 1. As I have said, the further submissions prepared by the applicant personally were received on 13 May 2016. The submissions prepared by his counsel were received on 14 June 2016. As one would expect, the latter focus more tightly upon the particular legal issue that was the solitary matter about which I invited further submissions. As well as that, in his own submissions the applicant has frankly said "…I do not understand the Muldrock's case…". In the circumstances, I have regarded the submissions of the applicant about that topic as having been superseded by those of his counsel, and have confined my attention to the latter. 2. Counsel for the applicant made the following submissions. 3. First, he submitted that the use of the word "depart" and the phrase "must be more" in the second of the extracted passages from the remarks on sentence demonstrates that Sweeney DCJ gave determinative significance, or at the least primary significance, to the standard non-parole period. That approach is contrary to the approach founded upon instinctive synthesis discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. 4. Secondly, counsel submitted that one can infer that her Honour adopted an impermissible two-stage approach, in that the non-parole period exceeded the standard non-parole period of 10 years because the objective seriousness of the offence was found to be above the middle of the range, and no subjective material was put before her Honour by the applicant that reduced that "starting point". 5. Thirdly, counsel for the applicant submitted that there was no submission about "Muldrock error" by the then self-represented applicant made before the Court of Criminal Appeal. And although the judgment cites Muldrock v The Queen, there is no consideration by that Court of this aspect of the approach adopted by her Honour. 6. As such, in accordance with [15] of the judgment of R A Hulme J in Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 561, he submitted that the absence of comment by the Court of Criminal Appeal could have the effect of implicitly endorsing the erroneous approach of the primary judge. 7. In short, counsel for the applicant submitted that the test had been made out with regard to the question of whether a "Muldrock error" occurred at first instance that has not been corrected on appeal: I would experience a sense of disquiet that that had indeed occurred. Submissions of the respondent 1. In response, counsel for the respondent made the following concessions. 2. First, he accepted that the remarks on sentence of Sweeney DCJ may show that her Honour adopted a two-stage analysis founded upon R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, in that her Honour used the standard non-parole period as a starting point before considering departure from it based upon aggravating or mitigating circumstances. In light of the decision in Muldrock v The Queen, the respondent conceded that her Honour was in error in doing so. 3. The respondent further conceded that the 2013 decision of the Court of Criminal Appeal did not directly deal with the process adopted by her Honour in setting the head sentence and non-parole period. 4. Consequently, counsel for the respondent accepted that there may be sufficient material to raise a doubt or question as to a mitigating circumstance in the applicant's case which may warrant further review. 5. In short, I regard the written submissions of counsel for the respondent as being a concession, after reflection, that he accepts: that there may have been "Muldrock error" at first instance; that it may be that the Court of Criminal Appeal did not deal with that error; and that it may well be appropriate for me to refer the matter to that Court for those reasons. Determination 1. It was the passage at p 15 of her Honour's remarks on sentence that led me in my first judgment to invite further submissions from the parties, in combination with the fact that recourse to the 2013 judgment of the Court of Criminal Appeal does not clearly demonstrate that that Court dealt with the current issue. 2. In the circumstances, I consider that the concession made by counsel for the respondent after a period of reflection on his part is soundly based. In other words, I experience a sense of unease or disquiet about whether her Honour committed an uncorrected "Muldrock error" when sentencing the respondent. 3. I have come to that view for the following reasons. 4. First, the second passage that I have extracted from the remarks on sentence is inherently suggestive of that. 5. Secondly, the fact that the remarks on sentence were delivered on 7 August 2009 (that is, after the decision R v Way had been handed down, but before the decision in Muldrock v The Queen had been handed down), and after a trial had been conducted, "circumstantially" supports the proposition that her Honour may have approached the question erroneously. 6. Thirdly, a written concession delivered after a period of reflection by counsel, experienced in criminal matters, has been made that the relief sought should be granted. 7. Fourthly, my own reading of the judgment of the Court of Criminal Appeal, gives rise to, at the least, a state of uncertainty about whether that Court dealt with this question. 8. Fifthly, as I remarked in my earlier judgment at [110], it would hardly have been surprising if the Court of Criminal Appeal did not deal with any question of "Muldrock error". That is so for the simple reason that, despite pressing a large number of grounds of appeal against sentence, the applicant (who at that stage was appearing for himself) pressed no ground focussing upon this question. 9. In all of the circumstances, I consider that the test has been made out. Accordingly, pursuant to s 79 of the Crimes (Appeal and Review) Act 2001 (NSW), I propose to refer the matter to the Court of Criminal Appeal as an appeal against sentence. 10. To be clear: the only aspect of the matter with regard to which I experience a doubt or question is the question of "Muldrock error". As I hope is obvious from the combined effect of this judgment and my earlier judgment, I do not possess that state of mind with regard to any aspect of the plethora of other submissions made by the applicant about his conviction and sentence. Order 1. I make the following order: 1. Pursuant to s 79(1)(b) of the Crimes (Appeal And Review) Act 2001 (NSW), the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against sentence pursuant to the Criminal Appeal Act 1912 (NSW). ********** 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: 23 September 2016