Application of FD [2015] NSWSC 285 (27 March 2015)

Last Updated: 27 March 2015

Supreme Court New South Wales

Case Name:	Application of FD
Medium Neutral Citation:	[2015] NSWSC 285
Hearing Date(s):	On the papers
Date of Orders:	27 March 2015
Decision Date:	27 March 2015
Before:	Garling J
Decision:	Application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 dismissed.
Catchwords:	CRIMINAL LAW – application under s 78 Crimes (Appeal and Review) Act 2001 for inquiry into sentence –applicant convicted at trial of armed robbery, malicious wounding with intent to cause grievous bodily harm and murder – unsuccessful appeal to Court of Criminal Appeal against conviction – leave granted by Court of Criminal Appeal to appeal against sentence – no doubt of the way in which the applicant’s appeal against sentence was dealt with by the Court of Criminal Appeal – no basis for referral under Pt 7 Crimes (Appeal and Review) Act – application dismissed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
Cases Cited:	Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v FD [2006] NSWCCA 31 R v FD; R v JD [2005] NSWSC 128 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	FD (Applicant) Attorney-General of NSW (Respondent)
Representation:	Solicitors: Kiki Kyriacou (Applicant) NSW Crown Solicitors (Attorney-General)
File Number(s):	2014/239120
Publication Restriction:	Order of the Court of Criminal appeal on 21 February 2006 that the applicant is to be referred to as FD, and that there is to be no publication of any material capable of identifying the applicant.

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JUDGMENT

1. Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (“the Act”), FD (“the applicant”) applies for an inquiry into the sentence imposed upon him. The applicant seeks that his case be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912: s 79(1)(b) of the Act.
2. The application is opposed by the Attorney-General for the State of New South Wales.

Relevant Legislation

3. Sections 78 and 79 of the Act are relevantly in the following terms:

“78 Applications to Supreme Court

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) ...

79 Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 .

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a) it appears that the matter:

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

... and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) ...

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) ...”

Applicable Principles

4. In determining this application, the Court is engaged in an administrative task or function. That function is not another avenue of appeal, but is rather a function engaged in when the criminal justice system has run its course: see Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4] ff per Johnson J. That the proceedings are not judicial proceedings is made clear by the legislation: s 79(4) of the Crimes (Appeal and Review) Act.
5. The power which the Court is exercising is one limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. The test to be applied is whether it appears that there is a doubt or question as to any mitigating circumstances in the case. This view may be formed where the material causes “... the person considering the matters unease or a sense of disquiet in allowing the sentence to stand”: Holland at [6].

Relevant Facts

6. On 10 December 2004, FD was found guilty of three charges:
   • (a) Armed robbery contrary to s 97(1) of the Crimes Act, the maximum penalty for which was 20 years;
   • (b) Malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act, for which the maximum penalty was 25 years. There was a standard non-parole period of 7 years; and
   • (c) Murder, for which the maximum penalty was life imprisonment with a standard non-parole period 20 years.
7. The convictions followed not guilty pleas to each of the offences, and a trial lasting some weeks.
8. Levine J sentenced FD on 25 February 2005. It is with respect to that sentence that FD seeks a referral to the Court of Criminal Appeal pursuant to Pt 7 of the Act. The sentencing remarks of Levine J are to be found in R v FD; R v JD [2005] NSWSC 128.
9. His Honour described the facts in the following way:

“23 Mrs Rosalie Taylor put an advertisement in the “Trading Post” on 11 March 2003 to sell a diamond engagement ring for $15,000. The ring had been given to her by her son, Simon Taylor, to look after upon the break-up of his engagement. At about 11 o'clock on Friday, 21 March 2003, she received a call on her mobile from a man named "John", who was [FD], who gave her his mobile phone number. Arrangements were ultimately made for her to go to Glebe between 7.30pm and 8.00pm at the address of 1D Wigram Road. The last telephone call she had with the offender [FD] was whilst she, her husband and her son were driving across the Harbour Bridge at about 7.25pm. The Taylors arrived shortly thereafter at Wigram Road, Glebe. Mrs Taylor had the ring inside her bag and also available to her some documents in an envelope relating to valuation. [FD] was standing outside 1D Wigram Road. They introduced themselves. Mrs Taylor walked back to the car and obtained the valuation papers. Outside 1D Wigram Road, [FD] feigned a telephone conversation with his girlfriend and explained that her being away required them to get access to the house via the backyard. That is where [FD] led the party of the three Taylors.

24 Once in the backyard, there was a very brief exchange of conversation, which I am satisfied beyond reasonable doubt did not amount to an argument and did not amount to shouting or screaming. This is important with respect to the intrusion into the events of JD. In any event, JD burst into the backyard carrying a replica pistol. Thereupon, not surprisingly, there are confused accounts.

25 After what must have been a very short time, the bag had been snatched from Mrs Taylor and there was a pursuit down the lane. JD was tackled by Simon Taylor and whilst he had JD down, Simon was stabbed four times by [FD], two of the wounds being fatal. Prior to that, Mr Robert Taylor had been stabbed in the chest. That [FD] was the stabber has been established beyond reasonable doubt. After the stabbing of Simon Taylor, [FD] and JD ran away. [FD] put the bag under a car and threw the knife in a park where it was found by the police. The bag was also located.”

10. His Honour drew the following conclusions:

“(a) the events described constituted a pre-planned robbery;

(a) that FD was not armed with a knife when arrived at the location of the offence;

(b) that FD was the person who inflicted the fatal wounds to the victim;

(c) that FD had the knife and used it to extricate his brother, JD, so as not to leave him in the laneway where the events took place, and also did so to prevent his brother’s apprehension which would ultimately lead to his own apprehension.” (sic)

The Sentence

11. Levine J noted that at the time he committed the offences, FD was on a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.
12. His Honour then noted that it was the Crown’s submission that he would be persuaded that whilst the offence did not fall within the most serious category of murder, it fell within the “more serious category”. His Honour considered the basis upon which the Crown put that submission, and ultimately came to the conclusion that:

“The two characteristics to which the Crown refers would place this matter outside the middle range, but still not in the most serious category. That is almost the best one can say. There is no doubt minds would differ as to the ambit of all the categories and ranges within the crime of murder, especially when the intention was not kill but to cause grievous bodily harm.”

13. His Honour had earlier indicated that he did not accept that the murder was committed by FD with an intention to kill, but rather found that it was committed whilst he had an intention to inflict grievous bodily harm.
14. In the course of discussing the objective seriousness of the murder, Levine J dealt with the decision of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, and the standard non-parole period in two passages to which the applicant points as indicating that his Honour fell into error. Those passages are as follows:

“52 Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum: R v Sha (1988) 38 A Crim R 334; R v Peel [1971] 1 NSWLR 247. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made: R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 at 227.

...

54. As will be mentioned later in these reasons, this may well result in some change in the established sentencing pattern for these offences, or at least some of them, with an overall increase in the non-parole periods and terms of the sentences.”

15. His Honour then went on to deal with the offence of malicious wounding, which he regarded as particularly serious and above the mid-range. With respect to the robbery, his Honour described the crime as callous and that FD was the principal planner of the joint enterprise.
16. His Honour then referred to the subjective case of FD. He noted that he could find no evidence of contrition and that he did not regard there to have been any expression of remorse.
17. His Honour then addressed the mitigating and aggravating factors set forth in s 21A of the Crimes (Sentencing Procedure) Act and noted that:

“FD stands to be sentenced for the most serious of three crimes against three victims and those sentences for those crimes must involve a substantial component for general deterrence and personal deterrence as well as the factors referred to in s 3A of the [Crimes Sentencing Procedure Act].” (sic)

18. His Honour the concluded in the following terms:

“69 I propose to make the sentence for the armed robbery a fixed term to be served concurrently with the sentence for malicious wounding which, as I indicated earlier, must be a sentence made up of a nonparole period for what I will describe as a parole period. Partially concurrent to those sentences will be served the murder sentence which will be a prescribed sentence made up of a non-parole period and a parole period. In relation to the murder sentence, the parole period will bear the relative statutory proportion to the non-parole period. I see no reason to adjust the parole period for the murder sentence by reducing the non-parole period by what would be no more than about six months, to reflect a non-parole period that bears the statutory ratio to the totality of the sentences imposed for the three offences. This reduction would be tinkering and meaningless in the light of the objective gravity of the offences. I add that nothing has been placed before me that would constitute special circumstances, either by reference to relative youth, subjective considerations or the proposed partial concurrence of the sentences to be imposed.”

19. Ultimately, he imposed the following sentences:

“(a) for the offence of armed robbery – a fixed term of 6 years to commence on 23 March 2003, and to expire on 22 March 2009;

(b) for the offence of malicious wounding with intend to cause grievous bodily harm – a non-parole period of 9 years to commence 23 March 2003 and to expire 22 March 2012 with a balance of term of 3 years expiring on 22 March 2015; and

(c) for the offence of murder – a non-parole period of 18 years to commence on 23 March 2005 and to expire 22 March 2023 with a balance of term of 6 years expiring on 22 March 2029.”

20. Putting it simply, the sentences on the first two terms would all expire during the non-parole period for the offence of murder. That non-parole period of 18 years was accumulated by a period of 2 years on the earlier sentences.
21. In total FD was sentenced to an effective non-parole period of 20 years with a balance of term, effectively, of 6 years.

Court of Criminal Appeal

22. In February 2006, the Court of Criminal Appeal dismissed FD’s appeal against his conviction. It granted him leave to appeal against his sentence, but dismissed the appeal. It also dismissed the Crown appeal against sentence. The reasons are to be found in R v FD [2006] NSWCCA 31; (2006) 160 A Crim R 392
23. In his Application for Leave to Appeal against sentence, the applicant argued that Levine J had erred in three respects, namely:
    • (a) in the accumulation of the sentences for the offences arising from one overall event of criminality;
    • (b) failing to give full and proper consideration to the aspect of special circumstances; and
    • (c) a parity issue with respect to his co-accused, JD.
24. As well, the applicant argued that his sentence was manifestly excessive.
25. The reasons of the Court of Criminal Appeal dealing with each ground of appeal against sentencing were concise. Sully J (with whom Hall J agreed) held, having regard to the facts of each of the offences, and in particular, that the offences were committed against three separate victims, that it was appropriate for the sentencing Judge, Levine J, to reflect in a real way the total criminality of the applicant’s conduct by “... a prudent measure of cumulation”.
26. With respect to the second ground, the Court held that Levine J had made a proper assessment of the relative subjective features of FD’s case, and that there was no remaining basis.

“... grounded upon relevant and credible evidence, for reducing by reason of ‘special circumstances’ the statutory proportion as between head sentence and non-parole period”.

27. The Court of Criminal Appeal noted that there had been a concession by counsel at first instance that he could point to no real special circumstances.
28. When dealing with the third ground of appeal, the Court of Criminal Appeal held that there was no parity issue which arose between the cases of FD and JD, because by the time they stood for sentence their respective positions were “so manifestly different in substance that no parity point ... could be said to arise at all”.
29. With respect to the final submission of manifest excess of the sentences, Sully J said this at [87]:

“I do not see how this ground can possibly succeed. As earlier herein noted, the effective overall sentence for FD is one of imprisonment for 26 years; and the effective time to be served in any event is 20 years. To set out cold-bloodedly to rob a lady of a valuable item of jewellery and that with the use of an offensive weapon; maliciously to wound her husband in course of carrying out that design; and then to stab her son to death in an ensuing confrontation; is in my opinion, behaviour, the total criminality of which amply warrants in law and in fact sentences of the severity passed by Levine J.”

30. It will be observed that in dealing with the application for leave to appeal against sentence, and the appeal itself, Sully J (with whom Hall J agreed) made no mention at all of the standard non-parole period for any of the offences, and undertook no analysis whatsoever by reference to the standard non-parole period. Of course, in the introduction to the appeal, and the issues with which the Court was confronted, Sully J did set out with respect to each offence, the statutory maximum penalty of imprisonment and, where applicable, the standard non-parole period.
31. However, in the course of considering the Crown appeal against sentence, Sully J made these remarks:

“110. At the proceedings on sentence, the Crown argued that there were certain characteristics of the murder of Mr Simon Taylor that put the crime into what was described as a ‘more serious category of murder’. I infer that what was actually intended by that description was to fix the criminality of the murder at some indeterminate point between the standard non-parole point: that is to say, ‘the middle of the range of objective seriousness’ for murder; and what was described as the ‘most serious category of murder’.

...

113. In my opinion, Levine J correctly assessed the objective seriousness of the murder as lying somewhere above the notional statutory mid-range and the ‘worst category of murder’ level. That would equate, initially, to a non-parole period of more than 20 years; although just how much more must be, in the nature of things and as Levine J correctly recognised, a matter as to which reasonable minds would differ.

114. His Honour was then required to consider the circumstances of aggravation and of mitigation as enumerated in s 21A of the Crimes (Sentencing Procedure) Act ... These considerations were pertinent to an assessment of the justification, if any, for setting a non-parole period of less than 20 years for the murder.

...

116. In the present case, Levine J was confronted, in making the relevant assessment, by precisely such multi-directional guide posts. In distilling a conclusion from such guideposts, his Honour has to synthesise instinctively, in a way that reflected his own very considerable experiences both at trial and appellate judge in serious criminal cases, all relevant factors; but bearing always in mind that the exercise in hand was to quantify a sentence that was just in all the circumstances, objective and subjective, of the particular case.”

32. It can be seen that the reference by Sully J in the extract above to the existence of the standard non-parole period was in the context, not of considering whether the sentencing Judge had erred, or fixed a manifestly excessive sentence, but rather in the context of the necessity to determine where the objective seriousness of the offence of murder a finding should be made, so as to deal with a submission (which was unsuccessful) being made by the Crown, that the sentence of FD ought to be increased.
33. Paradoxically, in the circumstances of this application, the complaint made by the Crown on its appeal against sentence, which was ultimately dismissed, was that the sentencing Judge did not say that he was taking a staged approach to the sentence (as was submitted he was required to do). The substance of the Crown appeal on sentence was that his Honour had, without addressing correctly the principles in R v Way, imposed a non-parole period for the offence of murder which was less than the statutory non-parole period.
34. In dealing with these complaints, Sully J said:

“118. It is true that Levine J did not say in so many words that he was taking the staged approach that was approved in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. It is, also, true that, as the Crown submits, the only express explanation given by his Honour for an end result which entailed a non-parole period for the murder of less than 20 years, is that contained in [54] of the Remarks on Sentence.

119. I would understand [54] to convey a conclusion that after the relevant, requisite assessment had been made, and after a Pearce dissection of discrete sentences had been made, it was appropriate to impose a non-parole period of less than 20 years for the murder, because to do otherwise would offend the principle of totality. On that approach, Levine J did not fall into the error now suggested by the Crown.”

35. It is convenient to record here the short contents of [54] of Levine J’s Remarks on Sentence, which were in this form:

“The upshot is that I will treat the standard non-parole period as a guide and as I propose partially to accumulate the sentences in relation to those offences to attain the requisite totality. The nonparole period will in the end be less than the standard nonparole period.”

Discernment

36. It is submitted by the applicant that Levine J, having found that the offence was above a mid-range offence, must be taken to have used the standard non-parole period of 20 years as the starting point for the assessment of the appropriate sentence, and that the only reason the sentence fell below the standard non-parole period was because of totality.
37. This, it was submitted, is an error of law having regard to the way in which the High Court has in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 expressed the correct principles for sentencing.
38. I am quite unable to see that Levine J made any error of law in imposing the sentence on the applicant.
39. Muldrock establishes the proposition that a sentencing Judge is required, amongst other things, to have regard to the maximum penalty for an offence, and any standard non-parole period which has been fixed for that offence, as “legislative guideposts” with respect to the appropriate sentence. Those guideposts are to be considered together with all other relevant factors, not including characteristics of an offender, in a process of instinctive synthesis to arrive at the appropriate sentence.
40. It seems to me that a careful reading of the Sentencing Remarks of Levine J does not enable a conclusion that his Honour engaged in an impermissible approach to the sentencing of FD. On the contrary, he undertook the process of instructive synthesis, recognising that the standard non-parole period was a guidepost. Notwithstanding his conclusion about the objective seriousness of FD’s conduct, Levine J in fact imposed a sentence for the offence of murder which was less than the standard non-parole period.
41. I am unable to conclude with respect to Levine J’s sentence, that there has been any error of a kind that would require a court to intervene. I do not have a doubt or question as to any mitigating circumstances in the case of FD considering the sentence imposed. There is no basis for any referral under Pt 7 of the Crimes (Appeal and Review) Act with respect to Levine J’s sentence.
42. The Court of Criminal Appeal did not impose a sentence. Accordingly, it is, strictly speaking, unnecessary to consider whether there has been any doubt or question of the kind necessary to cause an order under the legislation with respect to the sentence.
43. However, having carefully read the remarks of Sully J (with whom Hall J agreed), I am not left with any doubt or question of the way in which the applicant’s appeal against sentence was dealt with.
44. In particular, when dismissing the applicant’s submission that the sentence was manifestly excessive, it is clear that his Honour’s remarks centred upon the nature of the conduct involved in the offence, the fact that the conduct involved three different victims and that the offences were serious. The dominating principle was one of aggregate totality for all three of the convictions.

Conclusion

45. It follows that the applicant’s application under Pt 7 of the Crimes (Appeal and Review) Act must be dismissed.

Orders

46. Application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, dismissed.

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