Achurch v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Crennan,Kiefel,Bell JJ,Gageler J.
• Judgment Date: 02 April 2014
• Neutral Citation: [2014] HCA 10
• Docket Number: S276/2013
• Date: 02 April 2014

Brian William Achurch

Appellants

and

The Queen

Respondent

[2014] HCA 10

French CJ, Crennan, Kiefel, Bell and Gageler JJ

S276/2013

HIGH COURT OF AUSTRALIA

Achurch v The Queen

Criminal law — Sentence — Appellant convicted of drug crimes and sentenced — Crown successfully appealed against sentences — Court of Criminal Appeal applied reasoning held to be erroneous in Muldrock v The Queen (2011) 244 CLR 120 in re-sentencing appellant — Appellant applied under s 43 of Crimes (Sentencing Procedure) Act 1999 (NSW) for re-sentencing proceedings to be reopened — Court of Criminal Appeal dismissed application — Where sentences imposed by re-sentencing court open at law — Whether sentences imposed ‘contrary to law’.

Words and phrases — ‘contrary to law’, ‘principle of finality’.

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43(1), 43(2).

Representation

T A Game SC with G A Bashir for the appellants (instructed by Catherine Hunter Solicitor)

B W Walker SC with S C Dowling SC for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

ORDER

Appeal dismissed.

French CJ, Crennan, Kiefel and Bell JJ.

Introduction

1 On 24 June 2008 the appellant was convicted after trial by a judge and jury in the District Court of New South Wales of three counts of supplying prohibited drugs contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the Drug Act’). The counts on which he was convicted 1 alleged respectively that he supplied a prohibited drug, 3,4-methylenedioxymethylamphetamine (‘MDMA’) 2 (count 1), that he supplied an amount not less than the commercial quantity 3 of MDMA (count 2) and that he supplied an amount not less than the large commercial quantity 4 of methylamphetamine (count 4).

2 The appellant was sentenced to a total of 14 years imprisonment, backdated to 16 August 2006, with a non-parole period of six years expiring on 15 August 2012. A Crown appeal to the New South Wales Court of Criminal Appeal against the inadequacy of the sentences, individually and collectively, was allowed on 16 August 2011 5. The Court of Criminal Appeal re-sentenced the appellant. The offences alleged in counts and 4 were offences for which standard non-parole periods were prescribed in the Table to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’). In re-sentencing the appellant and fixing non-parole periods, the Court applied an approach developed in its earlier decisions which was subsequently held by this Court in Muldrock v The Queen6 to have been incorrect. It is not in dispute that, in the light of Muldrock, the Court erred by focusing upon the objective seriousness of the offence and then considering factors justifying a departure from the standard non-parole period.

3 This Court's judgment in Muldrock was delivered on 5 October 2011, seven weeks after the decision of the Court of Criminal Appeal. The appellant applied to the Court of Criminal Appeal on 22 March 2012 to re-open the proceedings on the Crown appeal. He invoked ss 43(1)(a) and 43(2) of the Sentencing Act, whereby a court may re-open criminal proceedings, including proceedings on appeal, in which the court has ‘imposed a penalty that is contrary to law’. The Court of Criminal Appeal, sitting a bench of five, dismissed the application on 22 May 2013 7 on the basis that s 4did not apply to errors of reasoning of the kind relied upon by the appellant when the penalty was one which could have been imposed in the proper exercise of the Court's discretion. The appellant has appealed against that decision to this Court pursuant to a grant of special leave made on 8 November 2013 8.

4 For the reasons that follow, we are of the opinion that s 43 of the Sentencing Act does not authorise the re-opening of proceedings in which a sentence open at law was reached by a process of reasoning involving an error of law.

The statutory framework

5 The decisions taken by the sentencing judge and the Court of Criminal Appeal must be understood in the light of the statutory framework governing the penalties for the offences of which the appellant was convicted. Count 1 on the indictment alleged the offence of supply of a prohibited drug contrary to s 25(1) of the Drug Act. The penalty for such an offence is a fine or imprisonment for a term of 1years, or both 9. If the supply is of not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Act, as alleged in count 2, the penalty under the Drug Act is a fine or 20 years imprisonment, or both 10. The penalty for supply of the large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Act, alleged in count 4, is a fine or imprisonment for life, or both 11.

6 Part 4 of the Sentencing Act deals with sentencing procedures for imprisonment. A court sentencing an offender to imprisonment for an offence is first required, by s 44(1), to set a non-parole period for the sentence, being the minimum term for which the offender must be kept in detention in relation to the offence. Division 1A of Pt 4 provides for standard non-parole periods for certain offences. It is unnecessary to repeat the analysis of its provisions set out in Muldrock12. The standard non-parole periods specified for the offences in counts 2 and 4 of supplying a commercial quantity of a prohibited drug and supplying a large commercial quantity of a prohibited drug were 10 years and 15 years respectively 13.

7 In Muldrock, this Court identified as the correct approach to sentencing for offences for which standard non-parole periods are specified in Div 1A 14 that enunciated for sentencing generally by McHugh J in Markarian v The Queen15:

‘[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.’

In sentencing for offences specified under Div 1A, the sentencing court is required to have regard to two legislative guideposts — the maximum penalty and the standard non-parole period 16. This Court eschewed a two-stage approach which had been apparent in decisions of the Court of Criminal Appeal after R v Way17, observing that nothing in Div 1A 18:

‘requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of

objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.’

The reasoning of the Court of Criminal Appeal in re-sentencing the appellant in the present case was inconsistent with Muldrock. The reasoning is briefly summarised below. It is necessary first to set out the sentences imposed by the sentencing judge in respect of each of the three counts and by the Court of Criminal Appeal.

Sentencing at first instance

8 The appellant was first sentenced on 6 August 2010. The delay between conviction and sentence resulted from defence applications to allow evidence to be obtained concerning the appellant's medical conditions and their management in custody 19. The total sentence imposed upon him by the sentencing judge, Woods DCJ, was 14 years imprisonment commencing 16 August 2006, with a non-parole period of six years expiring 15 August 2012. The individual sentences for each count were as follows:

Count 1	A term of imprisonment of two years and three months was imposed to date from 16 August 2006 and to expire on 15 November 2008. A non-parole period was not fixed because the sentence had already been served.
Count 2	A term of imprisonment of four years was imposed to date from 16 August 2006 and to expire on 15 August 2010. A non-parole period of four years was set but no balance term was specified. The sentencing judge held that the ‘offence [was] significantly less substantial in terms of culpability than a mid-range offence for such an offence.’
Count 4	A non-parole period of five years was fixed commencing on 16 August 2007 and expiring on 15 August 2012, with a balance term of eight years to commence upon expiration of the non-parole period and expire on 15 August 2020. The total sentence of imprisonment on count 4 was, therefore, 13 years comprising the non-parole period and the balance of the sentence. The sentencing judge did not treat the offence as in the middle range of objective seriousness ‘because the offence was “nipped in the bud” and nothing in effect came of it.’ The drugs had been found in a police search of a premises previously occupied by the appellant.

Re-sentencing on appeal

9 On 16 August 2011, the Court of Criminal Appeal (Macfarlan JA, Johnson and Garling JJ) allowed the Crown appeal. The sentences imposed on the appellant were quashed. In their place the following sentences were imposed:

The Court also ordered that the appellant would be eligible for release on parole on 16 August 2019.

Count 1	Imprisonment for two years and three months, commencing on 16 August 2006 and expiring on 15 November 2008.
Count 2	A non-parole period of six years, commencing on 16 August 2007 and expiring on 15 August 2013, with a balance term of two years, commencing on 16 August 2013 and expiring on 15 August 2015.
Count 4	A sentence of imprisonment by way of a non-parole period of 11 years, commencing on 16 August 2008 and expiring on 15 August 2019, with a balance term of five years, commencing on 16 August 2019 and expiring on 15 August 2024.

The re-sentencing reasons

10 The principal judgment of the Court of Criminal Appeal on the Crown appeal was written by Johnson J, with whom Macfarlan JA and Garling J agreed. Garling J wrote a...