Application by Gil Bum Yun pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 824

Application by Gil Bum Yun pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 824

The application was refused because, although the original sentencing judge had given the standard non-parole period determinative effect, the sentence had already been quashed and re-exercised by the Court of Criminal Appeal. The applicant therefore had to establish Muldrock error in the Court of Criminal Appeal re-sentencing. The Court of Criminal Appeal had overturned the original sentence because the standard non-parole period had been wrongly used as a starting point, and on re-sentencing it applied the Markarian intuitive synthesis approach. Hoeben CJ at CL was not persuaded that Muldrock error occurred in the re-sentencing and therefore entertained no doubt or question as to...

Jurisdiction
Australia
Judgment Date
19 June 2014
Procedural Posture
Application for Inquiry Into Sentence Pursuant to S78(1) Crimes (appeal and Review) Act 2001 / On the Papers
Outcome
Application refused.
Legal Topics
['murder' 'standard Non Parole Period' 'muldrock Error' 'mitigating Circumstances' 'referral to Court of Criminal Appeal']
['criminal Law' 'sentencing' 'criminal Appeals and Review'] ['murder' 'standard Non Parole Period' 'muldrock Error' 'mitigating Circumstances' 'referral to Court of Criminal Appeal']

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Procedural Posture

Application for Inquiry Into Sentence Pursuant to S78(1) Crimes (appeal and Review) Act 2001 / On the Papers

Legal Issues

  1. 1 ["Whether there was a doubt or question as to any mitigating circumstance in the applicant's case for the purposes of an application for inquiry into sentence." "Whether the applicant's sentence was infected by Muldrock error because the standard non-parole period was given undue emphasis." 'Whether the Court of Criminal Appeal, when re-sentencing the applicant, gave primary or determinative significance to the standard non-parole period or instead applied the Markarian intuitive synthesis approach.']

Ratio Decidendi

The application was refused because, although the original sentencing judge had given the standard non-parole period determinative effect, the sentence had already been quashed and re-exercised by the Court of Criminal Appeal. The applicant therefore had to establish Muldrock error in the Court of Criminal Appeal re-sentencing. The Court of Criminal Appeal had overturned the original sentence because the standard non-parole period had been wrongly used as a starting point, and on re-sentencing it applied the Markarian intuitive synthesis approach. Hoeben CJ at CL was not persuaded that Muldrock error occurred in the re-sentencing and therefore entertained no doubt or question as to...

Court Disposition

Application refused.

Orders

  • ['Application refused.']