Application by Xiao Feng Wang pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825

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 a mitigating circumstance in the applicant's case under s78(1) Crimes (Appeal and Review) Act 2001." "Whether the applicant's sentence remained infected by Muldrock error because the standard non-parole period was given undue or determinative significance." 'Whether the Court of Criminal Appeal, when re-sentencing the applicant, gave the standard non-parole period primary significance or otherwise applied erroneous reasoning.']

Ratio Decidendi

The application was refused because the relevant sentence to consider was the sentence re-imposed by the Court of Criminal Appeal, not the original sentence imposed by Sweeney DCJ. The Court of Criminal Appeal had identified the excessive focus on the standard non-parole period, found error, and re-exercised the sentencing discretion using the instinctive synthesis approach without giving the standard non-parole period determinative significance. Its consideration of objective seriousness was not itself erroneous, because Muldrock recognises objective seriousness as part of the sentencing process. There was therefore no doubt or question as to mitigating circumstances warranting referral.

Court Disposition

Application refused.

Orders

• ['The application is refused.']