The High Court has allowed two appeals from sentencing decisions of the NSW Court of Criminal Appeal in Kentwell and O’Grady. Kentwell was convicted of several counts of assault and rape of his partner, and sentenced to 12 years imprisonment with a non-parole period of 8 years. O’Grady was convicted of aggravated breaking and entering, and sentenced to 9 years imprisonment with a non-parole period of 5 years 6 months. These two appeals shared the common issue of whether the NSWCCA erred in finding that the sentences imposed were correct despite the sentencing judge’s misapplication of the law on standard non-parole periods in NSW. Both applications were made beyond the ordinary time limits for appeals against sentence because at that time the law on standard non-parole periods had not yet been overturned by the High Court in Muldrock v The Queen [2011] HCA 39. In deciding whether to extend the time to appeal against a sentence on the basis of a Muldrock error, the NSWCCA applied the substantial injustice test articulated in Abdul v The Queen [2013] NSWCCA 247:

[A]ll relevant factors need to be considered – the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a ‘more summary fashion’ than would be done in an application for leave to appeal that was brought within time.

The NSWCCA held that no substantial injustice would occur, despite a variety of errors in both sentences, due to lengthy delays, among other things (see Kentwell at [24] and O’Grady at [9]-[10]).

A five member Bench of the High Court unanimously held that the NSWCCA erred in using the ‘substantial injustice’ test to confine the exercise of its discretion and to dismiss the applications. The NSWCCA should not have required the appellants to demonstrate that refusing the application would occasion substantial injustice. Because the sentencing judge had wrongly construed the statute, the Court of Criminal Appeal’s power to intervene ‘is enlivened and it becomes its duty to re-sentence’ (at [35]). Where a sentence is based on ‘wrong principle … extraneous or irrelevant matters … mistakes the facts or does not take into account some material consideration’ the Court of Criminal Appeal does not assess the extent of that error’s influence on the outcome, but rather must exercise the discretion ‘afresh’: Kentwell at [42]. Even where a sentence is within an appropriate range, if it is ‘legally flawed’ it is not warranted in law unless the Court of Criminal Appeal independently exercises its discretion and determines that the sentence is indeed appropriate in the case: Kentwell at [42]. The applications for an extension of time to appeal have been remitted to the NSWCCA for determination.