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Setting terms of imprisonment

Part 4 Div 1 Crimes (Sentencing Procedure) Act 1999 (ss 44–54, inclusive) contains provisions for setting terms of imprisonment, including non-parole periods, the conditions relating to parole orders, and fixed terms. Different provisions apply depending on whether the court imposes a sentence for a single offence or an aggregate sentence, and whether the offence is in the standard non-parole period Table of Pt 4 Div 1A. Unless the court is imposing an aggregate sentence, it must comply with the requirements of Pt 4 Div 1 by imposing a separate sentence for each offence: s 53(1).

To top [7-500] Court to set non-parole period

Section 44(1)–(3) Crimes (Sentencing Procedure) Act provides:

“(1)

Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2)

The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A)

Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B)

The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2C)

The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B(4A).

(3)

The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.”

Use of “first required to set” in s 44(1) does not mean “determine”

The fact that s 44(1) provides that “the court is first required to set a non-parole period” does not mean that the non-parole period must first be determined: Musgrove v R (2007) 167 A Crim R 424 at [44], or that a non-parole period should be set first which is thereafter immutable: R v Way (2004) 60 NSWLR 168 at [111]–[113], citing R v Moffitt (1990) 20 NSWLR 114 with approval; Perry v R (2006) 166 A Crim R 383 at [14]. It is well established that s 44(1) does not require that the reasoning process begin with the selection of the non-parole period; it is the pronunciation of orders that is required to be done in that way: Eid v R [2008] NSWCCA 255 at [31]. Simpson J added in Musgrove v R at [44] that a literal reading of s 44(1) may lead the court into error:

“To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh [[2005] NSWCCA 220]. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error.”

Section 44(1) error in pronouncement of individual sentence

The failure to follow the terms of s 44(1) by pronouncing the non-parole period first and then the balance of term is a technical error which must be corrected: R v Cramp [2004] NSWCCA 264; Itaoui v R (2005) 158 A Crim R 233 at [17]–[18]; Eid v R [2008] NSWCCA 255 at [31]. If that is the only error, the appellate court should not proceed on the assumption that the exercise of the sentencing discretion miscarried: R v Cramp at [44]; R v Smith [2005] NSWCCA 19 at [10].

To top [7-505] Aggregate sentences

The Crimes (Sentencing Procedure) Amendment Act 2010 introduced a scheme of aggregate sentencing in an attempt to remove some of the complexity involved when sentencing for multiple offences, while preserving the transparency of the sentencing process. Section 53A Crimes (Sentencing Procedure) Act (reproduced below) was introduced to overcome the difficulties of applying the decision in Pearce v The Queen (1998) 194 CLR 610: R v Nykolyn [2012] NSWCCA 219 at [31] including the requirement of setting commencement and expiration dates for each sentence.

Section 53A provides:

(1)

A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2)

A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:

(a) 

the fact that an aggregate sentence is being imposed,

(b) 

the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3)

Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)

The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5)

An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.

The aggregate sentencing provisions apply to offences whenever committed unless, before the amendments commenced (14 March 2011), a court has convicted the person being sentenced for the offence, or a court has accepted a plea of guilty and the plea has not been withdrawn: Sch 2, Pt 21, cl 62 Crimes (Sentencing Procedure) Act. See R v AB (No 2) [2011] NSWCCA 256 at [15].

Section 44(2A) provides that:

“… a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.” [Emphasis added.]

The use of the word “after” is an indication that it is only possible to determine an aggregate non-parole period after the court has decided the sentence that would have been imposed for each offence.

Indicative sentences

It is unnecessary to specify commencement dates for indicative sentences: AB v R [2014] NSWCCA 31 at [10]. Section 44(2C) provides that the court need not indicate the non-parole period that would have been imposed for each offence unless required by s 54B(4A). That section requires the court to indicate, for those offences to which a standard non-parole period applies, the standard non-parole period (or a longer or shorter non-parole period) that it would have set in accordance with ss 44(2) and 44(3) for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. See Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

It is an error for a court to indicate a fixed term sentence for a standard non-parole period offence: AB v R at [9]. Although it is not possible to appeal a specific indicative sentence, an erroneous approach may reveal error in the aggregate sentenced reached: R v Clarke [2013] NSWCCA 260 at [56]; see R v Gibbons [2013] NSWCCA 166 at [53]. The appellate court will examine the whole of the sentencing structure in order to determine whether the aggregate sentence should stand: Truong v R [2013] NSWCCA 36 at [227]; BJS v R [2013] NSWCCA 123 at [252].

See further Purpose of Crown appeals at [70-090].

Obligation to assess criminality for each offence and indicate each sentence: s 53A(2)(b)

Section 53A(2)(b) imposes an obligation to assess criminality for individual sentences: R v Brown [2012] NSWCCA 199 at [25]–[26]; R v Rae [2013] NSWCCA 9 at [43]; or where applicable, the criminality for the offence and the offence(s) on a Form 1: R v Nykolyn [2012] NSWCCA 219 at [32]. A “blanket assessment” of each offence is to be avoided: Subramaniam v R [2013] NSWCCA 159 at [27]. A judge failed to comply with s 53A(2)(b) where the same sentence for each offence was imposed and there were Form 1s attached to two of four of the offences: R v Nykolyn at [33], [51].

RA Hulme J said in R v Nykolyn at [58]:

“The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal.”

The necessity for implicit accumulation

Given the new aggregate sentencing provisions it is perhaps no longer apt to speak of questions of partial accumulation: R v Rae [2013] NSWCCA 9 at [42]. The aggregate sentencing provision relieves sentencing judges and magistrates from “creating a cascading or ‘stairway’ sentencing structure” when sentencing for multiple offences. However, when a court imposes an aggregate sentence “considerations of accumulation, whether partial or complete” still need to be taken into account: R v Rae per Button J at [45]. The aggregate sentence must reflect the total criminality of the offender: R v Rae at [62]. Where the indicative head sentence for one offence is the same as the aggregate head sentence, an appellate court might infer that the judge has failed to reflect any degree of accumulation for the other offence(s): R v Rae see [35], [46]. Similarly, imposing the same sentence for a number of offences that differ in criminality may demonstrate a failure to comply with the fundamental principles of sentencing preserved by s 53A(2)(b): Subramaniam v R [2013] NSWCCA 159 at [27].

Where the criminality of one offence significantly overlaps with another offence a court should not increase the aggregate sentence, or, where it does, it should only be increased marginally: Delaney v R [2013] NSWCCA 150 at [37], [66]; R v Connell [2013] NSWCCA 155 at [35]; Subramaniam v R at [27].

Limit on restriction in ss 44(2) and 44(2B)

Sections 44(2) and 44(2B) provide that the non-parole period for either a single sentence or an aggregate sentence must not fall below three quarters of the term of the sentence unless there is a finding of special circumstances. However, there is no corresponding restriction on structuring a sentence in such a way that the non-parole period exceeds three quarters of the total sentence: Musgrove v R (2007) 167 A Crim R 424 at [27]; Director of Public Prosecutions (NSW) v RHB (2008) 189 A Crim R 178 at [17], [19]. In R v GDR (1994) 35 NSWLR 376 at 381 a five-judge Bench said, after noting the limit of the restriction in the former s 5(2) Sentencing Act 1989 (the statutory predecessor of s 44(2)):

“In practice, the principles of general law to which reference has been made, and which affect the relationship between a minimum and an additional term, may well operate to produce the result that, in many cases, the additional term will be one-third of the minimum term, for the reason that the sentencing judge considers that the period available to be spent on parole should be not less than one-quarter of the total sentence. What was said in Griffiths [(1989) 167 CLR 372] about the pattern of sentencing in this State before the enactment of the legislation there referred to suggests that this will frequently be so. That does not mean, however, that sentencing judges have been deprived, by s 5, of their discretion. It is, rather, the consequence of the fact that in many cases a proper exercise of discretion will dictate that the additional term be not less than one-third of the minimum term, or one-quarter of the total sentence. In a practical sense, therefore, in many cases, the result will be an additional term which is one-third of the minimum term. This will be because the statute says it cannot be more (in the absence of special circumstances), and because general sentencing principles dictate, in the particular case, that it should not be less.” [Emphasis added.]

Where a court structures a sentence so that the non-parole period exceeds the statutory ratio (or the balance of the term of the sentence is less than one third) “some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight”: Wakefield v R [2010] NSWCCA 12 per Grove J at [26]; cited in Russell v R [2010] NSWCCA 248 at [41]; Etchell v R (2010) 205 A Crim R 138 at [49]–[50]. For example, the judge’s silence in Briggs v R [2010] NSWCCA 250 left “a sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio”: per Fullerton J at [34]. This is especially the case where consecutive sentences are imposed: Dunn v R [2007] NSWCCA 312.

See “The requirement to give reasons under ss 44(2) and 44(2B)” below at [7-510].

Where a sentence of imprisonment is suspended pursuant to s 12 Crimes (Sentencing Procedure) Act, a non-parole period must not be set as s 12 specifically excludes the operation of Pt 4 of the Act: s 12(3). Part 4 applies to require a non-parole period to be set in respect of such a sentence upon revocation of the bond imposed under s 12: s 99(1)(c); see Suspended sentences at [5-720].

Considerations relevant to setting the non-parole period

The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen (2011) 244 CLR 120 at [57]. It is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628–629, applied in Deakin v The Queen (1984) 58 ALJR 367; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [59]; R v Ogochukwu [2004] NSWCCA 473 at [33]; R v Cramp [2004] NSWCCA 264 at [34]; Caristo v R [2011] NSWCCA 7 at [27]; R v MA (2004) 145 A Crim R 434 at [34]; Hili v The Queen (2010) 242 CLR 520 at [40]. This principle sets a lower limit to any reduction that might be thought appropriate on the basis of converting punishment into an opportunity for rehabilitation: R v MA at [33].

The risk of re-offending is a relevant factor in setting the minimum term: Bugmy v The Queen (1990) 169 CLR 525 at 537. However, while great weight may be attached to the protection of society in an appropriate case, the sentence imposed should not be more severe than that which would otherwise be appropriate: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

The factors relevant to fixing the term of the sentence are the same as the non-parole period, but the weight given to each factor may differ: R v MA at [33]. For example, a serious offence warrants a greater non-parole period due to its deterrent effect upon others, but the nature of the offence does not assume the importance it has when the head sentence is determined: R v MA at [33], citing Bugmy v The Queen at 531–532. Chief Justice Spigelman said of the factor general deterrence in R v Simpson at [64]:

“Considerations of general deterrence are at least equally significant to both decisions [fixing the term of the sentence and the non-parole period] which are, in any event, interrelated. Indeed the purport of the High Court’s decision in Power was to reject the proposition that considerations of punishment and deterrence were of primary relevance to the determination of the head sentence and of lesser relevance to the specification of the non-parole period.”

To top [7-510] Special circumstances under ss 44(2) or 44(2B)

A finding of special circumstances under s 44(2) for an individual sentence permits the court to impose a sentence with a balance of term which exceeds one-third of the non-parole period. Similarly, in the case of an aggregate sentence, the term of the sentence that remains to be served can exceed one-third of the aggregate non-parole period if special circumstances are found: s 44(2B).

Special circumstances generally

The courts have developed principles which govern how the statutory rule should be applied in a given case.

Parliament has not prescribed at which stage of the sentencing exercise the court must consider the issue of special circumstances. There is nothing in s 44 or the case law which mandates a method or, to adopt the High Court’s term in Markarian v The Queen (2005) 228 CLR 357 at [27], the “path” the court must take.

See What constitutes special circumstances? below as to the factors that may be relevant in a particular case. An offender’s legal representative is expected to make submissions addressing factors which may warrant a finding of special circumstances and particularly what is an appropriate period of supervision on parole for the offender: Edwards v R [2009] NSWCCA 199 at [11]; Jinnette v R [2012] NSWCCA 217 at [96].

The language of s 44(2) constrains or fetters the sentencing discretion by providing that the balance of term must not exceed the non-parole period by one-third unless the court finds special circumstances. There is, however, no corresponding rule that the balance of term must not be less than one-third of the non-parole period: Musgrove v R (2007) 167 A Crim R 424 at [27]; Director of Public Prosecutions (NSW) v RHB (2008) 189 A Crim R 178 at [17], [19]; Wakefield v R [2010] NSWCCA 12 at [26]. However, it is advisable for the court to explain why a ratio in excess of 75% was selected to avoid an inference that an oversight must have occurred: Wakefield v R at [26]; Briggs v R [2010] NSWCCA 250 at [34].

If there are circumstances that are capable of constituting special circumstances, the court is not obliged to vary the statutory ratio. Before a variation is made “it is necessary that the circumstances be sufficiently special”: R v Fidow [2004] NSWCCA 172 at [22]; Langbein v R [2013] NSWCCA 88 at [54]. The decision is — first, one of fact, to identify the circumstances, and secondly, one of judgment — to decide whether the circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson (2001) 53 NSWLR 704 at [73]; Fitzpatrick v R [2010] NSWCCA 26 at [36].

A finding of special circumstances is a discretionary finding of fact: R v El-Hayek (2004) 144 A Crim R 90 at [103]; Caristo v R [2011] NSWCCA 7 at [28].

A finding of special circumstances permits an adjustment downwards of the non-parole period, but it does not authorise an increase in the term of the sentence: R v Tobar (2004) 150 A Crim R 104 at [36]–[37]; R v Huynh [2005] NSWCCA 220 at [35]–[39]; Markham v R [2007] NSWCCA 295 at [29]. As with the statutory predecessor (s 5(2) Sentencing Act 1989 (repealed)), ss 44(2) and 44(2A) should not be understood as statutory norms (75% or 3:1) in the sense that variation in either direction, up or down, absent special circumstances is contrary to law: R v GDR (1994) 35 NSWLR 376 at 380. The extent of the adjustment is not determined by any “norm” and the court is to be guided by general sentencing principles: Caristo v R at [28].

In setting an effective non-parole period for more than one offence the focus should not be solely upon the percentage proportions that the non-parole periods have to the total term. In Caristo v R, RA Hulme J said at [42]: “The actual periods involved are equally, and probably more, important.”

When a court decides to reduce the non-parole period because of a finding of special circumstances, double counting matters already taken into account in calculating the head sentence should be avoided: R v Fidow at [18]; Trindall v R [2013] NSWCCA 229 at [17]; Langbein v R at [54]; Ho v R [2013] NSWCCA 174 at [33].

The degree or “extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge’s discretion”: Clarke v R [2009] NSWCCA 49 at [13]; R v Cramp [2004] NSWCCA 264 at [31]) including consideration of those circumstances which concern the nature and purpose of parole: R v GDR at 381.

Although the desirability of an offender undergoing suitable rehabilitative treatment is capable of being a special circumstance, where special circumstances are found on this basis, it is an error for a court to refrain from adjusting the sentence based on a view that the offender would benefit from treatment while in full-time custody: Muldrock v The Queen (2011) 244 CLR 120 at [57]–[58]. This is because full-time custody is punitive and treatment in prison is a matter in the executive’s discretion. Also, an offender may not qualify for a program in custody or it may not be available: Muldrock v The Queen at [57].

A court can have regard to the practical limit of 3 years on parole supervision which an offender may receive under cl 228 Crimes (Administration of Sentences) Regulation 2008: AM v R (2012) 225 A Crim R 481 at [90]; Collier v R [2012] NSWCCA 213 at [37]; Jinnette v R at [107]. However, cl 228(2) provides in the case of a “serious offender” (defined in s 3(1) Crimes (Administration of Sentences) Act 1999) that the period of supervision may be extended by, or a further period of supervision imposed of, up to 3 years at a time.

A purported failure to adjust a sentence for special circumstances raises so many matters of a discretionary character that the Court of Criminal Appeal has been reluctant to intervene. As a practical matter, the court will only intervene if the non-parole period is manifestly inadequate or manifestly excessive: R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow at [19]; Jiang v R [2010] NSWCCA 277 at [83]. Ultimately the non-parole period that is set is what the court concludes, in all of the circumstances, ought to be the minimum period of incarceration: Muldrock v The Queen at [57]; R v Simpson at [59].

What constitutes special circumstances?

The full range of subjective considerations is capable of warranting a finding of special circumstances: R v Simpson (2001) 53 NSWLR 704 at [46], [60]. It will be comparatively rare for an issue to be incapable, as a matter of law, of ever constituting a “special circumstance”: R v Simpson at [60]. Findings of special circumstances have become so common that it appears likely that there can be nothing “special” about many cases in which the finding is made: R v Fidow [2004] NSWCCA 172 at [20].

Rehabilitation

Generally speaking, the reform of the offender will often be the purpose in finding special circumstances, but this is not the sole purpose: R v El-Hayek (2004) 144 A Crim R 90 at [105]. In Kalache v R (2011) 226 A Crim R 154 at [2], Allsop P recognised that the concept of special circumstances “bears upon an important element and purpose of the sentencing process, rehabilitation”. However, the incongruity of tying s 44(2) to rehabilitation was observed by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at [58]:

“… the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed percentage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases.”

Nevertheless, an offender’s good prospects of rehabilitation may warrant a finding of special circumstances: Arnold v R [2011] NSWCCA 150 at [37]; RLS v R [2012] NSWCCA 236 at [120]. However, if an offender has poor prospects of rehabilitation and shows a lack of remorse, protection of the society may assume prominence in the sentencing exercise and militate against a finding of special circumstances: R v Windle [2012] NSWCCA 222 at [55].

Risk of institutionalisation

The risk of institutionalisation, even in the face of entrenched and serious recidivism, may justify a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinnette v R [2012] NSWCCA 217 at [103]. However, the existence of the factor does not require a finding: Dyer v R [2011] NSWCCA 185 at [50]; Jinnette v R at [98]. If institutionalisation has already occurred, the focus may be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R at [103].

Drug and alcohol addiction

A finding of special circumstances may be made where the offender requires substantial help to overcome drug and alcohol addiction: Sevastopoulos v R [2011] NSWCCA 201 at [84]–[85]; or where there is a recognition of an offender’s efforts to rehabilitate himself or herself from drug addiction and a demonstrated need for continued assistance if those efforts are to be maintained: R v Vera [2008] NSWCCA 33 at [20].

First custodial sentence

An offender’s first time in custody may be a factor in finding special circumstances, often in combination with other factors: Leslie v R [2009] NSWCCA 203 at [37]; R v Little [2013] NSWCCA 288 at [30]. However, the fact that a person is of previous good character and will be in custody for the first time will not ordinarily constitute special circumstances on that basis alone: R v Kaliti [2001] NSWCCA 268 at [12]; R v Christoff (2003) 140 A Crim R 45 at [67]; Langbein v R (2008) 181 A Crim R 378 at [112]; Clarke v R [2009] NSWCCA 49 at [12]; Collier v R [2012] NSWCCA 213 at [36].

Ill health, disability or mental illness

There are many examples in which ill health, mental illness or a disability are found to be circumstances which may contribute to a finding of special circumstances: R v Sellen (1991) 57 A Crim R 313 at 320; R v Elzakhem [2008] NSWCCA 31 at [68]; Muldrock v The Queen (2011) 244 CLR 120 at [58]; Devaney v R [2012] NSWCCA 285 at [92]; Morton v R [2014] NSWCCA 8 at [19].

Accumulation of individual sentences

There is a conventional sentencing practice of finding special circumstances in cases where sentences imposed for multiple offences are served consecutively in order to apply the totality principle: Hejazi v R [2009] NSWCCA 282 at [36]. Sentencing judges are required to give effect to the principle of totality and therefore should have regard to the outcome of any such accumulation: R v Simpson (1992) 61 A Crim R 58 at 61; R v Close (1992) 31 NSWLR 743 at 748–749; R v Clarke (1995) 78 A Crim R 226 at 238–239; R v Clissold [2002] NSWCCA 356 at 19], [21]; Cicekdag v R [2007] NSWCCA 218 at [49]; R v Elzakhem [2008] NSWCCA 31 at [68]–[69]; Hejazi v R at [35].

An accumulation of sentences does not automatically give rise to a finding that special circumstances exist: R v Cook [1999] NSWCCA 234 at [38]. Where the court utilises the power to impose an aggregate sentence under s 53A, the issue of special circumstances is governed by s 44(2B): see “Limit on restriction in ss 44(2) and 44(2B)” in [7-505].

Protective custody

A court cannot find special circumstances on account of protective custody unless the offender provides evidence that his or her conditions of incarceration will be more onerous than usual: RWB v R (2010) 202 A Crim R 209 at [192]–[195]; Langbein v R (2008) 181 A Crim R 378 at [113] and cases cited therein: Mattar v R [2012] NSWCCA 98 at [23]–[25].

Care should be taken to avoid counting hardship of protective custody as a reason for discounting the total sentence and again as a factor establishing special circumstances: R v S (2000) 111 A Crim R 225 at [33]; R v Lee [2000] NSWCCA 392 at [80].

Similarly, where an offender has been given a generous discount on the head sentence for providing assistance to authorities (partly because of the resulting need to serve the sentence in protection) it is not then permissible to make a finding of special circumstances on the basis that the sentence will be served in virtual solitary confinement: R v Capar (2002) 136 A Crim R 564 at [28]–[29].

See Hardship of custody at [10-500] and Hardship of custody for child sex offender at [17-570].

Age

An offender’s youth is a common ground for a finding of special circumstances: Hudson v R [2007] NSWCCA 302 at [6]; MB v R [2007] NSWCCA 245 at [23]; R v Merrin (2007) 174 A Crim R 100 at [55]; Kennedy v R (2008) 181 A Crim R 185 at [53]; AM v R (2012) 225 A Crim R 481 at [86].

Advanced age may similarly be a factor: R v Mammone [2006] NSWCCA 138 at [54].

Hardship to family members

Hardship to members of an offender’s family is generally irrelevant and can only be taken into account in highly exceptional circumstances: King v R [2010] NSWCCA 202 at [18], [23], [25]. The care of young children is not normally an exceptional circumstance: R v Murphy [2005] NSWCCA 182 at [16]–[19].

However, in R v Grbin [2004] NSWCCA 220 at [33], special circumstances were found where there was evidence of the importance of the strong bond between the offender and his son, who suffered from clinical autism and other disabilities and required constant supervision. See also R v Maslen (1995) 79 A Crim R 199 where the child was severely disabled and R v Hare [2007] NSWCCA 303 where the child suffered from Asperger’s Syndrome.

A finding that the offender has good prospects for rehabilitation and is a mother of a young child, may support a finding of special circumstances: R v Bednarz [2000] NSWCCA 533 at [13], [52] (a two-judge bench case referred to in Harrison v R [2006] NSWCCA 185 at [31]); R v Gip (2006) 161 A Crim R 173 at [28]–[30], [68].

Self-punishment

Special circumstances may be found where there is a degree of self-inflicted shame and guilt already suffered combined with a mental condition: R v Dhanhoa [2000] NSWCCA 257 at [16], [45]; R v Koosmen [2004] NSWCCA 359 at [34]; R v Elkassir [2013] NSWCCA 181 at [37]. However, the weight attributed to the factor cannot lead to the imposition of an inadequate non-parole period: R v Elkassir at [73]. Where the facts reveal gross moral culpability, judges should be wary of attaching too much weight to considerations of self-punishment. Genuine remorse and self-punishment do not compensate for, or balance out, gross moral culpability: R v Koosmen at [32].

Parity with co-offender

The need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances: Tatana v R [2006] NSWCCA 398 at [33].

Sentencing according to past practices

Sentencing according to past practices may justify a finding of special circumstances in order to reflect the applicable non-parole period/head sentence ratio at the time: AJB v R (2007) 169 A Crim R 32 at [36]–[37]; MJL v R [2007] NSWCCA 261 at [42].

See Sentencing for offences committed many years earlier at [17-410].

Giving effect to finding of special circumstances

Where a finding of special circumstances is expressed for an individual sentence or individual sentences, the ultimate sentence imposed should usually give effect to that finding unless there are express reasons for not doing so. The Court of Criminal Appeal has found errors and intervened on numerous occasions where the sentencing remarks indicate an intention to apply the finding of special circumstances to the overall period of custody, yet the aggregate non-parole period imposed exceeds 75% of the total term: R v Attard [2004] NSWCCA 376 at [21]; Fina’i v R [2006] NSWCCA 134 at [33]–[40]; Heron v R [2006] NSWCCA 215 at [31]; Maglis v R [2010] NSWCCA 247 at [24]–[26]; Parkes v R [2013] NSWCCA 167 at [14].

The judge should give reasons why the statutory ratio is not being varied if no adjustment is made to reflect a finding of special circumstances: Saad v R [2007] NSWCCA 98 at [36]; CM v R [2013] NSWCCA 341 at [39].

On appeal, determining whether the lack of adjustment of the statutory ratio reflected in the overall term is intentional or the result of inadvertence or miscalculation often depends on what can be gleaned of the judge’s intention from the sentencing remarks: CM v R at [40]; Maglis v R at [24]. In CM v R there was nothing to indicate that the judge was aware of, or intended, the final result and so the ground that the judge failed to give practical effect to the finding of special circumstances in the total effective sentence was upheld: CM v R at [42]. Conversely, in AB v R [2014] NSWCCA 31, even though the judge's finding of special circumstances was not reflected in the overall sentence, the final result was what the judge intended and there was no inadvertence or miscalculation: at [54], [57].

Empirical study of special circumstances

A 2013 study by the Judicial Commission examined sentencing cases finalised in the NSW District and Supreme Courts for the period 1 January 2005 to 30 June 2012: P Poletti and H Donnelly, Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, Sentencing Trends & Issues No 42, Judicial Commission of NSW, Sydney, June 2013.

An analysis of the sentencing statutes of other Australian jurisdictions revealed that NSW is one of few jurisdictions which have a statutory rule which constrains a Court’s discretion when it sets a non-parole period. Further, the ratio that is set is in s 44(2) and s 44(2A) is comparatively high.

Special circumstances were found in the vast majority of cases (91.4%) and was found more frequently for the youngest offenders (98.8% for juveniles and 96.8% for offenders aged 18–20 years) and for the oldest offenders (100% for offenders aged over 70 years and 98.0% for offenders aged 66–70 years).

A random sample of 159 judgments was examined. The most common reasons for finding special circumstances was the offender’s need for a lengthy period of supervision in the community after release (66.7%), followed by the lack of a prior criminal record (35.8%). These common reasons mostly referred to the offender serving their first prison sentence. Other common reasons include good prospects of rehabilitation (29.6%), age of the offender — particularly youth (25.8%), the effect of accumulation (23.3%) and hardship of custody (10.1%). The reasons given should not be viewed in isolation as there is a clear interrelationship between the different reasons.

The study (see table 3 in the study) analysed mean ratios for the basic and aggravated forms of robbery, break and enter, sexual assault and the supply of a prohibited drug. Subject to one (explicable) exception, the authors found that the longer the sentence and the more serious the crime, the lower the frequency of finding special circumstances. This is because for longer sentences the period of supervision was considered sufficient without a finding of special circumstances. More serious offences (such as murder and aggravated sexual assault in company) recorded the lowest frequency of special circumstances, which was unsurprising given the longer duration of their sentences and the limited utility of an extended period of supervision.

To top [7-520] Court may decline to set non-parole period

Section s 45(1) provides:

“When sentencing an offender to imprisonment for an offence, or in the case of an aggregate sentence of imprisonment, for offences (other than an offence or offences set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so:

(a) 

because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b) 

because of any other penalty previously imposed on the offender, or

(c) 

for any other reason that the court considers sufficient.”

Where the court declines to set a non-parole period, it must make a record of its reasons for declining to do so: s 45(2). R v Parsons [2002] NSWCCA 296 and Collier v R [2012] NSWCCA 213 at [55] are examples of cases where the sentencing judge erred by not fixing a non-parole period and not giving reasons as to why he declined to do so. The discretion in s 45(1), construed literally, is simply a discretion to decline to set a non-parole period: Collier v R at [58]. However, the weight of authority (both in relation to s 45(1) and its statutory predecessor under s 6 Sentencing Act 1989) supports the view that where a fixed term is imposed it should be set at an equivalent level, or equate to, what the non-parole period would have been: Collier v R at [56]–[58], citing R v Dunn [2004] NSWCCA 346 at [161]. The question whether s 45(1) also permits a court to impose a fixed term to reduce an otherwise appropriate sentence may be a future topic for resolution: Collier v R at [62].

When sentencing an offender for multiple offences and where some accumulation is appropriate (assuming the aggregate sentence provision is not utilised), it is acceptable to impose fixed terms of imprisonment for some or most of the sentences. This is because, if a sentence containing a non-parole period and a parole period were set for each offence, the parole terms of many of these sentences would be subsumed in the non-parole period or fixed term of some longer sentence(s): R v Dunn at [161]. The judge in R v Burgess (2005) 152 A Crim R 100 decided that parole supervision would not be of any benefit to the offenders and imposed a fixed term under s 45(1): at [45].

For further discussion see Concurrent and consecutive sentences at [8-200].

Standard non-parole period offences

There is no power to decline to set a non-parole period with respect to offences which carry a standard non-parole period in view of the words appearing in parenthesis in s 45(1), “other than an offence set out in the Table to Division 1A of this Part”: R v Way (2004) 60 NSWLR 168 at [47]. Imposing a fixed term is an error of law: Collier v R at [24]; Leddin v R [2008] NSWCCA 242 at [15]–[16]; Houssenloge v R [2010] NSWCCA 9 at [3]; Aguirre v R [2010] NSWCCA 115 at [32].

For further discussion on sentencing offences that carry a standard non-parole period, see Standard non-parole period offences — Pt 4 Div 1A at [7-890].

To top [7-530] Court not to set non-parole period for sentence of 6 months or less

Section 46 provides that a court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less.

If the court decides to set a term of imprisonment of 6 months or less, then it is required to make a record of its reasons for doing so, including its reasons for deciding: that no penalty other than imprisonment is appropriate; and not to allow the offender to participate in an intervention program or other program for treatment and rehabilitation: s 5(2) Crimes (Sentencing Procedure) Act.

To top [7-540] Commencement of sentence

The law relating to commencement of sentence is set out in s 47 Crimes (Sentencing Procedure) Act. In summary, every sentence or aggregate sentence passed shall take effect from the time when it is passed, unless the court otherwise directs. Thus, if the sentencer does not specify the date for commencement, it will be deemed to commence on the day on which the sentence or aggregate sentence was imposed. This section confers power to direct that a sentence may commence upon any determinate date either subsequent or prior to the time when it was imposed. Subject to a statutory provision(s) to the contrary, a sentence of imprisonment runs from the date it is imposed: Whan v McConaghy (1984) 153 CLR 631 at 636; R v Hall [2004] NSWCCA 127 at [28]. On the issues of:

  • how to count pre-sentence custody and the necessity of backdating see [12-500] Counting pre-sentence custody

  • what time should be counted including offences committed whilst the offender was on parole see [12-510] What time should be counted?

  • taking into account participation of the offender in intervention programs see [12-520] Intervention programs

  • quasi-custody bail conditions such as the MERIT program see [12-530] Quasi-custody bail conditions

  • having regard to the fact the offender will be serving his or her sentence in protective custody see [10-500] Hardship of custody.

To top [7-545] Rounding sentences to months

The court in Rios v R [2012] NSWCCA 8 raised the issue of rounding and whether a sentence should be expressed in terms of years, months and days, as opposed to just years and months. Adamson J said at [43] with reference to Ruano v R [2011] NSWCCA 149 at [20] that expressing a sentence with days “… ought be discouraged because it adds an unnecessary complication in the sentencing process”. In appropriate cases an adjustment should be made by rounding the number of days down to a number of months: Rios v R at [43].

To top [7-550] Information about release date

Section 48(1) Crimes (Sentencing Procedure) Act provides:

“When sentencing an offender to imprisonment for an offence, or to an aggregate sentence of imprisonment for 2 or more offences, a court must specify:

(a) 

the day on which the sentence commences or is taken to have commenced, and

(b) 

the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole, having regard to:

(i) 

that and any other sentence of imprisonment to which the offender is subject, and

(ii) 

the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject.”

The three examples given in the Note to s 48(1) are not within the terms of the statute: R v Kay [2000] NSWSC 716. Hulme J said at [128] (affirmed in R v Nilsson [2005] NSWCCA 34):

“In specifying the days on which the Prisoner will become eligible for parole and release, I have departed from the examples provided under s 48 of the Crimes (Sentencing Procedure) Act, which reflect a misunderstanding of either simple counting or the law’s measurement of time. Absent special circumstances, the law does not take account of parts of a day. Seven days’ imprisonment commencing on a Monday expires at midnight on the following Sunday.”

To top [7-560] Restrictions on term of sentence

Section 49 Crimes (Sentencing Procedure) Act provides:

“(1)

The term of a sentence of imprisonment (other than an aggregate sentence of imprisonment):

(a) 

must not be more than the maximum term of imprisonment that may be imposed for the offence, and

(b) 

must not be less than the shortest term of imprisonment (if any) that must be imposed for the offence.

(2)

The term of an aggregate sentence of imprisonment:

(a) 

must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates, and

(b) 

must not be less than the shortest term of imprisonment (if any) that must be imposed for any separate offence or, if the sentence relates to more than one such offence, must not be less than the shortest term of imprisonment that must be imposed for any of the offences.”

To top [7-570] Making of parole orders by court

Where a non-parole period has been specified for a sentence of 3 years or less, the court must make an order directing the release of the offender on parole at the end of the non-parole period: s 50 Crimes (Sentencing Procedure) Act; R v Riddell [2000] NSWCCA 144. Such an order may be made even though at the time the order is made it appears that the offender may not be eligible for release at the expiry of the non-parole period because of some other sentence to which the offender is subject: s 50(2) Crimes (Sentencing Procedure) Act. Strict compliance with s 50(1) requires the court to make a parole order in spite of the fact it cannot be complied with: R v Cross (No 2) [2012] NSWCCA 234 at [8]. The purpose of s 50 is obscure: R v Cross at [4].

Whenever a court imposes a sentence of imprisonment for a term greater than 3 years, release on parole and the terms of the parole order are matters solely for the Parole Authority: Muldrock v The Queen (2011) 244 CLR 120 at [4]; Wilson v R [2008] NSWCCA 245 at [29]. If the court makes a parole order with conditions in circumstances where it does not have the power to do so “it has no effect”, but the appellate court will set it aside: Moss v R [2011] NSWCCA 86 per Simpson J at [28].

The power under s 50 is exercised at an individual sentence level as opposed to an effective non-parole period level where there are several sentences with non-parole periods (there is also no reference in s 50 to aggregate non-parole periods): R v Cross at [5]. That is, by the terms of s 50(2), the court need not be concerned by the fact that “the offender may not be eligible for release at the end of the non-parole period because of some other sentence”. There is no indication whether the “other sentence” is one that has been imposed on a different day or by a different court. The rationale for the terms of s 50(2) might be that if a conviction is quashed, or a sentence is varied in relation to the “other sentence”, a parole order will become operative: R v Cross at [8]. It may also be because even if there are consecutive non-parole periods (all 3 years or less) at some point there will be one parole order left standing. Sections 126 and 158 Crimes (Administration of Sentences) Act are also relevant. Section 158(1) provides a parole order made by a court under s 50 Crimes (Sentencing Procedure) Act in relation to a sentence is conditional on the offender being eligible for release on parole in accordance with s 126 Crimes (Administration of Sentences) Act at the end of the non-parole period of the sentence. Section 158(2) provides that if the offender is not eligible for release at that time, the offender is entitled to be released on parole as soon as the offender becomes so eligible. Section 158(3) provides that:

“This section does not authorise the release on parole of an offender who is also serving a sentence of more than 3 years for which a non-parole period has been set unless the offender is entitled to be released under Division 2.”

Section 126 is entitled: “Eligibility for release on parole” and s 126(1) provides that: “Offenders may be released on parole in accordance with this Part”. Section 126(2) provides:

“An offender is eligible for release on parole only if:

(a) 

the offender is subject to at least one sentence for which a non-parole period has been set, and

(b) 

the offender has served the non-parole period of each such sentence and is not subject to any other sentence.”

Mixture of Commonwealth and State offences

In the case of Commonwealth offences, s 50 Crimes (Sentencing Procedure) Act is irrelevant as it is not picked up by operation of s 68(1) Judiciary Act 1903 (Cth) because Part IB Crimes Act 1914 (Cth) makes exhaustive provision for fixing non-parole periods and making recognizance release orders: Hili v The Queen (2010) 242 CLR 520 at [22]. When a court imposes a sentence of 3 years or less (or sentences in aggregate that do not exceed 3 years) on a federal offender, the court must make a recognizance release order in respect of the instant sentence(s) and must not fix a non-parole period: s 19AC(1). The court need not comply with s 19AC(1) if it is satisfied that such an order is not appropriate: s 19AC(4).

To top [7-580] Conditions on parole orders

The court may impose such conditions as it considers appropriate on any parole order made: s 51(1) Crimes (Sentencing Procedure) Act; although such conditions must not be inconsistent with the standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act 1999: s 51(2) Crimes (Sentencing Procedure) Act. By the terms of ss 50–51, the power of a court to impose parole conditions is confined to sentences of 3 years’ imprisonment or less: Muldrock v The Queen (2011) 244 CLR 120 at [4].

Parole conditions may include the requirement that the offender be subject to supervision, as prescribed by the regulations; but if no such condition is made, then the order is taken to include such a requirement, unless the court expressly states otherwise: ss 51(1A) and (1AA) Crimes (Sentencing Procedure) Act.

Supervision can be made a condition of parole for a period of up to 3 years: cl 228(1) Crimes (Administration of Sentences) Regulation 2008. However, in the case of a “serious offender” (as defined in s 3(1) of the Crimes (Administration of Sentences) Act), the Parole Authority may extend the period of supervision by, or impose a further period of supervision of, up to 3 years at a time: cl 228(2) Crimes (Administration of Sentences) Regulation 2008; Kanaan v R [2006] NSWCCA 109 at [298] referring to the previous provision (cl 216 Crimes (Administration of Sentences) Regulation 2001).

Although the discretion to impose parole conditions is wide, consultation is required before a court may make an order containing terms or conditions as to residence or treatment. Clause 6 Crimes (Sentencing Procedure) Regulation 2010 provides:

“(1) 

Before a court makes a parole order containing conditions relating to residence or treatment, the court must consider a report from a probation and parole officer as to the offender’s circumstances.

Note. Under section 51 of the Act, a court may impose such conditions as it considers appropriate on any parole order made by it.

(2) 

Before a court makes a parole order containing conditions requiring the co-operation of a person other than the offender or a probation and parole officer, the court must obtain the consent of the person to those conditions in so far as they require the person’s co-operation.”

In R v Leete (2001) 125 A Crim R 37, a failure on the part of the sentencing judge to consider a probation and parole report resulted in a successful appeal.

In R v Williams (2005) 62 NSWLR 481, one of the conditions of parole set by the sentencing judge was that the applicant was to abstain from taking any illicit drugs and/or alcohol. At the time, cl 6(1)(b) Crimes (Sentencing Procedure) Regulation 2000 (now repealed) provided, inter alia, that before making a parole order containing conditions relating to treatment, the court must have regard to a probation and parole officer’s report and also be satisfied “that it is feasible to secure compliance with the terms or conditions”. Several probation and parole service reports available at the time of sentence indicated that the applicant had a severe alcohol problem that she was unwilling or incapable of addressing. On appeal, the court held that it could not be satisfied that it was feasible to secure the applicant’s compliance with the abstinence condition, and as such the sentencing judge did not comply with cl 6(1)(b). The court deleted the reference to the alcohol in the condition.

To top [7-585] Conditions of parole as to non-association and place restriction

The power of the court to make parole orders restricting the offender from associating with a specified person, or from frequenting or visiting a specified place or district, is set out in s 51A Crimes (Sentencing Procedure) Act.

To top [7-600] Exclusions from Division

Part 4 Div 1 Crimes (Sentencing Procedure) Act does not apply to offenders sentenced to life (or for any other indeterminate period), or to imprisonment under the Fines Act 1996, the Habitual Criminals Act 1957, or to detention under the Mental Health (Forensic Provisions) Act 1990: s 54 Crimes (Sentencing Procedure) Act.

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