Special Bulletin 2

Muldrock v The Queen [2011] HCA 39

The full bench of the High Court in Muldrock v The Queen [2011] HCA 39 considered the application of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (the Act) to sentencing offenders convicted of standard non-parole period offences. The court held that R v Way (2004) 60 NSWLR 168 was wrongly decided. This Bulletin sets out the High Court’s reasons for that conclusion and the approach that must be taken by a court when it sentences an offender for a standard non-parole period offence. For a description of the facts in Muldrock and to access the submissions of the parties in the High Court see the item for the case on JIRS.

R v Way wrongly decided

Section 54B(2) of the Act provided at the time that “the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter …” [emphasis added].

All Justices of the High Court in a single judgment held, at [25]:

… it was an error [of the court in R v Way] to characterise s 54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness.

The court said, at [26]: “It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word ‘unless’.”

Again, at [32]:

The Court of Criminal Appeal erred by treating the provision of the standard non-parole period as having determinative significance in sentencing the appellant.

Div 1A does not require or permit a court to embark upon a two-stage approach to sentencing, involving first assessing whether the offence falls in the middle range of objective seriousness and, if it does, asking whether there are matters which warrant a longer or shorter non-parole period: at [28].

The approach required to sentencing offenders pursuant to s 54B(2)

1. It is essential to recognise that fixing the non-parole period is only one part of the larger task of passing a sentence. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence to which Div 1A applies: at [17].

2. Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J, in Markarian v The Queen (2005) 228 CLR 357 at [51], whereby the judge identifies all the factors (including those at common law) 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: at [26].

3. The court said, at [27]:

Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as “the non-parole period for an offence in the middle of the range of objective seriousness” [s 54A(2)]. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

4. A court is not required to commence with an assessment of whether the offence falls in the middle range of objective seriousness (by reference to a hypothesised offence) and then to ask whether there are matters which warrant a longer or shorter period: at [28].

5. Section 54B(4) requires the court to make a record of its reasons for increasing or reducing the standard non-parole period. This does not require the court “… to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending”: at [29].

The court, at [29], said the statutory obligation under s 54B(4) requires: “… the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.”

6. It may be that a “likely outcome” of adding the court’s awareness of the standard non-parole period to the various considerations is that there will be a move upwards in the length of the non-parole periods for some offences: at [31]. This is not because it is a starting point in sentencing for a midrange offence after conviction.

The court must also, in passing the sentence, comply with the recently enacted aggregate sentence provisions as they relate to standard non-parole period offences in ss 54B(4A) and 54B(4B) (which did not apply and are not referred to in Muldrock). The decision of Muldrock was applied by Kirby J sitting alone in R v Martin [2011] NSWSC 1189, at [27].

The section of the Sentencing Bench BookStandard Non-Parole Period Offences — Pt 4 Div 1A” at [7-890]ff will be substantially revised in light of the decision.