Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013
The Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 (the Act) is a legislative response by the NSW Parliament to the decision of Muldrock v The Queen (2011) 244 CLR 120. A recent legislation item for the Act was published on JIRS on 31 October 2013 and this Special Bulletin highlights the key amendments and the impact of the Act on sentencing for standard non-parole period offences.
Schedule 1 of the Act provides that the amendments apply to offences committed before the commencement of the Act. The Act, however, does not affect any sentence imposed before commencement. The Act commenced on assent on 29 October 2013 (s 2, LW 29.10.13).
The Act repeals s 54B(2), which provided:
When determining the sentence for the offence (not being an aggregate sentence), 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 than the standard non-parole period. [Emphasis added.]
The term “is to set” in s 54B(2) was a source of contention in Muldrock (see , , ). The High Court said at : “… it was an error [of the Court in R v Way (2004) 60 NSWLR 168] to characterise s 54B(2) as framed in mandatory terms.” At :
… It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word “unless”.
The repeal of s 54B(2) and the phrase “is to set” evinces an intention that a standard non-parole period is not to have determinative significance in the sentencing exercise. Under the new s 54B(2) Crimes (Sentencing Procedure) Act 1999 (quoted below) it is “a matter to be taken into account by a court in determining the appropriate sentence”. The High Court in Muldrock at  advocated a holistic reading and application of s 54B consistent with the approach described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at  whereby the judge identifies all the factors that are relevant to the sentence, discusses their significance, and then makes a value judgment as to what is the appropriate sentence. The High Court made clear in Muldrock at  that the standard non-parole period takes its place as a guidepost in this process. The CCA has more recently held that the significance of a standard non-parole period in a particular case may vary: it may be a more significant factor in cases where there is little operating in the offender’s favour, or, in cases like Mr Muldrock, it may have little impact: R v Nguyen  NSWCCA 195 at – applied in Martin v R  NSWCCA 253 at  and Efthimiadis v R  NSWCCA 276 at .
The Act repealed s 54B(3), which provided:
The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A.
The utility of this provision was always questionable given the wide scope of matters that can be taken into account under s 21A. The High Court observed in Muldrock at  that s 54B(3) did not restrict the courts because the matters that can be taken into account under s 21A are extremely broad and include the common law.
The final notable repeal was s 54A(2), which provided:
For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.
The new s 54A(2) – with respect perhaps worded a little awkwardly – answers the statutory question in s 54A “What is the standard non-parole period?” as follows:
54A(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
Section 54B is headed “Consideration of standard non-parole period in sentencing”. The repealed s 54B(2) has been replaced with the following provision:
54B(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
Section 54B(3) provides that a court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
Section 54B(4) provides the court is still to indicate the non-parole period it would have set for each standard non-parole period offence where an aggregate sentence is imposed.
Section 54B(5) provides that where a court indicates under s 54B(4) that it would have set a non-parole period that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why and the factors taken into account.
Section 54B(6) provides that the requirement to give reasons for setting a non-parole period that is longer or shorter than the standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable.
Section 54B(7) provides that the failure of a court to comply with s 54B does not invalidate the sentence.
A continuing question for the statutory scheme is: what facts are included in the text in s 54A(2) “only the objective factors affecting the relative seriousness of that offence”? Parliament has chosen not to define “objective factors” in the Act and to leave the issue to be resolved by the courts. The new s 54B(2), at least in part, reflects the statement of the High Court in Muldrock at :
… 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.
The High Court did not regard Mr Muldrock’s mental condition as part of the statutory concept of objective seriousness. The court preferred a minimalist approach to the concept. Section 54A(2) recognises this by the use of the expression “only the objective factors”. It is not necessary to recite the case law to date on the subject. The debate is recorded in an informative article by the Honourable RA Hulme “Significant criminal appellate decisions in 2013” (2013) 25 Judicial Officers’ Bulletin 89 and in the Sentencing Bench Book at [7-970]. It will no doubt be the subject of more discussion by the CCA. Whether a matter is categorised as an objective or subjective factor may have little practical impact on the ultimate sentence: Williams v R  NSWCCA 172 at .
An offender’s moral culpability (and a court’s assessment of it) has emerged as an issue in sentencing. In Muldrock at , Bugmy v The Queen  HCA 37 at –, Munda v Western Australia  HCA 38 at  and Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, the High Court separated the notion of an offender’s moral culpability from the objective seriousness of the crime. In Muldrock at  it was said the offender’s mental condition limited his moral culpability and required less emphasis to be placed on denunciation and retribution. In Bugmy at  – a case where the offender was charged with the standard non-parole period offence of cause grievous bodily harm with intent under s 33(1)(b) Crimes Act 1900 – the court said:
… The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
In Munda, at , the court repeated the above proposition and added “… that consideration must be balanced with the seriousness of the appellant’s offending”. In CCA cases after Muldrock an assessment of an offender’s moral culpability has been treated as being a distinct but important part of the sentencing exercise: GN v R  NSWCCA 96 at ; McLaren v R  NSWCCA 284 at –. McCallum J in the latter case at  referred to “the requirement … to form an assessment as to the moral culpability of the offending”. RA Hulme J (in the article cited above at p 90) has put the view that, if Muldrock affirms the sentencing approach in Markarian, what is the point of a court making individual assessments of all the various matters that are required to be taken into account?
The assessment of an offender’s moral culpability appears to be accommodated within the latter terms of s 54B(2) particularly “… without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender”. The italicised text acknowledges that other sentencing factors, sometimes powerful, can impact upon the sentence reached by the court.
The latter terms of s 54B(2) also include the difficult — but essential judicial task — of giving weight to the conflicting purposes of punishment (see Bugmy at –). An issue in the remitter to the CCA is whether the appellant’s background permitted the weight that would usually be given to personal and general deterrence for offences committed by prisoners against prison officers to be moderated in favour of rehabilitation to the extent that it was by the judge.
Two other issues persist: what findings should a court make about objective seriousness in light of the expression in s 54A(2) cited above? And should a sentencing judge compare the offence before the court with an offence “in the middle of the range of seriousness” as referred to in s 54A(2)?
Notwithstanding the obscurity of meaning of the term “only objective factors” in s 54A(2) the CCA has held that courts should continue to make findings concerning objective seriousness for standard non-parole period offences. It remains desirable for a judge to make some assessment of the objective seriousness of an offence: Stewart v R  NSWCCA 183 at . It is not an error to consider the objective gravity of the crime as part of the process of instinctive synthesis leading to the sentence imposed: Beldon v R  NSWCCA 194 at ; Zreika v R (2012) 223 A Crim R 460 at ; McLaren v R at . Indeed the High Court in Bugmy (at ) assumes that such an assessment is to occur.
The High Court held in Muldrock at  that 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.
Section 54B(6) puts that into legislative effect. It provides that the requirement to give reasons for setting a non-parole period that is longer or shorter than the standard non-parole period does not require the court to “identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable”.
Prior to the enactment of s 54B(6), a failure to make a comparison between the offence before the court with a middle range offence was not considered erroneous: R v Jolly  NSWCCA 76 at . Indeed in PK v R  NSWCCA 263 at , McCallum J said (Macfarlan JA and Price J agreeing) “… the usefulness of comparing the particular offence before the court with the hypothetical mid-point offence has been doubted”.
Amendments will be made to the Sentencing Bench Book in a forthcoming update to incorporate this Special Bulletin.