Standard non-parole period offences — Pt 4 Div 1A

[7-890] Introduction

New South Wales was set apart from other Australian jurisdictions in February 2003 when standard non-parole periods were introduced as part of its sentencing law. The decision of R v Way (2004) 60 NSWLR 168 was the leading authority for nearly seven years on the question of how the standard non-period provisions in Pt 4 Div 1A should be applied.

However, the High Court held in Muldrock v The Queen (2011) 244 CLR 120 that R v Way was wrongly decided. Court of Criminal Appeal decisions before Muldrock, which followed and applied R v Way and held that a two-stage approach is required to apply the provisions and which attributed what the High Court described as “primary” and “determinative significance” to the standard non-parole period, are no longer good law.

Two years after Muldrock, the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 substantially amended the standard non-parole period provisions. It clarified the role of the standard non-parole period in the sentencing exercise and effectively enacted Muldrock.

Unless stated otherwise, section numbers below refer to the Crimes (Sentencing Procedure) Act 1999.

[7-895] Brief history of Pt 4 Div 1A

Part 4 Div 1A (entitled “Standard non-parole periods”) was inserted into the Crimes (Sentencing Procedure) Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002.

The provisions created standard non-parole periods for several offences in a table located at the end of s 54D (the Table). The original items in the Table only apply to offences committed on or after 1 February 2003. The Table is reproduced at [8-000] with an additional column containing cross-references to commentary on specific offences in this publication. Legislative amendments relevant to the Table are outlined at [8-100]. Caution must be applied to Court of Criminal Appeal decisions decided before Muldrock v The Queen (2011) 244 CLR 120.

Part 4 Div 1A has been amended since 2003 to include more offences and to increase the standard non-parole period for existing offences.

Crimes (Sentencing Procedure) Amendment Act 2007

New standard non-parole periods were created for a further 11 offences by the Crimes (Sentencing Procedure) Amendment Act 2007. The amendments commenced on 1 January 2008. The amendments also increased the standard non-parole period for an offence under s 61M(2) Crimes Act 1900 (indecent assault — child under 10 years) from 5 to 8 years. For amendments and items added by this amending Act, the transitional provisions found at Sch 2 Pt 17 cl 57 state:

The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless:

(a) 

the court has convicted the person being sentenced of the offence, or

(b) 

a court has accepted a plea of guilty and the plea has not been withdrawn,

before the commencement of the amendments [1 January 2008].

The 2007 Act, which added items to the Table, does not apply to offences committed before 1 February 2003: R v Lane [2011] NSWSC 289 at [60]–[61]. However, the increases to the standard non-parole periods for offences that were already in the Table committed after that date apply retrospectively: GSH v R [2009] NSWCCA 214 at [46]–[47]. It was held in GSH v R that the judge erred by referring to the 5-year standard non-parole period that existed at the time the offence was committed rather than the later (increased) 8-year standard non-parole period. An application for special leave to appeal to the High Court was refused on 12 March 2010.

Crimes Amendment (Sexual Offences) Act 2008

This amending Act, which commenced on 1 January 2009, introduced a new aggravated offence of sexual intercourse with a child under the age of 10 years under s 66A(2). The maximum penalty for the aggravated offence is life imprisonment, while the maximum penalty for the basic offence under s 66A(1) is 25 years. The amending Act assigned a standard non-parole period of 15 years for both offences.

The Act amended s 54D to make it clear that standard non-parole periods do not apply to persons under 18 years: see exclusions below.

Muldrock v The Queen (2011) 244 CLR 120

Special Bulletin 2, published at the time the judgment was delivered, explains the case in more detail. Given that Parliament amended the key standard non-parole period provisions after Muldrock (see below), it is only necessary to recount the key aspects of the case which remain relevant. The full Bench of the High Court in Muldrock held that R v Way (2004) 60 NSWLR 168 was wrongly decided. At the time s 54B(2) of the Act provided 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”. All justices of the High Court in a single judgment held, in Muldrock 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’.” And 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.

The court held 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].

Since the common law is preserved by the Act, sentencing for Div 1A offences must be 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].

The standard non-parole period and the maximum penalty are legislative guideposts (at [27]):

The [standard non-parole period] 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”. 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.

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 High Court rejected the proposition advanced by counsel for Mr Muldrock that the standard non-parole period only “applies” to offenders convicted following trial where the offence falls in the middle range of objective seriousness: at [24]. At [29], it was held that the obligation to give reasons

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. [Emphasis added.]

The position before Muldrock that the standard non-parole period applied to offenders convicted after trial as stated in R v Way at [68] and FB v R [2011] NSWCCA 217 at [150] is no longer good law. There are no gradations of application of the standard non-parole periods — it is a legislative guidepost for all cases.

Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013

Special Bulletin 5 explains the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 in detail and there is a further discussion of the current law at [7-910] below. The amending Act was the legislative response by the NSW Parliament to the High Court decision of Muldrock. The amendments clarified the role of the standard non-parole period following the decision in Muldrock. The following notable provisions of Pt 4 Div 1A were repealed by the amending Act:

  • Section 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”.

  • Section 54B, including:

    • 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: [25], [26], [32].]

    • 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 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) (quoted below at [7-920]), it is “a matter to be taken into account by a court in determining the appropriate sentence”. The standard non-parole period is to take its place as a legislative guidepost in accordance with Muldrock at [27].

The repeal of s 54B(3) was not surprising. The utility of s 54B(3) and its reference to s 21A 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 [19] 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.

Crimes Legislation Amendment (Child Sex Offences) Act 2015

This amending Act introduced standard non-parole periods for 13 child sexual offences. The amendments commenced on 29 June 2015 and apply to those 13 child sexual offences committed on or after that date. The Act also repealed the basic and aggravated offences of sexual intercourse with a child under 10, under ss 66A(1) and 66A(2), and replaced them with one consolidated offence, carrying a maximum penalty of life imprisonment. The standard non-parole period of 15 years continues to apply.

[7-910] What is the standard non-parole period?

The standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table: s 54A(1).

Section 54A(2) — recast by the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 and perhaps worded a little awkwardly — answers the statutory question in s 54A “What is the standard non-parole period?” as follows:

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.

It is axiomatic that for the statutory scheme to be integrated into the wider body of sentencing law it has to have a degree of conceptual clarity. As the High Court recognised in Muldrock v The Queen (2011) 244 CLR 120 at [27], the standard non-parole period must be given “meaningful content”. Therefore, it is necessary to consider what the standard non-parole period “represents”. However, it must be borne in mind that identifying “What is the standard non-parole period?” is only one consideration and only one part of the sentencing process.

Section 54B(2) provides 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. Further, it is not necessary for a court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from an offence to which the standard non-parole period is referable: s 54B(6). Nevertheless, as the court observed in R v Campbell [2014] NSWCCA 102 at [27]–[28], a legislative guidepost is an instrument of measurement which is meaningless when standing alone. It is used to measure the relevant features of a particular offence against an offence in the mid-range of objective seriousness.

s 54A(2) — “only the objective factors”

The previous version of s 54A(2) employed the expression “objective seriousness” but this statutory concept was repealed. A question that arises is what facts are included in the text of the new s 54A(2), which refers to “only the objective factors affecting the relative seriousness of that offence”? Parliament has chosen not to define “objective factors” in the Act, leaving the issue to be resolved by the courts. Does the previous expression “objective seriousness” inform the concept of “objective factors”? The expression “only the objective factors” would appear to encompass the following matters referred to in SKA v R [2009] NSWCCA 186 at [129]–[137] notwithstanding the case preceded the 2013 amendments:

  • the actus reus of the offence (for example, the range of acts that can constitute “sexual intercourse” as defined), and

  • the mental state (or fault element) of the offender at the time of the commission of the offence (ranging from intention to lesser mental states such as recklessness).

By the use of the term “objective”, the new s 54B(2), at least in part, reflects the statement of the High Court in Muldrock at [27]:

… 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.

Previous cases, which hold that features personal to an offender should not be taken into account in assessing the objective seriousness of an offence (Stewart v R [2012] NSWCCA 183 at [37]; Badans v R [2012] NSWCCA 97 at [53]) would appear to apply to the expression in s 54A(2) “only the objective factors”.

Mental condition

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) arguably recognises this by the use of the word “only”. The High Court did not hold in Muldrock that a person’s mental condition is relevant to the assessment of the seriousness of the offence despite the fact that the court accepted that there was a “causal relation” between the appellant’s mental illness and the commission of the offence: Muldrock at [55]. The court held, in a considered statement at [54], that an offender’s mental condition is a factor relevant to the offender’s moral culpability:

… the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

The High Court in Muldrock distinguished between a person’s moral culpability and the objective seriousness of the crime. In GN v R [2012] NSWCCA 96 Basten JA said at [12] (with Blanch J agreeing at [18]):

Usually, the “objective seriousness” of the offence is equated with the level of moral culpability of the offender. However, although the circumstances of the offence may justify the description of being “in the middle of the range of objective seriousness” for such an offence, in the language of s 54A(2) of the Sentencing Procedure Act, where the personal characteristics of the offender reduce the level of moral culpability, that description does not identify the level of moral culpability: see Muldrock at [54].

The same observation can be made of the expression “only the objective factors” as it relates to the level of moral culpability of the offender. However, there is recent authority which holds mental condition is relevant to both. It was held, in Elturk v R (2014) 239 A Crim R 584 at [39], that the applicant’s mental state, including his compromised capacity for sound judgment at the time of the offending, was relevant to an assessment of the objective seriousness of the offence and the applicant’s moral culpability. It has also been accepted that evidence which may be relevant to establish a defence of mental illness or automatism, if avoided by a plea of guilty, may be relevant to an offender’s moral culpability and future dangerousness: Pym v R [2014] NSWCCA 182 at [83]. The court in Pym v R did not, however, include findings concerning objective seriousness.

Provocation

For some sentencing factors, the line between objective or subjective cannot be sharply drawn: Stewart v R [2012] NSWCCA 183 at [38]. For example, the reference by the High Court to the “nature of offending” was held not to be restricted to the ingredients of the crime and is taken to mean the fundamental qualities of the offending: Williams v R [2012] NSWCCA 172 at [42]. Where provocation is established such that it is a mitigating factor under s 21A(3)(c), it is a fundamental quality of the offending which may reduce its objective seriousness: Williams v R at [42]. It may be that whether a factor such as provocation is categorised as an objective or subjective factor will have little practical impact on the ultimate sentence: Williams v R at [43]. Other factors which require consideration as to whether they should be included in the assessment of objective seriousness are the offender’s intoxication, youth and duress. As to the latter factor, it is expressly referred to in s 21A(3)(d). This topic will no doubt be the subject of more discussion by the appellate courts. Whether a matter is categorised as an objective or subjective factor may have little practical impact on the ultimate sentence: Williams v R at [43].

Other factors

The factors below were held not to fall within the expression “objective seriousness”. It will be for the courts to confirm that they similarly do not fall within the statutory concept in s 54A(2) of “only the objective factors”:

  • prior criminal record: R v McNaughton (2006) 66 NSWLR 566 at [25]

  • a plea of guilty (and its timing): Lovell v R [2006] NSWCCA 222 at [61], [66]

  • the liberty status of an offender at the time of the commission of the offence (for example, on bail or parole): Simkhada v R [2010] NSWCCA 284 at [25]; Martin v R [2011] NSWCCA 188 at [7], [17]

  • the offender committed multiple offences: R v Reyes [2005] NSWCCA 218 at [43]

  • an offender’s youth: IE v R (2008) 183 A Crim R 150 at [20]; AI v R [2011] NSWCCA 95 at [81].

The Table

The offence to which a particular standard non-parole provision applies is identified by the section of the statute which is found opposite the standard non-parole period in the particular Table item: Hosseini v R (2009) 193 A Crim R 444 at [48]. The words within the brackets in the Table items do not identify or limit in any way the offence to which the standard non-parole period applies: Hosseini v R at [48]. Consequently, the judge did not err by finding in Hosseini v R that item 17 in the Table applies to the offence of knowingly taking part in the manufacture of a prohibited drug when the words in brackets in the Table described the offence under s 24(2) as “manufacture or production of commercial quantity of prohibited drug”.

[7-920] Consideration of the standard non-parole period in sentencing

Section 54B (inserted by the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013), governs how a court is to consider a standard non-parole period in the sentencing exercise. The amending Act (including s 54B) “extends to an offence committed before the commencement of the amendment but does not affect any sentence imposed before the commencement of the amendment.”: Crimes (Sentencing Procedure) Act 1999, Sch 2, Pt 24, cl 65. (The amending Act commenced on assent on 29 October 2013 (s 2, LW 29.10.13).)

Section 54B provides as follows:

54B(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.

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.

54B(3) The 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 and must identify in the record of its reasons each factor that it took into account.

54B(4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.

54B(5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account.

54B(6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a 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.

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) (quoted above) it is “a matter to be taken into account by a court in determining the appropriate sentence”. The standard non-parole period is to take its place as a legislative guidepost in accordance with Muldrock v The Queen (2011) 244 CLR 120 at [27]. The High Court in Muldrock at [26] 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 [51] 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 following terms of s 54B(2) are particularly important: “… 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. These include sentencing considerations such as offender’s moral culpability and giving weight to the conflicting purposes of punishment: Bugmy v The Queen (2013) 249 CLR 571 at [44]–[46].

Standard non-parole periods and the notion of moral culpability

An offender’s moral culpability (and a court’s assessment of it) has emerged as an issue in sentencing. In Muldrock at [58], Bugmy v The Queen at [44]–[46], Munda v Western Australia (2013) 249 CLR 600 at [57] 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 [58], 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 v The Queen at [40] — 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 v Western Australia at [57], the court repeated the above proposition and added “… that consideration must be balanced with the seriousness of the appellant’s offending”.

In Filippou v The Queen (2015) 256 CLR 47 at [70], the court held: “Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability”.

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 [2012] NSWCCA 96 at [12]; McLaren v R [2012] NSWCCA 284 at [28]–[29]. McCallum J in the latter case at [29] referred to “the requirement … to form an assessment as to the moral culpability of the offending”. RA Hulme J (in the article cited below at [7-955] 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 v The Queen at [44]–[46]). An issue in the remitter to the CCA was 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.

In Beale v R [2015] NSWCCA 120, the applicant was sentenced for two serious home invasions committed with two co-offenders. His liability was framed on the basis of joint criminal enterprise. There was no evidence of the particular conduct engaged in by the offender. The judge sentenced him on the basis that he was criminally culpable for all of the criminal activity. The court held that an assessment of moral culpability, as distinct from criminal responsibility, cannot be undertaken in circumstances where the evidence does not differentiate between acts of each of the offenders.

Findings about objective factors and relative seriousness

What findings should a court make about objective factors in light of the expression in s 54B(2) cited above? 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 [2012] NSWCCA 183 at [41]. 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 [2012] NSWCCA 194 at [78]; Zreika v R (2012) 223 A Crim R 460 at [46]; McLaren v R at [28]. Indeed, the High Court in Muldrock held that a court is to continue to assess the objective seriousness of the offence: at [27]. Later in Bugmy v The Queen (at [46]), the court assumed, under the previous versions of s 54A(2), that such an assessment needed to occur as part of the sentencing exercise.

[7-925] Findings as to where an offence fits relative to the middle of the range

The High Court held in Muldrock v The Queen (2011) 244 CLR 120 at [28] 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 (2013) 229 A Crim R 198 at [55]. Indeed in PK v R [2012] NSWCCA 263 at [26], McCallum J said “… the usefulness of comparing the particular offence before the court with the hypothetical mid-point offence has been doubted”.

However, the court is still required to assess the objective seriousness of an offence. Such an assessment is a critical component of the sentencing process: R v Van Ryn [2016] NSWCCA 1 at [134] citing R v Campbell [2014] NSWCCA 102 at [27]. See also Proportionality at [10-010].

[7-935] Exclusions and inclusions from Pt IV Div 1A

The standard non-parole scheme does not apply to:

  • offences dealt with summarily: s 54D(2)

  • the sentencing of an offender to imprisonment for life or for any other indeterminate period, or to detention under the Mental Health (Forensic Provisions) Act 1990: s 54D(1)

  • offenders who were under 18 years at the time the offence was committed: s 54D(3) (inserted by the Crimes Amendment (Sexual Offences) Act 2008, which commenced on 1 January 2009). If a court is sentencing an offender who was under 18 years at the time a standard non-parole period offence was committed, it is to “disregard [the standard non-parole] … entirely” and even “oblique usage … entails error”: BP v R (2010) 201 A Crim R 379 at [36]; citing McGrath v R (2010) 199 A Crim R 527 at [37], [60]; AE v R [2010] NSWCCA 203 at [23].

Standard non-parole periods apply to the offences listed in the Table from the specific date each was inserted: R v Lane [2011] NSWSC 289 at [60]–[61] (see legislative history at [7-895] above). It is an error to take into account a standard non-parole period where the statutory scheme does not apply: R v Ohar (2004) 59 NSWLR 596 at [84]; R v Wilkinson [2004] NSWCCA 468 at [24].

Standard non-parole periods apply in cases of an offender aiding and abetting the commission of an offence in the Table: DJB v R [2007] NSWCCA 209; R v Merrin (2007) 174 A Crim R 100. However, Buddin J said in SAT v R [2009] NSWCCA 172 at [56] — without departing from DJB v R and R v Merrin — that “the issue … remains to be authoritatively determined”. Standard non-parole periods do not apply to attempts to commit offences in the Table except for the various manifestations of the offence of attempted murder: R v DAC [2006] NSWCCA 265 at [10]. Nor do they apply to a conspiracy to commit an offence in the Table: Diesing v R [2007] NSWCCA 326 at [53], [55].

[7-955] What of cases decided before Muldrock v The Queen?

Re-opening not available

Section 43 Crimes (Sentencing Procedure) Act 1999 empowers a court to re-open sentence proceedings where it has imposed a penalty that is contrary to law. Section 43 cannot be used to correct a purported sentencing error of applying R v Way (2004) 60 NSWLR 168, that is, it should not be used as an alternate to an appeal and to review standard non-parole period cases decided before Muldrock v The Queen (2011) 244 CLR 120: Achurch v R (No 2) (2013) 84 NSWLR 328 at [67] approved in Achurch v The Queen (2014) 253 CLR 141 at [37]. The appropriate course for cases decided before Muldrock is for an application for leave to appeal to the Court of Criminal Appeal to be made out of time: Achurch (No 2) at [67]. Section 43 cannot be used by first instance courts to review Muldrock appeals because a penalty is not “contrary to law” within the terms of the section only because it is reached by a process of erroneous legal reasoning or factual error: Achurch v The Queen at [37].

Applications for leave to appeal out of time

Section 10(1)(b) Criminal Appeal Act 1912 provides the court may, at any time, extend the time within which a notice of intention to appeal is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice. An applicant for an extension of time to apply for leave to appeal against sentence is not required to demonstrate that substantial injustice was occasioned by the sentence and the CCA in Abdul v R [2013] NSWCCA 247 erred by imposing this requirement in Muldrock error cases: Kentwell v The Queen (2014) 252 CLR 601. The CCA must consider what the interests of justice require. The merits of appeal and prospects of success are relevant to extension of time applications and should be addressed by reference to s 6(3) Criminal Appeal Act.

Simpson J (with support) held in Aytugrul v R [2015] NSWCCA 139, at [20]–[21], that if judges “sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error. … It does not serve the administration of justice for the Crown to maintain that such error has not been shown”.

If error is established, the court must exercise its discretion afresh to determine whether a lesser sentence is warranted in law: Kentwell v The Queen. See further the discussion in Appeals at [70-020].

Part 7 Crimes (Appeal and Review) Act 2001

Section 78(1) Crimes (Appeal and Review) Act 2001 allows an application for an inquiry into a conviction or sentence to be made to the Supreme Court where appeal avenues have been exhausted. Section 79(2) provides that action may only be taken by the Supreme Court “if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”. The text of s 79(2) includes errors of law such as adopting the two-stage approach to sentencing advocated in R v Way, later disapproved in Muldrock: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783. An error of law in the sentencing process which affected the severity of the sentence is capable of satisfying s 79(2): Sinkovich v Attorney General of NSW at [86].

Section 86 provides:

On receiving a reference under section 77(1)(b) or 79(1)(b), the Court is to deal with the case … in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912 … [Emphasis added.]

Application by Jason Clive McCall pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1620 is an example of a referral for a purported Muldrock error.

CCA and referrals under s 79

Following the referral of the matter pursuant to s 79, where the CCA has previously allowed a Crown appeal, the proceedings are to be approached as though the CCA’s substituted sentence was itself the subject of an appeal under s 5(1)(c) Criminal Appeal Act 1912: Louizos v R [2014] NSWCCA 242 at [6]. If error is detected, it is for the CCA to impose the appropriate sentence pursuant to s 6(3). The result of error is not restoring the original sentence; it is the exercise of the power under s 6(3), made applicable by ss 79(1)(b) and 86 Crimes (Appeal and Review) Act 2001: Louizos v R at [6].

The closing words of s 79(1)(b) and of s 86 (italicised above) give rise to a new statutory creature, a “quasi-appeal”, which closely resembles an appeal created by the Criminal Appeal Act. The effect of ss 79(1)(b) and 86 is that the CCA has authority to review and, if appropriate, set aside the sentence it itself imposed in the past. The effect of s 79(1)(b), read with s 86, is that the past sentence imposed by the CCA is deemed to be the sentence to be dealt with following a reference: Louizos v R at [16]. The natural meaning of the Criminal Appeal Act is for the procedure created by ss 79(1)(b) and 86 to be determined by way of rehearing of the sentence imposed following the Crown appeal, and whose success depends on the identification of error: Louizos v R at [17], [37].

Section 78(1) Crimes (Appeal and Review) Act inquiries are identified in the SNPP appeal list on JIRS.

The approach on appeal

The discussion below shows that different views have been expressed concerning whether error ought to be imputed in sentences imposed prior to Muldrock.

Early cases

Earlier cases hold that the bare fact that an offender was sentenced before the High Court decision of Muldrock combined with a claim that the judge followed “the dictates of Way” will not establish an error: Butler v R [2012] NSWCCA 23 at [26]. If the court’s reliance on Way has sufficiently infected the sentence with some error, then intervention is required: Butler v R at [26]. Davies J in Butler v R at [26] expressed the appellate enquiry in the following terms:

It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick.

This is to be contrasted with cases where an offender is convicted following a trial before Muldrock and the judge treats the standard non-parole period as mandatory (unless other factors justify a departure from it): Butler v R at [26].

Where a sentence is imposed before Muldrock, it is necessary to read fairly the entirety of the judge’s remarks on sentence to see how the standard non-parole period has been dealt with: Aldous v R (2012) 227 A Crim R 184 at [2], [10], [31]; Zreika v R (2012) 223 A Crim R 460 at [43]; Bolt v R [2012] NSWCCA 50 at [35]; Black v R [2013] NSWCCA 265 at [41]. This should be done recognising that cases such as R v Way were correct at the time of sentence and by emphasising that the assessment is a matter of substance not form or linguistics: Aldous v R (2012) 227 A Crim R 184 at [2], [10]. If a judge has placed too much significance on the standard non-parole period, resulting in a sentence that is not warranted in law, the court will intervene: Ross v R [2012] NSWCCA 161 at [22]; Essex v R [2013] NSWCCA 11 at [31]; ZZ v R [2013] NSWCCA 83 at [93]. Similarly, the court will intervene if the standard non-parole period is used as a benchmark from which to commence the sentencing exercise and results in a higher sentence than otherwise could have been imposed: GN v R [2012] NSWCCA 96 at [4], [12], [36].

Later cases

There has been a somewhat hardening of approach whereby the court assumes R v Way was well-known and fundamental to the practice of sentencing for SNPP offences in NSW: Davis v R [2015] NSWCCA 90 at [32]. Therefore, the Crown ought to give careful consideration to the position it adopts when leave to appeal and extension of time is sought on the basis of alleged “Muldrock error”: Davis v R at [34]. It is not to be lightly concluded that a sentencing judge, during the relevant period between R v Way and Muldrock, departed from the principles in R v Way. This is particularly so where conviction is after trial, since R v Way held (at [122]) that SNPPs did not apply to conviction following a guilty plea. Even if the language of Way is not reproduced in the sentencing remarks, there is a strong likelihood that it governed the sentencing: Davis v R at [33]. A contention by the Crown that “no Muldrock error is established” in respect of a sentence imposed in the relevant period is a contention that the sentencing judge failed to sentence in accordance with sentencing principles as they stood at that time: Davis v R at [33]. The High Court has declared the sentencing principles of NSW courts to have been fundamentally wrong. The interests of justice are not served by the Crown standing in the way of correction of the errors in sentencing that followed: Davis v R at [34].

In McDonald v R [2015] NSWCCA 80, RA Hulme and Adamson JJ in a joint judgment (Basten JA dissenting) rejected an argument that the judge had committed a Muldrock error. The court reasoned that R v Way had held the SNPP applied to a middle range case where the offender had been convicted following a trial. A plea of guilty was accepted as being a reason not to impose the SNPP: McDonald v R at [39]. The orthodox approach at the relevant time was that described in R v AJP (2004) 150 A Crim R 575 and R v Simon [2005] NSWCCA 123. The SNPP remained relevant as a benchmark or guidepost in guilty plea cases: McDonald v R at [43]. That approach is not inconsistent with the obligations of a sentencing court as propounded in Muldrock: McDonald v R at [45]. RA Hulme and Adamson JJ therefore held that no Muldrock error was established by the judge’s application of R v AJP and R v Simon: McDonald v R at [46]–[47].

[7-980] Fixed terms and aggregate sentences

Section 45(1A) provides that a court may decline to set a non-parole period (ie impose a fixed term) for an offence to which a standard non-parole period applies only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set. Prior to the insertion of s 45(1A) by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 on 25 October 2016, the text in brackets in s 45(1) “other than an offence or offences set out in the Table to Division 1A of this Part” precluded the imposition of a fixed term for the offences listed in the Table: see Collier v R [2012] NSWCCA 213 at [24], including where the offender pleads guilty: Aguirre v R [2010] NSWCCA 115 at [32].

Where an aggregate sentence is imposed by the court and one or more of the offences is a standard non-parole period offence, the court must indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence: s 54B(4). The court is still obliged to make a record of its reasons for departure from the standard non-parole period where an aggregate sentence is imposed and must identify in the record of its reasons each factor that it took into account: s 54B(5).

A failure to comply with s 54B does not invalidate the sentence: s 54B(7).

[7-985] Court to give reasons if non-custodial sentence imposed

For a standard non-parole period offence, it is still permissible for the court to impose a non-custodial sentence (a sentence referred to in Pt 2 Div 3 Crimes (Sentencing Procedure) Act or a fine). The court must make a record of its reasons for doing so and identify in its record each mitigating factor it took into account: s 54C(1). Failure to comply does not invalidate the sentence: s 54C(2), but it can result in the erroneous exercise of the sentencing discretion: R v Thawer [2009] NSWCCA 158 at [41]. “Non-custodial sentence” in s 54C means a sentence referred to in Pt 2 Div 3 or a fine and the definition includes a suspended sentence: R v Thawer at [38].

Legislative anomaly?

Section 12 confers power on a court to suspend a sentence of imprisonment. Section 12(3) provides: “Subject to section 99(1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section”.

However, s 54C, concerning the requirement to give reasons if a non-custodial sentence is imposed, is found in Pt 4. Perhaps s 12(3) needs to have the words “(other than section 54C)” inserted after “Part 4” to remove any confusion.

Complying with s 54C

A court does not comply with s 54C simply by giving reasons for sentence but must according to Howie J in R v Thawer at [39]:

… explain why it is that, despite the fact that the offence falls within the provisions dealing with the standard non-parole period, a sentence without a non-parole period is being imposed.

This statement from Thawer needs to be approached with some care because it reflects the previous approach whereby the court was required to make a finding as to where an offence fell relative to the mid-range: R v Dungay [2012] NSWCCA 197 at [32]. Although Thawer held that a judge, under s 54C, had to give reasons as to why a non-custodial sentence is imposed for an offence which carries a standard non-parole period, “[t]he significance of that statutory fact [that is, the standard non-parole period] has been diluted [by Muldrock v The Queen (2011) 244 CLR 120] since Thawer”: R v Dungay at [33]. A judge will not fail to comply with s 54C simply by omitting to explain why it is that a sentence without a non-parole period is being imposed “despite the fact” the offence carries a standard non-parole period: R v Dungay at [33]. However, a sentencing judge may not overlook the relevance of a standard non-parole period, which is to be taken into account as a guide: R v Dungay at [34]. Section 54C must be read being mindful of the context in which judges give their reasons: R v Dungay at [29].

[7-990] Move upwards in the length of non-parole periods?

The High Court said in Muldrock v The Queen (2011) 244 CLR 120 at [31] on the issue of whether sentences would move upwards:

It appears that for most, if not all, Div 1A offences, the standard non-parole period exceeds the mean non-parole period for the offence recorded in the statistics kept by the Judicial Commission of New South Wales in the period before the enactment of Div 1A [R v Way (2004) 60 NSWLR 168 at [139]]. As the Court of Criminal Appeal correctly pointed out in Way, it is necessary to treat this circumstance with care [R v Way at [140]]. The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case. It may be, as the Court of Criminal Appeal observed in Way, that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period [R v Way at [142]]. This is the likely outcome of adding the court’s awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence. It is not because the standard non-parole period is the starting point in sentencing for a midrange offence after conviction [R v Way at [140]].

This recognition by the High Court that sentences would increase for some offences was applied by the Court of Criminal Appeal for the offence of cultivating not less than a commercial quantity of a prohibited drug (cannabis) which has a standard non-parole period of 10 years: Beveridge v R [2011] NSWCCA 249 at [28].

Generally, the impact of these provisions on sentencing has been to increase both terms of sentence and non-parole periods for standard non-parole period offences. For a before and after comparison of sentencing patterns, see P Poletti and H Donnelly, The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales, Research Monograph 33, Judicial Commission of NSW, 2010. These sentencing patterns may change again given that the courts are not to give the standard non-parole period “primary, let alone determinative, significance” (Muldrock at [26]) either after Muldrock or under the legislative amendments in 2013. It had been held that statistics for offences committed before the commencement of the standard non-parole provisions will be of very limited use, given the significant change in sentencing law flowing from those amendments: R v Porteous [2005] NSWCCA 115 at [49]: R v Sangalang [2005] NSWCCA 171 at [29]; R v Lo (2005) 159 A Crim R 71 at [89]; Pfitzner v R [2010] NSWCCA 314 at [43]. Again, these statements must now be understood in light of Muldrock.

Table of standard non-parole period offences: commentary and appeals

A table is reproduced at [8-000] containing references to commentary on the specific standard non-parole period offences. Additionally, a table of standard non-parole period sentencing appeals by offence type is available on JIRS under the menu item,“Sentencing Information”.

[7-995] Further reading

Articles

H Donnelly, “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1

RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 81

Papers

R Wilson, “Sentencing since Muldrock”, Public Defender Office Conference 2013

H Donnelly, Director, Research and Sentencing, Judicial Commission of NSW, “Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013”, CLE talk, Aboriginal Legal Service (NSW/ACT), Redfern, 5 December 2013