Standard non-parole period offences — Pt 4 Div 1A
Unless stated otherwise, section numbers below refer to the Crimes (Sentencing Procedure) Act 1999.
[7-890] What is the standard non-parole period?
The standard non-parole period is a legislative guidepost to be considered when sentencing. Section 54A(2) provides it represents the non-parole period for an offence “that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.” The standard non-parole period for an offence is the non-parole period set out in the Table in Pt 4, Div 1A: s 54A(1).
“Objective factors” is not defined in the statute and, when assessing objective seriousness, general sentencing principles apply. See Factors relevant to assessing objective seriousness at [10-012].
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] NSWCCA 52 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”.
[7-900] Consideration of the standard non-parole period in sentencing
Section 54B governs how a court is to consider a standard non-parole period in the sentencing exercise and 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 removal of the phrase “is to set” from s 54B(2) evinces an intention that a standard non-parole period is not to have determinative significance in the sentencing exercise. Section 54B(2) (quoted above) provides 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”, accommodating the separate but related assessments of the objective seriousness of an offence and the moral culpability of an offender as part of the exercise of instinctive synthesis: Tepania v The Queen [2018] NSWCCA 247 at [112]–[119]. The section also acknowledges that other sentencing factors, sometimes powerful, can impact upon the sentence reached by the court: Bugmy v The Queen (2013) 249 CLR 571 at [44]–[46]. For further discussion of the separate but related assessments of objective seriousness and moral culpability see:
[7-920] 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”.
While a sentencing judge is still required to assess the objective seriousness as an essential element of instinctive synthesis, they are not obliged to specify the seriousness of an offence by reciting “some mantra invoking comparisons about where the sentence… falls on some hypothetical arithmetical or geometrical continuum of seriousness”. While it would not be an error to do so, a failure to do so does not constitute error: DH v R [2022] NSWCCA 200 at [31]–[33]; s 54B(6). Yehia J agreeing also stated there is no requirement for a sentencing judge to utilise the concept of mid-range offending and assess where on the scale of seriousness the offending, for the offences carrying a standard non-parole period, lay: at [58]–[60]; Muldrock v The Queen at [29].
See also “Judge’s findings of objective seriousness of offence” in Factors relevant to assessing objective seriousness at [10-012].
[7-930] Exclusions and inclusions from Pt 4 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 and Cognitive Impairment Forensic Provisions Act 2020: 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 [7-970] below). 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].
The standard non-parole period for an offence is the standard non-parole period (if any) that applied at the time the offence was committed: s 21B(2). This includes where a standard non-parole period was increased after the offence was committed, and particular transitional provisions appear to provide otherwise: AC v R [2023] NSWCCA 133; GL v R [2022] NSWCCA 202 (both in relation to offences under s 61M(2) (rep) Crimes Act); see also Smith v R [2022] NSWCCA 88.
Generally standard non-parole periods do not apply to attempts, under s 344A Crimes Act 1900, to commit offences in the Table: R v DAC [2006] NSWCCA 265 at [10].
Nor do they apply to offenders charged with conspiracy to commit an offence: Diesing v R [2007] NSWCCA 326 at [53], [55]; SAT v R [2009] NSWCCA 172 at [51]. However, where the attempt or conspiracy is part of the substantive offence, for example, attempt to murder contrary to ss 27, 28, 29 or 30 Crimes Act, conspiracy to murder contrary to s 26 Crimes Act, or attempt to supply a commercial or large commercial quantity of prohibited drug under ss 3(1) (definition of “supply”) and 25(2) Drug Misuse and Trafficking Act 1985, the standard non-parole period provisions will apply: Amiri v R [2017] NSWCCA 157 at [6]–[9].
The courts are yet to determine whether the standard non-parole period provisions apply to attempts, under s 51CA Firearms Act 1996, to commit the Firearms Act offences specified in the Table: Amiri v R at [9].
The CCA has considered the effect of a judge making reference to a standard non-parole period which is inapplicable: Nguyen v R [2017] NSWCCA 39 at [105]–[112]; Potts v R [2017] NSWCCA 10 at [2]–[3], [8]–[10], [37]–[41]; HJ v R [2014] NSWCCA 21. Mere reference to a standard non-parole period by itself, and without more, does not always carry with it a finding of material error leading to re-sentencing: Nguyen v R at [103]–[104], [113]; HJ v R at [49]–[53]. The proper approach is for the CCA to enquire into all the facts and circumstances of the matter, the terms in which the standard non-parole period has been mentioned, erroneously, and to ask whether this court is satisfied that the erroneous reference had any effect upon the sentence. That effect does not have to be, but may be, a direct effect: Nguyen v R at [117].
[7-940] Use of cases decided before Muldrock v The Queen
The Court of Criminal Appeal has accepted that for comparative sentencing purposes cases decided before Muldrock v The Queen (2011) 244 CLR 120 “should be approached with caution”: Toole v R (2014) 247 A Crim R 272 per Hulme AJ at [78]; see also Atai v R [2014] NSWCCA 210 at [14]–[18]. The court presumes “that most, if not all of them, were influenced by the erroneous R v Way principles”: Wang v R [2017] NSWCCA 61 per RA Hulme J at [16] applying Simpson J in Davis v R [2015] NSWCCA 90 at [32]–[33]. This is because it is not to be lightly concluded that a sentencing judge, during the relevant period between R v Way (2004) 60 NSWLR 168 and Muldrock v The Queen, departed from the principles in R v Way. This is particularly so where the offender’s conviction is after trial: see R v Way at [122]. Even if the language of R v Way is not reproduced in the sentencing remarks, there is a strong likelihood that it governed the sentencing: Davis v R at [33].
In KB v R [2015] NSWCCA 220 the sentencing judge had regard to two comparable cases (RJA v R (2008) 185 A Crim R 178 and Ingham v R [2011] NSWCCA 88) subsequently reconsidered following Muldrock v The Queen. The sentences in both cases were set aside: KB v R at [26]. The court held that it was necessary to reconsider KB’s sentence on the basis that the judge took into account the original uncorrected CCA decisions in Ingham v R and RJA v R: KB v R at [27].
The SNPP Appeals on JIRS separates cases for each item in the Table according to whether they were decided before or after the Muldrock decision.
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.
[7-950] 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).
[7-960] 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: s 54C(3).
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].
[7-970] 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. However, see also AC v R [2023] NSWCCA 133; GL v R [2022] NSWCCA 202 discussed at [7-930] Exclusions and inclusions from Pt 4 Div 1A.
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 [7-890] above. 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 above at [7-900]), 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.
[7-980] Correcting sentences imposed pre-Muldrock
Muldrock v The Queen (2011) 244 CLR 120 resulted in a review by Legal Aid of cases to ascertain whether their clients were sentenced according to the erroneous principles in R v Way (2004) 60 NSWLR 168. See discussion in Davis v R [2015] NSWCCA 90 at [70]–[71]. Below describes the litigation that occurred after Muldrock and the means by which the cases were reviewed.
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.
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 [2015] NSWCCA 90 at [33]. The High Court in Muldrock v The Queen 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]. Simpson J (Beazley P and Adamson J agreeing) 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”.
The approach taken in Davis v R, and the cases which have applied it, is to be contrasted to earlier decisions such as Butler v R [2012] NSWCCA 23 at [26] and McDonald v R [2015] NSWCCA 80 which drew a clear distinction between cases where the standard non-parole period was applied by the judge following a trial from cases where it was used as a guidepost in guilty plea cases. The presumption of error approach in Davis v R can also be distinguished from the approach taken in 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]. It was accepted, however, that 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]; GN v R [2012] NSWCCA 96 at [4], [12], [36].
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.
[7-990] 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.