Automatic language translation
Our website uses an automatic service to translate our content into different languages. These translations should be used as a guide only. See our Accessibility page for further information.
Decisions of the Court of Criminal Appeal on the application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999
A paper by Robert Hulme SC
Deputy Senior Public Defender
September 2004
This version (1.2) contains minor updates to the paper delivered at the Public Defenders' CPD Seminar on 9 September 2004.
Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 ('the Act') was inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90 ('the Amendment Act'). Its provisions commenced operation on 1 February 2003 and they apply to offences committed on or after that date. Schedule 2, clause 45(1) of the Act.
The Amendment Act introduced the concept of a 'standard non-parole period' which is said to represent the non-parole period for an offence in the middle of the range of objective seriousness for those offences listed in the Table to the Division: sec 54A(2).
The Table to the Division presently sets out some 22 offences. More may be added. One of the functions of the New South Wales Sentencing Council is to 'advise and consult with the Minister in relation to offences suitable for standard non-parole periods and their proposed length': s.100(J)(1)(a) of the Act.
There was a deal of controversy surrounding the passing of the Amendment Act. In his Second Reading Speech, the Attorney General, Mr Bob Debus, compared the provisions to a scheme of mandatory sentencing then being proposed by others. He said: (Hansard) Legislative Assembly, 23 October 2002, pp. 5813)
'...At the outset I wish to make it perfectly clear that the scheme of sentencing being introduced by the Government today is not mandatory sentencing. The scheme being introduced by the Government today provides further guidance and structure to judicial discretion. These reforms are primarily aimed at promoting consistency and transparency in sentencing and also promoting public understanding of the sentencing process. By preserving judicial discretion we ensure that the criminal justice system is able to recognise and assess the facts of an individual case. This is the mark of a criminal justice system in a civilised society. By preserving judicial discretion we ensure that when, in an individual case, extenuating circumstances call for considerations of mercy, considerations of mercy may be given'.
Nevertheless, there was concern that the scheme involved a fetter upon judicial sentencing discretion. See, for example, Loukas, 'Crimes (Sentencing Procedure Amendment) Standard Minimum Sentencing Bill 2002, Bar News, Summer 2002/2003, at 52.
The Court of Criminal Appeal has now had the opportunity to consider the provisions of Division 1A in a number of cases that have come before it in the past few months. It is proposed in this paper to review those cases and examine how the Court has interpreted the correct operation of the Division.
The most definitive consideration of Division 1A of Part 4 to date by the Court of Criminal Appeal came with the judgment in Regina v Way. Other cases, which are discussed below, have dealt with discrete aspects.
It is important to note that the starting point is that the legislation commands that the standard non-parole period be set unless the court determines there are reasons for imposing a longer or shorter non-parole period: s.54B(2). In other words, the first question to be considered is, 'Are there reasons for not imposing the standard non-parole period?': Way at [117].
The judgment proceeds:
118 That question will be answered by considering:
(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).
119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.
120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.
The standard non-parole period provisions apply to an offence falling within the middle of the range of objective seriousness where there has been a conviction after trial.
Taken literally, it might seem that the first consideration mentioned by the Court in [118] is beyond the scope of a court's power to depart from the standard non-parole period. Sec 54B(3) provides:
'(3) 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 section 21A'.
An assessment that the offence is not in the middle of the range of objective seriousness is not a matter, at least specifically, referred to in sec 21A. The Court had earlier considered this issue. It was of the view that the assessment of objective seriousness was perhaps a matter coming within sec 21A, specifically sec 21A(1)(c) (the court being required to take into account 'any other objective or subjective factor that affects the relative seriousness of the offence') or the concluding sentence of sec 21A(1) ('The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law'). Alternatively, it considered that a purposive interpretation needed to be applied, 'by which sec 54B(2) should be understood as permitting a departure from the standard non-parole period, wherever the objective seriousness of the individual offence is either lesser or greater than that of an offence in the middle range of seriousness': Way at [66].
The Court also considered that the standard non-parole periods must be taken to have been intended 'for a middle-range case where the offender was convicted after trial'. The reason for this is that there is nothing in Division 1A that discriminates between sentences imposed after a plea of guilty and those imposed after a trial. Sec 22 requires that a plea of guilty be taken into account, both as to the fact of the plea and as to its timing, and that a court is for that reason empowered to impose a lesser penalty than it otherwise would have imposed. In order for there to be retained an appropriate degree of differentiation between matters resolved by way of plea, and at trial, it is appropriate to regard the standard non-parole periods as applying to the latter. This departure from the setting of the standard non-parole period is justified under sec 54B(3) by the inclusion in sec 21A(3)(k) of the requirement that a court take into account the mitigating factor of a plea of guilty. Way at [68] - [71].
The Court made a number of points about this. First, it accepted a submission that the task of determining what is an offence in the middle of the range of objective seriousness 'should be approached intuitively and should be based upon the general experience of the courts in sentencing for the particular offence': Way at [74].
Secondly, the Court rejected a submission that there was no need for a sentencing judge to determine what was the abstract case in the middle of the range of objective seriousness. It considered that this was a necessary task in order to permit the sentencing court to meet the requirement of the Division to make a comparison between the offence before the Court and an offence for which the standard non-parole period applied: Way at [76].
As to the task of assessing objective seriousness, the Court was discouraging of any artificial analysis and gave examples, including the imagination of an entire range of seriousness, or plotting a midpoint in a range between a case in which all aggravating features and no mitigating features were present, at one of the spectrum, and the converse at the other end: Way at [81].
The Court considered the inquiry as to objective seriousness should take into account the actus reus of the offence, the consequences of the offender's conduct, and such factors as might have impinged on the offender's mens rea: Way at [85]. This includes a consideration of matters personal to the offender that may affect the seriousness of the offence because of their causal connection with its commission. Examples were given of 'matters of motivation (for example duress, provocation, robbery to feed a drug addiction) and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected' Way at [86].
The Court highlighted the need for there to be a distinction between matters which were relevant to an assessment of the objective seriousness of the offence and matters which were relevant to the objectives of punishment. To date this has not been a necessary aspect of sentencing as the focus has traditionally been on an assessment of the overall criminal culpability but it is now necessary in respect of the offences listed in the Table to Division 1A: Way at [98] - [99]. The Court gave the example of an antecedent criminal history which could be relevant to the level of punishment if it met the description Where it 'illuminates the moral culpability of the offender in the instant case, or shows dangerous propensity, or shows a need to impose condign punishment to deter the offender and other offenders from committing similar offences'. in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477: Way at [92]. An offence committed whilst the offender is on conditional liberty was cited as another example: Way at [94] - [96].
The last point made by the Court on the assessment of objective seriousness was that the inquiry is not as to what is a 'typical case' because that involves a question of frequency of occurrence rather than an assessment of relative seriousness. In a similar vein, the Court rejected a submission that the middle of the range should be regarded as a narrow band at the middle of a continuum because that involved making assumptions as to a distribution pattern of offences between the two extremities: Way at [100] - [102].
As indicated earlier, sec 54B(3) provides that '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 section 21A'.
The Court in Way briefly referred to the provisions of sec 21A. Other judgements See, in particular, Regina v Wickham [2004] NSWCCA 193. have involved a more detailed consideration.
Two points were made in Way. They were, first, that sec 54B(3) should not be read down as restricting the consideration of sec 21A to those items listed in sub-sec 21A(2) and (3): Way at [103]. Sec 21A(1) includes that in addition to the aggravating and mitigating factors listed in (2) and (3), the Court is required to take into account:
'(c) any other objective or subjective factor that affects the relative seriousness of the offence'
It is also important to note that the sub-section concludes with:
'The matters referred to in this subsection are in additional to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law'.
The Court regarded these provisions as preserving the relevance of existing statutory and common law factors in the assessment of sentence. Examples were given of exceptional hardship to the offender's family; unduly onerous conditions of custody, through illness or being on strict protection; parity; totality; and a young offender going into custody for the first time: Way at [104]. The special considerations applying to the sentencing of children in the Children (Criminal Proceedings) Act 1987 were cited as a further example: Way [105].
The second point made in relation to sec 21A was that although sec 21A(2) concludes with the provision that:
'The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence',
the nature or extent of such a factor, if present to a greater degree than is necessary to establish the element of the offence, can have relevance to the seriousness of the offence. The Court gave the example of an offence involving an 'in company' element where there were a large number of overbearing and powerful companions in company with the offender: Way at [106] - [107].
The Court regarded a finding of special circumstances as remaining open to a sentencing court in respect of the offences to which Division 1A applied on the basis that such a finding was a matter 'required or permitted to be taken into account by a court under any Act or rule of law'(sec 21A(1)): Way at [109].
It added, usefully, that sec 44 does not require the non-parole period to be set first, thereafter being immutable notwithstanding a finding of special circumstances: Way at [111]. The process of determining the non-parole period and making a finding in relation to special circumstances did not involve two steps, or a sequential process of reasoning but may be taken simultaneously: Way at [112] (with reference to what Spigelman CJ said in Regina v Hampton (1998) 44 NSWLR 729).
The short answer is 'Yes', although the Court noted that the occasions in which this would be appropriate for such offences would be rare: Way at [116].
No. The Amendment Act included an amendment to sec 45 (which permits a court to decline to set a non-parole period) to specifically exclude Division 1A offences from its operation: Way at [47].
The Court noted a comparison of the standard non-parole periods with existing patterns of sentencing, in particular with the Judicial Commission sentencing statistics. This comparison revealed that the standard non-parole periods were generally higher than most non-parole periods that had been imposed for such offences in the past. Caution is always necessary when considering sentences imposed in other cases and sentencing statistics. In particular, the Court noted that they reflect the sentence imposed after consideration of all relevant mitigating and aggravating circumstances whereas the standard non-parole periods were intended as starting points for midrange offences after conviction at trial and before any adjustment: Way at [140] - [141]. The Court also noted that there was no mention in the Attorney General's Second Reading Speech or any dissatisfaction with the general level of sentencing, or of any intention to increase the time convicted persons should remain in custody. Nevertheless, it was anticipated that the sentencing pattern for some offences might move upwards, while for others it will not: Way at [142].
The Court held that the standard non-parole period remains relevant even in the event of a decision that it should not be set in the instant case:
121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act.
122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.
123 The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.
Another important observation was that it is not a correct approach to start with the standard non-parole period and then to 'oscillate about it by reference to the aggravating and mitigating factors'. The Court explained that the 'problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act': Way at [131]. An example of a possible transgression in this manner would be to find that the offence fell within the middle of the range of objective seriousness and, absent any other relevant aggravating or mitigating factor, to simply reduce the standard non-parole by some appropriate percentage for a plea of guilty. If the standard non-parole period does not apply, it does not remain as a starting point, but simply remains of relevance as a benchmark in the manner described above.
The last point made by the Court about Division 1A was an observation that sec 54B(4) required that if the court does not set the standard non-parole period it must make a record of each factor it took into account for not doing so.
Sec 54B(4) speaks of reasons 'for increasing or reducing the standard non-parole period'. Such an expression implies the standard non-parole period is a starting point which is then increased or reduced, but such an approach is inconsistent with the judgment in Way (for example, at [121] - [123] and at [131]) and it is inconsistent with the expression 'setting a non-parole period that is longer or shorter than the standard non-parole period' used in sec 54B(2) and the similar expression used in sec 54B(3). It was, perhaps, an oversight in drafting.
Way involved a plea of guilty. It was contended, in part, that the sentencing judge had erred by finding that the offence was in the middle of the range of objective seriousness and generally in his approach to the application of sections 21A and 54B.
The judge had said that he was required to:
"firstly ascertain where this offence falls within the range (of objective seriousness), then to indicate what non-parole period will apply, and then to look at Section 21A, that is the aggravating and mitigating matters."
This was held to be erroneous for a number of reasons. First, it was regarded as involving a 'three-tiered arithmetic approach of the kind which was criticised by McHugh J in AB v The Queen'((1999) 198 CLR 111: Way at [152].
It was said to have 'elevated a provision which was intended as providing a reference point, or benchmark or guidepost, into a rigid rule of sentencing practice': Way at [153].
Importantly, the Court said of the judge's stated approach:
154 It departs from the approach that we consider to be appropriate, which permits the judge to give consideration to all of the relevant objective and subjective factors which are properly to be taken into account, including those which fall within s 21A(1)(a), (b) and (c), and which otherwise apply as a matter of settled sentencing law, to arrive at a sentence which also takes into account the guidance which is provided by the existence of a standard non-parole period for a midrange offence, of the kind for which the offender is to be sentenced.
It was also held that the judge had erred by regarding the standard non-parole period as applying where there had been a plea of guilty: Way at [156].
As to the contention that there was error in determining that the offence fell within the middle of the range of objective seriousness, the Court regarded the sentencing judge's assessment as correct. It found that the present offence, on its own assessment, was 'just within' that range: Way at [161].
Regina v Shi was one of the group of cases heard on the same occasion as Way. It was a Crown appeal against a sentence imposed for an offence of supplying not less than the commercial quantity of methylamphetamine. There had been a plea of guilty in the Local Court. A non-parole period of 2 years, against a total term of 4 years, was set. The standard non-parole period for the offence was 10 years.
The sentencing judge referred to the provisions of sec 54B(2) ('when determining the sentence for the offence 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'). He then said:
'This means therefore that irrespective of where the offence falls in the range of objective seriousness the standard non-parole period is to be set unless there are reasons to do otherwise. Is its position away from the middle of the range of objective seriousness a reason to do otherwise'
He then referred to sec 54B and to sec 21A and continued:
'It seems strange as a matter of drafting, but as I read the legislation it is only through s 21A(1)(c) that the position of the objective seriousness of the offence away from the middle of the range can be used as a reason not to set the standard non-parole period'
Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, referred to various portions of the Court's judgment in Way Reference was made to the judgment in Way at [117] - [124], [68], [85] - [91] and held that the sentencing judge had erred in four respects.
First, in assuming that the standard non-parole period for a Division 1A offence applied equally whether the case was determined at trial or after a plea: Shi at [31].
Secondly, in regarding the considerations which are relevant for an assessment of the objective seriousness of the offence as being confined to those that fall within sec 21A(1)(c): Shi at [32]. Those that do fall with sec 21A(1)(c) are 'any other objective or subjective factor that affects the relative seriousness of the offence.' Clearly, some of the matters in sec 21A(2) and (3) do, or at least can, have relevance to the assessment of objective seriousness as well. Perhaps what the sentencing judge was trying to do was to explain how an assessment that the offence was not in the middle of the range of objective seriousness could be a 'reason ... referred to in section 21A'for not setting the standard non-parole period (sec 54B(3)).
Thirdly, the sentencing judge appeared to have regarded the standard non-parole period as having no relevance after the conclusion was reached that the offence did not fall within the middle of the range of objective seriousness: Shi at [33].
The fourth error related to insufficient consideration being given to specific aspects of the facts of the case that were relevant to an assessment of objective seriousness together with considerations of general deterrence: Shi at [34].
Wood CJ at CL reiterated the point made in Way that 'an unduly rigid two-step process in the sentencing exercise' was inappropriate and that the true role of the standard non-parole period was 'as a reference point': Shi at [36].
It was held that the offence fell well below the middle range of seriousness - particularly noting that the respondent was not a principal, had not worked as a courier on more than one occasion and his supplier had taken advantage of him. Moreover, his subjective circumstances were particularly favourable. Nevertheless, it was held that the sentence was inadequate and it was increased from 4 years, with a non-parole period of 2 years, to 6 years with a non-parole period of 3 years.
Regina v Hopkins was another of the group of cases considered with Way. It involved a Crown appeal in relation to a sentence imposed for an offence of aggravated sexual assault (sec 61J) for which a standard non-parole period of 10 years is prescribed. A sentence of 2 years, with a non-parole period of 6 months had been imposed. The circumstances of the offence were bizarre and the respondent was obviously experiencing a psychotic episode of a previous undiagnosed mental illness at the time. The sentencing judge found there were reasons for setting a non-parole period that was shorter than the standard non-parole period. These were entirely related to the mental condition of the respondent at the time of the offence.
The Court noted that sec 54B(3) provided that the range of matters referred to in sec 21A permitted a decision that the standard non-parole period did not apply, and, specifically, that among those matters were sec 21A(3)(j) that 'the offender was not fully aware of the consequences of his or her actions because of the offender's ... disability': Hopkins at [23]. It also noted that this provision did not entirely encompass all aspects of the manner in which a person's mental condition may be pertinent to the sentencing exercise and that other aspects may be brought into consideration by virtue of s.21A(1)(c), the mental condition of the offender at the relevant time potentially going to the level of culpability of the offender and thereby affecting the 'relative seriousness of the offence': Hopkins at [24] - [25].
Ultimately it was held that, in the unusual circumstances of the case, the degree of culpability of the respondent was considerably attenuated to such a degree that a short sentence with a relatively short non-parole period was within the range of legitimate sentencing discretion. The Crown appeal was dismissed.
Regina v Tuncbilek was another of the Way group of cases. It involved two offences, one of which (aggravated car jacking) attracted a standard non-parole period of 5 years. For that offence the sentencing judge imposed a sentence of 7 years, with a non-parole period of 4* years, accumulated by 3 years upon a sentence for an unrelated armed robbery. There had been a plea of guilty at the earliest opportunity and the judge thought this warranted a discount of 25%.
The Court noted that the sentencing judge had made no reference to the applicability of the then new standard non-parole period legislation, his attention not having been drawn to it: Tuncbilek at [30]. It was further noted that the judge's starting point before the discount for the plea of guilty was six years, a 20% increase on the standard non-parole period, and that the judge had not given reasons for such an increase as sec 54B(4) expressly provided: Tuncbilek at [30]. It is respectfully argued that this is erroneous. Sec 54B(4) only requires reasons for setting a non-parole period that is longer or shorter than the standard. It does not require reasons for the adoption of any particular provisional 'starting point'.
In the course of considering the re-sentencing of the appellant, Simpson J first concluded that the sentence fell within the middle of the range of objective seriousness. She then identified some factors that pointed towards a longer non-parole period than the standard and other factors pointing to a shorter non-parole period. She then found, 'these factors are evenly balanced and I therefore conclude that this is not a case for departure from the standard non-parole period of five years'. Tuncbilek at [52]. However, she then proceeded to reduce the five-year period by 25% for the plea of guilty.
It is difficult to reconcile this approach with that which was advocated in Way. It has the appearance of commencing the process 'at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors': Way at [131]. From what was said in Way, the correct approach should have been to first determine that the standard non-parole period did not apply because there had been a plea of guilty, then to determine the appropriate non-parole period having regard to all relevant features of the case, and then to pause and compare the provisional result with the benchmark provided by the standard non-parole period.
Regina v Johnson is the final case in the Way group. It involved a Crown appeal. The respondent had pleaded guilty to two offences, one being an offence against sec 112(2) for which a standard non-parole period of 5 years is prescribed. The sentencing judge found that this offence fell 'towards the bottom end of (the) range' of objective seriousness. In doing so he said that he had taken into account some aggravating factors under sec 21A(2), particularly that the respondent had previous convictions and was on parole at the time of the offence. He also said that he took into account in mitigation under sec 21A(3) that the offence was committed on the spur of the moment, was not part of an organised criminal activity, prospects of rehabilitation, remorse and the plea of guilty.
Simpson J rejected the Crown submission that the statutory maximum penalty and the prevalence of the offence were relevant to an assessment of objective seriousness of the particular offence. She also rejected the contention that the respondent being on parole, and his antecedent criminal history were relevant: see Way at [94] - [99]. She accepted the contention that the damage to the victim's house, the ransacking of bedrooms, the multiplicity of offences and the degree of planning involved were relevant in this assessment: Johnson at [34]. Her Honour was of the view that there was doubt as to whether the sentencing judge had taken mitigating features into account in the assessment of objective gravity, or simply as reasons for not imposing the standard non-parole period: Johnson at [35]. Ultimately her Honour referred to a concession made by the Crown before the sentencing judge that the offence fell 'between the lower and the middle' of the range of objective seriousness and held that the Crown should not now be permitted to have the finding of the sentencing judge reversed: Johnson at [37].
At the end of her consideration of the standard non-parole period aspect of the case, Simpson J said that the finding that the objective seriousness was towards the bottom of the range, together with other matters favourable to the respondent, 'balanced with or against the aggravating features, determined the extent of the reduction of the standard non-parole period': Johnson at [43] (emphasis added). Whether her Honour intended to convey a notion that the standard non-parole period is a starting point that may then be increased or reduced is unclear. If so, it would appear to conflict with the approach outlined in Way. Perhaps her Honour was speaking in terms of a 'departure' from the standard.
Regina v Mouloudi, a Crown appeal, was heard before the Way group of cases was argued but judgment was reserved until after the decisions were given in those cases. It involved two offences under sec 7(1) Firearms Act 1996 to which the respondent had pleaded guilty. A standard non-parole period of 3 years is prescribed for such an offence. A sentence of 2* years, with a balance of term of 2 years, was imposed for each offence. The sentencing judge made an error as to the applicable maximum penalty which moved the Court to consider re-sentencing. Bergin J observed that 'the standard non-parole period does not apply in this case because the respondent was convicted after a plea rather than after a trial': Mouloudi at [62]. She proceeded to observe:
62 ... It seems to me that in sentencing after a plea the Court may have regard to the standard non-parole period applicable after conviction but it must be remembered that the discretion in fixing a non-parole period after a plea is unfettered.
It is respectfully suggested that this should not be taken as meaning that the standard non-parole is to be completely ignored. It retains significance as a benchmark. This point has since been made clear in the judgment of Wood CJ at CL in Regina v Davies [2004] NSWCCA 319:
6 I do not understand her Honour to have intended, by the concluding reminder 'that the discretion in fixing a non-parole period after a plea is unfettered', to suggest that s54B had no application, and was to be ignored in a case where the sentencing followed a plea. To the contrary, it is clear that she recognised, in accordance with para 122 of the judgment in Way, that, in such a case, the standard non-parole period specified in s54B is still to take its place as a reference point. It performs that function in so far as it specifies the standard non-parole period for a mid range case determined after trial, before any necessary adjustment which might be made in accordance with the section.
(The respondent in Mouloudi was re-sentenced to concurrent non-parole periods of 4 years with a balance of the term of 2 years).
Regina v P involved sentences imposed for armed robbery with wounding and armed robbery. The first offence, against sec 98 Crimes Act 1900 has a prescribed standard non-parole period of 7 years. The applicant had pleaded guilty. Three further offences were taken into account by the sentencing judge who imposed a sentence of 11 years, with a non-parole period of 6 years. (A concurrent but shorter sentence was imposed for the armed robbery offence).
The sentencing judge had rejected a submission that the standard non-parole periods only apply to a sentence that follows a verdict of guilty at trial and not to a sentence following a plea of guilty. He made a finding concerning the objective seriousness of the offence, saying that if the applicant had have been an adult the standard non-parole period would have been insufficient. He took into account the applicant's age, rehabilitation prospects, three offences listed on a Form 1, and concluded, 'the standard non-parole period should be shortened by 1 year to 6 years'.
The Court (Hulme J, with whom Ipp JA and Hislop J agreed) referred to the conclusion in Way that the standard non-parole period 'should be understood as having (been) specified for sentences imposed for mid-range cases after conviction at trial' and held that the sentencing judge's conclusion to the contrary was wrong: P at [23]. It was also held that the sentence was manifestly excessive and the question of re-sentencing arose. In this context, Hulme J said:
39 ... I take the view that the case is not one where the standard non-parole period should be imposed. My reasons for this conclusion lie principally in the Applicant's plea and his youth and, to a lesser extent because of the existence of special circumstances which justify a longer ... parole period than one third of the appropriate non-parole period. I turn then, as R v Way at [121] should occur, to normal sentencing practice.
The following propositions which are relevant to a practical application of the provisions of Division 1A of Part 4 of the Act emerge:
1. Standard non-parole periods do not apply in cases:
(a) which are assessed as not falling within the middle of the range of objective seriousness, or
(b) in which there has been a plea of guilty, or
(c) in which there is some other aggravating or mitigating factor (or combination of them) within the specific or non-specific provisions of sec 21A that provide a reason for not setting the standard non-parole period.
2. If the standard non-parole period does not apply, an unfettered sentencing discretion should be exercised in the traditional manner. Nevertheless, the standard non-parole period remains of relevance, like the maximum penalty and any relevant guideline judgment or established pattern of sentencing as a benchmark against which the sentence provisionally arrived at may be compared and an adjustment made if necessary.
3. The standard non-parole period is not a starting point that is then increased, or decreased, for specific aggravating or mitigating factors.
Robert Hulme SC
9 September 2004
20 Sep 2024