Bolt v Regina

Judgment 1BEAZLEY JA: The Court is in a position to give judgment now. McCallum J will give the first judgment. 2McCALLUM J: I am of the view that leave to appeal should be granted and that the appeal should be allowed. My reasons for reaching that conclusion are as follows. 3On the evening of 3 April 2010, the applicant broke into the home of his former partner, Ms Leigh Cameron, and violently assaulted her. He was charged with an offence of aggravated breaking and entering and committing a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The serious indictable offence on which the charge was founded was the offence of assault occasioning actual bodily harm. The circumstance of aggravation was the applicant's knowledge that Ms Cameron was in the home at the time he broke into it. 4The maximum penalty for an offence under s 112(2) is imprisonment for 20 years. The offence carries a standard non-parole period of five years under division 1A of part 4 of the Crimes (Sentencing Procedure) Act 1999. 5The applicant pleaded guilty in the Local Court and was committed for sentence to the District Court, where he adhered to that plea. On 4 March 2011, he was sentenced by the Honourable Sorby DCJ to a term of imprisonment with a non-parole period of three years and six months and a balance of term of eighteen months. The sentence had been discounted by twenty-five percent to reflect the utilitarian value of the plea. Accordingly, the starting point before applying the discount must have been an overall sentence of six years and eight months with a non-parole period of four years and eight months. 6The applicant seeks leave to appeal against the sentence imposed. The only issue raised by the appeal is the correctness of the learned sentencing judge's treatment of the standard non-parole period. At the time sentence was passed, the judge's approach to that factor in the sentencing process would have been regarded as unexceptionable. However, on 5 October 2011, seven months after the applicant was sentenced, the High Court delivered its decision in the matter of Muldrock v The Queen [2011] HCA 39. The effect of that decision was to overturn a long line of authority as to the proper application of the provisions relating to prescribed standard non-parole periods. 7The present application was lodged shortly after the publication of the decision in Muldrock. The commencement of the appeal out of time has been rectified by an extension of time granted on 25 October 2011. 8The issue raised by the appeal may be stated shortly. A standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act represents the non-parole period for an offence in the middle of the range of objective seriousness for the offence in question: s54A(2) of the Act. Section 54B(2) of the Act provides that, when passing sentence for an offence that carries a standard non-parole period, 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. 9Since 2004, the approach to that task has been governed by the decision of this Court in R v Way (2004) 60 NSWLR 168. Way marked the beginning of a line of authority which was understood to require a sentencing judge first to make an assessment as to where in the range of objective seriousness for the offence in question the particular offence stood. If the offence was assessed to be in the middle of the range, the judge then inquired whether there were factors in the individual case justifying a longer or shorter non-parole period than the prescribed standard non-parole period. 10Even in cases where the offence was not assessed to be in the middle of the range, the approach was heavily influenced by the judge's assessment as to where the individual offence fell in the hypothetical range. The standard non-parole period was understood to guide the court accordingly: see for example R v McEvoy [2010] NSWCA 110 from [68] especially at [90]-[92] per Simpson J; Grove and R A Hulme JJ agreeing at [1] and [116] respectively. 11In Muldrock, the High Court held (at [25]) that Way was wrongly decided. Specifically, the Court held that it was an error to characterise s 54B(2) as being framed in mandatory terms, requiring the Court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. The Court held that the correct approach was to identify all the factors relevant to sentence (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence given all those factors (at [26]). The Court specifically rejected the two-staged approach of beginning with an assessment as to whether the offence fell within the middle of the hypothetical range and, if it did, turning to the inquiry as to matters that justify a longer or a shorter period (at [28]). 12The critical question in the present appeal is whether the sentence passed on the applicant entailed the erroneous approach identified in Muldrock.