(f) there is to be no finding of "special circumstances" for the purposes of s 44(2): [106].
24 Recognising the inconsistency between (b) and (e), the Director argued that a 24 year non-parole period was correct because his Honour was in error in describing the murder of Isaac Schoer as falling within the middle of the range of objective seriousness of the offence of murder. In support of that contention, the Director noted that the trial judge, after referring to the need to take into account circumstances of aggravation and mitigation listed in s 21A(2) and (3) of the Sentencing Procedure Act relevant to the objective seriousness of the offence, had concluded that the standard non-parole period applied: at [102]. His Honour then continued:
"The factors to be taken into account in that respect include the fact that the victim of the offence was a very young child who was vulnerable and that the offender abused his position of trust and authority in relation to the victim. They also include the factual circumstances surrounding the offence and the other matters to which I have referred including the issue of premeditation and the subjective factors, as earlier discussed."
25 It is clear that his Honour was identifying the elements of the exercise required pursuant to s 54B. It is established by authority in this Court that the objective seriousness of the offence may require reference to matters "personal to the offender at the time of the offence" such as duress, provocation, mental illness and related matters: see R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [85]-[86] (Spigelman CJ, Wood CJ at CL and Simpson J).
26 The Director accepts that the analysis required by the statutory scheme, as construed in Way, was that undertaken by his Honour. Nevertheless, the Director contends that properly undertaken, that exercise could not result in the conclusion that the murder was in the middle range of objective seriousness. That was because the objective facts which his Honour had identified at [80] - see [8] above - included nothing which could be seen as mitigating the seriousness of the crime. That indeed was his Honour's conclusion at [81]. Accordingly, there was error in determining that the standard non-parole period applied. The murder should properly have been categorised as falling above the middle range of objective seriousness and thus requiring a lengthier non-parole period than the "standard non-parole period".
27 The Director also noted that his Honour made no express finding as to whether the crime fell within the middle of the range of objective seriousness, although he accepted that such a finding could be implied from the application of the standard non-parole period.
28 In any case where the sentencing judge has discretion as to the appropriate sentence and as to the imposition of a non-parole period, there will be at least implicit findings as to where on a scale of culpability the particular offence falls. Often that judgment will be masked by consideration of circumstances specific to the offender or the likely conditions of imprisonment. However, some judges may think it demeaning to the dignity of the victim and offensive to the victim's family and friends to be required to state expressly where on the scale of objective seriousness the particular murder falls. The omission in the present case to make an express finding in that regard may well be referable to such sensitivities: it was clearly not the case that his Honour failed to consider the statutory test.
29 There are other difficulties with the statutory scheme. The need to consider whether an offence falls within "the middle of the range of objective seriousness" raises the question whether, on the spectrum of objective seriousness, the sentencing judge is required to identify a point or a band and, if a band, a narrow band or a broad band. In semantic terms, the middle of the range is not itself a band or range, but a point or line defined with greater or lesser precision. In practical terms, the distinction will be less significant. It is clear, particularly in the case of an offence such as murder, that there can be no precise identification of the middle of the range of seriousness. The best that can be said is that it will cover an area with no clear boundaries. Nevertheless, that image is different from one envisaging a broad "middle range" or "mid range" which encompasses most cases, but excludes the most and least serious kinds of offence. The proper approach is important, because it will determine whether the standard non-parole period is to be applied in the rare cases which fall precisely in the middle of the range or in a significant proportion of cases which are not obviously in the highest or lowest level culpability.
30 The exercise is complicated by other factors. As the Court held in Way, the middle of the range does not necessarily identify the "typical" offence: at [100]. Way also states that the middle of the range (described as "the midrange of seriousness") is not necessarily a narrow band, although that does not purport to identify a universal rule: at [102]. The extent to which these distinctions matter may depend in part upon how broad the discretion is, quite apart from the statutory regime, in determining a non-parole period for murder. Finally, the difficulty in placing objective seriousness on a range is that particular features of particular cases may suggest a high level of culpability, though for different reasons. It would follow that the absence of a particular feature (such as premeditation) would not necessarily be inconsistent with a high level of culpability.
31 This last consideration had direct relevance in the present case. Thus, the fact that the victim was a young child in the care of the offender was clearly an aggravating factor. On the other hand, a planned killing of a person (otherwise unknown to the offender) for money might also be seen as an aggravating circumstance. Similarly, objective culpability is often held to be higher where the victim is a law enforcement officer.
32 These considerations reveal a further problem with the exercise of determining where a particular murder falls in the range of objective seriousness. The Table to Division 1A now includes three separate categories and two different standard non-parole periods within the offence of murder. Where, as in the present case, the offence fell, at the relevant time, within the residual category, it is arguable that the range should be assessed without reference to those murders which carry a 25 year standard non-parole period. Equally, because no non-parole period can be set with respect to life imprisonment - see Sentencing Procedure Act, s 54 and R v Harris [2000] NSWCCA 469; 50 NSWLR 409 at [122] (Wood CJ at CL, Giles JA and James J agreeing) - offences requiring such a sentence should also be excluded.
33 The Director contended that the sentence of 30 years was appropriate and, given that there was no error in failing to identify special circumstances, the appropriate non-parole period would, in conformity with the statutory proportion, have been 22.5 years. He referred to R v Bond [2000] NSWSC 1059, which he described as a case with comparable features. In that case, the offender had been convicted of the murder of a woman with whom he was involved and whom he had bashed at her home. A similar offence had occurred some 10 years earlier, involving the death of another woman with whom he was involved and whom he had bashed whilst walking home from the pub, while affected by alcohol. He had pleaded guilty to manslaughter and had been sentenced; he had been released from prison and was drawing close to the end of his parole period with respect to that offence, when he committed the second offence. James J, in sentencing the offender for the offence of murder, noted that there had been "almost a complete lack of any subjective circumstances which might have attracted some leniency"; the absence of contrition, the absence of material demonstrating prospects of rehabilitation, an extensive criminal history and a trial resulting in conviction for murder: at [69]. He sentenced the offender to a term of 30 years imprisonment and set a non-parole period of 25 years. The similar pattern of behaviour in the present case, perhaps aggravated by the fact that the victim was a child, demonstrated, the Director contended, that the standard non-parole period was inappropriate and that a lengthier term should have been imposed.
34 At trial the Director argued that a sentence of life imprisonment was appropriate. Pursuant to s 61 of the Sentencing Procedure Act, the Court is required to impose such a sentence if satisfied that "the level of culpability in commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence" can only be met through the imposition of that sentence: sub-s (1). That submission has not been repeated on appeal. The trial judge dealt with the submission by reference to the analysis provided by this Court in R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 (Woods CJ at CL, Tobias JA and Hidden J agreeing). In that case there were three victims, being the respondent's three children whom he killed on one night. After reviewing the cases of murder by a parent of his or her children, Wood CJ at CL noted that there appeared to be none where a life sentence had been imposed, other than the sentences then under appeal: at [65]. His Honour did not doubt that such a sentence could be appropriate: [69]. His Honour set out a number of factors by which the objective criminality should be regarded as being tempered, including the lack of planning, the absence of any background of abuse or violence, that they were not carried out for sexual gratification, that the applicant was in a state of depression, that he did not attempt to conceal the offences but accepted his guilt from the outset, and that he had no prior history of similar violence towards children: at [71]. There were also subjective features which spoke in his favour: at [75]. The Court set aside the life sentences and imposed for each count a term of imprisonment of 24 years with a non-parole period of 18 years (in two cases) and 17 years (in one case), with a degree of accumulation giving a total sentence of 34 years with a period of mandatory incarceration of 27 years. The overall period of mandatory incarceration was just under 80% of the accumulated sentences.
Respondent's submissions
35 Counsel for the respondent referred the Court to the analysis of "relationship killings" undertaken by Hidden J in Regina v Toki [2003] NSWCCA 125. In Toki, this Court upheld an appeal by the prosecution and imposed a sentence of life imprisonment on the basis that that was the only appropriate sentence, given the extreme level of culpability, for the purposes of s 61(1) of the Sentencing Procedure Act. Smart AJ (with whom Levine J relevantly agreed) accepted the analysis undertaken by Hidden J as revealing that "it is only in an exceptional case that a sentence in excess of 20 years has been passed where the killing was not premeditated": Hidden J at [32]; cf Smart AJ at [36].
36 In carrying out that analysis, Hidden J "put to one side" three cases described as "entirely exceptional" in which sentences of life imprisonment were imposed: at [27]. Of the two more recent cases, one involved a "contract killing" and thus premeditation and planning: see R v Lewis [2001] NSWCCA 448. The second case did not. Regina v Miles [2002] NSWCCA 276 involved an offender who had killed a previous lover in a fit of jealous anger some nine years earlier and, having escaped from gaol, discovered a second woman with whom he had been in an intimate relationship in bed with another man and stabbed her. Although the offender was carrying a knife at the time of the offence, it was not found to be a premeditated attack, but the product of jealous rage.
37 While it may be said that a life sentence will, by definition, only be imposed in an extreme case, care must be taken in rejecting such cases as of no assistance with respect to cases which may not fall squarely within the same category of culpability. This point may be illustrated by the valuable analysis undertaken by Wood CJ at CL in Merritt.
38 The respondent also referred the Court to a number of cases involving multiple deaths, including Regina v Park [2003] NSWCCA 142; R v Fraser [2004] NSWSC 53 (Howie J) and Regina v Cheatham [2002] NSWCCA 360. These cases demonstrate points of distinction rather than similarity, in that the involvement of more than one victim requires consideration of the accumulation of the individual sentences, subject to the constraints imposed by the principle of totality.
39 The respondent relied upon this material for two purposes: first, it was designed to demonstrate that the sentence imposed by the trial judge was not manifestly inadequate so that, whether or not his Honour made technical errors, the Court should not intervene to increase the sentence. Secondly, the material was put in support of the respondent's appeal as a basis for concluding that the sentence imposed for murder was excessive.
Further evidence
40 The respondent also sought to rely upon further (fresh) evidence concerning his circumstances in custody. His affidavit, sworn 27 August 2008, stated that he had been a "protection prisoner" at all stages whilst in custody and had been transferred on 28 February 2008 to Lithgow Gaol. About 10 days after the transfer, he was seriously assaulted by punches to the face, which resulted in heavy bruising and facial fractures. He stated that he had suffered facial pain for some months, which was continuing, and, according to the medical notes, resulted from injury to the infraorbital nerve. He was subsequently classified as a "non-association" prisoner and then as a "limited association" prisoner, having contact with one other inmate.
41 According to his affidavit, the motive for the attack was unrelated to his offences, but resulted from the fact that he was recognised as coming from "a family of police", as he physically resembled his brothers, both of whom were police officers, as was his sister and as were the partners of his two brothers.
42 This evidence was tendered to demonstrate that his conditions of imprisonment had been, and would continue to be for the duration of his sentence, a more severe form of punishment than that ordinarily suffered by a prisoner. The material was relied upon both in the event that the Court should engage in a re-sentencing exercise and as material relevant to the exercise of discretion with respect to the Director's appeal.
43 The Director objected that the evidence should be disregarded because any additional constraints resulting from his vulnerability as a prisoner had nothing to do with the offences for which he had been incarcerated. That objection should not be accepted. The conditions of incarceration may impact more severely on particular prisoners for a range of reasons which will often be unrelated to their offences, including their states of health. These are not irrelevant considerations. If they are known to a trial judge, they may be taken into account in determining the length of sentence. The evidence proffered is therefore not immaterial.
Disposition
44 In the present case, it is not possible to reconcile his Honour's conclusion that the standard non-parole period should be set and the conclusion that there were no special circumstances warranting an increase in the balance of the sentence beyond one-third of the non-parole period with the imposition of a sentence of 30 years imprisonment. It would not have been inappropriate for the inconsistencies to have been corrected on the application under s 43 of the Sentencing Procedure Act. However, that step not having been taken, this Court must intervene to pass that sentence which is warranted in law and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3).
45 With respect to the Director's appeal, there is force in the submission that this case fell above the middle of the range. That the victim was an infant; that the respondent had prior knowledge of the potentially fatal consequences of violent behaviour towards an infant; the likely effects on the family generally; that the child was in his care; the absence of any explanation or circumstances mitigating culpability are all factors tending to support that conclusion.
46 Nevertheless, were it not for the inconsistency, the Director's contention with respect to the application of the standard non-parole period would not be upheld. Although there are features which suggest that the murder was a very serious offence, similar features will arise with respect to many murders. It is significant that in Merritt Wood CJ at CL described a number of factors as tempering the objective criminality: these were not mitigating factors, but an absence of certain aggravating circumstances. Some of those applied in the present case; others did not. Against the characterisation of the offence as being in the high range, were the lack of planning and the appearance of a spontaneous and impulsive act resulting from an unexplained rage, the lack of any gratuitous cruelty or prolonged suffering and the absence of sexual gratification. On the other hand, there was no psychological evidence of depression or other psychiatric disorder; although he did not seek to conceal the consequence of his conduct, he did not accept his guilt and, as already noted, there was a prior instance of similar violence.
47 The unchallenged conclusion reached by the trial judge was that this case did not fall within s 61 of the Sentencing Procedure Act so as to warrant a sentence of life imprisonment. On the other hand, the adoption of the standard non-parole period was consistent with a sentence in excess of 20 years imprisonment.
48 It seems likely, in relation to murder, that the middle of the range of objective seriousness must be seen to encompass a variable set of circumstances and an assessment, based on no precise criteria, which will allow a broad discretion to the trial judge. In assessing objective seriousness, it must be borne in mind that the range will not include the most extreme cases which warrant the imposition of a sentence of life imprisonment. Further, it must be borne in mind that the 20 years standard non-parole period is not applicable in relation to a range of murders involving other circumstances of aggravation identified in the Table to Division 1A.
49 In considering whether to intervene on the basis that the standard non-parole period was manifestly inadequate, some weight can be given to the circumstances of imprisonment, as revealed by the fresh evidence because, even if the trial judge had reached the conclusion that the precondition to the imposition of a standard non-parole period identified in s 54A was satisfied, it would still be necessary to consider whether factors subjective to the offender and unrelated to the offence warranted a different non-parole period. Evidence of particularly harsh conditions of imprisonment would be relevant at that stage. The likelihood is that the respondent will suffer a degree of severity in the conditions of his imprisonment beyond that faced by most of the prison population for a significant portion of his sentence.
50 In combination, these reasons require rejection of the Director's appeal with respect to the imposition of the standard non-parole period.
51 The next question is whether the balance of the term for the sentence of murder should constitute one-third of the standard non-parole period or a lesser proportion. (There being no finding of special circumstances, it cannot result in a higher proportion.)
52 It is true that his Honour indicated an intention that the non-parole period for the offence of murder should be 80% of the term of the sentence: at [106]. That was not a statement of intent, but a statement of fact. In its terms it was in error. Nevertheless, it was only marginally in error, arithmetically, if one took account, not merely of the sentence with respect to the murder, but the cumulative non-parole period of 24.5 years, as compared with the 30 year sentence of imprisonment for murder. More importantly, his Honour gave no reason for decreasing the proportion of the balance of the term below the statutory maximum of one-third. Such a calculation was open in the absence of special circumstances, but some justification might have been expected. As this Court is now re-sentencing the respondent, the appropriate course is to impose a sentence with the addition of one-third of the standard non-parole period, to give a term of sentence of 26 years eight months.
53 To take that step necessarily involves upholding the respondent's cross-appeal with respect to the term of the sentence for murder.
Orders
54 The orders I would propose are as follows: