Sentence
102 The appellant was sentenced to a non-parole period of 20 years with an additional term of 6 years and 8 months. His Honour found that the offence fell "at least within the middle range of objective seriousness for an offence of murder." Having considered the appellant's subjective case his Honour concluded that "this is not an appropriate case in which to depart from the standard non-parole period."
103 The appellant contends that in approaching the matter in this way his Honour has fallen into error. It was suggested that his Honour commenced the sentencing process by finding that the offence was in the mid range, and without further consideration determined that the standard non-parole period applied. It was submitted that in making this finding his Honour confined his consideration to objective matters and only then considered whether subjective matters required or justified a different sentence.
104 The sentencing judge was required to apply s 54A and s 54B of the Crimes (Sentencing Procedure) Act 1999. They provide as follows:
" 54A What is the standard non-parole period?
(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.
(2) 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.
54B Sentencing procedure
(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.
(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.
(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.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
(5) The failure of a court to comply with this section does not invalidate the sentence."
105 This Court comprehensively considered these provisions in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. They were further considered in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 and MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93. Kirby J summarised the relevant principles in MLP in the following terms (from [30]):
"30. As mentioned, the standard non parole period represented "an offence in the middle of the range of objective seriousness" (s 54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s 54B(2)). The Court may depart from the standard, but only for reasons which are identified in s 21A of the Act (s 54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s 54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account.
31. R v Way, in a passage quoted by his Honour, identified the issues which must be addressed in characterising whether the offence was one in the middle range of objective seriousness (at [118]):
(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).
32. Simpson J in R v AJP, provided a helpful distillation of the principles emerging from R v Way where she said this:
13 The following propositions emerge from Way and subsequent cases:
(i) while s 54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; ...
(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (at [68]);
(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (at [74]-[77]);
(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (at [85]-[86]);
(v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (at [101]);
(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence (at [101]-[102]);
(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (at [122]); see also R v Davies [2004] NSWCCA 319.
33. The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence:
'First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna (2004) 149 A Crim R 505 per Barr J; R v George (2004) 149 A Crim R 38).
Secondly, should the offence be characterised as being in the mid-range of objective seriousness? That task should be approached in the manner suggested by Simpson J, intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid-range. If the offence falls within the mid-range, the standard non parole period should apply, subject to the remaining issues.
Thirdly, are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s 21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period.
Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433).
34. There is no requirement that these issues be addressed in any particular order (R v Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way:
'The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.' "
106 The appellant acknowledged through his counsel that his Honour did not approach the sentencing task by determining to apply the standard non-parole period and then oscillating about that point by reference to aggravating and mitigating factors. As I understand the complaint it is that his Honour may have confined his consideration of subjective matters to the question of whether there should be a departure from the standard non-parole period which his Honour had otherwise determined was appropriate.
107 I am not persuaded that his Honour has made any error. His Honour carefully examined the circumstances of the offence and made relevant factual findings. Although accepting that the striking of Ms Youseff with a bottle "occurred during an explosion of passion" his Honour determined that the act of killing by asphyxiation "fell well outside the category of low objective seriousness." However, before determining the non-parole period which should be applied, his Honour gave consideration to subjective matters including the submission that the offence was out of character for the appellant.
108 His Honour also considered the submissions of counsel in relation to aggravating and mitigating factors, made a finding of an absence of genuine remorse and considered a submission with respect to the assistance given to authorities. His Honour also considered the fact that the appellant had been confined in protective custody and a medical report which indicated that the appellant had suffered depression since his wife's death. Ultimately, having considered all relevant objective and subjective matters, his Honour concluded that it was not an appropriate case in which to depart from the standard non-parole period. In my view there is no error in this approach.
109 Furthermore, I am satisfied that the sentence which his Honour imposed was appropriate. The appellant submitted that having regard to the fact that he had no relevant criminal history, it was his first time in custody, there were no criminalising tendencies such as drug problems, the offence was not planned and there were good prospects of rehabilitation, the sentence was excessive. I reject that submission. The legislature has provided a significant indication of the penalty which a court should impose for an offence of this nature. I am entirely satisfied that even after consideration is given to the mitigating factors identified by his Honour, the appellant's brutal treatment of his wife resulting in her death justified the sentence which his Honour imposed.