Musgrove v R

Ground 2: s44 26 S44(2) of the Sentencing Procedure Act is in the following terms: "44(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." As imposed, the non-parole period is 76% of the head sentence, against the statutory proportion of 75%.

27 It is to be observed that the subsection imposes a restriction upon the structure of a sentence to the extent that the non-parole period must (in the absence of a finding of special circumstances) not fall below three quarters of the total term of the sentence; there is no corresponding restriction upon the structuring of a sentence in such a way that the non-parole period exceeds three quarters of the total sentence; or, put another way, while the section restricts the imposition of a sentence having a parole period (balance of term) of more than one third of the non-parole period, it does not correspondingly restrict the imposition of a sentence in which the parole period (balance of term) is less than one third of the non-parole period. In this case the judge declined to find special circumstances as would be required before imposing a sentence having a non-parole period less than three quarters of the total term (or a balance of term greater than one third of the non-parole period); he was not required to, was not asked to, and did not, give reasons for imposing a sentence in which the balance of term is less than one third of the non-parole period. That is not the subject of any prohibition or restriction: see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. 28 On behalf of the applicant the submission was made that: "His Honour clearly intended that the relationship between the non-parole and parole periods be in accordance with the statutory ratio set out in s44 of the [ Sentencing Procedure Act ]." 29 Underlying this submission are two assumptions: that, on its correct construction, s44:

one: precludes (other than where special circumstances are found to exist) the imposition of a sentence so structured that the parole period (balance of term) is greater than one third of the non-parole period; and

two: precludes the imposition of a sentence so structured that the parole period (balance of term) is less than one third of the non-parole period. 30 The first of these assumptions is correct. S44(2) clearly so states. The second assumption is incorrect. There is nothing in the section that justifies or supports the assumption or any inference that that was what the legislature intended. 31 Further, the assumption is contradictory of recent authority: for example, see Simpson, above. 32 It is worth recalling the history of s44 and its predecessors. 33 The section (or its substance) was first introduced into statutory law of NSW as s20A of the Probation and Parole Act 1983, via the Probation and Parole (Serious Offences) Amendment Act 1987. S20A(1) relevantly provided: " Minimum non-parole periods for serious offences 20A. (1) If - (a) a non-parole period is to be specified with respect to one or more offences (including, where relevant, an offence for which a term of imprisonment is already being served); and (b) the offence or at least one of the offences is a serious offence, this section applies to the non-parole period. (2) The non-parole period shall be at least three-quarters of - (a) the length of the sentence for the only serious offence involved; or (b) the total length of the sentences for all the serious offences involved (any two or more such sentences that are wholly or partly concurrent being treated as one sentence to the extent of their concurrence). (3) ... (4) ..." (By s19 of the Probation and Parole Act, a court sentencing an offender thereunder to a term of imprisonment of more than three years was required (unless the offender was serving another term of imprisonment) to specify a non-parole period, but by s21, a discretion was conferred on the court to decline to specify a non-parole period where it considered it undesirable to do so.)

34 That Act was repealed by the Sentencing Act 1989. S5 of the Sentencing Act relevantly provided: "5(1) When sentencing a person to imprisonment for an offence, a court is required - (a) firstly, to set a minimum term of imprisonment that person must serve for the offence; and (b) secondly, to set an additional term during which the person may be released on parole. (2) The additional term must not exceed one third of the minimum term, unless the court decides there are special circumstances. (3) … (4) …"

(S6 of the Sentencing Act preserved the discretion to decline to set minimum and additional terms, and to set a fixed term of imprisonment, again where the court considered it appropriate to take that course.) 35 S5 was, in turn, replaced by s44 of the Sentencing Procedure Act (1999) (Crimes Legislation Amendment (Sentencing) Act 1999). S44 then provided: "44(1) When sentencing an offender to imprisonment for an offence, the court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) the non-parole period must not be less than three quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

By s45, the discretion to impose a fixed term of imprisonment, where the circumstances were considered to be appropriate, continued. 36 By amendment commencing 1 February 2003 (Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) 2002 No 90) s44 was amended, so that, in its current form, it relevantly provides: "44(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(4) …" 37 An apparent anomaly is here to be observed. Notwithstanding the mandatory nature of the language of the current s44(1) - "the court is first required to set a non-parole period …", s45 continues, as it previously did, to provide a discretion to impose fixed-term sentences in appropriate circumstances. The only reasonable way of reconciling the two sections is to read s44(1) as though it included the words "except as provided for by s45", or "unless the court decides, pursuant to s45, to decline to specify a non-parole period …" or words to similar effect, or s45 began with the words "notwithstanding s44(1) …". 38 By the same Act an amended s44 Division 1A was introduced into Part 4 of the Sentencing Procedure Act. This effected a quite radical change in sentencing in relation to certain specified offences, catalogued in a Table to the Division. In respect of these offences, a standard non-parole period was specified. S54B imposes upon the sentencing court in relation to those offences, an obligation to set the standard non-parole period, unless it determines that there are reasons for setting a longer or shorter non-parole period. Available reasons for taking that course are those contained in s21A of the Sentencing Procedure Act. S54A explains what the standard non-parole period is. 39 The Probation and Parole Act may be put to one side. The succeeding enactments reveal some fluctuation in the approach the legislature has required courts to take in sentencing - · by s5 of the Sentencing Act (1989 - 2000) the court was required, first to set a minimum term, and, second, to set an additional term; · by the original version of s44 of the Sentencing Procedure Act (2000 - 2003), the court was required, first to set the (total) term of the sentence, and second, to set a non-parole period; · by the amended (current) version of s44 of the Sentencing Procedure Act, the court is required, first, to set a non-parole period, and, second, to set a balance of term. However, too literal an approach to the section is to be avoided. A distinctly two-step or sequential approach is not mandated: see R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [111] - [112]; R v Hampton (1998) 44 NSWLR 729.

40 The approach dictated by the current version of s44 is parallel to that dictated by s5 of the Sentencing Act. That section was the subject of detailed analysis in R v Moffitt (1990) 20 NSWLR 114. In Moffitt it was held that the purpose of a finding of special circumstances under s5 of the Sentencing Act was to enable the court to provide a benefit to an offender by the reduction of the non-parole period at the expense of the parole period, and that it was not intended that such a finding would have the effect of extending the total sentence. 41 In all versions of the statute, the parole period, or balance of term, must be not more than one third of the non-parole period, unless the court determines that there are special circumstances for its being so, which circumstances must be explained. The original purpose in enacting a "statutory norm" with respect to the proportion between the total sentence and the non-parole period was to ensure that offenders spent longer in custody for serious crime: see Moffitt, p119. It was intended to discourage judges from imposing sentences comprising an artificially, or unrealistically, low non-parole period. Through all of the changes to the statutory expression of the judge's task the "statutory norm" has never varied. It has remained the case that the "statutory norm" with respect to the proportion is 75% non-parole period: 25% parole period/balance of term (absent a finding of special circumstances). I do not understand the rationale for that "statutory norm" to have altered. Put simply, it remains the position of the legislature that, absent special circumstances, an offender ought to spend three quarters of the sentence in custody. It is for that reason that courts are required to explain any departure from the "statutory norm" that reduces the proportion of the sentence to be served in custody, but are not required to explain the imposition of sentences that increase that proportion. I had occasion to consider the correct approach to the current version of s44 in R v Huynh [2005] NSWCCA 220 and in R v Tobar [2004] NSWCCA 391; 150 A Crim R 104. I considered (and consider) that the reasoning in Moffitt continues to apply. 42 The apparent emphasis on the non-parole period, evident in the current version of s44, has potential to deflect attention from the total term of the sentence. But it is important that a sentencing judge maintains a clear focus upon the overall sentence that he or she is imposing: parole is not a right and is by no means automatic. An offender may well serve the whole of his sentence in custody. The total sentence is no less important than the non-parole period. 43 The introduction of the standard non-parole period legislation has cast even greater emphasis upon the non-parole period. It is almost inevitable that a judge sentencing under that legislation will begin the exercise with a consideration of the standard non-parole period. There is nothing erroneous about so doing. But, again, attention needs also to remain focussed upon the ultimate total term. Particularly where special circumstances are found, to begin by determining the non-parole period has potential to distort the process by an extension of the balance of term rather than a reduction of the non-parole period. 44 That the non-parole period is now, by s44(1), required first to be set does not necessarily mean that it must first be determined: see Moffitt, p 122, R v P [2004] NSWCCA 218; R v Tobar. Indeed, in the light of the discretion conferred by subs(2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin a sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffitt and cases thereafter to be the correct course, to reduce the non-parole period. 45 The course of legislative amendment has, in my opinion, been apt to create confusion in the sentencing process. So also has the language of the statutes, as least since s5 of the Sentencing Act. The language of that section, and of both versions of s44, tends to suggest (contrary to what was held in Moffitt and has been repeated), at least to a literal mind, that either the minimum term (s5), the total term (s44, version one) or the non-parole period (s44, version two) must first be determined. That effect has been increased by the introduction of standard non-parole periods. 46 Here, as I have noted above, the balance of term was significantly less that the one third specified by the statutory ratio. The argument advanced on behalf of the applicant was that, as the judge declined to find special circumstances, he ought (but did not) to have preserved the statutory ratio. If that had been his intention he could have achieved it by - · increasing the parole period; or · decreasing the non-parole period. In the light of his express finding that eight years was the minimum time the applicant should spend in custody, the latter was not a realistic alternative. In not preserving the statutory ratio, he gave the applicant the benefit of a shorter balance of term.

47 The potential error that I have identified would be brought about by acceptance of the argument advanced on behalf of the applicant. If, as has been suggested, the judge had sequentially: (i) determined the non-parole period; (ii) found special circumstances; and (iii) determined the total term of the sentence (preserving the statutory ratio), he would, inevitably, have imposed a head sentence greater than one third of the non-parole period - resulting in a longer total term than he considered appropriate. Maintaining the statutory norm, even in the absence of a finding of special circumstances, would have had the same result. 48 Here, the sentencing judge did, indeed, first determine the non-parole period: he stated expressly that eight years is the minimum term that ought to be served. That was precise compliance with s44(1). The judge avoided falling into the error of extending the balance of term to a sentence beyond proper limits, if for no other reason than as a result of his declining to find special circumstances. His Honour also correctly (without articulating reasons for so doing) avoided setting an excessive head sentence by reducing the balance of term to less than one third of the non-parole period. This, as I have explained above, he was quite entitled to do. The process by which he sentenced the applicant did not produce any error. 49 I would reject this ground of appeal.

Ground 3 50 It remains to consider whether the sentence imposed was, as was submitted, manifestly excessive. In support of this ground counsel relied upon a number of circumstances. These included: · that, whilst the offence was clearly serious, it was opportunistic and lacking in planning; · the early plea of guilty; · the applicant's resolve to receive and accept counselling and treatment for his "psychological condition"; · the applicant's prospects of rehabilitation; · that the applicant was serving his first custodial sentence (as to which, see above). 51 The task for this Court (and of course for the applicant) is made more difficult by reason of the absence of any determination of where, in the range of objective gravity, this offence stands. His Honour clearly (and properly) regarded the offence as objectively serious. 52 Without expressly saying that he did and without saying why, he found reason for departing from the standard non-parole period of 10 years. The plea of guilty was reason enough for that: Way. 53 I would infer that his Honour considered the applicant's offence to be greater than an offence in the mid-range of seriousness of offences against s61J. I would not disagree with such a conclusion. 54 Extrapolating from the sentencing judge's expressed intention to discount the sentence by 20 - 25% by reason of the plea of guilty, counsel submitted that the starting point for the head sentence was between 13 years and one month and 13 years and four months; this against a statutory maximum penalty of 20 years. Counsel also relied upon statistics from the Judicial Commission. From the statistics it may be accepted that the sentence was a relatively heavy one. However, I am unable to conclude that it was so heavy as to be outside the range legitimately available. It follows that, while I would grant leave to appeal against the sentence, I would dismiss the appeal. 55 PRICE J: I agree with the reasons and orders proposed by Simpson J.

22/02/2007 - Date of Probation and Parole Act 1983 corrected. - Paragraph(s) 33 08/02/2008 - Edit error - replace "not less that" with "not more than" - Paragraph(s) 41

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