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.