The significance of the misstatement of the maximum penalty and the standard non-parole period
40The sentencing judge first referred to the maximum penalty of 20 years and the standard non-parole period of 5 years at the commencement of his sentencing remarks when reciting the particulars of the conspiracy charge. He did not refer to the maximum penalty again other than noting, later in his sentencing remarks, that both the maximum penalty, together with the standard non-parole period, operated as a legislative guidepost, as mandated by the High Court's decision in Muldrock v R [2011] HCA 39; 244 CLR 120 at [27]. Treatment of the maximum penalty as a factor which, when taken and balanced with all other relevant factors, operates as a yardstick against which an appropriate sentence might be measured, is consistent with what the High Court in Markarian v R [2005] HCA 25; 228 CLR 357 identified as an uncontroversial statement of primary sentencing principle.
41As noted above at [10] it is similarly well recognised that the maximum penalty for a substantive offence can function as a useful guide (or yardstick) when sentencing for a conspiracy to commit that offence. Approached in this way, I am not persuaded his Honour's treatment of the maximum penalty on the conspiracy charge as statutorily fixed at 20 years could be said to be productive of error in the imposition of sentence. Although the applicant did not seek the intervention of this Court on this basis, I am confidently of the view that after applying the discount for the plea of guilty a sentence of imprisonment for 6 years for the conspiracy was within his Honour's sentencing discretion, having regard to the scope and object of the conspiracy, the length of time over which it operated and the degree of planning involved in breaking into commercial premises with the objective of stealing a considerable quantity of valuable property. As Simpson J observed in Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at [83] it is the organisational nature of a conspiracy and the interrelationship between the various participants, rather than an identification of the role of a particular conspirator by reference solely to the physical acts performed by that person, that is of primary importance when sentencing for a conspiracy.
42In considering the impact on sentence of what his Honour erroneously believed to be a standard non-parole period of 5 years on the conspiracy charge, it is instructive to set out in full the way his Honour approached the issue:
Of course I am sentencing the offender after a plea of guilty and I am sentencing the offender of course in the context of the decision of the High Court in Muldrock v R which reflected upon the judgment of the Court of Criminal Appeal in R v Way (2004). It noted, amongst other things (between [16] and [29]) the fact that the fixing of a non-parole period is but one part of the larger task in passing appropriate sentence upon the particular offender, fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end point in framing a sentence to which Div 1A applies. I note of course amongst many other matters raised in Muldrock, and discussed in subsequent cases to which I will refer in a moment, that the High Court held that a consideration of s 21A in the context of Pt 4 Div 1A requires an approach that is consistent with the approach to sentencing described by McHugh J in Markarian v R. The judge is required to identify all the factors that are relevant to the sentence, discuss their significance and then make a valued judgment as to what is the appropriate sentence given all the factors of the case...
43His Honour then proceeded to position the conspiracy within the mid range of objective seriousness referable to the features to which I have already referred. His Honour also took into account the applicant's recruitment of others into the conspiracy and that special equipment had been purchased to achieve the objective of forcing entry to the premises and, as aggravating factors under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999, that the conspiracy was committed whilst the applicant was subject to conditional liberty and that he was motivated by the prospect of considerable financial gain.
44There being no standard non-parole period applicable to the conspiracy charge, his Honour was not obliged to make an assessment of where within a range of objective gravity or seriousness the offence was located and, in that sense, he has taken into account an irrelevant consideration in his reasoning process. The question remains, however, whether that triggered the operation of s 6(3) of the Criminal Appeal Act. In my view it did not.
45Although, as Davies J recognised in Butler v R [2012] NSWCCA 23 at [23], there remains a doubt as to whether, after Muldrock, a court is required or permitted to classify, or is prohibited from classifying an offence to which a standard non-parole period applies by reference to low, middle or high range objective seriousness, there was nothing in Muldrock to suggest that a conventional assessment of the extent or degree of objective offending for sentencing purposes should be avoided or, as I see it, whether it can be avoided.
46In Stewart v R [2012] NSWCCA 183, the degree of specificity with which a sentencing court should determine the degree of objective seriousness in order to permit the appropriate treatment of the standard non-parole period remained unresolved, McClellan CJ at CL at [40] concluding that in order to resolve the issues on that appeal it was not necessary to reach any settled view. His Honour did however expressly agree at [41] with the observations of Johnson J (in dissent) in R v Ehrlich [2012] NSWCCA 38 at [86] where his Honour observed that an assessment of objective gravity was an important element of the process of the instinctive synthesis of the relevant factors in the exercise of a sentencing discretion in the process of imposing a proportionate sentence.
47In this case, I have no doubt that the sentencing judge's reference to the degree or extent of objective seriousness referable to "a range" was directed to that legitimate sentencing objective (albeit framed in the context of a standard non-parole period).
48After rejecting the applicant's explanation for his involvement in the conspiracy as untrue, and concluding that little could be said in his favour in mitigation, in particular that he was unable to conclude that the applicant had good prospects of rehabilitation or that he was unlikely to reoffend given his criminal history, his Honour went on to say:
...I approach the matter as the High Court has decreed in Muldrock. The standard non-parole period is a guidepost but not the definitive determinate of what the appropriate non-parole period should be or what the total sentence should be but provides some assistance or guidance. In any event, I have concluded in relation to that offence, bearing in mind I am required, as the authorities make clear, to fix a non-parole period in relation to it, that there are special circumstances which require an adjustment of the relationship of the non-parole period to the balance of the sentence.
49The applicant cited Diesing v R [2007] NSWCCA 326 as authority for the proposition that where a sentencing judge has imposed sentence referable to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act, in circumstances where no standard non-parole period applied, the sentence will invariably be infected by error necessitating resentence. In support of that submission he placed particular reliance upon Latham J's observation at [59] that this Court had, by that time, recognised an upward trend in sentences imposed for offences carrying a standard non-parole period, even where there were factors justifying a departure from it. Her Honour also observed that the notional range of sentences for a mid range offence where a standard non-parole period applies will generally be higher than those where there is no standard non-parole period, in each case (as the law applied at that time) because the sentencing judge was obliged to have regard to the standard non-parole period when fixing an appropriate sentence.
50While her Honour's analysis of sentencing trends pre-Muldrock was well supported by the experience of this Court and sentencing statistics, it does not, in my view, necessarily lead, in this case, to the conclusion that his Honour's reference to a standard non-parole period of 5 years post Muldrock was productive of a sentence outside a discretionary range. To the contrary. Because of the way his Honour approached sentence, which was an exemplar of the approach mandated by Muldrock, his Honour did no more than take the standard non-parole period into account as providing some assistance or guidance as to what a non-parole period should be in the context of the total sentence. It cannot be gainsaid that he gave it preponderant weight. In my view, after a finding of special circumstances, a non-parole period of 3 years for the conspiracy charge was not only an available sentencing outcome but one that is reflective of a generous measure of leniency.
51The orders I propose are:
- Leave to appeal granted.
- Appeal dismissed.
52BEECH-JONES J: I have had the benefit of reading the draft judgment of Fullerton J. Ordinarily a reference by a sentencing judge to a standard non-parole period where none is prescribed would represent a strong start for an applicant for leave to appeal in seeking to establish error. This is still the case post the decision in Muldrock v R [2011] HCA 39; 244 CLR 120, especially as the High Court noted that it may be that for some offences the effect of the introduction of standard non-parole periods will be a "move upwards in the length of non-parole period[s]" (at [31]). However in this case the matters pointed to by Fullerton J have persuaded me that the references by the sentencing judge to the existence of a standard non-parole period of five years where there was none had no material impact on the sentence his Honour determined, namely a non-parole period of three years with an additional term of three years. In any event the matters canvassed by Fullerton J concerning the circumstances of the offence, the subjective case of the applicant and the findings of the sentencing judge lead me to conclude that no lesser sentence was warranted even if error had been established (cf s 6(3) of the Criminal Appeal Act 1912).
53I agree with the orders proposed by Fullerton J.