REGINA v SIMPSON

3 The scope of the considerations relevant to the determination of special circumstances encompasses the full range of issues that are relevant to the determination of the minimum period of actual incarceration.

4 Section 44(2) operates as a "fetter" or "constraint" on the exercise of the sentencing discretion. R v GDR (supra) referred to. The decision required is, firstly, one of fact (to identify the circumstances) and, secondly, one of judgment (to determine whether those circumstances justify a lower proportion between the head sentence and the non-parole period).

per Sully J 5 Before any question of special circumstances arises, a correct balance between the proper head sentence and the proper non-parole period must be determined. It is only in the case where the resulting proportion is less than three-quarters that it is necessary to either redetermine the head sentence and non-parole period, or to identify the special circumstances justifying the reduction of the non-parole period.

B Giving of reasons under s44(2) per Spigelman CJ; Mason P, Grove J, Sully J and Newman AJ agreeing 6 There is no obligation to give reasons for not varying the statutory relationship in s44(2) of the 1999 Act. R v Bo Too (NSWCCA, 16 July 1992, unreported) discussed; R v Astill (No 2) (1992) 64 ACrimR 289 approved.

7 His Honour expressly referred to special circumstances. There was no error or ambiguity in his Honour's reasons.

C Sentence appeals per Spigelman CJ; Mason P, Grove J and Newman AJ agreeing 8 On its proper construction, s6(3) of the Criminal Appeal Act 1912 requires an appeal court to form the opinion that another sentence is "warranted in law " and "should have been passed" before it is possible to quash the sentence imposed and pass another in substitution. Section 6(3) further requires the identification of error. Dinsdale v The Queen (2000) 202 CLR 321 referred to.

per Sully J 9 Some error must be demonstrated before an appeal court becomes entitled to consider interfering with the sentence passed at first instance under s6(3) of the Criminal Appeal Act . R v Vachalec [1981] 1NSWLR 351, R v Visconti [1982] 2 NSWLR 104 referred to.

per Spigelman CJ; Mason P, Grove J, Sully J and Newman AJ agreeing 10 In this case the sentences imposed by his Honour were appropriate.

Decision Leave to appeal against sentence granted. Appeal dismissed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60791/00 SPIGELMAN CJ MASON P GROVE J SULLY J NEWMAN AJ

Wednesday 19 December 2001 REGINA v Neil Andrew SIMPSON

Judgment 1 SPIGELMAN CJ: The Applicant pleaded guilty to seven counts of obtaining money by making a false statement contrary to s178BB of the Crimes Act 1900. The maximum sentence for such an offence is five years imprisonment. On 10 October 2000 in the Penrith District Court before his Honour Judge Gibson QC the Applicant adhered to his pleas and asked his Honour to take into account a further twenty-five offences against s178BB on a Form 1. All of the counts in the indictment and all of the offences on the Form 1 were in basically similar terms. Each involved loan applications to banks containing material particulars which were false to the knowledge of the Applicant. His Honour imposed a fixed term of two years for Counts 1-6 and, for Count 7, a term of three years and six months with a non-parole period of two years and seven months. 2 The Applicant committed the offences by obtaining loans from three different banks, the Colonial State Bank, Westpac Bank and St George Bank. He did so by using a number of false names under which he passed himself off by using false and forged documents. There was some dispute between the Crown and the Applicant before the sentencing judge as to the total amount that he had obtained in this manner. His Honour did not find it necessary to determine a precise amount. He held that it was between $140,000 and $220,000 and correctly concluded that this was a substantial amount. It gave a particular level of gravity to the objective seriousness of the offences. 3 The offences indicated a substantial degree of planning over a long period of time. The Applicant manufactured documentation to enable him to pass himself off to bank staff under a range of false identities. 4 After his arrest and plea of guilty there was a long period of delay before sentencing. This arose by reason of the fact that the Applicant made allegations against a number of serving and former police officers as to their involvement in these and similar offences. The investigation into these allegations took some time.

Remarks on Sentence 5 The sentencing judge referred in his remarks on sentence to the subjective circumstances of the Applicant. Those circumstances were unremarkable. As is usual, the information before the Court was based on the Applicant's own assertions as provided, in this case, to an officer of the Probation and Parole Service for purposes of a report and also to a clinical psychologist. 6 The Applicant referred to a motor vehicle accident in 1995 in which he was injured. Thereafter, he said, he began to consume large amounts of alcohol and engage in excessive gambling. It was during this period that he came into contact with some police officers who informed him of a scheme to defraud banks. He asserted that he became involved with these police officers in such conduct and, after a period of time, began to act in this way on his own. His Honour referred to all of these matters, and to the contents of the two reports. The general thrust of those reports was to affirm the Applicant's commitment to overcome his drinking and gambling problem. This was confirmed by a further report presented to this Court from the Alcohol and Other Drugs Unit of the Department of Corrective Services. 7 On the basis of the subjective material before the court his Honour concluded that the Applicant had "good prospects of rehabilitation". 8 In his remarks on sentencing his Honour made reference to the absence of any reparation. His Honour noted that the Applicant had saved a sum of $60,000 but noted that there was no attempt or offer to repay the banks which he defrauded. 9 His Honour also referred to the issue of assistance to the police and concluded: "The onus of proving matters of mitigation rests upon the prisoner. The prisoner has on a prior occasion in 1989 been involved in a charge of public mischief made in respect of allegations against officers of Parks and Wildlife. I have read the transcript of the interview he had with the police … I do not feel that it is my function to make a finding concerning the allegations made against other people in this matter. What I have to decide is whether he is entitled to mitigation for information given to the police. There is nothing from them to indicate that it was of assistance. Of course, it does not matter that nothing comes of the information. However, it seems to me that to make a finding that it was in mitigation it must be shown that the information given must be obtained at a time in the investigation to enable it to be properly investigated. That time may vary and information that comes years later may be of vital importance. It may be of no value within hours. Looking at the information which he says he had at the time of his arrest and which he deliberately delayed for two years and what happened at the subsequent investigation, it was at the time it was handed to the police of little value and by way of mitigation small, and that is the amount of mitigation I will give it in the circumstances of this case." 10 His Honour indicated that he would take into account the utilitarian value of the plea but did not quantify the amount. 11 Of particular significance in the present case is his Honour's reasoning with respect to the subject of "special circumstances" and whether a shorter non-parole period should be fixed than by the application of the statutory relationship. Issues have arisen as to what matters his Honour took into account and whether his reasons were adequate. 12 The structure of his Honour's remarks on sentence were to outline the objective circumstances of the offence, then to outline the subjective material put before the Court, then to consider what, if any, mitigation for assistance should be given. Immediately after the passage on the latter subject that I have extracted above, his Honour said: "I see no reason to find special circumstances in this case." 13 His Honour then went on to say, immediately after that sentence: "This was not an isolated event but of course conduct over an extended period of time. It requires, in my view, a custodial sentence, not just to deter him but also to deter any like-minded person." His Honour continued: "Taking all the matters above-mentioned in mitigation into consideration, including the utilitarian value of the plea, and taking into consideration the twenty-five matters on the Form 1 …"

His Honour then imposed the sentence for Count 7 in respect of which he took into consideration the matters on the Form 1. His Honour said that this sentence "will encompass the totality of his criminality in relation to all charges". His Honour went on to impose fixed terms for the other six counts "because a non-parole period would be ineffective".

Submissions on Appeal 14 In submissions to this Court, Mr Game SC, Counsel for the Applicant suggested that this approach was not consistent with the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. No complaint, however, was made in the appeal in this regard. 15 There was no significant differentiation between the nature of the offending with respect to any of the seven counts. However, it was Count 7 with respect to which the Form 1 offences were to be taken into account. The sentence for Count 7 was necessarily higher than the sentence for the other counts. I see no reason why the result is not compatible with Pearce but this does not need to be determined. 16 Two matters were highlighted in the submissions as indicating error. It was submitted that his Honour gave little weight to the plea and, specifically, that he failed to quantify the utilitarian value to which his Honour referred (see R v Thompson & Houlton (2000) 49 NSWLR 683 at [160]). Counsel noted that at the time the plea was entered, some ten other offences charged were no-billed and, accordingly, it was suggested that something close to the maximum discount identified in Thompson & Houlton was appropriate. 17 The Applicant also submitted that the trial judge should have made a finding of special circumstances and that the brief treatment of this issue in the remarks on sentence constitutes a significant inadequacy in his reasons. Reliance was placed on the evidence concerning the subjective circumstances of the Applicant including the pre-sentence report, the evidence of the psychologist and the evidence of the Applicant's father. It was submitted that the finding of special circumstances ought to have been made and there was legal error in the failure to do so. Alternatively, his honour failed to give proper reasons in this regard and this would justify this Court intervening.

Special Circumstances 18 This application for leave to appeal was originally listed before a three judge bench. When the matter was first heard an issue of principle arose on which, it was submitted, there were differing views expressed in the judgments of this Court relating to what facts and matters were capable of constituting "special circumstances" for the purposes of s44 of the Crimes (Sentencing Procedure) Act 1999 ("the 1999 Act"). Reference was made to the reasons of Sperling J, when sitting in a two judge bench of the Court in R v Hameed [2001] NSWCCA 287. His Honour contrasted what his Honour identified as "the strict approach" to s44 from what his Honour called a "liberal view" to s44. The Court before which this issue arose originally decided that the matter should be referred to a bench of five (see R v Simpson [2001] NSWCCA 297). 19 Section 44 of the 1999 Act states: "44(1) When sentencing an offender to imprisonment for an offence, a 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. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decision. (4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence." 20 Section 44 replaced s5 of the Sentencing Act 1989 ("the 1989 Act") which 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 the 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) If a court sets an additional term that exceeds one-third of the minimum term, the court is required to state the reason for that decision. (4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the court for the offence." 21 As was noted in R v Carrion (2000) 49 NSWLR 149 at [15] and R v Qutami [2000] NSWCCA 353 at [15] the change in approach reflected in the 1999 legislative scheme did have effects upon the previous decisions of the Court. 22 Prior to the Sentencing Act 1989 this matter was the subject to statutory provision in the Probation and Parole Act 1983 ("the 1983 Act"). It provided: "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). … (21) … (3) Notwithstanding section 20A, a court or the Board, when specifying a non-parole period with respect to a serious offence, may specify a shorter period than that required by section 20A, but only if it determines that the circumstances justify that course. (4) If a court or the Board specify such a shorter non-parole period, it shall state the reasons for doing so." 23 As can be seen, the 1983 provision referred only to "circumstances" rather than "special circumstances". However, this Court had held that circumstances which justify reduction of the non-parole period below three quarters should be "exceptional" or "special or exceptional". (See e.g. the references in Griffiths v The Queen (1989) 167 CLR 372 at 276-377.) 24 The issue that appears to have arisen is whether or not a finding of special circumstances must be based exclusively, or primarily, on a finding that in the circumstances of the case it was desirable that an offender be subject to an extended period of supervision on parole. A decision that special circumstances exist does have the consequence of increasing the period that would otherwise be spent on parole. It also, however, has the consequence of reducing the period that must be spent in detention. 25 What approach is to be adopted appears to me to be simply a matter of perspective, equivalent to asking whether a bottle is half full or half empty. Nevertheless, the difference appears to be regarded as capable of having practical consequences. 26 The Crown submissions to this Court conceded that "special circumstances" could not be confined to cases in which a longer period of supervision was required. It did, however, submit that the vast majority of cases would be of that character. The Applicant's submission was that the 1999 Act did not require a primary, let alone an exclusive, focus on the purposes of parole. The Crown submitted that the authorities did not suggest that Sperling J's characterisation of a "strict" versus "liberal" approach was appropriate. 27 In Hameed, Sperling J said at [53]: "Some of the authorities state that the only relevant consideration is the need for a longer period under care and supervision on parole than would otherwise be the case for the purpose of rehabilitation. I will call this 'the strict approach'." 28 His Honour's reference to "the only relevant consideration" (emphasis added) is his Honour's interpretation of the effect of the reasoning in the cases to which he refers. No judgment uses that terminology. 29 The origins of what is said to be a narrow or "strict" approach to the scope of considerations which are relevant for the purposes of deciding that there should be a lower than statutory relationship between the non-parole period and the head sentence (previously between the minimum and additional terms), is said to be the judgment of Samuels JA in R v Moffitt (1990) 20 NSWLR 114. (See e.g. Hameed (supra) at [54]). In Moffitt Samuels JA said at 115G-116B: "It is unnecessary to attempt a comprehensive definition of 'special circumstances'; but the general character and scope of the phrase is determined by the statutory content of both language and purpose in which it appears. It must be assumed that s5 has the rehabilitative purpose (affirmed by Pt 3 of the Act) generally perceived to be advanced by a system of release on parole; and regards it as adequately achieved in the ordinary course by setting the period during which a sentence may be served on parole at no more than one-third of the preceding period of incarceration to be served for the same offence. This relationship is the statutory norm which may be varied if 'the court decides there are special circumstances'. 'Special circumstances' must therefore include those circumstances, particular to the prisoner, which justify increasing the statutory proportion which the additional term bears to the minimum term. The purpose of parole being rehabilitative, any extension of that part of a sentence to be served on parole (the additional term) by increasing the time during which the support and supervision of the parole system is available , must be designed to benefit the prisoner. It follows that 'special circumstances' must mean those circumstances which justify enlarging in the prisoner's favour the existing rehabilitative purpose of section 5. (Emphasis added) " 30 It would have come as a great surprise to Samuels JA to learn that his approach to the construction of s5 was restrictive or "strict". His Honour went on immediately to state: "I can see no grounds for reading the phrase 'special circumstances' in any more restrictive way." (At 116C) 31 In my opinion his Honour's reference to "increasing the time during which the support and supervision of the parole system is available" was not intended to identify the sole perspective from which "special circumstances" must be assessed. 32 His Honour went on to distinguish expressly the purpose of s5 of the 1989 Act from what he described as "the solely punitive purpose" of s20A of the 1983 Act, which was discussed by the High Court in Griffith v The Queen (supra). He went on to note that the use of the word "exceptional" in the authorities referred to in that case for purposes of identifying the kinds of "circumstances" which would satisfy the form of s20A was not appropriate for the new s5 by reason of its rehabilitative purpose. His Honour said that "circumstances of less moment may suffice" in the case of s5 of the 1989 Act, than those which appear to have been required under s20A of the 1983 Act. 33 The scope of considerations which his Honour regarded as relevant to the determination, in a particular case, that a non-parole period should be lower than the statutory proportion is made clear in the next passage of his Honour's reasoning at 116E-G: "In determining whether there are special circumstances justifying a proportionate increase in the additional term the court must consider all the relevant circumstances; that is to say … all the factors which the prisoner's overall situation exhibits and which in combination make the case special and bear upon the suitability of a longer than normal additional term. … There seems to me to be no basis for reading the provisions so as to exclude from the category of 'special circumstances' factors which might already have been considered in determining the minimum term. … the Act now entails that all facts relevant to the sentence to be imposed must be considered for the purpose of fixing a minimum term." 34 The second reference given by Sperling J in Hameed at [54] as constituting the "strict approach" in Moffitt is the judgment of Badgery-Parker J at 136 where his Honour referred at 136C and 136D to "a longer period of supervision" is "needed" or "warranted". 35 Again, however, the context in which these references appear suggests strongly that his Honour's intention was to adopt an expansive rather than a "strict" approach. His Honour said at 135G-136D: "It is a matter of mathematical fact that the result of the formula used in s20A of the Probation and Parole Act to express the relationship between non-parole period and head sentence and the formula in s5(2) of the Sentencing Act, expressing the relationship between minimum term and additional term, are the same. This tends to direct one's attention, in construing s5(2), to the judgments in R v Griffiths: (Court of Criminal Appeal, 23 March 1989 and 21 September 1989, unreported); (High Court) Griffiths v The Queen (1989) 167 CLR 372. The judgment of the Court of Criminal Appeal emphasised that s20A was intended to be punitive in its effect, and to lay down a prima facie rule as to the proportion between non-parole period and head sentence, from which a sentencing judge was at liberty to depart only in the case of special or exceptional circumstances. The High Court endorsed that view. It seems to me that the different structure of s5(2) of the Sentencing Act leads to a different conclusion; so too does the legislative history. Section 20A was avowedly introduced to 'toughen up' sentences in the case of serious crimes only. It was engrafted onto an existing system for that purpose. The object of the Sentencing Act was not to increase sentences - s3 spells out the objective expressly. The requirement for a fixed proportion between minimum term and additional term is not limited to serious offences only, but is of general application. That being so, and noting that a different form of words has been chosen to express the circumstances in which a sentencing judge may depart from the prima facie rule, I am of opinion that while a judge should adhere to the one-third rule unless clear reasons appear to the contrary, the finding of clear reason in a particular case would justify departure from it. It will not be every case where a judge believes that a longer period of supervision is needed that will amount to special circumstances. A judge may not give rein to his own personal philosophy that short periods of incarceration followed by long periods on parole should be the norm. If, however, it can be seen in an individual case that for reasons which can be identified in the facts of the individual case, a longer period of parole supervision is warranted than would be provided by adherence to the one-third rule, the judge is entitled to regard that as a special circumstance justifying a departure." 36 It is by no means clear that his Honour intended the reference to "a longer period of parole supervision" to be a statement of the only circumstances in which a finding of "special circumstances" was able to be made. Indeed, his Honour went on immediately to say at 136D-E: "Furthermore, it is clear that the legislature contemplated an additional term equal to one-third of the period of incarceration. In my view, where the period of incarceration is, as it must be in the present case, accumulated to some extent on an earlier sentence, that may of itself constitute a special circumstance justifying departure from the prima facie rule." This is not necessarily related to the desirability of a "longer period of parole supervision". However, accumulation may require adjustment of a single sentence to re-establish the statutory proportion for the actual total sentence. 37 The reasoning in Moffitt, which I have quoted above, indicates that the Court thought that a less restrictive approach was warranted under the 1989 Act than had been adopted under the 1983 Act. Accordingly, it would be surprising if their Honours identified a narrower range of relevant considerations than the High Court adopted in Griffiths with respect to the 1983 Act. 38 In Griffiths, Brennan and Dawson JJ said at 379: "[The Court of Criminal Appeal] correctly observed that particular circumstances may subject an offender to unusual hardship and may be exceptional enough to bring s21(3) into play: for example, the offender's health, the nature of the particular offence or the fact that the offender has informed on other offenders. These are factors which are peculiar to individual offenders and are out of the ordinary. Whilst particular factors peculiar to an individual offender may make a case special or exceptional, in our view they do not exhaust the circumstances which can justify the specification of a shorter parole period under s21(3). The Court of Criminal Appeal appears to have taken a contrary view and, in doing so, to have fallen into error in this case. Although there is no particular factor to which an offender can point which of itself would justify a shorter non-parole period, his overall situation might exhibit a number of factors which in combination make the case exceptional and bear upon the suitability of a shorter than normal non-parole period. The power conferred by s21(3) may properly be exercised in such a case. In the present case, all the offences were committed within little more than a month; the applicant was only twenty-one years of age without any history of serious criminal activity; he was affected by drugs when he committed the offences, although his addiction to drugs was recent and, apparently, short lived; his confession of guilt and co-operation with the police suggest that the offences were episodic rather than the manifestation of any ingrained criminal tendencies; he had a better than average prospect of rehabilitation. Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances. It appears to us that the Court of Criminal Appeal failed to evaluate the combination and so failed properly to consider matters which were relevant to the existence of a discretion under s21(3)." 39 The list of relevant considerations in the joint judgment of Brennan and Dawson JJ, being the second paragraph of the above extract, was specifically referred to in the other judgments of the Court in terms that, on remission to the Court of Criminal Appeal, this Court would take into account all the circumstances including the matters referred to in that paragraph of the joint judgment of Brennan and Dawson JJ. (See Deane J at 388 and Gaudron and McHugh JJ at 397.) 40 Furthermore, at 392 Gaudron and McHugh JJ said that: "… it is the totality of the circumstances which must 'justify' the exercise of the power conferred by s21(3) to reduce the non-parole period specified by s20A." 41 Similarly, at 396 their Honours referred to the Court being entitled to take into account "all relevant subjective and objective factors" when exercising the power conferred by s21(3) to specify a shorter period than that required by s20A. 42 The reasoning of the High Court in Griffiths, albeit with reference to the 1983 Act, is inconsistent with the adoption of the longer than usual period of supervision perspective as the sole perspective for the determination of "special circumstances". I do not believe that the judgments in Moffitt intended to adopt such a proposition. 43 The next judgment identified by Sperling J in Hameed adopting the "strict" approach is that of Hunt CJ at CL in R v Phelan (1993) 66 ACrimR 447. His Honour said at 449: "What does constitute a matter as a special circumstance within the meaning of s5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole." 44 It is, however, necessary to set out the whole of the passage in which this sentence appears. When this is done it is by no means clear that his Honour was intending to restrict the scope of matters capable of constituting "special circumstances" only to matters that could be described in that manner. The whole of the passage is at 449-450: "To accept that these matters - taken either singly or in their totality - constitute special circumstances within the meaning of s5(2) would effectively remove the adjective 'special' from the subsection. 'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance within the meaning of s5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration. Such will often be the case with young offenders who are facing their first custodial sentence. Those statements are taken from the judgments of this Court in Moffitt (1990) 20 NSWLR 114 at 121, 132, 136; 49 ACrimR 20 at 26-27, 38, 41-42. The necessary consequence of a decision that a longer than usual additional term is necessary or desirable is that the minimum term must be shorter than it otherwise would have been: Moffitt (at 118, 121, 134-135; 24, 27, 40-41). But the starting point is the need or the desirability of a longer than usual additional term, not the need or the desirability of a shorter than usual minimum term. These statements do not, of course, limit what may constitute special circumstances within the meaning of s5(2 ). I referred to some other matters which may constitute special circumstances in Close (1992) 65 ACrimR 55. They are many in number and nature, and I would not want to be thought to have intended to circumscribe the width of the expression which s5(2) has used ." (Emphasis added in last paragraph) 45 Hunt CJ at CL stated expressly that he did not intend "to circumscribe the width of the expression" "special circumstances". Whilst his Honour did expressly adopt the perspective of 'a longer than usual period of supervision on parole' it appears to me that his Honour was identifying the most common, rather than an exclusive, perspective. 46 The third case to which Sperling referred in Hameed as adopting the strict approach was R v Morrissey (NSWCCA, 15 July 1994, unreported). However, in that case the Court expressly said that the full range of subjective considerations was capable of constituting special circumstances. Their Honours said that an additional term of only one third will be found to be inappropriate "usually" only where "effective rehabilitation … requires … a longer period of supervision". The Court was not propounding this perspective as an exclusive one. 47 Similarly, in R v Edigarov [2001] NSWCCA 436, Wood CJ at CL at [52] referred to the reduction of the statutory proposition as "in most cases being referrable to the need for an extended period of post release supervision, or for access to some form of treatment which is not readily available within the prison system" (emphasis added). Again, his Honour was not propounding an exclusive criterion. 48 The issue came before this Court constituted by five judges in R v GDR (1994) 35 NSWLR 376. The Court comprised Gleeson CJ, Mahoney JA, McInerney, Badgery-Parker and Dunford JJ. It is to the joint judgment in GDR that this Court must give primary attention on this appeal. In my opinion, that judgment indicates that whilst the perspective involved in approaching the determination of special circumstances from the point of view of a longer than usual non-parole period is a permissible one, it does not constitute an exclusive perspective. 49 In GDR the Court deprecated the use of the expression "statutory norm", with respect to the relationship for which s5 provided, as diverting attention from the task of construing and applying the 1989 Act in accordance with its terms (see 379B). The use of the terminology "statutory norm" had diverted attention from the fact that the statutory prescription "… is about setting additional terms in excess of a certain amount; it is not about setting additional terms less than a certain amount" (at 379F and see 380F). 50 The Court referred to the statutory provision as "a statutory fetter upon the sentencing discretion" (at 379E). The Court concluded at 381G-382B: "2 Section 5(2) is a statutory provision which constrains a sentencing judge's exercise of discretion. The language of the provision is clear. The additional term must not exceed one-third of the minimum term unless the court considers that there are special circumstances. The statute does not provide that the additional term must not be less than one-third of the minimum term. 3 The discretion of a sentencing judge who would otherwise be minded to set an additional term exceeding one-third of the minimum term is constrained by s5(2). There is nothing in s5 which constrains the discretion of a sentencing judge in relation to setting an additional term less than one-third of the minimum term." 51 Of particular significance is the breadth of the facts and matters capable of constituting special circumstances which the Court treated as being open. The Court said at 378C-D: "The features of the present case which were said to constitute special circumstances were as follows. First, the applicant will serve his sentence in protective custody. Secondly, this is his first term of imprisonment. Thirdly the applicant surrendered himself to the police, fully admitted his guilt, and in due course pleaded guilty. It would have been open to the sentencing judge, in the exercise of his discretion, to regard those circumstances, in combination, as special circumstances within the meaning of s5(2) . However, his Honour was not bound to do so, or to respond to the circumstances by setting an additional term which was in excess of one-third of the minimum term." (Emphasis added) 52 Nothing in this passage suggests that the joint judgment approached the question of special circumstances exclusively from the perspective of the desirability of a longer than usual period on parole. That is a permissible perspective (see e.g. GDR at 382C). However, the express acceptance of all of these matters, including for example the harsher than normal circumstances of incarceration by reason of protective custody, suggests that it is not the only perspective permissible. 53 It is unnecessary to review the numerous authorities in which this Court has made reference to "special circumstances". The primary authorities said to reflect a "strict approach" do not, in my opinion, reflect a difference as to the matters which may be taken into consideration in determining whether the "circumstances" are sufficiently "special" to warrant a variation in the statutory proportion. Rather, the differences reflect the wide variation in the range of legitimate opinion in the formulation of a discretionary judgment. 54 An analogous issue arose in judgments of this Court to the effect that a non-parole period should generally be fixed as a short period to permit the parole authorities to determine when the offender should be released on parole. (See e.g. R v Portolesi [1973] 1 NSWLR 105 esp at 107 and R v Sloane [1973] 1 NSWLR 202 at 206). The reasoning was based on the proposition that the purpose of a non-parole period was not to fix the minimum sentence to be served, so as to ensure that an offender did in fact suffer at least that degree of actual punishment. The Court gave primary weight to the rehabilitative purposes of parole. The approach to "special circumstances" which focuses on the longer than usual period under supervision, adopts a similar approach. 55 The High Court overruled this earlier line of authority in Power v The Queen (1973) 131 CLR 623. The joint judgment of four justices of the Court said: "The judge, in fixing a non-parole period, must, we believe, have regard not to the time within which the paroling authority must consider the prisoner's case but to the time for which the prisoner must remain in confinement." (At 627) And: "It is our opinion that the Act as a whole does not convert a sentence of imprisonment from a punishment into an opportunity for rehabilitation." ( Ibid )

And: "In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention." (At 628)

And: "… the legislative intention … [is] to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence." (At 629) 56 This approach has been affirmed in a number of subsequent joint judgments, including in a joint judgment of seven members of the High Court. (See e.g. Deakin v The Queen (1984) 58 ALJR 367; The Queen v Watt (1988) 165 CLR 474 at 481; Bugmy v The Queen (1990) 169 CLR 525 at 531; Leeth v The Queen (1992) 67 ALJR 167 at 169B.) This conclusion is reinforced, for present purposes, by the express provision in s44(1)(b) of the 1999 Act which identifies a non-parole period as "the minimum period for which the offender must be kept in detention in relation to the offence". 57 The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of "special circumstances" must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole. 58 The length of the non-parole period remains, however, of potential significance. Indeed, the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed percentage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases. It is not, however, the only perspective. 59 The words "special circumstances" appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power, which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected. 60 Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently "special", so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that "special circumstances" are made out on the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a "special circumstance". 61 The statutory proportion constitutes a 'fetter' or 'constraint' (to use the words of the Court in GDR, quoted above) on the exercise of what would otherwise be an unfettered and unconstrained discretion. It does not, however, alter the discretionary nature of the judgment for which the statute provides in s44(1)(b) of the 1999 Act, requiring the Court to fix a non-parole period, subject to s45 of the Act. 62 The issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting "special circumstances" of the requisite character, i.e. that it is capable of justifying a variation in the statutory proportion which the legislature has enacted. 63 More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence. 64 Counsel for the Applicant, submitted that considerations of general deterrence are of greater significance for setting a head sentence than for determining a non-parole period. He referred to Bugmy v The Queen (supra) at 531-532. I can see nothing in the High Court's reasons in Bugmy which supports that submission. Considerations of general deterrence are at least equally significant to both decisions which are, in any event, interrelated. Indeed the purport of the High Court's decision in Power was to reject the proposition that considerations of punishment and deterrence were of primary relevance to the determination of the head sentence and of lesser relevance to the specification of the non-parole period. 65 In addition to the need to identify and articulate "special circumstances", in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. (See R v Maclay (1990) 19 NSWLR 112 at 122G-123A; R v Morrissey (supra); R v McDonald (NSWCCA, 12 October 1998, unreported); R v Henry & Barber [1999] NSWCCA 107 at [76] per Simpson J.) As the High court said in Power (supra) at 628: "To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than a shorter time, is within that objective." 66 As Kirby P observed in R v Astill (No 2) (1992) 64 ACrimR 289 at 293: "If every circumstance, particular to the case of each prisoner, were determined to be 'special' for the purpose of s5(2) so as to authorise a ratio in excess of the one-third there prescribed, the whole scheme of s5 would be undone. By judicial legislation, the intention of Parliament would be subverted." 67 Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence. 68 I have indicated on other occasions my opinion that, in substance, it is artificial to approach this issue in two steps: first, making a preliminary finding that there are "special circumstances" and, thereafter, drawing a conclusion that those circumstances are such as to justify a lower than statutory proportion. (See e.g. R v Hampton (1998) 44 NSWLR 729 at 732F). I remain of that view. The only point in making a finding of "special circumstances" is to make the 'decision' for which s44 provides. By s44(2) the non-parole period is not to be less than three quarters of the head sentence "unless the court decides there are special circumstances for it being less". This qualificatory clause requires a 'decision' by application of the composite requirement that the "circumstances" be sufficiently "special" for the statutory proportion to be reduced. 69 Section 44 of the 1999 Act, like s5 of the 1989 Act, operates as a fetter or constraint on the exercise of the sentencing discretion. It operates to guide the discretion in a particular manner. However, the case law does not justify a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case. 70 The legislature has long required sentencing judges in New South Wales to impose a non-parole period (or its equivalent) as a fixed relationship to the head sentence, unless the circumstances were such that the sentencing judge believed it appropriate to have a lower proportionate relationship. This statutory guide or fetter or constraint operates in one direction. It is a hurdle to be overcome if a lower proportion than that for which the statute provides is to be determined. There is no hurdle for a sentencing judge if that judge wishes to impose a higher than statutory proportion. Indeed, at all times the sentencing judge has had a discretion to impose a fixed term without a non-parole period of any character (now found in s45 of the 1999 Act). 71 The express obligation, in addition to any common law requirement, in both the 1989 Act and the 1999 Act to set out reasons for varying the statutory proportion indicates that the Parliament requires the relationship to be as stipulated unless there exists what Badgery-Parker J identified in Moffitt at 136C as "clear reasons … to the contrary". 72 In the absence of the statutory proportion, the fixing of a non-parole period by a sentencing judge in New South Wales would, as in other States and Territories, involve an unfettered discretion. It would be open to challenge on the basis of legal error including, in terms of quantum alone, that it was manifestly excessive or manifestly inadequate. This will also often be the primary issue in a "special circumstances" case in this Court. 73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.

Determination of the Appeal 74 The Applicant's submissions to the Court proceeded on the assumption that if he could identify some kind of error - either a failure to give proper weight to the plea, or a failure to state reasons with respect to the issue of special circumstances or a failure to make a finding of special circumstances that ought to have been made - then this Court would proceed to allow the appeal and re-sentence the Applicant. This assumption is not in accordance with the jurisdiction which this Court exercises. 75 The need to pay regard to the statutory jurisdiction exercised by a court of criminal appeal has recently been emphasised in Dinsdale v The Queen (2000) 202 CLR 321. Gleeson CJ and Hayne J said at [3]: "It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised." 76 In that case the court was concerned with the jurisdiction of the Court of Criminal Appeal of Western Australia and specifically s689(3) of the Criminal Code (WA) which, relevantly, is in the same terms as s6(3) of the Criminal Appeal Act 1912 of this State, which provides: "6(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 77 In Dinsdale, Gleeson CJ and Hayne J referred to the well-known passage in House v The King (1936) 55 CLR 499 at 505 as identifying the appropriate approach to the determination of whether a relevant error was made in the context of exercising the sentencing discretion. 78 To similar effect are the observations of Gaudron and Gummow JJ in Dinsdale at [21]: "It is common ground that, in this case, the Court of Criminal Appeal was empowered by s689(3) of the Code to quash the sentence passed at the appellant's trial and to pass the increased sentence it imposed upon him, without an order for its suspension, 'if they [thought] that a different sentence should have been passed'. Further, the respondent correctly accepted that the exercise of the powers conferred by s689(3) was conditioned upon the formation of an opinion by the Court of Criminal Appeal, a process to which there applied the reasoning of this Court (with respect to an appeal against sentence brought directly to this Court under s73 of the Constitution) in the joint judgment in House v The King [(1936) 55 CLR 499]. To that we would add that this opinion of the Court of Criminal Appeal must be expressed as well as formed, so that, to adapt a statement by McHugh JA in Soulemezis v Dudley Holdings Pty Ltd [(1987) 10 NSWLR 247 at 280], the essential ground or grounds for the formation of the opinion are articulated." 79 Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process." That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense. 80 In the present case I do not believe there is any proper basis for the formation of an opinion in the statutory terms; the objective and subjective circumstances do not lead me to the conclusion that "some other sentence … is warranted in law and should have been passed". The effective sentence imposed by his Honour on Count 7 of imprisonment for three years and six months with a non-parole period of two years and seven months was, in my opinion, entirely appropriate. 81 As noted above, the Applicant identified three errors in his Honour's decision: (i) Failure to give appropriate weight to the plea and failure to quantify the discount.

(ii) Inadequacy of reasons on special circumstances.

(iii) Failure to find special circumstances. 82 In Thomson & Houlton this Court encouraged sentencing judges to quantify the utilitarian value of the discount given for a plea, in order to serve the broader interests of the administration of criminal justice discussed in that case: "Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so." (At [160] - see also at [113]) 83 His Honour's failure to quantify the discount does not constitute an error. There is no reason to believe that his Honour failed to give appropriate weight to the plea. The sentences imposed are, in my opinion, entirely appropriate. 84 The Applicant's submission that his Honour failed to give reasons for refusing to find special circumstances should, in my opinion, be rejected. 85 In R v Bo Too (NSWCCA, 16 July 1992, unreported) Hunt CJ at CL said: "Where the evidence discloses the existence of material which (if accepted) could amount to special circumstances within the meaning of s5(2), but the sentencing judge does not vary the one third proportion required by that subsection, he or should would usually be expected to explain why. The absence of such an explanation may lead to the conclusion that no consideration was in fact given to whether that proportion should be varied …" 86 It may well be that, in accordance with some of the views his Honour expressed in other cases, his Honour had in mind a narrower range of "material" which "could amount to special circumstances" than the authorities I have discussed above indicate to be permissible. These words were used by his Honour as if they were words of limitation but, as a practical matter, they suggest an obligation to give reasons for not varying the statutory proportion in every case. There is no such obligation. 87 In R v Astill (No 2) (supra) at 301-302 Sully J indicated that this passage meant no more than a failure to "explain why" may, but will not necessarily, lead to a conclusion that the Court had not turned its mind to the issue of special circumstances. I agree. 88 In my opinion, in view of the wide range of considerations that are capable of constituting "special circumstances", a failure to "explain" why the statutory proportion was not varied will not readily be accepted as a basis for an inference that the sentencing judge did not turn his or her mind to the issue. It cannot do so where, as here, the sentencing judge makes the express reference that Judge Gibson made here: "I see no reason to find special circumstances in this case." 89 The Applicant submitted that this reference contained some form of ambiguity in that it was not clear whether his Honour was adopting a restrictive view of special circumstances by saying that none of the facts and matters he had referred to were capable, as a matter of law, of constituting special circumstances or, whether, on the other hand, his Honour accepted that the matters were capable of constituting special circumstances but found that, in the circumstances of the case, they were not sufficiently "special" to conclude that the statutory relationship should be varied. 90 Decisions on sentencing matters by District Court judges should not be analysed so finely. (See R v Majors (1991) 54 ACrimR 334 at 338.) The suggestion of ambiguity in the Applicant's submissions is to manufacture an error in his Honour's reasons which nothing in his Honour's reasons warrants. 91 The Applicant sought to draw some support from the fact that the sentence that I have quoted above appears immediately after his Honour's treatment of the issue of mitigation by reason of assistance to the authorities. I reject the suggestion that his Honour may only have been referring to the subject matter he was considering in the paragraphs immediately before the reference to "special circumstances". In the pages prior to that reference, his Honour had referred expressly to the various reports that were before him and to all of the matters which the Applicant asked this Court to take into account in order to make a finding of special circumstances. 92 In my opinion, his Honour's reasons should be understood to say that all of the facts and matters to which he had earlier referred did not constitute a sufficient "reason to find" special circumstances. His Honour was entitled to make a judgment of that character. No error is suggested which would entitle this Court to intervene. 93 The factors which, in combination, were said to constitute special circumstances in this case included the express finding by the sentencing judge of good prospects for rehabilitation and a number of subjective considerations: few prior offences, a stable relationship, the effects of the car accident, etc. I find nothing particularly special about this combination of circumstances. Indeed they seem to me to be quite unremarkable. They are all considerations entitled to weight in determining the head sentence and have, no doubt, led to a lower head sentence and, therefore, to a lower non-parole period, than would have been imposed in their absence. It is by no means clear to me that they would, even in combination, permit a finding of special circumstances. I am quite satisfied that they do not require such a finding. There is no error by the sentencing judge which justifies the intervention of this Court. 94 Leave to appeal should be given but the appeal dismissed. 95 MASON P: I agree with the Chief Justice. 96 GROVE J: I agree with Spigelman CJ. 97 SULLY J: I have read in draft the judgment of the Chief Justice. I agree with the orders proposed by his Honour. As to the merits of the particular application of Mr. Simpson, I do not wish to add to what the Chief Justice has said. 98 I do wish, however, to add some observations of my own as to some of the other matters upon which the judgment of the Chief Justice touches. 99 Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or of law; or because of the cumulative effect of errors of both fact and law. The errors, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance: Vachalec [1981] 1NSWLR 351 at 353F; Visconti [1982] 2 NSWLR 104 at 108G. 100 Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence. Before that can happen properly in law, the condition specified in s6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is "warranted in law". I agree with the observations made in this connection by Lee AJ in Astill (No 2) [1992] 64 ACrimR 289 at 303, 304. 101 As to the matter of "special circumstances", as contemplated by s44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I would make the following observations:

Before any question of special circumstances arises at all, there must first be determined a proper head sentence, and a proper accompanying non-parole period. By "proper" I mean proper having regard to a correct definition of the relevant objective facts and the relevant subjective factors; and to a correct striking of a balance between those two categories of matters.

The striking of that correct balance is not to be conceptualised, or to be approached practically, in some hyper-refined or hair-splitting kind of way. Sentencing is neither a science nor a mere exercise in creative mathematics. Sentencing is an art, the proper manifestation of which brings judgment based upon learning and experience to bear upon given facts and circumstances so as to achieve a result that expresses in the particular case a just resolution of the competing interests, public and private, that are described by Sir John Barry in the passages which are quoted from his paper "The Courts and Criminal Punishment" by McHugh, Hayne and Callinan JJ in their joint judgment in Pearce v The Queen [1998] 194 CLR 610 at 623, 624 .

Once that balance has been struck, correctly in law and soundly in fact, then prima facie the proportion which the determined non-parole period bears to the determined head sentence is ex hypothesi correct.

Should it happen that the proportion thus resulting is three-quarters or more, then there is no call to consider "special circumstances" . It is only in the case where the proportion proposed computes at less than three-quarters that it becomes necessary either to redetermine the proposed head sentence and non-parole period so as to yield a proportion of not less than three-quarters; or to identify correctly in law and soundly in fact, "special circumstances" that justify the reduction of the non-parole period so that its proportion to the proposed head sentence is less than three-quarters.

I have no quarrel with the proposition that it is difficult, if not impossible, in practice, and as well undesirable in principle, to attempt some all-embracing definition of what can, and what cannot, satisfy the notion of "special circumstances" . But it does not follow, in my opinion, that it is correct in principle to say that in any and every particular case, the subjective matters that have been factored correctly into the definition of a head sentence and a non-parole period, can simply be regurgitated as "special circumstances" , so as to require a reduction in what would be, otherwise, a proper non-parole period. Relevant subjective factors and "special circumstances" are not simple synonyms. They are discrete considerations. Each has its own proper place in the framing of a proper sentence; but neither is ever to be allowed to produce a result that does not adequately, (and to quote from Sir John Barry's paper earlier herein mentioned): "... reflect and correspond with the sensible ideas about right and wrong of the society …" for the protection of which the particular sentence is being passed at all. It is worth reiterating the following additional observations of Sir John Barry, which he applies to the criminal law generally, but which have a special relevance in connection with the art of sentencing: "[It] must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just." 102 I do not propose to take time to consider in any extended philosophical way whether or not what I have said in the foregoing numbered paragraphs contradicts in any essential respect the reasoning of the Chief Justice. If it be thought that there is some such incompatibility between my reasoning and that of the Chief Justice, then, with all proper respect, I adhere to what I have written. Otherwise, I agree with the reasoning of the Chief Justice. 103 NEWMAN AJ: I agree with the Chief Justice. **********

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