Friday, March 2, 2012

High Court : Guidance On Sentencing Criminal Offenders

The High Court has now made clear that sentencing should not be done by numbers and that courts should take into account subjective factors, as well as legislated standard non-parole periods, yet questions remain.
In Muldrock v The Queen 1 (Muldrock), the High Court has handed down a unanimous, full-bench decision which is fundamentally important to sentencing law in NSW. The court determined that an important, long-standing and commonly-cited decision, R v Way 2 (Way) was wrongly decided. The result is important for sentencing in all matters where the law specifies a standard non-parole period (SNPP), as the court found that it is not the starting point of the sentencing process.
It is absolutely clear that the High Court still favours the approach to sentencing in which the process is a holistic exercise where a gamut of factors are instinctively converted into an appropriate sentence in one step. To the extent that the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) had intended to promote consistency, the decision would appear to return the law to earlier, less prescriptive approaches to sentencing.
Perhaps it was to be expected as Muldrock is best seen as an incremental extension of the principles that the High Court set out in late 2010 in another important decision - Hili v The Queen; Jones v The Queen3 - which also struck down a longstanding practice in relation to setting non-parole periods in federal sentences.
The High Court flagged then that it felt that what matters when it comes to consistency was "consistency in the application of the relevant legal principles", rather than "numerical equivalence".4 It held that the focus in sentencing should be on the application of principles rather than numbers, and the case is a salient reminder that the correct approach is the "instinctive synthesis" of factors.
Muldrock is completely consistent with that approach, but perhaps not in line with the legislature's vision.
Standard non-parole periods
The SNPP regime can be found in Division 1A, Part 4 of the Crimes (Sentencing Procedure) Act 1999 (see box). As the name suggests, the legislation introduces SNPPs of imprisonment for a number of offences.5 The legislation has been reasonably contentious, in the sense that it has generated a large amount of appellate law, and will be well-known to every criminal lawyer.
It is helpful to observe that when the reforms were introduced, it was stated that they were "aimed primarily at promoting consistency and transparency in sentencing and promoting public understanding of the sentencing process".6 While there may be some cynicism directed to whether those goals were achieved, the legislation has resulted in an increase in sentences for the offences that were included.7
Way - the old approach
The facts in Way were straightforward and need little elaboration.
The offender pleaded guilty in the District Court to a range of drug offences, one of which was subject to an SNPP of 10 years. For that offence he was sentenced to a period of imprisonment of 13 years and four months, with a non-parole period of 10 years (that is, the SNPP). He appealed the severity of the sentence to the Court of Criminal Appeal (CCA), comprising Spigelman CJ, Wood CJ at common law and Simpson J.
In a unanimous judgment, the CCA held that s.21A(1) of the Crimes (Sentencing Procedure) Act 1999 preserves the entire body of common law in relation to sentencing, including principles of proportionality, parity, totality and the avoidance of double punishment. On this point, the High Court in Muldrock agreed.8
At its core, the decision in Way held that:
  • Division 1A (the division containing SNPPs) is expressed in mandatory terms;
  • a sentencing court must ask itself: "Are there reasons for not imposing the standard non-parole period?";9
  • one reason for departing from the SNPP would be if the court found that the offence was not in the middle of the range of objective seriousness. This required the court to determine what an abstract offence in the middle of the range was, in order to give that concept some meaning; and
  • the division only applied to convictions after trial, with the consequence that a plea of guilty would be another reason for departing from the SNPP. Even then, the SNPP would be relevant as "a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty".10
  • a court should not commence at the SNPP and then oscillate about it, increasing and deceasing the penalty based on the various aggravating and mitigating factors;11 and
  • the court should be careful to avoid resorting to a "rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticised in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, per McHugh and Hayne JJ".12
Nevertheless, based on Way, there would appear to be (at least to some degree) implicit that there are two stages involved in sentencing under the SNPP regime.
The facts
The appellant was sentenced in the NSW District Court. He pleaded guilty to one count of sexual intercourse with a child under 10 years of age,13 which carries an SNPP of 15 years, and a maximum penalty of 25 years. He also had another offence (aggravated indecent assault) taken into account on sentence, on a Form 1.14
He was sentenced to nine years' imprisonment with an unusually15 short non-parole period of only 96 days (expiring on the day it was imposed). It was apparent that the sentencing judge selected the non-parole period because, on his release, the trial judge ordered that the appellant was to reside immediately at a secure residential facility called Selwood Lane.16 The facility assists intellectually disabled persons with moderate inappropriate sexual behaviour and the sentencing judge had found the appellant to be "significantly intellectually disabled".17
Both parties appealed the result: the Crown appealed because it submitted that the non-parole period of 96 days was too short, and the offender appealed because he submitted the overall term of nine years was too long.
McClellan CJ at CL, Howie and Harrison JJ in the CCA agreed with the Crown and allowed its appeal. The CCA resentenced the appellant to a non-parole period of six years and eight months, and a balance of sentence of two years and four months.
The appellant then appealed the CCA's decision to the High Court.
The issues and their resolution
The main dispute centred on the procedure to use when sentencing offenders for offences involving an SNPP, and the relevance (if any) of the SNPP to offences that were not in the middle of the range of objective seriousness.
The appellant submitted that "the standard non-parole period has no role in sentencing for an offence in the low (or high) range for offences".18 Although this particular submission was not accepted by the court, the appellant succeeded in the ultimate result, and the matter has been remitted for redetermination by the CCA.
The full High Court unanimously held "that Way was wrongly decided".19 This was because the High Court found that, at its core, the Way approach had courts sentencing offenders in two steps: first, determining whether the offence is in the middle of the range of objective seriousness;20 then, if it does, to ask if there are "reasons for not imposing the standard non-parole period".
The High Court reminded us of its decision in Markarian v The Queen,21 and that the correct approach to sentencing is the "instinctive synthesis" approach, which only involves a single step. "Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."22
Consequences for sentencing in offences with an SNPP
Muldrock did not set out a clear and unambiguous process that should replace Way, so it will take some time before the consequences of some of the individual findings are clear.
In the meantime, at least the following points seem settled:
  • the SNPP is not a starting point in sentencing for a mid-range offence after conviction.23 It is appropriate to observe that the court's emphasis was on the SNPP's status as a "starting" point but it is plainly still very relevant to the sentencing process, as we will see below;
  • the court is not required to start by asking whether there are reasons for not imposing the SNPP; nor does it need to proceed to an assessment of whether the offence is in the mid-range of objective seriousness;24
  • instead, the court must:
    - identify all the relevant factors;
    - identify their significance; and
    - make a value judgment about the appropriate sentence;25
  • simlarly to the approach in Way, when identifying all the relevant factors, the SNPP remains important as a "guidepost" in sentencing, along with the maximum penalty.26 However, in doing so, courts must bear in mind that the SNPP is the non-parole period "for an offence in the middle of the range of objective seriousness" and place the guidepost in that context;27 and
  • regardless of whether the offender has been convicted after trial or on a plea of guilty, judges must fully state their reasons for arriving at a sentence. They must identify all the facts, matters and circumstances which bear upon the judgment. Giving reasons for imposing a sentence that is higher or lower than the SNPP will assist appellate review, and may increase public awareness of the sentencing process.28
As the CCA had done many years before in Way, the High Court recognised that for some offences there may "be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period".29
However, unlike when Way was decided, the legislation has now been in operation for a period of time. Accordingly, it seems somewhat unlikely that the trend will continue, at least for offences where there has already been an SNPP for some time, and where a reasonable number of offenders have been sentenced.
Therefore, partly unshackled from the burden of the SNPP as the most central (or indeed, the very first) issue in the sentencing process, it would seem more likely that courts will place renewed focus on subjective factors, with the consequence that sentences will taper off to some degree.
Issues that remain unclear
The consequences of a number of comments made in the course of the judgment in Muldrock remain somewhat unclear and will take some time to resolve. First, for example, it would no longer appear to be necessary to classify the objective seriousness of the offending: "The reference in s.54B(4) to 'mak[ing] a record of its reasons for increasing or reducing the standard non-parole period' is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending".30
Depending on how one interprets the reference to "classifying" the objective seriousness, it may mean that common findings such as "well above the middle of the range of objective seriousness" or "somewhat below the middle of the range of objective seriousness", and their ilk are no longer required.
Second, the court in Muldrock said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."31
This stands somewhat in contrast to the more qualified finding in Way that "some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission".32
Again, it is not absolutely clear whether this means that factors personal to an offender, but which might previously have impacted on findings of objective seriousness, are now to be regarded as subjective rather than objective. For example, the motive for an offence (such as, greed, self-preservation or revenge) is clearly a factor "personal to the offender", but would normally have been regarded as relevant to the objective seriousness.
If the High Court intended that a bright-line distinction be drawn, it is unclear why, or indeed what the consequence would be.
The matter has been returned to the CCA for redetermination in accordance with the High Court's reasons.
Meanwhile, with the NSW Law Reform Commission reviewing the complex mire that is sentencing law in NSW, one is left to wonder whether the way the High Court has set us upon will be cut off by legislation, or whether it heralds a new and permanent focus on rules and principles, rather than numbers.
Crimes (Sentencing Procedure) Act 1999 (NSW)
Standard non-parole periods
54A What is the standard non-parole period?
  1. For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.
  2. For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.
54B Sentencing procedure
  1. This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.
  2. When determining the sentence for the offence (not being an aggregate sentence), the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
  3. The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.
  4. The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
Two important tangential issues
The High Court's decision in Muldrock raised two important, if tangential, issues with regards to sentencing: the relevance of intellectual disability and availability of treatment in prison, and the relevance of non-criminal legislative regimes to the sentencing process.
Intellectual disability
The offender in Muldrock was said by the High Court to be "mentally retarded", a term defined in the Diagnostic and Statistical Manual of Mental Disorders,33 but which seems to have fallen out of favour as a politically-correct term for describing intellectual disability in conversation.
The High Court found that the Court of Criminal Appeal (CCA) may have rejected a finding by the first-instance judge that the offender's intellectual disability was "significant", and if that were so, then it was an error. The High Court accordingly made some observations about the relevance of mental illness to sentencing.
The court referred to the "well-recognised" principles applying to offenders with mental illness or intellectual handicap. They included the fact that an offender suffering from a mental disorder might not be an appropriate vehicle for general deterrence, since general deterrence is related to retribution and punishment. Since it may be inappropriate to punish an offender if their mental illness is causally related to their offence, so general deterrence becomes much less relevant.34
The High Court went on to find that the CCA erred when it determined the structure of the sentence on the basis that the offender would receive treatment for his intellectual disability in prison because, among other reasons, "[f]ull-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody"35 - the implication apparently being that the High Court sees no rehabilitative value in the period during which an offender is in gaol.
The court then went on to observe that there was no guarantee of any program being (or remaining) available to an offender while in custody - the programs being subject to executive determination.36
Non-criminal legislative regimes
The High Court held that "as a matter of principle", it was irrelevant to "take into account the existence of a regime outside the criminal law providing for the detention of sex offenders".37
In NSW, a scheme exists under which so-called "serious sex offenders" can either be further detained in prison or subject to strict supervision in the community.38 The state is empowered to make an application within the last six months of a sentence of imprisonment for one of those courses to be taken, and depending on whether there is an "unacceptable risk"39 of further offending and a number of other factors, a court can make such orders.
The appellant submitted that the scheme ought to be taken into account in sentencing - not to mitigate it directly but as a factor that would be said to mean the offender would be at less risk of harming others in the community. In other words, because the offender might already be supervised, there would be less need to incorporate supervision into his sentence.
The High Court did not agree. Instead, it held that when considering protection of the community (one of the many purposes of sentencing), a sentencing court may not refrain from imposing an otherwise appropriate sentence merely because at some future time the offender might be subject to the Crimes (Serious Sex Offenders) Act 2006.40
  1. [2011] HCA 39.
  2. [2004] NSWCCA 131.
  3. [2010] HCA 45.
  4. Ibid at [48]-[49].
  5. A table of offences subject to the provisions is to be found at the end of the Division.
  6. NSW Hansard, Legislative Assembly, 23 October 2002, Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill, per Attorney General Robert Debus.
  7. P. Poletti and H. Donnelly, "The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales" (2010) Monograph series, Judicial Commission of New South Wales, Number 33, p.60.
  8. Above n.1 at [18].
  9. Above n.2 at [117].
  10. Ibid at [122].
  11. Ibid at [131].
  12. Ibid at [127].
  13. Crimes Act 1900 (NSW), s.66A.
  14. Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3, div 3.
  15. Crimes (Sentencing Procedure) Act 1999 (NSW) s.44(2), which normally requires the non-parole period to be 75 per cent of the total term of imprisonment.
  16. It does not appear to have been disputed that there was no power to make such an order as a condition of parole. The power to order conditions of parole only exists where the period of imprisonment is less than three years: Crimes (Sentencing Procedure) Act 1999 (NSW) s.50(1), Crimes (Administration of Sentences) Act 1999 (NSW) s.134(5); above n.1 at [7].
  17. Above n.1 at [10].
  18. Ibid at [24].
  19. Ibid at [25].
  20. Ibid at [28].
  21. (2005) 228 CLR 357.
  22. Above n.1 at [28].
  23. Ibid at [31]; cf R v Way (2004) NSWLR 168 at [140].
  24. Ibid at [25].
  25. Ibid at [26]; Markarian v The Queen (2005) 228 CLR 357, per McHugh J at [51].
  26. Ibid at [27].
  27. Crimes (Sentencing Procedure) Act 1999 (NSW) s.54A(2).
  28. Above n.1 at [29]-[30].
  29. Ibid at [31].
  30. Ibid at [29].
  31. Ibid at [27].
  32. Above n.2 at [86].
  33. Above n.1 at [50].
  34. Ibid at [53]-[54].
  35. Ibid at [57].
  36. Ibid.
  37. Ibid at [61].
  38. Crimes (Serious Sex Offenders) Act 2006 (NSW).
  39. Crimes (Serious Sex Offenders) Act 2006 (NSW) s.9 and s.17.
  40. Above n.1 at [61].
(* Extracted from an article by T Spohr in NSW LSJ)

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