Last year’s High Court decision in R v Muldrock shifted the sands of judicial reasoning on standard non-parole periods considerably and represents another interesting chapter in the ongoing struggle between the legislature and judiciary on sentencing.
When the Carr Government introduced the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill to the Legislative Assembly in late 2008 the Opposition were calling for a strict regime of mandatory sentencing. The Bill was too soft, they shouted.
Meanwhile, leaflets were being handed out at train stations claiming “Bob Carr is tough on crime. These are our minimum sentences.”
Once again the highly complex issue of sentencing was being politicised.
Sections 54A to 54D
Eventually, the Bill that Mr Debus announced in his Second Reading Speech was “aimed at promoting consistency and transparency in sentencing” by providing a “reference point or benchmark” was passed. It became Division 1A of the Crimes (Sentencing Procedure) Act 1999.
Sections 54A and 54B and their accompanying Table, set out a means by which a court can determine the appropriate custodial term for certain serious crimes. It does so by reference to a suggested term applicable to a hypothetical offence in the mid-range of objective seriousness. Whether a particular offence can be so categorised is to be determined by the trial judge by reference to the common law.
Should the judge think it appropriate to depart from the standard term prescribed in the Table, proper reasons should be provided for doing so by making particular reference to the aggravating and mitigating factors set out in section 21A of the Crimes (Sentencing Procedure) Act 1999.
R v Way
Exactly how these new provisions were to be incorporated into the well-established process of instinctive synthesis in sentencing was also left unclear until the decision in NSW Court of Criminal Appeal (CCA) in R v Way  NSWCCA 131.
The CCA provided some much needed guidance by saying that the sentencing court in a particular case must start by asking and answering the question “are there reasons for not imposing the standard non-parole period”. This necessarily involves an assessment of the offence in question to determine how near or far it is to the hypothetical mid-range.
However, the current High Court does not agree.
The appellant Mr Muldrock is a mentally retarded man convicted of various child sex offences. In sentencing him, the extent and effect of Mr Muldrock’s mental retardation was in issue. The sentencing judge prescribed a very short non-parole period, which was backdated. This approach was taken because Mr Muldrock was assessed as eligible for admission to a special care facility designed to assist offenders with similar difficulties.
This sentence was appealed and the NSW Court of Appeal found the non-parole period should have been a lengthier six years and eight months. The proceedings then found their way to the High Court.
The High Court at  found that the prescribed standard non-parole was much less than a starting point for a sentencing judge’s reasoning. Instead, they said it should simply be added to the variety of factors (both aggravating and mitigating) to which the judge should give consideration before determining what is an appropriate sentence.
The Status Quo is returned
On its face, it could be said that the High Court perhaps watered down the amending legislation. But as Bob Debus also pointed out in his second reading speech “a fair and just criminal system requires sentences imposed be appropriate to the offence and the offender requiring the exercise of complex judicial discretion”.
This, it would seem, is exactly what the High Court has ensured.