In Atchison v R  NSWCCA 82 the NSW Court of Criminal Appeal (CCA) was asked to consider whether a trial judge had fallen into error in sentencing the offender for an offence to which a standard non-parole period applies. The trial judge’s decision was made before the High Court handed down it’s decision in Muldrock.
The offender was convicted of wounding with intent to cause GBH under s33(1)(a) of the Crimes Act 1900 and sentenced to nine years imprisonment with a non-parole period of six years. Under the Crimes (Sentencing Procedure) Act, a standard non-parole period of 7 years applies to the offence.
In applying the principles in R v Way the trial judge found that the circumstances of the offence meant that it fell within the mid-range of objective seriousness, which he noted was “not to be any narrow band“. The judge also found that there were special circumstances for departing from that standard and ruled accordingly.
The complaint on appeal was that by adopting the process of the CCA in Way, which was the prevailing standard at that moment, the judge:
“…departed from the standard non-parole period only to the limited extent necessary to give effect to the finding of special circumstances.”
This was said to be a mistake because of what the High Court said in Muldrock at :
“The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness.”
Blanch J (with the concurrence of Basten JA and Hall J) agreed with the applicant’s submission and found that instead, the standard non-parole period should have been placed along-side the maximum penalty and other factors, both mitigating and aggravating, before determining the appropriate sentence.
His Honour then undertook this process and ruled that the non-parole period of the sentence should be reduced to four years and six months.