By Paul Gregoire and Ugur Nedim
Standard non-parole periods apply to over 40 serious criminal offences in NSW. Introduced in 2003, SNPPs set the state’s criminal justice system apart from all others operating in Australia.
SNPPs provide a reference point for a judge in sentencing an offender in relation to any of the crimes the scheme covers, when determining the minimum time they must spend behind bars before being eligible to apply for release on parole.
The scheme provides a guidepost parole period for a “middle of the range of seriousness” offence, when only the objective factors of a crime are considered.
The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2002 introduced SNPPs into the sentencing process, inserting part 4 division 1A into the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).
Section 54B of the Act sets out the considerations a judicial officer must make when sentencing for a Division 1A offence, including providing reasons for setting longer or shorter non-parole periods in relation to an SNPP.
The Act also contains a table listing the Division 1A offences and the length of SNPPs that apply to them. The sentencing scheme began with just over 20 offences, but this has been added, most notably with the passing of the Crimes (Sentencing Procedure) Amendment Bill 2007.
The Carr government introduced SNPPs as an alternative to suggestions that mandatory sentencing be established within this state’s criminal justice system. The loudest calls for a mandatory sentencing scheme were coming from the NSW Liberal Nationals opposition.
Yet, the rollout of SNPPs was not a simple process. The original laws governing them could be interpreted in various ways.
And this led to a number of cases regarding the scheme being heard in the NSW Court of Criminal Appeal (NSWCCA) and the High Court, with the latter’s 2011 authority establishing the Muldrock error.
The initial precedent
The system of SNPPs came into effect on 1 February 2003, and its provisions only applied to crimes committed on or after that date.
In handing down its final findings in 2004’s R versus Way, the NSWCCA established the authority on applying SNPPs that subsequently stood for almost seven years.
NSW man Colin Way was convicted of a number of drug offences, and he appealed the severity of his sentence to the NSWCCA. The primary judge had applied an SNPP in sentencing. And the legal sector anxiously awaited the decision, hoping for some clarity on the lack of clear SNPP directions.
Then deputy senior public defender Robert Hulme SC explained the precedent set by Way in a 2004 paper.
The lawyer wrote that, at the time, the starting point for a judge when applying an SNPP was provided in the since-amended section 54(2) of the Act, which then stated that the court should literally apply the SNPP, unless giving reasons as to otherwise.
From there, the NSWCCA outlined that the objective seriousness of an offence be established to see if it fell within the mid-range of seriousness, and then mitigating and aggravating factors should be considered. And either of these two steps could lead to a finding that the SNPP didn’t apply.
This led to the “are there reasons for not applying an SNPP” approach to sentencing.
If step one of the Way formula held, a judge would then consider mitigating factors to lessen the SNPP, as well as aggravating factors to lengthen it. Both these sets of factors are contained in section 21A of the Act.
The Muldrock ruling
Derek Muldrock was a man with an intellectual disability, who was sentenced to 9 years imprisonment by the NSW District Court for the crime of having sexual intercourse with a child under 10. However, his non-parole period was set at just 96 days due to his condition.
Muldrock’s application to appeal the severity of his sentence to the NSWCCA was rejected. However, a Crown prosecution appeal of the non-parole period was permitted, and, in applying the Way formula, the court resentenced the offender to a non-parole period of 6 years and 8 months.
On Muldrock’s appealing this outcome to the High Court, it was found that the NSWCCA was incorrect to refuse his leave to appeal his sentence, and that the authority on SNPPs set out in Way was wrong.
The High Court justices determined that in cases where a standard non-parole period applies, the two-step rule that Way established should not be taken.
In 2011’s Muldrock versus The Queen, the High Court stipulated that a sentencing judge should not follow the process of considering an SNPP as a set standard, and then weighing up other circumstantial factors in relation to why they shouldn’t strictly apply it.
Their Honours stated, “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.”
This misapplication of SNPPs is today labelled the Muldrock error.
The High Court ruling led to the understanding that in sentencing for a Division 1A offence there are two guideposts, maximum penalties and SNPPs, and from there, judges ought to exercise their discretion based on the evidence before them, while keeping these two reference points in mind.
This finding led the O’Farrell government to pass the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Bill 2013, which reframed certain provisions within Division 1A to reflect the High Court decision and make the process clearer.
A civilised society
On delivering his 2002 second reading speech on the bill that introduced SNPPs, then NSW attorney general Bob Debus expressed sentiment about the new sentencing system, which reflected it’s nonprescriptive nature, despite the ambiguities in the laws that were passed.
Debus explained that the sentencing scheme was not a form of mandatory sentencing, but rather it was to provide “further guidance and structure to judicial discretion”, as a judge’s freedom to make varied decisions in sentencing preserves the ability to show mercy, when it should be given.
The AG said that mandatory sentencing leads to unjust outcomes, as it applies the same sentence regardless of an offender’s motivations.
The Labor MP gave the example of sentencing for murder, where a mandatory sentence would be imposed in a similar manner to a cold-bloodied killer, someone who kills their long-term domestic violence abuser or an individual who assists in a mercy killing.
“By preserving judicial discretion, we ensure that the criminal justice system is able to recognise and assess the facts of an individual case,” Debus told parliament. “This is the mark of a criminal justice system in a civilised society.”
