The offence to which a particular standard non-parole provision applies is identified by the section of the statute which is found opposite the standard non-parole period in the particular Table item: Hosseini v R [2009] NSWCCA 52 at [48]. The words within the brackets in the Table items do not identify or limit in any way the offence to which the standard non-parole period applies: Hosseini v R at [48]. Consequently, the judge did not err by finding in Hosseini v R that item 17 in the Table applies to the offence of knowingly taking part in the manufacture of a prohibited drug when the words in brackets in the Table described the offence under s 24(2) as “manufacture or production of commercial quantity of prohibited drug”.

A court does not comply with s 54C simply by giving reasons for sentence but must according to Howie J in R v Thawer at [39]:

This statement from Thawer needs to be approached with some care because it reflects the previous approach whereby the court was required to make a finding as to where an offence fell relative to the mid-range: R v Dungay [2012] NSWCCA 197 at [32]. Although Thawer held that a judge, under s 54C, had to give reasons as to why a non-custodial sentence is imposed for an offence which carries a standard non-parole period, “[t]he significance of that statutory fact [that is, the standard non-parole period] has been diluted [by Muldrock v The Queen (2011) 244 CLR 120] since Thawer”: R v Dungay at [33]. A judge will not fail to comply with s 54C simply by omitting to explain why it is that a sentence without a non-parole period is being imposed “despite the fact” the offence carries a standard non-parole period: R v Dungay at [33]. However, a sentencing judge may not overlook the relevance of a standard non-parole period, which is to be taken into account as a guide: R v Dungay at [34]. Section 54C must be read being mindful of the context in which judges give their reasons: R v Dungay at [29].

New standard non-parole periods were created for a further 11 offences by the Crimes (Sentencing Procedure) Amendment Act 2007. The amendments commenced on 1 January 2008. The amendments also increased the standard non-parole period for an offence under s 61M(2) Crimes Act 1900 (indecent assault — child under 10 years) from 5 to 8 years. For amendments and items added by this amending Act, the transitional provisions found at Sch 2 Pt 17 cl 57 state:

The 2007 Act, which added items to the Table, does not apply to offences committed before 1 February 2003: R v Lane [2011] NSWSC 289 at [60]–[61]. However, the increases to the standard non-parole periods for offences that were already in the Table committed after that date apply retrospectively: GSH v R [2009] NSWCCA 214 at [46]–[47]. It was held in GSH v R that the judge erred by referring to the 5-year standard non-parole period that existed at the time the offence was committed rather than the later (increased) 8-year standard non-parole period. However, see also AC v R [2023] NSWCCA 133; GL v R [2022] NSWCCA 202 discussed at [7-930] Exclusions and inclusions from Pt 4 Div 1A.

This amending Act, which commenced on 1 January 2009, introduced a new aggravated offence of sexual intercourse with a child under the age of 10 years under s 66A(2). The maximum penalty for the aggravated offence is life imprisonment, while the maximum penalty for the basic offence under s 66A(1) is 25 years. The amending Act assigned a standard non-parole period of 15 years for both offences.

The Act amended s 54D to make it clear that standard non-parole periods do not apply to persons under 18 years: see exclusions below.

Special Bulletin 2, published at the time the judgment was delivered, explains the case in more detail. Given that Parliament amended the key standard non-parole period provisions after Muldrock (see below), it is only necessary to recount the key aspects of the case which remain relevant. The full Bench of the High Court in Muldrock held that R v Way (2004) 60 NSWLR 168 was wrongly decided. At the time s 54B(2) of the Act provided that “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”. All justices of the High Court in a single judgment held, in Muldrock at [25]:

The court said, at [26]: “It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word ‘unless’.” And at [32]:

The court held fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence to which Div 1A applies: at [17].

Since the common law is preserved by the Act, sentencing for Div 1A offences must be consistent with the approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51] whereby the judge identifies all the factors (including those at common law) that are relevant to the sentence, discusses their significance, and then makes a value judgment as to what is the appropriate sentence given all the factors of the case: at [26].

The standard non-parole period and the maximum penalty are legislative guideposts (at [27]):

Section 54B(4) requires the court to make a record of its reasons for increasing or reducing the standard non-parole period. This does not require the court “… 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”: at [29].

The High Court rejected the proposition advanced by counsel for Mr Muldrock that the standard non-parole period only “applies” to offenders convicted following trial where the offence falls in the middle range of objective seriousness: at [24]. At [29], it was held that the obligation to give reasons

The position before Muldrock that the standard non-parole period applied to offenders convicted after trial as stated in R v Way at [68] and FB v R [2011] NSWCCA 217 at [150] is no longer good law. There are no gradations of application of the standard non-parole periods — it is a legislative guidepost for all cases

Special Bulletin 5 explains the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 in detail and there is a further discussion of the current law at [7-890] above. The amending Act was the legislative response by the NSW Parliament to the High Court decision of Muldrock. The amendments clarified the role of the standard non-parole period following the decision in Muldrock. The following notable provisions of Pt 4 Div 1A were repealed by the amending Act:

The repeal of s 54B(2) and the phrase “is to set” evinces an intention that a standard non-parole period is not to have determinative significance in the sentencing exercise. Under the new s 54B(2) (quoted above at [7-900]), it is “a matter to be taken into account by a court in determining the appropriate sentence”. The standard non-parole period is to take its place as a legislative guidepost in accordance with Muldrock at [27].

The repeal of s 54B(3) was not surprising. The utility of s 54B(3) and its reference to s 21A was always questionable given the wide scope of matters that can be taken into account under s 21A. The High Court observed in Muldrock at [19] that s 54B(3) did not restrict the courts because the matters that can be taken into account under s 21A are extremely broad and include the common law.

This amending Act introduced standard non-parole periods for 13 child sexual offences. The amendments commenced on 29 June 2015 and apply to those 13 child sexual offences committed on or after that date. The Act also repealed the basic and aggravated offences of sexual intercourse with a child under 10, under ss 66A(1) and 66A(2), and replaced them with one consolidated offence, carrying a maximum penalty of life imprisonment. The standard non-parole period of 15 years continues to apply.

Section 43 Crimes (Sentencing Procedure) Act 1999 empowers a court to re-open sentence proceedings where it has imposed a penalty that is contrary to law. Section 43 cannot be used to correct a purported sentencing error of applying R v Way (2004) 60 NSWLR 168, that is, it should not be used as an alternate to an appeal and to review standard non-parole period cases decided before Muldrock v The Queen (2011) 244 CLR 120: Achurch v R (No 2) (2013) 84 NSWLR 328 at [67] approved in Achurch v The Queen (2014) 253 CLR 141 at [37]. The appropriate course for cases decided before Muldrock is for an application for leave to appeal to the Court of Criminal Appeal to be made out of time: Achurch (No 2) at [67]. Section 43 cannot be used by first instance courts to review Muldrock appeals because a penalty is not “contrary to law” within the terms of the section only because it is reached by a process of erroneous legal reasoning or factual error: Achurch v The Queen at [37].

Section 10(1)(b) Criminal Appeal Act 1912 provides the court may, at any time, extend the time within which a notice of intention to appeal is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice. An applicant for an extension of time to apply for leave to appeal against sentence is not required to demonstrate that substantial injustice was occasioned by the sentence and the CCA in Abdul v R [2013] NSWCCA 247 erred by imposing this requirement in Muldrock error cases: Kentwell v The Queen (2014) 252 CLR 601. The CCA must consider what the interests of justice require. The merits of appeal and prospects of success are relevant to extension of time applications and should be addressed by reference to s 6(3) Criminal Appeal Act.

A contention by the Crown that “no Muldrock error is established” in respect of a sentence imposed in the relevant period is a contention that the sentencing judge failed to sentence in accordance with sentencing principles as they stood at that time: Davis v R [2015] NSWCCA 90 at [33]. The High Court in Muldrock v The Queen has declared the sentencing principles of NSW courts to have been fundamentally wrong. The interests of justice are not served by the Crown standing in the way of correction of the errors in sentencing that followed: Davis v R at [34]. Simpson J (Beazley P and Adamson J agreeing) held in Aytugrul v R [2015] NSWCCA 139 at [20]–[21] that if judges “sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error. … It does not serve the administration of justice for the Crown to maintain that such error has not been shown”.

The approach taken in Davis v R, and the cases which have applied it, is to be contrasted to earlier decisions such as Butler v R [2012] NSWCCA 23 at [26] and McDonald v R [2015] NSWCCA 80 which drew a clear distinction between cases where the standard non-parole period was applied by the judge following a trial from cases where it was used as a guidepost in guilty plea cases. The presumption of error approach in Davis v R can also be distinguished from the approach taken in Aldous v R (2012) 227 A Crim R 184 at [2], [10], [31]; Zreika v R (2012) 223 A Crim R 460 at [43]; Bolt v R [2012] NSWCCA 50 at [35]; Black v R [2013] NSWCCA 265 at [41]. It was accepted, however, that if a judge has placed too much significance on the standard non-parole period, resulting in a sentence that is not warranted in law, the court will intervene: Ross v R [2012] NSWCCA 161 at [22]; Essex v R [2013] NSWCCA 11 at [31]; ZZ v R [2013] NSWCCA 83 at [93]; GN v R [2012] NSWCCA 96 at [4], [12], [36].

If error is established, the court must exercise its discretion afresh to determine whether a lesser sentence is warranted in law: Kentwell v The Queen. See further the discussion in Appeals at [70-020].

Section 78(1) Crimes (Appeal and Review) Act 2001 allows an application for an inquiry into a conviction or sentence to be made to the Supreme Court where appeal avenues have been exhausted. Section 79(2) provides that action may only be taken by the Supreme Court “if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”. The text of s 79(2) includes errors of law such as adopting the two-stage approach to sentencing advocated in R v Way, later disapproved in Muldrock: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783. An error of law in the sentencing process which affected the severity of the sentence is capable of satisfying s 79(2): Sinkovich v Attorney General of NSW at [86].

Section 86 provides:

Application by Jason Clive McCall pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1620 is an example of a referral for a purported Muldrock error.

Following the referral of the matter pursuant to s 79, where the CCA has previously allowed a Crown appeal, the proceedings are to be approached as though the CCA’s substituted sentence was itself the subject of an appeal under s 5(1)(c) Criminal Appeal Act 1912: Louizos v R [2014] NSWCCA 242 at [6]. If error is detected, it is for the CCA to impose the appropriate sentence pursuant to s 6(3). The result of error is not restoring the original sentence; it is the exercise of the power under s 6(3), made applicable by ss 79(1)(b) and 86 Crimes (Appeal and Review) Act 2001: Louizos v R at [6].

The closing words of s 79(1)(b) and of s 86 (italicised above) give rise to a new statutory creature, a “quasi-appeal”, which closely resembles an appeal created by the Criminal Appeal Act. The effect of ss 79(1)(b) and 86 is that the CCA has authority to review and, if appropriate, set aside the sentence it itself imposed in the past. The effect of s 79(1)(b), read with s 86, is that the past sentence imposed by the CCA is deemed to be the sentence to be dealt with following a reference: Louizos v R at [16]. The natural meaning of the Criminal Appeal Act is for the procedure created by ss 79(1)(b) and 86 to be determined by way of rehearing of the sentence imposed following the Crown appeal, and whose success depends on the identification of error: Louizos v R at [17], [37].

Section 78(1) Crimes (Appeal and Review) Act inquiries are identified in the SNPP appeal list on JIRS.

H Donnelly, “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1

RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 81

R Wilson, “Sentencing since Muldrock”, Public Defender Office Conference 2013

H Donnelly, Director, Research and Sentencing, Judicial Commission of NSW, “Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013”, CLE talk, Aboriginal Legal Service (NSW/ACT), Redfern, 5 December 2013.