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14
Court of Criminal Appeal 12 February 2007

Musgrove v R

[2007] NSWCCA 21

Also reported as (2007) 167 A Crim R 424
Sexual offences
CRIMINAL LAW SENTENCING STANDARD NON PAROLE PERIOD AGGRAVATED SEXUAL ASSAULT PLEA OF GUILTY

Citation: Musgrove v R [2007] NSWCCA 21
Court: Court of Criminal Appeal, New South Wales
Date: 12 February 2007
Judge(s): McClellan CJ at CL; Simpson J; Price J

Background

The appellant pleaded guilty in the Local Court at Lismore to a single charge of aggravated sexual assault, committed in February 2004. The offence involved the use of a knife to threaten and sexually assault an 18-year-old woman at a secluded beach in the Tweed Heads area. The maximum penalty under s 61J of the Crimes Act 1900 is 20 years' imprisonment, and the offence carries a standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999.

In the District Court, the appellant was sentenced to a total term of 10 years and six months, comprising a non-parole period of eight years and a balance of term of two and a half years. At the time of the offence, the appellant was subject to a two-year good behaviour bond imposed following his 2002 conviction for two counts of inciting children under 16 to commit acts of indecency.

The appellant sought leave to appeal against the severity of the sentence on three grounds: that the sentencing judge erred in failing to find special circumstances; that the balance of term was disproportionate to the non-parole period; and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to find special circumstances that would justify a departure from the standard ratio between the non-parole period and the balance of term.
  • Whether there was any legal requirement to give reasons for imposing a balance of term that was less than one-third of the non-parole period.
  • Whether the sentencing process itself was flawed, in particular by the absence of any explicit determination of the non-parole period before calculating the balance of term.
  • Whether the sentence of 10 years and six months was manifestly excessive in light of the plea of guilty and other subjective factors.

Decision

Special circumstances. The Court found no error in the sentencing judge's failure to identify special circumstances. The finding of special circumstances is a matter of discretion, and the absence of an explicit finding did not itself constitute appellable error. The Court noted that the appellant was serving his first custodial sentence, but concluded this alone did not compel a finding of special circumstances.

Proportionality and process of sentencing. The Court undertook a detailed examination of the legislative history of the Crimes (Sentencing Procedure) Act 1999 and its predecessors. It confirmed that the sentencing court is required first to set the non-parole period and then to determine a balance of term, and that parole is not automatic. There is no statutory requirement that the sentencing judge articulate reasons for setting a balance of term that is less than one-third of the head sentence. The Court found that the sentencing judge, while not expressly articulating his methodology, had avoided imposing an excessive head sentence by reducing the balance of term, an approach he was entitled to take.

Manifest excess. The Court accepted that the sentence was relatively heavy by reference to Judicial Commission statistics, but was not satisfied it fell outside the range legitimately available to the sentencing judge. The plea of guilty warranted a departure from the standard non-parole period of 10 years, and the judge's implicit treatment of the offence as above the mid-range of seriousness was regarded as supportable. Working backwards from the stated discount of 20 to 25 per cent for the guilty plea, the implied starting point was between 13 years one month and 13 years four months, which the Court regarded as within range given the objective gravity of the offence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 is discretionary, and the absence of such a finding is not, without more, a ground of appellable error.
  • No legal requirement exists for a sentencing judge to give reasons for setting a balance of term that is less than one-third of the non-parole period; the sentencing court may reduce the balance of term to avoid an inflated head sentence.
  • Under the current sentencing framework, the court must first fix the non-parole period and then determine the balance of term; grant of parole is not automatic and there is no statutory requirement that the non-parole period be determined by explicit articulation before the balance of term is calculated.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence can sit at the heavier end of the available range without being manifestly excessive, provided it remains within the range legitimately open on the facts.
  • A guilty plea remains a sufficient basis, under R v Way, for departing downward from the standard non-parole period, even where no other mitigating factors compel that departure.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A, Part 4; ss 9, 44, 45, 54A, 54B
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), ss 44, 45
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90 (NSW)
- Probation and Parole Act 1983 (NSW), ss 19, 20A, 21
- Probations and Parole (Serious Offences) Amendment Act 1987 (NSW)
- Sentencing Act 1989 (NSW), s 5

Cases:
- R v Hampton (1998) 44 NSWLR 729
- R v Huynh [2005] NSWCCA 220
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- R v Simpson [2001] NSWCCA 543; 53 NSWLR 704
- R v Tobar [2004] NSWCCA 391; 150 A Crim R 104
- R v Way [2004] NSWCCA 131; 60 NSWLR 168