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Court of Criminal Appeal 14 October 2008

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB

[2008] NSWCCA 236

Also reported as 189 A Crim R 178
Homicide
SENTENCING ERROR IN SENTENCING NOT CORRECTED BY TRIAL JUDGE CRIMINAL APPEAL ACT 1912 (NSW), S 6(3) SENTENCING RELATIONSHIP KILLINGS

Citation: Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 14 October 2008
Judges: Basten JA; Hislop J; Price J

Background

The respondent was convicted of both manslaughter and murder, each offence involving the killing of a young child in his care. The two deaths occurred approximately eleven years apart. For the manslaughter, the trial judge (Hall J) imposed a non-parole period of four years and six months, with a balance of term of one year and six months, giving a total sentence of six years.

For the murder, the trial judge found the offence sat in the middle of the range of objective seriousness, and accordingly applied the standard non-parole period of 20 years. That non-parole period was made cumulative on the manslaughter non-parole period, producing a total mandatory custodial period of 24 years and six months. However, the trial judge then set a balance of term of 10 years for the murder, resulting in a total murder sentence of 30 years.

Both the Crown and the respondent appealed against the murder sentence. The Crown argued it was manifestly inadequate; the respondent argued it was internally inconsistent and therefore excessive as structured.

  • Whether the trial judge's sentencing orders for murder were internally consistent and legally correct, given the finding that the standard non-parole period applied and the absence of special circumstances.
  • How the Court of Criminal Appeal should respond when it identifies error in a sentence, including whether re-sentencing to a lesser overall term is available.
  • Whether the murder offence was properly assessed as falling in the middle of the range of objective seriousness for the purposes of the standard non-parole period regime.
  • Whether harsh conditions of imprisonment could be taken into account in setting the length of a sentence.
  • Whether the balance of term imposed for the murder was justified given the statutory framework under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Court identified a fundamental inconsistency in the trial judge's approach to the murder sentence. Having found that the standard non-parole period applied and that there were no special circumstances warranting an increase in the balance of term beyond one-third of the non-parole period, the trial judge nonetheless imposed a balance of term of 10 years. That figure exceeded one-third of the 20-year non-parole period (which would be six years and eight months), and no justification was provided for the reduction below the statutory maximum ratio.

The Court confirmed that once a judge sets a standard non-parole period and finds no special circumstances, s 44(2) of the Crimes (Sentencing Procedure) Act requires that the balance of term be no more than one-third of the non-parole period. The overall sentence must then be reviewed for proportionality to the total criminality. This logical sequence cannot be bypassed.

On the question of objective seriousness, the Court accepted that the offence fell within the middle range. Factors weighing against a higher classification included the apparent spontaneity of the act, the absence of planning, the absence of gratuitous cruelty or prolonged suffering, and the lack of sexual motivation. Factors on the other side included the absence of any psychiatric explanation for the conduct, the respondent's failure to accept guilt, and the prior instance of similar violence against a child in his care.

The Court also accepted that the respondent was likely to face harsher conditions of imprisonment than most of the prison population for a significant portion of his sentence, and that this was a matter a sentencing court could properly take into account. On re-sentencing, the Court set the non-parole period at the standard 20 years, and added one-third of that period as the balance of term, producing a total murder sentence of 26 years and eight months.

Orders Made

  • The Crown's appeal against the murder sentence was dismissed.
  • The respondent was granted leave to appeal against the murder sentence; the sentence was quashed and the respondent was re-sentenced as follows:
  • Non-parole period of 20 years, commencing on the expiration of the manslaughter non-parole period on 6 November 2009, and expiring on 5 November 2029.
  • Balance of term of six years and eight months, commencing 6 November 2029 and expiring 5 July 2036 (corrected from 5 July 2035 following an arithmetic error identified after judgment was delivered).

Key Takeaways

  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must first set the non-parole period, then calculate the balance of term, and then assess whether the resulting total sentence is proportionate to the overall criminality. These steps cannot be collapsed or bypassed.
  • Where a judge applies the standard non-parole period and makes no finding of special circumstances, the balance of term is capped at one-third of the non-parole period. A balance exceeding that ratio without justification is an error of law.
  • The "middle of the range of objective seriousness" for murder is a broad and variable assessment: it excludes both the most extreme cases warranting life imprisonment and those attracting separately listed aggravated categories in the standard non-parole period table, but it encompasses a wide range of circumstances.
  • Harsh conditions of imprisonment, where established, are a factor that a sentencing court may legitimately take into account in fixing the length of a sentence, even if those conditions arise from matters unrelated to the offence itself.
  • In allowing the respondent's appeal, the Court of Criminal Appeal re-sentenced to a term lower than that imposed by the trial judge, exercising its power under s 6(3) of the Criminal Appeal Act 1912 (NSW) to pass the sentence that was warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43, 44, 54, 54A, 54B, 61; Div 1A, Pt 4, Sch 1
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [8]
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11

Cases
- R v Hampton (1997-1998) 44 NSWLR 729
- R v Moffitt (1990-1991) 20 NSWLR 114
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
- R v Harris [2000] NSWCCA 469; 50 NSWLR 409
- R v Bond [2000] NSWSC 1059
- R v Lewis [2001] NSWCCA 448
- Regina v Miles [2002] NSWCCA 276
- Regina v Toki [2003] NSWCCA 125
- Regina v Cheatham [2002] NSWCCA 360
- Regina v Park [2003] NSWCCA 142
- R v Fraser [2004] NSWSC 53