Musgrove v R

[2007] NSWCCA 21

Reported Decision: 167 A Crim R 424

New South Wales

Court of Criminal Appeal

CITATION:	Musgrove v R [2007] NSWCCA 21 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 February 2007
JUDGMENT DATE:	12 February 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Price J at 55
DECISION:	Leave to appeal granted; appeal dismissed
CATCHWORDS:	CRIMINAL LAW - sentencing - standard non-parole period - application to appeal against severity of sentence - aggravated sexual assault - plea of guilty - prior criminal record - current bond to be of good behaviour - discount for plea of guilty - special circumstances not found - whether error in failing to find special circumstances - determination of special circumstances discretionary - whether error in failing to impose parole period in statutory proportion to the head sentence - no requirement to give reasons for sentence in which the balance of term is less than one third of the non-parole period - changes in sentencing legislation - course of legislative amendment - court required first to set non-parole period and secondly to set a balance of term - grant of parole not automatic - no statutory requirement that non-parole period first be determined - whether sentence imposed manifestly excessive - sentence within range legitimately available
LEGISLATION CITED:	Crimes Act 1900 s61J Crimes Legislation Amendment (Sentencing) Act 1999, s44, s45 Crimes (Sentencing Procedure) Act 1999 Division 1A, Part 4 s9, s44, s45, s54A, s54B Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) 2002 No 90 Probation and Parole Act 1983, s19, s20A, s21 Probations and Parole (Serious Offences) Amendment Act 1987 Sentencing Act 1989, s5
CASES CITED:	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
PARTIES:	Darren Musgrove - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2006/2279
COUNSEL:	J Chicken - Applicant R Barrett - Respondent
SOLICITORS:	S O'Connor - Applicant S Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/51/0021
LOWER COURT JUDICIAL OFFICER:	Black DCJ
LOWER COURT DATE OF DECISION:	30 March 2006

2006/2279

McCLELLAN CJ at CL
SIMPSON J
PRICE J

Monday 12 February 2007

Darren MUSGROVE v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: On 13 February 2006 the applicant pleaded guilty in the Local Court at Lismore to a single charge of aggravated sexual assault, committed on 13 February 2004. Pursuant to s61J of the Crimes Act 1900 such an offence carries a maximum penalty of imprisonment for 20 years. Pursuant to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) the offence carries a standard non-parole period of 10 years.

3 On 30 March 2006, having adhered to his plea of guilty in the District Court, the applicant was sentenced to a total term of imprisonment for 10 years and six months, made up of a non-parole period of 8 years, commencing on 29 August 2005 (the date the applicant was taken into custody) and expiring on 28 August 2013, and a balance of term of 2 ½ years, expiring on 28 February 2016. He now seeks leave to appeal against the severity of the sentence.

facts

4 The offence is a serious example of its type. It was committed in daylight, at a secluded beach in the Tweed Heads area. The victim, an 18 year old woman, had driven alone to the beach where she swam and sunbathed. The applicant, armed with a knife, lunged towards her, telling her not to scream and threatening, if she did, to slit her throat. He held the knife against the victim’s side, repeating his instruction not to scream, and telling her that there was nobody present and that if she did she would not be heard. He led her to a more secluded area in the dunes and forced her to undress and lie on a towel.

5 The victim asked if the applicant had a condom. He replied that he did. Later, he admitted that this was untrue. The applicant placed the knife on the ground and performed cunnilingus upon the victim; he inserted his finger in her vagina a number of times; he ordered her to fellate him. She refused and he became angry and repeated his demands. He picked up the knife; this caused the victim to agree to penile/vaginal intercourse. Because he now told her that he did not have a condom, he agreed to withdraw when reaching orgasm. He held the knife near the victim’s face while engaged in penile/vaginal intercourse. He withdrew, placed the knife on the ground, and masturbated, eventually ejaculating onto the victim’s stomach. He picked up the knife and told the victim to remain where she was for five minutes, threatening to stab her if she left any earlier.

6 The victim immediately reported the attack and DNA samples were obtained (from a vaginal swab, and from her towel, which she had used to wipe the ejaculate from her stomach). The applicant was not arrested until 29 August 2005. That occurred in circumstances shortly to be explained. On 15 June 2005 he attended at the Tweed Heads Police Station where he denied any knowledge of the incident. He agreed to provide a buccal swab for the purposes of DNA analysis. This provided evidence strongly identifying him as the assailant. On 29 August 2005 he was arrested and charged. On that date he continued to deny involvement. While he (unsurprisingly) acknowledged that he had no specific recollection of what he had been doing on 13 March 2004, he had ascertained that that date was a Saturday, and claimed that he would have been at home with his de facto wife and children, as he did not work on weekends. He said that at that time he had not owned a car.

proceedings on sentence

7 Sentencing proceedings took place on 30 March 2006. Detective Sergeant Lawrie Moroney gave evidence explaining how the applicant came to the attention of police. Put briefly, another young woman had complained of having been accosted near a beach by a man who had made a sexual suggestion to her. Police investigated and located the applicant, leaving a toilet block. His behaviour on seeing police was suspicious, and he was spoken to. He gave his name and address. He denied any involvement in the events that led to those inquiries, but his behaviour prompted police to investigate whether he might have been involved in the offence the subject of the present application. As a result, the DNA testing was undertaken.

8 The applicant himself did not give evidence. His wife, however, did.

9 Also before the sentencing judge was a victim impact statement, and a psychological report concerning the applicant dated 7 January 2006, together with other material setting out details of the offence and the applicant’s criminal history.

subjective circumstances

10 From all of this evidence the following emerged. The applicant was born on 12 September 1969. He was 34 years of age at the time of the offence. He had a record which included two separate instances of motor vehicle theft (in 1990 and 1995) and other offences, of varying degrees of seriousness, associated with the use of motor vehicles. Most significantly, on 10 December 2002, he was convicted (following a plea of guilty) of two counts of inciting a person under the age of 16 years to commit an act of indecency. In respect of each, he was fined $500, and subjected to a bond (pursuant to s9 of the Sentencing Procedure Act) to be of good behaviour for a period of two years. The bonds were thus current at the time of the present offence. The facts of these offences were before the sentencing judge. They were committed (concurrently) on 13 November 2001. Two young girls, aged 11 and 12, were walking on a suburban footpath in Sydney. The applicant drove his vehicle alongside the girls, and spoke to them; he invited them to touch his penis, and began to unzip his pants. The girls walked away. The applicant remained in his vehicle for a short time, then drove off, and then returned and drove slowly past the girls. The applicant waved at them, protruded his tongue from his mouth, and moved it from side to side. The girls reported the incident. They took the numberplate of the vehicle, and the applicant was arrested and charged.

11 At the time of the present offence, the applicant was living with his de facto wife and two children (then aged about four and three) in Queensland, where the applicant had employment. The applicant’s de facto wife gave evidence that the applicant was a devoted father, who spent a good deal of time with the children. She said that, since his incarceration, the family had found it difficult to manage financially, to the extent that she had had to sell necessary household equipment and furniture in order to pay the rent on their home. She said that the applicant had strong support, not only from herself, but also from his mother (who she said was present in court) and other family members.

12 The psychologist reported following a psychological assessment that took place on 22 December 2005. The report disclosed a somewhat disturbed childhood, with physical discipline administered by his father when he was at home (which was rare – he was a truck driver). His parents separated when the applicant was about 10 years of age, largely because of his father’s absences. Relations between his parents were never harmonious. At the time of the assessment, the psychologist reported, the applicant had little contact with either parent, particularly his mother. (To the extent that this is in conflict with the evidence given by the applicant’s de facto wife, the discrepancy was not explored and is unexplained.)

13 The applicant left school at the age of 15, in year 8, and obtained various forms of employment. He undertook TAFE courses and apprenticeships. Until he met his present de facto, he had little success in relationships with women. Initially, the relationship with his de facto was successful, but, in the four years prior to the assessment, she had become less interested in him sexually. He had earlier attributed his previous sexual offence to the diminution of her interest in him. The psychologist explained the present offence by reference to his having learned, in a very public way, that his de facto had been having an affair with a neighbour, and having been taunted by her sister, about her seeing other men while visiting her in Sydney. He told the psychologist that he saw the victim, thought she might be interested in him, and (“without thinking”) armed himself with a knife, which was on the front seat of his car, and used for fruit. He denied having threatened the victim’s life and said that he took her to the place of the assault without the use of physical violence. The psychologist appeared to conclude that he had little empathy for the victim, or insight into the effects upon her of his conduct.

14 The psychologist found him to have a considerable degree of anxiety and to have an avoidant dependant personality, amounting to a personality disorder. He considered that the applicant was motivated to achieve rehabilitation, but thought that he would need intensive treatment in order to do so.

15 The victim impact statement, apparently written by the victim herself, is comprehensive and compelling. It contains, however, little that would surprise. In short, the victim’s life has been dramatically affected by her experience. She had sleeplessness, followed by nightmares when she was able to sleep; she rejected physical affection, including that of her mother. She fears being alone and is extra vigilant about the use of her motor vehicle. Her relationship with her boyfriend ended, at least in part because she no longer felt comfortable with sexual intimacy. She continues to experience reminders of the events.

the remarks on sentence

16 The remarks on sentence are brief. The judge referred succinctly to the account of the facts, and to the content of the victim impact statement. He noted the plea of guilty and stated that he had discounted the sentence that he would otherwise have imposed by between 20 and 25 per cent. He referred globally to the provisions of Part 4, Division 1A of the Sentencing Procedure Act and noted the standard non-parole period of 10 years and the maximum sentence of 20 years. He made no finding concerning the gravity of the offence vis-à-vis an offence in the mid-range of offences of its kind.

17 He expressly declined to find special circumstances justifying departure from the ratio between the head sentence and the non-parole period otherwise specified in s44 of the Sentencing Procedure Act. In this respect it is of some significance to note what he said. It was:

“[Counsel for the applicant] urges me to find special circumstances on the basis of the report of [the psychologist], and on the basis that it is the offender’s first time in custody. I acknowledge that it is open to a court to find special circumstances, particularly on his second ground, but I do not do so in this case, because I see no reason, save for a mathematical reason, to make any variation in the normal ratio.”

He noted the evidence given by the applicant’s de facto, and the effect incarceration would inevitably have upon her and the children. He noted that the applicant was on a bond for sexual offences at the time of the offence, although he acknowledged that those offences were well short of the gravity of the present offence.

18 He then stated:

“… The minimum time that in my view has to be spent in custody for this matter is one of eight years …”

19 He thus imposed the sentence to which reference has already been made.

the application for leave to appeal

20 Three grounds of appeal were pleaded and argued. They are:

“1. The sentencing judge erred in that he failed to find special circumstances.

2. The sentencing judge erred in that he failed to impose a parole period that complied with s44 of the Crimes (Sentencing Procedure) Act 1999 as amended.

3. The sentence is manifestly excessive.”

Ground 1: special circumstances

21 A short submission was put in support of this ground. It was as follows:

“It is submitted that in the circumstances of the case it was incumbent upon his Honour to have made a finding of special circumstances. The applicant had never before been sentenced to a custodial sentence, the imposition of a significant non-parole period will likely lead to difficulties in adjustment or reintegration into the community and [the psychologist] had identified a condition which he believed would respond to treatment. It is submitted that the culmination of these factors amount to special circumstances within the ambit of s44.”

22 This submission repeated a submission that had been put to the sentencing judge, and was rejected by him. In this Court it was acknowledged that the factual basis upon which it was made is incorrect. The applicant’s criminal record shows that, in April 1995, in respect of a charge of driving while disqualified, the applicant was sentenced to periodic detention for a period of six months; and in July 1995, in respect of offences of stealing a motor vehicle and negligent driving, he was sentenced, respectively, to fixed terms of one and two months.

23 However, it may be accepted that these were relatively short terms of imprisonment, and had been imposed more than a decade before the present sentence. There is a more important reason of principle for rejecting this ground. The assessment of special circumstances is very much a matter for the discretionary assessment of the sentencing judge.

24 While it may be true that another judge might have taken a different view and might have found special circumstances, for the applicant to succeed on this ground, it is necessary for him to show that it was not open to the sentencing judge to reach the decision he did – in the words of the written submissions, that it was “incumbent” upon his Honour to make such a finding.

25 This argument cannot be sustained. In my opinion it was open to the judge to make the finding that he did and it is not open to this Court to disturb it.

Ground 2: s44

26 S44(2) of the Sentencing Procedure Act is in the following terms:

“44(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

As imposed, the non-parole period is 76% of the head sentence, against the statutory proportion of 75%.

27 It is to be observed that the subsection imposes a restriction upon the structure of a sentence to the extent that the non-parole period must (in the absence of a finding of special circumstances) not fall below three quarters of the total term of the sentence; there is no corresponding restriction upon the structuring of a sentence in such a way that the non-parole period exceeds three quarters of the total sentence; or, put another way, while the section restricts the imposition of a sentence having a parole period (balance of term) of more than one third of the non-parole period, it does not correspondingly restrict the imposition of a sentence in which the parole period (balance of term) is less than one third of the non-parole period. In this case the judge declined to find special circumstances as would be required before imposing a sentence having a non-parole period less than three quarters of the total term (or a balance of term greater than one third of the non-parole period); he was not required to, was not asked to, and did not, give reasons for imposing a sentence in which the balance of term is less than one third of the non-parole period. That is not the subject of any prohibition or restriction: see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.

28 On behalf of the applicant the submission was made that:

“His Honour clearly intended that the relationship between the non-parole and parole periods be in accordance with the statutory ratio set out in s44 of the [ Sentencing Procedure Act ].”

29 Underlying this submission are two assumptions: that, on its correct construction, s44:

one: precludes (other than where special circumstances are found to exist) the imposition of a sentence so structured that the parole period (balance of term) is greater than one third of the non-parole period; and

two: precludes the imposition of a sentence so structured that the parole period (balance of term) is less than one third of the non-parole period.

30 The first of these assumptions is correct. S44(2) clearly so states. The second assumption is incorrect. There is nothing in the section that justifies or supports the assumption or any inference that that was what the legislature intended.

31 Further, the assumption is contradictory of recent authority: for example, see Simpson, above.

32 It is worth recalling the history of s44 and its predecessors.

33 The section (or its substance) was first introduced into statutory law of NSW as s20A of the Probation and Parole Act 1983, via the Probation and Parole (Serious Offences) Amendment Act 1987. S20A(1) relevantly provided:

“ Minimum non-parole periods for serious offences
20A. (1) If -

(a) a non-parole period is to be specified with respect to one or more offences (including, where relevant, an offence for which a term of imprisonment is already being served); and

(b) the offence or at least one of the offences is a serious offence,
this section applies to the non-parole period.
(2) The non-parole period shall be at least three-quarters of -
(a) the length of the sentence for the only serious offence involved; or
(b) the total length of the sentences for all the serious offences involved (any two or more such sentences that are wholly or partly concurrent being treated as one sentence to the extent of their concurrence).
(3) ...
(4) ...”

(By s19 of the Probation and Parole Act, a court sentencing an offender thereunder to a term of imprisonment of more than three years was required (unless the offender was serving another term of imprisonment) to specify a non-parole period, but by s21, a discretion was conferred on the court to decline to specify a non-parole period where it considered it undesirable to do so.)

34 That Act was repealed by the Sentencing Act 1989. S5 of the Sentencing Act relevantly provided:

“5(1) When sentencing a person to imprisonment for an offence, a court is required -
(a) firstly, to set a minimum term of imprisonment that person must serve for the offence; and
(b) secondly, to set an additional term during which the person may be released on parole.
(2) The additional term must not exceed one third of the minimum term, unless the court decides there are special circumstances.
(3) …
(4) …”

(S6 of the Sentencing Act preserved the discretion to decline to set minimum and additional terms, and to set a fixed term of imprisonment, again where the court considered it appropriate to take that course.)

35 S5 was, in turn, replaced by s44 of the Sentencing Procedure Act (1999) (Crimes Legislation Amendment (Sentencing) Act 1999). S44 then provided:

“44(1) When sentencing an offender to imprisonment for an offence, the court is required:

(a) firstly, to set the term of the sentence, and
(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).


(2) the non-parole period must not be less than three quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

(3) …

(4) …

(5) …”

By s45, the discretion to impose a fixed term of imprisonment, where the circumstances were considered to be appropriate, continued.

36 By amendment commencing 1 February 2003 (Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) 2002 No 90) s44 was amended, so that, in its current form, it relevantly provides:

“44(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(3) …

(4) …”

37 An apparent anomaly is here to be observed. Notwithstanding the mandatory nature of the language of the current s44(1) – “the court is first required to set a non-parole period …”, s45 continues, as it previously did, to provide a discretion to impose fixed-term sentences in appropriate circumstances. The only reasonable way of reconciling the two sections is to read s44(1) as though it included the words “except as provided for by s45”, or “unless the court decides, pursuant to s45, to decline to specify a non-parole period …” or words to similar effect, or s45 began with the words “notwithstanding s44(1) …”.

38 By the same Act an amended s44 Division 1A was introduced into Part 4 of the Sentencing Procedure Act. This effected a quite radical change in sentencing in relation to certain specified offences, catalogued in a Table to the Division. In respect of these offences, a standard non-parole period was specified. S54B imposes upon the sentencing court in relation to those offences, an obligation to set the standard non-parole period, unless it determines that there are reasons for setting a longer or shorter non-parole period. Available reasons for taking that course are those contained in s21A of the Sentencing Procedure Act. S54A explains what the standard non-parole period is.

39 The Probation and Parole Act may be put to one side. The succeeding enactments reveal some fluctuation in the approach the legislature has required courts to take in sentencing -

· by s5 of the Sentencing Act (1989 – 2000) the court was required, first to set a minimum term, and, second, to set an additional term;

· by the original version of s44 of the Sentencing Procedure Act (2000 – 2003), the court was required, first to set the (total) term of the sentence, and second, to set a non-parole period;

· by the amended (current) version of s44 of the Sentencing Procedure Act, the court is required, first, to set a non-parole period, and, second, to set a balance of term.

However, too literal an approach to the section is to be avoided. A distinctly two-step or sequential approach is not mandated: see R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [111] – [112]; R v Hampton (1998) 44 NSWLR 729.

40 The approach dictated by the current version of s44 is parallel to that dictated by s5 of the Sentencing Act. That section was the subject of detailed analysis in R v Moffitt (1990) 20 NSWLR 114. In Moffitt it was held that the purpose of a finding of special circumstances under s5 of the Sentencing Act was to enable the court to provide a benefit to an offender by the reduction of the non-parole period at the expense of the parole period, and that it was not intended that such a finding would have the effect of extending the total sentence.

41 In all versions of the statute, the parole period, or balance of term, must be not more than one third of the non-parole period, unless the court determines that there are special circumstances for its being so, which circumstances must be explained. The original purpose in enacting a “statutory norm” with respect to the proportion between the total sentence and the non-parole period was to ensure that offenders spent longer in custody for serious crime: see Moffitt, p119. It was intended to discourage judges from imposing sentences comprising an artificially, or unrealistically, low non-parole period. Through all of the changes to the statutory expression of the judge’s task the “statutory norm” has never varied. It has remained the case that the “statutory norm” with respect to the proportion is 75% non-parole period: 25% parole period/balance of term (absent a finding of special circumstances). I do not understand the rationale for that “statutory norm” to have altered. Put simply, it remains the position of the legislature that, absent special circumstances, an offender ought to spend three quarters of the sentence in custody. It is for that reason that courts are required to explain any departure from the “statutory norm” that reduces the proportion of the sentence to be served in custody, but are not required to explain the imposition of sentences that increase that proportion. I had occasion to consider the correct approach to the current version of s44 in R v Huynh [2005] NSWCCA 220 and in R v Tobar [2004] NSWCCA 391; 150 A Crim R 104. I considered (and consider) that the reasoning in Moffitt continues to apply.

42 The apparent emphasis on the non-parole period, evident in the current version of s44, has potential to deflect attention from the total term of the sentence. But it is important that a sentencing judge maintains a clear focus upon the overall sentence that he or she is imposing: parole is not a right and is by no means automatic. An offender may well serve the whole of his sentence in custody. The total sentence is no less important than the non-parole period.

43 The introduction of the standard non-parole period legislation has cast even greater emphasis upon the non-parole period. It is almost inevitable that a judge sentencing under that legislation will begin the exercise with a consideration of the standard non-parole period. There is nothing erroneous about so doing. But, again, attention needs also to remain focussed upon the ultimate total term. Particularly where special circumstances are found, to begin by determining the non-parole period has potential to distort the process by an extension of the balance of term rather than a reduction of the non-parole period.

44 That the non-parole period is now, by s44(1), required first to be set does not necessarily mean that it must first be determined: see Moffitt, p 122, R v P [2004] NSWCCA 218; R v Tobar. Indeed, in the light of the discretion conferred by subs(2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin a sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffitt and cases thereafter to be the correct course, to reduce the non-parole period.

45 The course of legislative amendment has, in my opinion, been apt to create confusion in the sentencing process. So also has the language of the statutes, as least since s5 of the Sentencing Act. The language of that section, and of both versions of s44, tends to suggest (contrary to what was held in Moffitt and has been repeated), at least to a literal mind, that either the minimum term (s5), the total term (s44, version one) or the non-parole period (s44, version two) must first be determined. That effect has been increased by the introduction of standard non-parole periods.

46 Here, as I have noted above, the balance of term was significantly less that the one third specified by the statutory ratio. The argument advanced on behalf of the applicant was that, as the judge declined to find special circumstances, he ought (but did not) to have preserved the statutory ratio. If that had been his intention he could have achieved it by -

· increasing the parole period; or

· decreasing the non-parole period.

In the light of his express finding that eight years was the minimum time the applicant should spend in custody, the latter was not a realistic alternative. In not preserving the statutory ratio, he gave the applicant the benefit of a shorter balance of term.

47 The potential error that I have identified would be brought about by acceptance of the argument advanced on behalf of the applicant. If, as has been suggested, the judge had sequentially:

(i) determined the non-parole period;
(ii) found special circumstances; and
(iii) determined the total term of the sentence (preserving the statutory ratio),
he would, inevitably, have imposed a head sentence greater than one third of the non-parole period – resulting in a longer total term than he considered appropriate. Maintaining the statutory norm, even in the absence of a finding of special circumstances, would have had the same result.

48 Here, the sentencing judge did, indeed, first determine the non-parole period: he stated expressly that eight years is the minimum term that ought to be served. That was precise compliance with s44(1). The judge avoided falling into the error of extending the balance of term to a sentence beyond proper limits, if for no other reason than as a result of his declining to find special circumstances. His Honour also correctly (without articulating reasons for so doing) avoided setting an excessive head sentence by reducing the balance of term to less than one third of the non-parole period. This, as I have explained above, he was quite entitled to do. The process by which he sentenced the applicant did not produce any error.

49 I would reject this ground of appeal.

Ground 3

50 It remains to consider whether the sentence imposed was, as was submitted, manifestly excessive. In support of this ground counsel relied upon a number of circumstances. These included:

· that, whilst the offence was clearly serious, it was opportunistic and lacking in planning;

· the early plea of guilty;

· the applicant’s resolve to receive and accept counselling and treatment for his “psychological condition”;

· the applicant’s prospects of rehabilitation;

· that the applicant was serving his first custodial sentence (as to which, see above).

51 The task for this Court (and of course for the applicant) is made more difficult by reason of the absence of any determination of where, in the range of objective gravity, this offence stands. His Honour clearly (and properly) regarded the offence as objectively serious.

52 Without expressly saying that he did and without saying why, he found reason for departing from the standard non-parole period of 10 years. The plea of guilty was reason enough for that: Way.

53 I would infer that his Honour considered the applicant’s offence to be greater than an offence in the mid-range of seriousness of offences against s61J. I would not disagree with such a conclusion.

54 Extrapolating from the sentencing judge’s expressed intention to discount the sentence by 20 – 25% by reason of the plea of guilty, counsel submitted that the starting point for the head sentence was between 13 years and one month and 13 years and four months; this against a statutory maximum penalty of 20 years. Counsel also relied upon statistics from the Judicial Commission. From the statistics it may be accepted that the sentence was a relatively heavy one. However, I am unable to conclude that it was so heavy as to be outside the range legitimately available. It follows that, while I would grant leave to appeal against the sentence, I would dismiss the appeal.

55 PRICE J: I agree with the reasons and orders proposed by Simpson J.

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22/02/2007	-	Date of Probation and Parole Act 1983 corrected. - Paragraph(s) 33
08/02/2008	-	Edit error - replace "not less that" with "not more than" - Paragraph(s) 41