Reported Decision: 189 A Crim R 178 New South Wales Court of Criminal Appeal CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB [2008] NSWCCA 236 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 29 August 2008 JUDGMENT DATE: 14 October 2008 JUDGMENT OF: Basten JA at 1; Hislop J at 55; Price J at 56 (1) Dismiss the appeal by the Director of Public Prosecutions against the sentence imposed by Hall J on 17 December 2007 in respect of his conviction for murder. DECISION: (2) Grant the respondent leave to appeal against the sentence imposed on him in respect of his conviction for murder, quash the sentence and re-sentence the respondent as follows: (i) set a non-parole period of 20 years to commence on the expiration of the non-parole period of four years six months imposed for the offence of manslaughter, on 6 November 2009 and expiring on 5 November 2029; (ii) set a balance of term of six years eight months to commence on 6 November 2029 and expiring on 5 July 2036. CATCHWORDS: SENTENCING – error in sentencing – not corrected by trial judge –inconsistencies in reasons for sentencing – how court of criminal appeal should address error – whether setting lesser sentence warranted in law – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – Criminal Appeal Act 1912 (NSW), s 6(3) - SENTENCING – relationship killings – setting of sentence for murder of young child – calculation of non-parole period and balance of sentence on parole – whether special circumstances justify higher balance of sentence – questions of accumulation – questions of totality – whether sentence proportionate to overall criminality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - SENTENCING – standard non-parole period – when court should set standard non-parole period – whether offence in middle of range of objective seriousness – whether aggravating or mitigating factors – table of "standard non-parole periods" – whether conditions of imprisonment should be considered – relationship killings – murder of young child – comparison with life imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54, 54A, 54B, Part 4, Div 1A - WORDS & PHRASES – "middle of the range of objective seriousness" – "objective seriousness of the offence" – "standard non-parole period" Children (Criminal Proceedings) Act 1987 (NSW), s 11 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43, 44, 54, 54A, 54B, 61; Div 1A, Pt 4, Sch 1 [57] Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [8] Criminal Appeal Act 1912 (NSW), s 6(3) CATEGORY: Principal judgment R v Bond [2000] NSWSC 1059 R v Fraser [2004] NSWSC 53 R v Hampton (1997–1998) 44 NSWLR 729 R v Harris [2000] NSWCCA 469; 50 NSWLR 409 R v Lewis [2001] NSWCCA 448 CASES CITED : R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v Moffitt (1990–1991) 20 NSWLR 114 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Regina v Cheatham [2002] NSWCCA 360 Regina v Miles [2002] NSWCCA 276 Regina v Park [2003] NSWCCA 142 Regina v Toki [2003] NSWCCA 125 PARTIES: Director of Public Prosecutions (NSW) - Appellant RHB - Respondent FILE NUMBER(S): CCA 2006/00003393 COUNSEL: D Arnott SC - Appellant P Strickland SC - Respondent SOLICITORS: S Kavanagh - Appellant S E O'Connor - Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 2006/1749 LOWER COURT JUDICIAL OFFICER: Hall J LOWER COURT DATE OF DECISION: 17 December 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v RHB [2007] NSWSC 1466 IN THE COURT OF CRIMINAL APPEAL CCA 2006/00003393 SC 2006/1749 BASTEN JA HISLOP J PRICE J 14 October 2008 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB Headnote The respondent was convicted of manslaughter and murder for two deaths, which occurred 11 years apart. In respect of each offence, the deceased was a young child in the respondent's care at the time of death. In relation to the manslaughter, the respondent was sentenced to a non-parole period of four years six months, with a balance of one year six months, giving a sentence with a term of six years. In relation to the murder, the trial judge found that the offence was in the middle of the range of objective seriousness; therefore, the standard non-parole period applied. His Honour made the non-parole period for the murder cumulative upon the non-parole period for the manslaughter. The non-parole period was set at 20 years, giving a total period of mandatory incarceration of 24 years 6 months. His Honour specified 10 years as the balance of the sentence for murder, giving a sentence term of 30 years imprisonment for the murder. The Crown and the offender appealed the murder sentence. The issues for determination on appeal were whether the orders made by the trial judge correctly reflected the proper approach in sentencing for murder, and, if not, what the Court should do to correct the error. The Court held, dismissing the Crown appeal and allowing the offender's appeal: (per Basten JA, Hislop and Price JJ agreeing) 1. Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") requires the court to first set a non-parole period for the sentence, then identify the balance of the term and thus the resulting sentence. The Court must consider the overall effect of the sentence to determine whether it is the appropriate sentence for the offence: [18]. R v Hampton (1997–1998) 44 NSWLR 729; R v Moffitt (1990–1991) 20 NSWLR 114, applied. 2. The standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness of the relevant offence: Sentencing Procedure Act, s 54A(2). Once the sentencing judge is satisfied that a standard non-parole period should be set, in the absence of special circumstances, it will be necessary to impose a balance of the term calculated as not more than one-third of the non-parole period (s 44(2)): [16], [19]. 3. It seems likely, in relation to murder, that the middle of the range of objective seriousness encompasses a variable set of circumstances and an assessment, based on no precise criteria, which will allow a broad discretion to the trial judge. The range of circumstances falling within the middle range of objective seriousness does not include the most extreme cases which warrant the imposition of a sentence of life imprisonment, nor those murders involving other circumstances of aggravation identified in the Table to Division 1A, Part 4 of the Sentencing Procedure Act: [29], [48]. R v Way [2004] NSWCCA 131; 60 NSWLR 168, applied. 4. The conditions of incarceration may impact more severely on particular prisoners for a range of reasons which will often be unrelated to their offences. If they are known to the trial judge, they may be taken into account in determining the length of sentence: [43]. 5. It is not possible to reconcile his Honour's conclusion that the standard non-parole period should be set and the conclusion that there were no special circumstances warranting an increase in the balance of the sentence beyond one-third of the non-parole period with the imposition of a sentence of 30 years imprisonment: [21], [44]. The Court must intervene to pass that sentence which is warranted in law and should have been passed (Criminal Appeal Act 1912 (NSW), s 6(3)): [44]. 6. Against the characterisation of the offence as being in the high range were the lack of planning and the appearance of a spontaneous and impulsive act resulting from an unexplained rage, the lack of any gratuitous cruelty or prolonged suffering and the absence of sexual gratification. On the other hand, there was no psychological evidence of depression or other psychiatric disorder; although the respondent did not seek to conceal the consequence of his conduct, he did not accept his guilt and there was a prior instance of similar violence: [46]. R v Bond [2000] NSWSC 1059; R v Harris [2000] NSWCCA 469; 50 NSWLR 409; R v Lewis [2001] NSWCCA 448; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557; Regina v Miles [2002] NSWCCA 276; Regina v Toki [2003] NSWCCA 125, considered. Regina v Cheatham [2002] NSWCCA 360; Regina v Park [2003] NSWCCA 142; R v Fraser [2004] NSWSC 53, referred to. 7. There is a likelihood that the respondent will suffer a degree of severity in the conditions of his imprisonment beyond that faced by most of the prison population for a significant portion of his sentence: [49]. 8. The appropriate course is to impose a sentence comprising the standard non-parole period of 20 years and add one-third of the standard non-parole period to give a term of sentence of 26 years eight months: [52]. IN THE COURT OF CRIMINAL APPEAL CCA 2006/00003393 SC 2006/1749 BASTEN JA HISLOP J PRICE J 14 October 2008 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RHB Judgment 1 BASTEN JA: This matter involves an appeal by the Director and a cross-application for leave to appeal by the respondent, each in relation to the sentence imposed on the respondent by Hall J on 17 December 2007 in respect of one count of murder. 2 The respondent stood trial and was convicted on two separate counts, arising out of deaths which occurred 11 years apart, the earlier offence involving a count of manslaughter. In respect of each offence, the deceased was a young child who was in the care of the respondent at the time of his death. The respondent is referred to by initials in the title to this judgment because a non-publication order made by the trial judge remains in force. The purpose of the order was to protect the identity of two children who gave evidence at the trial. There has been no challenge to the continued operation of the order. Publication or broadcasting the name of any child who appeared as a witness or was involved in or mentioned in the proceedings is separately prohibited: see Children (Criminal Proceedings) Act 1987 (NSW), s 11. 3 There was no challenge to the convictions, nor to the sentencing on the conviction for manslaughter. Stated briefly, the dispute is whether the orders made by the trial judge correctly reflected the proper approach in sentencing on the conviction for murder: see Regina v RHB [2007] NSWSC 1466 at [107]-[108] (Hall J). 4 Understandably, given the nature of the issues, there was an application to the trial judge by the Director pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") to reopen the proceedings to correct an apparent error in the sentencing. For reasons which will be noted below, his Honour rejected that application, but gave some explanation for the approach he had adopted in his further judgment, delivered on 20 June 2008. Background 5 In order to understand the nature of the issues in contention, it is necessary to provide some brief background to the offences and the sentences imposed. 6 The first offence occurred on 26 January 1993. It involved Caleb, the 14-month-old son of the respondent's then partner, Tania Paull. The respondent had met Ms Paull in about June 1992 and they had married in December 1992. The boy had been at home, in the respondent's care, when Ms Paull came inside the house to find the respondent with the boy unconscious in his arms. He was taken to Campbelltown Hospital and then transferred to the Children's Hospital where he was pronounced dead. On admission to hospital he was noted to have "a two centimetre four-day old bruise over his left forehead, recent bruising to his left ear on the inner surface of the helix and finger mark bruising to his arms": Summing up, 16/10/07, [106]. A CT scan showed cerebral oedema and a fracture of the skull. The child had been severely shaken and probably struck over the skull with a blow having significant force, or had been propelled against a hard object with significant force. The verdict of manslaughter was available to the jury on the basis of an unlawful and dangerous assault on the child by the respondent. 7 The respondent separated from his wife and in 2003 formed an intimate relationship with her twin sister, Karen Paull. Karen Paull did not live with the respondent and remained on good terms with her former husband, from whom she had recently separated, Mr Dean Schoer. She and Mr Schoer had a son, Isaac, who was born on 13 February 2002. On 14 February 2004, the day after Isaac's second birthday, he suffered a fractured skull, subdural hematoma, brain swelling, bruises to the skull and retinal haemorrhages, as a result of which he died. At the time he was in the care of the respondent, together with two brothers aged six and nine years respectively. In sentencing the respondent, the trial judge concluded that the respondent had inflicted a severe injury by means which had not been revealed and in a state of "uncontrolled aggression": at [88]. 8 The trial judge was satisfied, based on the evidence and the verdicts of the jury, that in each case the respondent had acted with uncontrollable anger and in a violent manner towards an infant in his care. As his Honour noted, each crime exhibited a high level of culpability, although in the case of Caleb Paull the jury must be taken to have concluded that the respondent did not intend to kill the boy or do him really serious harm: at [7]. After noting the submissions of the various parties, his Honour referred to the culpability of the respondent in the following manner: "79 The assessment of the culpability of the offender must be directed to the circumstances surrounding or causally connected with the offence, leaving aside subjective matters (eg, remorse, of which there is no evidence in this case, rehabilitation prospects etc). This requires attention to be given to the blameworthiness of the person standing for sentence. 80 In the offender's case, the objective facts include:- (a) The fact that Isaac was a two year old child. (b) The fact that Isaac was in the care of the offender at the time he inflicted injury, thereby constituting a gross breach of trust. (c) The fact, as the medical evidence established, that a severe force was applied by the offender sufficient to occasion extreme forces occasioning closed head injuries. (d) The fact that he had previously, by an unlawful and dangerous act, inflicted traumatic closed head injuries on Caleb and knew from his assault upon Caleb what the consequences had been and that such a result could again occur. 81 There are in this case in determining objective culpability no facts mitigating the seriousness of the murder of Isaac." 9 Because the respondent gave no explanation of his conduct, the assessment of motive and indeed explanation of the fatal events was missing. In terms of other factors relevant to sentencing, his Honour stated at [71]: "It was emphasised that the offender is presently 41 years of age and that, on that basis, the question of parole would not arise until he was well into his 60s. Allowance should also be made, Ms Davenport [counsel for the offender] argued, for the fact, in terms of dangerousness, that people do change as they mature. Reference was also made to the fact that it is highly unlikely that he would become involved in a situation of having a relationship with a woman who had a young child." 10 His Honour noted the submission that "the offender is in a special protection area of Parklea Prison and when transferred he will go into a non-association environment emphasising the severity associated with those conditions": [72]. 11 In relation to the manslaughter of Caleb Paull, the respondent was sentenced to a non-parole period of four years six months, with a balance of one year six months, giving a sentence with a term of six years. No issue is raised in respect of that sentence. Identifying error 12 The critical question in the present case concerned the sentence imposed for the murder. It was necessary for the trial judge to consider the operation of Part 4, Div 1A of the Sentencing Procedure Act, which contains a Table of "standard non-parole periods" which then prescribed a period of 20 years for the offence of murder. (In the case of a victim who is under the age of 18 years, that has since been varied to provide a standard non-parole period of 25 years, an amendment which was not operative at the time that the respondent was sentenced – see Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 [8], which commenced on 1 January 2008 – and is inapplicable by virtue of Schedule 2 [57] of the Sentencing Procedure Act.) 13 Section 54B of the Sentencing Procedure Act also provides that when sentencing for an offence covered by the Table, 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 different period: s 54B(2). That defeasible obligation is qualified further by the requirement that the standard non-parole period "represents the non-parole period for an offence in the middle of the range of objective seriousness" of the relevant offence contained in the Table: s 54A(2). Section 54B further provides that, in considering reasons for not setting the standard non-parole period, the Court may only have reference to the factors referred to in s 21A. That constraint is not as significant as might appear, because the section expressly states that the aggravating and mitigating factors there identified are "in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law": s 21A(1). 14 In considering whether to impose such a period, his Honour found that the offence itself was in the middle of the range of objective seriousness with respect to murder: at [99]. The non-parole period for the murder was made cumulative upon the non-parole period for the manslaughter conviction. As his Honour found that the standard non-parole period was to apply, the non-parole period for that offence was set at 20 years, giving a total period of mandatory incarceration of 24 years 6 months, which commenced on 6 May 2005 and will expire on 5 November 2029. 15 The matter which gave rise to confusion was his Honour's specification of 10 years as the balance of the sentence for the murder, giving a sentence term for the murder of Isaac Schoer of 30 years imprisonment. 16 Pursuant to s 44(2) of the Sentencing Procedure Act, the balance of the term of a sentence must not exceed one-third of the non-parole period, unless the Court decides that there are special circumstances justifying a higher proportion. In the present case, his Honour expressly declined to find special circumstances, yet prescribed a balance of the term of the sentence which was one-half of the non-parole period. Further, he expressly stated that the non-parole period for the murder was 80% of the proposed head sentence: at [106]. These matters gave rise to both the Director and the respondent seeking the intervention of this Court. 17 The statutory maximum proportion (absent special circumstances) may be expressed as a non-parole period which is not less than 75% of the term of the sentence. Adopting that approach, there is no restriction on the prescription of a non-parole period greater than 75%, as his Honour proposed. Adopting the language of the statute, that course would involve a balance of the term of the sentence of less than one-third of the non-parole period. To achieve a non-parole period which was 80% of the term of the sentence, it would be necessary to add a balance being 25% of the non-parole period. If the non-parole period were specified as 20 years, one would expect a balance of five years, giving a sentence of 25 years imprisonment. That figure is, of course, five years less than the sentence imposed. It was in support of this approach that the respondent sought to cross-appeal on the basis of an excessive sentence. 18 The language of s 44 of the Sentencing Procedure Act requires that "the court is first required to set a non-parole period for the sentence": sub-s (1). In terms of pronouncing sentence, it is necessary to take that step first, then identify the balance of the term and thus the resulting sentence. However, it is well-established in terms of principle that the exercise of discretion does not require that the trial judge first determine what is the appropriate period of mandatory imprisonment, with the balance of the term being dictated by the arithmetical step of adding a defined proportion (always absent special circumstances). Rather, the Court must give consideration to the overall effect of the sentence in order to determine whether it is the appropriate sentence for the offence: R v Hampton (1997-1998) 44 NSWLR 729, 732B-C (Spigelman CJ, Powell JA and Newman J agreeing); R v Moffitt (1990-1991) 20 NSWLR 114, 116B (Samuels JA). Were it otherwise, a finding of special circumstances might result in a disadvantageous calculation from the perspective of the offender, by extending the sentence period inappropriately. On the other hand, it would also be erroneous to fix the term of the sentence and assess the relevant non-parole period as a proportion of the overall term. The sentencing exercise requires a more nuanced approach, so that the term and the non-parole period are both appropriate in the circumstances, taking into account, in many cases, questions of accumulation, where there are a number of offences, and questions of totality, which may require adjustment of the individual sentences or non-parole periods to achieve an outcome which is not disproportionate to overall criminality. 19 To an extent, however, that understanding is qualified by the operation of the standard non-parole period regime. Once the sentencing judge is satisfied that a standard non-parole period should be set, in the absence of special circumstances, it will be necessary to impose a balance of the term calculated as not more than one-third of the non-parole period. A lesser balance may be fixed, but not a greater period. It follows that the approach adopted in the present case was erroneous. 20 As his Honour accepted in his further judgment on the s 43 application, there were inconsistencies between statements in paragraphs [104] and [106] and the sentence imposed at [108]: see further judgment at [16]. His Honour stated that the inconsistencies arose from "incorrect statements in the first and second sentences of paragraph [106]": at [17]. In effect, he affirmed an intention to impose the sentences which were imposed and thus to disregard the statements in [106] of the sentencing judgment. 21 There are statements in the first two sentences of [106] which involve error. First, when stating that the non-parole period in respect of the offence of murder was to be 80% of the proposed head sentence, his Honour compared that to "the statutory norm of 66%". As noted above, the statutory norm refers to the balance of the term as a proportion of the non-parole period, not the non-parole period as a proportion of the term of the sentence. Secondly, his Honour referred to a "somewhat longer than normal non-parole period" as being justified. That statement was only consistent with the proposition that the proposed non-parole period was to be 80% of the proposed sentence. Eighty per cent of a sentence of 30 years is, as the Director noted, 24 years and not 20 years. However, to impose a non-parole period of 24 years would be inconsistent with the conclusion that the standard non-parole period of 20 years should apply. Correcting the error 22 The issue in the present appeals is to determine what should be done to correct the error. The respondent argues that effect should be given to the expressed intentions of the sentencing judge by reducing the balance of the term from 10 years to five years. The Director contends that effect should be given to the intention of the trial judge to fix the term of the sentence as 30 years, with commensurate adjustments to the non-parole period and the balance of the term. 23 It is necessary to turn to what the trial judge stated with respect to the exercise of sentencing the respondent, particularly in respect of the count of murder. The following statements may be isolated from his Honour's reasons: (a) the standard non-parole of 20 years applies to the case: [102]; (b) "in respect of the murder of Isaac Schoer, I consider an overall sentence entailing a head sentence of 30 years and a non-parole of 20 years to be indicated": [104]; (c) the sentence for murder should be wholly accumulated upon the non-parole period of four years six months in respect of the manslaughter: [104]; (d) the "sentences" will be produce an effective head sentence of 30 years imprisonment and a non-parole period of 24 years six months: [105]; (e) the "non-parole period proposed in respect of the offence of murder is 80% of the proposed head sentence": [106]; and (f) there is to be no finding of "special circumstances" for the purposes of s 44(2): [106]. 24 Recognising the inconsistency between (b) and (e), the Director argued that a 24 year non-parole period was correct because his Honour was in error in describing the murder of Isaac Schoer as falling within the middle of the range of objective seriousness of the offence of murder. In support of that contention, the Director noted that the trial judge, after referring to the need to take into account circumstances of aggravation and mitigation listed in s 21A(2) and (3) of the Sentencing Procedure Act relevant to the objective seriousness of the offence, had concluded that the standard non-parole period applied: at [102]. His Honour then continued: "The factors to be taken into account in that respect include the fact that the victim of the offence was a very young child who was vulnerable and that the offender abused his position of trust and authority in relation to the victim. They also include the factual circumstances surrounding the offence and the other matters to which I have referred including the issue of premeditation and the subjective factors, as earlier discussed." 25 It is clear that his Honour was identifying the elements of the exercise required pursuant to s 54B. It is established by authority in this Court that the objective seriousness of the offence may require reference to matters "personal to the offender at the time of the offence" such as duress, provocation, mental illness and related matters: see R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [85]-[86] (Spigelman CJ, Wood CJ at CL and Simpson J). 26 The Director accepts that the analysis required by the statutory scheme, as construed in Way, was that undertaken by his Honour. Nevertheless, the Director contends that properly undertaken, that exercise could not result in the conclusion that the murder was in the middle range of objective seriousness. That was because the objective facts which his Honour had identified at [80] – see [8] above – included nothing which could be seen as mitigating the seriousness of the crime. That indeed was his Honour's conclusion at [81]. Accordingly, there was error in determining that the standard non-parole period applied. The murder should properly have been categorised as falling above the middle range of objective seriousness and thus requiring a lengthier non-parole period than the "standard non-parole period". 27 The Director also noted that his Honour made no express finding as to whether the crime fell within the middle of the range of objective seriousness, although he accepted that such a finding could be implied from the application of the standard non-parole period. 28 In any case where the sentencing judge has discretion as to the appropriate sentence and as to the imposition of a non-parole period, there will be at least implicit findings as to where on a scale of culpability the particular offence falls. Often that judgment will be masked by consideration of circumstances specific to the offender or the likely conditions of imprisonment. However, some judges may think it demeaning to the dignity of the victim and offensive to the victim's family and friends to be required to state expressly where on the scale of objective seriousness the particular murder falls. The omission in the present case to make an express finding in that regard may well be referable to such sensitivities: it was clearly not the case that his Honour failed to consider the statutory test. 29 There are other difficulties with the statutory scheme. The need to consider whether an offence falls within "the middle of the range of objective seriousness" raises the question whether, on the spectrum of objective seriousness, the sentencing judge is required to identify a point or a band and, if a band, a narrow band or a broad band. In semantic terms, the middle of the range is not itself a band or range, but a point or line defined with greater or lesser precision. In practical terms, the distinction will be less significant. It is clear, particularly in the case of an offence such as murder, that there can be no precise identification of the middle of the range of seriousness. The best that can be said is that it will cover an area with no clear boundaries. Nevertheless, that image is different from one envisaging a broad "middle range" or "mid range" which encompasses most cases, but excludes the most and least serious kinds of offence. The proper approach is important, because it will determine whether the standard non-parole period is to be applied in the rare cases which fall precisely in the middle of the range or in a significant proportion of cases which are not obviously in the highest or lowest level culpability. 30 The exercise is complicated by other factors. As the Court held in Way, the middle of the range does not necessarily identify the "typical" offence: at [100]. Way also states that the middle of the range (described as "the midrange of seriousness") is not necessarily a narrow band, although that does not purport to identify a universal rule: at [102]. The extent to which these distinctions matter may depend in part upon how broad the discretion is, quite apart from the statutory regime, in determining a non-parole period for murder. Finally, the difficulty in placing objective seriousness on a range is that particular features of particular cases may suggest a high level of culpability, though for different reasons. It would follow that the absence of a particular feature (such as premeditation) would not necessarily be inconsistent with a high level of culpability. 31 This last consideration had direct relevance in the present case. Thus, the fact that the victim was a young child in the care of the offender was clearly an aggravating factor. On the other hand, a planned killing of a person (otherwise unknown to the offender) for money might also be seen as an aggravating circumstance. Similarly, objective culpability is often held to be higher where the victim is a law enforcement officer. 32 These considerations reveal a further problem with the exercise of determining where a particular murder falls in the range of objective seriousness. The Table to Division 1A now includes three separate categories and two different standard non-parole periods within the offence of murder. Where, as in the present case, the offence fell, at the relevant time, within the residual category, it is arguable that the range should be assessed without reference to those murders which carry a 25 year standard non-parole period. Equally, because no non-parole period can be set with respect to life imprisonment – see Sentencing Procedure Act, s 54 and R v Harris [2000] NSWCCA 469; 50 NSWLR 409 at [122] (Wood CJ at CL, Giles JA and James J agreeing) – offences requiring such a sentence should also be excluded. 33 The Director contended that the sentence of 30 years was appropriate and, given that there was no error in failing to identify special circumstances, the appropriate non-parole period would, in conformity with the statutory proportion, have been 22.5 years. He referred to R v Bond [2000] NSWSC 1059, which he described as a case with comparable features. In that case, the offender had been convicted of the murder of a woman with whom he was involved and whom he had bashed at her home. A similar offence had occurred some 10 years earlier, involving the death of another woman with whom he was involved and whom he had bashed whilst walking home from the pub, while affected by alcohol. He had pleaded guilty to manslaughter and had been sentenced; he had been released from prison and was drawing close to the end of his parole period with respect to that offence, when he committed the second offence. James J, in sentencing the offender for the offence of murder, noted that there had been "almost a complete lack of any subjective circumstances which might have attracted some leniency"; the absence of contrition, the absence of material demonstrating prospects of rehabilitation, an extensive criminal history and a trial resulting in conviction for murder: at [69]. He sentenced the offender to a term of 30 years imprisonment and set a non-parole period of 25 years. The similar pattern of behaviour in the present case, perhaps aggravated by the fact that the victim was a child, demonstrated, the Director contended, that the standard non-parole period was inappropriate and that a lengthier term should have been imposed. 34 At trial the Director argued that a sentence of life imprisonment was appropriate. Pursuant to s 61 of the Sentencing Procedure Act, the Court is required to impose such a sentence if satisfied that "the level of culpability in commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence" can only be met through the imposition of that sentence: sub-s (1). That submission has not been repeated on appeal. The trial judge dealt with the submission by reference to the analysis provided by this Court in R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 (Woods CJ at CL, Tobias JA and Hidden J agreeing). In that case there were three victims, being the respondent's three children whom he killed on one night. After reviewing the cases of murder by a parent of his or her children, Wood CJ at CL noted that there appeared to be none where a life sentence had been imposed, other than the sentences then under appeal: at [65]. His Honour did not doubt that such a sentence could be appropriate: [69]. His Honour set out a number of factors by which the objective criminality should be regarded as being tempered, including the lack of planning, the absence of any background of abuse or violence, that they were not carried out for sexual gratification, that the applicant was in a state of depression, that he did not attempt to conceal the offences but accepted his guilt from the outset, and that he had no prior history of similar violence towards children: at [71]. There were also subjective features which spoke in his favour: at [75]. The Court set aside the life sentences and imposed for each count a term of imprisonment of 24 years with a non-parole period of 18 years (in two cases) and 17 years (in one case), with a degree of accumulation giving a total sentence of 34 years with a period of mandatory incarceration of 27 years. The overall period of mandatory incarceration was just under 80% of the accumulated sentences. Respondent's submissions 35 Counsel for the respondent referred the Court to the analysis of "relationship killings" undertaken by Hidden J in Regina v Toki [2003] NSWCCA 125. In Toki, this Court upheld an appeal by the prosecution and imposed a sentence of life imprisonment on the basis that that was the only appropriate sentence, given the extreme level of culpability, for the purposes of s 61(1) of the Sentencing Procedure Act. Smart AJ (with whom Levine J relevantly agreed) accepted the analysis undertaken by Hidden J as revealing that "it is only in an exceptional case that a sentence in excess of 20 years has been passed where the killing was not premeditated": Hidden J at [32]; cf Smart AJ at [36]. 36 In carrying out that analysis, Hidden J "put to one side" three cases described as "entirely exceptional" in which sentences of life imprisonment were imposed: at [27]. Of the two more recent cases, one involved a "contract killing" and thus premeditation and planning: see R v Lewis [2001] NSWCCA 448. The second case did not. Regina v Miles [2002] NSWCCA 276 involved an offender who had killed a previous lover in a fit of jealous anger some nine years earlier and, having escaped from gaol, discovered a second woman with whom he had been in an intimate relationship in bed with another man and stabbed her. Although the offender was carrying a knife at the time of the offence, it was not found to be a premeditated attack, but the product of jealous rage. 37 While it may be said that a life sentence will, by definition, only be imposed in an extreme case, care must be taken in rejecting such cases as of no assistance with respect to cases which may not fall squarely within the same category of culpability. This point may be illustrated by the valuable analysis undertaken by Wood CJ at CL in Merritt. 38 The respondent also referred the Court to a number of cases involving multiple deaths, including Regina v Park [2003] NSWCCA 142; R v Fraser [2004] NSWSC 53 (Howie J) and Regina v Cheatham [2002] NSWCCA 360. These cases demonstrate points of distinction rather than similarity, in that the involvement of more than one victim requires consideration of the accumulation of the individual sentences, subject to the constraints imposed by the principle of totality. 39 The respondent relied upon this material for two purposes: first, it was designed to demonstrate that the sentence imposed by the trial judge was not manifestly inadequate so that, whether or not his Honour made technical errors, the Court should not intervene to increase the sentence. Secondly, the material was put in support of the respondent's appeal as a basis for concluding that the sentence imposed for murder was excessive. Further evidence 40 The respondent also sought to rely upon further (fresh) evidence concerning his circumstances in custody. His affidavit, sworn 27 August 2008, stated that he had been a "protection prisoner" at all stages whilst in custody and had been transferred on 28 February 2008 to Lithgow Gaol. About 10 days after the transfer, he was seriously assaulted by punches to the face, which resulted in heavy bruising and facial fractures. He stated that he had suffered facial pain for some months, which was continuing, and, according to the medical notes, resulted from injury to the infraorbital nerve. He was subsequently classified as a "non-association" prisoner and then as a "limited association" prisoner, having contact with one other inmate. 41 According to his affidavit, the motive for the attack was unrelated to his offences, but resulted from the fact that he was recognised as coming from "a family of police", as he physically resembled his brothers, both of whom were police officers, as was his sister and as were the partners of his two brothers. 42 This evidence was tendered to demonstrate that his conditions of imprisonment had been, and would continue to be for the duration of his sentence, a more severe form of punishment than that ordinarily suffered by a prisoner. The material was relied upon both in the event that the Court should engage in a re-sentencing exercise and as material relevant to the exercise of discretion with respect to the Director's appeal. 43 The Director objected that the evidence should be disregarded because any additional constraints resulting from his vulnerability as a prisoner had nothing to do with the offences for which he had been incarcerated. That objection should not be accepted. The conditions of incarceration may impact more severely on particular prisoners for a range of reasons which will often be unrelated to their offences, including their states of health. These are not irrelevant considerations. If they are known to a trial judge, they may be taken into account in determining the length of sentence. The evidence proffered is therefore not immaterial. Disposition 44 In the present case, it is not possible to reconcile his Honour's conclusion that the standard non-parole period should be set and the conclusion that there were no special circumstances warranting an increase in the balance of the sentence beyond one-third of the non-parole period with the imposition of a sentence of 30 years imprisonment. It would not have been inappropriate for the inconsistencies to have been corrected on the application under s 43 of the Sentencing Procedure Act. However, that step not having been taken, this Court must intervene to pass that sentence which is warranted in law and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3). 45 With respect to the Director's appeal, there is force in the submission that this case fell above the middle of the range. That the victim was an infant; that the respondent had prior knowledge of the potentially fatal consequences of violent behaviour towards an infant; the likely effects on the family generally; that the child was in his care; the absence of any explanation or circumstances mitigating culpability are all factors tending to support that conclusion. 46 Nevertheless, were it not for the inconsistency, the Director's contention with respect to the application of the standard non-parole period would not be upheld. Although there are features which suggest that the murder was a very serious offence, similar features will arise with respect to many murders. It is significant that in Merritt Wood CJ at CL described a number of factors as tempering the objective criminality: these were not mitigating factors, but an absence of certain aggravating circumstances. Some of those applied in the present case; others did not. Against the characterisation of the offence as being in the high range, were the lack of planning and the appearance of a spontaneous and impulsive act resulting from an unexplained rage, the lack of any gratuitous cruelty or prolonged suffering and the absence of sexual gratification. On the other hand, there was no psychological evidence of depression or other psychiatric disorder; although he did not seek to conceal the consequence of his conduct, he did not accept his guilt and, as already noted, there was a prior instance of similar violence. 47 The unchallenged conclusion reached by the trial judge was that this case did not fall within s 61 of the Sentencing Procedure Act so as to warrant a sentence of life imprisonment. On the other hand, the adoption of the standard non-parole period was consistent with a sentence in excess of 20 years imprisonment. 48 It seems likely, in relation to murder, that the middle of the range of objective seriousness must be seen to encompass a variable set of circumstances and an assessment, based on no precise criteria, which will allow a broad discretion to the trial judge. In assessing objective seriousness, it must be borne in mind that the range will not include the most extreme cases which warrant the imposition of a sentence of life imprisonment. Further, it must be borne in mind that the 20 years standard non-parole period is not applicable in relation to a range of murders involving other circumstances of aggravation identified in the Table to Division 1A. 49 In considering whether to intervene on the basis that the standard non-parole period was manifestly inadequate, some weight can be given to the circumstances of imprisonment, as revealed by the fresh evidence because, even if the trial judge had reached the conclusion that the precondition to the imposition of a standard non-parole period identified in s 54A was satisfied, it would still be necessary to consider whether factors subjective to the offender and unrelated to the offence warranted a different non-parole period. Evidence of particularly harsh conditions of imprisonment would be relevant at that stage. The likelihood is that the respondent will suffer a degree of severity in the conditions of his imprisonment beyond that faced by most of the prison population for a significant portion of his sentence. 50 In combination, these reasons require rejection of the Director's appeal with respect to the imposition of the standard non-parole period. 51 The next question is whether the balance of the term for the sentence of murder should constitute one-third of the standard non-parole period or a lesser proportion. (There being no finding of special circumstances, it cannot result in a higher proportion.) 52 It is true that his Honour indicated an intention that the non-parole period for the offence of murder should be 80% of the term of the sentence: at [106]. That was not a statement of intent, but a statement of fact. In its terms it was in error. Nevertheless, it was only marginally in error, arithmetically, if one took account, not merely of the sentence with respect to the murder, but the cumulative non-parole period of 24.5 years, as compared with the 30 year sentence of imprisonment for murder. More importantly, his Honour gave no reason for decreasing the proportion of the balance of the term below the statutory maximum of one-third. Such a calculation was open in the absence of special circumstances, but some justification might have been expected. As this Court is now re-sentencing the respondent, the appropriate course is to impose a sentence with the addition of one-third of the standard non-parole period, to give a term of sentence of 26 years eight months. 53 To take that step necessarily involves upholding the respondent's cross-appeal with respect to the term of the sentence for murder. Orders 54 The orders I would propose are as follows: (1) Dismiss the appeal by the Director of Public Prosecutions against the sentence imposed by Hall J on 17 December 2007 in respect of his conviction for murder. (2) Grant the respondent leave to appeal against the sentence imposed on him in respect of his conviction for murder, quash the sentence and re-sentence the respondent as follows: (i) set a non-parole period of 20 years to commence on the expiration of the non-parole period of four years six months imposed for the offence of manslaughter, on 6 November 2009 and expiring on 5 November 2029; (ii) set a balance of term of six years eight months to commence on 6 November 2029 and expiring on 5 July 2035. 55 HISLOP J: I agree with the orders proposed by Basten JA and generally with his Honour's reasons. 56 PRICE J: I have had the opportunity of reading the draft of the judgment prepared by Basten JA and am in general agreement with his Honour's reasons. I agree with the orders proposed by Basten JA. 57 THE COURT: After delivering judgment in this matter it became apparent that there was an arithmetical error in order (2)(ii). That order correctly identified the balance of the term with respect to the conviction for murder as six years eight months to commence on 6 November 2029. The error was in specifying the expiration of the balance as occurring on 5 July 2035. The correct date should have been 5 July 2036. The date of expiration of the sentence is corrected to "5 July 2036". ********** 13/11/2008 - Adding new paragraph to correct arithmetical error in order (2)(ii). - Paragraph(s) 57 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.