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Chrissa Loukas,
Barrister, Public Defender
January 2009
The author thanks Prita Supomo, Research Lawyer, Public Defenders' Chambers, for her invaluable assistance in the preparation of this Paper.
This paper reviews significant Court of Criminal Appeal sentencing decisions through 2008. Section 21A of the Crimes (Sentencing Procedure) Act 1999 along with standard non-parole periods continue to be fertile ground for appellate intervention. Court of Criminal Appeal decisions in the areas of children, mental illness and totality are of particular note.
Where listed offences are committed after 1 February 2003 and the offence is in the mid-range of seriousness, the standard non-parole period (SNPP) is required to be set unless the court determines that there are reasons for not setting the SNPP: s.54B Crimes (Sentencing Procedure) Act 1999 (Appendix A). Factors in s.21A Crimes (Sentencing Procedure) Act 1999 and the common law are relevant to this exercise. These factors are not a 'narrow list of considerations': Way (2004) 60 NSWLR 168 at 56-57.
In SGJ & KU [2008] NSWCCA 258 the Court reminds us that where a SNPP applies then a non-parole period is to be set. In that case the sentencing judge had erred in setting fixed terms of imprisonment. Per Kirby J (Hodgson JA and Hislop J agreeing:
[76] Fixed terms with various commencement dates were imposed... Indeed, counsel then appearing for the applicant SGJ invited her Honour to take that course. However, it was said on behalf of the applicants on this appeal, that her Honour was obliged, by the terms of s 45 of the Crimes (Sentencing Procedure) Act 1999, to set a non parole period. In respect of offences which specify a standard non parole period, the Act takes away the discretion to decline to set a non parole period. Section 45(1) of the Act is in these terms:
'45(1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the office if it appears to the court that it is appropriate to do so:
(a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or
(b) because of any other penalty previously imposed on the offender, or
(c) for any other reason that the court considers sufficient'.
A significant number of appeals continue to concern the SNPP and the proper assessment of objective seriousness.
The SNPP for murder is 20 years' imprisonment. In Yun [2008] NSWCCA 114 it was an error to focus solely on an offender's intent when assessing the objective seriousness of the offence. Allowing the appeal, the Court (Beazley JA, Barr and Hoeben JJ) said:
[27] The applicant submitted that his Honour erred in his assessment of the objective seriousness of the offence at above the midrange for offences of this kind. The applicant submitted that the only reason offered by his Honour for that assessment was his finding as to intent, ie that at the relevant time the applicant had an intention to kill. The Court was referred to Apps v Regina [2006] NSWCCA 290 at [49] where Simpson J said:
"49 Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way, while the Court expressly alluded to mental states, it followed this by the parenthetical observation that "intention is more serious than recklessness". However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct."....
[29] It seems clear, not only from the statement of principle by Simpson J, but also from the facts of this case, that his Honour was in error when he assessed the level of seriousness of this offence at above the midrange. In exercising his discretion his Honour erred in only taking into account the applicant's intent and by not having regard to the other factors which related to the commission of the offence. This is error of the kind referred to in House v The King (1936) 55 CLR 499.
In Versluys [2008] NSWCCA 76 the Court held that '[a]lthough where there is an intention to kill the objective seriousness of the offence is likely to be greater, it does not follow that where the intention is confined to an intention to cause grievous bodily harm that the objective seriousness will fall below the mid range': at [32]. The non-parole period of 20 years' imprisonment. The offender had pleaded not guilty.
was upheld. The strangling of the offender's partner, where there was a history of domestic violence, was at the 'higher end of the mid-range' of objective seriousness.
The SNPP for aggravated sexual assault is 15 years imprisonment. In IE [2008] NSWCCA 70 the applicant (aged 16 at the time of the offences) was sentenced to 10 years with a non-parole of 5 years. Per Latham J (Spigelman CJ and Hulme J agreeing):
[29] The Judge determined that the objective seriousness of the offences under s 61JA fell " just below the middle range" for a combination of reasons, including that the complainant was penetrated on only one occasion in the course of the sexual assaults and that was by the applicant, that no overt threats were made to induce her to go with them, that there were no more than two assailants, that the period of time during which she was deprived of her liberty was a matter of minutes, that she was subjected to no more indignity than the offences themselves described, that there were no threats of reprisal made to her, that she was not struck by either of her assailants, that there was no threat of summoning others, that each of the assailants attacked her in the absence of the other and that she was allowed to leave as soon as the assaults had finished. No issue was taken with this finding.
[30] It may be observed that a non-parole period of 5 years in respect of each of these counts is about half of what might be thought appropriate to offences falling just below the mid range of objective gravity. Far from indicating any manifest excess, both the individual sentences imposed and a fortiori the aggregate sentence, demonstrate a significant departure from the benchmark or guidepost established by the standard non parole period.
In PGM [2008] NSWCCA 172 the offender was sentenced for three offences of sexual intercourse with a child under 10 (s.66A Crimes Act - SNPP 15 years) and three offences of aggravated indecent assault (s.61M(2) Crimes Act - SNPP 5 years). The offences took place over a period of seven months when the victim, the child of neighbours, was aged 6 and 7 years.
The sentencing judge did not err in finding the objective seriousness of the s.66A offences were 'less than mid-range'. However, it was an error to find the count involving penile penetration was of the same level of seriousness as the counts involving cunnilingus on the basis that penile penetration was limited. Per Fullerton J (Spigelman CJ and Barr J agreeing):
[26] In R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13], Simpson J observed that the assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue. Accordingly, it was necessary for his Honour to have regard to the nature of the sexual intercourse that was constituted by each offence and the circumstances in which the offences were committed. While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs v R (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at [24]-[26]...
[28] While it was open to his Honour to differentiate between the sexual intercourse in counts 1 and 2 on the one hand and the sexual intercourse in count 5, for my part, to reason to the conclusion that the act of penile penetration in this case was of the same order of seriousness as cunnilingus simply by reason of the fact that the respondent's penis penetrated the child's genitalia only to a small extent, is to fail to give account to the fact that penile penetration of a young child involves conduct of a quite different order and criminality of a more serious kind than other forms of sexual intercourse contemplated by the statutory definition in s 61H of the Crimes Act. In that connection I note the observation of the Chief Justice in RJA v R [2008] NSWCCA 137 at [33] that a limited degree of penetration is not necessarily indicative of a lower level of objective criminality.
The judge's assessment of the indecent assault offences was affected by failure to give weight to the breach of trust and the child's age but was also erroneous in light of the gross nature of the assaults. The offences were 'in the mid range well above the lower end of that range': at [40]. Fullerton J said:
[31] As this Court has observed, it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved (see GAT v R [2007] NSWCCA 208 at [22]). Having regard to the degree of genital connection in counts 4 and 7, and the gravity of the conduct in count 3 which although grossly indecent nevertheless fell short of any actual physical connection, his Honour's characterisation of the offending as at the lower end of mid range is in my view indicative of error. Having regard to the facts in respect of count 4 on the indictment, facts which on one view may well have justified a charge under s 66A of the Crimes Act, it is difficult to hypothesise more serious instances of indecent assault . Even were it open for his Honour to have found the particulars of these offences as occupying a position in the lower end of mid range, when account is taken of the other factors bearing upon the assessment of the objective criminality constituted by that offending, his Honour's finding is in my view unsustainable.
In Lombard [2008] NSWCCA 110 there were 'significant reasons' for departing from the SNPP of 7 years - the guilty plea and the unchallenged findings of the sentencing judge that the offence fell into the low-range. The Court held it was open to the sentencing judge to find there was no premeditation or planning, the taking of the knife was spontaneous without malicious intent, the offence was not committed out of revenge, there was provocation from the victim and the victim's injuries were not "significant".
In Ferrer [2008] NSWCCA 104 it was open to classify the offence as falling 'somewhat below mid-range.' The respondent was the aggressor but it could not be excluded that the victim produced the weapon. The attack was not premeditated and the respondent ended it on his own volition: at [23].
In Fryar [2008] NSWCCA 171 the judge erred in assessing the offence as 'somewhat below mid-range.' The offender had stabbed the victim in the back. The attack was premeditated. Undue weight was given to the pre-existing tension between the respondent and the victim, the victim's alleged contribution to the escalation of that tension and the offender's intoxication and underlying depression: at [23].
The SNPP for supply commercial quantity of drugs is 10 years. In Fisher [2008] NSWCCA 103 the Court rejected the sentencing judge's finding that the offences were 'not less than mid-range' and found them to be 'at the top of the range':
[48] It may be accepted that this Court should not interfere with such a finding unless it concludes that the finding was not open - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73. However in this case his Honour's finding was demonstrably wrong. The objective seriousness of a number of the offences included in the second indictment was at, or virtually at, the top of the range.
[49] Firstly, it is clear that each offence was committed as part of a commercial operation directed to making money. Secondly, although the Applicant obviously had suppliers, he was the principal of the operation. Thirdly, the operation were well organised... Fourthly, insofar as each of the offences the subject of the second indictment were concerned, the offending was carried on for a lengthy period and involved deliberate criminality time after time for an extended period.
[50] Fifthly, the quantities the subject of some of the charges included in the second indictment were at the top of the range of quantities encompassed by the offences charged...
[55] A sixth factor to take into account in the case of the offences involving MDMA, GHB and methylamphetamine is that, given the limited quantities found at the time of the police searches, a quantity of not less than the top of the commercial range for MDMA, GHB and methylamphetamine was not merely the subject of deemed supply but actually disseminated into the community.
[56] A seventh factor to take into account in the case of the methylamphetamine is that its purity was high...
Section 112(2) has a SNPP of 5 years. In Shaw [2008] NSWCCA 58 the applicant forced his way into his former partner's home and assaulted her. The offence was not premeditated. The sentencing judge found the offence to be "high in the level of seriousness." The Court found that no reference was made as to what might constitute offending in the middle of the range of objective seriousness for offences of this kind 'such as would enable a meaningful comparison to be made between the applicant's offending and that for which the standard non-parole period is prescribed': at [33]. Fullerton J (McClellan CJ at CL and Grove JJ agreeing) continued:
[37] In my view, the offending, while objectively serious, is more accurately described as in the middle of the range of offending of its kind. I note that this was the position articulated by the Crown on sentence. I have come to that view by reference to the schedule of cases Mr Haesler SC attached to his submissions and by the observations of Johnson J in Lovell v R; Dominey v R [2006] NSWCCA 222 where his Honour said:
"[63] The type of conduct which may constitute a s.112(2) offence encompasses a wide range of activities. Examples may be seen in a number of decisions of this Court. There have been cases where s.112(2) offences have involved the breaking and entry by an offender or offenders into premises and the commission of a serious indictable offence of violence against a victim following an incident which has provoked such a response. These s.112(2) offences have involved acts motivated by revenge or retribution or by a desire to teach the victim a lesson or to warn him off. An act of retaliation by an offender against a person who had assaulted the offender's father was characterised as being significantly below the mid-range of objective seriousness in R v Price [2005] NSWCCA 285 at paragraph 23. Where an offender broke and entered premises and then assaulted the victim whom the offender believed had earlier assaulted the offender's daughter, it was accepted that the offence lay at the lower end of the range of objective seriousness: R v Millar [2005] NSWCCA 202 at paragraph 43. Where two offenders broke and entered premises and assaulted persons in the belief that one of the victims had made an improper approach to their 14-year old sister, it was concluded that the conduct was significantly less than the middle of the range of objective seriousness: R v Tory at paragraph 37.
[64] There are further examples of s.112(2) offences involving offences of dishonesty. In R v Huynh [2005] NSWCCA 220, this Court upheld a finding that an offence lay towards the middle of the range of gravity of offences of this kind in circumstances where the offender, in company, smashed the door of domestic premises and collected a large amount of personal property, including jewellery, watches and precious stones (paragraphs 26-27). The nature of the circumstances of aggravation defined in s.105A Crimes Act 1900 as applied to the individual case may be relevant to characterisation of the particular offence on the range of objective seriousness: R v Huynh at paragraphs 29-30. In R v Ceissman [2004] NSWCCA 466, a s.112(2) offence committed upon bank premises entered with the use of a sledgehammer and where $171,980.00 was stolen, was characterised as being above the mid-range of objective seriousness (paragraphs 5, 19). In circumstances where a stranger broke and entered residential premises occupied by older persons who were then tied up and with property being stolen from the premises, it was found that the offence lay above the mid-range of objective seriousness for an offence of this type: R v Porteous at paragraph 47.
[65] These cases are referred to for illustrative purposes and not for the purpose of defining a range for s.112(2) offences. They do, however, throw light on factors which may bear upon an assessment of objective seriousness in the particular circumstances of s.112(2) offences."
Section 21A Crimes (Sentencing Procedure) Act 1999 (Appendix B) sets out aggravating and mitigating factors which a sentencer is take into account in determining the appropriate sentence. This is an area that has given rise to a plethora of appeals in relation to aggravating factors and double counting.
In Stokes [2008] NSWCCA 123 the sentencing judge did not notify the parties that the offences would be found to be aggravated due to being "part of a planned or organised criminal activity" under s.21A(2)(n). The Court held this amounted to procedural unfairness. Per Barr J (Giles and Hall JJ agreeing):
[14] As Howie J said in R v Tadrosse [2005] NSWCCA 145 at [19], it is prudent for sentencing judges to raise with the parties during addresses whether any of the factors listed in s21A(2) apply to the sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed is present, in fairness to the offender, the judge should indicate to the offender's legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the case under consideration.
In Ivimy [2008] NSWCCA 25, dealing with offences of aggravated indecent assault under s.61M Crimes Act, it was confirmed that aggravating factors not pleaded to in the indictment may be taken into account on sentence. Price J (McClellan CJ at CL and Hall J agreeing):
[27] Subsection 3 of s 61M provides for five circumstances of aggravation for the purpose of s 61M(1) only one of which is required to be pleaded and proved: see Regina v Pearson [2005] NSWCCA 116 at [26]. The sole circumstances of aggravation pleaded in the indictment for each of counts 9 to 12 was that provided by s 61M(3)(b), namely that the alleged victim is under the age of 16 years. As that circumstance of aggravation was pleaded, it was an essential element of these offences.
[28] The circumstance of aggravation provided by s 61M(3)(c), namely that the alleged victim is under the authority of the alleged offender was not pleaded in the indictment and it was not an essential element of these offences. The Judge was entitled, if not required, to take into account as an aggravating factor under s 21A(2)(k) of the Crimes (SP) Act that the applicant was in a position of trust in relation to the victim: see Regina v AD [2005] NSWCCA 208 at [22] and there was no error by his Honour.
In Towers [2008] NSWCCA 283 the appellant was sentenced for one count of aggravated break and enter with intent to steal (s 113(2) Crimes Act 1900 ) and two counts of assault occasioning actual bodily harm (s 59 Crimes Act 1900 ). In sentencing for the s 113(2) offence the sentencing judge took into account as an aggravating factor under s21A(2)(b) that the offence involved the actual or threatened use of violence. The Court held that this was an error given that the actual use of violence constituted the gravamen of the two offences of the assault offences for which the appellant was separately punished. Per Kirby J((Beazley JA and Hall J agreeing):
[53] Here, there could be no objection to the conviction of Ms Towers on Count 2 (aggravated break and enter) and Counts 3 and 4 (the assaults). The gravamen of each offence was quite different. The issue is whether there was double punishment in separately charging the assaults (Counts 3 and 4) and then using the same act (the assaults) as an aggravation of the break and enter (cf s 21A(4)). I believe there was. Had there not been separate counts for the assaults, the sentencing Judge could have used the assaults upon the Crittendens as a matter of aggravation of the aggravated break and enter under s 21A(2)(b). However, there being separate charges, I believe there was error in using the assaults as a matter of aggravation.
In Halls [2008] NSWCCA 251 where property worth $163000 was destroyed, it was an error not to find the offence aggravated by the damage being 'substantial.' Per Kirby J (Hodgson JA and Hislop J agreeing):
[29] At what point, or within what range, can the damage be regarded as 'substantial' and therefore a matter of aggravation, or, 'not substantial', and a matter of mitigation?
[30] In R v Youkhana [2004] NSWCCA 412, the sentencing Judge, in the context of an armed robbery, found as a matter of aggravation that there had clearly been 'some emotional harm to the three victims' at [23]. One victim said that he feared for his life when the robber pointed the weapon towards him. On appeal, the Court of Criminal Appeal determined, however, that the sentencing Judge was in error. Hidden J (with whom other members of the Court agreed) said this:
'[26] However, before a judge could find 'substantial emotional harm' within the meaning of s 21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here'...
[32] Having set out that and other passages from R v Henry, Howie J [in R v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32], added the following comments:
'[19] Because the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence and because that consequence of the offence is taken into account generally in determining that the offence is to be considered as a serious one requiring condign punishment, it would be unfair for the court to take into account as an additional aggravating factor under s 21A(2)(g) the fact that the victim of an armed robbery suffered the type of harm that is assumed to be the case for any victim of that offence: there would be in effect a double counting of an aggravating feature of the offence. Therefore, in order to take into account the effect upon the victim of the offence as an aggravating feature over and above that which applies to armed robbery offences in general, something more is required than that which the court has assumed to be the case'.
(emphasis added)
[33] His Honour added:
'[20] Nothing in Youkhana should be taken to suggest that the normal or assumed effects of an armed robbery upon a victim are not substantial. The case is simply authority for the proposition that, in order to avoid double counting of aggravating factors, the court cannot take into account as an aggravating feature of a particular crime the effects upon a victim that would be expected to result from the commission of that type of offence. '
[34] Here, in sentencing the respondent, the Judge was required to have regard to the circumstances in which the offence was committed. A relevant circumstance was the property damaged was a house valued at $163,000... Ultimately, it was a matter of impression for the sentencing Judge...
[35] Returning to the sentencing remarks, unquestionably her Honour's characterisation of the damage as 'significant but not substantial' was charitable. But was it error? The offence, it will be noticed, was not malicious damage to a dwelling. It was malicious damage to property. The property was a house, the home of two individuals, one being the offender. It was said to be valued at $163,000 and had to be demolished as a result of the fire. In my view, this was not a case on the margin. The damage was substantial. That was a matter of aggravation. There was error.
In Fryar [2008] NSWCCA 171 the offender stabbed the victim in a crowded bar. Fullerton J (Spigelman CJ and Barr J agreeing) found that the judge erred in not finding the offence was committed 'without regard for public safety':
[33] On any view the respondent's conduct was a serious assault committed in an enclosed public place in the immediate presence of members of the public. The inference is easily drawn that the respondent had little or no regard for the effect of his violent behaviour on others, and no regard for what members of the public may do in seeking to disarm him or contain him. Despite his intoxicated state, I am satisfied that he must have known that members of the public would be in the bar yet he entered it with the intention of stabbing or slashing the victim...
[34] Since it is the risk to public safety that falls to be assessed under s 21A(2)(i) of the Sentencing Act and not what actually transpired, I fail to see how the respondent's conduct in the given circumstances could not otherwise than satisfy the feature of aggravation provided for under the Act, and to the criminal standard. I consider her Honour was in error in finding otherwise.
In Porter [2008] NSWCCA 145 it was an aggravating factor under s.21A(2)(j) that the offender was subject to a s.10 good behaviour bond for trespass even though imprisonment is not an available sentence for trespass. Johnson J (Bell JA and McCallum J agreeing) said:
[86] In Frigiani v R [2007] NSWCCA 81 at [24], it was held that the commission of an offence, whilst the offender was subject to a s.10 good behaviour bond, constituted the aggravating factor listed in s.21A(2)(j) of the Act regardless of the conduct in respect of which the bond was imposed. However, it was not the case in Frigiani v R that the offence for which the s.10 good behaviour bond had been granted was one for which imprisonment was not an available sentence. Nevertheless, it seems to me that the purpose of s.21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour. I do not consider that the term "conditional liberty" in the section is confined to circumstances where the foundational offence giving rise to the conditional liberty is one which itself must be punishable by imprisonment.
[87] Even if this view was wrong, however, the common law principle remains applicable given that s.21A does not purport to codify the law in this area: s.21A(1). Even if the commission of the offences whilst the Applicant was subject to a s.10 good behaviour bond for trespass did not constitute the statutory aggravating factor, it would constitute an available aggravating factor at common law...
In Nowak [2008] NSWCCA 89 it was an error to find that the victim who was unarmed and unable to protect himself was 'vulnerable in the extreme' under s 21A(2)(l). Per Buddin J (Bell JA and Barr J agreeing):
[28] The fact that the victim was unarmed when struck by a man wielding a bottle was a highly relevant factor in an assessment of the objective gravity of the offence. It is true that he was rendered vulnerable to the applicant's attack. All victims are, to some extent at least, vulnerable. But that is not the sense in which the expression is to be understood in the present context.
In Towers [2008] NSWCCA 283 the appellant was sentenced for one count of aggravated break and enter with intent to steal (s 113(2) Crimes Act 1900) and two counts of assault occasioning actual bodily harm (s 59 Crimes Act 1900). As the appellant did not know that the victims were elderly at the time of the commission of the s 113(2) offence, it was error to find this offence aggravated by the victims' vulnerability: Tadrosse (2005) 65 NSWLR 740. Per Kirby J (Beazley JA and Hall J agreeing):
[61] ... there was no suggestion that the offender knew the [victims], or that she knew there was a couple in their sixties in the house. By her plea of guilty, she may be taken to have simply known there were "persons in the house". There was no basis for inferring that she had targeted the house because she knew the victims were in their sixties and vulnerable. The house, one infers, was chosen at random. It was chosen for reasons unrelated to the characteristics of the occupants. It was not open, in those circumstances, in my view, to regard the offence in Count 2 as having been committed in circumstances of aggravation under s 21A(2)(l). Accordingly, there was error in respect of Count 2 [s113 (2)] , although not in respect of Counts 3 and 4 [s 59 offences].
In Veale [2008] NSWCCA 23 (armed robbery) it was not an error to find that the victim, a service station proprietor out walking with a large sum of money, was 'vulnerable.' Under s. 21A(2)(l) 'the examples given seem to indicate that persons engaged in occupations that involve having access to, or being in charge of, significant sums of cash are intended by Parliament to be characterised as vulnerable': at [18].
In RJA [2008] NSWCCA 137 the applicant was convicted of three counts of sexual intercourse with a child under 10 (s.66A Crimes Act). It was an error to find that the victim's age was an aggravating factor under s.21A(2)(l) in relation to two of the offences when the victim was aged nine. But some adjustment for additional vulnerability may have been possible for when the victim was eight. Per Spigelman CJ (Price and McCallum JJ agreeing):
[12] It is well established that with respect to a matter such as age, which is an element of the relevant offence, that a sentencing court must avoid the possibility of double counting when determining the existence of, and degree of, an aggravating factor. (See eg R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740; JAH v R [2006] NSWCCA 250 at [25]-[26].)
[13] As quoted above, s 21A(2)(l) refers to the fact that "the victim was very young". His Honour adopted that very terminology in [26] of his remarks on sentence. There is work for this part of s 21A(2)(l) to do even in the context of an offence which contains the age of the victim as part of the offence. The younger the victim the more serious the offence...
[20] There is some difficulty, as counsel for the applicant submitted, in determining the precise basis on which his Honour made the finding expressed at [26] of his remarks on sentence. There is less difficulty with respect to the offence committed at the age of eight. However, his Honour did not distinguish between the two periods of offending.
[21] It is the express reference to vulnerability because of age with respect to the two later offences that leads me to conclude that his Honour did overlook the matter at the time of sentence, being a matter about which he had earlier indicated a clear understanding. It may have been open to make some adjustment for the additional vulnerability of an eight year old. I do not see how that can be said for a nine year old.
In Stokes [2008] NSWCCA 123 the applicant pleaded guilty to two counts of drug supply and one count of ongoing supply under ss.25(1) and s25A Drug Misuse and Trafficking Act 1985. The applicant supplied a variety of drugs to undercover operatives on five occasions. The Court held that the judge did not err in finding the offences were part of a planned or organised criminal activity pursuant to s.21A(2)(n). Per Barr J (Giles and Hall JJ agreeing):
[31] In R v Hewitt (2007) NSWCCA 353 Hall J, with whom McClellan CJ at CL and Price J agreed, said at [25] -
(25) The provisions of s.21A(2)(n) have been the subject of consideration on a number of occasions. The following propositions may be derived from relevant decisions:-
(a) The wording of the provision conveys more than simply that the offence was planned: Fahs v Regina[2007] NSWCCA 26 per Howie J at [12] (Simpson and Buddin JJ agreeing). His Honour further observed:-
"... The fact that there was a 'level of planning in the offences' as found by the judge does not necessarily give rise to the aggravating factor in s.21A(2)(n). In Wickham[2004] NSWCCA 193, the Court stressed the importance of making findings under s.21A in accordance with the words of the provision ..."
(b) In a case where an offender has been charged with multiple drug trafficking offences, a conclusion may be drawn that it is part of a planned or organised criminal activity. In Fahs(supra), Howie J observed:-
"... In this case, it would have been open to the judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order."
(c) The expression "organised criminal activity" may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia v Credit Connection[2005] NSWSC 1118, Campbell J observed at [72]:-
"In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by 'organised criminal activity'. In one sense, 'organised criminal activity' involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation."
His Honour also observed:-
"... as a matter of ordinary English, to think that 'planned criminal activity' has any necessary element in it of there being more than one person involved ... For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person." (at [74] and [75]).
(d) Offences committed over a period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of paragraph (n):NCR Australia(supra) at [76].
(e) In determining whether the facts give rise to "planning" as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in Regina v Reynolds[2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]:-
"It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning."
(f) Planning that is "...somewhat haphazard, clumsy in many respects and bound to fail..." may nevertheless be sufficient so as to enliven the application of s.21A(2)(n):Regina v Willard[2005] NSWSC 402 per Whealy J at [32].
[32] It may be accepted from those authorities and from what Hulme J said in R v Smiroldo (2000) NSWCCA 120 about the likely attributes of those who offend against s25A, that something over and above the ordinary attributes of a dealer must be identified before a conclusion under para (n) may properly sound in sentence.
In Stokes, Barr J found the following attributes were more extensive than in the ordinary case of supply thus amounting to 'organisation and planning'(at [33]-[39]):
In Hughes [2008] NSW CCA 48 the appellant was charged with dangerous driving causing death. The victim was pregnant but there was no evidence that the appellant was aware of this. The Court (Grove J; McClellan CJ at CL and Simpson J agreeing) held that it was an error to have taken into account the death of the victim's foetus as an aggravating factor (cf King (2003) 139 A Crim R 132):
[33] In the present case it is not entirely clear from the remark which I have quoted how his Honour took into account the death of the foetus. If he was having additional regard to it as increasing the seriousness of what was an element of the offence, namely the causing of the death of Ms Cook, then I consider that error has been demonstrated.
In TMTW [2008] NSW CCA 50 the offender assaulted the victim after learning that the victim had interfered with the offender's young daughter. The sentencing judge found that this constituted provocation under s.21A(3)(c) and this finding was not contested on the appeal.
In Hughes [2008] NSWCCA 48 the applicant was sentenced for dangerous driving causing death. The victim was the applicant's partner. No express reference was made to s.21A(3)(i), however, Grove J (McClellan CJ at CL and Simpson J agreeing) noted:
[21] I have already noted that the learned sentencing judge found that the applicant was genuinely and deeply remorseful. In R v Boswell and Other Appeals (1984) 3 All ER 353, Lord Lane CJ (at p 357) referred to mitigating features which may be present in the commission of an offence against the equivalent of s 52A (1) (causing death by reckless driving contrary to s 1 of the Road Traffic Act 1972) and stated:
"Sometimes the effect on the defendant, if he is genuinely remorseful, if he is genuinely shocked. That is sometimes coupled with the final matter which we wish to mention as being a possible mitigating factor, namely where the victim was either a close relative of the defendant or a close friend and the consequent emotional shock was likely to be great."
[22] In Jurisic, in reference to s 52A Spigelman CJ observed (at p 225):
"Legislative development in Australia has been in the same direction as that of England. The considerations which have been taken into account in the development of the English guidelines in this regard, including the list of aggravating and mitigating factors, have also been applied in decisions of this Court."
[23] Of course, leniency does not derive from the mere fact that the deceased was not a stranger: R v Howcher [2004] 146 A Crim R 371, but from the consequential quality and depth of the remorse and shock as indicated by Lord Lane.
Post-crime ameliorating conduct will entitle an offender to mitigation of sentence. In Thewlis [2008] NSWCCA 176 the offender sought the immediate help of neighbours and called an ambulance after he had assaulted the victim. Per Simpson J (Spigelman CJ and Price J agreeing):
[38] This is not a circumstance that goes to the evaluation of the objective seriousness of the offences, which, by this time were complete. Nor is it an instance of conduct of the kind explained in R v Ellis (1986) 6 NSWLR 603, (voluntary disclosure of otherwise undetected guilt) warranting leniency in sentence for the reasons there set out. And it goes well beyond throwing light on remorse or contrition, which were also well established. It goes to amelioration of the effects of the applicant's criminal conduct.
[39] This was an unusual case, in that the applicant took immediate, almost instantaneous, steps to ameliorate the consequences of his crimes; ...
[40] .... it is something which, I have concluded, the applicant was entitled to have taken into account not as a mitigating factor catalogued in s 21A(3), but as a particular, and unusual, circumstance which may be called ameliorative conduct, justifying a measure of leniency on that particular basis.
...
[43] In my opinion it ought now be accepted that, in an appropriate case - and, it may be said, there are few examples of appropriate cases, at least that came before this Court - conduct of the kind engaged in by the applicant warrants some consideration in mitigation of sentence. (I stress that I have twice referenced to 'mitigation of sentence'. That is different from, and not to be confused with, mitigation of the offence: the latter concept is concerned with the evaluation of objective gravity.)
[44] Although, on an objective analysis, the applicant's criminality did warrant a total sentence of the magnitude imposed, to my mind his immediate post crime ameliorative conduct (and its significant consequences) entitle him to some reduction in the totality of those sentences.
In Barlow [2008] NSWCCA 96 per Hall J (McClellan CJ at CL and Price J agreeing):
[67] In Regina v Swan [2006] NSWCCA 47, the Court of Criminal Appeal determined that where the motivation for an offence is retaliation for prior sexual abuse and to prevent abuse of others, the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate that the behaviour is not isolated. Spigelman CJ observed at [33]:-
"Where the stated motive for the offence was retaliation for prior sexual abuse and to prevent the abuse of others, it would be relevant if this was the only such offence committed by the Applicant. Then it could be said that the need for personal deterrence and protection of the community was considerably lessened, because the act of retaliation was unlikely to be repeated against the particular victim and also because of the fact that it was the crime now under consideration that led to the victim eventually being charged in the manner set out above."
[68] In Regina v Mitchell; Regina v Gallagher [2007] NSWCCA 296, the Court of Criminal Appeal, in accepting that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity in relation to one of them, observed the following, per Howie J at [30] - [32]:-
"... But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.
The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence.
...
It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence."
In Whybrow [2008] NSWCCA 270 ongoing injuries suffered by the applicant, charged with dangerous driving causing death, ought to have been taken into account as extra-curial punishment. Per Hislop J (Hodgson and Kirby JJ agreeing):
[2]3 In Alameddine v R [2006] NSWCCA 317, Grove J, with whom the other members of the court agreed, said:
"[23] ...there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender...
[27] To the extent that the Crown submitted that there was a boundary created by injury sustained by self inflicted illegal activity beyond which no mitigation could be granted, I would reject it. That is not to say that the circumstances of infliction are irrelevant but to deny that, once injury is sustained by the action of the offender in the course of committing the crime, the consequences are incapable of giving rise to a factor of mitigation."
24 In Christodoulou v R [2008] NSWCCA 102 Grove J (with whom Johnson J agreed) held:
"[41] It is a step beyond Alameddine ...to seek to extend the availability of a mitigatory element to a deliberately self inflicted injury as distinguished from occasions where the injury was, although self inflicted and in the course of crime commission, unintentional.
[42] Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognized."
The other member of the bench, Campbell JA, stated:
"[2] I would prefer to leave undecided whether there are no circumstances at all in which injury or detriment that a criminal causes to himself or herself can operate as a mitigating factor."
In Fryar [2008] NSWCCA 171 the offender suffered injuries when bystanders disarmed and restrained him. The judge erred in giving unwarranted weight to the "severe summary justice" suffered by the offender: at [39]. Where the injuries do not result in serious loss or detriment, there is little weight in mitigation: at [36]-[37] applying Daetz (2003) 139 A Crim R 398.
In Silvano [2008] NSWCCA 118 injuries suffered by a prisoner may be taken account as extra-curial punishment if related to the matter for which s/he was sentenced. Per James J (Hislop and Hoeben JJ agreeing):
[35] In my opinion, it is not sufficient to enable injuries suffered by an offender in prison to be taken into account as extra-curial punishment, that the injuries would not have been suffered, if the offender had not been arrested and remanded in custody as a result of having committed the offences. If such a connection between the offences and injuries suffered by a prisoner was sufficient, then injuries suffered by a prisoner could be taken into account as extra-curial punishment, even if they had resulted merely from some mishap occurring in the prison, such as the prisoner accidentally falling.
[36] Of course, if an offender has suffered injuries while he is in prison awaiting sentence, and as a consequence of the injuries the offender's conditions of custody will be more than usually onerous, that matter can be taken into account in the sentencing of the offender.
In TMTW [2008] NSWCCA 50 registration under the Child Protection (Offenders Registration) Act 2000 could amount to extra-curial punishment. In this unusual case, the offender did not assault the victim for any sexual purpose. That the offender was labelled as a 'sexual offender' and known as such to local police was 'not entirely irrelevant': at [53]. (The appeal was allowed on other grounds). In respect of extra-curial punishment recent legislation discussed at [19] of this paper should be noted.
In Burton [2008] NSWCCA 128 the respondent was sentenced for influencing a witness (his partner, being also the victim of domestic violence offences). The sentencing judge said that evidence at the sentence proceedings by the victim that she forgave the respondent was of 'minimal relevance.' Johnson J (Campbell JA and Grove J agreeing) reiterated at [102] that the victim's attitude towards sentencing ought to play no part on sentence: Glen (NSWCCA, 19.12.94, unreported); Palu (2002) 134 A Crim R 174 at 183-184 [37]; Newman & Simpson [2004] NSWCCA 102 at [79]-[87].
In JAK [2008] NSWCCA 21 the applicant, who pleaded guilty to maliciously inflict grievous bodily harm with intent, suffered from a mental disorder. The Court held that the sentencing judge erred in determining the objective seriousness of the offence by having regard only to the physical aspects of the assault and failing to consider the applicant's psychological condition. Beazley JA (James and Kirby JJ agreeing) said:
[38] ... it is still necessary to determine whether his Honour correctly approached what I will describe as the 'classification process' in determining the objective seriousness of the offence. Way, at [118], requires the court, in determining the " objective seriousness of the offence", to have regard to the facts " which relate directly to its commission". This includes the seriousness of the physical attack. It also includes the factors which " may explain why [the offence] was committed".
[39] This is apparent from Way, where Spigelman CJ said at [86]:
"Some of the relevant circumstances which can be said 'objectively' to affect the seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence."
[40] The sentencing judge in this case, in determining the objective seriousness of the offence, only had regard to the physical aspects of the assault. This is apparent from his Honour's comment, reproduced at [*28] above, that
"So while finding that objectively an attack like the one before me which left the victim so seriously injured must be placed in the upper level of seriousness ..."
and his later comment
"One way to approach this case before me now is to acknowledge that objectively the facts put this offence into a range of twelve years or more for a head sentence but considering the plea of guilty, the age of the offender, his history of a disadvantaged background and his psychological problems ..."
[41] His Honour, in having regard to the applicant's psychological problems in this second passage, did so in the context of considering the mitigating factors relevant to the applicant's circumstances. As Way makes clear, an accused person's psychological condition may explain why an offence was committed and in this case, did so for the reasons I have already explained. The applicant had a mental illness which was incapacitating him at the time of the offence. In particular, he was hearing hallucinatory voices urging him to harm the victim.
[42] For that reason, I consider that his Honour erred. .....
In Carlton [2008] NSWCCA 244 the sentencing judge failed to properly consider the effect of the combined circumstances of prison segregation and the offender's mental illness. Per Basten J (Hislop and Price JJ agreeing on this point):
[101] In The Queen v Verdins [2007] VSCA 182; 16 VR 269 the Victorian Court of Appeal (Maxwell P, Buchanan and Vincent JJA) discussed the different ways in which impaired mental functioning, whether temporary or permanent, may affect the sentencing of an offender. Similar principles have been identified from time to time in this Court: see, eg, R v Engert (1995) 84 A Crim R 67; Regina v Israil [2002] NSWCCA 255 at [21]-[26] (Spigelman CJ, Simpson and Blanch JJ agreeing); R v Hemsley [2004] NSWCCA 228 at [33]-[35] (Sperling J); Courtney v Regina [2007] NSWCCA 195; 172 A Crim R 371 at [14]-[18] (Basten JA), [57]-[59] (Grove J) and [82]-[86] (Howie J). In substance, these factors operate at one or both of two levels. First, a mental impairment may be relevant to the commission of the offence, by reducing the moral culpability of the offending conduct, and thus the relevance of general deterrence and, if the condition is likely to continue, individual deterrence. Secondly, it may affect the appropriate sentence either because imprisonment may adversely affect the condition, or because the condition may affect the severity of the punishment.
[102] In the present case, the severity of the punishment was likely to be affected by an additional factor, namely that the appellant had been, prior to conviction, and was likely in the future to be, subject to a level of isolation because of risks to himself which might eventuate from association with other prisoners. ...
.....
[112] There is no doubt that prison conditions are onerous for many members of the community. Imprisonment constitutes punishment, but the punishment should not be the imposition of unduly onerous conditions. If the conditions are likely to be more onerous for one class of prisoner, that should be taken into account on sentencing. It appears that the appellant's psychotic condition is kept in control by medication. Nevertheless, it is apparent that the combination of isolation, or limited association, together with the evident symptoms of schizophrenia are likely to render a prison environment more onerous for the appellant than for a person to whom either of those conditions applies separately. The fact that his Honour failed to take account of the effect of his mental illness in respect of the circumstances of his imprisonment and the combined effect of his mental illness and his segregation within the prison system, constituted a failure to take account of relevant circumstances.
In Du Randt [2008] NSWCCA 121 the judge failed to consider the effect of the sentence on the offender's state of health. Per Barr J (Basten JA and Buddin J agreeing):
[24] ... In Leach v R [2008] NSWCCA 73 Basten JA at [10] - [12] set forth with approval the principles explained by the members of the Court of Appeal of Victoria in R v Verdins [2007] VSCA 102 at [32] thus -
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
...
[38] The second substantial argument put forward under this ground was that his Honour failed to consider the effect on the service of her sentence of the applicant's state of health. Mr Walsh relied on the fifth and sixth principles referred to in Verdins. See also the judgment of Spigelman CJ in Israil at [26].
[39] A substantial case for an amelioration of the sentence on this basis was put before the sentencing judge, relying, inter alia, upon a submission that a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served.
........
[43] Notwithstanding that a few sentences later his Honour said this -
In imposing a sentence, I have to take into account all relevant factors under s16A. I have carefully weighed up the subjective factors in the offenders favour and including her mental health.
I think that his Honour overlooked consideration of the question whether the applicant's sentence should be ameliorated because it would be more onerous upon her because of her mental condition. If his Honour had taken that factor into account I would have expected some reference, however brief, to have been made to the distinctly different manner in which the mental illness of the applicant might affect the sentence.
[44] In my opinion this second attack ... has been made good. ... [T]he several conditions from which the applicant was suffering at the time of sentence were such as to entitle her to consideration and amelioration of her sentence.
In TM [2008] NSWCCA 158 age and immaturity was a significant factor in the offending and central to the assessment of the criminality of the applicant (aged 14) who had committed armed robberies under the influence of his adult brother-in-law. Per Hall J (James and Hoeben JJ agreeing) said:
[33] In a case such as the present, the age and immaturity of the offender is an important factor that determines the level of culpability associated with a serious offence where such immaturity was a significant contributing factor.
[34] In this respect, in Regina v JLC-H [2004] NSWCCA 70 at [30], Santow JA stated:-
'Then there are subjective factors of a terrible home background and domestic violence of a continuing nature which clearly marked this immature young man, still only 16 years 9 months at the time of these offences. That immaturity is an important aspect of this case. InHearne[2001] 124 A Crim R at [22], this Court considered the sentencing of young offenders and, in particular, what might be described as the tension between the desirability of rehabilitating the offender with the need to recognise the criminality of an offender who has committed a particularly serious crime. Addressing the principle involved, the Court said (at para 25):-
'It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may be fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.'' (emphasis added)
[35] In MS2 & Ors v Regina (2005) 158 A Crim R 93, [2005] NSWCCA 397, Adams and Hoeben JJ (Simpson J dissenting) referred to and applied the relevant principles. ..... Adams, J in MS2 at [16], stated, in relation to the sentencing of young offenders, that there are two reasons why the youthfulness of offenders is considered a very significant factor. The first is the substantial public interest in the rehabilitation of youthful offenders. The second is that immaturity is relevant to culpability or criminality. His Honour there stated:-
'... the point may be put simply: children do not have adult value judgments, adult experience, adult appreciation of consequences - especially catastrophic consequences - or adult understanding of criminal culpability. That, of course, is not to say that, depending on age and background, they cannot be intentionally wicked and know very well that what they do or intend to do is very seriously wrong and even criminal ..'.
[36] His Honour later added that immaturity in the circumstances of that case was of considerable significance as a factor and although it did not provide an excuse for the conduct, the point was '... that their culpability was significantly less than would have been the case had they been mature adults ..'. (at [23]). Hoeben J expressed a similar opinion.
.....
[52] The correct approach requires the sentencing judge to assess whether immaturity, having regard in particular to an offender's age, was a significant factor in the commission of an offence. If those questions are answered in the affirmative, then it may be fairly said that the criminality involved is less than it would be in the case of an adult of more mature years in accordance with the principles stated in Regina v Hearne (2001) 124 A Crim R 451, [2001] NSWCCA 37 and Regina v JLC-H (supra).
The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will give way to the interests of rehabilitation. In IE [2008] NSW CCA 70 the young applicant was convicted of serious sexual assault offences. The Court said:
16 It is not the youth of an offender per se that justifies the amelioration of a sentence that would otherwise be imposed, in accordance with the common law principles underlying s 6 of the Children (Criminal Proceedings) Act (the Act). It is only where the circumstances of a particular juvenile offender and the circumstances of a particular offence indicate that general deterrence and retribution ought play a lesser role, that the principles are given their full expression: Voss [2003] NSWCCA 182. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. Given the serious criminality inherent in these offences, together with the assessment of the applicant as an offender within the lower end of the medium to high risk of re-offending, there was little scope for the operation of the principles under the Act.
In KT [2008] NSWCCA 51; (2008) 182 A Crim R 571, the authorities are conveniently summarised at [22]- [26]:
[22] The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].
[23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).
[24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society."
[25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.
[26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity ( R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ( R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth ( Hearne at [27]).
In Lombard [2008] NSWCCA 110 the respondent pleaded guilty to malicious wounding with intent. The sentencing judge did not err in giving a discount of 20% for the plea of guilty and a further 13.3% for contrition and remorse. Basten JA (Barr and Buddin JJ agreeing) said that it is not a rule that an additional discount for remorse should never be quantified. See MAK and MSK [2006] NSWCCA 381 at para 44, (2006) 167 A Crim R 159, 'An approach quantifying a discount due for remorse generally or as it is manifested by the plea of guilty or in combination with the discount resulting from the utilitarian value of the plea of guilty is to be avoided as it is likely to result in a sentence that is unduly lenient by reason of double counting'.
See also Merrin [2007] NSWCCA 255 at para 57, (2007) 174 A Crim R 100, 'No part of a numerical discount should be attributed to remorse whether derived from a plea or otherwise'.
[22] The suggestion that there is necessarily error in identifying a proportionate discount for factors other than the utilitarian value of a plea is to adopt an overly mechanical rule. In some circumstances, the provision of an arithmetical deduction may provide an element of transparency which promotes "accessible reasoning": see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The real risks in arithmetical calculation are twofold: first, the calculation may lend an air of precision which, far from promoting transparency, may be misleading. Secondly, to identify an arithmetical deduction in relation to a specified factor of mitigation, or more than one factor, may result in "double counting" if the factor is one which is "not susceptible to isolation from other relevant factors" or is not susceptible to "mathematical evaluation": see R v MAK, 167 A Crim R 159 at [45]. It was the element of double counting, which led to an unduly lenient sentence and to the interference of the Court in that case. Indeed, a specific discount for "remorse" was seen as inappropriate in circumstances where remorse was the underlying justification for treating other matters as mitigating factors: R v MAK at [42]. Thus, remorse would no doubt co-exist with the offender being a person of good character; would underlie a conclusion that the offender was unlikely to re-offend and had good prospects of rehabilitation, and is expressly identified as relevant to making reparation for an injury, loss or damage: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(f), (g), (h) and (i).
[23] Taking into account, in a non-arithmetical way, each of the relevant mitigating factors identified in s 21A(3) will always run the risk of some degree of "double counting". As with allowance for factors of aggravation, care must always be taken to see that the end result does not appear overly lenient or harsh on what must be a largely impressionistic basis. Once it was accepted as a fact that the plea justified a finding of remorse and contrition and that the finding was enhanced by the fact that it was a plea to a weak Crown case, a degree of alteration of a sentence otherwise appropriate would have been justified. Accepting for the purpose of this contention the Crown's complaint that the overall sentence was manifestly inadequate, it is nevertheless not clear either that there had been double counting or that the additional discount of 13.3% itself demonstrated error taking the sentence outside the appropriate range. The specific complaint has not been made good.
In Kennedy [2008] NSWCCA 21; (2008) 181 A Crim R 185 the applicant, who suffered from a mental disorder, had not been taking his medication. The sentencing judge erred by failing to give reasons for his finding that the applicant's 'psychological status was by his own default' and for not examining why the applicant had stopped taking his medication. Failure to consider these matters meant that the sentencing judge did not make his finding beyond reasonable doubt. Beazley JA (James and Kirby JJ agreeing) said:
[25] As I have indicated, the applicant challenged his Honour's finding in two respects: a failure to make the finding he did on the requisite standard of proof and a failure to give reasons. In respect of the latter complaint, Hayne J, in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402, explained that a complaint of a failure to give reasons may have two aspects. His Honour said at [129]-[130]:
"Reference was made in argument to the sufficiency's of the primary judge's reasons. When it is said that a judge did not give sufficient reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
In the present case, however, reference to the sufficiency's of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue." (References omitted)
[26] In my opinion, the error here is the second of the errors identified by Hayne J. If a trial judge fails to examine all of the material relevant to a particular issue, it follows that a conclusion reached by the judge, without examining all of the relevant material, is tainted. It must also follow, by the very fact of the failure to consider relevant matters, that such conclusion cannot be arrived at beyond reasonable doubt, or if it is purported to be a finding made beyond reasonable doubt, such a finding would be flawed.
In Shaw [2008] NSWCCA 58 it was an error to arrive at the non-parole period by indicating what the term of imprisonment would be and then making a deduction for the plea of guilty. The sentencing judge had said "...to arrive at the non parole custody of four years I will start with a term of eight years then allow for the plea of guilty to take the starting point to six years, with a four year non parole period." Per Fullerton J (McClellan CJ at CL and Grove J agreeing):
[41] .... where sentence is to be passed following a plea of guilty, a principled approach requires that it is only after an assessment has been made of objective seriousness and only after consideration has been given to the weight of subjective matters, that allowance is given for the utilitarian value of the plea of guilty so as to arrive at a sentence that is appropriate in all the circumstances.
.....
[43] By this approach, his Honour has failed to give effect to the 25 per cent discount to which the applicant was entitled by erroneously making allowance for it in a mathematical exercise undertaken in reverse and to justify what his Honour described as "the end point". ....
In Carroll [2008] NSWCCA 218 the respondent received, for manslaughter, a head sentence of three years with a non-parole period of eighteen months to be served by way or periodic detention. After a verbal argument, the respondent headbutted the victim who fell, hit his head on the road and later died. By majority, the Court held that held the sentence ought to be served by way of full-time imprisonment. Per McClellan J (Hislop J agreeing):
[21] Indiscriminate acts of violence of the type committed by the respondent which lead to the death of another deserve severe punishment. It will be a rare case where the appropriate punishment for a manslaughter committed in these circumstances does not involve a term of full time custody. This was not such a rare case. The community has a justifiable concern about the level of violence associated with young people and alcohol in our community. Where that violence results in a death of another the community rightly expects the courts to impose a sentence which not only provides appropriate punishment but which will unequivocally send a message that violence is unacceptable.
Simpson J, dissenting, stated:
[38] There are no absolutes in sentencing law but it is a very unusual case of manslaughter that does not call for a sentence of full-time custody. Having said that, however, it is apposite to recall that it has long been recognised that manslaughter is a crime which may be committed in circumstances of such variety as to give rise to sentences of equal variety: see, for example, R v Schelberger, unreported, NSWCCA, 2 June 1988, per Yeldham, Grove and McInerney JJ; R v Elliott, unreported, NSWCCA, 14 February 1991, per Hunt, Campbell and Newman JJ.
It ought to be noted that the High Court has granted special leave to appeal in this matter.
In PB [2008] NSWCCA 109 the applicant (aged 17) was sentenced for robbery with wounding under s.98 Crimes Act. The Court said that the armed robbery guideline judgment in Henry (1999) 46 NSWLR 346 was relevant given that s.98 carries a higher maximum penalty than the guideline offence. It was also an error to distinguish Henry on the basis that the offender in Henry was an adult. Per Bell JA (Johnson and McCallum JJ agreeing):
[24] The Judge distinguished the guideline range from this case saying, "this young offender is in a different situation to Henry because in that case the offender was an adult. I also note that in Henry's case there was some degree of planning for the crime." His Honour appears to have overlooked the fact that this was an aggravated offence under s 98 which carries a higher maximum penalty than the maximum penalty for the guideline offence. The respondent was a juvenile, he was close to being an adult and, as the guideline makes clear, it is directed to young offenders. .....
[25] This was an offence that involved the infliction of significant physical injury. It was committed in company. The relevance of the Henry guideline to the sentencing of the respondent is that it states a range that is below the range that is appropriate for this offence.
Where aggravated dangerous driving occasioning GBH is committed with a very significant level of blood alcohol and causes serious injury to another then full-time custody will almost always required. In Carruthers [2008] NSWCCA 59; (2008) 182 A Crim R 481 the respondent had been sentenced to periodic detention. Allowing the Crown appeal, McClellan CJ at CL (James and Simpson JJ agreeing) said:
[32] This Court has recognised that where an order is made that a custodial sentence may be served by periodic detention the penalty is significantly more lenient than would otherwise be the case: R v Hallocoglu (1992) 29 NSWLR 67. Although there may be cases where a breach of s 52A(4) of the Crimes Act may justify this degree of leniency in my opinion this will rarely be appropriate: see R v Whyte (2002) 55 NSWLR 252 at 284. When the offence is committed with a very significant level of blood alcohol and causes serious injury to another person it will almost always be the case that a period of full time custody will be required to adequately meet the need for punishment, specific and general deterrence.
The sentencing judge had also remarked that care must be taken not to double count the level of intoxication. Per McClellan J:
[24] In relation to the respondent's blood alcohol level of .22 grams per 100 millilitres of blood her Honour indicated that care must be taken not to inappropriately double count this factor. This remark would appear to be contrary to the view expressed by this Court in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. Although it is important to ensure that double counting does not occur the degree to which an offender exceeds the threshold blood alcohol level under s 52A(4) may inform the level of criminality involved in the offence ( Jurisic 231; Whyte 221). Where that offence might otherwise be in the mid-range, a level of alcohol significantly in excess of the threshold level will indicate that a more significant sentence is required.
[25] The respondent's blood alcohol level was significantly above the threshold for the offence. Driving a motor vehicle with a blood alcohol level of .22 g per 100 ml of blood created a significant danger to other users of the road leaving aside the danger to the respondent himself. It was a grossly irresponsible act and, leading to serious injury to another person, required a significant penalty.
Parity is an area that continues to generate a significant proportion of appeals.
In Stanton [2008] NSWCCA 326 the Court (Beazley JA; Kirby and Hall JJ agreeing) allowed the appellant's appeal on the ground of disparity where the cooffender had been sentenced subsequent to the appellant. The Court found that the erroneous comparison of the number of offences and the erroneous consideration of offences of which the applicant was charged by the sentencing judge in the cooffender's sentencing resulted in disparity.
The appellants also appealed successfully on the ground of parity in Tuifua & Ors [2008] NSWCCA 224 where the cooffenders had been sentenced subsequently to them.
In Scicluna [2008] NSWCCA 24; (2008) 181 A Crim R 133 the applicant did not have a justifiable sense of grievance where his co-offender received a more lenient sentence in the Drug Court. Basten JA (Barr J agreeing; Adams J dissenting):
[10] It follows that it is not the diversion into a rehabilitation program which is to be compared, for the purposes of parity in sentencing, with the imprisonment imposed on a co-offender. The legitimate comparison is between the initial sentence imposed in accordance with the Sentencing Procedure Act and the sentence imposed on the co-offender. The fact that one co-offender is eligible for the program because of drug dependency, whilst another is not, may itself have consequences for the relevant comparison; nevertheless, it is the equivalent sentences under the Sentencing Procedure Act which must be compared.
[11] Adams J points out that an offender may no doubt be left with a subjective sense of grievance. However, the question is whether that sense of grievance is "justifiable" in an objective sense, as that term was used by members of the Court in Lowe v The Queen, referred to above. As explained by Brennan J in that case at p 617:
"The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust."
[12] To state the principle is to highlight a further matter, of critical importance in the present case, namely the need to identify relevant considerations and the weight which should properly be given to such considerations. In times past, those considerations and their appropriate weight were determined by reference to general law principles of sentencing. More recently, there has been extensive statutory intervention: see, eg, Part 3 of the Crimes (Sentencing Procedure) Act. The diversionary regime of the Drug Court Act provides a further example. Where the statutory preconditions for its operation apply in relation to one co-offender, but not the other, the statute itself will operate to permit, or even mandate, disparate treatment. Accordingly, to the extent that the statutory scheme provides for apparent leniency, through the suspension of a sentence, any sense of grievance felt by the co-offender who does not fall within the scheme is not a justified grievance. Rather, the discrepancy is mandated by statute'.
In McGuiness [2008] NSWCCA 80 the applicant was sentenced in the District Court for various social security offences. Her husband was dealt with in the Local Court for various summary offences. Bell JA (Simpson and Rothman JJ agreeing) held that as there was a distinction between the two cases there was no error in not applying the principles of parity.
[37] Mr Bellanto relied on the judgment of this Court in R v Kerr [2003] NSWCCA 234 per Miles AJ (with whose judgment Beazley JA and Adams J concurred) at [19]:
"It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice."
[38] In R v Formosa [2005] NSWCCA 363 Simpson J (with whom McClellan CJ at CL and Hoeben J concurred) observed that Kerr is capable of being read as extending the principle of parity to apply in cases where co-offenders are charged with different offences. Her Honour expressed the need for caution before adopting any such principle. She went on to say this:
"[50] Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this Court has supervisory jurisdiction, even by the backdoor method of supervising sentencing."
[39] The cautionary note sounded by Simpson J has been endorsed more recently in Spinks v R [2007] NSWCCA 52 at [28]-[31] and Shaopang Yin v R [2007] NSWCCA 350 at [23]-[24].
[40] ..... It remains that the Judge was sentencing the applicant for offences that in law were of a significantly more serious character than those with which Mr McGuiness was charged. ..... We were unpersuaded that the Judge erred in not applying principles of parity
In IE [2008] NSW CCA 70 the sentencing judge made the recommendation that the offender " not be granted parole unless he has undergone and completed successfully any sex offender's course available to him." Dismissing the appeal, per Latham J (Spigelman CJ agreeing; Hulme J agreeing with additional comments):
[25] The applicant maintains that this recommendation has reduced the beneficial effect of the finding of special circumstances. It can only do so if it is accepted that the Parole Board will inevitably refuse the applicant release to parole at the end of the non parole period, if he has not successfully completed a sex offender's programme. It is said that, as long as the applicant asserts his innocence, he will not be able to successfully complete such a programme, although that stance does not prohibit entry to the programme : see Langbein v R [2008] NSWCCA 38 at [107].
[26] Such a recommendation has no legal effect, in the absence of any statutory basis : Elliot v The Queen ; Blessington v The Queen [2007] HCA 51. The Judge recognised that the grant of parole at the end of five years was " a matter entirely for [the Board]." It may be accepted that the Parole Board will consider the remarks on sentence when it comes to determine the question of the applicant's release to parole, but it is not possible to predict with any certainty what rehabilitative steps the applicant might make in the interim and what course those proceedings might take. To infer that the outcome will be adverse to the applicant is entirely speculative.
[27] The applicant's submissions on this ground are a variant of those addressed to the Court in R v Reyes [2005] NSWCCA 218 and Wray v R [2007] NSWCCA 162. In Reyes, Grove J (with whom Wood CJ at CL and Hoeben J agreed) dealt with a submission that the unsuitability of an offender for a sex offender programme (CUBIT) ought be taken into account in assessing the severity of a sentence. This aspect of Grove J's judgment was cited with approval by the Court in Wray at [65] :-
[74] The submission that this should be taken into account as a reduction factor in the assessment of sentence should be rejected. The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt.
In Wilson [2008] NSW CCA 245 the sentencing judge erred in making a parole order and making parole conditions as the sentence imposed was greater then 3 years. In setting aside the parole order and conditions of parole, Price J (Beazley JA and Hislop J concurring) at [29]-[30] referred to Webster [2006] NSWCCA 346 where the Court said at [14]: "...it seems to me that the better construction of the provisions of, in particular, sub-section (1) of section 50 [Crimes (Sentencing Procedure) Act] is that whenever a Court imposes a sentence of imprisonment for a term greater than 3 years, then the legislation contemplates that the Court itself will not make a parole order, thus leaving the question of parole to be decided in due time by the relevant parole authority."
In Miletic [2008] NSWCCA 74 the Court found that the approach taken in Myers [2002] NSWCCA 162 (a two-judge bench decision) was erroneous. In Myers it was stated:
[34] Pearce required that certain things be considered, when imposing sentence and that they be considered in a particular order:
The Court in Miletic said of this approach:
[28] I regret that I cannot agree .... that Pearce v R (1998) 194 CLR 610 requires that concurrency and cumulation need to be considered prior to and separately from totality. I find it difficult to see how cumulation and concurrency can be considered separately from totality. The relevant statement from Pearce is at 624:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
This in terms does not mandate the sequence of reasoning in Myers.
In Kerr [2008] NSWCCA 201 the totality principle did not apply where a sentence (for unrelated offences) expired while the applicant was on remand for the principal offence and before being sentenced. The addition of the sentence for the unrelated offences to that imposed for the principal offence did not result in a "crushing" sentence: at [28]. Per Price J (Spigelman CJ and Simpson J agreeing):
[30] This Court has previously considered the application of the principle of totality to a sentence that had commenced and expired during an offender's time in custody on remand for an offence for which he was to be sentenced.
[31] In Huntington v Regina [2007] NSWCCA 196, the applicant was convicted of one count of assault contrary to s 61 of the Crimes Act and one count of commit an act of indecency contrary to s 61L of the Crimes Act. On 1 September 2006, the applicant was sentenced in the District Court to imprisonment for a fixed term of 80 days in respect of the first offence and to imprisonment for a non-parole period of 15 months with an additional period of 5 months in respect of the second offence. Each sentence was backdated to commence on 8 May 2006. The applicant had been arrested on 8 January 2006 and had remained in custody bail refused since that time. On 19 May 2006, he was sentenced to 12 months imprisonment with a non-parole period of 6 months for use offensive weapon. The non-parole period commenced on 9 November 2005 and expired on 8 May 2006. It was agreed by both parties at the sentencing hearing that the applicant's custody in relation to the offences for which he was to be sentenced dated from 8 May 2006, from which date the sentencing Judge commenced the sentences. It was argued on appeal that the sentencing Judge erred in failing to take into account the pre-sentence custody and in failing to apply the principle of totality. Hislop J (with whom Giles JA and James J agreed) in rejecting this ground of appeal said at [26]:
"Save in exceptional cases, the general principle is that although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account - R v Niass (unreported NSWCCA 16 November 1988); R v John David (unreported NSWCCA 20 April 1995). The present is not an exceptional case."
[32] There is, in my opinion, nothing about the present case which makes it exceptional.
In Porter [2008] NSWCCA 145 the applicant pleaded guilty to multiple counts of break, enter and steal and malicious damage by fire. It was an error to impose, on each count, identical and wholly concurrent sentences of imprisonment for 7 years with a non-parole period of 3 years each to commence on the same date. To select a sentence appropriate to the overall criminality and impose that sentence in respect of all charges is contrary to established sentencing principles and also distorts sentencing statistics compiled by the Judicial Commission for the assistance of sentencing courts: at [72]-[74]; Pearce v The Queen (1998) 194 CLR 610; Knight (2005) 155 A Crim R 252; Merrin (2007) 174 A Crim R 100.
The general principles are that a sentence can be backdated to a date before the day of sentencing. A sentence can only commence on a day after sentence if it is accumulated on an existing sentence: s 47 Crimes (Sentencing Procedure) Act1999. Where a person is solely in custody in relation to the matters for which he is being sentenced it is appropriate that the sentence be backdated to the date the prisoner came into custody. Similarly, where there are broken periods of pre-sentence custody referable to the offence the sentence should be taken into account even if it entails a date not in custody: Howard [2001] NSWCCA 309.
It is not necessarily an error to not backdate a sentence to give effect to pre-sentence custody: Starmer [2008] NSWCCA 27 per Grove J (McClellan CJ at CL and Simpson J agreeing):
[10] It is well established that it is desirable and preferable sentencing practice to give effect to service of pre-sentence custody exclusively referrable to a sentence then being imposed by backdating the sentence for the equivalent period of that custody: R v McHugh (1985) 1 NSWLR 588. That practice is also desirable when dealing with Federal offences: Assafiri v R [2007] NSWCCA 159.
...
[12] However, it is not obligatory for a sentencing judge to adopt the practice and it does not, viewed in isolation, demonstrate error to depart from it. Counsel for the applicant has pointed to cases where this Court has intervened, but in all of them the sentencing proceedings were detected to have been affected by ambiguity so that it was not clearly demonstrated that appropriate account had been given to service of pre-sentence custody; R v Nasher [2005] NSWCCA 238; R v Hall [2005] NSWCCA 217; R v Howard [2001] NSWCCA 309.
[13] In order to attract intervention by this Court it is necessary to show that relevant error has occurred. On some occasions this can be detected by analysis of the sentence structure in terms of ingredient periods and ultimate result but this is not always the case. The task of the sentencing judge is one of assessment and not one of simple arithmetical calculation. There is no requirement for judges to sentence only in "round figures".
[14] It is important that, in this case, her Honour expressly referred to setting a non-parole period "somewhat shorter than the norm" to take into account the pre-sentence custody. I do not doubt that the "norm" to which her Honour referred was the generally applied proportion between non-parole period and head sentence for Federal offences of between 60 and 66 percent, which has been stipulated in judgments of this Court: R v Bernier [1998] 102 A Crim R 44; R v Viana [2001] NSWCCA 171.
[15] Had her Honour fixed a non-parole period in the range just mentioned, it would have lain between 21.6 months and 23.76 months of custody which, even at the lower end, indicates that somewhat more than five weeks reduction had been allowed.
[16] Her Honour expressly stated that she made the allowance. The calculations just made show that it was not inadequate. It was not demonstrated that her Honour overlooked any relevant matter nor that there was any error in setting the term.
A number of cases found that the offender ought to have been sentenced by reference to the pattern of sentencing that applied at the time of the offences, particularly in relation to the specification of the non-parole period: MJR (2002) 130 A Crim R 481; AJB (2007) 169 A Crim R 32; MJL [2007] NSWCCA 261.
In Dousha [2008] NSWCCA 263 per Fullerton J (Bell JA and Latham J agreeing):
[43] In the absence of statistical and non-statistical data her Honour was obliged to adopt the approach which was settled in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. Her Honour was provided with MJR together with a case note of AJB v R [2007] NSWCCA 51; 169 A Crim R 32 which both confirmed the correctness of that approach and developed it. +
[44] In both AJB and MJR particular attention was directed to the proper approach to the specification of the non-parole period in cases where the offences were committed prior to the introduction of the Sentencing Act. As Howie J observed in AJB, a non-parole period under the Probation and Parole Act was usually somewhere between a third and a half of the length of the sentence, which might itself be a practice that is sufficient to constitute special circumstances justifying departure from the statutory ratio fixed under the present regime. As his Honour said at [37], this Court "should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant".
In Featherstone [2008] NSWCCA 71 the Court, having regard to the pattern of sentencing that applied at the time of the offences, found that the sentence was outside range. It was also an error not to give effect to the finding of special circumstances so as to fix an effective non-parole period more in line with the pattern of non-parole periods that applied at the date of the offending: at [46]-[47].
In Bradbury [2008] NSWCCA 93 the appeal was also allowed on the ground that the non-parole period failed to reflect sentencing patterns which applied during the 1970s.
In Danial [2008] NSWCCA 15 per James J (McClellan CJ at CL and Barr J agreeing):
27 It is clearly established that in sentencing an offender for a New South Wales offence the strength of the Crown case against the offender is irrelevant to the determination of any discount for the utilitarian value for the plea of guilty. See R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 415-416 (136-137), and many subsequent cases.
28 However, the applicant was being sentenced, not for a State offence, but for a Commonwealth offence. In sentencing for a Commonwealth offence the appropriate factor to be considered by the sentencing judge is not the utilitarian value of the plea of guilty but the offender's willingness to facilitate the course of justice. See Cameron v The Queen (2002) 209 CLR 339. In assessing the willingness of an offender to facilitate the course of justice the strength of the Crown case against the offender can be a relevant consideration. In Tyler v Regina; R v Chalmers [2007] NSWCCA 247 Simpson J, with the concurrence of the other members of the Court, said at par 114:-
""Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable.""
In Chea [2008] NSWCCA 78 James J (Tobias JA and Hoeben J agreeing) considered the utility of the NSW CCA decision in Wong & Leung (1999) 48 NSWLR 340. The Court held that the ranges of sentences in Wong (which still has utility as to a general pattern of sentences) make no assumption as to whether there has been a plea of guilty, so if there has been a plea of guilty an allowance can be made for that plea: at [43].
Section 314.4 Criminal Code (Cth) lists 155 border controlled drugs and quantities which are not graded or ranked. In Corbett [2008] NSWCCA 42 the sentencing judge erred in concluding that the drug gammabutyrolactone (GBL) was of a "lesser order" than "hard drugs". Harrison J (McClellan CJ at CL agreeing; Hulme J dissenting) commented at [47]:
47 Unfortunately, neither the Criminal Code in general nor s 314.4 in particular gives any insight into the process by which or pursuant to which it was determined how or why the listed substances should variously be criminalised, depending upon the quantity concerned. In terms of a sentencing exercise, however, this would appear to have at least one important consequence. Except by reference to quantity, there would appear to be no scope for judicial or forensic enquiry about the individual characteristics of any of the listed substances. For example, even with the benefit of the most highly respected expert opinion that listed substance "A" is socially, pharmacologically, or in every other relevant way wholly benign or alternatively exceedingly dangerous, there does not appear to be a legitimate avenue for the use of that information to inform the sentencing discretion or to substantiate a submission. .....
The High Court confirmed as much in Adams v The Queen [2008] HCA 15 holding that the sentencing judge was not permitted by the Customs Act 1901 or the evidence to treat ecstasy as less harmful to users and society than heroin.
It is commonplace in sentence proceedings to refer to comparable cases and statistics. In accordance with the principle of consistency such material may be taken into account where demonstrative of a sentence pattern or range, although caution must always be exercised given the individualised nature of sentencing: Visconti [1982] 2 NSWLR 104 at 107; Morgan (1993) 70 A Crim R 368 at 371; AEM [2002] NSWCCA 58 at [105]-[108];
Generally, while bald statistics are of limited use and must be interpreted cautiously, they can still provide general information as to sentence range and assist in ensuring consistency in sentencing. Often greater guidance can be obtained from a survey of cases than statistics as cases enable some detail of specific circumstances to be set out for purposes of comparison: Bloomfield (1998) 44 NSWLR 734 at 739. As put by Spigelman CJ The Hon J J Spigelman AC, ' Consistency and sentencing' (2008) 82 ALJ 450.
It is important not to confuse the range of appropriate sentences for an individual case, which is a matter that is frequently the subject of submissions in a court of criminal appeal, on the one hand, with the range that the statistical database shows has been appropriate in the past for all the different kinds of cases that have arisen, on the other hand. Nevertheless, statistics are capable of assisting judges in the difficult task of applying the principle of consistency Such statistics may identify a sentencing pattern which accommodates differences in the individual circumstances of an offence and of an offender upon which the judge has to adjudicate. I have attempted to identify the utility of statistics on the basis of the case law in which they have been deployed, as follows:
1. The sentence to be imposed depends on the facts of each case and for that reason bald statistics are of limited use.
2. Statistics may be less useful than surveys of decided cases, which enable some detail of the specific circumstances to be set out for purposes of comparison.
3. Caution needs to be exercised in using sentencing statistics, but they may be of assistance in ensuring consistency in sentencing.
4. Statistics may provide an indication of general sentencing trends and standards.
5. Statistics may indicate an appropriate range, particularly where a significant majority or a small minority fall within a particular range. Similarly when a particular form of sentence such as imprisonment is more or less likely to have been imposed.
6. Statistics may be useful in determining whether a sentence is manifestly excessive or manifestly inadequate.
7. Statistics are least likely to be useful where the circumstances of the individual instances of the offence vary greatly, such as manslaughter.
8. The larger the sample the more likely the statistics will be useful ( R v Bloomfield (1998) 44 NSWLR 734 at 739).
In Mitchell [2008] NSWCCA 192 the Court considered the lesser sentence imposed on another person, not a co-offender, who had committed a similar offence in similar circumstances to the applicant. Blanch J (McClellan CJ at CL agreeing with additional comments; Grove J agreeing) found that in view of the statistics and bearing in mind the need identified by Mason J in Lowe (1984) 154 CLR 606 to demonstrate consistency in punishment, a lesser sentence was appropriate: at [20]-[21]. Per Blanch J:
[10] Although not a case of discrepancy in sentencing of co-offenders, this is a case of markedly different sentences imposed on two men who were living in the same house, who were each engaged in the same activity for the same purpose on the same day.
[11] In Lowe v The Queen supra Mason J said at 610:
"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
[12] The truth of his Honour's remarks can be illustrated in this jurisdiction by the keeping of sentencing statistics by the Judicial Commission which allows some broad picture to be gained of the types of sentences imposed for offenders of varying types in respect of various offences. In this jurisdiction this Court also provides guideline sentences in respect of particular offences. It is also common in this Court for a number of other like cases to be quoted as demonstrating that the sentence under review lacks consistency with sentences for like offences. All of this is directed at attempting to achieve some consistency in sentencing. It cannot be said that achieving consistency in sentencing is an exact science because there are so many variable factors relating to both offenders and offences. That does not relieve this Court of the task of attempting to apply an important principle of sentencing law.
In Allen [2008] NSWCCA 11, dealing with the offence of pervert the course of justice, the pattern of sentences established by the statistics was taken into account to establish that the sentence was manifestly excessive. Per Grove J (Giles JA agreeing; Harrison J dissenting):
[24] Great care needs to be taken in applying statistics derived from cases of which no facts are known. It needs always to be borne in mind that the maximum sentence which can apply to a worst case or worst offender is that prescribed by Parliament and not the upper limit of any statistical range. Nevertheless, whilst I would assess the criminality involved in the appellant's actions as of a high order, the pattern of sentence revealed by the statistics is not to be ignored, and I consider the submission of excess is made out particularly when one observes that the present sentence exceeds by 25 percent the next highest sentence received by any other offender incorporated in the survey.
In Derrington [2008] NSW CCA 94, a Crown appeal dealing with deemed supply cocaine, comparable cases were of assistance but the statistics were not helpful. Hulme J (McClellan CJ at CL; Mathews AJ agreeing) said:
[8] This court has made the point on numerous occasions that statistics have their limitations. At best they are but a guide, and they do not show the circumstances of the offenders reflected in them: Furthermore, that the primary question is not where among the statistics the applicant falls but whether, given the circumstances, a particular sentence reflects the relevant legislative provision.
....
[14] Counsel did however refer the Court to four cases he suggested were comparable - R v Phillips [2003] NSWCCA 373; Postlewaight v R [2007] NSWCCA 230; R v Salazar [2004] NSWCCA 13; and R v Williams (unreported, CCA, 5 August 1993).
[15] A consideration of those confirms in my view that the sentence imposed in this case was within range. ....
In Wood [2008] NSWCCA 257, involving supply commercial quantity of drugs, the Court held that the statistics did show that the sentence imposed was manifestly excessive. Allowing the appeal, Simpson J (Nettle AJA agreeing; McClellan CJ at CL dissenting) said:
[52] ........ The fact is that, even on the revised statistics (as provided by the Crown) for an offence involving a quantity of the drug very much towards the bottom of the commercial quantity range, the applicant was sentenced to a term of imprisonment towards the top of the range within which offenders are, as a matter of practice, ordinarily sentenced. ...... These circumstances do not suggest any justification for a sentence that might be seen as more appropriate to an offence of supplying the large commercial quantity, for which the maximum penalty is imprisonment for life.
[53] I have come to the view that the applicant has made good this ground of the application and that, when regard is had to sentencing patterns, and particularly to the quantity of drug involved, the sentence imposed was manifestly excessive. ....
As to reliance on statistics generally, in Dieguez [2008] NSWCCA 147 (supply heroin) Latham (Bell JA; Grove J agreeing) said:
[24] To call in aid the Judicial Commission statistics in order to demonstrate manifest excess, as the applicant does, is not always helpful. It is apparent that the applicant's sentence is at the upper end of the range of sentences imposed for this offence, according to those statistics. The fact remains that it is nonetheless within the range of sentences imposed for an offence carrying a maximum penalty of 15 years imprisonment. Caution should be exercised when having regard to this data. As Hulme J observed, with the concurrence of the other members of the Court in Ma & Pham v R [2007] NSWCCA 240 :-
91 Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them.
See also R v Vu [2003] NSWCCA 316 at [33] ; Lu v R [2007] NSWCCA 74 ; Derrington v R [2008] NSWCCA 94.
In Bou-Antoun [2008] NSWCCA 1 we are reminded that where an offence is subject to a standard non-parole period (see s.54B Crimes (Sentencing Procedure) Act1999), little assistance is to be obtained from statistics relating to offences committed before 1 February 2003 i.e. the commencement of standard non-parole periods: at [41]-[42].
Amendments introduced on 1 January 2009 specify that Division 1A of the Crimes (Sentencing Procedure) Act1999 (s. 54A) 'standard non-parole periods' do not apply to the sentencing of an offender in respect of an offence if the offender was under 18 years at the time the offence was committed: s 54D(3).
Section 21A(5A) was also inserted on 1 January 2009 and provides that in determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
Additionally, s 24A came into effect on 1 January 2009 prohibiting a court from taking into account as a mitigating factor the fact that the offender has or may become a registerable person under the Child Protection (Offenders Registration) Act2000 or the Crimes (Serious Sex Offenders) Act2006 as a consequence of the offence.
The Judicial Commission Court of Criminal Appeal statistics for 2008 have not as yet been finalised. What can be observed from the statistics that are available is that successful severity appeals reached a high point of 45.2% in 2004. There has been a steady decline to 39.2% in 2007. Conversely, successful Crown appeals reached a low point of 49.2% in 2003 and there has been an increase to 61.4% in 2007. It remains to be seen whether the 2008 statistics continue these trends.
(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.
(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54BSentencing procedure
(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
(5) The failure of a court to comply with this section does not invalidate the sentence. 54CCourt to give reasons if non-custodial sentence imposed
(1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.
(2) The failure of a court to comply with this section does not invalidate the sentence.
(3) In this section: non-custodial sentence means a sentence referred to in Division 3 of Part 2 or a fine. 54D Exclusions from Division
(1) This Division does not apply to the sentencing of an offender:
(a) to imprisonment for life or for any other indeterminate period, or
(b) to detention under the Mental Health (Criminal Procedure) Act 1990.
(2) This Division does not apply if the offence for which the offender is sentenced is dealt with summarily.
(3) This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed.
| Item number | Offence | Standard non-parole period |
|---|---|---|
| 1A | Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work | 25 years |
| 1B | Murder—where the victim was a child under 18 years of age | 25 years |
| 1 | Murder—in other cases | 20 years |
| 2 | Section 26 of the Crimes Act 1900 (conspiracy to murder) | 10 years |
| 3 | Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder) | 10 years |
| 4 | Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest) | 7 years |
| 4A | Section 35 (1) of the Crimes Act 1900 (reckless causing of grievous bodily harm in company) | 5 years |
| 4B | Section 35 (2) of the Crimes Act 1900 (reckless causing of grievous bodily harm) | 4 years |
| 4C | Section 35 (3) of the Crimes Act 1900 (reckless wounding in company) | 4 years |
| 4D | Section 35 (4) of the Crimes Act 1900 (reckless wounding) | 3 years |
| 5 | Section 60 (2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm) | 3 years |
| 6 | Section 60 (3) of the Crimes Act 1900(wounding or inflicting grievous bodily harm on police officer) | 5 years |
| 7 | Section 61I of the Crimes Act 1900 (sexual assault) | 7 years |
| 8 | Section 61J of the Crimes Act 1900 (aggravated sexual assault) | 10 years |
| 9 | Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) | 15 years |
| 9A | Section 61M (1) of the Crimes Act 1900 (aggravated indecent assault) | 5 years |
| 9B | Section 61M (2) of the Crimes Act 1900 (aggravated indecent assault—child under 10) | 8 years |
| 10 | Section 66A(1) or (2) of the Crimes Act 1900 (sexual intercourse—child under 10) | 15 years |
| 11 | Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding) | 7 years |
| 12 | Section 112 (2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation) | 5 years |
| 13 | Section 112 (3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation) | 7 years |
| 14 | Section 154C (1) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board) | 3 years |
| 15 | Section 154C (2) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation) | 5 years |
| 15A | Section 154G of the Crimes Act 1900 (organised car or boat rebirthing activities) | 4 years |
| 15B | Section 203E of the Crimes Act 1900 (bushfires) | 5 years |
| 15C | Section 23 (2) of the Drug Misuse and Trafficking Act 1985 (cultivation, supply or possession of prohibited plants), being an offence that involves not less than the large commercial quantity (if any) specified for the prohibited plant concerned under that Act | 10 years |
| 16 | Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug |
10 years |
| 17 | Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug |
15 years |
| 18 | Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug |
10 years |
| 19 | Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug |
15 years |
| 20 | Section 7 of the Firearms Act 1996 (unauthorised possession or use of firearms) | 3 years |
| 21 | Section 51 (1A) or (2A) of the Firearms Act 1996 (unauthorised sale of prohibited firearm or pistol) | 10 years |
| 22 | Section 51B of the Firearms Act 1996 (unauthorised sale of firearms on an ongoing basis) | 10 years |
| 23 | Section 51D (2) of the Firearms Act 1996 (unauthorised possession of more than 3 firearms any one of which is a prohibited firearm or pistol) | 10 years |
| 24 | Section 7 of the Weapons Prohibition Act 1998 (unauthorised possession or use of prohibited weapon)—where the offence is prosecuted on indictment | 3 years |
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection 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.
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
(5A) Special rules for child sexual offences
In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.
(6) In this section:
child sexual offence means:
(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 , or
(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.
serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.
20 Sep 2024