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By John Stratton SC
Deputy Senior Public Defender
This paper is an attempt to cover some recent developments in sentencing law. It is not of course intended to cover all the recent cases law developments in this area. The focus of this paper is on cases decided after the year 2000.
In a number of High Court cases two different models of the sentencing process have been championed. The first model, particularly advocated by McHugh J, is the ‘instinctive synthesis’ model, in which the sentencing judge produces the final figure after taking into account all the relevant factors. The second model is the ‘two step’ sentencing approach, praised by Kirby J, in which the sentencing judge first determines a sentence by reference to the objective gravity of the offence, and then makes adjustments to this provisional sentence to take into account other factors, in particular a plea.
The ‘two step’ approach was criticised by McHugh and Hayne JJ, who both gave dissenting judgments in AB v The Queen (1999) 198 CLR 111. Subsequently in Wong and Leung v The Queen (2001) 207 CLR 584 Gaudron Gummow and Hayne JJ said (at 611):
Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
However the Court of Criminal Appeal held in Sharma (2002) 54 NSWLR 300 that in New South Wales sentencing judges should continue to indicate the discount given for a plea of guilty in accordance with the guideline judgment of Thomson and Houlton (2000) 49 NSWLR 383.
In Markarian v The Queen [2005] HCA 25 the High Court again had the opportunity to determine the debate between the competing models. Not surprisingly, McHugh J’s judgement denounced two-step sentencing, while Kirby J argued for it. The approach taken by the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) on the face of it supported the ‘instinctive synthesis model’, but seemed to accommodate the approach taken in Sharma that the discount for a plea of guilty could be made transparent. Their Honours said (at paras [38] to [39]):
Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia. Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
It is submitted that ‘two step’ sentencing still has some life left in it.
Section 21A provides in a sense a checklist of matters to be taken into account in sentencing. Section 21A has proved to be an extremely fertile field for appellate lawyers.
Section 21A (1) and (2) state:
(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,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(d) the offender has a record of previous convictions,
(e) the offence was committed in company,
(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,
(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, 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.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
Subsection (3), which deals with mitigating factors, is omitted for reasons of space. Subsections (4) and (5) state:
(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.
A number of important features of this legislation have emerged in the cases. It is important to note that the list of aggravating and mitigating features is expressly not an exhaustive one: see s. 21A (1). Thus for example, a sentencing judge can take into account extra-curial punishment as a mitigating factor: see Daetz (2003) 139 A Crim R 398.
It is very important to note that an aggravating factor is not to be taken into account if it is an element of the offence: see s. 21A (2). Sentencing judges appear to find it very difficult to avoid falling foul of this provision. Since this problem comes up so frequently, examples will be given under headings for the relevant aggravating factor below. However at this stage it it may be important to make some general observations.
The cases demonstrate that problems frequently arise when judges simply read onto the record the paragraph letters of the aggravating features they find present. The failure to indicate the way in which the aggravating factors are taken into account is a frequent source of judicial error.
Problems will arise when a sentencing judge indicates broadly the aggravating factors found to exist, without specifying which particular offences are aggravated. In Street [2005] NSWCCA 139 the sentencing judge had to sentence the offender for a large number of matters. He referred to aggravating features generally, although for some of those offences the aggravating feature was an element of the offence. This was held to be an error (at paras [32] to [34]). See also Tadrosse [2005] NSWCCA 145 at para [26].
However the extent to which a factor (which is an element of the offence) is present may be treated as an aggravating factor. Thus in the case of dangerous driving occasioning death, the degree to which the offender's blood alcohol level was over the legal limit can be taken into account as an aggravating factor: see Berg [2004] NSWCCA 300 at para [25]. Similarly it will not be an error in a robbery in company case to take into account as an aggravating factor the fact that the offender had a large number of overbearing and powerful companions: Regina v Way (2004) 60 NSWLR 168 at para [107]. See also Regina v Pearson [2005] NSWCCA 116 at paras [31] to [35].
(b) ‘the offence involved the actual or threatened use of violence’
Under s. 21A (2) (b) an aggravating factor is the actual or threatened use of violence in the offence. In a case of armed robbery, it will be an error to treat as an aggravating factor the fact that the offence involved the actual or threatened use of violence: Ibrahimi [2005] NSWCCA 153 at paras [16] to [18], Mohamadin [2004] NSWCCA 401 at para [16].
Similarly, in a sentence for malicious wounding with intent, it is an error to treat as an aggravating factor the fact that the offence involved actual violence: Cramp [2004] NSWCCA 264 at paras [20], [53] to [58].
(c) ‘the offence involved the actual or threatened use of a weapon’
Under s. 21A (2) (c), the actual or threatened use of a weapon is an aggravating factor. Again, the aggravating factor does not apply if use of a weapon is an element of the offence, such as for the offence of armed robbery: Mohamadin [2004] NSWCCA 401 at para [16], and House [2005] NSWCCA at paras [8] to [11].
(d) ‘A Record of previous Convictions’
Under s. 21A(2) (d), it is an aggravating factor of an offence if the offender has ‘a record of previous convictions’. Somewhat confusingly, it has been in effect held that despite the apparent wording of the section, having a record of previous convictions does not aggravate the offence.
At common law, having a criminal record is not regarded as an aggravating factor of an offence. In Regina v Shankley [2003] NSWCCA 253 (at para [31]) Howie J summarised the principles of Veen v The Queen (1988) 164 CLR 465 as follows:
The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted.
Section 21A (4) states that the court is not to have regard to any aggravating or mitigating factor when it would be contrary to any Act or rule of law to do so. As a result it has been held that Regina v Shankley continues to be good law: Johnson [2004] NSWCCA 76. It follows that it is an error for a sentencing judge to treat an offender’s criminal history as an aggravating factor: Blair [2005] NSWCCA 78. It may even be an error if the sentencing judge simply refers to the criminal record of the offender without indicating how the criminal record is taken into account: Regina v Walker NSWCCA 109.
(e) ‘the offence was committed in company’
Again, care needs to be taken that this aggravating factor is not an element of the offence. In a case of robbery in company, it will be an error to treat as an error the fact that the robbery was committed in company as an aggravating factor: Mohamadin [2004] NSWCCA 401 at para [16].
(g) ‘Injury, emotional harm, loss or damage’
It is an aggravating factor of the offence if the ‘injury, emotional harm, loss or damage caused by the offence was substantial’ (s. 21A(2) (g)).
If the injury is an element of the offence, the injury cannot be taken into account as an aggravating factor. Thus it is an error to take into account the death of a victim in a manslaughter case (Williams [2005] NSWCCA 99 at paras [34] to [38]) or a dangerous driving occasioning death case (Vale [2004] NSWCCA 469 at para [33]).
At common law it was held that in murder cases the effect of the killing on the family of the deceased could not be taken into account: Previtera (1997) 94 A Crim R 76. In Berg [2004] NSWCCA 300 Spigelman CJ suggested that in view of the inclusion of s. 3A of the Crimes (Sentencing Procedure) Act, which stated that one of the purposes of sentencing was ‘to recognise the harm done to the victim of crime and the community’, Previtera might have to be reconsidered. A 5 judge bench of the Court of Criminal Appeal was constituted to consider the matter in Tzanis [2005] NSWCCA 274 but in the end decided it was unnecessary to resolve the matter.
The courts have considered the circumstances in which ‘emotional harm’ can be used as an aggravating factor. In Regina v Youkhana NSWCCA 412 the appellant had been sentenced for armed robbery. The victim had said in his statement that he was concerned that he would be shot during the robbery, and that “I am still very shaken and nervous as a result of the incident’. The sentencing judge treated as an aggravating factor that the victim had suffered from ‘emotional harm’. It was held that for ‘emotional harm’ to be treated as an aggravating factor, it had to be demonstrated that it was significantly more deleterious than the emotional harm which any ordinary person would suffer when subjected to an armed robbery. Normally there would have to be evidence specifically directed to that issue, normally in the form of a Victim Impact Statement (para [26]).
In Solomon [2005] NSWCCA 158 Howie J (with whom Grove and Latham JJ agreed) said (at paras [19] to [20]):
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.
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. There may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated. But the present case is not one of them. In my opinion from the passages of the victim impact statements set out above it is clear that it was open for the Judge to find that the offences were each aggravated by the effect that they had upon the relevant victim.
(i) ‘without regard for public safety’
Under s. 21A (2)(i) it is an aggravating factor if an offence is committed ‘without regard for public safety’.
It is not an aggravating factor if the committing of an offence ‘without regard for public safety’ is an element of the offence. Thus it has been held that a sentencing judge was not in error in refusing to take into account as an aggravating factor in an offence of aggravated dangerous driving occasioning death the fact that the driving was committed ‘without regard to public safety’: McMillan [2005] NSWCCA 28. A contrary view was expressed obiter in Ancuta [2005] NSWCCA 275 at para [12].
In Ancuta [2005] NSWCCA the applicant had been sentenced for supplying drugs to an undercover police officer. The sentencing judge held that an aggravating factor was the fact that the offence was committed without regard to public safety. Brownie AJA (with whom the other judges of the Court of Criminal Appeal agreed) said (at para [11]):
11 The applicant submitted that his Honour erred as to clauses (i) and (l). It might be said that the offence of supplying heroin, and related offences such as being deemed to supply heroin, all carry with them the concept that the supply of heroin is likely to endanger the public safety, in the sense that the end users are exposed to various dangers, and that because those with a heroin habit are likely to commit crimes to fund their habit, other members of the public will be exposed to various dangers. However, s 21A(2) is directed to a different question, namely whether there is some aggravating factor to be taken into account when imposing a sentence for a particular offence. It might be said that every supplier or deemed supplier of heroin has failed to have regard for public safety, but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor, as described in s 21A(2)(i).
However in Regina v Way (2004) 60 NSWLR 168 the Court of Criminal Appeal held that there was no error in the sentencing judge treating the sale of drugs to an undercover police officer as an offence committed without regard to public safety (at para [172]).
(l) ‘ the victim was vulnerable’
Section 21A(2) (l) makes it an aggravating factor of the offence if 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, bank teller or service station attendant)’.
Again it is important to note that this feature cannot be used as an aggravating factor if it is an element of the offence. Thus in a case where the offence of which the offender has been convicted is the offence of sexually assaulting a person with an intellectual disability, the judge will be in error if he treats the disability of the victim as a further aggravating factor: Wickham [2004] NSWCCA 193 esp. at paras [22] and [32].
In Tadrosse [2005] NSWCCA 145 the applicant had committed a large number of offences of dishonesty on ordinary members of the public. The sentencing judge said:
I now turn briefly to some of the principles of sentencing the court is required to take into account by the legislation. Section 21A of the Crimes (Sentencing Procedure) Act provides a framework upon which to judge to some extent the aggravating and mitigating factors relating to an offence or a series of offences. And whilst I do not apply that section to each individual offence, I propose to indicate generally the aggravating and mitigating features that I have found in this case.
When one goes to s 21A(2), the aggravating factors, the factors that I find that are present are: (g), (l), (m) and (n).
This manner of referring to the section numbers is ripe with the possibility of appellable error. Howie J (with whom the other members of the Court of Criminal Appeal agreed) said in relation to the finding that the aggravating factor of vulnerable victims existed (at para [26]):
26 It may well be the case the persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents such as a driver’s licence because it is common to rely upon such documents as proof of identity. But that fact does not give rise to an aggravating factor under s 21A(2)(l). That provision is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender.
In Ancuta [2005] NSWCCA 275 the applicant had been sentenced for supplying heroin to an undercover police officer. The sentencing judge treated as an aggravating factor the fact that the victims were vulnerable. Brownie AJA, with whom the other judges of the Court of Criminal Appeal agreed, said at paras [13] to [14]:
13 As to clause (l), concerning a vulnerable victim or victims, it is possible to think of potential heroin users as being victims, and as being vulnerable, in the sense that they are unable to resist, or unable to adequately resist the temptations of heroin, but, once again, a conviction for an offence for supplying heroin, or of being deemed to have supplied heroin, carries this concept with it, so that it is not correct to hypothesise about potential victims, and of their being vulnerable, and then to treat this hypothesis as constituting an aggravating factor, so far as concerns the particular sentence to be imposed for a particular offence.
14 Further, in the present case, the police intervened and took possession of the heroin before the applicant had an opportunity to resell it, so that in fact there was no victim, so far as concerns the particular quantity of heroin, the subject of the charge, and the subject of the sentence. Accordingly, Ground 2 is made out.
In Williams [2005] NSWCCA 99 the applicant was found guilty of the manslaughter of his wife. The sentencing judge said:
In determining the appropriate sentence for the particular offence the Court is required to take into account certain specified aggravating factors and certain specified mitigating factors that are relevant and known to the Court as well as any other objective or subjective factors that affect the relative seriousness of the offence (s 21A(1)(a), (b) and (c)). The aggravating factors in the present case that are known and relevant are those specified in s 21A(2)(b)(c)(d)(g) and (l). The mitigating factors in the present case that are known and relevant are those specified in s 21A(2)(b) and (c).
Buddin J, with whom the other judges of the Court of Criminal Appeal agreed, said (at paras [40] to [41]):
40 The sentencing judge also relied, as an aggravating factor, upon s 21A(2)(l). The argument in respect of this matter was put somewhat differently because plainly enough it could not be suggested that this was an element of the offence. The sentencing judge concluded that the deceased was vulnerable, as I understand his Honour’s reasons, upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have those characteristics. That was clearly a matter that was relevant to an assessment of the objective gravity of the offence. It should not however have been treated as a factor which further aggravated the offence.
41 In any event all victims of a homicide can be said to be vulnerable. In my view, s 21A(2)(l) is not directed to vulnerability in that generalized sense. Indeed, the examples set out in the subparagraph suggest that it is vulnerability of a particular kind that attracts its operation.
On the other hand it was held that a sentencing judge was not in error for treating as vulnerable the victims of a robbery who were on a railway station late at night: Ibrahimi [2005] NSWCCA 153.
(m) ‘Multiple Victims or a Series of Criminal Acts’
It is an aggravating factor for an offence to involve multiple victims or a series of criminal acts: s. 21A (2) (m). However this does not if an offender is being sentenced for many offences, each with a different victim, the individual offences are not aggravated by there being ‘multiple victims’.
In Tadrosse [2005] NSWCCA 145 the offender was being sentenced for a large number of dishonesty offences, each with a separate victim. The sentencing judge treated as an aggravating factor the fact that there were multiple victims. In the Court of Criminal Appeal, Howie J (with whom the other judges agreed) said (at paras [28] to [29]):
28 His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) “the offence involved multiple victims or a series of criminal acts”. Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court.
29 Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act. Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act. When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged.
See also Janceski [2005] NSWCCA 288 at para [22].
Section 54B of the Crimes (Sentencing Procedure) Act reads as follows:
(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.
Section 54A (2) states that the standard non-parole period represents the non-parole period for an offence in the mid range of objective seriousness. Section 21A sets out a list of aggravating and mitigating factors, which are to be taken into account on sentencing.
Standard non-parole periods are for offences committed after 1 February 2003. It is an error of law to take into account standard non-parole periods for offences committed before that date; see Regina v Wilkinson [2004] NSWCCA 468 at para [26].
In Regina v Way (2004) 60 NSWLR 168 the Court of Criminal Appeal observed that on a literal reading of s. 54B(2), the provision would be confined to offences of mid-range seriousness. However the Court took a purposive interpretation of the provision, and found that s. 54B(2) applies to all offences. However, the fact that a particular offence is more or less serious than an offence of mid range seriousness is a reason for departing from the standard non-parole period (Way at para [67]).
A matter of great practical significance is the question of whether the standard non-parole period is for an offence after trial, or after a plea of guilty. On this critical issue, the legislation is curiously silent. The Court of Criminal Appeal noted that s. 21A of the Act states that a plea of guilty is a mitigating factor (s. 21A (3) (k)), but a plea of not guilty is not an aggravating factor, either under s. 21A or the common law. As a result the Court of Criminal Appeal concluded that the standard non-parole periods set out in the Table to the Act must be considered as the non-parole period for mid range cases after trial (Way at para [71]). It follows that when a court is sentencing an offender who has pleaded guilty to an offence for which there is a standard non-parole period, the standard non-parole period does not apply. See also Regina v Perez [2004] NSWCCA 218 at para [23].
Although both counsel for the appellant and the Crown in Way argued that it was not necessary for a sentencing judge to determine what is the abstract case in the mid range of objective seriousness, these submissions were rejected (Way at [75]). The Court considered that this was no different from the exercise sentencing judges already have to undertake in determining where an offence stands on the range from least to most objectively serious.
The Court noted that the ‘middle range of objective seriousness’ was not to be regarded as the ‘typical’ offence (Way at para [100]), nor as occupying a narrow band (Way at para [102]).
The Court of Criminal Appeal in Way rejected the view that the objective seriousness of an offence was confined to the physical acts of the offender and their effects. The Court gave as examples of matters, which could be taken into account in determining objective seriousness: motivation (including duress, provocation, or need to feed a drug addiction), mental state, and mental illness or disability (where such illness or disability is causally related to the offence) (Way at para [86]).
Section 54B(3) of the Act states that 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 s. 21A.
Section 21A of the Act sets out a list of aggravating factors, and a list of mitigating factors, which must be taken into account on sentencing. However s. 21A(1) of the Act also states ‘The matters referred to in this subsection are in addition to any other matters to be taken into account by the court under any Act or rule of law’.
The result of this confusing combination of provisions is that a sentencing judge can take into account matters not mentioned in s. 21A, such as hardship to the offender’s family or serving a sentence in protection, if those factors could be taken into account at common law (Way at para [104]).
If the sentencing judge finds that there are reasons not to impose the standard non-parole period, the judge should then exercise his/her sentencing discretion in accordance with general sentencing practise, taking into account all the objective and subjective matters the sentencing judge must take into account at law (Way at para [121]). ‘In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant’ (Way at para [122]). See also Regina v Davies [2004] NSWCCA 319 at para [6].
The correct approach is not to start at the standard non-parole period and then oscillate about it to take into account aggravating and mitigating factors (Way at para [131]). See also Lewis [2005] NSWCCA 300.
After the enactment of the standard non-parole provisions, some commentators took the view that a finding of special circumstances (permitting a variation of the ratio between the non-parole period and the total sentence), could not be taken into account in setting the non-parole period. If this interpretation were correct, the alarming consequence would be that a finding of special circumstances would not reduce the non-parole period; it would simply increase the parole period, producing a longer total sentence.
Fortunately this interpretation was not adopted by the Court of Criminal Appeal. The Court held in Way that a finding of special circumstances under s. 44 of the Act was a matter ‘required or permitted to be taken into account under any Act or rule of law’ (s. 21A(1)). As a result a sentencing judge could take into account a finding of special circumstances in fixing the non-parole period (Way at paras [108] to [113]).
In Regina v Perez [2004] NSWCCA 218 the Court of Criminal Appeal held that a sentencing judge who did not take into account his finding of special circumstances in setting the non-parole period was in error (see para [27]). See also Regina v Huynh [2005] NSWCCA 220 at paras [34] to [38].
The Court of Criminal Appeal in Way said that the fact that a standard non-parole period had been prescribed for an offence did not preclude a non-custodial sentence, although because of the nature of the offences listed in the table, non-custodial sentences would be rare (Way at para [116]).
Section 54B is a mandatory provision. It requires a sentencing judge to either impose the standard non-parole period, or to give reasons for not doing so.
Section 54B states that ‘The failure of a court to comply with this section does not invalidate the sentence’. However s. 101A of the Act states a failure to comply with a provision of the Act can be taken into account even if the Act declares that failure to comply does not invalidate the sentence. In Regina v Tuncbilek [2004] NSWCCA 139, the Court of Criminal Appeal held that the combined effect of these apparently contradictory provisions was that a sentence not complying with s. 54B was preserved until it was dealt with on appeal (Tuncbilek at para [33]).
In the recent decision of Regina v Pellew [2004] NSWCCA 434 Simpson J summarised the cases on standard non-parole periods this way (at para [13]):
13 The following propositions emerge from Way and subsequent cases:
(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]);
(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);
(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] – [77]);
(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] – [86]);
(v) that an offence is “typical” or “common” does not dictate that it is in the middle of the range of objective seriousness ( para [101]);
(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] – [102]);
(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122 ]); see also R v GJ Davies [2004] NSWCCA 319.
Much difficulty in the area of sentencing offenders for multiple offences was caused by a single paragraph in the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 where McHugh, Hayne and Callinan JJ stated (at 624):
To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. 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 comment has been construed by the Court of Criminal Appeal in a way that has made the sentencing of an offender for multiple offences an extremely difficult process.
Prior to Pearce, a common method of sentencing an offender on multiple counts was to determine the appropriate sentence for the overall criminality, and then to impose that sentence on each count. As a result of Pearce, that approach to sentencing is impermissible: see Lemene (2000) 118 A Crim R 131 and Tomich (2002) 127 A Crim R 234 especially at para [4].
Similarly, it is not permissible to artificially increase the sentence imposed on one count to take into account the total criminality of other counts: A [1999] NSWCCA 61, Hammoud (2000) 118 A Crim R 66. In the latter case Simpson J said (at para [9]):
9 Pre- Pearce, it was possible to discern two different approaches to sentencing for multiple offences. The first was to select a single charge (a lead or representative count) and, in accordance with the principle of totality, on that charge impose a sentence that properly reflected the overall criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principle of totality in mind, to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences.
The classic formulation of totality was the following extract from the judgment of the High Court in Mill v The Queen (1988) 166 CLR 59 at 63:
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
In Johnson v The Queen [2004] HCA 15 the Crown argued that as a result of Pearce it was no longer permissible to lower the individual sentences to take into account totality. Fortunately this submission was rejected by the High Court.
On the question of whether sentences should be concurrent or cumulative, Simpson J said in Hammoud (at para [7]):
7 I wish to make it plain at the outset that I agree with the approach taken by Dowd J in the restructured sentences he proposes. My difficulty lies in the proposition expressed by his Honour in paragraph 69 of the draft. I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.
Section 16G of the Commonwealth Crimes Act was inserted into the Act when remissions were abolished in New South Wales. It required courts to take into account the abolition of remissions in determining sentences for Commonwealth offences. Generally, courts took into account the effect of s. 16G by discounting the sentence by a third.
Section 16G was repealed as from 16 January 2003, apparently simply out of a desire to tidy up the Crimes Act. However, this led to a debate about whether the effect of the abolition of s. 16G was that the general levels of sentencing for Commonwealth matters should be increased by 50%.
In Regina v Dujeu [2004] NSWCCA 237 Smart AJ (with whom Hislop J agreed) said (at para [43]):
43 I agree with Howie J that there is no warrant to increase the current range of sentences for Federal offences simply by applying some mathematical formula and that the proper approach to sentencing for a Federal offence is to determine the correct sentence without taking into account that s16G existed and has now been repealed ( R v Studenikin [2004] NSWCCA 164 at par [71]). Insofar as regards is had to sentencing patterns which existed prior to s 16G caution must be employed. It would be crude and unfair to increase previous levels of sentences by 50 per cent to take into account the repeal of ss 16G and 19AG.
However in Regina v Kevenaar [2004] NSWCCA 210 Hulme J (with whom Howie and Simpson JJ agreed) said (at para [48]):
48 Would-be offenders and sentencing judges should be under no misapprehension. The effect of the repeal of the section is that the length of sentences of imprisonment (and non-parole periods) for those offences to which s16G previously applied should, as a necessary and logical consequence of the way the courts implemented s16G, increase by approximately 50%.
In Regina v Mas Rivadivia NSWCCA 284 Wood CJ at CL (with whom the other members of the Court of Criminal Appeal agreed) discussed the cases referred to above and said (at paras [83] to [84]):
83 So far as there is any difference between the view of Hulme J in Kevenaar on the one hand, and of Smart AJ in Dujeu and of Howie J in Studenikin, on the other hand, then I prefer the views expressed in Dujeu and Studenikin.
84 To the extent that regard is had to Wong and Leung, in the indicative way for which guideline sentences are intended, or to the extent that reference is made to pre s 16G and 19AG sentencing patterns, or to those which will now emerge following the repeal of those sections, it is important for Judges to bear in mind:
(a) That Wong and Leung was decided in a context where s 16G required an adjustment to be made, although that adjustment was not one that was mathematically and unequivocally linked to a discount of 30%, since there remained an area for sentencing discretion; and
(b) That it is no longer permissible to make an allowance for the s 16G factor;
In Regina v Bezan NSWCCA 342 Wood CJ at CL (with whom the other judges of the Court of Criminal Appeal agreed) said (at paras [18] to [19]):
18 The effect of the decisions in Studenikin, Dujeu and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount.
19 Moreover, they establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the pre-repeal sentencing range (which may have been influenced by sentences imposed following reliance upon the guideline in Regina v Wong and Leung (1999) 48 NSWLR 340 before the successful appeal from that decision ( Wong v The Queen (2001) 207 CLR 584), to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range.
The procedure of putting a matter ‘on a Form One’ (at different times in the past also known as a Ninth Schedule) has been a procedure which practitioners have found to be an extremely useful device in sentencing proceedings. This procedure was the subject of authoritative consideration by a 5 judge bench decision of the Court of Criminal Appeal, Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518.
The procedure, which is now embodied in s. 32 of the Crimes Sentencing Procedure) Act, permits offenders pleading guilty to an offence (in the Act referred to as ‘the principal offence’) to ask the sentencing judge to take into account other additional charges with which the offender has been charged but not convicted. The procedure requires the co-operation of both parties to the sentencing proceedings, because only the prosecution can file the Form One in court, and the sentencing judge is only to take the matters into account if the offender asks the court to take the additional matters into account. The offender is not required to enter a plea of guilty to the additional charges, and the court is not permitted to impose a separate penalty for the additional charges (although it may make ancillary orders such as disqualification from driving).
There was a divergence of views as to the effect of putting additional charges on a Form One. The view which was traditionally regarded as more theoretically correct was that if a judge imposed a sentence on a principal offence, in a case where the court was asked to take into account additional matters on a Form One, then the sentence imposed on the principal offence should be the same as the total sentence which would have been imposed had all the offender been convicted of the principal offence and the additional matters. According to this view, the only effect of asking the sentencing judge to take into account additional matters on a Form One, was that the sentence imposed was limited by the maximum penalty available for the principal offence. Examples of cases in which this approach was taken is Vougdis (1989) 41 A Crim R 125, and the judgment of Hulme J in Regina v Dawson [2000] NSWCCA 399.
The alternative view, which was much more frequently followed by first instance judges was that the offender should receive a significantly lower penalty for adopting the procedure of asking matters to be dealt with on a Form One. This approach was taken in cases such as the judgment of Simpson J in Regina v Lemene (2001) 118 A Crim R 131.
In Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 Spigelman CJ gave the leading judgement, and all the other judges of the court agreed. His Honour pointed out that when a court sentenced an offender for a principal offence, in a situation where the court was asked to take into account matters on a Form One, the court was in fact only sentencing for the principal offence. To sentence the offender for the matters on a Form One, to which the offender has not been convicted, would be in breach of the principles set down by the High Court in De Simoni v The Queen (1981) 147 CLR 383.
However in sentencing the offender for the principal offence, the sentencing judge takes into account the matters on the Form One, with a view to increasing the penalty for that offence. It does so by giving greater weight to the need for personal deterrence and retribution.
As to the practical effect of putting matters on a Form One, Spigelman CJ said (at [66]):
66 The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed. In my opinion, the issues that arise are broadly equivalent to those involved in the Crown deciding not to prosecute for the full range of offences open to it or to accept a plea to a lesser charge, albeit in the context of multiple, and often divergent, criminal offences.
It now appears to be clear that there is a considerable advantage to an offender to ‘clean the slate’ by asking a sentencing judge to take into account outstanding matters on a Form One.
In Markarian v The Queen [2005] HCA 25 it was argued that the Court of Criminal Appeal had erred in resentencing Markarian by stating that the sentence was to be increased by a specific amount to take into account matters on a Form One. This argument was rejected.
The leading case in relation to the sentencing of Aboriginal offenders remains Fernando (1992) 76 A Crim R 58. In that case Wood J (as he then was) summarised the relevant principles as follows:
(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing courts should ignore those facts which exist only by reason of membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the use of alcohol by members of the Aboriginal society or their resort to violence when heavily effected by it, the courts must be very careful in the pursuit of their sentencing policies to not deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or a mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H) That in every sentencing exercise, whilst it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
In recent times there has been progressive limiting of the cases in which the Fernando principles are said to apply. In Regina v Morgan (2003) 57 NSWLR 533 Wood CJ at CL said (at 539):
22 The present offences were not alcohol-related and the appellant did not come from a remote community, nor was he unfamiliar with the justice system. While the "Fernando considerations" could properly be taken into account, they added little to the present sentencing exercise beyond those matters which would otherwise have been taken into account, for any offender, as subjective circumstances. They were not favourable, but they did point to the need for a sentence that took into account the rehabilitative aspects, particularly in relation to post release supervision and assistance.
There have been many cases in which the Court of Criminal Appeal has repeated that the utilitarian value of a plea of guilty is not to be reduced because there is a strong Crown case. In Regina v Sutton [2004] NSWCCA 225 Howie J said at para [12]:
12 This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence. The following are but some of the decisions on this point in the four years since Thomson and Houlton was decided, and this is not to indicate that the principle was other than patently obvious from the judgment of the Chief Justice in the guideline judgment, see at [154]: R v Bugeja [2001] NSWCCA 196 at [27]; R v Smith [2001] NSW CCA 420 at [10]; R v Wan [2001] NSWCCA 501 at [10]; R v Parkinson (2001) 125 A Crim R 1; R v Hunter [2001] NSWCCA 530; R v Gorgievski [2002] NSWCCA 45 at [8]; R v Kay [2002] NSWCCA 286 at [58]; R v Ho [2002] NSWCCA 379 at [23]; R v Deluca [2002] NSWCCA 446 at [15]-[16]; R v Strong [2003] NSWCCA 123 at [52]; R v Bell [2003] NSWCCA 132 at [15]–[20]; R v Petrie [2003] NSWCCA 208 at [15]; R v Trad [2003] NSWCCA 213 at [55]; R v Scott [2003] NSWCCA 286 at [18]; R v Sullivan [2004] NSWCCA 99 at [56]; R v Way [2004] NSWCCA 131 at [144]-[150]; R v Grbin [2004] NSWCCA 220 at [20].
Where there has been a plea of guilty at the earliest opportunity, and the offender has received a discount for the plea of less than 25%, if no explanation is given, error has been established: Regina v Johnston [2004] NSWCCA 307.
The High Court has recently stated that a sentencing judge is not bound by to find facts in accordance with ‘agreed facts’, and in particular is not bound by an agreement between the parties as to the basis on which the offender is to be sentenced: GAS and SJK v The Queen [2004] HCA 22. The parameters for ‘agreed facts were discussed by the High Court in the following terms:
1. First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person [9]. The judge has no role to play in that decision. There is no suggestion, in the present case, that the judge was in any way a party to the "plea agreement" referred to. The appellants, through their counsel, evidently indicated to the prosecutor that, if a charge of manslaughter were to be substituted for the charge of murder, they would plead guilty, and the prosecutor filed a new presentment on that understanding. However, the charging of the appellants was a matter for the prosecutor.
2. Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely and, in this case, it was made with the benefit of legal advice. Once again, the judge is not, and in this case was not, involved in the decision. Such a decision is not made with any foreknowledge of the sentence that will be imposed. No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen, but that advice is the responsibility of the accused's legal representatives.
3. Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed [10]. For that purpose, the judge must find the relevant facts [11]. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case [12]. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor.
4. Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.
5. Fifthly, an erroneous submission of law may lead a judge into error and, if that occurs, the usual means of correcting the error is through the appeal process. It is the responsibility of the appeal court to apply the law. If a sentencing judge has been led into error by an erroneous legal submission by counsel, that may be a matter to be taken into account in the application of the statutory provisions and principles which govern the exercise of the appeal court's jurisdiction.
The High Court has recommended that, if there are agreed facts, that agreement should be reduced to writing.
The Court of Criminal Appeal has stated repeatedly that if agreed facts are tendered, the Crown should not tender other material which contradicts the agreed facts: Palu (2002) 134 A Crim R 174 at para [21], Barri [2004] NSWCCA 221 at paras [57] to [58], Falls [2004] NSWCCA 335 at para [39].
Where a suspended sentence imposed, the judge should impose a sentence with a non-parole period and a parole period, or give reasons for not doing so: Regina v Tolley [2004] NSWCCA 165.
The Court of Criminal Appeal has recently held that it is overstating the case that the range of sentences set out in the guideline judgment for armed robbery, Regina v Henry, (1999) 46 NSWLR 346 must be applied unless there are exceptional circumstances: Regina v Lesi [2005] NSWCCA 63 at para [36].
The Court of Criminal Appeal has stressed that when a reduction of a sentence is sought on the basis that the offender will serve his sentence in protection, there should be evidence of the nature of the protective custody: see Regina v Mostyn [2004] NSWCCA 97 and Regina v Way [2004] NSWCCA 131 esp at para [179]. Such evidence can be called from the offender or from prison authorities.
Conditions on bonds must be reasonable. A bond imposed by Finnane DCJ requiring an Aboriginal man from Wilcannia to stay out of Wilcannia was held to be unreasonable: Regina v Bugmy [2004] NSWCCA 258.
John Stratton SC
Deputy Senior Public Defender
8 November 2005
20 Sep 2024