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Andrew Haesler S.C.
Barrister & Public Defender
This paper was initially presented at the 'Criminal Law Day' NSW College of Law, 19 February 2005. It was prepared with the invaluable help and assistance of Jennifer Wheeler, legal researcher, Public Defender's Office. The comments are mine.
Usually my papers start with a litany of complaints and tales of woe, with the occasional rant against the perfidy of governments who pretend that a change in the law will solve the problems generated by the latest ill informed media or victim outrage at an apparently lenient sentence. I trust that this year's paper will not disappoint. However, although the High Court and the Court of Criminal Appeal have had some things to say, so far as legislative changes are concerned, there was very little activity in the sentencing area last year. I suspect that the government is saving up for a bumper year in 2005! Recent announcements by the Chief Justice and the tentative support for them from the Premier indicate that they do not intend to disappoint us.
I propose to review the recent legislative changes then move on to some of the more common problems that have arisen in 2004 before concluding with some of the proposals for change/reform we might expect in 2005.
The Crimes (Interstate Transfer of Community Based Sentences) Act 2004 No.72 - commenced on the 29.11.2004. It provides for the voluntary transfer of a community service order, home detention order, periodic detention order or a good behaviour bond to the supervision and administration of another State or Territory. A failure to comply with provision means offender will be re-sentenced in the new jurisdiction and according to that State or Territory's laws. Any appeal against the original sentence or conviction stays in the original jurisdiction. Similar sentences from participating jurisdictions may be registered for supervision and administration in NSW under reciprocal arrangements.
The Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 No 3 commenced on the 31.7.2004. It expands the category of offences in respect of which a Local Court may receive and consider victim impact statements to include some Table 1 offences Table 1 of Schedule 1 to the Criminal Procedure Act 1986. They are Indictable offences, which are dealt with summarily unless prosecutor or accused elects otherwise and which result in actual physical bodily harm to any person, or involve an act of actual or threatened violence or an act of sexual assault.
The Crimes Legislation Further Amendment Act 2003 No 85 commenced on the 14.2.2004. It amends s.58 Crimes (Sentencing Procedure) Act 1999 58 Limitation on consecutive sentences imposed by Local Courts
(1) A Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.
(2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section.
(3) This section does not apply if:
(a) the new sentence relates to:
(i) an offence involving an escape from lawful custody, or
(ii) an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and
(b) either:
(i) the existing sentence (or, if more than one, any of them) was imposed by a court other than a Local Court or the Children's Court, or
(ii) the existing sentence (or, if more than one, each of them) was imposed by a Local Court or the Children's Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began.
(4) In this section:
Section 12 Crimes (Sentencing Procedure) Act 12 Suspended sentences
(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.
(3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence.
(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment. still continues to vex magistrates, judges and advocates. Amendments following the introduction of standard non-parole periods and recent decisions from the Court of Criminal Appeal have if anything added to the confusion. More changes can be expected. In the meantime this appears to be the state of the law:
* A suspended sentence is a sentence of imprisonment. Dinsdale v The Queen (2000) 202 CLR 321 It is not a soft option.
* A suspended sentence is intrinsically less severe than immediate full-time gaol R v Zamagias [2002] NSWCCA 17 at [29] and R v Montesinos (2002) 135 A Crim R 417. but on breach its consequences are just as severe.
* It is necessary to set out both a non-parole and parole period when the sentence is first imposed. See ss. 3, 44 and 99 Crimes (Sentencing Procedure) Act 1999 particularly the definition of 'sentence'.
* A suspended sentence cannot be partially suspended. S. 12 (1)(a) was amended to overturn the effect of the decision of the CCA in R v Gamgee [2001]NSWCCA 251.
* A suspended sentence cannot be imposed if the offender is already subject to some other form of imprisonment even if serving the balance of parole. R v Edigaraov [2001] NSWCCA 436 and R v Finnie [2002] NSWCCA 533
* The bond commences on the day it is imposed. It cannot be post or backdated or accumulated on another suspended sentence. R v Abdullah, unreported Hulme J. November 2004, R v Croaker [2004] NSWCCA 470.
* On breach, the whole of the sentence initially imposed must be served. R v Tolley [2004] NSWCCA165 and R v G Graham [2004] NSWCCA 420.
* Only on breach can a suspended sentence can be backdated to take account of time served prior to the imposition of the initial bond. Section 24 Crimes (Sentencing Procedure) Act 1999.
* On breach, home detention and period detention remain options S. 99 Crimes (Sentencing Procedure) Act 1999.
* The overall sentence is not to be increased because it is being suspended. See R v Sing [2002] NSWCCA 20, R v Zamiagias [2002] NSWCCA 17.
* If the initial sentence is too severe, appeal immediately. Time limits, particularly those that apply for appeals to the District Court, are strict. See s. Crimes (Local Courts Appeal and Review) Act 2001
* An appeal to the District Court against the revocation of the bond can be made. Section 3 Crimes Local Court Appeal & Review Act 2001' sentence means:
(a) any order made by a Local Court in respect of a person as a consequence of its having convicted the person of an offence..'.
I have found the easiest way to explain the suspended sentence process is to encourage the sentencing court to ask the following questions.
1. Should a custodial sentence be imposed?
2. If 'yes', what should the total sentence period be? If it is longer than 2 years the sentence cannot be suspended?
3. Should the sentence be suspended? Am I setting up the offender to fail? Am I too lenient? Am I being too severe? Is a bond more appropriate? Is gaol really the only option if the Bond is breached?
4. If the answer is 'yes', stop there! Suspend any further consideration of the total sentence period.
5. Next ask: Is there a case for special circumstances? Section 44(2) Crimes (Sentencing Procedure) Act 1999. If so thinking ahead will the offender need longer on parole if there is a breach?
6. What are the proper non-parole and parole periods? The process of determining the non-parole period and making a finding in relation to special circumstances did not involve two steps, or a sequential process of reasoning but may be taken simultaneously. R v Way at [111] & [112] and R v Hampton (1998) 44 NSWLR 729. Remember, this does not need to be a two-step process. The relevant steps can be taken simultaneously. R v Way (2004) 60 NSWLR 168 at [111] -[113]. Remember too, the overall sentence is not to be increased because it is being suspended.
7. Should the bond be the same length as the total sentence or shorter?
All that then remains is to announce the non-parole and parole periods, the fact of suspension and the length of the bond and explain to the offender the consequences of breach - 'You will go to gaol. You will serve the non-parole period.' The bond commences on the date it is entered
Section 3A Crimes (Sentencing Procedure) Act 1999 sets out for the first time in New South Wales the purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community. The CCA has explained that the section provides,
'The framework upon which a court determines the sentence to be imposed upon a particular offender for any offence. The Act provides the sentencing practice, principles and penalty options that operate in all courts exercising State jurisdiction. The sentencing principles and practices derived from the common law also apply. They have been preserved by the provisions of the Act'. Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303- 'The Drink Driving Guideline'.
Section 3A has been considered to be a statutory endorsement of the purposes of punishment identified by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. R v MA [2004] NSWCCA 92 at [23].
Observations made in the Attorney General's Application (No 2 of 2002) [2002] NSWCCA 515 that the terms of the section may require a reconsideration of established sentencing principles relating to the purpose of punishment have not so far been pursued.
In the Drink Driving Guideline 'The Drink Driving Guideline'. Howie J for the Court noted,
'[C]ourts called upon to sentence offenders for commonly committed offences, and almost as a matter of routine in long lists of matters, must be vigilant to apply proper sentencing principles and seek to achieve a result in an individual matter that promotes the purposes of punishment set out in s 3A..'.. (At [47])
For many years R v Previtera (1997) 94 A Crim R 76 has stood as authority for the proposition that no allowance can be made for the effects on the victims of crime of homicide, as all human life must be given equal value. As a consequence a victim impact statement is not relevant to the sentencing exercise if there has been a death. In Wickham [2004] NSWCCA 193, R v Berg [2004] NSWCCA 300 and Re: Attorney General's Application under s32 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 136 A Crim R 196 it has been suggested by both Spigelman CJ and Howie J that proposition must be re-visited and re-evaluated given the objective of sentencing set out in s. 3A (g) - 'To recognise the harm done to ... the community'.
Wood CJ at CL, in Berg however sounded a note of caution,
'An injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination....extreme care needs to be taken by those who prosecute and defend these cases, and also by trial Judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence'.
Section 21A Crimes (Sentencing Procedure) Act 1999 sets out in list form aggravating and mitigating factors that must be taken into account when a person is sentenced. 21A Aggravating, mitigating and other factors in sentencing
(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.
(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 offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
(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. The list must be read in the light of principles established by the courts independently of the Act; that is the common law. So much should be clear from s.21A (4), and has been endorsed by the CCA in R v Way and R v Wickham.
There are a number of common and reoccurring errors that arise in applying the section For a detailed review of these problems and the views of the CCA, see Robert Hulme's paper, Standard Non-Parole Periods: A Way through the Mire, available on the Public Defender's Webpage. Many of my comments here draw on Robert's careful analysis.. Defence counsel, prosecutors and judges make them. R v Wickham [2004] NSWCCA 193 gives detailed consideration to the problems. The errors, more often than not, operate to worsen the position of the person being sentenced.
The first example of how errors can occur is a failure to recognise that the list in s.21A is not exclusive or exhaustive. Common law and statutory sentencing factors must also be considered, even if not on the list. In R v Way the CCA made it clear that a Judge or Magistrate is required to take into account, 'any other objective or subjective factor that affects the relative seriousness of the offence.' And that the matters referred to are, 'Additional to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law'.
Examples given in R v Way At [104]. [105]. of additional matters that must be taken into account were, of exceptional hardship to the offender's family; unduly onerous conditions of custody, parity, totality, and the special considerations applying to the sentencing of children in the Children (Criminal Proceedings) Act 1987.
Secondly, a point often forgotten is that s.21A (2) concludes with the provision that,
'The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence'.
There is a real danger that if a fact is taken into account both as an element of the offence and an aggravating factor for s.21A(2) purposes, such double counting will lead to an exaggerated view of the seriousness of the offence and double punishment. The Court in R v Way gave the example of an offence involving an 'in company' but also coming within s. 21A(2)(e) At [106] - [107].. Similarly, in R v Berg the judge erroneously took into account the death of the victim as an aggravating factor in an offence of dangerous driving causing death and as an aggravating factor pursuant to s.21A(2)(g). In R v Cramp [2004] NSWCCA 264 the judge erroneously took into account for an offence of malicious wounding that the offence involved actual violence and as an aggravating factor pursuant to s.21A(2)(b).
The third example of how error, which can creep into the sentencing process, can be found in R v Wickham. At [24] and [25] and R v Johnston [2004] NSWCCA 76 and R v Berg [2004] NSWCCA 300 at [40]. There it was made clear that despite what is said in s. 21A (2) (d) a prior criminal record is not to be taken into account as a matter of aggravation making the offence more serious. The High Court's decision in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477 is still the law. That case sets out the circumstances in which prior convictions become material to sentence Veen v The Queen No 2 at 476- a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community.
The fourth example again comes from Howie J in R v Wickham. The aggravating factor in s 21A(2)(g) - The injury, emotional harm, loss or damage caused by the offence was substantial,
- '...would be limited by the rule that the effect upon persons of the death of the victim is not an aggravating feature of an offence such as murder, R v Previtera (1997) 94 A Crim R 76. It would also be limited by the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen'. Wise v R [1965] Tas SR 196; R v Boyd [1975] VR 168'.
Finally in Wickham at [26] Howie J pointed out that,
'The second way that the limitation in s 21A(4) can operate is to require the court to disregard a matter of aggravation because to take it into account would be to punish the offender for an offence which was more serious than that for which the offender was to be sentenced, R v De Simoni (1981) 147 CLR 383. This consideration is most likely to arise when the court has regard to factors which are often found as aggravating features of offences in the Crimes Act, such as that the offence was committed in company, that the offender used a weapon, or that the offender was in a position of trust'.
An additional point that needs to be made in relation to s.21A relates to the significance of the words 'known to the court'. It was explained by the High Court in Weininger v The Queen (2003) 212 CLR 629 at [21] that -
"known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted'.
This is so despite the general rule that for matters of aggravation proof lies on the prosecution beyond reasonable doubt. In respect of matters of mitigation the onus lies upon the offender on the balance of probabilities.
In R v Berg [2004] NSWCCA 300 Howie J at [21] made an important point about the Dangerous Driving Guidelines in R v Whyte (2002) 55 NSWLR 252. Guidelines are only indicative of a typical case.
'[Guidelines] do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge's discretion in the way the applicant suggests. If the applicant does not fall within a typical case for whatever reason, then the guideline is of less assistance than it might otherwise have been'.
He concluded in this particular case that,
'The applicant fell outside the typical case of an offender to be sentenced for dangerous driving for a number of reasons and, therefore, the guideline had less influence upon the exercise of his Honour's sentencing discretion'.
Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 applies to offences committed on or after 1 February 2003. It introduces the concept of a 'standard non-parole period'- the non-parole period for an offence in the middle of the range of objective seriousness - for those offences listed in the Table to the Division (s.54A(2)). The Table sets out 22 offences. More may be added.
The most definitive consideration of Division 1A of Part 4 by the Court of Criminal Appeal to date is the judgment in R v Way (2004) 60 NSWLR 168. The Court there held that the standard non-parole period remains relevant even if it is decided that it should not be set in a particular case.
The CCA considered how the regime for standard non-parole periods is to apply. This summary cannot do justice to the topic. For more informed and detailed analysis see the paper by Robert Hulme SC has prepared ' SNPP - A Way through the Mire'(which is available on the Public Defender Web Page) and the article by Hugh Donnelly and Ivan Potas Ways case confirms individualised justice in (2004) Judicial Officer's Bulletin Vol 16 , No. 6, 2004.. The court at [117]-[118] asked the key question this way, 'are there reasons for not imposing the standard non-parole period'? That question is answered by considering,
i. the objective seriousness of the offence and
ii. the circumstances of aggravation and mitigation both in S.21A and at common law.
The standard non-parole period will be imposed, subject to s 21A, for matters within the 'middle of the range of objective seriousness' The court noted, that an assessment of the 'middle of the range of objective seriousness' is,
'... to be approached intuitively and ... based upon the general experience of the courts in sentencing for the particular offences' R v Way at [74] -75].
However the court in R v Way used the term ' Mid range' as shorthand for what appears in the section as 'middle of the range of objective seriousness' As the authors of the articles noted at footnote 31 point out there can be a considerable difference between a point at the 'middle of a range' which is particular and narrow and 'midrange' which can be quite broad. The former interpretation restricts the operation of the section, the later has the potential to expand it! This point and others is the subject of an Application for Special Leave to Appeal to the High Court to be heard on the 11 March 2005.
If there are reasons for not imposing the standard non-parole period,
'...the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act.'(R v Way at [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 the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. ...The reference point has, in this sense, an important role to play in ensuring consistency in sentencing'( R v Way at [122] &[123]).
It was made clear that it is not a correct approach to start with the standard non-parole period and then to 'oscillate about it by reference to the aggravating and mitigating factors'. At [131] The standard non-parole period is not to dominate the remainder of the sentencing exercise or fetter sentencing discretions. You don't simply start at the standard point reduce for the plea of guilty and other mitigating features then add on time for any aggravating features.
Since Way the CCA has had to examine some misapprehensions that have arisen.
In R v Wickham [2004] NSWCCA 193 at [24] and [25] Howie J made some important points on the relationship between s21A and the standard non-parole period regime.
In R v G J Davies [2004] NSWCCA 319 Wood CJ CL made it clear that the Division and s.54B of the Crimes (Sentencing Procedure) Act still has application to a case in which there was a guilty plea. To the extent that R v Mouloudi [2004] NSWCCA 96 said otherwise, it was read down. Section 54B cannot be ignored. It still acts as a reference point, although the traditional sentencing discretions continue.
In R v Pellew [2004] NSWCCA 434 the application of the Division to sexual assault of a child under ten was considered. Simpson J concluded that in this case, given the length of the standard non-parole period of 15 years, it was inevitable that sentences for these offences would increase.
Finally, despite what was said in R v Way about 'oscillation' it is becoming increasingly evident that judges are, even after a guilty plea, using the guidance given by the Standard non-parole period and the middle range of seriousness as a starting point and then making deductions for the guilty plea. See for example Howie J in R v Goodwin [2004] NSWSC 757.
Following the introduction of standard non-parole periods it was felt necessary to fiddle again with s.44(2) Crimes (Sentencing Procedure) Act 1999. In response to earlier criticism from the courts, s.44 had originally allowed for a court to fix the total sentence and then work out what the non-parole period should be. If there was to be a variation from the prescribed 3:1 ratio special circumstances had to be found. Now the order of announcing the sentence has been reversed. The court must first say what the non-parole period is to be and then the parole period. If interpreted strictly this could lead to a longer sentence where special circumstances were found, as the extra time on parole would extend the total sentence.
In R v Way At [108]-[113] it was held that:
1. Findings of special circumstances will continue to apply to standard non-parole cases.
2. Even though the factors which qualify as special circumstances in determining the appropriate non-parole period can also be taken into account as factors pursuant to s. 21A in fixing the total sentence, however caution will need to be exercised so as to avoid inappropriate double counting.
3. The revised section does not,
' ..require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances...While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously'. At [112] and [113]. See also R v Moffitt (1990) 20 NSWLR 114.
In R v Way the court held that it was wrong to reject a submission that a convicted sex offender should have the fact he must serve his sentence in protective custody disregarded because all such offenders would be in the same position. The court reiterated however that an offender relying on the hardship involved in serving a sentence on protection had the onus of showing the court that their conditions of custody would be more onerous, applying R v Moystyn (2004) 145 A Crim R 304, R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299.
'It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education...This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. ...the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement. R v Moystyn at [179] -[180].'
It is imperative that defence counsel put some evidence before the court as to the nature of the protective custody arrangements and the particular hardship that an offender will suffer as a consequence. At present the Department of Corrective Services has three levels of protective custody. These are: -
Special Management Area Placement - for an inmate who is vulnerable or fearful but can be placed with other inmates who have similar needs. The inmates housed in these areas associate with other inmates in the area and have access to services and programs.
Protection, limited association: defined as being housed in a single cell or a group of cells where there is no access to a formal structured day involving services and programs.
Protection, non-association - defined as being housed in a cell or a group of cells for an inmate who cannot associate with any other inmate. Sentence Administration Branch, Department of Corrective Services, 4 June 2003.
Those in the first category may experience little difference in conditions than prisoners in ordinary custody. The last category involves essentially solitary confinement for 23 hours a day!
Pearce v The Queen (1998) 194 CLR 610 requires the imposition of a sentence appropriate to each individual charge to which a person pleads guilty.
'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 accumulation or concurrence, as well, of course, as questions of totality' McHugh, Hayne and Callinan JJ at [45] -Emphasis added.
This means, that a judge sentencing a single offender in respect of multiple counts may frequently become involved in a complex exercise of partial accumulation. Post Pearce the NSW CCA held that it is no longer open for a sentencing judge to select the term of imprisonment appropriate to punish the offender for the overall criminality, and impose a sentence of that length in relation to each count. Each count must be considered individually.
In R v Musso [2002] NSWCCA 487 for example, the trial judges failed to mention Pearce. He then made some of the sentences wholly concurrent. This, the CCA characterised as his Honour not imposing any practical penalty for those offences. This then allowed the CCA to intervene and increase those sentences and thus Mr Musso's overall term in prison. Sully J noted at [31] Pearce is:
'not optional sentencing advice; it is imperative and authoritative direction from the High Court to sentencing judges'.
Applying Pearce is not difficult. A judge when sentencing an offender for more than one offence must:
1. Fix an appropriate sentence for each offence.
2. Consider whether the offences require accumulation or concurrence, (For example are they part of the one incident or discrete and separate offences). And,
3. Balance the overall sentence by considering 'totality' of the sentences as accumulated. (That is, impose a sentence proportionate to the overall criminality of the offender).
Not every State has interpreted Pearce as strictly as in NSW. The High Court revisited Pearce in Johnston v The Queen (2004) ALJR 616. There it was argued that Pearce conflicted with the earlier High Court decision of Mill v The Queen (1988) 166 CLR 59.
The Court found there was no contradiction or conflict.
' The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected'. Gummow, Callinan & Heydon JJ at [26], emphasis added.
It can now be concluded that:
1. Ordinarily a discrete sentence should be fixed for each offence and then aspects of totality be considered in how the sentences are made concurrent or cumulative.
2. It is not permitted to increase a sentence and impose a longer sentence on one matter to take account of totality.
3. It is however permitted to reduce one or all of the sentences to enable an overall sentence to be formulated.
The Discount for the Guilty Plea
In R v Thomson and Houlton (2000) 49 NSWLR 383 the CCA spelt out the requirement that a plea of guilty be recognised in a discernible discount for the utilitarian aspects of the plea alone. A reduction of the otherwise appropriate sentence of 10- 25% was recommended. The earlier the plea the greater the discount There is also an argument that the greater the utilitarian value the greater the discount e.g. if a long and complex trial is avoided or if a child victim is saved having to give evidence.. Although the fixing of a discount is discretionary it is not simply enough that a sentencing Judge or Magistrate pick a figure in the 10 to 25% range. The discount must have some reasoned basis.
In R v Brett [2004] NSWCCA 372 the court, not for the first time, expressed a concern about discounts that appeared to be picked from the air and judges who continue to assert that that the discount should be reduced because there was “an extremely strong Crown case”
Sully J for the court said of the sentencing judge’s remarks,
“Erroneously, in view of the long line of decisions in this court, he said, in relation to the plea “the Crown makes the valid point that it was an extremely strong Crown case”. (At [44]).
Judges and Magistrates must recognise that the strength of the Crown case is irrelevant in this context, a point that was made with considerable strength in R v Sutton [2004] NSWCCA 225.
In R v Johnstone [2004] NSWCCA 307, however, Sully J at [21] rejected the notion that a prisoner who entered a plea of guilty at the earliest practicable opportunity for a prospective trial that was likely to be a lengthy and complex one, has a “legitimate expectation” that the discount would be the guideline maximum of 25 per cent. He held that a sentencing Judge has a broad discretion in the matter of quantifying any discount of sentence. However a sentencing Judge ought, at the very least, expose his or her process of reasoning in choosing a lower rather than the higher discount figure.
The discretion must be exercised with regard to the particular guideline judgment; but the guideline judgment does not of itself relieve a sentencing Judge of the duty to assess the extent of a proper discount having regard to the whole of the relevant facts and circumstances. An appellate Court will not interfere with a judicial discretion properly exercised lightly.
Assessment of the “discount” is not “a mere and arid exercise in forensic mathematics” Sentencing judges have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.” R v N.P [2003] NSWCCA 195, Simpson J at [ 49].. Error was found in the total absence of any explanation of the decision to set the figure at 15 per cent rather than at a figure of or approaching 25 per cent.
“A sentencing Judge who has concluded that a just discount is at the lower rather than at the higher end of the guideline range, ought to give at least a brief, clear and simple explanation of the process of reasoning that has led the Judge to that conclusion”. Sully J in R v Brett at [21] & [28].
Plea Agreements
The Court in GAS & SJK v The Queen At [28] to [32]. set out 5 principles, which should govern plea agreements.
1. It is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person. The judge has no role to play in that decision.
2. It is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely preferably with the benefit of legal advice. Once again, the judge is not involved in the decision.
3. It is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. 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 (by a statement of facts from the bar table). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case.
4. 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. The judge's responsibility to find and apply the law is not circumscribed by the conduct or submissions of counsel.
5. If a sentencing judge has been led into error by an erroneous legal submission by counsel, particularly by the Crown, that may be a matter to be taken into account in the application of the statutory provisions and principles that govern the exercise of the appeal court's jurisdiction.
The court also offered the following advice. In most cases it will be desirable to reduce to writing any agreement that is reached. Both prosecution and defence should have a copy before it is acted upon. Sometimes, a transcript will be sufficient if the agreed statement is made in court and recorded in the transcript as an agreed statement of the position reached.
In R v Falls [2004] NSWCCA 335 the practical application of these principles was made clear. Dunford J for the Court noted,
“If an accused pleads guilty on the basis of an Agreed Statement of Facts, I do not see how he can complain if the judge sentences him on the basis of such Agreed Statement, and this Court should proceed on the same basis”.
Howie J in Falls discussed the consequences of an accused giving evidence but being disbelieved. He saw nothing unfair to an offender in the refusal of a sentencer to act upon the prisoner’s evidence, even if the evidence is undisputed by the Crown, at least where the offender has the onus of proof because it is a matter of extenuation or mitigation. A sentencing court can reject such evidence simply because it is inherently unbelievable or because, it being a matter of mitigation, the applicant has not discharged the onus even on the balance of probabilities. At [34] & [35].
Should Aiders and Abettors receive a Lesser Sentence than Principals?
In GAS & SJK v The Queen (2004) 78 ALJR 786 the High Court held that there is no rule of law that aider and abettor is less culpable than a principal offender (at [23]). The obvious point was made that it depends on the facts of the case. An example is sentences for drug offenders where a courier notionally a “principal” often receives less than the organiser who is technically an accessory to the importation.
In R v Mirage [2004] NSWCCA 315 the court considered and applied The Queen v Shrestha (1991) 173 CLR 4820. It is wrong to take account of the prospect of deportation in determining the non-parole period. Where an offender would otherwise qualify for a finding of special circumstances, the sentencing Judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non parole period, and that supervision therefore would not be provided in Australia. R v Mirzaee at [20] & [21].
In Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 the CCA sets out the latest sentencing Guideline. Despite having no immediate practical experience in the area, the court felt sufficiently well enough informed to offer the following guidance to the Magistrates who deal with these matters on a daily basis.
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender’s licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Sentencing Act will rarely be appropriate;
(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include:
(a) the nature of the offender’s employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors is present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
There is no prohibition on additional conditions being added to the standard conditions in s.95 Crimes (Sentencing Procedure) Act 1999. There is a general rule however that conditions must; bear some relationship to the offence and the offender Bantick v Blunden (1981) FLR 414; not be unduly onerous R v Harvey (1989) 40 A Crim R 102; and the offender must have a reasonable chance of complying with them Crawford v R unreported NSW CCA 28 June 1995.
The point came up recently in R v S W Bugmy [2004] NSWCCA 258. As a condition of his bond Mr Bugmy had been excluded from his hometown in Western NSW. He could apply to the judge for permission to return, say to attend a funeral. The term of the bond was almost two years The court held that,
“this is a long time to exclude or effectively exclude a person from normal physical contact with his family. Even in prison family members are permitted to visit.”
They concluded,
“Whilst it was open to his Honour, in the interests of Mr Bugmy's rehabilitation, and appropriately protecting the community, to provide for his exclusion from Wilcannia for a short period (say six months), two years was too long.”
The condition was, rejected “as unduly harsh and unreasonable”.
Federal Sentences Section s.16G of the Crimes Act 1914 (Commonwealth) was designed to ensure fairness across jurisdictions. A court imposing federal sentences, which were to be served in a prison of a State or Territory where sentences were not subject to, remissions had to take that fact into account in determining the length of the sentence and adjust the sentence accordingly. A rule of thumb developed that federal sentences should be reduced by 1/3 of that which would otherwise be appropriate See R v Paull (1990) 49 A Crim R 142 and El Karhani (1990) 51 A Crim R 123 where Paull was moderated to an extent..
The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other Measures) Act 2002 Comm. was introduced into parliament late in 2002 without fanfare. It contained a little gem. In schedule 3 clause 1 “Other Measures”, appear the words: “ Crimes Act 1914 section 16G - repeal the section”. It took effect in January 2003.
In my 2003 paper Sentencing 2003- still available on the Public Defenders Webpage I suggested a method for moderating the impact of the repeal. Initially my approach was unsuccessful, See R v Studenikin [2004] NSWCCA 164, R v Quoc Phang Dang [2004] NSWCCA 265, R v Van Ich Dang [2004] NSWCCA 269 and R v Kevenaar [2004] NSWCCA 210 however the initial harshness of the repeal has now been moderated. In R v Bezan [2004] NSWCCA 342 See also R v Mas Rivadavia [2004] NSWCCA 284, R v Dujeu [2004] NSWCCA 237. Bezan also contains a useful summary of the principles that apply when the Crown appeals against the leniency of a sentence. (at [27] & [28]). Wood CJ CL, with whom Buddin J & Smart AJ agreed set out what is hopefully final position:
“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.
I am not persuaded that Kevenaar or either of the Dang decisions should be understood as suggesting that there should be an automatic adjustment in the order of 50%, since to do so would be to resort to the mathematical approach which was accepted, in each decision, to be inappropriate. In this regard it needs to be born in mind that the guideline judgment reflected a range, and acknowledged that, in appropriate cases, there could be a departure above or below it. …What is now required by s 16A(1) of the Crimes Act 1914 is that a sentence be imposed that “is of a severity appropriate in all of the circumstances of the case”, including those that are identified in s 16A(2) and (3).”(At [17] – [24]).
Circle sentencing was introduced in New South Wales on a trial basis at Nowra Local Court in February 2002. Circle sentencing involves a circle of presided over by a Magistrate which can include, the defendant, his or her support people or family member(s), the victim or victims and support people or family members, a prosecutor, the defendant’s legal representative, Elders from the community, other community members affected by the offence, service providers to the defendant or victim and the Aboriginal Project Officer. The prosecutor, offender, victim and community representatives are all given an opportunity to speak. The discussion can cover the offence, its impact on the victim and community, what needs to be done to right the wrong (what sentence should be imposed), and what support may be available for the defendant and victim. The circle tries to achieve a consensus on the outcome. The Magistrate role includes outlining the available sentencing alternatives.
An offender is eligible if their offence it can be finalised in a Local Court carries a term of imprisonment, and a term of imprisonment is judged by the magistrate as a likely outcome. Strictly indictable offences, sex offences or strictly indictable drug offences are ineligible.
A Review by the Judicial Commission of New South Wales and the NSW Aboriginal Justice Advisory Council reveals that circle sentencing at Nowra has succeeded on a number of levels. The Review also found that the penalties imposed by the circle are no less onerous than those imposed for similar offences in conventional courts. However as the procedure is less formal, the offender is more likely to “sit up and take notice” and appreciate the harm caused to the victim.
There are proposals to extend circle sentencing to other regions of the State where there are viable Aboriginal communities and offenders with ties to those communities.
I believe one last attempt will be made to restore some rationality to the section 12 and remove the obscure provisions that so irritated the court in R v Tolley. It can only be an improvement particularly if it removes the requirement to fix a non-parole period prior to breach and gives the court more flexibility on breach.
The Australian Law Reform Commission Issues Paper No. 29 Sentencing of Federal Offenders raises an number of important issues in relation to Part 1B of the Crimes Act 1914 (Commonwealth). A comprehensive review of each aspect of Federal sentencing involving not only the structure of the Act but basic philosophical issues is contemplated.
The NSW Sentencing Council has a broad legislative mandate from s. 100J Crimes (Sentencing Procedure) Act 1999 to advise and report on most issues of sentencing. A report recommending against abolition of sentences of 6 months or less was released recently. The report is available on the Public Defender’s Web page. Further reports are being considered in relation to the Sentencing Jurisdiction of Magistrates, suspended sentences and firearms offences.
An Intuitive or Staged Approach To Sentencing For a comprehensive review of the various issues See “ Sentencing Methodology: Two tiered or Instinctive Synthesis” by S Traynor & I Potas Sentencing Trends No25 Judicial Commission of NSW 2002.
In The Queen v Wong (2001) 207 CLR 584 three judges of the High Court (Gaudron Gummow and Hayne JJ) endorsed an intuitive approach to the formulation of sentences. In AB v The Queen McHugh and Hayne J expressed similar support for this approach which has also been endorsed by the NSW CCA in R v Thomson & Houlten and R v Whyte (2002) 55 NSWLR 252. Justice Kirby in The Queen v Wong and Cameron v The Queen (2002) 209 CLR 339 has however argued for a staged approach to sentencing something he regards as much more transparent.
In R v Markarian [2003] NSWCCA 8 the CCA adopted a staged approach to re-sentencing Mr Markarian after a Crown appeal. Leave having been granted, the High Court heard argument on the 3 September 2004. The judgment may offer some guidance on how judges at first instance are to approach their task. It is expected shortly.
In his speech at the opening of law term dinner for 2005 Chief Justice Spigelman put forward an interesting but disturbing proposition. Building on research that shows that an suggested:
“An in camera consultation process, protected by secrecy provisions, by which the trial judge discusses relevant issues with the jury after evidence and submissions on sentence and prior to determining sentence.”
In doing so he recognised that only a small proportion of sentences follow a trial and admitted, “I have not myself been a criminal trial judge.”
The government has referred the matter to the Law Reform Commission. It is a proposition that must fail. Decisions made in secrecy to which the accused has no input, the possibility that much more than expected will be revealed in the consultation process than opinions on sentence, the impracticality of a judge explaining the complexities of sentencing in a way that will be comprehended by the panel, all indicate what a silly idea this is.
After the Guideline Judgment in R v Jurisic (1998) 45 NSWLR 209 the Chief Justice published an article in the Telegraph explaining his decision. Since then we have seen a number of moves designed to explain to the public why judges impose the sentences they do. This is not a bad thing. However we now see the first move to co-opt or incorporate the public into the sentencing process. There has been some pandering to the more vocal advocates of “public opinion” both in the judgments of the CCA The Guidelines, increased sentences across the board, a correlation of leniency with inconsistency and recently the confusion of manifest inadequacy with manifest leniency e.g. R v Mas Rivadavia & Ors [2004] NSWCCA 284 at [65]. R v Bezan and R v Anderson [2004] NSWCCA 317., the composition of the Sentencing Counsel and legislation such as that introducing standard non-parole periods.
Unlike many other endeavours requiring specialist knowledge sentencing is seen as one were anyone with an opinion is entitled to be involved. I despair that one morning I shall read in the morning paper that the Law Reform Commission has been abolished and replaced by a direct link between the Premier’s Office and Telegraph.com.
Strong feeling about issues does not necessary lead to good laws. Sentencing at present is a hotch-potch of competing and conflicting theories and stratagems with little rationality or order. We still base decisions on untried assumptions and untested assertions rarely analysing what works and what doesn’t or even giving ourselves a basis for assessing what works and what doesn’t. “The courts must assume, although evidence is wanting , that the sentences which they impose have the effect of deterring at least some people from committing crime” Yardley v Betts (1979) 2 SASR 108 at 112 For example, Judicial Commission studies Barnes, Poletti & Potas , Sentencing Dangerous Drivers In NSW- the Impact of the Jurisic Guidelines, Monograph Series No 21, Judicial Commission of NSW, 2002 and Barnes and Poletti, Sentencing Trends for Armed Robbery.. The Impact of R v Henry Sentencing Trends & Issues No 26 Judicial Commission NSW, 2003 have shown that guideline judgments have led to more consistent and less lenient sentences but no one asks is this a good thing. We have still to determine whether deterrence actually works or what the ultimate objectives of our system of punishment should be. See for example the discussion in M Bagaric & R Emery The Sentencing Advisory Commission and the Hope of Smarter Sentencing Current Issues in Criminal Justice Vol 16 no 2 Nov. 2004
We know that pandering to the media rarely works For example in R v Jurisic (1998) 45 NSWLR 209 at p.256 Adams J stated explicitly, “ Nor can publicity about a particular case or cases deflect a court from doing justice according to law. To do so would ... betray the trust that the overwhelming majority of citizens place in eh courts to stand as a bulwark against prejudice and unreason.” . The Chief Justice in his Law Term Speech recognised this when he said,
“there is as much point in complaining about selective media reporting as there is complaining about the weather”.
There remains however a need for vigilance by those of us who deal daily with the impact of the present sentencing regime, whether as defence lawyers, prosecutors and or as Judges and Magistrates. Over 9,000 men and women are in NSW gaols at any one time, less than 700 of them are serving sentences for major offences of violence. It costs each prisoner, their families and the community for every day a person spends in gaol unnecessarily. We all pay a price whether in taxes, decreased resources for schools and hospitals and from the almost inevitable re-offending that occurs when those serving their sentence are released.
Andrew Haesler
February 2005
20 Sep 2024