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Belinda Rigg
Public Defender
8 November 2006
Significant amendments to the Crimes (Sentencing Procedure) Act 1999 were made by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, operative from 1 February 2003. There is already a voluminous body of case law dealing with appeals arising from the operation of various of the new or reformulated sections of the Crimes (Sentencing Procedure) Act.
Sentencing procedure is becoming increasingly complex, and requires a sound knowledge of the relevant law and having it in mind from the outset of proceedings or consideration of a guilty plea.
Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 was inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. It applies to offences committed on or after 1 February 2003, the date of the commencement of operation of the provisions.
S.54A(2) provides that “for the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”
S.54B provides:
(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.
S.54D(2) specifically excludes offences dealt with summarily from the operation of these provisions. Statutory offences of attempt are not included in the table, and the provisions do not there apply: See DAC [2006] NSWCCA 265. In that case a 14 year 5 month old Aboriginal boy was convicted at trial of breaking and entering premises and attempting an aggravated sexual assault. The Court of Criminal Appeal held that attempted contravention of s.61J (in accordance with the provision of s.61P) is not included in the standard non-parole period table. The Crown acknowledged error, but argued the court should not intervene.
The table sets out the standard non-parole period for some 24 offences, as follows:
| Item No | Offence | Standard non-parole Period |
|---|---|---|
| 1A | Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation | 25 years |
| 1 | Murder—in other cases | 20 years |
| 2 | Section 26 of the Crimes Act 1900 (conspiracy to murder) | 10 years |
| 3 | Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder) | 10 years |
| 4 | Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest) | 7 years |
| 5 | Section 60 (2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm) | 3 years |
| 6 | Section 60 (3) of the Crimes Act 1900 (wounding or inflicting grievous bodily harm on police officer) | 5 years |
| 7 | Section 61I of the Crimes Act 1900 (sexual assault) | 7 years |
| 8 | Section 61J of the Crimes Act 1900 (aggravated sexual assault) | 10 years |
| 9 | Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) | 15 years |
| 9A | Section 61M (1) of the Crimes Act 1900 (aggravated indecent assault) | 5 years |
| 9B | Section 61M (2) of the Crimes Act 1900 (aggravated indecent assault—child under 10) | 5 years |
| 10 | Section 66A of the Crimes Act 1900 (sexual intercourse—child under 10) | 15 years |
| 11 | Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding) | 7 years |
| 12 | Section 112 (2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation) | 5 years |
| 13 | Section 112 (3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation) | 7 years |
| 14 | Section 154C (1) of the Crimes Act 1900 (car-jacking) | 3 years |
| 15 | Section 154C (2) of the Crimes Act 1900 (car-jacking in circumstances of aggravation) | 5 years |
| 15A | Section 203E of the Crimes Act 1900 (bushfires) | 5 years |
| 16 | Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug |
10 years |
| Item No | Offence | Standard non-parole Period |
|---|---|---|
| 17 | Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug |
15 years |
| 18 | Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug |
10 years |
| 19 | Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that: (a) does not relate to cannabis leaf, and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug |
15 years |
| 20 | Section 7 of the Firearms Act 1996(unauthorised possession or use of firearms) | 3 years |
The decision of the Court of Criminal Appeal in Way (2004) 60 NSWLR 168 was the first extensive analysis of the operation of the division. Special Leave to appeal to the High Court has been refused. The decision ought be read (and re-read) in its entirety. Mills [2005] NSWCCA 175 offers further helpful discussion.
The Court in Way held at [117] – [118] that in order to give the Division practical utility, a sentencing judge must ask and answer the question: “Are there reasons for not imposing the standard non-parole period?
That question will be answered by considering:
(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s.21A(2) and (3), and as incorporated by the general provisions in s.21A(1)(c) and by the concluding sentence to s.21A(1)
If the question is answered in the affirmative, then 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: para [121]. 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.
What happens then is that “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. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s.22 of the Act contemplates that the fact of a plea will attract a discount.”: [122].
Some of the important features to arise from the decision (which are not all limited to standard non-parole period offences) are as follows (see also summary by Simpson J in Pellew [2004] NSWCCA 434; 150 A Crim R 575):
(i) There is nothing in the Division to suggest that the statutory maximum penalty should cease to act as a benchmark or reference point in sentencing. If there was a positive legislative intention to compel courts to impose harsher sentences this would be evinced through Parliament increasing the maxim penalty (para [51] – [53]);
(ii) Guideline judgments, settled principles and sentencing practice still apply; the division does not require an abandonment of discretion, and the legislation was not intended to create a straight jacket for judges (paras [55] , [59]);
(iii) 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]);
(iv) 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]);
(v) 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 exercise is similar to 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]);
(vi) Circumstances that effect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, factors which impinge upon the mens rea of the offender. That is, some matters personal to the offender can be said to ‘objectively’ impact on the ‘seriousness’ of the offence because of their causal connection, eg. matters of motivation, mental state, mental illness or intellectual disability. Factors relating to the circumstances of the offender as distinct from the offence (for example, youth or history of sexual abuse) do not impact on the evaluation of objective seriousness. Questions of degree and remoteness arise because of the potential for areas of overlap (paras [85] – [87]);
(vii) That an offence is “typical” or “common” in numerical frequency does not dictate that it is in the middle of the range of objective seriousness (para [101]); see also Johnson [2004] NSWCCA 140 at [33] – prevalence is not relevant to objective seriousness (although it may be relevant to general deterrence);
(viii) Despite the words in in s.54B(3), above limiting reasons for departure to those matters referred to in s.21A, the factors in s.21A themselves are not limited. Apart from the matters listed, s.21A(1) also permits consideration of “any other objective or subjective factor that affects the relative seriousness of the offence”, and states that the listed matters are to be considered “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.” That is why existing common law and statutory sentencing principles continue to operate (para [103] – [104]).
(ix) The new form of s.44 does not require the court to first set a non-parole period which is thereafter “immutable”, even in the face of a finding of special circumstances. The section does not require a two-stage or sequential process (para [111]); see also Perez [2004] NSWCCA 218 at [39] – the existence of special circumstances justifying a longer non-parole period may be a reason for not imposing the standard non-parole period. See P [2004] NSWCCA 218, Tobar & JAN [2004] NSWCCA 391; Hyunh [2005] NSWCCA 220 para [34] ff: the point of s.44 remains to shorten the non-parole period, not lengthen the total sentence. See further Vikramdeep Singh [2006] NSWCCA 333 at [54] – [57] on relationship between non-parole period and whole sentence; and Heron [2006] NSWCCA 215 at [41].
(x) 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 GJ Davies [2004] NSWCCA 319.
(xi) It is not correct to start with the non-parole period and “oscillate about it by reference to the aggravating and mitigating factors”, allowing the standard non-parole period to dominate the remainder of the exercise and fetter the important sentencing discretion preserved by the Act (para [131]).
Subsequent cases such as Mills have re-iterated the importance of the standard non-parole period even where it does not strictly apply – for example because of a guilty plea. In Pellew [2004] NSWCCA 434 (para [17]) it was held to be erroneous to ignore altogether the standard non-parole period on deciding to depart from it. In that case, what was found to be a mid-range offence by the Sentencing Judge (although the CCA found it to be less serious than middle of the range) incurred only 10% of the standard non-parole period.
Even with a plea of guilty, the sentencing judge is still required to consider where the particular offence lies on the range of objective seriousness: Porteous [2005] NSWCCA 115 at [22] per Johnson J (with whom Giles JA and Hoeben J agreed); Vu [2006] NSWCCA 188; Tory & Tory [2006] NSWCCA 18.
The description of this task in Vu (per Hall J at [29] – [33], James and Buddin JJ agreeing) is useful:
“The provisions of Part 4 Division 1A – standard non-parole periods of the Crimes (Sentencing Procedure) Act 1999 are to be applied in light of the considerations stated by this Court in Regina v Way (2004) 60 NSWLR 168. The standard non-parole periods in the Table to Division 1A are to be taken as having been intended for a middle-range case where the offender was convicted after trial: Way (supra) at [68].
The sentencing exercise required to be undertaken for Table offences involves a critical focus upon, not only the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified: Way (supra) at [72].
A comparative exercise is required to be undertaken in relation to such offences between the offence at hand and the offence for which the standard non-parole period is prescribed. A sentencing judge will be required 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: Regina v Pellew (2004) 150 A. Crim. R. 575 per Simpson, J. at [13(iii)].
In sentencing after a plea, the standard non-parole period specified in s.54B though not obligatory still takes its place as a reference point: Regina v Davies [2004] NSWCCA 319 per Wood, CJ. at CL. at [6]. See also Regina v Porteous [2005] NSWCCA 115 per Johnson, J (with whom Giles, JA and Hoeben, J agreed) at [21]. See also Regina v Sangalang [2005] NSWCCA 171 per Hunt, AJA (with whom Johnson, J agreed).
Accordingly, in the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness: Porteous (supra) at [22].”
In assessing where an offence falls on the range of objective seriousness the offender’s record, and the fact that the offence was committed on parole, have no place. It is erroneous to take into account fact and timing of a guilty plea: Lovell & Dominey [2006] NSWCCA 222. It is an error to take into account the prevalence of the offence (although this may be relevant to general deterrence): Johnson [2004] NSWCCA 140 at [33]. In MLP [2006] NSWCCA 271 error was found where the Sentencing Judge had taken into account poor health, prior criminal record and the fact that the sentence would be required to be served in protective custody.
It is important that factors mitigating the objective seriousness of the offence (such as the provoked and unplanned nature of an assault with a glass constituting malicious wounding with intent) be taken into account in assessing whether an offence in the table falls within the mid-range of seriousness, rather than after such an assessment: Heron [2006] NSWCCA 215.
In Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 the High Court considered in depth the issue of the permissibility of a staged approach to sentencing, although not in the context of a standard non-parole period offence. Error was found in the way in which the NSW Court of Criminal Appeal undertook the re-sentencing of a respondent to a Crown leniency appeal. The leading judgment in the NSW Court had taken the applicable maximum penalty, reduced it by a third because of the respondent’s role, made a further 25% reduction for the utilitarian value of the plea and contrition, increased it by a period for other offences taken into account, and then taken other subjective matters into account. Such was held to have been an erroneous approach to the sentencing task.
The majority judgment in the High Court confirmed the importance of reference to the maximum penalty, but said (paragraph 31): “That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.”
Similarly with offences contained in the table, what is important is to establish whether there is any proper basis for arguing that the standard non-parole period does not apply. On sentencing proceedings following a guilty plea, the plea itself and without more will usually constitute such a reason. Reliance should then be placed on the part of Way (around para [131]) criticising oscillation around the standard non-parole period, referred to above, to discourage a process of starting with the standard non-parole period and discounting it for a guilty plea. Such would improperly allow the standard non-parole period to dominate the proceedings.
To simply discount the standard non-parole period for the plea is using the specified standard non-parole period as something more confining than a yardstick or reference point, which is impermissible. There are a number of decisions of the Court of Criminal Appeal which make this clear.
In Ancuta [2005] NSWCCA 275 the Court of Criminal Appeal was dealing with a severity appeal for an offence of commercial drug supply, for which there is a Standard Non Parole Period (and already a number of cases, apart from Way). The Applicant complained that despite the Sentencing Judge’s extensive quotation from Way, his Honour fell into the error referred to in that judgment (at [131]) (not appropriate to start with the standard non-parole period and oscillate about it etc.). The Court of Criminal Appeal agreed. Brownie AJA (with whom Buddin and Latham JJ agreed) said (at [9]):
“To state matters shortly, his Honour started with the standard non-parole period of ten years, said that he proposed to reduce that by approximately 20 percent to allow for the utilitarian value of a relatively early plea of guilty, and then considered whether the resultant figure of eight years imprisonment should be increased or decreased by reference to the aggravating and mitigating factors that existed, but in my respectful view in doing so commenced with the standard non-parole period and oscillated around it by reference to the factors mentioned.”
The impropriety of using the standard non-parole period as a ‘starting point’, on a guilty plea, was further stated in Tidona [2005] NSWCCA 410 and Hung Lo [2005] NSWCCA 436 at [64] ff.
Analysis of sentences imposed or endorsed by the Court of Criminal Appeal demonstrate that an approach of discounting the standard non-parole period is not followed. For example in Vu, the Sentencing Judge had found the two supply offences each to be in the middle range of objective seriousness. The only relevant mitigating factor taken into account was the guilty plea, which was stated to provide a discount of 25%. In connection with the supply offence which carried a standard non-parole period of 10 years, the sentence imposed at first instance was 6 years 9 months, of a total term of 9 years. The sentence imposed for the supply offence attracting a standard non-parole period of 15 years was a non-parole period of 9 years, of a total term of 12 years. These are both obviously less severe sentences than simply discounting the respective standard non-parole period by 25% (which would have resulted in sentences of 10 years with non-parole period of 7 ½ years, and 15 years with non-parole period of 11 years 3 months respectively). The Court of Criminal Appeal rejected all the asserted errors on a severity appeal, bar the fact that the Sentencing Judge did not find special circumstances. At no point was it suggested that it would have been proper for the sentencing judge to simply discount the standard non-parole period (or the total sentence which would correspond with the same in an ordinary case) by 25%. The 12 year sentence was altered to provide for a non-parole period of 7 years rather than 9.
What is inevitable however is that for some of the offences in the table that the range of sentences imposed will increase. So much has been made clear on a number of occasions: Way [134], [142]; Berg at [37], Porteous [2005] NSWCCA 115 at [49], Sangalang [2005] NSWCCA 171 at [29]. Judicial Commission statistics for offences committed prior to 1 February 2003, for offences within the table, will have limited utility. Judicial Commission statistics are able to be made specific as to whether the commission of the offence was before or after the introduction of the provisions.
In Mulato [2006] NSWCCA 282 one of the grounds of appeal had been framed, as it had been in Tidona (sometimes cited as AT) [2005] NSWCCA 410, that “the sentencing judge erred in failing to have proper regard to the maximum penalty when sentencing the applicant.” In Mulato, Spigelman CJ remarked that this was an unnecessarily convoluted way of contending that the Sentencing Judge had used the standard non-parole period to confine her task. His Honour said [12] - [13]:
“As indicated in AT at [36], this approach is based on some observations in Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 at [30]-[31] which confirmed the significance of the maximum penalty as a matter to which regard had to be paid in the course of the exercise of the sentencing discretion. This is not, in my opinion, the error of sentencing principle to which the Applicant’s contentions refer.
It is now well established that it is an error of principle to select a specific figure – whether that be a maximum sentence or a standard non-parole period or a ‘subliminally derived figure’ (see Markarian at [39]) – and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion. Indeed, the use of the maximum sentence in such a manner was precisely the error identified by the High Court in Markarian.”
His Honour quoted the abovementioned portion of Way at [131], and continued at [18]:
“This reasoning rejects the use of the standard non-parole period as a “starting point” or fulcrum for a mathematical process. Even where the offence attracts a standard non-parole period, because it is in the middle of the range of objective seriousness, error occurs whenever the standard non-parole is used as a “starting point” rather than as a “reference point”. (See R v Sangalang [2005] NSWCCA 171 esp at [19]-[24]; R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71 esp at [64]-[71].) The description in AT supra at [36] of the maximum sentence as “a more appropriate start point“ should not be understood as indicating a different view.”
His Honour was however not of the view that the Sentencing Judge had so used the standard non-parole period.
The submission by the Crown in Vu, described (at [36]) as correct, articulates well the approach to the matter:
“It is submitted that the approach to sentencing should be to first decide whether there are reasons for imposing a shorter or longer non-parole period than the standard one. When there is a plea of guilty, that factor may, alone or in combination with other factors, be a sufficient reason for not imposing the standard non-parole period. An assessment of the case as not in the mid-range of objective seriousness would also be a reason for not imposing the standard non-parole period. There could be other reasons. In any such case, the standard non-parole period remains relevant to fixing the non-parole period in much the same way as the maximum penalty does: see Way at [50] to [53]. In relation to some offences, this will result in longer non-parole periods than might have been imposed prior to the introduction of standard non-parole periods.
Having decided that the standard non-parole period was not going to be imposed, the sentencing judge would have regard to the standard non-parole period in the way suggested in Way and described by various metaphors. It is submitted that it does not matter whether regard to it is had during the process of formulating the non-parole period or after reaching a provisional sentence (see paragraph [124] of Way above) or both so long as proper regard to it is given. However, in Regina v AT [2005] NSWCCA 410, the Court (Simpson, Adams and Hoeben, JJ.), after referring to [121] and [122] of Way, said at [33] that what was envisioned by Way was an ‘instinctive synthesis’ approach to fixing a sentence which should then be assessed against such ‘reference points or guideposts’ as the standard non-parole period.”
The judgment of Kirby J (with whom Grove and Hislop JJ agreed) in MLP (at [33]) offers further guidance as to the interrelated considerations in a case involving a standard non-parole period:
“The non-parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non-parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence:
First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna [2004] NSWCCA 43, per Barr J; R v George [2004] NSWCCA 247).
Secondly, should the offence be characterised as being in the mid range of objective seriousness? That task should be approached in the manner suggested by Simpson J (supra), intuitively evaluating the objective seriousness of the offence and looking to those matters in s.21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s.21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid range. If the offence falls within the mid range, the standard non-parole period should apply, subject to the remaining issues.
Thirdly, are there other reasons in the matters identified in s.21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s.21A(3)(h)) may furnish reasons for departing from the standard non-parole period. It should be noted that s.21A(1) provides that the matters specifically identified in the subparagraphs of s.21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s.21A(3), may be taken into account in determining whether there should be a departure from the standard non-parole period.
Fourthly, there is the issue of special circumstances. Ordinarily, the non-parole period bears a relationship to the term of the sentence defined by s.44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non-parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non-parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525).”
His Honour stressed that these considerations were not required to be applied in any particular order, and then endorsed the practise advocated in Way of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand – a process in which the existence of a standard non-parole period is likely to be of assistance.
The obligation to give reasons for departing from the standard non-parole period is treated very seriously, and is accordingly a matter on which Sentencing Judges will benefit from as much assistance as possible.
In Mills [2005] NSWCCA 175 at [49] it was said:
“I do not consider that this was a sufficient compliance with the requirements of s.54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109.”
Zegura [2006] NSWCCA 230 involved a Crown appeal following a late plea of guilty to a charge of wound with intent to murder (standard non-parole period 10 years) and other offences (malicious damage by fire, with early plea, and cruelty to animals on form 1 for count 1). The Sentencing Judge imposed, for the attempt murder offence, a non-parole period of 6 years with a balance of term of 2 ½ years. The offence was by way of an attack with a knife following the break down of a relationship. It was assessed by Sentencing Judge as “well within the middle range of objective seriousness”. Special circumstances were found.
The Sentencing Judge referred to the circumstances of case, then said: “Having regard to all the factors I have mentioned, in my view on an instinctive synthesis assessment basis, the offender’s non-parole period for the wounding with intent to murder should not be less than 6 years. I have factored into this a very significant discount for the offender’s plea of guilty.”
The Crown submitted on appeal that except for the plea of guilty, when one had regard to the broad range of factors (when determining whether an offence fell within the mid-range of seriousness for offences of that kind), all of them were adverse to the respondent and all of them pointed towards a high level of objective seriousness, well above the mid-range.
The Court of Criminal Appeal (Hoeben J with whom McClellan CJ at CL and Kirby J agreed) found that the “rolled up” justification for departing from the standard non-parole period was in error, as it did not comply with the requirements of s.54B: [46]; adding “this is particularly so when as the Crown pointed out in its submissions, all of the factors except for the plea of guilty were adverse to the respondent. What his Honour was required to do was to clearly identify the relevant factors, the weight which he gave to them and their role in the structuring of the sentence.”
At [51], after citing principles relevant to Crown appeals, his Honour held that despite this error, although the sentence was lenient it was still within the range of sentences open to his Honour for offences of this kind, and accordingly did not interfere with his Honour’s sentence in respect of the wound with intent to murder offence. The sentence for count 2 was interfered with as being manifestly inadequate, for reasons which raise no issue of principle.
So the Court was not saying that a sentence of 8 ½ years with a non-parole period of 6 years was inadequate for an offence which carried a standard non-parole period of 10 years, was in the middle range of objective seriousness, and involved no mitigating features apart from a late guilty plea. What was required, however, was more specific reasons (although it is difficult to see, in the circumstances of this case, what they would have been).
S.21A Aggravating and Mitigating Factors
The Act provides as follows:
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.
My recommendation is to always have a photocopy of the section with you for each sentence matter, so that it can be specifically marked in relation to the matters to be raised for the particular matter you are dealing with. However its limitations need to be kept steadily in mind.
The criticism in Way of oscillating about a fixed point by reference to aggravating and mitigating factors related specifically to those offences for which there is an applicable standard non-parole period. Section 21A applies to all offences – not just those within Division 1A of Part 4. For all sentence matters, s.21A is vital but should not simply be used as a checklist. The section will always need to be dealt with – but should not form the basis of the plea. That is, it potentially curtails the persuasive effect that a plea is capable of. See the judgment of Rothman J at para [40] in Kelly [2005] NSWCCA 280 regarding the section adding nothing to the common law, and the dangers of using it as a ‘check list’.
Importantly, after listing the various aggravating features, s.21A(2) provides “the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.” There have been scores of cases where this provision has been contravened. However the seriousness of an offence can be assessed as greater because of the extent to which such a factor is present to a greater degree than necessary to establish the element: Way at [106] – [107]; Pearson [2005] NSWCCA 116 at 31 – 35. The line however is very fine, and needs to be properly explained if this path is to be taken. See also Shannon [2006] NSWCCA 39 at [29] in relation to vulnerability of a child victim in connection with sexual offending.
An issue which has arisen which is less clear-cut than whether a factor is an element of the offence is whether it is an “inherent characteristic” of the offence. So, for example, it would be wrong to take into account, in aggravation of the offence of intentionally causing fire with recklessness as to spread of fire, its commission being “without regard for public safety”, such constituting an “inevitable element of the offence, which should not be given separate consideration as an aggravating circumstance within s.21A(2).”: Mills (2005) 154 A Crim R 40 at [56] per Wood CJ at CL (with whom Grove and Hoeben JJ agreed).
Planning has been held to be an inherent characteristic of drug supply offences, and error was found where the Sentencing Judge had regarded the degree of planning in such a case as an aggravating factor: Yildiz [2006] NSWCCA 97.
In Way itself, it had been said to be appropriate for the Sentencing Judge to have regarded the drug supply offence as one committed without regard for public safety, as the applicant was not to know that the buyer was an undercover operative: para [172]. A similar approach was taken in Lilley (2004) 150 A Crim R 591 (at [53]) and Aslan [2005] NSWCCA 121. A contrasting position was put forward by Brownie AJA in Ancuta [2005] NSWCCA 275, because all supply of heroin is likely to endanger the public by risks to users and consequential crime, such that “It might be said that every supplier or deemed supplier of heroin has failed to have regard fro 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).”: [11].
An inherent characteristic of acts of aggravated dangerous driving is that they are committed without regard for public safety: Elyard [2006] NSWCCA 43. The offence was one of aggravated driving in a manner dangerous (very substantially impaired by drugs). This case looks at the interaction of s.21A and the Jurisic / Whyte aggravating factors. At paragraph [10] Basten J held that in these circumstances the factor of “without regard public safety” should not usually be given additional effect as an aggravating factor in own right. His Honour (at [14] – [16]) explored the issue of inherent characteristics, and was critical of Brownie J in Ancuta in so far as his Honour drew a distinction between drug supply offences and driving offences, where the latter were assumed to be committed without regard to public safety.
Howie J at paragraph [40] re-iterated that the Sentencing Judge must not take into account not just elements, but also aggravating features which are an inherent characteristic of the class of offence of which the offence before the court is an example.
Difficulties, particularly in relation to the factor of “without regard for public safety”, are contemplated. In the circumstances of this case there was simply no basis to find the aggravating factor made out.
S.21A(4) is also significant, providing “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.” This is important to bear in mind. There has been strong judicial criticism of the complications which have arisen because of the provisions of s.21A. In Elyard Howie J, before dealing with the further unnecessary complication of “inherent characteristics”, stated (at [39]):
“It is unfortunate indeed that those responsible for drafting s.21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section’s demands.”
As noted at the outset, case law on new and revised sections is vast. S.21A is certainly no exception. Some of the considerations of and qualifications to aggravating factors in s.21A(2) which have been raised are as follows:
Prosecutors often try to suggest this applies in robbery offences. If common sense doesn’t indicate that this is inappropriate, and the clear terms of s.21A(2) aren’t enough, there are a number of decisions which confirm the error of this submission, eg. Suaalii [ 2005] NSWCCA 206: paras 12 – 15; Fairbairn [2006] NSWCCA 337 at [31].
Violence in a sexual assault case may be present – but it would have to be violence beyond that which is inherent in the ‘sexual connection’ involved essentially in the offence, yet not so severe as to amount to actual bodily harm (which would be in breach of the De Simoni principle because it renders the offender liable to a more serious offence): see Johnson [2005] NSWCCA 186 at [21] and following.
There are numerous cases where this has improperly been taken into account on armed robbery offences.
In Smith [2005 NSWCCA 286 the Respondent to a Crown appeal had scalded his 6 year old son with hot water, and was sentenced for the offence of maliciously inflicting grievous bodily harm. The Sentencing Judge had found that the Respondent intentionally applied hot water to the child’s legs, and was reckless (within the definition of ‘malice’) as to the possibility that he would be scalded. The Court found that the judge was not in error in not finding that the hot water in these circumstances was tantamount to the use of a weapon: paras [37] - [38].
Although this appears as though a criminal record makes the offence for which sentence is to be passed more serious, it has been held that the provision should be read according to the common law principle that a prior record does not aggravate the offence but 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: Shankley [2003] NSWCCA 253, Johnson [2004] NSWCCA 76, Wickham [2004] NSWCCA 193. See also Walker [2005] NSWCCA 109, Tadrosse [2005] NSWCCA 145 at paragraph 21. The factor should not be found to apply because of prior dealings under s.10 of the Crimes (Sentencing Procedure) Act: Price [2005] NSWCCA 285 at [36].
A five judge bench sat in McNaughton [2006] NSWCCA 242. The above described treatment of a criminal record – as showing whether the offence at hand is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience to the law, such that retribution, deterrence and protection of society may indicate that a more severe penalty is warranted – was approved. The Court emphasised the proportionality principle, whereby the upper boundary of a proportionate sentence is set by the objective circumstances of the offence, which do not include prior convictions. S.21A(2) was said to encompass both objective factors and factors like (2)(d) which are subjective.
See Tamilo Atonio [2005] NSWCCA 200 for a discussion regarding the meaning of this phrase. In Smith (referred to above – the case of the hot water on the 6 year old) the Court found that the judge was not in error in not finding gratuitous cruelty made out. Latham J at [37] said that such factor “…is less likely to be present where an intentional act gives rise to injuries which were contemplated by the offender as possible, but no more, as opposed to offences involving deliberate calculated torture or where the type and degree of harm inflicted is part of the offender’s desire to degrade and humiliate the victim.”
Before a judge can find substantial emotional harm within the meaning of this section there should be evidence specifically directed to the issue which discloses “an emotional response significantly more deleterious than that which any ordinary person would have when subjected to” as a victim of the particular offence under consideration - an armed robbery in Youkhana [2004] NSWCCA 412 per Hidden J (with whom McColl JA and Levine J agreed) at paragraphs [23] – [27]. In Solomon [2005] NSWCCA 158 Howie J (with whom Grove and Latham JJ agreed) said (at [19] – [20]):
“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.
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.”
In that case there was clear evidence available of injury greater than would normally be expected.
The Court in Cunningham [2006] NSWCCA 176 confirmed these principles.
What might have occurred had timely first aid not been provided is an irrelevant consideration when applying s.21A(2)(g): Heron [2006] NSWCCA 215 at [49] (in relation to offence of malicious wounding with intent to inflict grievous bodily harm)
A Sentencing Judge was found not to be in error in taking into account the fact that the victim of an offence of maliciously inflicting grievous bodily harm with intent was rendered a paraplegic (that is, even though grievous bodily harm was an element): Zoef [2005] NSWCCA 268. Johnson J at para [123] indicated that the Sentencing Judge had been correct to state that the consequences for the victim “are a very important part in determining the sentence which must be imposed”.
In Aslett [2006] NSWCCA 49 the Sentencing Judge had found the subsection made out because there was evidence that the offender intended, in the commission of a home-invasion style offence, to look for Asians, apparently on the basis that they would have money and jewellery at their home. Barr J (with whom Spigelman CJ and Howie J agreed) accepted (at [124]) a submission that an offender’s assessment of the likelihood of money and goods capable of being stolen was quite a different motivation from crimes committed out of race hatred or prejudice. His Honour said “It seems to me that a better analysis is that the appellant approved the attack on Mr and Mrs A’s home not because he believed that Mr and Mrs A were Asian but because he believed that as Asians they fell into the category of people whose homes might contain valuables suitable for stealing. There was no evidence that the appellant hated Asians. There was no evidence that he was prejudiced against Asians.”
The significance of this factor in the debate about inherent characteristics is referred to above.
Where an offence of assault occasioning actual bodily harm was committed by way of an “unprovoked ferocious assault” in company, within five metres of a taxi rank at Blacktown, with at least 20 members of the public in close proximity (some of whom were fearful), it was proper to take into account the commission of the offence without regard for public safety: Saleib [2005] NSWCCA 85.
An offence committed whilst the offender has an unfinished order to perform community service hours is interpreted as having been committed whilst subject to conditional liberty: see Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357 per Grove J at [2] – [8] and Hoeben J (with whom James and Hoeben JJ agreed) at [48] – [54].
If acting for an offender who has spent time in custody because of parole being revoked (partly or wholly because of the commission or alleged commission of the offence for which he is to be sentenced), it will be important to give careful consideration to the details of the breach and time spent in custody because of it. An argument can be mounted in some cases that the offender should have the benefit of the time spent in custody pursuant to revoked parole, if the sentence is to be elevated because of its commission whilst on parole. The Court of Criminal Appeal reviewed the two strands of authority on this issue in Callaghan [2006] NSWCCA 58; 160 A Crim R 145 at [22] – [24], determining that there is a discretion available to the judge which will be influenced by a number of different considerations.
This factor arises frequently in relation to sexual offences against children. There are of course varying degrees of the level of trust abused, and the factor ought not weigh as heavily if the child is not physically, emotionally, financially or otherwise dependant on the offender. Because there are a number of sexual offences against children which carry a standard non-parole period, such that a case within the middle of the range of objective seriousness will have to be hypothesised, it is useful to remind the sentencing Judge that such a mid range offence will inevitably include such a consideration. That is, it is such a common feature of offences of this kind that its mere presence is not a meaningful factor in looking at whether the non-parole period imposed ought be more than the applicable standard non-parole period (or whether a case which otherwise warrants something less than the standard non-parole period moves closer to it because of the presence of this feature).
The factor frequently arises also in fraud cases, and otherwise in relation to work knowledge: see eg. Suaalii [2005] NSWCCA 206.
In O’Connell [2005] NSWCCA 265 the Court of Criminal Appeal did not accept the Crown argument on a Crown appeal that the sentencing judge had erred in not finding this factor made out when a depressed kleptomaniac council worker – who inspected properties in that capacity -stole from the properties. The Sentencing Judge had said: “I do not regard this as a breach of trust as such although I have got no doubt that the persons who owned the properties in a sense trusted him, although many of them did not actually know him. He is not to be equated with the role of a bank manager or a solicitor who has charge of funds”. Brownie AJA (with whom Buddin and Latham JJ agreed) said (paragraph [33]) “he considered that his Honour was correct in coming to this view”, citing R v Stanbouli [2003] NSWCCA 315, 141 A Crim R 531 at [34] – [35]. His Honour continued at [34]: “Even if this was wrong, the view that his Honour took, as a proposition of fact, appears to have been correct. He paid appropriate regard to the fact that the victims had, in a sense, trusted the respondent.”
In Higgins [2006] NSWCCA 326 a manager of the Commonwealth Bank, who had been employed by the bank for about 27 years, had a number of elderly customers who were visited by him in their nursing home for assistance with banking. The Crown at first instance had submitted that s.21A(2)(k) applied. The Sentencing Judge said in his remarks: “People who hold a position of trust as far as the community is concerned have to realise that the consequences of breaching that are significant. Having referred to the question of trust I am not satisfied, despite what the Crown says, that subs (k) of subs (2) is appropriate to add in as an aggravating factor, because I take the view in this case that was an element of this offence.” The Court of Criminal Appeal on a Crown appeal which asserted error in this approach rejected the ground of appeal. Grove J (with whom Tobias JA and Bell J agreed) quoted from Howie J’s decision in Elyard, quoted above in criticism of s.21A.
Without deciding whether some breach of trust is a characteristic of an offence against s.178A, it was important that “Black DCJ clearly recognized the respondent’s culpability in taking possession of the cheque from the elderly customer and failing to account for its proceeds. Once he had taken those facts into account there was no call to elevate an appropriate penalty for that misconduct.”
In Williams [2005] NSWCCA 99 the Court of Criminal Appeal held that it was an error to take into account that the victim of a manslaughter offence was vulnerable in the sense contemplated by the section merely because the offender was able to overpower. A more specific type of vulnerability is contemplated. In Ancuta, the Court of Criminal Appeal rejected the application of the section to the offence of the (deemed) supply of drugs. At [13] Brownie AJA (with whom Latham and Buddin JJ agreed) held:
“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.”
Where there are multiple offences charged, each offence is to be sentenced and it is an error to invoke this sub-section in aggravation of any of those offences: Tadrosse NSWCCA [2005] 145 at paragraphs [28] – [29]. What is said to be contemplated by the legislation is the situation where one offence is made out by a number of acts of criminality (such as repeated embezzlement, different supplies of a drug), but not where the repeated activity is itself an element of the offence (eg s.25A of the Drug Misuse and Trafficking Act, s.66EA of the Crimes Act). See also Janceski [2005] NSWCCA 288 at [22] where each of a number of offences of driving in a manner dangerous causing death was wrongly found to be aggravated by the existence of other victims for which sentences were to be passed. Compare however Pellew, where the offence being isolated rather than part of a wider pattern of sexual abuse (which is often the case in relation to sexual offences against children) was one factor which rendered the offence less serious than one of middle range of objective seriousness.
In the case of the depressed kleptomaniac council worker mentioned above (O’Connell [2005] NSWCCA 265) there was found to be a real difficulty in applying literally the decision in Pearce v The Queen (1998) 194 CLR 610. Because of the respondent’s background and the circumstances of the individual offences it was difficult to say that any one of those individual offences called for a sentence of imprisonment, considered by itself, or in isolation. What made the case one where a sentence of imprisonment became appropriate was the overall criminality involved in the large number of offences committed. The Court (at [30]) held that it is permissible, in an appropriate case, to consider the various offences under consideration together, as a group, and to form a view about the extent of the criminality involved in all these offences. The case at hand was found to be such an appropriate case: there was one, long but essentially indivisible course of conduct, the product of the respondent’s psychiatric state.
The prohibition relates to victims dealt with pursuant to the Form 1 procedure as well as those dealt with by separate offences: Hamze [2006] NSWCCA 36; Fairbairn.
As to the number of victims having an impact in the sentencing exercise for a particular offence of murder, see Villa [2005] NSWCCA 4 per Dunford J (with whom Simpson J agreed) at [93] – [94] and Hidden J at [100].
The considerations arising from s.21A should not be dealt with in a short-hand fashion or by passing reference. It is imperative that the sentencing process make clear the reasons for taking the various factors into account and the manner in which this has been done. See eg. Walker [2005] NSWCCA 109 at [32], Street [2005] NSWCCA 139 at [32] – [34].
On the factual basis of guilty pleas, and resolving the tender of material, regard should be had to:
A decision will need to be made at an early stage as to whether the client who pleads guilty will be called to give evidence. The Court of Criminal Appeal is becoming increasingly critical of factual matters being raised not through sworn testimony of the offender but only through reports.
In Qutami [2001] NSWCCA 353, Smart AJ, stated (at [58]- [59]):
“There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.”
Spigelman CJ (at [79]) agreed with the observations of Smart AJ as to the limited weight that ought to be given to “self-serving, untested statements made to experts which are tendered in sentencing hearings.”
Howie J in Palu adopted such remarks to the context of reports made to the Probation and Parole authors of Pre-Sentence reports: paragraphs 40 – 41.
In Lenard and Fail [2006] NSWCCA 345 the Sentencing Judge had found remorse on the basis of a letter tendered from the respondent to a Crown appeal, after he had been convicted, indicating his acceptance of the propriety of the jury verdict. The letter had not been objected to by the Crown. The Court of Criminal Appeal (Beazley JA with whom Sully and Hislop JJ agreed, [22] – [24]) applied the Qutami principles regarding untested expressions to letters, but as the case was a Crown appeal and the Crown had not objected at first instance, the Sentencing Judge’s finding of remorse was preserved.
Sometimes however the practitioner knows that the client will only harm his or her case by giving evidence, and the right thing then to do is not to call such evidence.
20 Sep 2024