Last updated 18 January 2008
(a) The Legislative Framework
The Purposes of Sentencing
The purposes of sentencing are set out in s. 3A of the Crimes (Sentencing Procedure) Act 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.
It has been held that this is largely a codification and elaboration of principles of sentencing at common law: Regina v MA (2004) 145 A Crim R 434 ,
Sentencing Options.
Courts have the following sentencing options:
There is no death penalty in New South Wales, or indeed in the rest of Australia, although there continues to be considerable support for this option. In this regard, fortunately, there has been a break with American practice.
The lack of availability of the otherwise appropriate penalty does not mean that you then select the next most lenient penalty; rather, the most appropriate penalty of those available should be imposed: Tsokos (1995) PD [240].
Sentencing Options In the Children's Court
In the Children's Court there are the following sentencing options:
(s. 33 Children (Criminal Proceedings) Act)
Dismissal and Conditional Discharge
The court may find a person guilty but dismiss the charge on condition that the person enter into a good behaviour bond of up to 2 years: s. 10 Crimes Sentencing Procedure Act. This provision was once fondly known as s. 556A Crimes Act. A fine or community service order cannot be combined with a dismissal or conditional discharge: s. 13 and 14 Crimes Sentencing Procedure Act.
In determining whether or not to make an order under s. 10. the court is required to have regard to:
(a) the person's character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
This list is obviously not exhaustive. If the offence is not trivial, is does not necessarily follow that s. 10 cannot be applied: Paris [2001] NSWCCA 83, but see Piccin (No 2) [2001] NSWCCA 323. The fact that the defendant could not have done anything prevent the offence (for example in a crime of strict liability) is a relevant matter: Thornloe v Filipowski [2001] NSWCCA 213.
The equivalent Commonwealth provision is s. 19B Crimes Act. Under that provision
if the court is satisfied having regard to
(i) the character, antecedents, cultural background, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or other than nominal punishment, can dismiss the charge, with or without conditions including a bond of up to 3 years.
In working out the fines, it is important to bear in mind that the term 'penalty unit' is currently defined as being $110: s. 17 Crimes (Sentencing Procedure) Act.
A court imposing a fine is obliged to take into account the means of the offender: s. 6 Fines Act. A court should not impose a fine which a person cannot pay: Rahme (1989) 43 A Crim R 81. The amount of the fine is relevant to the sentence imposed: Tapper (1992) 64 A Crim R 201.
Bonds
A good behaviour bond is not to exceed 5 years: s. 9 Crimes (Sentencing Procedure) Act. A bond can generally be imposed with a fine for the same offence ( s. 14 Crimes (Sentencing Procedure) Act ) but not a community service order: s. 13 Crimes (Sentencing Procedure) Act.
The conditions of a bond must be certain and not be unduly harsh, unreasonable, or needlessly onerous. Thus a condition of a bond that an Aboriginal man whose family lived in Wilcannia, not enter Wilcannia, without permission from the sentencing judge, was overturned by the NSW CCA: Bugmy [2004] NSWCCA 258.
In the Children's Court a bond is not to exceed 2 years (s. 33(1) (b) Children (Criminal Proceedings) Act). In the Children's Court a bond can be combined with a fine.
Deferred Sentence (Griffiths Remand)
A court may defer passing sentence for a period of up to 12 months from the date of conviction to allow the offender to be assessed for rehabilitation, or to demonstrate that rehabilitation has taken place, or for any other purpose: s. 11 Crimes (Sentencing Procedure) Act, s. 33(1) (b) Children(Criminal Proceedings) Act. This corresponds to what used to be referred to as a 'Griffiths remand': Griffiths (1977) 137 CLR 293.
The statutory 'Griffiths remand' is not restricted to cases where a non-custodial sentence is contemplated (which was the position at common law); it can be ordered in a case where a remand would be of assistance to the court in determining the non-parole period: Trindall (2002) 133 A Crim R 119, Williams [2004] NSWCCA 64. It should not be granted in a case where there are unresolved disputes of fact as to the objective seriousness of the offence: Palu (2002) 134 A Crim R 119 at para [38].
The Crown can appeal against a Griffiths type remand to the Court of Criminal Appeal: Trindall (2002) 133 A Crim R 119.
Community Service Orders
A court can impose a community service order of up to 500 hours (see s. 8 Crimes (Sentencing Procedure) Act). A community service order cannot be combined with a bond: s. 13 Crimes (Sentencing Procedure) Act.
In the Children's Court, if the child is under 16, the maximum community service order is 100 hours. If the child is 16 or over, the maximum community service order is 250 hours, depending on the maximum penalty for the offence: s. 13 Children (Community Service Orders) Act.
Imprisonment Generally
Where a court determines that a full-time custodial sentence needs to be imposed, there should be a 3 stage process: Douar [2005] NSWCCA 455 at paras [69] to [72].
Firstly, the court has to determine that no punishment is appropriate other than a sentence of imprisonment: s. 5 Crimes (Sentencing Procedure) Act.
Secondly, if a court determines that a sentence of imprisonment must be imposed, the court must first determine the term of the sentence. That determination should be made without regard to the manner in which the sentence is to be served: Zamagias [2002] NSWCCA 17 at para [26].
Thirdly, the court must then consider whether any of the alternatives to full time imprisonment are available:
However if a sentencing judge does not expressly state that he/she has applied these two steps, it does not necessarily follow that an appellate court will intervene: Zamagias [2002] NSWCCA 17 at para [30].
Home Detention
Where a total sentence (that is minimum and additional term) of 18 months or less is imposed, an application can be made to serve the sentence by way of home detention: s. 7 Crimes (Sentencing Procedure) Act. Sentences for murder, attempted murder, manslaughter, sexual assault, armed robbery, firearms offences, assault occasioning actual bodily harm or stalking cannot be served this way: s. 76 Crimes (Sentencing Procedure) Act. A sentence of home detention cannot be imposed if the person has a record for any of the last mentioned offences, or has been convicted of a domestic violence offence or had an AVO made in the past 5 years where the victim lives at the intended address: s. 77 Crimes (Sentencing Procedure) Act.
Home detention is to be regarded as a substantially less onerous sentence than gaol. The sentencing judge should first determine the appropriate total sentence of imprisonment. If the total sentence is 18 months, or less, the judge can then consider whether an order for home detention can be made: Jurisic (1998) 45 NSWLR 209, 101 A Crim R 259.
Suspended Sentence
A court that imposes a sentence of 2 years or less may make an order suspending the sentence on condition that the offender enters into a good behaviour bond for a period not exceeding the term of the sentence: s. 12 Crimes (Sentencing Procedure) Act. First the judge should determine whether a sentence of imprisonment should be imposed, then determine the length of the sentence, and then the judge should determine whether or not the sentence should be suspended: Dinsdale (2000) 202 CLR 321, [2000] 175 ALJR 1538, 115 A Crim R 558 at para [79], Foster [2001] NSWCCA 215 at para 30, Blackman and Walters [2001] NSWCCA 121.
A suspended sentence is a heavier sentence than a non-custodial sentence (such as a bond), and as a result should not be imposed be imposed if a non-custodial sentence such as a bond is appropriate: JCE (2000) 120 A Crim R 18 at para [16].
A suspended sentence is not akin to no punishment at all, it is a sentence of imprisonment: Elliot v Harris (1976) 13 SASR 516 at 527 (per Bray CJ), JCE (2000) 120 A Crim R 18 at para [15] and [24] -[25], Foster [2001] NSWCCA 215 at para 36. Generally speaking, if in the original sentence proceedings the Crown does not submit that a suspended sentence is inappropriate, the Crown will not be able to so argue successfully on appeal: R v Wilson (1981) 28 SASR 362 at 367-8, approved by the High Court in Everett v The Queen (1994) 181 CLR 295 at 302.
A suspended sentence cannot be imposed if the offender is serving a sentence of imprisonment which is not suspended: s. 12(2). This will apply even to a period when the offender is on parole: Edigarov [2001] NSWCCA 436.
Section 12 has been amended so that a sentence can only be wholly suspended, thus overruling Gamgee [2001] NSWCCA 251.
Section 12 has also been amended so that it is no longer necessary for the judge imposing a suspended sentence to nominate a non-parole period (this is effected by the amended s. 12(3) which says that part 4 of the Act does not apply). This effectively overturns the situation where it was thought to be necessary to always ask a judge imposing a suspended sentence to set a non-parole period because on a breach of the suspended sentence there was no power to set a non-parole period. As to the previous situation see Tolley [2004] NSWCCA 165 and Wise [2006] NSWCCA 264 esp at para [14].
Revocation of a suspended sentence
If there is a breach of the bond, the court must make a determination about whether to revoke the suspension of the sentence. The court can only not revoke the bond if the court is satisfied that the breach was trivial in nature, or that there are good reasons excusing the offender's breach of the bond: s. 98(3) Crimes (Sentencing Procedure) Act. The subjective circumstances of the offender generally have been held to be irrelevant unless they relate to the failure to comply with the bond: DPP v Cooke [2007] NSWCA 2.
If the suspension of the sentence is revoked, the court must determine whether the sentence is to be served by way of full-time imprisonment, home detention or periodic detention: s. 99(1)(c) Crimes (Sentencing Procedure) Act. The sentence commences when the suspended sentence is revoked: Graham [2004] NSWCCA 420. As a result of amendments to s. 99, the judge dealing with the breach can fix a non-parole period, because Part 4 of the Act applies (s. 99(1) (c)). This overcomes the previous absurd situation where a judge dealing with a breach of a suspended sentence could not fix a non-parole period unless the judge imposing the suspended sentence had done so: see Wise [2006] NSWCCA 264. In determining the non-parole period, the judge can take into account anything the offender has done in compliance with the bond (such as attending rehabilitation). That this is so is clear is because s. 99(1) (c) says that s. 24 applies to the setting of the non-parole period.
Because of an amendment to the definition of 'sentence' in s. 3 of the Crimes (Appeal and Review) Act to include a decision to revoke a suspended sentence, and any subsequent order, there can be an appeal to the District Court against a decision to revoke a suspended sentence, and any resulting sentence. This amendment overcomes the difficulties caused by the decision of Barrett [2006] NSWCCA 210, which held that there was no such power under the earlier form of the legislation.
Periodic Detention
Where a court has determined to sentence a person for a total sentence of less than 3 years, the court may order that the person serves the sentence by way of periodic detention: s. 6 Crimes (Sentencing Procedure) Act. Amendments to the Act now require the judge to undertake a two stage process, firstly determining the total sentence (including the non-parole period and additional term), and then determining if the sentence should be served by way of periodic detention: Wegener [1999] NSWCCA 405.
Drug Court
A person who
can seek a referral to the Drug Court: s. 5 Drug Court Act. On referral the person will be sent to a detox unit at the MRRC for assessment. If admitted to the program there will be a 12 month period of residential or non-residential treatment by abstinence or methadone/Naltrexone.
The Statutory Maximum
It is an error to impose a sentence in excess of the statutory maximum, although Howie J has described this as a 'technical error': Marshall [2007] NSWCCA 24.
Offences which straddle a date where the maximum penalty was increased
Where the allegaton is that an offence occurred sometime during a particular period, and during that time the maximum penalty was increased, and the prosecution cannot prove whether the offence occurred before or after the increase in the maximum penalty, the offender is to be sentencedaccording to the lower maximum penalty: Regina v MAJW [2007] NSWCCA 145.
Commencement of Sentences.
A sentence can be back-dated to a date before the date of sentencing, but can only
commence on a day after sentence if it is to accumulated on an existing sentence:
( s. 47 Crimes (Sentencing Procedure) Act).
Where a sentence is cumulated upon another sentence, and the first sentence has a
non-parole period set, the second sentence commences at the end of the non-parole
period, not the additional term: s. 55 Crimes (Sentencing Procedure) Act.
A sentence cannot be imposed cumulatively upon the end of an additional term not
yet served: Killick [2002] NSWCCA 1, Arnold
(1993) 65 A Crim R 337.
Where a person is solely in custody in relation to the matters for which he is being
sentenced, it is desirable that the sentence (McHugh (1985) 1 NSWLR 588) and the
non-parole period (Micallef (1990) 50 A Crim R 465) be back-dated to the date when
he went into custody. Where an accused has been in custody for a matterlater dealt with on a Form One: Regina v Sultana [2007] NSWCCA 107.
The sentence should also take into account broken periods of pre-sentence custody referable only to the offence, even if this means back dating the sentence to a date before the prisoner went into custody: Howard [2001] NSWCCA 309. Indeed, the preferable course may be to back date the sentence even to a date when the offender was not in custody: Newman and Simpson [2004] NSWCCA 102. Where there is a broken period of pre-sentence custody taken into account, the non-parole period should be determined before the broken period of pre-sentence custody is taken into account, so that both the head sentence and the non-parole period are reduced to take into account pre-sentence custody: Purdie [2005] NSWCCA 15.
Prior custody without conviction can't be taken into account on other matters: Chung (1994) PD [120].
Sentencing where a prisoner is serving balance of parole
Where an offender commits another offence while on parole, and as a result is breached and is serving the balance of parole when sentenced for the second offence, the sentencing judge has a discretion whether to date the second sentence from the date of sentencing, or the date the offender went into custody: Regina v Callaghan (2006) 160 A Crim R 145. The discretion is more likely to be exercised in favour of commening on the date of sentencing if the offence was committed a short period of the offender being released on parole, and where the parole period is short: Callaghan. However the second sentence cannot be commenced at a date later than the date of sentencing: s. 55 Crimes (Sentencing Procedure) Act.
Non-Parole Periods
Where a court is sentencing an offender for an offence committed after 1 February 2003, the court must fix a non-parole period, and then fix the balance of the term, which is not to exceed one third of the total sentence unless there are special circumstances s. 44 Crimes (Sentencing Procedure) Act. The two steps do not have to be taken sequentially; they can be determined simultaneously: Way (2004) 60 NSWLR 168 at [112].
Despite the fact that the non-parole period is to be set first, the finding of special circumstances can be taken into account in setting the non-parole period, so that the effect of a finding of special circumstances is to reduce the non-parole period: Tuncbilek [2004] NSWCCA 139 at para [52].
All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight: Bugmy v The Queen (1990) 169 CLR 525 at 513. In determining the non-parole period, regard must be had to the rehabilitative prospects of the prisoner: Lian (1990) 47 A Crim R 444.
The earliest release date is the end of the non-parole period: s. 44 Crimes (Sentencing Procedure) Act. Where the sentence is of 3 years or less in total, the court must make an order directing the offender's release at the end of the non-parole period: s. 50(1) Crimes Sentencing Procedure Act. Where the sentence imposed is more than 3 years, the prisoner becomes eligible to apply for parole at the end of the non-parole period.
A non-parole period cannot be set for a life sentence under
state legislation: Harris (2000) 50 NSWLR 409. A non-parole
period cannot be set for a sentence less than 6 months: s. 46 Crimes (Sentencing Procedure) Act.
The objective seriousness of the offence must be considered both in relation to the
total sentence and the non-parole period: McDonald (1998) 5 Crim LN [920]. It is
not necessarily fatal for the non-parole period to be more than 3/4 of the sentence
but it will usually be 3/4 of the total sentence: GDR (1994) 75 A Crim R 319.
At one stage it was held that if the judge does not explain why he has not varied
the proportion despite apparent existence of special circumstances, the CCA may conclude
that no consideration was given to this problem: Bo Too (1992) PD [243], Tyronney
(1993) PD [155], Brindley (1993) 66 A Crim R 204 at 207, Stead (1994) PD [63]. However
it now appears that it will be sufficient if the judge simply expresses the view
that no special circumstances exist: Simpson (2000-2001) 53 NSWLR 704 esp at 722.
Parole Periods
A parole condition which required an offender to abstain from drinking alcohol was held to be invalid in Williams [2005] NSWCCA 99, because the judge had not considered a report from Probation and Parole, in breach of clause 6 of the Crimes (Sentencing Procedure) Regulation.
Standard Non-Parole Periods
Where certain offences are committed after 1 February 2003, if the offence is in the middle range of seriousness, the standard non-parole period must be set unless the court determines that there are reasons for not setting the standard non-parole period: s. 54B Crimes (Sentencing Procedure) Act. Any of the factors in s. 21A of the act can be used to move from the standard non-parole period, and these factors include all the factors available at common law. These factors are not a 'narrow list of considerations': Way (2004) 60 NSWLR 168 at paras 56 to 57.
The judge is first required to determine whether or not the offence is objectively (including the reasons for its commission) a mid range offence. In this assessment, the subjective factors of the offender are not taken into account: MLP [2006] NSWCCA 271. For example, the fact that the offences were committed while the offender was on parole cannot be taken into account: Kafovalu [2007] NSWCCA 141. If the offence is a mid range offence, is, the judge must then consider whether there are aggravating or mitigating factors which should mean that the standard non-parole period is not imposed: Reid [2005] NSWCCA 309
The standard non-parole period is for a sentence after trial, so that a sentence after a plea will be less than the standard non-parole: Way (2004) 60 NSWLR 168 at para [68]. It is an error to treat the standard non-parole period as applying to a sentence after a plea: Diamintis [2005] NSWCCA 433 at paras [7] to [10].
However, even in a case where the standard non-parole period does not apply (for example because there has been a plea of guilty), 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' (Way at para [122]). See also Davies [2004] NSWCCA 319 at para [6]. This does not mean that the sentencing judge, in a case where there is a plea of guilty, should start at the standard non-parole period and then oscillate about it to take into account the various aggravating and mitigating factors: Way at para [131]. In such cases the standard non-parole period should not be treated as a starting point, so as to dominate the sentencing exercise: Lewis [2005] NSWCCA 300 at para [13], Tidona [2005] NSWCCA 410 esp at para [35], LJG [2006] NSWCCA 216 esp at paras [10] to [12], and Mulato [2006] NSWCCA 282 esp at [18].
However, Howie J has said that even in a case where there has been a plea of guilty, the sentencing judge is obliged to indicate the level of seriousnesss of the offence: see for example Burgess [2006] NSWCCA 319, esp at para [45]. It is difficult to reconcile the approach taken by Howie J with the approach taken in Way and the approach taken in Way is to be preferred.
A judicial summary of the decisions about standard non-parole periods is found in Pellew (2004) 150 A Crim R 575 at paras [13] to [14]:
13 The following propositions emerge from Way and subsequent cases:(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]);
(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);
(iii) a sentencing judge will be required, in relation to any given case, to hypothesis what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] – [77]);
(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] – [86]);
(v) that an offence is “typical” or “common” does not dictate that it is in the middle of the range of objective seriousness (para [101]);
(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] – [102]);
(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319.
14 Finally, it is to be observed that there is nothing in Division 1A that compels a court which finds that an offence is in the mid range of objective gravity to fix the standard non-parole period in respect of that offence. Possible reasons for departing from the standard non-parole period are extensive, as s21A makes clear.
If special circumstances are found, as to the proportion between the non-parole period and the additional term, this has to be taken into account in setting the non-parole period, rather than simply leading to an increase in the additional term: Perez [2004] NSWCCA 218 at paras [24] to [26]. In other words, a finding of special circumstances should not normally lead to the imposition of a longer total sentence, but should lead to a shorter non-parole period and a longer parole period.
It is an error to take into account the standard non-parole period for offences committed before 1 February 2003: Ohar [2004] NSWCCA 83, Wilkinson [2004] NSWCCA 468 at para [26].
Section 54B(5) Crimes (Sentencing Procedure) Act states that failure to comply with the provision does not invalidate the sentence. However s. 101A states that failure to comply with a provision of the act can be taken into account by an appeal court. The combined effect of these provisions is that the validity of a sentence where s. 54B was not complied with is protected until it is before the Court of Criminal Appeal, at which stage it can take it into account as an error of law: Tuncbilek [2004] NSWCCA 139.
Special Circumstances.
Special circumstances has been interpreted very widely in Moffitt (1990) 20 NSWLR
114. It is not sufficient to merely apply an arbitrary formula. Special circumstances
may include:
There has recently been a considerable tightening up in what the CCA is prepared to recognize as special circumstances. In Lewis (1998) 100 A Crim R 361 the CCA said what was needed was something that meant a longer period of parole was needed (such as rehabilitation) or imprisonment would be especially harsh such as protection.
'Special circumstances' are not limited to the question of whether or not the offender needs an extended period of supervision. The primary question should be the length of the minimum period of incarceration: Simpson (2000-2001) 53 NSWLR 704.
Sentencing after a retrial
Where an offender is to be sentenced in a trial after a retrial has been ordered, ordinarily the offender should not receive a higher sentence at the retrial than he received in the first trial: Regina v Gilmore (1979) 1 A Crim R 416.
Concurrent or Cumulative?
Concurrent sentences run at the same time as each other, cumulative sentences run one after another. A sentence may be partly concurrent and partly cumulative.
If the offences have features in common, (Hammoud (2002) 118 A Crim R 66 esp at para [7]), or if they are substantially contemporaneous and connected ( Myers [2002] NSWCCA 162, Ruane (1979) 1 A Crim R 284), this may point towards concurrence of sentences. Concurrent sentences can be applied to some extent if all the offences arose 'in the course of one episode': Gorman [2002] NSWCCA 516.
Where there are different offences at different times against different victims, it will be an error to impose wholly concurrent sentences: VAA [2006] NSWCCA 44.
There may well be cases where different judges could take different views about concurrent or cumulative sentences in a particular case and neither could be said to be wrong: (Hammoud (2002) 118 A Crim R 66 esp at para [7]).
Where an offender is already serving a very lengthy sentence, it may be that there is little or no room for a further sentence to be imposed: MMK [2006] NSWCCA 272 esp at para [14].
Cumulative Sentences.
Under s. 58 Crimes (Sentencing Procedure) Act a magistrate cannot impose a sentence cumulative on 2 existing cumulative sentences, or impose a sentence totalling more than 5 years from when the existing sentence began: s. 58 Crimes (Sentencing Procedure) Act.
A sentence can be wholly or partly cumulative with another sentence. If the judge does not specify, the sentence is concurrent: s. 55 Criminal Procedure Act. If a sentence is imposed wholly cumulatively upon another sentence, and there is a non-parole period for the first sentence, the second sentence commences at the end of the non-parole period for the first sentence, not the end of the additional term: s. 55 Criminal Procedure Act, Killick [2002] NSWCCA 1.
Where the offender is already serving an additional term at the time of sentencing because his parole has been revoked, the judge has a discretion whether to commence the sentence at the end of the non-parole period or at the end of the additional term: Callaghan [2006] NSWCCA 58.
Commonwealth Sentencing: Generally
Where the total sentence is 6 months or less the court is not obliged to make a recognizance
order. Where the total federal sentences are 3 years or less a recognizance release
order must be fixed: s. 19AC. Otherwise a non-parole
period must be fixed.
The non-parole period for Commonwealth offences is generally under 75% of the total:
Von Giese (1994) PD [279], Beeforth (1996) PD [23], Stitt (1998) 5 Crim LN [908]
In Bernier (1998) 102 A Crim R 44 the CCA said the range for NPPs was 60-66.6%. In
Paull (1990) 20 NSWLR 427 at 435 and Acosta [1999] NSWCCA 334 it was
held that a non-parole period set at 75% of the total sentence should be reserved
for the worst class of case. However, note the strange decision of Bick [2006] NSWCCA 408.
Commonwealth Sentencing: Abolition of 16G
As from 16 January 2003, s. 16G and 19AG have been abolished. These provisions provided that in states like where NSW where remissions have been abolished, the court must take that fact into account. That normally meant that the head sentence be reduced by 1/3: El Kaharni. There was a requirement that there at least be a reference to s. 16G in the Remarks on Sentence: Lopez [1999] NSWCCA 245. It was not necessary to specifically quantify the amount of the discount under s. 16G: Halls [2002] NSWCCA 55. It has been held that section 16G does not apply where the sentence imposed is one of life imprisonment: Vanit (1997) 149 ALR 1, (1998) 72 ALJR 1.
Where the offence is committed before 16 January 2003 but the offender is sentenced
after, the court may have a discretion to take s. 16G into account: Speer [2004] NSWCCA 118, but see
Studenikin [2004] NSWCCA 164.
The effect of the abolition of s. 16G is not that the existing tariff be increased by 50%, but the abolition of s. 16G has to be taken into account when considering the range of sentences imposed before the abolition of s. 16G: Studenikin [2004] NSWCCA 164. 'It would be crude and unfair to increase previous levels of sentence by 50% to take into account the abolition of ss 16G and 19AG': per Smart AJ in Dujeu [2004] NSWCCA 237 at para [43]. However in Kevenaar [2004] NSWCCA 210 at para [48] Hulme J was clearly of the view that the effect of the abolition of s. 16G is that the pattern of sentences should be regarded as having been increased by 50%. In Rivadavia [2004] NSWCCA 284 Wood CJ at CL said that the view of Smart J was to be preferred. See also Bezan [2004] NSWCCA 342.
Sentences Under 6 Months.
No minimum or additional terms are set for a sentence of 6 months or less: s. 46 Crimes (Sentencing Procedure) Act.
If a sentence of less than 6 months is imposed the court must indicate and give reasons
for its decision including reasons for deciding that no sentence other than imprisonment
is appropriate: s. 5 Crimes (Sentencing Procedure) Act.
Conversations in Chambers.
The practice of discussing a case with a judge in chambers has been disapproved:
Foster (1992) 59 A Crim R 28.
Pre Sentence Reports
Adjournments for PSRs, particularly after trials, should only be where there is a
legitimate advantage for the sentencing process: Majors (1991) 54 A Crim R 334.
A pre sentence report can only be taken into account in sentencing if it is tendered in evidence in open court: Otway [2005] NSWCCA 352 esp at para [13].
Victim Impact Statements
Victim Impact Statements are admissible: s. 28 Crimes (Sentencing Procedure) Act. The court must not consider a victim
impact statement by a family victim unless it considers it appropriate to do so: s. 28 Crimes (Sentencing Procedure) Act. If
admitted the statements must relate only to matters pleaded to: Bakewell (1996) PD [258].
It has been held that victim impact statements are irrelevant in murder cases because the effect on persons other than the deceased is irrelevant to sentencing: Previtera (1997) 94 A Crim R 76, Bollen (1998) 99 A Crim R 510. See P Berman 'The Role of Victims in Sentence Proceedings', (1997) 4 Crim LN [733]. In Berg [2004] NSWCCA 300 at para [43] Spigelman CJ (with whom Wood CJ at CL agreed) said that Previtera may need to be reconsidered in an appropriate case.
Victims or relatives of victims may now read out victim impact statements in court: s. 30A Crimes (Sentencing Procedure) Act.
Substantial weight cannot be given to victim impact statements
in sentencing offenders because they are unsworn: Slack [2004] NSWCCA 128.
Material in a victim impact statement should be disclosed to the defence prior to
the trial if they contained material which was sufficiently solid to cause reasonable
prosecutors to think that cross-examination based on the information might elicit
answers materially affecting the credibility of the witness: Lewis-Hamilton (1997)
92 A Crim R 532 (Vic CCA).
Reasons for Sentence/ Remarks on Sentence
Remarks on sentence should be given orally rather than in writing and should be formulated so that they can be understood by the offender. Reference to authority should be kept to a minimum: Curtis [2007] NSWCCA 11 esp at paras [4] to [5].
Judges are obliged to give reasons for the sentences they impose, and to give those reasons contemporaneously with handing down the sentence, although it may be permissible to deliver the reasons for sentence on the day after orders are made: see CJP, CAD and MES [2003] NSWCCA 187, especially at paras [69] to [70].
Sentence Proceedings Relating to Children
The Children's Court has no jurisdiction in relation to 'serious children's indictable offences'. These offences are defined as homicide, offences carrying 25 years imprisonment, the most serious sexual assault offences (s. 61J and 61K), or firearms offences carrying more than 20 years imprisonment (s. 3 Children (Criminal Proceedings) Act).
In sentencing an offender who is a child, s. 6 Children (Criminal Proceedings) Act applies, which requires the court to take into account the following:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
A failure to take into account these principles is an error of law: DB v Regina [2007] NSWCCA 27.
In relation to other indictable offences, where a court other than a Children's Court is sentencing a child, the court has a discretion whether to deal with the child under the pursuant to the Children (Criminal Proceedings) Act or 'according to law'. In exercising this discretion, the court should take into account the nature of the indictable offence, the age and maturity of the offender, and the record of the offender: s. 18 Children (Criminal Proceedings) Act. It has also been held that relevant for the sentencing judge to take into account whether the child should serve a sentence in a detention centre plus a parole period, or whether it was appropriate for any reason for the child to serve the sentence in prison rather than a detention centre: WKR (1993) 32 NSWLR 447 esp at 451.
If an offence is committed while an offender is a child, and the offender is sentenced before the child reaches the age of 21, a court is not to impose a control order or a sentence of imprisonment unless a background report has been prepared, given to the parties, and tendered: s. 25 Children (Criminal Proceedings) Act. This provision is mandatory: Hoang [2003] NSWCCA 237.
If a child is to be sentenced to imprisonment, the court may direct that the sentence of imprisonment be served in a detention centre. However a person is not eligible to serve a sentence in a detention centre after the person has turned 21 unless the sentence or its non-parole period will expire within 6 months of the 21st birthday. For offenders being sentenced for serious indictable offences, the relevant birthday is the 18th birthday and special circumstances must be established: s. 19 Children (Criminal Proceedings) Act.
Control Orders
The maximum control order that can be imposed for a single offence is 2 years: s. 33 Children (Criminal Proceedings) Act. Cumulative control orders to a maximum of 3 years can be imposed, but there may be no more than 2 wholly cumulated periods: s. 33A Children (Criminal Proceedings) Act.
Re-opening a sentence
If a court imposes a sentence which is contrary to law, or failed to impose a sentence which is required by law, the sentencing proceedings may be re-opened either on its own initiative or on the application of one of the parties to the proceedings: s. 43 Crimes (Sentencing Procedure) Act. It appears that this statutory power remains even after the sentence has been 'perfected' (finalised in a formal sense, see below): Rickard v Regina [2007] NSWCCA 332.
There is also an inherent power to correct legal error in a sentence until the sentence has been perfected: Regina v Elliot (2006) 68 NSWLR 1, 164 A Crim R 208. Under rule 53.12 of the District Court Rules, a sentence is perfected when there an entry made on the indictment or court file signed by the judge, or entered on the appropriate computer record, so there now appears to be little scope for this avenue of relief.
(b) Objective Features
Relevant Factors Generally
In sentencing an offender the court must take into account such of the following factors which are relevant and known to the court (this list is not an exclusive list: Daetz (2003) 139 A Crim R 398 ).
These factors are relevant to both the head sentence and the non-parole period.
Aggravating Factors under s. 21A
The aggravating factors to be taken into account are:
(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 victims occupation,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, 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 organized criminal activity,(o) the offence was committed for financial gain.
(s. 21A Crimes Sentencing Procedure Act). This provision generally appears reflects the common law.
Errors in taking into account matters as aggravating factors
Errors made by a sentencing judge in taking into account as aggravating factors under s. 21A matters which should not be taken into account as aggravating factors are not mere technical errors: Aslett [2006] NSWCCA 49 at para [127].
Factors Not Treated as Aggravating if Elements of the Offence
The court is not to treat a factor as an aggravating feature if it is an element of the offence: s. 21A (2). This is an extremely important point often overlooked by sentencing judges. Under the sub-headings for various aggravating factors, examples will be given of cases where sentencing judges have ignored this prohibition.
Cases where elements of the offence have wrongly been treated as aggravating factors will be considered under the headings for the various aggravating factors. Some general comments are made here.
If a sentencing judge simply refers to the presence of an aggravating factor which is an element of the offence, without explaining how the aggravating factor is taken into account, error is likely to have been established: Dougan [2006] NSWCCA 34 at paras [30] to [31].
However the extent to which a factor (which is an element of the offence) is present may be treated as an aggravating factor. Thus in the case of dangerous driving occasioning death, the degree to which the offender's blood alcohol level was over the legal limit can be taken into account as a mitigating factor: see Berg [2004] NSWCCA 300 at para [25]. Similarly it will not be an error in a robbery in company case to take into account as an aggravating factor the fact that the offender had a large number of overbearing and powerful companions: Way (2004) 60 NSWLR 168 at para [107].
Where a judge is sentencing an offender for a number of matters, and he/she refers to aggravating features generally which are elements of some of the offences (such as using weapons when there is an armed robbery count), error is established: Street [2005] NSWCCA 139 at paras [32] to [34].
If an aggravating factor applies to some of the offences for which an offender is being sentenced, but not all of them, the sentencing judge must indicate which of the offences are ones in which the aggravating factors are taken into account: Tadrosse [2005] NSWCCA 145 at para [22].
(b) 'the offence involved actual or threatened use of violence'
A sentencing judge should not treat the simple fact of actual or threatened use of violence as an aggravating factor for an offence where the actual or threatened use of violence is an element of the offence, such as in robbery offences (for threatened use of violence): Ibrahimi [2005] NSWCCA 153 at paras [16] to [18], Mohamadin [2004] NSWCCA 401 at para [16]. Actual violence is not an element of robbery and as a result it is not an error to take this into account as an aggravating factor: Hamze [2006] NSWCCA 36.
Similarly, for an offence of malicious wounding with intent, it is an error to treat as an aggravating factor the simple fact that the offence involved actual violence: Cramp [2004] NSWCCA 264 at paras [20], [53]- [58].
Similarly, when the offence charged is malicious wounding with intent to do grievous bodily harm, it is an error to treat as an aggravating factor the simple fact that there has been actual use of violence: King (2004) 150 A Crim R 409 at para [94].
The 'actual or threatened use of violence' should not be treated as an aggravating factor in a manslaughter case where the Crown is relying on unlawful and dangerous act as the basis of liability: Wilson (2005) 62 NSWLR 346 at para [43].
For 'violence' to be an aggravating factor there must be violence towards a person, not just property: Makrynikos [2006] NSWCCA 170 esp at para [72].
(c) 'the offence involved the actual or threatened use of a weapon'
A sentencing judge should not treat the simple fact of the actual or threatened use of a weapon as an aggravating factor for an offence where the actual or threatened use of a weapon is an element of the offence, such as armed robbery: Mohamadin [2004] NSWCCA 401 at para [16], Hernando [2005] NSWCCCA 59 at paras [16] to [19], and House [2005] NSWCCA 88 at para [11].
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
Although 'a record of previous convictions' is included in the list of 'aggravating factors', it has been held that it is an error to treat a prior criminal record as a factor which aggravates the offence.
At common law, the question of how the prior criminal record of an offender could be used by a sentencing judge was considered by the High Court in Veen v The Queen (no. 2) (1988) 164 CLR 465. The effect of this decision was summarised in Shankley [2003] NSWCCA 253 (per Howie J, at para [31]):
The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that “retribution, deterrence and protection of society may indicate a more severe sentence is warranted”.
As a result of the application of s. 21A(4), it has been held that this principle still applies: Johnson [2004] NSWCCA 76 at para [35], Wickham [2004] NSWCCA 193 at para [24], and Darrell Terry McNaughton [2006] NSWCCA 242
It has been held that the effect of Veen (no. 2) is that the objective circumstances set the upper boundary of a proportionate sentence for an offence, which circumstances do not include prior convictions. However the criminal record of the offender is relevant to where within the boundaries set by the objective circumstances the sentence for the offender should fall: Darrell Terry McNaughton [2006] NSWCCA 242 esp at para [24] and [26].
Initially it was held that it was an error to treat as an aggravating factor the fact that the offender has a record of previous convictions: Blair (2005) 152 A Crim R 462 at paras [51] to [53], Tidona [2005] NSWCCA 410 at paras [43] to [45]. However this line of authority was overturned by a 5 judge bench of the CCA in Darrell Terry McNaughton [2006] NSWCCA 242
A section 10 discharge is not to be treated as a previous conviction: Price [2005] NSWCCA 285 at paras [35] to [36].
The phrase 'serious personal violence offence' is defined to mean an offence of personal violence (within the meaning of s. 562 Crimes Act) carrying a maximum penalty of 5 years or more: s. 21 A (6) Crimes (Sentencing Procedure) Act.
(e) 'the offence was committed in company'
A sentencing judge should not take into account the simple fact that an offence was committed in company as an aggravating factor if it is an element of the offence that the offence was committed in company. For example, in a case of robbery in company, it will be an error to treat as an error the fact that an offence was committed in company as an aggravating factor for the offence of robbery in company: Mohamadin [2004] NSWCCA 401 at para [16], Davis [2004] NSWCCA 310 at paras [15] to [19], DBN [2005] NSWCCA 435 at para [26], Hamze [2006] NSWCCA 36 esp at para [37].
(f) 'the offence involved gratuitous cruelty'
It has been suggested that gratuitous cruelty is not involved in offences where awareness of the mere possibility of injury is involved as distinct from offences involving deliberate, calculated torture or where the type or degree of harm is part of the offender's desire to degrade or humiliate the victim: Smith [2005] NSWCCA 286 at para [37].
(g) 'the injury, emotional harm, loss or damage caused by the offence was substantial'
A sentencing judge should not take into account the simple fact of the injury of the victim as an aggravating factor if it is an element of the offence. In a manslaughter case, the sentencing judge should not treat the death of the victim or grievous bodily harm as an aggravating factor Williams [2005] NSWCCA 99 at paras [34] to [38], Tzanis [2005] NSWCCA 274 at paras [9] to [18]. The same applies in cases occasioning actual bodily harm: Murphy [2005] NSWCCA 182 at paras [23] to [24]. The same applies in cases of dangerous driving occasioning death (Vale [2004] NSWCCA 469 at para [33], Berg [2004] NSWCCA 300 at para [30]).
For 'substantial emotional harm' to be taken into account as an aggravating factor, there must be evidence that the there was an emotional response significantly more deleterious than that which any ordinary person would have when subjected to this offence: Youkhana [2004] NSWCCA 412 esp at para [26], Solomon(2005) 153 A Crim R 32 at para [19], Moore [2005] NSWCCA 407 at paras [28] to [30].
(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)'
Being motivated by racial hatred does not include a stereotyped belief that certain ethnic groups might have more money at home to steal: Aslett [2006] NSWCCA 49 at paras [123] to [124].
(i) 'without regard to public safety'
A sentencing judge should not take into account the simple fact of an offence having been committed without regard to public safety if that disregard for public safety is an element of the offence, for example in dangerous driving occasioning death: McMillan [2005] NSWCCA 28 esp at paras [38] to [39], but note Ancuta [2005] NSWCCA 275 at para [12].
There have been conflicting decisions on the question of whether, where a drug dealer selling drugs to an undercover police officer, the offence is aggravated by acting without regard to public safety. In Way (2004) 60 NSWLR 168 at para [172] the NSW CCA said it could be an aggravating factor, but in Ancuta [2005] NSWCCA 275 it said the opposite (at para [11]).
Where the only person whose safety is endangered is the actual victim of the offence, 'acting without regard to the public safety' should not be treated as an aggravating offence: Chisari [2006] NSWCCA 19 esp at para [28].
(j) the offence was committed whilst the offender was on conditional liberty
A offender being on 'conditional liberty' has been held to include an offender serving a community service order (Cicekdag [2004] 150 A Crim R 299 at para [53]).
(k) the offender abused a position of trust or authority in relation to the victim
It has been held that this aggravating factor does not apply when a virtual stranger to the victim does not commit an offence in earlier encounters with the victim: MMK [2005] NSWCCA 369 at paras [98] to [103].
(l) 'the victim was vulnerable'
Section 21A(2) makes it an aggravating factor if 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)'.
A sentencing judge should not treat the simple fact that the victim was vulnerable as an aggravating factor if that vulnerability is an element of the offence. Thus the offender has been convicted of the offence of sexually assaulting a person with an intellectual disability, the judge will be in error if he treats the disability of the victim as a further aggravating factor: Wickham [2004] NSWCCA 193 esp at paras [22] and [32]. Although the bare fact of vulnerability should not be taken into account as an aggravating factor if it is an element of the offence (Boulad [2005] NSWCCA 289), the extent of the vulnerability (for example how much the victim of a child sexual assault was under the age of consent) can be: Pearson [2005] NSWCCA 116 at paras [23] to [37], JTAC [2005] NSWCCA 345 esp at para [9].
The 'vulnerability' of victims refers to the vulnerability of particular victims, as by age or occupation, not the vulnerability of all members of the community to people like false pretenders: Tadrosse [2005] NSWCCA 145 at para [26]. In a case of a person drug dealing, it is an error to treat as an aggravating factor that potentially some of the buyers may have been vulnerable, because that is true of every offence of supply heroin: Ancuta [2005] NSWCCA 275 at paras [13] to [14]. It was held that it was an error to treat the 'vulnerability' of the victim in a manslaughter case simply because she was not, like the offender, a powerful man with violent tendencies: Williams [2005] NSWCCA 99 at paras [40] to [41].
(m) 'multiple victims or a series of criminal acts'
The aggravating factor of 'multiple victims' only applies if there are multiple victims/acts for a single offence. It does not apply where an offender is being sentenced for a number of offences, each with a different victim: Tadrosse [2005] NSWCCA 145 at para [28] to [29], Janceski [2005] NSWCCA 288 at para [22], Kilpatrick [2005] NSWCCA 351 at para [17], Aslett [2006] NSWCCA 49 at para [125], Tzanis [2005] NSWCCA 274 at para [19], McCabe [2006] NSWCCA 160 at para [25]. Similarly it does not apply where charges are being taken into account on a Form One, because that involves double counting: Hamze [2006] NSWCCA 36 at paras [48] to [49].
(n) 'the offence was part of a planned or organized criminal activity'
The fact there was 'a level of planning' in the commission of an offence does not necessarily mean that this aggravating factor applies: Fahs [2007] NSWCCA 26 at para [21].
Mitigating Factors Under s. 21A
Under s. 21A the following mitigating factors are to be taken into account
(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 organized criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offenders 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).
Again, please note the list is not exhaustive: s. 21A (2).
These aggarvating factors are for the most part considered below under the heading 'Subjective Factors'.
Approach to Sentencing.
One of the main purposes of punishment is to protect the public. A court (it is said) is weakly
merciful if it does not impose a sentence commensurate with the seriousness of the
crime. The subjective circumstances are important but are necessarily subordinate:
Radich [1954] NZLR 86, approved in Rushby [1977] 1 NSWLR 594. This also applies to
Commonwealth matters: El Kahari (1990) 51 A Crim R 123.
Preventative Detention.
It is not permissible to impose a sentence beyond what is appropriate merely to protect
society, but protection of society is a matter which can be taken into account in
determining the appropriate sentence: Veen v The Queen (no. 2) (1988) 164 CLR 465 at 473.
The Facts.
A plea of guilty is to the essential elements of the offence only: Medcraft (1992)
60 A Crim R 181. Aggravating circumstances may not be taken into account when they
amount to commission of a more serious offence of which the accused has not been
convicted: De Simoni (1981) 147 CLR 383, 5 A Crim R 329,
Chow (1992) 63 A Crim R 316.
Agreed Facts
The judge is not bound to accept 'agreed facts' (that is, facts to which both the Crown and the defence have agreed), nor to an agreed basis of sentencing: Altham (1992) 62 A Crim R 126, GAS and SJK [2004] HCA 22 at para [30]. However, if the judge intends to sentence the accused on a different basis to that in the agreed facts, he/she should advise the accused to give the accused the opportunity to address this by evidence or otherwise: Uzabeaga (2000) 119 A Crim R 452. This also applies if the Crown makes a concession about the facts: Mohamad [2005] NSWCCA 406 esp at para [14].
An agreement between the Crown and the representatives of the offender about the appropriate non-parole period does not bind the sentencing judge although it is a relevant consideration: Ahmad v Regina [2006] NSWCCA 177 esp at para [23].
In FV [2006] NSWCCA 237 it was argued that where there are 'agreed facts', neither party can tender material contradicting those agreed facts, because of s. 191 Evidence Act. This argument was rejected because unless the court so orders, the Evidence Act does not apply in sentencing proceedings: s. 4(2) Evidence Act.
The High Court has recommended that if there is an agreement between the parties as to the basis of a plea, that agreement should be reduced to writing to avoid the risk of misunderstandings occurring: GAS and SJK [2004] HCA 22 at paras [42] to [44].
The agreed facts should not contain facts consistent with an offence more serious than that pleaded to: Palu (2002) 134 A Crim R 174 at para [21]. If agreed facts are tendered, material should not be tendered which contradicts the agreed facts: Palu (2002) 134 A Crim R 174 at para [21], Barri [2004] NSWCCA 221 at paras [57] to [58], Falls [2004] NSWCCA 335 at para [39].
If the judge intends to sentence the accused on a different basis to that expressed in the agreed facts, the accused should be given an opportunity to withdraw his plea: Chow v DPP (1992) 28 NSWLR 593.
If an accused in a joint trial pleads on the basis of agreed facts, and later evidence is called in the trial against his former co-accused outside those facts, this later material cannot be used by the judge in sentencing the accused who pleaded: Perrin [2006] NSWCCA 64. Similarly, in sentence proceedings the evidence of a co-offender on sentence cannot be used against an offender unless that offender was present when the co-offender gave evidence and had the opportunity to cross-examine the co-offender: Le v Regina [2007] NSWCCA 330.
Aggravating and Mitigating Factors.
Proof of aggravating factors is beyond reasonable doubt, proof of mitigating factors
is on the balance of probabilities: Amiouni (6/3/90 u/r), Traiconi, O'Neill (1979)
2 NSWLR 582, Martin [1981] 1 NSWLR 640, Storey (1996) 89 A Crim R 519 (Vic CCA ),
Anderson (1993) 177 CLR 520, 67 A Crim R 582 and
Olbrich (1999) 199 CLR 270, 73 ALJR 1550.
Proof of Dangerousness
In Victoria it was held that an example
of an aggravating factor is the risk that the accused will re-offend: Pickard (Victorian
CCA 28/9/98, (1998) 5 Crim LN [927]). However it has been suggested in NSW that it is not necessary for the prosecution to prove the risk of reoffending even on the balance of probabilities: McNamara [2004] NSWCCA 42 esp at para [28]
Proof in Sentencing.
At common law, in sentence proceedings the rules of evidence applied: Traiconi (1990)
49 A Crim R 417. In particular the depositions were inadmissible unless consented
to: Chow (1992) 63 A Crim R 316. However, under s. 4(2) Evidence Act, the law of
evidence only applies in sentence proceedings if the court so directs. Such a direction
must be given if a party to the proceedings requests and if in the courts opinion
the fact is or will be significant in determining the sentence: s. 4(3). This unfortunate change
to the common law leaves a real question about what rules do apply when a direction
is not made (that is, does the common law of evidence apply, or are there no rules
at all ?) It has been held that if no direction is made, the common law rules of
evidence apply if there is a dispute: Bourchas (2002) 133 A Crim R 413 esp at para [55].
Convictions must be proved by admission or by a certificate under s. 178 of the Evidence Act: Postiglione
(1992) 57 A Crim R 301.
Expert Witnesses.
Statements of the offender in pre-sentence reports and reports of psychologists and psychiatrists are admissible as evidence of the truth of those statements, but technically have limited weight if the offender is not called: Quatami [2001] NSWCCA 353, and Palu (2002) 134 A Crim R 174 at para [40]. By no means by reference to these cases, is it suggested that there is anything wrong with relying on what the offender has said to various experts, in a case where calling the offender would expose him to questions in cross-examination which he could not satisfactorily answer.
If the Crown does not object to hearsay documents tendered by the offender setting out important material (such as the offender's account of the offence, or contrition), and the Crown does not either object to that material or submit that the material should be given limited weight, it may not be open to the Crown on appeal to complain that too much weight was given to that material: Elfar [2003] NSWCCA 358 at paras [26] to [29].
The evidence of a criminologist is probably inadmissible in sentence proceedings: Moore (1998) 5 Crim LN [852].
Sentencing Statistics
Sentencing statistics may be useful in determining whether
a sentence is manifestly excessive or manifestly inadequate, but less so if there
is only a small sample, or if individual instances of the offence vary greatly, as
in manslaughter: Bloomfield (1998) 101 A Crim R 404.
Maximum Penalties.
Sentences that approach the maximum should only be imposed when the offence comes
close to the worst of its type: Ibbs (1987) 163 CLR 447, 27 A Crim R 465,
Saffron (no. 3) (1988) 39 A Crim R 123.
Failure of the sentencing judge to refer to the maximum penalty is not of itself
an error of law: Moon (2000) 117 A Crim R 497. If the sentencing judge incorrectly states the maximum penalty, that is an appellable error, but it may not necessarily lead to the sentence being reduced: Smith v Regina [2007] NSWCCA 138.
Totality.
Where a single judge sentences a prisoner on a number of matters, at the end the
judge should look at the total to ensure that the result is appropriate. The sentence
may be adjusted down by making the sentences wholly or partly concurrent or by lowering
individual sentences: Mill (1988) 166 CLR 59, 36 A Crim R 468
at 470, Todd [1982] 2 NSWLR 517, Holder & Johnson [1983] 3 NSWLR 245. The High
Court in Pearce (1998) 194 CLR 610, 72 ALJR 1416
did not change the law to prohibit lowering individual sentences as a means of achieving
totality: Johnson [2004] HCA 15.
The principle of totality applies even if the crimes are not all for connected and contemporaneous offences: Close (1993) 65 A Crim R 55 at 59. If the offences all arise out of the same enterprise, as a matter of practice the sentences will normally be concurrent: Wilkins (1988) 38 A Crim R 445 at 449.
The sentencing judge is required to first fix an appropriate
sentence for each offence and then consider questions of accumulation, concurrence,
and totality: Pearce (1998) 194 CLR 610, 72 ALJR 1416, AEM [2002] NSWCCA 58. It is not
appropriate to artificially increase the sentence for one offence to take into account
totality: Pearce (1998) 194 CLR 610, 72 ALJR 1416, A [1999] NSWCCA 61, Hammoud (2000) 118 A Crim R 66, Carter [2001] NSWCCA 245 para [20].
It is also not appropriate to select a single sentence appropriate for the total
criminality, and impose that sentence for each count: Lemene (2000) 118 A Crim R 131, Tomich (2002) 127 A Crim R 234 esp at para [4].
Where a person has been sentenced in other jurisdictions, should be sentenced as
if sentencing for all the matters at the same time: Mill, MacDonald (1991) 52 A Crim
R 349, Matthews (1991) 56 A Crim R 23.
Parity
It is desirable that people who have committed the same offence with similar backgrounds
should receive the same sentence: Lowe (1984) 154 CLR 606. If the
disparity is such as to leave one co-offender with a 'legitimate sense of grievance',
an appeal court may intervene: Lowe (1984) 154 CLR 606. For an appellate to intervene and correct a sentence, there must be marked, not just mere, disparity: Salcedo [2004] NSWCCA 430. However
the principle will not extend to requiring a sentence to be reduced to a level where
it is inadequate: Tisalandis (1982) 2 NSWLR 430.
Parity will apply to assist even the first offender to be sentenced: Jones (1993) 67 ALJR 376. Parity applies even if there are different charges arising out of the same incident (Robertson (1994) PD [54]) or if the more culpable co-accused gets a longer sentence (Bridges (1996) PD [20]). The principle applies even if different sentences are required because of differences in culpability or the prisoners' different circumstances: Postiglione (1995-6) 189 CLR 295, (1997) 71 ALJR 875.
Parity may not apply where the offenders hae been convicted of different offences: Formosa [2005] NSWCCA 363 esp at para [40].
The Crown should supply the remarks of the judge sentencing the co-accused: Brindley (1993) 66 A Crim R 204.
The principle of parity is not a principle that can be used by the Crown to argue, either at first instance or on appeal, that the offender must receive a higher sentence because of the sentence imposed on his co-offenders (Moore and Wiebe NSWCCA 11/8/1992), Radloff (1996)