13/. Sentencing


Last updated 27 June 2017


(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 option of periodic detention has been replaced with the intensive correction order.

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.Where

Where the has been a dismissal under
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.


Fines

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, s. 16C Commonwealth Crimes 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) (c2) 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 174 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. There appears to be no power to impose a fine combined with a community service order.

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.

Where an application is made to revoke a community service order, the court can revoke the community service order and deal with the matter as if a community service order had not been imposed: s. 115 (3) Crimes (Administration of Sentences) Act. There is no presumption that failure to perfrom a community service order leads to a prison sentence nor any mathematical formula to convert unperformed community service orders into prison sentences: Bonsu v Regina [2009] NSWCCA 316 esp at para [14].

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], Asplund v Regina [2014] NSWCCA 237 esp at para [48].

Where a court is dealing with an offender charged with an offence on indictment (that is, in the District or Supreme Court), the Court impose a fine not exceeding 1000 penalty units (currently $10, 000) in addition to any other penalty: s. 15 Crimes (Sentencing Procedure) Act.

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, Regina v Egan [2013] NSWCCA 196 at para [81].

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 cannot be backdated: Pulitano v Regina [2010] NSWCCA 45.

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) 168 A Crim R 379. .

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 intensive correction order: s. 99(1)(c) Crimes (Sentencing Procedure) Act. The sentence commences when the suspended sentence is revoked: Regina v Graham (2004) 62 NSWLR 252. 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.

Intensive correction orders

Where a court has determined to sentence a person for a total sentence of no more than 2 years, the court may order that the person serves the sentence by way of intensive correction order: s. 7 Crimes (Sentencing Procedure) Act. In such a case, the Court is not to impose a non-parole period.

Amendments to the Act 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 intensive correction orderdetention: Wegener [1999] NSWCCA 405.

It was held in Regina v Boughen and Cameron [2012] NSWCCA 17 that intensive correction orders are intended for offenders requiring rehabilitation, not offenders unlikely to ever re-offend. However a 5 judge bench of the CCA has decided that there is no such limitation on intensive correction orders and that in particular they can be imposed on white collar criminals: Regina v Pogson, Lapham and Martin [2012] NSWCCA 225.

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) 171 A Crim R 407. See also MJ v Regina [2013] NSWCCA 250.

Sentencing in the Local Court

Where an offender is sentenced in the Local Court either for a summary matter or for an indictable matter dealt with summarily, the maximum penalty which the Local Court can impose is 2 years (s. 267 and s. 268 Criminal Procedure Act). A Local Court may not impose a sentence cumulatively on an existing sentence if the entire sentence would end up being longer than 5 years. There is an exception for assaulting prison officers or escape lawful custody where the existing sentence was imposed by a court other than the Local Court: s. 58 Crimes (Sentencing Procedure) Act. The 2 year limit is a jurisdictional one only, and the maximum penalty for the offence remains that set out for the substantive offence, so that the argument that a sentence of 2 years in the Local Court is reserved for the worst class of case was rejected in Regina v Doan (2000) 50 NSWLR 115.

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 (parole period) not yet served: Killick (2002) 127 A Crim R 273, Arnold (1993) 65 A Crim R 337. It should not be imposed cumulatively on the end of the parole period where parole has not been revoked: Aiken v Regina [2011] NSWCCA 208.

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 matter later 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) 145 A Crim R 361, Regina v Wiggins [2010] NSWCCA 30. However, it is not obligatory for a sentencing judge to backdate the sentence to take into account pre-sentence custody as long as it is clear that the broken period of pre-sentence custody is taken into account: Starmer [2008] NSWCCA 27. A suspended sentence cannot be backdated although pre-sentence custody can be taken into account: Pulitano v Regina [2010] NSWCCA 45.The court is not required to take into account periods of pre-sentence custody not referrable to the offences for which the offender is to be sentenced, even if the offender was not convicted for the offences referrable to that period in custody: Hampton v Regina [2014] NSWCCA 131 (a decision of a 5 judge bench of the CCA), however see Hamilton v Regina [2016] NSWCCA 59 esp at para [16].

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, or a date in between: Regina v Callaghan (2006) 160 A Crim R 145, Regina v Holloway [2016] NSWCCA 166 esp at para [32]. The discretion is more likely to be exercised in favour of commencing 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

For most offences the court may set a non-parole period, or may decline to do so. However, a non-parole period must be set when the offence is one for which there is a standard non-parole period: s. 45 Crimes (Sentencing Procedure) Act, SGJ v Regina; KU v Regina [2008] NSWCCA 258. 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], Anjoul v Regina [2014] NSWCCA 234 esp at para [38].

Where a sentencing judge erroneously imposes a fixed term for an offence with a standard non-parole period, and the Court of Criminal Appeal comes to resentencing, the Court has discretion whether to treat the fixed term as representing the head sentence or the non-parole period: Alvi v Regina [2014] NSWCCA 191.

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]. The finding of special ccircumstances should not be used to lengthen the head sentence beyond what is otherwise appropriate: Kentwell v Regina (No. 2) [2015] NSWCCA 96 esp at para [34]. 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. Where the sentence is more than 3 years, the judge does not have a power to make a parole order (including conditions on parole: Regina v Muldrock [2010] NSWCCA 106 esp at para [21]. It appears that an there is court ordered parole on all sentences of 3 years or less, even if the sentence is imposed on another sentence so the overall sentence is more than 3 years: Cross v Regina (no. 2) [2012] NSWCCA 234 esp at paras [4] and [5].

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. Where a sentencing judge imposes a non-parole period of more than 3/4 of the head sentence, either in an individual or (it would seem) an overall sentence, error may be established on an appeal if no reasons are given : Dunn v Regina [2007] NSWCCA 312, Wakefield v Regina [2010] NSWCCA 12 esp at para [26], Etchell v Regina [2010] NSWCCA 262 esp at para [32]. It should be noted that the appeal was allowed in Wakefield where the overall non-parole period was 80% of the overall head sentence (Wakefield at para [26]). Similarly when a non-parole period which was 82% of the head sentence was imposed, with no explanation, the CCA found error: Briggs v Regina [2010] NSWCCA 250 esp at para [29]. In Maglis v Regina [2010] NSWCCA 247 a judge imposed cumulative sentences resulting in an overall sentence with a non-parole period of 80% of the total, without explanation, and error was found. However if the judge gives reasons for the longer than usual non-period, no error will be established: Regina v Russell [2010] NSWCCA 248, AB v Regina [2014] NSWCCA 31. However, if no reasons are given, it may demonstrate error: Regina v Nightingale [2005] NSWCCA 147 esp at paras [41] to [46].

Where the sentencing judge finds special circumstances but imposes an overall sentence where the overall non-parole period is only slightly less than 75% of the head sentence, error may have been established: Dawson [2013] NSWCCA 61 esp at paras [45] to [49], El-Ahmad v Regina [2015] NSWCCA 65 esp at para [50], MD v Regina [2015] NSWCCA 37.

At one stage it was held that if the judge does not explain why he or she 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 Conditions

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

Standard non-parole periods were introduced in February 2003. For a number of offences a 'standard non-parole period' was introduced. The legislation stated that a court 'is to set the standard non-parole period unless the court determines that are reasons for setting a non-parole period that is shorter or longer than the standard non-parole period': s. 54B (2) Crimes (Sentencing Procedure) Act.

It was thought that the effect of this provision was authoratively decided by the NSW Court of Criminal Appeal in Regina v Way (2004) 60 NSWLR 168. However nearly everything in Regina v Way has been overturned by a decision 7 years later of Muldrock v The Queen (2011) 244 CLR 120, (2011) 85 ALJR 1154, [2011] HCA 39.

Regina v Way decided that in sentencing for a standard non-parole offence, the sentencing judge needed to first determine what is an abstract offence of the midrange of seriousness (see paras [74] to [76]), and then determine where the offence for which the offender was being sentence lay in relation to this hypothetical offence. In cases decided after Regina v Way the Court went as far as saying that it was necessary for the sentencing judge to specify the degree to which the offence fell above or below the mid range of objective seriousness. As a result of Muldrock, this is no longer necessary: Beveridge v Regina [2011] NSWCCA 249 esp at para [18]. However, it is not an error for a sentencing judge to make an assessment of the objective gravity of an offence prior to sentencing: Ramea v Regina [2013] NSWCCA 310 esp at para [25].

The High Court in Muldrock v The Queen (at para [28]) rejected the idea that sentencing judges were required to hypothesise an abstract offence, or to compare the objective seriousness of the offence for which the offender is being sentenced with this abstract offence. The Court of Criminal Appeal has accepted that the decision of the High Court in Muldrock has 'weakened the link between the standard non-parole period and the sentence imposed in a particular case' and 'diminished the role to be accorded to the standard non-parole period': see Regina v Koloamatangi [2011] NSWCCA 288 at paras [18] and [19]. In Regina v Koloamatangi the Court of Criminal Appeal said that it was not clear if the court was required to, or permitted to, or prohibited from classifying the offence as being in the low, middle or high range of objective seriousness (at para [19], see also Butler v Regina [2012] NSWCCA 23 esp at para [23], Regina v Martin [2013] NSWCCA 24 at para [38]). Probably the better view is that the court is not required to, but may, so classify the offence for which the offender is to be sentenced. The CCA has said that it is still necessary for the sentencing judge to consider the objective gravity of the offence, and the moral culpability of the offender, but commented that the High Court has left 'somewhat opaque' the meaning of the term 'objective seriousness': Zreika v Regina [2012] NSWCCA 44 at para [47].

It has been held that after Muldrock v The Queen it is still permissible to refer to the standard non-parole period as a guideline or yardstick to which regard should be had: Butler v Regina [2012] NSWCCA 23 at para [24], and Regina v Koloamatangi [2011] NSWCCA 288 at para [21]. However, there will be error where the sentencing judge 'tethered himself to the standard non-parole period as a mandatory starting point, and, failing to identify reasons for moving away from it, remained too close to the post': PK v Regina [2012] NSWCCA 263 at para [52].

In Regina v Way the NSW CCA said that matters personal to the offender such as motivation and mental illness or intellectual disability could be taken into account in assessing the objective gravity of the offence (see esp para [86]). This approach appears to have been rejected in Muldrock v The Queen, see esp para [27]. There have been conflicting views about this: see the discussion in Yang v Regina [2012] NSWCCA 49 esp at paras [29] to [37]. The better view appears to be that where matters personal to the defendant are causally related to the commission of the offence (for example, the offender's mental state at the time of the offence (as in McLaren v Regina [2012] NSWCCA 284 esp at para [29] and Subramaniam v Regina [2013] NSWCCA 159 esp at paras [56] to [58]), provocation (as in Regina v Williams [2012] NSWCCA 172 esp at para [42]), or intoxication, or the influence of drugs, or mental illness, at the time of the offence) those factors can be taken into account in the assessment of the objective gravity of the offence, but not otherwise. Objective seriousness does not take into account an offender's prior criminal record: McCabe v Regina [2016] NSWCCA 7 esp at para [15].

Where there is a standard non-parole period for an offence, the judge must give reasons if a non-custodial sentence is to be imposed: s. 54C Crimes (Sentencing Procedure) Act.

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. That is because of the primacy of the head sentence in the sentencing process: Dolman v Regina [2010] NSWCCA 137 esp at paras [16] to [17].

It is an error to take into account the standard non-parole period for offences committed before 1 February 2003: Ohar (2004) 59 NSWLR 596, Wilkinson [2004] NSWCCA 468 at para [26]. It is not clear if the standard non-parole period applies to offences of aiding and abetting offences which have a standard non-parole period: SAT v Regina [2009] NSWCCA 172. The standard non-parole period does not apply to offences of attempting to commit a standard non-parole period offence (DAC v Regina [2006] NSWCCA 265) or conspiring to commit such an offence: Diesing v Regina [2007] NSWCCA 326.

Very importantly, the standard non-parole period does not apply if the offender was under 18 at the time when the offence was committed: s. 54D (3) Crimes (Sentencing Procedure) Act. A reference by a judge sentencing a child under 18 to the standard non-parole period as a guide (BP v Regina [2010] NSWCCA 159 esp at para [39]) and at least is ' troubling': AE v Regina [2010] NSWCCA 203 esp at para [23].

Where an offence does not carry a standard non-parole period it is unnecessary and 'likely to lead to confusion and misinterpretation' to make detailed findings about whether the offence falls to be assessed compared to the midrange of objective seriousness: Georgopolous [2010] NSWCCA 246 esp at para [30], Dagdanasar v Regina [2010] NSWCCA 310 esp at para [26]. However it was held in Kertai v Regina [2013] NSWCCA 252 that a finding of where the objective gravity of the offence fell in relation to the mid range of objective gravity was not necessarily an error (see esp paras [25] to [26]).

Assessment of the objective gravity of an offence (where there is no standard non-parole period) as above or below the midrange of objective seriousness may be an error: Khoury v Regina [2011] NSWCCA 118, Hunter v Regina [2011] NSWCCA 141 esp at [45].

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:

The CCA has said that it is doubtful that the fact that a person will be serving his or her first prison sentence for that reason alone justifies a finding of special circumstances: Regina v Clarke [2009] NSWCCA 49 esp at para [12], Collier v Regina [2012] NSWCCA 213. There has recently been a considerable tightening up in what the CCA is prepared to recognize as special circumstances.

Where there are a number of sentences imposed, and the overall sentence produces a non-parole period which is more than 75% of the head sentence, if no reasons are given, error may have been established: Flynn v Regina [2010] NSWCCA 171 esp at para [44]. This will especially be the case if the judge finds special circumstances : Maglis v Regina [2010] NSWCCA 247. In Barret v Regina [2011] NSWCCA 211 where the sentencing judge found no special circumstances but imposed an overall non-parole period which was 83% of the head sentence the CCA found that there was error. In Mattar v Regina [2012] NSWCCA 98 where the judge imposed cumulative sentences producing an overall head sentence with an overall non-parole period of 90% of the head sentence, error was established (see esp. para [25]).

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. The CCA has pointed out that it will be a rare case in which there is no fact which could not as a matter of law constitute special circumstances: Regina v Simpson (2001) 53 NSWLR 704 esp at para [73].

'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.

The fact that the offences were committed whilst the offender was on bail is irrelevant to the existance of special circumstances: Bellchambers v Regina [2011] NSWCCA 131.

Once a finding of special circumstances has been made, the sentencing judge has a discretion as to the ratio between the non-parole period which the CCA will not readily interfere with: Chen v Regina [2011] NSWCCA 85 especially at [47] to [50], Kwon v Regina [2011] NSWCCA 58 esp at para [44]. However, if the sentencing judge only makes a reduction of the non-parole period in theorder of a few weeks, it has been held that the reduction makes amockery of the finding of special circumstances: El-Hamad v Regina [2015] NSWCCA 65 esp at para [50].

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. See also Giotas v Regina [2008] NSWCCA 287.

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) A Crim R 326. Where wholly concurrent sentences are imposed for distinct and separate crimes, the explanation for the concurrence must be compelling: Regina v Booth [2014] NSWCCA 156 esp at para [36].

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. It will rarely be appropriate to impose wholly concurrent sentences where there are more than one victim: Regina v Price [2004] NSWCCA 186 at para [49], Gommeson [2014] NSWCCA 159 esp at para [100].

It has been said that the critical issue is whether the sentence for one offence can comprehend and reflect the criminality of the other. If it can, the sentences ought to be concurrent; if not they should be cumulative: Cahyadi (2007) 168 A Crim R 41 esp at [27]. 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]).

It is an error for a sentencing judge to determine the overall sentence, and then to determine the sentences for individual counts: Finnigan v Regina [2013] NSWCCA 177 esp at para [33].

The fact that an offence has a Form One matter taken into account is not relevant to whether or not an offence should be concurrnet or cumulative: Sparos v Regina [2013] NSWCCA 223 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: Regina v MMK (2006) 164 A Crim R 481 esp at para [14]. The severity of a sentence increases at a greater rate than any increase in the length of the sentence, and courts need to consider that a very long sentence may be a crushing sentence in that it will leave the offender with a sense of hopelessness and destroys any expectation of a useful life after release: Regina v MAK and MSK (2006) 167 A Crim R 159 esp at paras [15] to [17]. See also Regina v WC [2008] NSWCCA 268.

In Regina v XX [2009] NSWCCA 115 the CCA set out the following summary of the principles relating to concurrent or cumulative sentences (at para [52]):

52 There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-

(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing.

(2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is “not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed” but his Honour observed that “this is not an inflexible rule” and “[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct”.

(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12].

(4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] 164 A Crim R 481 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253.

(5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27].

(6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Kennedy (supra) per Howie J at [27].

(7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.

(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at [38] that “… to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims …”


In Dunn (supra), the respondent to the Crown appeal had entered a guilty plea to an offence under s.51A of the Crimes Act 1900 of breaking and entering the dwelling house of a female, being armed with an offensive weapon, namely a knife with which he wounded the victim by inflicting three shallow lacerations to her neck. He also pleaded guilty to the offence of assaulting a male thereby occasioning actual bodily harm, that crime also occurring in the female’s home when the male victim attempted to protect her from the respondent.
On the appeal, the Crown submitted that the sentences should have been partially accumulated. Adams J (with whom Ipp JA and Sully J agreed) stated at [50] that there should have been some accumulation in the sentences to reflect the fact that the respondent had persisted in his violence when the male victim attempted, justifiably and lawfully, to restrain him:-


“… there is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent’s criminality considered as a whole.”

(9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13].

(10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of “deemed” supply: Luu v Regina [2008] NSWCCA 285 at [32].

(11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:-
“… The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed.” (Cahyadi (supra) at [26])

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) 127 A Crim R 273.

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) 160 A Crim R 145.

Aggregate sentencing

Section 53A Crimes (Sentencing Procedure) Act permits a sentencing judge to impose an aggregate sentence for multiple offences, but the sentencing judge is required to indicate the sentence which would have been imposed for each offence. See also Regina v Brown [2012] NSWCCA 199. The judge is not required to specify individual commencement dates for the indicative sentences (Cullen v Regina [2014] NSWCCA 162 esp at para [26]) or the extent of accumulation or concurrency between indicative sentences for individual offences ( McIntosh v Regina [2015] NSWCCA 184 esp at paras [136] to [137]). In McIntosh v Regina [2015] NSWCCA 184 Basten JA (with whom Wilson J agreed, Hidden J dissenting on this point) said that the indicative sentence should be the non-parole period (Basten JA at para [139], Hidden J at [173], Wilson J at [176]). Subsequently a differently constituted bench of the CCA has held unanimously that the indicative sentences should be the head sentences for the offences, not the non-parole periods: Dimian v Regina [2016] NSWCCA 223 esp at para [49].There is a requirement to specify an indicative non-parole period when the relevant offence has a standard non-parole period: s. 54B (4) Crimes (Sentencing Procedure) Act.

The indicative sentences should take into account the relevant discount for a plea of guilty: Sparkes v Regina [2015] NSWCCA 203 esp at para [24], JM v Regina [2014] NSWCCA 297 esp at para [39]. Where pleas are entered at different times for different offences, the sentencing judge should indicate the discount for each offence depending on the timing of the plea: Bao v Regina [2016] NSWCCA 16 esp at para [44]. The judge is required to make an assessment of the objective gravity of each offence: Franklin v Regina [2016] NSWCCA 319 esp at para [73].

It has been held to be an error to impose an aggregate sentence for unconnected offences where the overall sentence is the same as the sentence indicated for an individual offence: Regina v Rae [2013] NSWCCA 9 esp at para [45]. Related summary offences included on a certificate under s. 166 Criminal Procedure Act can be dealt with in an aggregate sentence: Regina v Price [2016] NSWCCA 50 esp at para [76].

In an appeal against an aggregate sentence, it is not enough to demonstrate that an individual indicative sentence is manifestly excessive or inadequate, unless it can also be demonstrated that the overall sentence is either manifestly excessive or inadequate: JM v Regina [2014] NSWCCA 297.

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], Bee forth (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% (see also Regina v Jones and Hili [2010] NSWCCA 108). 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. The High Court has said that it is an error to regard the range of 60 to 66% as a 'norm' or a 'starting point': Hili and Jones v The Queen [2010] HCA 45 esp at paras [36] and [44].

When considering comparable cases for a Commonwealth offence, the comparable cases should not be restricted to the state where the sentence is proceeding, but all jurisdictions in Australia: The Queen v Pham [2015] HCA 39 esp at para [27].

For certain Commonwealth offences (notably terrorism offences) there is a minimum non-parole period of 75% of the head sentences: 19AG Crimes Act.

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) 127 A Crim R 209. 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] 60 NSWLR 1.

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: Regina v Studenikin (2004) 60 NSWLR 1. '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) 146 A Crim R 121 at para [43]. However in Kevenaar (2004) 148 A Crim R 155 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) 61 NSWLR 63 Wood CJ at CL said that the view of Smart J was to be preferred. See also Bezan (2004) 147 A Crim R 430 .

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 was 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. Section 28 (4) Crimes (Sentencing Procedure) Act now states that a victim impact may on the application of the prosecutor and with the leave of the court be taken into account in determining the harm caused by the victim's death to the victim's immediate family.

Victims or relatives of victims may read out victim impact statements in court: s. 30A Crimes (Sentencing Procedure) Act.

It has been said that substantial weight cannot be given to victim impact statements in sentencing offenders because they are unsworn: Slack [2004] NSWCCA 128. However, in Aguirre v Regina [2010] NSWCCA 115 esp at para [77] it was held that an unsworn victim impact statement could be relied upon in order to find an aggravating feature of the offence. On the other hand, in EG v Regina [2015] NSWCCA 21 (esp at para [36]) and in Tuala v Regina [2015] NSWCCA 8 (esp at paras [80]-[81]) it was held that it was an error to find that there was harm to the victim well beyong what might be reasonable expected on the basis of a victim impact statement especially when it is unsupported by sworn evidence. On the current state of the authorities, it is probably good practice when a victim impact statement is tendered not to object to the tender but to point out that the victim impact is unsworn and not subject to cross-examination.

If the sentencing judge gives too much weight to the victim impact statement, error may be established on appeal: RP v Regina [2013] NSWCCA 192 esp at paras [25] to [30].

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).

Evidence of the offender

If the evidence of the offender is not challenged by the prosecution in cross-examination, and is not inherently implausible, the sentencing judge is not entitles to reject it without at least giving proper notice to the offender: O'Neil-Shaw v Regina [2010] NSWCCA 42 esp at paras [26] to [27].

Submissions

The High Court has recently held that the Crown is not required or permitted to make submissions about what is the appropriate range of sentences: Barbaro v The Queen [2014] HCA 2, esp at paras [3] to [8]. Arguably, this applies only to submissions about the length of sentences, not the type of sentence.

In an earlier case, it was held that if a judge makes an error about what the Crown has said is the appropriate range of sentences error may have been established: Maldonado v Regina [2009] NSWCCA 189.

Reasons for Sentence/ Remarks on Sentence

The primary purpose of remarks on sentence is to explain to the offender the reasons for that sentence, and to record those reasons. The recitation of authority is a secondary contribution to those purposes. The issue is whether or not the judge took into account the relevant considerations: Regina v Bell [2005] NSWCCA 81 esp at para [12].

The Court of Criminal Appeal has been reluctant to supplement the remarks on sentence with remarks made by a judge during submissions: Regina v Rossi-Murray [2009] NSWCCA 177 esp at para [43]. 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].

Judges are obliged to set out the objective circumstances of the offence: Jackson v Regina [2011] NSWCCA 124 esp at para [26].

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) 167 A Crim R 393 .

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. However the opposite view was expressed in TG v Regina [2010] NSWCCA 28 esp at para [25].

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. It appears that it is an error to take into account this provision in determining the sentence to be imposed: JM v Regina [2012] NSWCCA 83 esp at para [22].

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.

Section 43 applies to cases where the sentence imposed is in some way 'contrary to law', such as in cases where the sentence exceeds the maximum penalty, or where the penalty is in excess of the power of the sentencing court because some precondition (such as an aggravating factor or the existance of prior convictions) has not been met. It does not apply to cases where the sentence was reached by way of erroneous reasoning or factual error: Achurch v the Queen [2014] HCA 10. On an application under s. 43, new subjective material will not be admitted: Bungie and Bungie v Regina [2015] NSWCCA 9 esp at para [41].

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

The general approach to sentencing

The 'objective factors' are generally regarded as being the acts of the accused constituting the offence and the state of mind of the accused which accompanied those acts. The 'subjective factors' are factors not directly related to the facts of the case but personal to the offender: in particular age, criminal history, psychological and psychiatric history.


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 objective 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.

The purposes of sentencing

The purposes of sentencing are set out in s. 3A Crimes (Sentencing Procedure) Act:

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

General Deterrence

It is not an error for a sentencing judge not to specifically refer to general deterrence in the remarks on sentence: see Delaney v Regina, Regina v Delaney [2013] NSWCCA 150 esp at paras [85] to [88].

The role of the offender

Different views have been expressed about the significance of what the particular offender did in a joint enterprise. In Regina v Hoschke [2001] NSWCCA 317 Carruthers JA said that in a joint enterprise armed robbery it was inappropriate to attempt with any precision the role which each offender played (at para [18]). However in Regina v JW [2010] NSWCCA 49 Spigelman CJ said that it was always relevant to refer to the particular conduct of each participant to identify the level of culpability for which each offender is to be sentenced (at para [161]). Recently it was said that while each of the offenders is legally responsible for what all acts carried out in furtherance of the enterprise, it is necessary to refer to the particular conduct of each participant to identify the individual culpability: KR v Regina [2012] NSWCCA 32 esp at paras [18] to [19].

Aggravating factors under s. 21A generally

Section 21A Crimes (Sentencing Procedure) Act sets out aggravating factors for offences. 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.

The aggravating factors are only be taken into account if according to the ordinary principles of sentencing, they would aggravate the offence: Gore and Hunter v Regina [2010] NSWCCA 330 esp at paras [30] and [102].

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) 160 A Crim R 135 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].

It was held in a case of break and enter in circumstances of special aggravation, namely, reckless wounding case in circumstances of special aggravation (namely wounding), it was argued that the wounding could not be an aggravating feature because this was an element of the offence. This argument was rejected, but it is very difficult to understand why: Firbank v Regina [2011] NSWCCA 171 esp at paras [51] to [53].

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) 65 NSWLR 740 at para [22].

Where a judge takes into account 'vigilantism' or 'quasi-vigilantism' as an aggravating factor in a detain for advantage offence, error is established: Sorensen v Regina [2016] NSWCCA 54 esp at para [128].

(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] NSWCCA 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 Regina v Darrell Terry McNaughton (2006) 66 NSWLR 566.

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: Regina v Darrell Terry McNaughton (2006) 66 NSWLR 566 esp at para [24] and [26]. Objective seriousness does not take into account an offender's prior criminal record: McCabe v Regina [2016] NSWCCA 7 esp at para [15].

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 Regina v Darrell Terry McNaughton (2006) 66 NSWLR 566.

A section 10 discharge is not to be treated as a previous conviction: Price [2005] NSWCCA 285 at paras [35] to [36].

Where a person has been found guilty as a child of an offence, but no conviction has been recorded, and commits another offence, but has not committed another offence within 2 years before proceedings commenced for the subsequent offence, the earlier finding of guilt (with no conviction) is inadmissible in any sentencing proceedings for the later offence: s. 15 Children (Criminal Proceedings) Act, Siddiqui v Regina [2015] NSWCCA 169 esp at para [63].

The phrase 'serious personal violence offence' is defined to mean an offence of personal violence (within the meaning of s. 4 Crimes (Domestic and Personal Violence 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]. Similarly, where an offender is being sentenced for aiding and abetting in an aggravated robbery, it is an error to take into account the fact that the offence was committed in company as an aggravating factor: Kukovec v Regina [2014] NSWCCA 308.

The expession 'in company' in this provision has the same meaning as in common law, where it is used for example in 'robbery in company'. Relevant issues are whether or not the presence of the other person had a potential effect on the victim, by way of intimidation (for example), whether the presence of another person had the effect of offering suppport or encouragement to the offender, or whether a common purpose could be established: White v Regina [2016] NSWCCA 190 esp at paras [3] -[4], and [94].

It is also an error to take into account the fact that an offence was committed in company when that fact added no significant culpability to the offence: Gore and Hunter v Regina [2010] NSWCCA 330 esp at paras [30] and [101] to [102].

(ea) the offence was committed in the presence of a child under 18 years of age

For the Crown to establish this aggravating factor, the prosecution must establish that the child actually witnessed the events: Regina v McLaughlin [2013] NSWCCA 152 esp at paras [28] to [33].

This provision is principally aimed at the effect the commission of an offence, particularly an offence of violence, might have on the emotional well-being of a child: Gore and Hunter v Regina [2010] NSWCCA 330 esp at para [104].

(eb) the offence was committed in the home of the victim or any other person

Previously it had been held that this aggravating factor does not apply if the offence was committed in the victim's home if the offender also resides there: EK v Regina [2010] NSWCCA 199, (2010) 79 NSWLR 740, esp at para [79]. It did not apply where the offender is not an intruder in the house, but it lawfully in the house, for example, a baby-sitter: Ingham v Regina [2011] NSWCCA 88 esp at paras [7] and [112]. However it has now recently been held that where both the accused and the victim are living in the home where the offence is committed, the aggravating factor applies: Jonson v Regina [2016] NSWCCA 286 esp at para [50].

By majority, the NSW CCA held that the fact that a break and enter was committed in the home of the victim was an aggravating factor: Regina v Bennett [2014] NSWCCA 197 (per Simpson and Harrison JJ, Hall dissenting).

(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]. The expression 'gratuitous cruelty' suggests that the infliction of pain is an end in itself: McCullough v Regina [2009] NSWCCA 94. Possessing child pornography where the images involve cruelty does not mean that the offence is an offence of gratuitous cruelty: Saddler v Regina [2009] NSWCCA 83.

(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]).

Where the deceased in a case of aggravated dangerous driving occasioning death is pregnant, the death of the foetus is not an aggravating feature because the law regards the foetus as part of the mother: Regina v Hughes (2008) 185 A Crim R 155.

Where the only evidence of substantial harm ia a victim impact statement, or the victim's credibility is in question, considerable caution must be exercised before using the VIS to establish substantial harm: Regina v Tuala [2015] NSWCCA 8 esp at para [81].

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].

The offender is not ressponsible for harm which was not intended or could not have been reasonably intended: Regina v Wickham [2004] NSWCCA 193 esp at para [25], Josefski v Regina [2010] NSWCCA 41 esp at [4] and [39].

(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]. For the aggravating factor to apply there must be a relationship of trust between the victim and the offender, not simply that the victim trusted the offender: Suleman v Regina [2009] NSWCCA 70, Cowling v Regina [2015] NSWCCA 213 esp at para [10].

(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, RJA v Regina (2008) 185 A Crim R 178), 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) 65 NSWLR 740 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], Betts v Regina [2015] NSWCCA 39 esp at para [29]. Similarly it is an error to treat a victim as 'vulnerable' because he was unarmed: Regina v Nowak (2008) 183 A Crim R 526. It has been held that where taxi driver sexually assaults a drunken passenger that the vulnerability of the victim is an aggravating factor: Ali v Regina [2010] NSWCCA 35 .

It has been held that the fact that the complainant in a domestic violence case (in this case involving a stabbing) of an Aboriginal woman was not aggravated by her vulnerability in the absence of specific evidence of such vulnerability: Drew v Regina [2016] NSWCCA 310 esp at para [4].

(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) 65 NSWLR 740 at para [28] to [29], Janceski [2005] NSWCCA 288 at para [22], Kilpatrick (2005) 156 A Crim R 478 at para [17], Aslett [2006] NSWCCA 49 at para [125], Tzanis [2005] NSWCCA 274 at para [19], McCabe (2006) A Crim R 166 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]. The aggravating factor may arise even if there was only one offender: Hewitt [2007] NSWCCA 353 where cases on this aggravating factor are summarised at para [25]. The level of planning must exceed that which would ordinarily be expected in an offence of that kind: Knight v Regina [2010] NSWCCA 51. Downloading large amounts of pornography from the internet does not mean that the offence was part of a planned or organized criminal activity: Saddler v Regina [2009] NSWCCA 83.

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).

Some of these mitigating factors have in effect been discussed under the complementary aggravating factors: whether or not the injury to the victim was substantial (see ss. 21A (2) (g), 21A (3) (a)), and whether or not the offence was part of a planned or arganised criminal activity (s. 21A (2) (n), s. 21A (3) (b)),

The mitigating factors not related directly to the facts of the offence are for the most part considered below under the heading 'Subjective Factors'.

(d) the offender was acting under duress

Where there is evidence of duress of the offender falling a short of a defence, duress may be a mitigating factor, even in Commonwealth matters. Relevant factors are the form and duration of th criminal conduct, the nature of the threats made, and th opportunities the offender had to report the matter to the authorities: Tiknius v Regina [2011] NSWCCA 215 esp at para [49].

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 and De Simoni

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. Thus the principles in De Simoni do not apply when the aggravating circumstanceis maliciously inflicting grievous bodily harm, when malicious wounding is charged, because the two offences carry the same maximum penalty (Bourke v Regina [2010] NSWCCA 22 esp at para [48]).
However, the principles in The Queen v De Simoni do apply where offences with the same maximum penalties are imposed on co-offenders, but different standard non-parole periods apply: Cassidy v Regina [2012] NSWCCA 68.

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 v The Queen (2004) 217 CLR 198 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 offender will nortmally be bound by 'agreed facts' if his counsel consents to their tender as agreed facts: CL v Regina [2014] NSWCCA 196 esp at para [46].

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 v The Queen (2004) 217 CLR 198 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. At very least the judge should give the parties notice that he intends to sentence the offender on a basis other than that in the agreed facts: Govindaraju v Regina [2011] NSWCCA 25.

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.  Where the Crown has not proved an aggravating factor beyond reasonable doubt, and the offender has not proved an alternative favourable version on the balance of probabilities, the judge may proceed on the basis that it is not known which version is correct: Filippou v The Queen [2015] HCA 29 esp at para [69].

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].

Where the offender tenders documentary evidence which is not objected to and not subject to cross-examination, a judge should not reject that evidence without giving notice to the party tendering it: O'Neil-Shaw v Regina [2010] NSWCCA 42 esp at paras [26] to [27].

Where the offender gives evidence which is not challenged in cross-examination by the judge or the Crown, the judge should not reject it: Heath v Regina [2016] NSWCCA 24 esp at para [50].

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].

The opinions of psychiatrists should not be discounted or given less weight on the basis of matters not put to them in cross-examination: Devaney [2012] NSWCCA 285.

Sentencing Statistics and Patterns of Sentencing

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. Spigelman CJ (with whom the other judges of the Court of Criminal Appeal agreed) reviewed the cases about Judicial Commission statistics and concluded that:

The following points appear to emerge from these cases:

(i) The sentence to be imposed depends on the facts of each case and for that reason bald statistics are of limited use.

(ii) Statistics may be less useful than surveys of decided cases, which enable some detail of the specific circumstances to be set out for purposes of comparison.

(iii) Caution needs to be exercised in using sentencing statistics, but they may be of assistance in ensuring consistency in sentencing.

(iv) Statistics may provide an indication of general sentencing trends and standards.

(v) Statistics may indicate an appropriate range, particularly where a significant majority or a small minority fall within a particular range. Also when a particular form of sentence such as imprisonment is more or less likely to have been imposed.

(vi) Statistics may be useful in determining whether a sentence is manifestly excessive or manifestly inadequate.

(vii) Statistics are least likely to be useful where the circumstances of the individual instances of the offence vary greatly, such as manslaughter.

(viii) The larger the sample the more likely the statistics are likely to be useful.

Thus statistics for offences such as armed robbery may be 'indeed useful' because the sample of offenders is large: see McCarthy v Regina [2011] NSWCCA 64 esp at para [42].

In Regina v McIvor [2010] NSWCCA 7 Howie J said that even though he thought that the range of sentences for offences for multiple armed robberies was inadequate, the offender was entitled to be sentenced in accordance with the actual range of sentences being imposed (at para [17]). These remarks were approved in Moore v Regina [2010] NSWCCA 188 at para [48], but see Hampton v Regina [2010] NSWCCA 278 (per Hulme J).

The presentation of numerical tables and graphs of comparative sentences in sentencing appeals was said to be of limited use in Hili (2010) 242 CLR 520 esp at para [48] and The Queen v Pham [2015] HCA 39 esp at para [46]. In Regina v Skocic [2014] NSWCCA 225 (esp at para [19]) the CCA refused leave to appeal in a case where the applicant relied on statistics and no more. However in some situations the Court of Criminal Appeal has found that a single comparable case can be strong guide as to the approprate range: Behman v Regina [2014] NSWCCA 239 esp at para [22], but the opposite view was taken in RCW v Reguna (No. 2) [2014] NSWCCA 19.

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.Recently, the High Court has said that judges should avoid using the phrase 'worst category of case', but refer to whether or not the case was so grave as to warrant the maximum penalty: Regina v Kilic [2016] HCA 48 esp at para [20]. 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 v The Queen (2004) ALJR 616.

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. See also Wu v Regina [2011] NSWCCA 102.

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 (2001) 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 court to intervene and correct a sentence, there must be marked, not just mere, disparity: Salcedo [2004] NSWCCA 430. The principle will not require a sentence to be reduced to a level where it is inadequate (Tisalandis (1982) 2 NSWLR 430, Regina v Diamond (NSW CCA unreported 18/2/1993)), but because of parity arguably the court may reduce a sentence
to even the point where the sentence might otherwise be regarded as inadequate: Green and Quinn v The Queen (2011) 244 CLR 462 at para [33].

Parity will apply to assist even the first offender to be sentenced: Jones (1993) 67 ALJR 376. Parity applies even 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.

The principles of parity will rarely apply to a case to assist an adult sentenced in an adult court seeking to argue parity with a child being dealt with in the Children's Court, even if the child is charged with a more serious offence. However, in Ruttley v Regina [2010] NSWCCA 118 the CCA said that although it will be a rare case where an adult offender can rely on parity where the co-offender is a child, the adult may be able to call in aid the principle of 'proportionality' (esp at para [58]).

The principles of parity apply even if the 'co-offenders' are charged with different offences: Green and Quinn v The Queen (2011) 244 CLR 462 esp at at para [30] (per French CJ, Crennan and Keifel JJ), and Jimmy v Regina [2010] NSWCCA 60 esp at para [202],

Where some co-offenders have been sentenced on an incorrect factual basis and receive lesser sentences, that will not assist offenders sentenced on a correct factual basis to succeed on an appeal based on parity: Truong Nguyen and Nguyen v Regina [2013] NSWCCA 36. A judge sentencing an offender is not bound by the factual findings of another judge sentencing a co-offender: Baquiran v Regina[2014] NSWCCA 221 esp at para [27].

The Crown should supply the remarks of the judge sentencing of the co-accused to the accused: Brindley (1993) 66 A Crim R 204, Shortland v Regina [2013] NSWCCA 4 esp at para [110].

The courts have frequently stated that it is desirable for co-offenders to be sentenced by the same judge at the same time: see the authorities referred to in Dwayhi and Bechara v Regina [2011] NSWCCA 67 esp at para [34] to [41], Rae v Regina [2011] NSWCCA 211 esp at para [52], and Arenilla-Cepeda v Regina [2012] NSWCCA 267 esp at para [52] and [87].

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) 88 A Crim R 26 at 31-2), Delaney v Regina [2013] NSWCCA 150 esp at paras [68] to [69].

The principles of parity apply to the level of discount for pleas of guilty: Regina v Kathy Nguyen [2015] NSWCCA 209 esp at para [81].

Very Old Matters.

Generally the age of a matter will only mitigate if it is not the prisoner's fault: Todd (1982) 2 NSWLR 517, (1993) 66 A Crim R 37. The age of the matter will mitigate where the only reason for the delay is the prisoner's plea of not guilty: Fahda [1999] NSWCCA 267. However, it was recently held appears that delay will not mitigate where the cause of the delay is the offender's failure to volunteer his guilt, as in a case where there is a cold DNA match long after the event: see Kay [2004] NSWCCA 130.
Similarly delay will be less significant when it is caused by the offender, for example, when he absconds on bail: Walker v Regina [2016] NSWCCA 213.


If the patterns of sentencing were different at the time the offences were committed, the offender should as far as possible be sentenced in accordance with the patterns of sentencing prevalent at the time: MJR (2002) 54 NSWLR 368.
Where the offences pre-date the Sentencing Act (1989), the sentences should reflect the fact that at that time, non-parole periods were closer to 50% of the head sentence, rather than the 'statutory norm' of 75%: Magnuson v Regina [2013] NSWCCA 50 esp at para [145]. In Denham v Regina [2016] NSWCCA 309 the CCA accepted that where offences wer committed between 1968 and 1986 the Court should take into account the then practice of imposing a non-parole period which was 35% to 50% of the head sentence: Denham v Regina [2016] NSWCCA 309

Offences which have been abolished
The fact that an offence has been abolished prior to sentence is relevant to the sentencing process but it will not necessarily lead to no penalty being imposed: Orkopoulos v Regina [2009] NSWCCA 213.
Offences on Bail and Parole.

Commission of offences on bail and on parole is an aggravating factor, which will ordinarily lead to accumulation: Readman (1990) 47 A Crim R 181, Richards (1981) 2 NSWLR 464, Gale (1993) PD [245]. It has been held that committing an offence while subject to a community service order is committing an offence whilst on conditional liberty: Cicekdag (2004) 150 A Crim R 299.

Breach of Bond
.
The act causing the breach is not to be regarded as a separate offence: Oldfield (1993) PD [407].

Where the District Court confirms a Local Court bond after an appeal from the Local Court, it does not acquire the jurisdiction to deal with a breach of the bond in the District Court: Yates v Commissioner of Corrective Services [2014] NSWSC 653.

Pleas of Guilty in state matters.


There will nearly always be a discount when the victim is saved from giving evidence: Holder [1983] 3 NSWLR 245, Fisher (1989) 40 A Crim R 442. If the court does not give a discount for a plea of guilty, the court must give reasons for not doing so: s. 22 Crimes (Sentencing Procedure) Act, Winchester (1992) 58 A Crim R 345
. Judges should explicitly state that a plea of guilty is taken into account, and failure to do so may be taken as indicating that the plea was given insufficient weight: R v Thomson & Houlton (2000) 49 NSWLR 383, [2000] NSWCCA 309 Devine v Regina [2009] NSWCCA 261 esp at para [23]. In a case of great heinousness, a judge may not give any discount for a plea at all: Milat and Klein v Regina [2014] NSWCCA 29.

A plea entitles the accused to a discount, both because it is evidence of contrition and because of its utilitarian value in saving of court time: Bennetts (1993) PD [322], Siganto (1998) 194 CLR 656, 73 ALJR 162, (1998) 105 A Crim R 184. In Regina v Thomson & Houlton (2000) 49 NSWLR 383, a guideline judgment on pleas of guilty, the NSW CCA suggested a discount in the range of 10% to 25% for the bare utilitarian value of the plea (that is, before genuine contrition is taken into account). The extent of the discount will depend on the time when the plea is entered- obviously the discount is less for a plea at the last possible moment, but there is still some discount. The complexity of the matter is also relevant.

The CCA said in Thomson & Houlton that sentencing judges should be encouraged to express the extent of the discount. A failure to specify the extent of the discount is not of itself an error: Regina v Simpson (2001) 53 NSWLR 704 at para [83], Regina v Marcus [2007] NSWCCA 229 at para [11], Regina v Mo (2007) 169 A Crim R 60 esp at para [6], but see Dillon [2002] NSWCCA 221. However, if a discount is specified, it should be a specific amount, and not for example 'something in the vicinity of 10-15%': Regina v Knight and Biuvanua (2007) 176 A Crim R 338 esp at paras [37] to [38]. On the other hand, in Ayache v Regina [2013] NSWCCA 41 esp at para [18] it was held that there was no error in giving a discount of 'about 25%' for the utilitarian value of a plea. A failure to give reasons for not giving a 25% discount for a plea at the earliest opportunity constitutes appellable error: Johnstone [2004] NSWCCA 307 esp at para [28], Castles (2005) 152 A Crim R 277 esp at paras [22] to [23].

There should be a discount of 25% where there is a plea at the Local Court but the matter is delayed by questions of fitness to be tried: Hawkins v Regina [2011] NSWCCA 153. See also Regina v Hatfield [2011] NSWCCA 286. In Haines v Regina [22016] NSWCCA 90 it was held that a judge was in error in not giving the full 25% discount for a plea where shortly before trial a psychiatrist changed his mind as to the availability of a defence of mental illness: Haines v Regina [2016] NSWCCA 90 esp at para [30].

In Cameron (2002) 209 CLR 339 the High Court was critical of the concept that a discount be given to an offender who pleaded guilty on the basis of time and money being saved. The High Court said that a better was of expressing this was that the plea was evidence of the offender's willingness to facilitate the course of justice. However in Sharma (2002) 54 NSWLR 300 the NSW CCA held that this part of the reasoning in Cameron did not apply because of the existence of s. 22 Crimes (Sentencing Procedure) Act.

Where there is a dispute about the facts which has to be resolved by the sentencing judge, if it is resolved against the offender, the sentencing judge is entitled to reduce the discount for the plea of guilty: Donaczy v Regina [2010] NSWCCA 143, Regina v AB [2011] NSWCCA 229.

In Wong and Leung (2001) 207 CLR 584 three out of the 6 High Court judges (that is, not a majority) specifically rejected the 'two staged' approach to sentencing applied in R v Thomson and Houlton (2000) 49 NSWLR 383, in which a specific discount is given for a plea of guilty. However, in Sharma (2002) 54 NSWLR 300 the NSW Court of Criminal Appeal said that courts in New South Wales should continue to apply the principles in R v Thomson and Houlton (2000) 49 NSWLR 383.

A plea of guilty can be said to have been entered at the first reasonable opportunity if the offender pleads guilty to something different to what is charged, apparently even if the difference could be regarded as only a matter of particulars (for example, where the defendant has been charged with possession of the wrong drug: Cameron (2002) 209 CLR 339 at [23] to [25]). See also Gorman [2002] NSWCCA 516 at para [64].

Where the Crown abandons a number of counts, and the accused then pleads guilty, it can be reasonably said that the accused has pleaded guilty at the earliest opportunity: Cameron (2002) 209 CLR 339 at para [21]. This also applies where the accused pleads to a lesser charge: Dib [2003] NSWCCA 117, but see Harmouche (2005) 158 A Crim R 357.

Where the offender pleads guilty to a number of different counts, but at different times, the judge should not 'average' a discount for different offences: Bao v Regina [2016] NSWCCA 16 esp at para [44].

In D'Amico [2006] NSWCCA 316 the offender received only a 10% discount for the utilitarian value of his plea when he pleaded to a fresh indictment in the District Court with different counts. The NSW CCA held that this was an error and in resentencing gave a discount of 20%. The CCA has rejected an argument that the discount in such a situation should be in the order of 25%, that is, the same as a discount at the first opportunity: Morton v Regina [2014] NSWCCA 8.

The CCA has said that in the usual case of a plea on arraignment, there should not be a discount of more than 15%: see Regina v Borkowski [2009] NSWCCA 102 esp at para [31] (per Howie J.), Regina v Mahmud [2010] NSWCCA 219 (per Hulme J.). Where there is a factual dispute, the judge is entitled to reduce the level of discount: Donaczy v Regina [2010] NSWCCA 143.

The strength of the Crown case is not relevant to the discount to be afforded for a plea of guilty on utilitarian grounds: R v Thomson and Houlton (2000) 49 NSWLR 383 at para 137, R v Lo [2001] NSWCCA 271, Carter [2001] NSWCCA 245, and Sutton [2004] NSWCCA 225 at para [12], Oliver [2005] NSWCCA 6. If the judge simply says that the discount for the plea generally is limited by the strength of the Crown case, error has been established: Rogerson [2005] NSWCCA 12 at [24] to [25], Drew [2005] NSWCCA 50 at paras [11] to [14].

Although if there is an overwhelming Crown case the plea of guilty may be little evidence of contrition, there may be evidence of contrition independent of the plea of guilty: Starface (1997) 96 A Crim R 452. The fact that the accused has confessed to a crime may not reduce the value of the plea as evidence of contrition, but increase it: Hasan [2005] NSWCCA 21 at para [22].

The discount for a plea should come off the head sentence, not the non-parole period: Tidona [2005] NSWCCA 410 at para [35].

Taking both the utilitarian and contrition components, the CCA has said that a discount of up to 35% remains appropriate: R v Thomson and Houlton (2000) 49 NSWLR 383 at para 162.

The principles were recently summarised in Regina v Borkowski [2009] NSWCCA 102 by Howie J as follows (at para [32]):


1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].

2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].

3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.

4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the “Ellis discount”; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.

6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291

7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129

11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

 

Plea of guilty in Commonwealth matters

Although some cases state that the principles in R v Thomson and Houlton (2000) 49 NSWLR 383 essentially apply in Commonwealth matters (Bugeja [2001] NSWCCA 196), other cases state that they do not apply at all: Lee v Regina [2012] NSWCCA 123 esp at para [58].

In Commonwealth matters the crucial question is not whether or not there is a utilitarian value in the plea, but the extent to which the plea demonstrates the offender's willingness to facilitate the administration of justice: Cameron v The Queen (2002) 209 CLR 339, Danial v Regina [2008] NSWCCA 15. In Commonwealth matters, but not in state matters, the strength of the Crown case is a relevant consideration to how much weight should be given to the discount for the plea: Regina v Tyler and Chalmers (2007) 173 A Crim R 458 esp at para [114], ES v Regina [2014] NSWCCA 268 esp at para [22].

Offer of Plea of Guilty to a Lesser Charge

Where a person who is charged with murder offers to plead to manslaughter, this fact is a mitigating factor if the person is eventually found guilty of manslaughter: Oinonen [1999] NSWCCA 310. The offender should be sentenced as if he had pleaded guilty to manslaughter, even if he did not plead guilty to manslaughter in front of the jury: Cardoso (2003) 137 A Crim R 535. A different approach was taken in FD and JD [2006] NSWCCA 31.

It seems that if shortly before trial, the Crown offers to accept a plea of guilty to a lesser charge for the first time (such as manslaughter in a murder trial), and this offer is accepted, the full utilitarian discount of 25% would only rarely be available: Ahmad [2006] NSWCCA 177 at paras [17] to [18].

Confession of Unknown Offences


Where the accused confesses to an otherwise unknown offence, there should be greater leniency: Ellis (1986) 6 NSWLR 603 at 604.
The discount would also seem to apply where an accused confesses to a known crime where there is no evidence to link the accused with the crime: Herbert v Regina [2015] NSWCCA 172 esp at para [46]. It has been held that the amount of the 'Ellis discount should be quantified in Panetta v Regina [2016] NSWCCA 85 esp at para [34], but for a contrary view see AG v Regina [2016] NSWCCA 102 esp at para [72].

Remorse (or Contrition)

If there is evidence of remorse (or contrition), the offender may be entitled to a discount on sentence in addition to the discount for the utilitarian value of the plea: s. 21A (3) (i). The strength of the Crown case is a factor which can be used to reduce the discount for a plea of guilty (this is not the situation for the utilitarian value of the plea- see 'Pleas of Guilty' above).As a result of recent amendments to the Crimes (Sentencing Procedure) Act, for contrition to be taken into account as a mitigating factor, it is necessary for the offender to establish that:

(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) (s. 21A (3) (i)).

An offer to provide restitution (for example an offer to pay medical expenses) may be powerful evidence of remorse: OH Hyunwook v Regina [2010] NSWCCA 148 esp at para [32]. See also Job v Regina [2011] NSWCCA 267.

However it has been held that it is not necessary for the offender to give evidence of remorse: Butters v Regina [2010] NSWCCA 1 at para [16]. It has been held that the preferrable course is not to specify an arithmetical discount for the value of remorse or contrition: see Regina v MAK, Regina v MSK (2006) 167 A Crim R 159 esp at para [44], Kite v Regina [2009] NSWCCA 12 esp at para [12].

It is an error to treat a failure to identify co-offenders as indicative of an absence of remorse: Pham v Regina [2010] NSWCCA 208 esp at para [27].

Even if there is evidence of remorse, the sentencing judge is not obliged to accept it: Windle v Regina [2011] NSWCCA 277 esp at para [41].

Assistance to Police.


A lesser penalty may be imposed if the offender supplies information to the police about the offence he is being sentenced for or any other offence: s. 23 Crimes (Sentencing Procedure) Act.Because of the wording of s. 23 Crimes (Sentencing Procedure) Act, assistance offered to police which is not used does not entitle the accused to a discount: Regina v Yenice (1994) 72 A Crim R 234.
It was held in a case where assistance was of very limited value that a quantified discount for assistance was not mandatory: Williamson [2015] NSWCCA 250 esp at para [67].

Assistance to the prosecution in proceeds of crime proceedings against the person being sentenced does not lead to a separate discount, but may be taken into account as evidence of contrition: Murray (1997) 4 Crim LN [762].

Assistance to 'the authorities' includes assistance to overseas and interstate law enforcement authorities: Quinn [2002] NSWCCA 508, and Shaw v Regina [2010] NSWCCA 23 esp at para [14]. It may include assistance where the defendant was himself the victim of another crime: RJT v Regina [2012] NSWCCA 280. It has been held that where an offender surrenders himself to police, that may constitute assistance: Mencarious [2014] NSWCCA 104 esp. at para [22].

A reduction of up to a half for the combined effect of a plea of guilty and assistance may not be inappropriate: Cartwright (1989) 17 NSWLR 243, Ellis (1986) 6 NSWLR 603, Salameh (1991) 55 A Crim R 389, Many (1990) 51 A Crim R 54, s. 23 Crimes (Sentencing Procedure) Act. In Pang (1999) 105 A Crim R 474 at 477 the CCA noted that the discount given ranged between 20% and 50% for drug couriers (see also Sukkar (2006) 172 A Crim R 151 ). The 'normal discount' has been referred to as being between 30% and 50% in Stelfox (2002) 133 A Crim R 288. It has recently been held that a discount of over 50% should be exceptional (Buddin J at para [53]) or that a discount of more than 60% will rarely produce a sentence which is not manifestly inadequate (Howie J at para [11]): SZ v Regina (2007) 168 A Crim R 249 .

Where there is assistance but no plea, it does not follow that the discount for assistance alone cannot exceed 25%. In Z v Regina [2014] NSWCCA 323 the CCA by majority gave a discount of 40% for assistance alone.

It is permissible to take assistance into account both in relation to determining the length of the sentence and the question of whether or not the sentence is to be suspended: Regina v Farrawell-Smith [2010] NSWCCA 144.

It seems that a sentencing judge will be in error to give the full discount for a plea of guilty and then give an additional 50% discount for assistance to police: Sharma [2002] NSWCCA 142.

The prisoner should give evidence about his intention to give evidence against the co-accused: Yenice (1994) 72 A Crim R 234. Not being completely truthful with the police may disentitle the accused to a discount: Downey (1997) 97 A Crim R 41.Where an induced statement of the offender is tendered in order to indicate the level of assistance which the offender is giving, it should not be used in order to increase the objective gravity of the offence committed by the offender: Regina v Gil Raz (NSW CCA 17/12/1992 unreported) and Regina v Bourchas (2002) 133 A Crim R 413 but see Regina v Potter (1994) 72 A Crim R 108. The approach taken in Regina v Gil Raz and Regina v Bourchas is to be preferred.

Where there is a discount for a plea, as well as a discount for assistance, the second discount comes off the already discounted figure. Thus if there is a 20% discount for the plea, and a 50% discount for assistance, the total discount is 60%: NP [2003] NSWCCA 195. However it has been suggested that in most cases it will not be appropriate to separately give a discount for the plea and for assistance: El Hani [2004] NSWCCA 162 esp at para [65].

Where there is assistance and the offender is being sentenced for a number of counts, the discount should apply to all counts: Isaac v Regina [2012] NSWCCA 195.

Where there has been assistance before sentence but also future assistance, the judge should specify the proportion of the discount referrable to future assistance: Regina v Douar [2007] NSWCCA 123 and Regina v Waqa (2004) 149 A Crim R 143.

The discount for assistance depends on its utitilitarian value, not its motivation: Fisher v Regina [2008] NSWCCA 103 esp at para [35].

Pleas of Not Guilty.

Pleading not guilty does not act as an aggravating factor: Siganto (1998) 194 CLR 656, 73 ALJR 162, (1998) 105 A Crim R 184, Baumer (1989) 40 A Crim R 74, Meurant (1992) PD [407]. The defence conduct of the trial cannot be an aggravating factor: White (1996) PD [244], Siganto. In particular, the fact that the accused made a false claim of innocence is not an aggravating factor: Kumar v Regina [2011] NSWCCA 139 esp at para [22] to [23]. In particular the distress of the victim in having to give evidence is not an aggravating factor: Chami [2005] NSWCCA 299 esp at para [59].

Co-operation in Pre Trial Disclosure

A discount can be given for compliance in pre-trial disclosure, depending on the extent of the assistance: s. 22A Crimes (Sentencing Procedure) Act.

Matter Could Have Been Dealt with in the Local Court

Older authorities suggested that the fact that a matter being dealt with in the District Court could have been dealt with in the Local Court is relevant to sentencing, although the sentencing judge is not obliged to sentence the appellant on the basis that that was the maximum available sentence. Failure to refer to the fact that a magistrate could have dealt with the matter may justify leave to appeal against sentence: Crombie [1999] NSWCCA 297.

Later authorities have been less enthusiastic about this ground of appeal. It was held in Palmer [2005] NSWCCA 349 (esp at para [15]) that failure to refer to the possibility of summary disposal will not always be indicative of error, particularly if the sentence is not manifestly excessive. In Zreika v Regina [2012] NSWCCA 44 (at para [83]) McClellan CJ at CL said that possibility of summary disposal would only be a relevant factor in ' a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which ought otherwise have been prosecuted in the Local Court.' See also Regina v Van Ryan [2016] NSWCCA 1 and Baines v Regina [2016] NSWCCA 132.

It is not a mitigating factor that a matter could have been dealt with in the Children's Court: DR v Regina [2017] NSWCCA 37.

Entrapment.


Entrapment can be a mitigating factor if there is a real possibility that the offence would not have been committed if the police had not in some way facilitated it: Taouk (1993) 65 A Crim R 387 at 403, Mandica (1980) 4 A Crim R 34 at 41, (1993) 67 ALJ 722 at 741. It will normally be necessary for the defendant to give evidence: Chan [1999] NSW CCA 103.

Forgiveness by Victim

Exceptional caution should be exercised in using evidence of forgiveness by the victim as a sentencing factor: Kanj (2000) 118 A Crim R 329, Regina v Newman and Simpson [2004] NSWCCA 10, Regina v Burton [2008] NSWCCA 128.

Form One.


The court can take into account matters placed on a Form 1 when sentencing for 'the principal offence': s. 32 Crimes (Sentencing Procedure) Act. The 'principal offence' should be clearly stated on the Form One, and the matters on the Form One are to be taken into account only in the sentence for that offence: see Tomich (2002) 127 A Crim R 234.

There was a conflict in the authorities as to whether putting matters on a Form One led to a lesser penalty, or only effected the potential maximum penalty. The latter view was taken in compare Vougdis (1989) 41 A Crim R 125, Dawson [2000] NSWCCA 399, but see Lemene (2001) 118 A Crim R 131, and Harris (2001) 125 A Crim R 27. This conflict in the authorities was resolved in Attorney General's Application No 1 of 2002 [2002] NSWCCA 518, (2002) 56 NSWLR 146. It was held that the offender is not punished for the matters on the Form One, the effect of putting matters on the Form One was the offences were given a 'significantly lower salience in the sentencing process' (at para [66]). However, where there are matters on a Form One, the court can give more weight to personal deterrence and retribution (at para [42]). It is now very clear that it is not an error to increase the otherwise appropriate sentence by reason of of offences on a Form One: Abbas and Ors v Regina [2013] NSWCCA 115 at para [22], and Regina v Grover [2013] NSWCCA 149 esp at paras [57] to [59].

It is an error to impose a separate sentence for a matter on a Form One: Boa Morte [2003] NSWCCA 75. The Form One itself must indicate the charge on the indictment to which the charges on the Form One are to be taken into account: Doumit v Regina [2011] NSWCCA 134.

It is not necessary to specify the amount by which a sentence has been increased by reason of the matters on the Form One: Sydney [2004] NSWCCA 63.

(c) Particular Offenc
es

Murder
.

The maximum penalty for murder is life imprisonment: s. 19A Crimes Act. Where the victim is a police officer and murder was committed while the victim was acting in the course of his duty, or in retaliation for his so acting, and the accused knew or ought to have known he was a police officer, there is a mandatory sentence of life imprisonment: s. 19B Crimes Act.

Where a child under the age of 16 commits a murder and is still under the age of 18 when sentenced, and the court is of the opinion that it cannot satisfactorily assess whether the offender is likely to re-offend, or the prospects of rehabilitation, the court may impose a 'provisional sentence': s. 60B Crimes (Sentencing Procedure) Act. The court is to conduct a progress review when it considers appropriate but at least once every 2 years: s. 60E Crimes (Sentencing Procedure) Act. The court may impose a final sentence, the non-parole period of which is not to exceed the non-parole period of the provisional sentence: s. 60G Crimes (Sentencing Procedure) Act. The sentence

The range minimum term for a husband killing a wife is 11-16 years with an average of 14 years: Nixon (1996) PD [108]. A man who set fire to his wife, killing her, was sentenced on appeal to a minimum term of 16 years: Everett (1996) PD [167]. In Toki [2003] NSWCCA 125 it was said that a head sentence of more than 20 years was unusual in a 'relationship' murder that was not premeditated.

There is a standard non-parole period for murder in an ordinary case of 20 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act. Where the victim is a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work, the standard non-parole period is 25 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act.

The standard non-parole period is also 25 years when the victim is a child under the age of 18 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act.The fact that there was an intention to kill does not of itself necessarily mean that the offence is above the mid-range: Yun v Regina (2008) 185 A Crim R 58 .

The fact that the accused has dismembered the deceased after death is a relevant aggravating factor to sentencing for murder: Richardson v Regina [2013] NSWCCA 218 esp at paras [81] to [84].

Generally where there is no evidence of an intention to inflict GBH the objective gravity is less than the standard non-paole period but that is not always so: Tran v Regina [2011] NSWCCA 116.

It is not the case that an additional term of life will only be imposed in a most serious case of murder: Spinks (1997) Crim LN [749].

Life sentences for murder

Sentences of life imprisonment should be reserved for the worst category of case: s. 61(1) Crimes Sentencing Procedure Act (which basically restates the common law: Harris (2000) 50 NSWLR 409). Section 61 states that a life sentence should be imposed if level of culpability in the commission of the offence is so extreme that the community interest in:

can only be met by the imposition of that sentence. A summary of the decisions about the effect of s. 61 can be found in Regina v Knight [2006] NSWCCA 292 at para [23]. Life sentences have been imposed in cases where (please note some of the cases fall in more than one category):

 

Where the objective gravity of the murder would not merit a life sentence, the existance of a criminal record (even for another murder) does not entitle the judge to impose a life sentence: Aslett [2006] NSWCCA 360 esp at [47] to [50]. However, this is not the case where a number of murders are committed as part of the one course of conduct: Adanguidi (2006) 167 A Crim R 295 esp at para [32].

A detailed summary of the cases where a sentence of life has been imposed for murder can be found at the Public Defenders site, 'Natural Life Sentences' and 'When Life Means Life'.


Accessory After the Fact to Murder

 

In Johnson [2014] NSWSC 1254 at para [13] Hamill J set out a non-exhaustive list of relevant factors in assessing the objective gravity of an offence of accessory after the fact to murder:


(1)The circumstances of the murder itself;
(2)The extent of the knowledge in the accessory of those circumstances;
(3)The precise act, or acts, which constitutes the offence of being an accessory after the fact;
(4)The length of time over which the offender assisted the principal offender in escaping justice;
(5)The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender;
(6)The motivation of the offender in committing the crime;
(7)Related to the question of motivation is the question of whether the offender's conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender;
(8)It has generally been held that offences which involve the disposal or destruction of a corpse are cases which fall at the upper end of the range of criminality for the offence.

In Farroukh (1996) PD [291] an accessory after the fact to murder (silence and washing blood from clothes) had her sentence increased from 6 months to 18 months. For a useful case on accessory after the fact to murder, see Dileski (2002) 132 A Crim R 345, a case where a person who pleaded guilty and assisted the authorities was sentenced to 2 years with a non-parole period of 12 months. Assisting in the disposal of a body after a murder is regarded as placing the offence at the more serious end of the spectrum: TT v Regina [2014] NSWCCA 206 esp at para [12].

Manslaughter

It has been said that manslaughter is 'almost unique in its protean character as an offence', ranging from a joke gone wrong to something just short of murder: per Spigelman CJ in Regina v Forbes (2005) 160 A Crim R 1 at para [133]. Only in rare cases will a sentence other than a full-time custodial sentence be the appropriate sentence for manslaughter: Regina v Carroll [2008] NSWCCA 218. In relation to manslaughter by way of 'unlawful and dangerous act,' a total sentence of 10 years was described by the NSW CCA as being 'at the top of the range of sentences for this offence': Bryant [1999] NSWCCA 181. In Alexander (1995) 78 A Crim R 141 Hunt J said that the 3 particular matters which have to be taken into account in provocation cases are:

 

Alexander also contains a useful survey of sentences in provocation cases.

'Unlucky punch' cases

Regina v Greneger [1999] NSWSC 380 18 months NPP

Regina v O'Hare [2003] NSWSC 652- 3.5 years NPP

Bashford [2007] NSWSC 1380 - 3.5 years NPP

Regina v Carroll [2008] NSWCCA 218 - 18 months NPP after a Crown appeal

KT v Regina [2008] NSWCCA 51- 6 years with 4 years NPP

Fisher v Regina [2008] NSWCCA 103 - 3 years NPP

Hopley v Regina [2008] NSWCCA 105 - 3 years NPP

Regina v Munter [2009] NSWSC 158 - 18 months NPP

Regina v Donaczy [2010] NSWCCA 143 - 3 years 6 months

 

For a case containing a review of unlawful and dangerous act manslaughters, many involving a single punch, see KT v Regina [2008] NSWCCA 51 esp at para [36].

Recently there has been a sharp upward movement in sentences for 'one punch manslaughters':

Regina v Loveridge [2014] NSWCCA 120- 7 years NPP

Regina v Wood [20114] NSWCCA 184- 8 years NPP

 

For a summary of the relevant principles for sentencing teenagers in 'unlucky punch' cases, see KT v Regina [2008] NSWCCA 51 at paragraphs [22-26], approved in Regina v Carroll [2008] NSWCCA 218. also contains a helpful summary of cases.

Stabbing by long term victim of domestic violence:

Regina v Melrose [2001] NSWSC 847 - 4 year GBB (an extreme case)

Stabbing in a drunken fight with scissors:

Regina v West [2011] NSWCCA 91: after Crown appeal, 6 years with 3 years NPP

Manslaughter by criminal negligence, gun going off by accident:

Regina v Luong [2000] NSWSC 505- 4 years, 2 years NPP

Regina v Do [2001] NSWCCA 19 (conviction appeal only) 3 years periodic, 18 months NPP

Regina v SF [2009] NSWSC 1069 - 4 years, 2 years NPP

'Culpable Driving' or Dangerous Driving Occasioning Death/GBH

A custodial sentence will usually be appropriate a case of dangerous driving occasioning death/gbh unless the offender has a low level of culpability, as in momentary inattention or misjudgment: Whyte (2002) 55 NSWLR 252 modifying Jurisic (1998) 101 A Crim R 259, (1998) 45 NSWLR 209. In particular, in a case of aggravated dangerous driving occasioning grievous bodily harm, a non-full time custodial sentence will rarely be appropriate: Regina v Carruthers [2008] NSWCCA 59.

'Momentary inattention' has been defined widely to include driving which is not driving with a selfish disregard to the safety of others, or recklessly, or under the influence of drugs or alcohol: Pyritz (NSW CCA 23/11/98). Not all cases can be categorized as either cases of abandonment of responsibility or momentary inattention; those are two extremes on a continuum of culpability (Khatter [2000] NSWCCA 32, Foster [2001] NSWCCA 215). A more lenient approach was taken in Mansour [1999] NSWCCA 180.

The following are aggravating factors

 

(i) Extent and nature of injuries inflicted.
(ii) Number of people put to risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring warnings.
(ix) Escaping police pursuit

(x) degree of sleep deprivation

(xi) failing to stop.

Items (iii) to (xi) relate to the moral culpability of the offender.

Where the offender's moral culpability is high, a full-time custodial sentence of less than 3 years (in the case of death) and 2 years (in the case of GBH) would not generally be appropriate: Whyte (2002) 55 NSWLR 252, modifying Jurisic (1998) 101 A Crim R 259, (1998) 45 NSWLR 209. It is an error to treat these sentences as a applying to the a case where the moral culpability is not high, that is, where there were at least one but usually more aggravating factors: Hedges v Regina [2011] NSWCCA 263 esp at para [64].

Being a disqualified driver and on bail for other offences is irrelevant to the question of 'abandonment of responsibility': Rosenthal v Regina [2008] NSWCCA 149.

It was clarified in Thomson and Houlton (2000) 49 NSWLR 383 at para [161] that the standard case outlined in Jurisic (and thus presumably Whyte (2002) 55 NSWLR 252) was for a late plea of guilty, where the plea was of limited value. In other words, for an earlier plea, the sentence should be lower. See also Hedges v Regina [2011] NSWCCA 263 at para [67].

There is a useful summary of sentences for reasonably bad culpable drivings in Vukic [2003] NSWCCA 13 and also in Vale [2004] NSWCCA 469. There is a summary of very bad culpable driving cases in Bombadieri [2010] NSWCCA 161. In that case a sentence of 10 years with a NPP of 6.5 years (at the time the highest sentence for a single count of culpable driving) was reduced to 9 years with a NPP of 5 years 9 months.

The youth of the accused will not necessarily lead to the general deterrence having less weight for this offence: Slattery (1996) 90 A Crim R 519, MacIntyre (1988) 38 A Crim R 135 at 139.

Any injuries suffered by the accused in the accident may mitigate the sentence: Whybrow v Regina [2008] NSWCCA 270.

Assault Police

The NSW Court of Criminal Appeal has declined to hand down a guideline judgment about the offence of assault police, but has stressed that the offence is a serious one requiring a significant degree of deterrence: Attorney General's Application No 2 of 2002 (2002) 137 A Crim R 196.


Glassing

Some recent cases of 'glassing'

Recklessly inflicting grievous bodily harm

Sayin v Regina [2008] NSWCCA 307- no eye injury- 2 years 3 months NPP

Wilson v Regina [2009] NSWCCA 73- no eye injury- 12 months periodic

Spooner v Regina [2009] NSWCCA 247 - blindness in one eye- 4 years with 1 year 10 months NPP

Butters [2010] NSWCCA 1- loss of eye- 4 years with 3 years NPP Maliciously inflict grievous bodily harm with intent

Regina v Miria [2009] NSWCCA 68- no eye injury- 4 years, 2 years NPP

Riot

In sentencing for riot, the actual role played by each accused is relevant, not simply what all of the rioters did: Maher (2005) 154 A Crim R 457 .

Indecent assault.
It is overstating the case to say that with indecent assault a gaol term is inevitable unless there are special circumstances: O'Sullivan (20/10/89 u/r), Baxter (1994) PD [227]. It is unnecessary to accumulate when all matters arise from the same incident: Pollock (1993) 67 A Crim R 166.

Aggravated indecent assault has a standard non-parole period of 5 years. Cases after the introduction of the standard non-parole period

Darrigo [2007] NSWCCA 9 - single count- 4 year old complainant- 4.5 years NPP

Possession of child pornography

It has been held that the following matters are relevant to the determination of an appropriate sentence for the possession of child pornography (in Regina v Gent (2005) 162 A Crim R 29 at para 99):

(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.

See also Saddler v Regina [2009] NSWCCA 83 which held that the possession of large amounts of graphic child pornography (including images involving cruelty) did not attract the aggravating factors of gratuitous cruelty or that the offence was part of a planned or organized criminal activity. In Minehan v Regina [2010] NSWCCA 140 the CCA set out the following non-exhaustive list of factors to consider for sentencing for possession of child pornography (at para [94]):

1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. The proximity of the offender’s activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

It has been held that unless exceptional circumstances exist, a sentence of immediate imprisonment is warranted for an offence of child pornography: Regina v De Leeuw [2015] NSWCCA 183 esp at para [72].

Digital Penetration of Children

The High Court has said in Dinsdale (2000) 202 CLR 321, (2000) 175 ALR 351, [2000] 115 A Crim R 558 that although ordinarily or commonly calling for a full-time custodial sentence, there is no invariable rule (see especially Gleeson and Hayne JJ at para [18] and Kirby J at para [68]). It is significant that there is no reference to the need to show that there are 'special circumstances'. A majority of the NSW Court of Criminal Appeal has held that there is no canon of law which mandates that digital penetration is less serious than penile penetration: Regina v Hibberd [2009] NSWCCA 20. It is difficult to reconcile this decision with the Decision of the High Court in Ibbs v The Queen (1987) 163 CLR 447. In other decisions the Court of Criminal Appeal has said that generally penile intercourse is more serious than digital: see MH v Regina [2011] NSWCCA 230 esp at paras [36] to [39].

Some other cases on digital penetration: Slack [2004] NSWCCA 128- digital penetration with a girl 11 to 12 on a single night- 2 years head sentence (1years NPP) Lozanovski [2006] NSWCCA 143 - digital penetration between ages 9 to 16- 5 years 6 months, NPP 4 years MJR (2002) 54 NSWLR 368 - digital penetration of 2 daughters over 7 years- 6 years 6 months, 5 years NPP .

Sexual Assault: Representative Charges.


The fact that sexual assault charges are 'representative charges' of a broader pattern of sexual assault is not an aggravating factor, but it entitles the court not to extend the leniency which would apply to an isolated incident: Holyoak (1995) 82 A Crim R 502, Reiner (1974) 8 SASR 102, Regina v JCW (2000) 112 A Crim R 466, and AK v Regina [2016] NSWCCA 238 esp at paras [67] and [68]. This approach has not been followed in Victoria (see for example Regina v CJK [2009] VSCA 58 esp at para [59] to [60]). Basten JA expressed doubt about the approach in Giles v DPP [2009] NSWCCA 308, but the other judges in that case either did not agree (RS Hulme J) or thought the matter should be considered only after full argument (Johnson J). It is likely that this matter will need to be decided finally in the High Court.

Prior good character is of little weight in cases of sexual assault on children: Levi (1997) 4 Crim LN [697]. Cases on long term sexual abuse of children

Cases on long term sexual abuse of children:

 

P (NSW CCA 9/7/1992) daughter 8-16 yrs 6 yr mt, 2 yr at
Moore (NSW CCA 12/4/1994)
stepdaughter 13-15 yrs 6 yr mt, 3 yr at
L (NSW CCA 6/11/95) step-daughter 8-12 yrs 6 yr mt, 2 yr at
H (NSW CCA 25/7/94) daughter to 12 yrs 8 yr mt, 3 yr at
Davies (NSW CCA 25/5/95) daughter 14-16 5 yrs mt, 3 yrs a
t

Cases where there is a standard non-parole period: MLP (2006) 164 A Crim R 93 - single count, 9 year old complainant, sentence after trial- 16 years (11 years NPP)
Cases where pregnancy has resulted
:

Cruickshank (NSW CCA 2/8/1995) daughter 7-14 yrs 9 yrs mt, 3 yrs at

Persistent Sexual Abuse

Where an offender is convicted of persistent sexual abuse of a child under s. 66EA (1) Crimes Act, proof of which requires proof of a sexual offence involving the same child on 3 seperate occasions, between certain dates, the offender is not to be sentenced on the basis that he committed only 3 offences: ARS v Regina [2011] NSWCCA 266.

 

Sexual abuse of children under 16

Where the offence pleaded to is an offence of sexual intercourse with a child under 16 under s. 66C Crimes Act, the sentencing judge can take into account as an aggravating factor the fact that the child was not consenting: Wakeling v Regina [2016] NSWCCA 33 esp at para [47]. It is not a mitigating factor that the child was consenting: Nelson v Regina [2016] NSWCCA 130 esp at para [23], CT v Regina [2017] NSWCCA 15 esp at para [73].

Kidnapping

It has been said that the relevant factors in determining the objective gravity of an offence of kidnapping are the duration of the detention, the extent of the fear or terror occasioned, the manner of treatment and what is demanded of the victim by the offender, the purpose of the detention, and the extent (if any) to which third parties were subjected to ordeal or anguish by reason of fear for the victim: see Regina v Collett and Robson (NSWCCA unreported 7/6/1979).

See the Public Defenders' Schedule of Sentences for Kidnapping.

Break and Enter

The fact that the offender broke and entered with intent to steal, rather than commit an offence such as sexual assault or violence, is relevant to an assessment of the objective gravity of the offence: Cohen v Regina [2011] NSWCCA 165 esp at para [43].

Being in company as a circumstance of aggravation for break enter and steal may be a circumstance of aggravation of a relatively low order in the hierachy of aggravating circumstances: Cohen v Regina [2011] NSWCCA 165 esp at para [44].

A Schedule of Cases of Sentences for Multiple Cases for Break Enter and Steal is available at the Public Defenders Web Site.

Car rebirthing

The overall scope and purpose of the car rebirthing, the share of the profits, and the time over which the activities were conducted, are relevant to sentencing for car rebirthing: see Regina v Tannous, Fahda and Dib [2012] NSWCCA 243 esp at para [40].

Armed Robbery.

In a guideline judgment, the NSW CCA has held that in a category of cases of armed robbery where there are the following factors:

 

the starting point is a range of 4-5 years for the full term: Henry (1999) 46 NSWLR 346, 106 A Crim R 149.

The guideline judgment is for a late plea where there would only be a 10% discount for the plea: Hemsley [2004] NSWCCA 228 at para [30]. It was held that non-custodial sentences were only appropriate in 'most exceptional circumstances': Valenti (1989) 46 A Crim R 23, Henry at para 113. However the CCA from time to time has interpreted 'most exceptional circumstances' extremely widely (see for example Blackman and Walters [2001] NSWCCA 121).

The guideline judgment applies to young offenders, although their youth is obviously a mitigating factor which must be taken into account: SDM [2001] NSWCCA 158, (2001) 51 NSWLR 530, apparently overruling Jack Sua [2000] NSWCCA 94.

There is no standard non-parole period for armed robbery. It may be an error for the sentencing judge to globally assess a number of counts of armed robbery with notional mid-range offence rather than comparing each offence with the paradigm offence described in Henry: Regina v Kelly [2010] NSWCCA 259.

Some examples of sentences for armed robbery by young offenders are:

 

RMK [2002] NSWCCA 414 (15 years old) 3 years sentence, 15 months NPP

TVC [2002] NSWCCA 325 (15 years old) 3 year sentence, 18 months NPP

JCM [2003] NSWCCA 151 (15 years) 3 years sentence, 20 months NPP

Jack Sua [2000] NSWCCA 94 (16 years old) 5 yrs sentence, 2.5 yrs NPP

SDM [2001] NSWCCA 158, (2001) 51 NSWLR 530 (17 years old) 4.5 years sentence, 2 yrs 6 m NPP

MHH [2001] NSWCCA 161 (17 yrs 9 months) 5 yrs, 2 yrs NPP

Robberies can be regarded in escalating seriousness with the carrying of a firearm, the firearm being loaded, the weapon being fired, and the weapon being aimed at someone while fired: Readman (1990) 47 A Crim R 185.


Multiple armed robberies:

22 robberies (14 years old) 7 years, 4 yrs NPP

AO (2003) 138 A Crim R 189 8 armed robberies (16 years old) 9 years (4 yrs 6 months NPP)

RLS [2000] NSWCCA 17516 armed robberies (17 years old) 9 years 6 months (5 years 6 months NPP)

Mony [2003] NSWCCA 245 25 robberies (adult) 14 years

Gardner (1994) PD [236] 3 armed robberies (adult) 10 years, NPP 7 years 3 months

McIvor v Regina [2010] NSWCCA 7 2 armed robberies, one assault with intent to rob, 10 years with NPP of 7 years 3 months

Various Schedules of Cases on Armed Robbery can be found at the Public Defenders' web site.

Robbery in Company and Assault with Intent to Rob

Regrettably it has been held that the guideline judgment for armed robbery, Henry (1999) 46 NSWLR 346, 106 A Crim R 149 (discussed immediately above) also applies to robbery in company: Murchie (1999) 108 A Crim R 482 and Greigs (2000) 111 A Crim R 233. However in Frahm v Regina [2009] NSWCCA 249 the Court said that the absence of a weapon such as a knife or a gun menat that the guideline judgment was less significant and discussed other cases to the same effect (esp at paras [14] to [17]).  In Smith [2004] NSWCCA 95 it was held that the guideline had no application to the offence of demand money with menaces.

It has been also held that the guideline applies to assault in company with intent to rob: Stanley [2003] NSWCCA 233.


Robbery

It has been held that it is 'slightly' overstating the case to say that there must be a custodial sentence for robbery except in exceptional circumstances, although generally a custodial sentence will be appropriate: Fraser [1999] NSWCCA 212.

Firearms Offences

In sentencing for selling firearms it is permissible to take into account the fact that the offender must have known that the weapons would be used in an illegal activity: KC v Regina [2009] NSWCCA 110.

Escape.

The head sentence for an unremarkable escape was held to be 2 years in Regina v Thompson (NSW CCA u/r 21/5/86) and Stuart (1990) 47 A Crim R 293, but see Sinnett (1996) PD [134] and Steff (1997) 96 A Crim R 1. Later cases have said that the 2 year period is no a minumum and sentences as low as 6 months have been upheld: see Regina v Robinson [2000] NSWCCA 182 esp at para [29] and Regina v Horne [2004] NSWCCA 8 esp at para [37]. An appeal against a sentence of 2 years with a non-parole period of 18 months for an 'unremarkable escape' was rejected in Mihail v Regina [2010] NSWCCA 104.
The sentence must be cumulative: s. 57 Crimes (Sentencing Procedure) Act.Also see the Public Defenders Schedule of Sentences for Escape.

Embezzlement and Breaches of Trust.

Normally a breach of trust involving money will result in a gaol sentence, but each case must be considered individually: Chaloner (1990) 49 A Crim R 370, Gillan (1991) 54 A Crim R 475 With such offences there is often a large gap between minimum term and additional term: Corbett (1991) 52 A Crim R 112. Repayment of the monies stolen from the prisoner's own funds at personal hardship can be exceptional circumstances leading to a reduced prison term: O'Keefe (1992) 60 A Crim R 201
.

 

Solicitor fraud of $38,000: 1 year mt: Hunt (NSW CCA 30/9/97)
Misappropriation of $65 000, repaid: 1 yr: Veale (1996) PD [149]
Embezzlement of $75 000: 18 months: Tapper (1992) 64 A Crim R 281.
Fraud of $180 000: 2.5 years: Law (1993) PD [546]
Conspiracy to defraud $235 K: 18 months: Halabi (1992) PD [78]
Dishonestly obtain $376 000: 2 years NPP Murphy [2007] NSWCCA 18

Forgery of $.5 M: 12 months: Machtas (1992) 62 A Crim R 179
Embezzlement $.5 m, admissions: 2 yrs mt: Wong (1995) PD [31]
Fraud of $626,000: 3 years 9 months Wakefield v Regina [2010] NSWCCA 12 Embezzlement of $1.25 m: 4 years Sellyn (1991) 57 A Crim R 313 $800 000 6 years 9 months (4 years NPP) Oudomvilay [2006] NSWCCA 275
Fraud of $1.7 m: 4.5 y mt: Boian (1997) 96 A Crim R 582
Embezzlement of $3m- 18 m mt: Egerton (NSW CCA 8/8/97
)

Embezzlement of $3.9 M 6 years (5 years NPP) Regina v Gaffney [2009] NSWCCA 160


Social Security Fraud.

Social security fraud requires gaol unless there are very special circumstances: Purdon (NSW CCA u/r 27/3/97). Such circumstances include where there are immediate admissions, repayments are made for a substantial period, and the prosecution is delayed: Winchester (1992) 58 A Crim R 345, Blair (20/11/87 u/r).

Money laundering.

For relevant sentencing principles for money laundering offences, see Regina v Ly [2014] NSWCCA 78 esp at para [86].

Motor Vehicle Fraud.

Range of sentences between bond and 1 year: Hajjo (1992) PD [352].

Drug Trafficking.

Older decisions have said that only in exceptional circumstances will a non-custodial sentence be appropriate for drug traffickers, even if not for profit: Thompson (CCA, 4/4/91, u/r), Pilley (1991) 56 A Crim R 202, Fabian (1993) 64 A Crim R 365. This even applies to cannabis: Ward (1997) 4 Crim LN [746]. However this only applies to trafficking in the sense of more than one occasion: Bardo (14/7/92 u/r), Ozer (1993) PD [533], Youssef v Regina [2014] NSWCCA 285 esp at para [28].

The rule has been restated as requiring full-time gaol if there is drug trafficking 'in any substantial degree': Day (1998) 100 A Crim R 275. In another restatement, Howie J said that a court must not sentence an offender who has been substantially involved in the supply of prohibited drugs (whether for profit or not) to other than a full-time custodial sentence unless there are truly exceptional circumstances: Regina v Gu [2006] NSWCCA 104 esp at para [24].

Rothman J said in Regina v Gip (2006) 161 A Crim R 173 that the sort of facts which might lead to a finding that a full time custodal sentence must be imposed would be an agreement to supply on another occasion, participation in a process which envisages supply on more than one occasion, or participation in a syndicate at para [43]. It has been held that it is an error for a judge to to state that a full-time custodial sentence must be imposed for the supply of drugs (without a finding that the offender was involved in the supply of drugs to a substantial degree) unless there are exceptional circumstances: Scott v Regina [2010] NSWCCA 103 esp at para [30]. Where the 'supply' is in fact a rip off and there was never intention to actually supply drugs, the principles applicable to drug dealers do not apply: Kalpaxis (2001) 122 A Crim R 320 (but compare Yaghi (2002) 133 A Crim R 490).

There have been conflicting decisions about whether it is relevant that the drugs are sold to undercover police officers, and the drugs are not disseminated into the community. The better view would seem to be that this is relevant as a mitigating factor: Regina v DW [2012] NSWCCA 66 esp at para [117]. A different view was taken in Cam Huynh Giang v Regina [2017] NSWCCA 25.

A judge is not entitled to conclude that the purity of the drug supplied is in excess of normal street purity in the absence of evidence about what normal street purity is: Farkas [2014] NSWCCA 141, esp. at para [15] to [16].

The voluntary cessation of drug dealing may constitute 'exceptional circumstances': Regina v Pickett [2010] NSWCCA 273.

The question of whether the supply was a single occasion or part of a history of supply, and of whether producing cannabis or supplying had a commercial purpose, are matters where the onus of proof is on the Crown to prove beyond a reasonable doubt. The question of whether the accused is a drug addict is a matter of mitigation where the onus of proof is on the balance of probabilities: Olbrich (1999) 199 CLR 270, 73 ALJR 1550.
Rehabilitative factors may suffice: Hall (11/6/91, u/r).

Where more than one type of drug is supplied, it is not necessary for the sentences to be wholly or nearly wholly accumulated: Robinson v Regina [2012] NSWCCA 26.

Who is a principal?

In Nguyen v Regina [2011] NSWCCA 92 Simpson J said (at para [4]):

[4] ... "Principal" is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as "principal" involves at least some of the following characteristics:


-contributing financially to the cost of setting up the operation;
-standing to share in the profit (as distinct from receiving payment);
-having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);
-having some decision making role (which may not be different from the item above).


This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.


Supply Heroin


Recent sentences for supply heroin
:

 

.5 g- 2 years Bengescu (1992) PD [66]
2.27g- 2 years Tran (NSW CCA 9/4/97)
3.02 g- 1 yr mt Packovski (NSW CCA 27/3/97)
10.7 g- 3 yrs mt Szezeklik (1995) PD [93]
2 counts, 12 g- 18 months Hawes (1992) PD [64]
2 counts, total 18g- 4.5 yrs Yavuz (1995) PD [215]
28 g- 4.5 yrs Omayoglu ( 1995) PD [89]

54.8 g- 2.5 yrs NPP Hoang [2002] NSWCCA 128
109 g- 3.5 yrs Jocic (1995) PD [193]
193 g- 3 yrs mt Alupoaie (1996) PD [3]
2 counts, 239 g- 5 yrs mt Karam (1995) 83 A Crim R 416
350 g- 7.5 yrs Chu (1995) PD [1]
375 g- 5 yrs mt Ma (1996) PD [96]

792 g- 6 years plus 2 yrs Vu [2007] NSWCCA 2
1.9 kg- 7 yrs mt Ooi (1996) PD [112]

2.1 kg-5 yrs 4 mnths NPP- Le [2002] NSWCCA 232

63 kg- natural life Chung [1999] NSWCCA 330

252 kg- natural life Ismunandar (2002) 136 A Crim R 206

See also the Public Defenders

Schedule of Cases of Supply Heroin - less than 50 g

Schedule of Cases of Supply Heroin - 50 to 250 g

Schedule of Cases of Supply Heroin - Commercial Quantity

Schedule of Cases of Supply Heroin - Large Commercial

The Court of Criminal Appeal has described a head sentence of 12 years for supplying the large commercial quantity of heroin as being 'at the top of the range': Yaghi (2002) 133 A Crim R 490 at para [53].



Import Heroin.

Recent sentences for Import Heroin (the quantities are generally pure heroin)
:

 

25 g- 3.5 y mt Schrei (1996) PD [128]
44.5g pure-4y 4m El Cheikh (1993) PD [234]
57 g- 4 years Maddocks (1990) 51 A Crim R 377
80g-4 years NPP Dowe (1993) PD [233]

181 g- 6 years El-Ghourani [2009] NSWCCA 140
207g-- 5y 10m NPP Draziewicz (1993) PD [523]

260 g- 5 y NPP- Bezan [2004] NSWCCA 342
267 g- 6 y NPP Mousallem (1995) PD 76
294g- 4 yr NPP Moreno (1996) PD [346]

313.7 g- 5 years NPP Mirza [2007] NSWCCA 257
340g- 6y min term Challita (1994) PD [211]

372.4 g- 4 years 3 months Govindaraju v Regina [2011] NSWCCA 255

378g-4.5 years NPP Ndubuisi (1992) PD [136]
430g- 5.5 (4y NPP) Rachid (1993) PD [422]

447 g- 4.5 years El Kaharni (1990) 51 A Crim R 123

453.8 g- 5 yr NPP Karacic (2001) 121 A Crim R 7
455g-7.5 years Muanchukingham (1990) 52 A Crim R 354

558.4 g- 6 years NPP Nguyen v Regina [2010] NSWCCA 132
586 g- 4 yrs NPP Blass (1994) PD [ 285 ]
667g- 4 years NPP Zielinski (1993) PD [319]
686 g-4.5 years Turner (1993) PD [318]
961 g pure-5 years NPP Gedid (1993) PD [235]
3lbs- 5.5 years Peisley (1992) 58 A Crim R 167
1.9 kg- 6 yrs NPP Lopez-Alonso (1996) PD [179]

1.9 kg- 6 yrs total, 3.25 yrs NPP- Chua [2001] NSWCCA 50
2.12 kg-8 NPP Banthadawit (1994) PD [210]
2.2 kg- 10.5 NPP Taha (NSW CCA 18/12/90)

2.54kg- 6 yrs NPP- Speer [2004] NSWCCA 118
5 kg-9 years plus 3 Postiglione (1992) 57 A Crim R 301
6kg -10 years plus 3 Pereira (1992) 57 A Crim R 46
6.9kg- 10 years plus 3 Mai and Tran (1992) 60 A Crim R 49

54 kg- 12 years NPP Leung (2003) 144 A Crim R 441

54 kg- 14 yrs NPP Vo (2000) 118 A Crim R 320
70 kg- 18 & 12 yrs NPP Yook (1996) 84 A Crim R 432

76 kg- 8 yrs 8 months Mo (2007) 169 A Crim R 60

76.3 kg-(central figure)- 19.6 years NPP Lee [2007] NSWCCA 234
78kg-13 yrs NPP Lara-Gomez (1996) PD [328]

252 kg heroin- 19 yrs NPP- Mandagi [2002] NSWCCA 57

252 kg- life- Chen (2002) 130 A Crim R 300

253 kg- 10 yrs NPP- Chan (2002) 128 A Crim R 119

See also Public Defenders

Schedule of Cases of Import

Heroin- Import Traffickable Quantity

Heroin- Import Commercial Quantity

A sentencing guideline has been handed down for import heroin and import cocaine: Regina v Wong and Leung (1999) 48 NSWLR 340, 108 A Crim R 531, based partly on El Karhani (1990) 51 A Crim R 123. It appears that the tariff takes into account the discount which formerly from section 16G Commonwealth Crimes Act (the discount for the fact that NSW has no remissions, but which has been repealed): Irusta (2000) 117 A Crim R 6.

The tariff sets out head (total) sentences for couriers and people low in the organisation as follows:

 

There was no particular assumption in Wong and Leung as to whether the sentences ranges were for after trial or on a plea of guilty, so an allowance may be made for the plea of guilty: Regina v Chea [2008] NSWCCA 78, Regina v SC [2008] NSWCCA 29 at para [30], Regina v Karacic (2001) 121 A Crim R 7 at para [50], Regina v Ogochukwu [2004] NSWCCA 473 at para [29]

This guideline was criticised by the High Court in Wong and Leung (2001) 207 CLR 584, partly because too much emphasis was given to the weight of the drug involved. Despite this fact, and the abolition of s. 16G of the Commonwealth Crimes Act (relating to giving a discount to take into account the repeal of remissions), the ranges suggested in Regina v Wong and Leung (1999) 48 NSWLR 340 remain a useful sounding board, and there should not be a mathematical increase in the ranges by 50%, although the abolition of s. 16G must be born in mind in having regard to those ranges: Rivadavia (2004) 61 NSWLR, 63, 149 A Crim R 1 esp at [84]. Differently constituted benches of the CCA have suggested that the guideline judgment is no longer a useful guide: Youssef v Regina [2011] NSWCCA 104.

Where a sentencing judge departs from the guideline judgment, the reasons for the departure should be 'articulated with some precision' and justified by reference to the subjective facts: Ceissman (2001) 119 A Crim R 535. A majority of the NSWCCA in DPP v De La Rosa [2010] NSWCCA 194 reconsidered cases of importation in the wake of the abolition of s. 16G and came up with the following analysis. In relation to the importation of the commercial quantity of narcotics, the following ranges of sentences were observed (this is very much in summary form):

(1) importation in the tens or hundreds of kilograms, value in the millions of dollars, no assistance, principal or part of the organising committee: head sentence in range 25 years to life, NPP in range 8.5 to 30 years;

(2) as in (1) but upper management role and plea of guilty: head sentences in the range 18 to 24.5 years, NPP in range of 10 to 16 years

(3) quantity of drugs below 7 kg, mid-range role, discount for assistance,: head sentences in the range 8-15 years, NPP in range 4 to 11 years

(4) lower role, often good character and no prior convictions: head sentence range 6.25 years to 8 years, NPP from 3 to 4.5 years.

It has been observed that DPP v De La Rosa was not a 'guideline judgment: Nguyen v Regina [2012] NSWCCA 184

For drug couriers, prior good character and hardship of being imprisoned in a foreign country are of limited weight: Pang (1999) 105 A Crim R 474, Ferrer-Esis (1991) 55 A Crim R 231 at 238, Klein (2001) 121 A Crim R 90 , Van Eeden v Regina [2012] NSWCCA 18.


The accused's position in the drug hierarchy is always relevant: Raz (NSW CCA u/r 17/12/92). If there is no evidence of whether or not the prisoner is a 'mere courier' or not the judge is not obliged to sentence him on the basis that he is a 'mere courier': Olbrich (1999) 199 CLR 270.

Cocaine Offences.

Cocaine is no longer to be regarded as less serious than heroin: Ferrer-Esis (1991) 55 A Crim R 231, Gibson (1991) 56 A Crim R 1, Pereira (1992) 66 ALJR 791. A guideline judgment has been handed down for importing cocaine and heroin: Regina v Wong and Leung (1999) 48 NSWLR 340, 108 A Crim R 531.The tariff it established is set out in the paragraph immediately above under Import Heroin.


Where there is a single instance of supplying a small amount of cocaine, it is not correct to say that there must be a custodial sentence in the absence of exceptional circumstances: Depalo [2003] NSWCCA 80.

Recent sentences for cocaine:

 

6.1 g supply- 1 year NPP- Poulsen [2002] NSWCCA 108

6.25 g- fine- Depalo [2003] NSWCCA 80
86g supply- 4 years Hull (1992) PD [323].

102 g- 5y 5m NPP Korgbara (2007) 170 A Crim R 568
350 g- 8.5 years Kogelbauer (1993) 65 A Crim R 357
493 g pure- 5 years Young (1992) PD [213]
1 k- 7 years Gibson (1991) 56 A Crim R 1

1.1 kg- 5.5 yrs NPP Gallego [2002] NSWCCA 529

1.3 kg pure- 10 years, NPP 6 years- Quesada (2001) 122 A Crim R 218
1.6 kg-4.5, 7.5 years Laurentiu & Becheru (1992) 63 A Crim R 402
1.6 kg- 6 yrs NPP Starface (1997) 96 A Crim R 452
1.8 k- 9 years plus 5 Ferrer-Esis (1991) 55 A Crim R 231

1.87 kilos pure- 8 years , 5 years NPP De La Rosa [2010] NSWCCA 194
1.9k- 6 yrs NPP Lopez-Alonso (1996) 86 A Crim R 270

2 kg supply- 4 yrs 9 m NPP- Cook [2002] NSWCCA 216
2 kg- 5.5 years NPP Bernier (1998) 102 A Crim R 44
2 kg- 6 years NPP Michaels (1993) 70 A Crim R 85
2 kg- 7 years NPP Von Giese (1994) PD [279]

2.1 kg- 7 years NPP Otto (2005) 157 A Crim R 525
2.5 kg- 8.5 yrs NPP Leff (1996) 86 A Crim R 212
3.5 kg- 6.5 y NPP Rodriguez (1994) PD [101]
3.37 kg- 5.5 years NPP Luckier (1993) PD [130]

3.7 kg- 8.5 years NPP Vasquez-Phillipe (2006) 167 A Crim R 321
4 kg- 9y plus 3 Kissner (1993) 69 A Crim R 83
4.3 kg- 6y NPP Warfield (1994) 73 A Crim R 516

5.7 kg- 10 yrs NPP Ra (2002) 131 A Crim R 133

7.5 kg- 8 years NPP Anderson [2004] NSWCCA 317

8.1 kg- 10y 8 m NPP Codero-Vidal (2002) 128 A Crim R 543

9.35 kg- 8 yrs NPP Wong and Leung (2002) 127 A Crim R 243

28kg- 12.3 yrs NPP Mazzitelli (2002) 135 A Crim R 132

62 kg- 10 y NPP Tamay (1996) PD [144]

171 kg pure- life with 25 years NPP Flavel [2001] NSWCCA 227

172 kg pure- life with 22 years NPP Gonzalez-Betes [2001] NSWCCA 226

367 kg import, 40-60 kg pure- 14 1/2 years with 8 1/2 years NPP- Sparos [2013] NSWCCA 223

383 kg- 20 years with 13 NPP Thompson [2007] NSWCCA 83

 

See also the Public Defenders

Schedule of Cases of Import Cocaine - less than commercial quantity

Schedule of Cases of Import Cocaine - commercial quantity

Amphetamine.


Recent sentences for amphetamine
:

 

Manufacture- 4years Spaliviero (1994) PD [49]
manufacture- 460g- 1-2.5 yrs Spanakis (1995) PD [308]
3 ks- 7 yrs mt Holland (1995) PD [27]

11g- 18 months Whittaker (1994) PD [283]
23.5 g- 1 yr mt Boustan (CCA 12/2/90)
49g- 1 yr mt Decandia (1994) PD [280]
4 supplies, 113g-4 yrs Hansel (1994) PD [282]

155 g- 2 yrs NPP- Stewart [2002] NSWCCA 165

242.5 g pure import- 4.5 years NPP- Dujeu (2004) 146 A Crim R 121
444g - 4 yrs Gudge (1995) PD [146]
496g-3 y 9 m mt Sullivan (1994) PD [209]

736g- 7 years, 4 years 6 months NPP- Tan [2001] NSWCCA 219

Also see the following schedules at the Public Defenders' web-site:
Supply less than commercial quantity amphetamine

Supply commercial quantity amphetamine

Supply large commercial quantity amphetamine

Manufacture commercial quantity amphetamine

Manufacture large commercial quantity

Ecstasy.


Ecstasy was considered a middle range drug: Robertson (WA CCA) (1989) 44 A Crim R 224, Crocker (1992) 58 A Crim R 359, Moore (1992) PD [324], Bowers (1997) 97 A Crim R 461, MacGregor (2000) 120 A Crim R 24. This approach was criticised in Regina v Nai Poon (2003) 56 NSWLR 284.

In Adams v The Queen (2008) ALR 270 the High Court rejected an argument that offences for possessing or supplying ecstacy should be less than offences relating to heroin. See also Pham v Regina [2009] NSWCCA 25.

Recent supply and import sentences
:

 

159.4 g pure- 3 yrs mt Dinic (NSW CCA 3/9/97)

321.1 grams - 3 years NPP- Wood [2008] NSWCCA 257

339.2 g pure- 7 yrs (4 yrs NPP) Poon (2003) 56 NSWLR 284

478 g- 6 years (3.5 years NPP)- Chin [2003] NSWCCA 267

572 g (146.5 g pure)- 5.5 NPP Solomons (2000) 114 A Crim R 89
657.3 g pure- 5 yrs NPP- MacGregor (2000) 120 A Crim R 24

798 g: 3.5 and 3 years Moore and Wiebe (1992) PD [324]

2 kilos- 4.5 years- Millerat [2005] NSWCCA 142

3.28 kg- 7 years NPP- Studenikin (2004) 60 NSWLR 1
7000 tablets- 4.5 years Bowers (1997) 97 A Crim R 461

4.37 k- 5 years, 3 months- El-Jalkh v Regina [2011] NSWCCA 236

10 000 tabs- 6 yrs, 3 yrs NPP Guiu (2002) 129 A Crim R 387

5.9 kg- 7.5 yrs NPP Sukkar [2007] NSWCCA 298

46,000 tabs- 9 yrs, 4.5 yrs NPP Lim and Yeung [2002] NSWCCA 293

34.4 kg- 14 years, 9 years NPP- Sukkar [2005] NSWCCA 54

See also the Public Defenders:

Schedule of Cases of Import Ecstasy less than commercial quantity

Schedule of Cases of Import Ecstasy Commercial Quantity

Schedule of Cases of Supply Ecstasy Large Commercial Quantity

Supply on an Ongoing Basis

Prior good character remains relevant in ongoing supply sentences: Bidgood v Regina [2016] NSWCCA 138 esp at para [61].

Some sentences for supply on an ongoing basis (3 occasions within 30 days) (s. 25A Drug Misuse and Trafficking Act):

 

Hoon and Pouoa [2000] NSWCCA 137- 14 months, 8 mnths NPP

Nuth [2001] NSWCCA 318- 3 years, 18 months NPP

Kamminga [2003] NSWCCA 337- 3 years, 2 years NPP

Zarei [2002] NSWCCA 350- 4 years, 2 yrs NPP

Hennock [2002] NSWCCA 229- 4 yrs, 2 yrs NPP

Boardman [2001] NSWCCA 431- 3 yrs, 2 yrs 3 months NPP

Fogg [2002] NSWCCA 395- 3.5 yrs, 2 yrs 3 months NPP

Gill [2002] NSWCCA 93- 3.5 yrs, 2.5 yrs NPP

Radford [2002] NSWCCA 122- 6 yrs, 4 yrs 6 months NPP

Siljanovski [2003] NSWCCA 38- 6 yrs, 3 yrs NPP



Import Cannabis Resin.

For large scale imports of cannabis (5k plus) average sentences are 4 years for guilty pleas and 5 years for not guilty: Van de Heuval (1992) 63 A Crim R 75.
Recent cases
:

 

2.4 kg- 15 m mt Vermuelen (1994) PD [102]
2.8 kg- 4 y NPP Stopp (1994) PD [318]
9.5 k leaf, 7.9 k resin- 3 years Monahan (1992) PD [126].
20 kg- 3 years Van de Heuval
600lbs- 3 years Sheppard (1992) PD [318]
10 tonnes- 16 years NPP Saxon (1996) 86 A CrimR 35
3

See the Public Defenders' Schedule of Cases of Import the commercial quantity of cannabis resin.


Cultivate
:

 

48 plants- 18 months Osborne (1993) PD [207] 255 plants- 1 yr 9 m NPP Wong v Regina [2010] NSWCCA 160
385 seedlings- 15 m McPhail (1995) PD [28]
1500 plants- 2 yrs Spencer (1996) PD [193]

2742 plants - 3 yrs 2 months NPP- Gattellari & McRae [2007] NSWCCA 5
4000 plants-5 yrs mt Rizzotto (1996) PD [227]
20000 plants-2 years Riley (1993) PD [33
]


It is not true to say that there must be a custodial sentence for cultivation: Moy (1995) PD [270].

See also the Public Defenders':

Schedule of Cases of Cultivate less than the commercial quantity
Schedule of Cases of Cultivate the Commercial Quantity

Schedule of Cases of Cultivate the Large Commercial Quantity

Controlled Deliveries.

Where there is a controlled delivery of a small amount, but evidence of an intention to have a larger amount, you are sentenced as for the larger amount: Laurentiu (1992) 63 A Crim R 402, Mai and Tran (1992) 60 A Crim R 49. However the maximum sentence is limited by the amount of the actual drug: Laurentiu.

High Range PCA

A guideline judgment for the offence of high range pca has been handed down: Application by the Attorney General (no 3 of 2002) (2004) 61 NSWLR 305, 147 A Crim R 546 . The guideline was in the following terms:

 

(1) An ordinary case of the offence of high range PCA is one where:

 

(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender's licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence
.

(2) In an ordinary case of an offence of high range PCA:

 

(i) an order under s 10 of the Sentencing Act will rarely be appropriate;
(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include
:

 

(a) the nature of the offender's employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person
.

(3) In an ordinary case of a second or subsequent high range PCA offence:

 

(i) an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate
.

(4) The moral culpability of a high range PCA offender is increased by:

 

(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;

(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the drivin
g

(5) In a case where the moral culpability of a high range PCA offender is increased:

 

(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate
.

(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:

 

(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate
.

(d) Subjective Factors.

Criminal Record.


Having a long record does not act as an aggravating factor but can lead to refusing to mitigate: Baumer (1989) 40 A Crim R 74. Having a record does not allow the court to impose a sentence which is disproportionate to the gravity of the offence, but having a record may mean that retribution, deterrence and protection of society may indicate that a more serious sentence is warranted: Johnson [2004] NSWCCA 76. This continues to be the case for offences to which s. 21A Crimes Sentencing Procedure Act applies: Johnson [2004] NSWCCA 76.

It is incorrect to say that that the record aggravates the offence: Blair (2005) 152 A Crim R 462. It is necessary for the judge to refer to the way in which the offender's criminal history is taken into account, rather than simply referring to s. 21A(2)(d): Walker [2005] NSWCCA 109 at para [32].

Where an offender has been found guilty of an offence in the Children's Court, but no conviction has been recorded, and the offender is being sentenced for an offence, but did not commit another offence within 2 years of the offence in the Children's Court, evidence of the earlier finding of guilt is inadmissible: s. 15 Children (Criminal Proceedings) Act. See also Siddiqui v Regina [2015] NSWCCA 169 esp at para [63].

Good Character.

The fact that an offender does not have a record of previous convictions is a mitigating factor (s. 21A (3) (e) Crimes (Sentencing Procedure) Act). The accused's prior good character is a mitigating factor (s. 21A (3) (f) Crimes (Sentencing Procedure) Act). It is an error to treat the offences for which the offender is being sentenced as resulting in the offender not being to have any benefit from no prior convictions and prior good character: Lozanovski [2006] NSWCCA 143 esp at paras [10] to [12]. Prior good character is less relevant in offences which involve a breach of trust: Ryan (1998) 5 Crim LN [829]. Previous good character always entitles an offender to some leniency: Ryan v the Queen (2001) 206 CLR 267.

The Court of Criminal Appeal has said that there is no principle that good character has less weight in firearms offences (Regina v Athos [2013] NSWCCA 205 esp at para [44], but there is authority that it has less weight in the following offences (Regina v Athos [2013] NSWCCA 205 at para [36]:

 


(1) Child pornography offences (R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [64])

(2) White-collar crime (Gent at [59]);


(3) Drink driving offences (Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act) [2004] NSWCCA 303; (2004) 61 NSWLR 305);


(4) Drug couriers (R v Leroy (1984) 2 NSWLR 441 at 446-447);


(5) Federal drug importation offences to which s 16A(2)(m) Crimes Act 1914 (Cth) has application (Gent at [56]); and,


(6) Child sex offences (Ryan at [34]).



Children.

In sentencing children general deterrence and personal punishment must give way to rehabilitation: Smith (1964) Crim LR 70, Ford (unreported 22/3/88 ), GDP (1991) 53 A Crim 112, XYJ (1992) PD [133], and KT v Regina [2008] NSWCCA 51 esp at paras [22] to [25]. The principle applies less strongly when the offender is close to 18 years old: Tran [1999] NSWCCA 109. This applies less strongly where offences are those usually committed by adults: Pham and Ly (1991) 55 Crim R 128. In KT v Regina [2008] NSWCCA 51 McClellan CJ at CL said important factors in determining whether a young offender had engaged in 'adult behaviour' were whether weapons were used, whether there was planning or premeditation, whether the offender had an extensive criminal history, and the nature and circumstances of the offence (at para [25]). The principles may continue to have effect even after an offender has turned 18: Regina v BP [2010] NSWCCA 159 at para [5].

Effect on Family.

The effect of a sentence on the accused's family is only mitigation in 'truly exceptional' circumstances: Day (1998) 100 A Crim R 275, Wayne (1992) 62 A Crim R 1, Edwards (1996) 90 A Crim R 510. However recently it has been held that although exceptional circumstances are required before the effect on an offender's family will be taken into account as a specific matter leading to a substantial reduction or elimination of imprisonment, a sentencing judge can take into account the effect of imprisonment on the offender's family as part of the general mix of subjective matters: Girard [2004] NSWCCA 170 and Regina v Nguyen (2006) 166 A Crim R 124 especially at paras [27] to [29].
This is also the case in Commonweaalth offences, particularly because of s. 16A (2) (p) of the Commonwealth Crimes Act : see DPP v Pratten (No. 2) [2017] NSWCCA 42 esp at paras [55] to [57] and Kaveh v The Queen [2017] NSWCCA 52 esp at para [6].

Pregnancy and Children.


Pregnancy is a significantly mitigating factor: Ihn (1994) PD [117]. A custodial sentence on a woman with children will bear more heavily: Leonard (1996) PD [208]. The relevance of the fact that an offender is the mother of a young child is undoubted: HJ v Regina [2014] NSWCCA 21 esp at para [66].

Cross Roads.

Even with an older person who has a long record, the sentencing judge may take the view that the person is at the cross-roads and that leniency at that point may lead to reform: Osenkowski (1982) 5 A Crim R 394.

Aboriginality.

The same sentencing principles apply to Aboriginals as to other members of the community, but Aboriginality is a relevant factor: Fernando (1992) 76 A Crim R 58. In that case Wood J said that:

 

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing courts should ignore those facts which exist only by reason of membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the use of alcohol by members of the Aboriginal society or their resort to violence when heavily effected by it, the courts must be very careful in the pursuit of their sentencing policies to not deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or a mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, whilst it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

The principles in Fernando apply even if the prisoner has a long record: Cook [1999] NSWCCA 234, Peterson [2000] NSWCCA 47.

The fact that the offender is an Aboriginal of itself is not a mitigating factor without evidence that the offender was effected by the social and economic problems of Aboriginal communities: Pitt [2001] NSWCCA 156, Newman and Simpson (2004) 145 A Crim R 361.

The principles in Fernando may be restricted to Aboriginals in a remote or rural setting: Ceissman (2001) 119 A Crim R 535, [2001] NSWCCA 73. The principles may have little effect in the case of Aboriginals not from an isolated rural background, and not alcohol related background: Morgan (2003) 57 NSWLR 533 (this case quotes the Fernando principles in full). However in Kennedy v Regina [2010] NSWCCA 260 the court rejected an argument that Fernando principles did not apply to an offender because he did not come 'a remote part of the community' (at para [57]) and in particular paragraph (E) quoted above may apply to non-Aboriginal offenders (at para [53]).

DDs and the Mentally Ill.


General deterrence cannot be justified with DDs: Kilmartin (1989) 41 A Crim R 22. General and specific deterrence play little role in sentencing the mentally ill: Anderson [1981] VR 155, (1980) 2 A Crim R 379, Roadley (1990) 51 A Crim R 336, Letteri (1992) PD [74], Scognamiglio (1991) 56 A Crim R 81, Champion (1992) 64 A Crim R 244, B (1993) 68 A Crim R 545.

It is not always necessary to establish a link between the mental illness and the crime: Engert (1996) 84 A Crim R 67, Benitez (2006) 160 A Crim R 166.

Mental illness as a mitigating factor is not limited to the mitigating factor s. 23A (3) (j) of the Crime (Sentencing Procedure) Act, which says that mitigating factors include that 'the offender was not fully aware of the consequences of his or her actions because of the offender's age or disability': see Regina v Watts [2010] NSWCCA 315 esp at para [24].

Sperling J. summarised the significance of mental illness in sentencing this way in Regina v Hemsley [2004] NSWCCA 228 at paras [33] to [36]:

33 Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].


34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].


35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

36 A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].

More recently, McClellan CJ at CL summarised the principles this way in DPP (Cth) v De La Rosa [2010] NSWCCA 194 (at para [177]):

177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

The same principles don't apply to psychopaths (Steele (1994) PD [221]) or where loss of control caused by drinking to excess: Powell (1993) PD [137].Where a mentally ill offender has not been taking medication prescribed to treat his mental illness, less weight can be given to mental illness as a mitigating factor: Regina v Clay [2007] NSWCCA 106 esp at para [26]. The fact that an offender has a mental illness does not necessarily mean that a custodial sentence will be more onerous (Catley v Regina [2014] NSWCCA 249 esp at para [58]).

Alcohol
.

At common law the position was that alcohol may aggravate (eg reckless) or mitigate (eg out of character) the offence: Coleman (1990) 47 A Crim R 306. See also SK v Regina [2009] NSWCCA 21.
In ZZ v Regina [2013] NSWCCA 83 it was said that the fact that the offender was intoxicated will only rarely mitigate the offence, especially in matters of violence (esp at para [110]).

By statute 'self-induced intoxication' is no longer a mitigating factor: s. 21A (5A) Crimes (Sentencing Procedure) Act.

 

Drugs.

The fact that the prisoner was addicted to drugs and was committing crime to feed his habit is not a mitigating factor of itself, but it may be relevant to the objective criminality (impulsivity, absence of aggravating factor like greed as motive, effect on judgment) or the subjective circumstances (rehabilitation, where addiction not a choice, or prisoner at the 'cross-roads' (Henry (1999) 46 NSWLR 346, 106 A Crim R 149). Cases where the addiction was not a matter of choice include cases where the offender becomes addicted to prescription medication (see Turner v Regina [2011] NSWCCA 189) and cases where the offender becomes addicted to drugs because of an injury (see Jodeh v Regina [2011] NSWCCA 194).

 

Gambling addiction

Having a gambling addiction will exceptionally only be a mitigating factor in a fraud case: Assi [2006] NSWCCA 257, Ourdi v Regina [2009] NSWCCA 46, and Johnston v Regina [2017] NSWCCA 53 esp at paras [36], [40] to [41].

Health and AIDS.
If health problems (such as AIDS) make imprisonment more burdensome, or risks having a grave effect on the prisoner's health, that is a special circumstance and can effect the length of imprisonment. In Smith (1987) 27 A Crim R 315 King CJ said (at 317):

“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”

The proposition that ill health mitigates punishment only in cases where imprisonment will be a greater burden or where there is a serious risk of it having a gravely adverse effect on the offender's health has been followed in many cases: Sellen (1991) 57 A Crim R 313, Eliasen (1991) 53 A Crim R 391 (Vic), Bailey (1988) 35 A Crim R 458, Leighton v Regina [2010] NSWCCA 280 at para [35].

Fatal illness is a special circumstance: Vento (1993) PD [345], Doyle (1992) PD [228], Giardini (1993) PD [140].

Time in Protection
.
A generous discount should be given for serving a sentence in protection: Cartwright (1989) 17 NSWLR 243 at 255-6, Hrastovicak (CCA 15/3/90), Burchell (1987) 34 A Crim R 148 at 151.
It is important to attempt to call evidence of the likely practical effect of the offender serving his sentence in protection: Totten [2003] NSWCCA 207, C v Regina [2013] NSWCCA 81.

Other Punishment.

'Extra-curial punishment' is a matter the court could take into account: Allpass (1993) 72 A Crim R 561, Daetz [2003] NSWCCA 216. This includes a case where the accused is shot in the course of being arrested: Regina v Webb (2008) 149 A Crim R 167. However it does not include the offender being assaulted in gaol, when the assault is unrelated to the offence: Silvano v Regina (2008) 184 A Crim R 593.
That is the case even where the injuries are self-inflicted, for example, where the offender sustains injuries because equipment used in an amphetamine 'cook' explodes: Alameddine [2006] NSWCCA 317 esp at paras [23] to [24]. This does not apply to deliberate self injury: Christodoulou v Regina [2008] NSWCCA 102.

Time in Rehab.

In Eastway (CCA 19/5/92 u/r) the CCA approved the sentencing judge giving the prisoner credit for 50% of the period he spent in residential rehabilitation for drug abuse. See also Psaroudis (1996) PD [356], Campbell [1999] NSWCCA 76 and Brown v Regina [2013] NSWCCA 44 esp at paras [21] to [27]. If it is found that the judge has not taken into account time spent in residential rehabilitation, error has been established: Sullivan [2002] NSWCCA 312, Delaney (2003) 59 NSWLR 1 and Renshaw v Regina [2012] NSWCCA 91 esp at paras [28] to [29].
Similarly time spent in a drug court program can be take into account: Bushara [2006] NSWCCA 8. Time in residential rehabilitation which the offender has not yet undertaken should not be taken into account: Williams v Regina [2013] NSWCCA 15.

Time spent on Bail

The time that an offender has spent on bail should be taken into account on sentence especially if the bail conditions were onerous: Fowler (2003) 151 A Crim R 166.

Likelihood of Deportation.

The likelihood of deportation is not a proper basis to refuse to nominate a period of parole: Shrestha (1991) 173 CLR 48, 54 A Crim R 217, He v Regina [2016] NSWCCA 223 esp at para [23]. The fact that foreign nationals can't go through classification in prison is of little weight: Kogelbauer (1993) 65 A Crim R 357, but see Schaal (1993) PD [45]. It has been held that deportation was an irrelevant consideration in sentencing: Pham [2005] NSWCCA 94 at para [13].

Financial Hardship.

Financial hardship the direct result of pleading guilty is relevant to sentence: T (1989) 47 A Crim R 29.

Employment.

Courts should be slow to imprison a young person in employment: Hassan (1996) PD [301].

Back to Top of Page

Return to Index