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Purposes of sentencing

To top [2-200] The common law

Section 3A Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court can impose a sentence. Given that s 3A does not depart from the common law (see further below), the starting point for any discussion of the purposes of punishment must be Veen v The Queen (No 2) (1988) 164 CLR 465 where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

“… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said at 68 after discussing Veen v The Queen (No 2):

“A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. …

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

The common law concepts of parsimony and retribution, and their application in NSW are discussed at [2-295] and [2-297] respectively.

To top [2-210] Section 3A

Section 3A sets out the following seven purposes “for which a court may impose a sentence on an offender”:

(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 to the community.

The High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

“The purposes there stated [in s 3A] are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law [Veen v The Queen (No 2) at 476–477]. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.” [Relevant footnote references included in square brackets.]

In Re Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196, Spigelman CJ at [57]–[60] raised the question of whether the terms of s 3A(e) and (f) constituted a change from the common law approach. The above statement in Muldrock suggests that s 3A does not depart from the common law. See also other comments to the same effect in R v MA (2004) 145 A Crim R 434 at [23]; R v King (2004) 150 A Crim R 409 at [130]; R v MMK (2006) 164 A Crim R 481 at [10].

It is an appellable error to fail to address the purposes of sentencing at all: R v Stunden [2011] NSWCCA 8 at [112]. A failure to expressly refer to each does not mean that they were not considered: R v Stunden at [113].

The following discussion will elaborate upon each of the subsections in s 3A.

To top [2-230] To ensure that the offender is adequately punished for the offence: s 3A(a)

Section 3A(a) incorporates the common law principle of proportionality, as acknowledged in R v Scott [2005] NSWCCA 152. Howie J, Grove and Barr JJ agreeing, said at [15]:

“There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. This principle arose under the common law: R v Geddes (1936) SR (NSW) 554 and R v Dodd (1991) 57 A Crim R 349. It now finds statutory expression in the acknowledgment in s 3A of the Crimes (Sentencing Procedure) Act that one of the purposes of punishment is ‘to ensure that an offender is adequately punished’. The section also recognises that a further purpose of punishment is ‘to denounce the conduct of the offender’.”

The principle of proportionality operates to guard against the imposition of unduly lenient or unduly harsh sentences. The principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: R v McNaughton (2006) 66 NSWLR 566 at [15]; Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; Hoare v The Queen (1989) 167 CLR 348 at 354; R v Dodd (1991) 57 A Crim R 349 at 354 and R v Whyte (2002) 55 NSWLR 252 at [156]–[158].

In R v Dodd (1991) 57 A Crim R 349 the court explained that the process of applying the principle of proportionality involves assessing the relative seriousness of the crime. The court said at 354:

“As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594.”

To top [2-240] To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)

Section 3A(b) gives statutory recognition to the common law principles of specific or personal deterrence and general or public deterrence. Deterrence theory is predicated on the assumption that the harsher the punishment the greater the deterrent effect. The utility of general deterrence has been questioned (see discussion below). The use of the word “similar” in “deterring the offender and other persons from committing similar offences” in s 3A(b) has not been the subject of judicial comment to date.

It is axiomatic that the purpose of the criminal law is to deter not only the offender but also others who might consider breaking the law. The Court of Criminal Appeal has over the last 50 years consistently cited with approval the New Zealand decision of R v Radich [1954] NZLR 86 (first in R v Goodrich (1955) 72 WN (NSW) 42 and more recently in R v AEM [2002] NSWCCA 58 at [92]). The New Zealand Criminal Court of Appeal said at 87:

“… one of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment.”

The High Court in Munda v Western Australia (2013) 87 ALJR 1035 at [54] affirmed the place of general and specific deterrence in sentencing law (see below) and again in Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186 at [65] on the question of setting deterrent civil penalties (see below).

In R v Harrison (1997) 93 A Crim R 314 at 320 Hunt CJ at CL said at 320:

“Except in well-defined circumstances such as youth or the mental incapacity of the offender … public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed.”

Deterrence is omnipresent in sentencing law. General deterrence might be regarded as important because of the notoriety of the offender: R v Mauger [2012] NSWCCA 51 at [39], citing R v Wilhelm [2010] NSWSC 378 at [30]. It has been held that weight should be given by a court to specific and general deterrence for a range of offences which include:

  • Armed robberies: Tilyard v R [2007] NSWCCA 7 at [22]; and when committed by young offenders in R v Sharma (2002) 54 NSWLR 300.

  • Firearm offences: R v Howard [2004] NSWCCA 348 at [65]–[66]; and particularly when multiple shots were fired in Haidar v R [2007] NSWCCA 95 at [57].

  • Drug offences: importing narcotics in R v Bezan (2004) 147 A Crim R 430 at [37]; and supplying prohibited drugs in R v Ha [2004] NSWCCA 386 at [20]; Ma v R [2007] NSWCCA 240 at [97].

  • Fraud offences: defrauding the revenue in R v Howe [2000] NSWCCA 405 at [13]; social security fraud in Johnsson v R [2007] NSWCCA 192 at [40]; fraud by a public officer in Studman v R (2007) 175 A Crim R 143 at [11], [39]; insider trading in R v Rivkin (2004) 59 NSWLR 284 at [423]; R v Hannes (2002) 173 FLR 1; [2002] NSWSC 1182; and crimes involving the market or other forms of business dealings in R v Pogson (2012) 82 NSWLR 60 at [143]; calculated contravention of legislation where commercial profit is the driver of the contravening conduct: Australian Competition and Consumer Commission v TPG Internet Pty Ltd at [65].

  • Offences committed against police officers acting in the course of their duty: R v Adam [1999] NSWSC 144 at [44]–[45]; Curtis v R [2007] NSWCCA 11 at [85].

  • Offences against justice: R v Nomchong (unrep, 10/4/1997, NSWCCA) including contempt in Field v New South Wales Crime Commission [2009] NSWCA 144 at [20] quoting Kirby P’s reference in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314–315 to DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.

  • Violent offences: committed in a domestic context: Simpson v R [2014] NSWCCA 23 at [35]; Smith v R [2013] NSWCCA 209 at [69]; R v Hamid (2006) 164 A Crim R 179 at [68]; and premeditated violence, particularly leading to grievous bodily harm, in R v Najem [2008] NSWCCA 32 at [33].

  • Solicit to murder: R v Potier [2004] NSWCCA 136 at [56].

  • Sexual offences involving children: R v ABS [2005] NSWCCA 255 at [26]; R v CMB [2014] NSWCCA 5 at [47]–[48]; and possession of child pornography in R v Gent (2005) 162 A Crim R 29 at [65]; Minehan v R (2010) 201 A Crim R 243 at [98].

  • Sexual assaults: where the offender took advantage of the fact that the complainant was asleep in Dean v R (2006) 166 A Crim R 341 at [52].

  • Offences committed in prisons: R v Hoskins [2004] NSWCCA 236 at [63].

  • Drink driving offences: Application by the Attorney-General Under Section 37 Crimes (Sentencing Procedure) Act For a Guideline Judgment Concerning the Offence of High-Range Prescribed Concentration of Alcohol Under Section 9(4) Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305 at [118]–[119].

  • Offences dealt with on a Form 1 under s 33 Crimes (Sentencing Procedure) Act: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 at [42].

  • Offences involving a breach of trust: white collar offenders in R v El Rashid (unrep, 7/4/95, NSWCCA) and R v Pont (2000) 121 A Crim R 302 at [36]; legal practitioners in R v Pangallo (1991) 56 A Crim R 441; police officers in R v Patison (2003) 143 A Crim R 118 at [45]; and priests in R v Ryan (No 2) [2003] NSWCCA 35 at [26].

Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; R v Rice (2004) 150 A Crim R 37 at [26]; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566 at [54].

The operation of general or personal deterrence can be affected by the prominence of other principles in the circumstances of the case. Some examples are:

  • Evidence of rehabilitation may mitigate the need for personal deterrence: Stanford v R [2007] NSWCCA 73 at [19].

  • The motive for the commission of the offence may have a mitigating effect on the need for personal deterrence, but the more serious the offence committed the less weight can be given to motive as a mitigating factor: R v Mitchell (2007) 177 A Crim R 94 at [31]–[32].

  • Where an offender acts under duress, considerations of deterrence, rehabilitation, retribution and community protection may be “appreciably different” than in usual cases: Papadopoulos v R [2007] NSWCCA 274 at [176]–[177].

  • The offender is a person with a very low risk of re-offending: R v Mauger [2012] NSWCCA 51 at [39].

Mental condition and deterrence

General deterrence is attributed little weight in cases where the offender suffers from a mental condition or abnormality because such an offender is not an appropriate medium for making an example of: Muldrock v The Queen (2011) 244 CLR 120 at [53]–[54]; R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81. In R v Wright (1997) 93 A Crim R 48 at 51 Hunt CJ at CL said that, while this was an accepted principle, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. See also R v Letteri (unrep, 18/3/92, NSWCCA), R v Israil [2002] NSWCCA 255 per Spigelman CJ at [21]–[23] and R v Matthews (2004) 145 A Crim R 445 Wood CJ at CL at [22]–[27]. In R v Lawrence [2005] NSWCCA 91, Spigelman CJ, when considering a case involving an applicant with diagnoses of antisocial personality disorder and polysubstance abuse — recognised in the Diagnostic and Statistical Manual of Mental Disorders DSM (IV), 4th edn, American Psychiatric Association, 2000, Washington DC — concluded that it was by no means clear that such mental conditions should always justify reducing the application of general deterrence. At [23] the Chief Justice said:

“Although DSM(IV) has come to be widely used … it should not be assumed that … [by] affixing a label to a mental condition … [the] condition is such as to attract the sentencing principle that less weight is to be given to general deterrence …”.

See further “The relevance of an offender’s mental condition” in Subjective Matters Taken into Account (cf s 21A(1)) at [10-460].

Arguments about the limited utility of general deterrence

The effectiveness of general deterrence has always been the subject of debate. King CJ in Yardley v Betts (1979) 1 A Crim R 329 at 333 remarked:

“The courts must assume, although the evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime.” [Emphasis added.]

In Munda v Western Australia (2013) 87 ALJR 1035 at [54], the High Court acknowledged that general deterrence may have limited utility in some circumstances:

“It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence …”

The court’s second point (at [43]) was to agree with an observation by McLure P in the WA Court of Appeal (Western Australia v Munda [2012] WASCA 164 at [65]) that “addictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending”. The fact that the offence was committed where the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant’s offending.

The court’s third point was to affirm (at [58]) Gleeson CJ’s observation in R v Engert (1995) 84 A Crim R 67 at 68 that the:

“… interplay of the considerations relevant to sentencing may be complex … in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance ...

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances …”.

The High Court in Munda also affirmed (at [59]) a statement in Wong v The Queen (2001) 207 CLR 584 at [74]–[76] adopted by the joint judgment in Markarian v The Queen (2005) 79 ALJR 160 at [37] that the description of the balance struck by a sentence as an “instinctive synthesis” is not used:

“… to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features”.

In later case of Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186, the court held that general and specific deterrence must play a primary role in assessing the appropriate civil penalty in cases of calculated contravention of legislation for commercial profit: at [65].

Deterrence to be applied notwithstanding criticisms

Before the enactment of s 3A(b) (which affirmed the continued relevance of deterrence), Spigelman CJ said in R v Wong (1999) 48 NSWLR 340 at [127]–[128] that legislation would be required to change the court’s approach to deterrence:

“There are significant differences of opinion as to the deterrent effect of sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter.

Deterrence only works to the extent to which knowledge is transmitted to potential offenders about actual sentencing practice. Guideline judgments are a mechanism for increasing the efficiency of the transmission of such knowledge. Deterrence is an appropriate basis for promulgation of a guideline. (See Henry [(1999) 46 NSWLR 346] at [41] and [205]–[211]; Police v Cadd (1997) 94 A Crim R 466 at 511; and my address ‘Sentencing Guideline Judgments’ 11 CICJ 5 at 10–11; 73 ALJ 876 at 880–881).”

In R v Miria [2009] NSWCCA 68 at [8], the sentencing judge erred by omitting to incorporate any reflection of general deterrence in his sentencing assessment. The sentencing judge echoed the first part of Spigelman CJ’s comments in R v Wong concerning the “significant differences of opinion as to the deterrent effect of sentences”, but did not heed the Chief Justice’s qualification which recognised the legal imperative to acknowledge general deterrence: R v Miria at [13]. The sentencing judge stated that “[t]he general deterrent effect of any sentence is debatable, given that it will at best be published as a statistic and thus unlikely to cause anyone else to act differently”: R v Miria at [7]. However, there is no legal authority permitting a judge to dismiss general deterrence as a factor for assessment in sentencing: R v Miria at [11].

General deterrence may be controversial in relation to some offences, but this is not the case with respect to crimes involving the market or other forms of business dealings: R v Pogson (2012) 82 NSWLR 60 at [143].

In the context of civil penalties, the High Court has held that pecuniary penalties should be fixed according to what might reasonably be thought as appropriate to serve as a real deterrent to the corporate offender and to its competitors: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186 at [66].

To top [2-250] To protect the community from the offender: s 3A(c)

Parliament did not intend by the enactment of s 3A(c) to introduce a system of preventative detention contrary to the principles expressed by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465: Aslett v R [2006] NSWCCA 49 at [137].

At common law it was accepted that the various purposes of punishment were said to achieve the single or main purpose, that of protecting the community from crime: R v Goodrich (1952) 70 WN (NSW) 42; R v Radich [1954] NZLR 96; R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274; Munda v Western Australia [2013] HCA 31 at [54]. In R v Zamagias [2002] NSWCCA 17 Howie J said at [32]:

“It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”

In Veen v The Queen (No 2) the court held that while protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of further offending by the offender: at 472, per Mason CJ, Brennan, Dawson and Toohey JJ. The court added at 473:

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

There are statutory exceptions to the principle prohibiting preventative detention in NSW, particularly the Habitual Criminals Act 1957 and the Crimes (Serious Sex Offenders) Act 2006. Proclamations under the Habitual Criminals Act are extremely rare: Strong v The Queen (2005) 224 CLR 1. The High Court discussed preventative detention legislation in Australia in Buckley v The Queen (2006) 80 ALJR 605 at [2].

The prior criminal record of an offender is a powerful factor to be considered when having regard to retribution, personal deterrence and the protection of the community: R v Baxter [2005] NSWCCA 234 at [39]. Although fresh punishment may not be imposed for past offences, it is legitimate to take into account the antecedent criminal history of the offender when it shows his or her dangerous propensity: Veen v The Queen (No 2).

Predicting dangerous behaviour

In Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 Gleeson CJ said at [12]:

“No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles … permit or require such predictions at the time of sentencing, which will often be many years before possible release.”

Kirby J on the other hand discussed the unreliability of predictions of criminal dangerousness in Fardon v Attorney General for the State of Queensland at [124]–[125].

Findings as to future dangerousness and likelihood of reoffending do not need to be established beyond reasonable doubt: R v SLD (2003) 58 NSWLR 589 at [40]. In R v SLD, a case where the 13 year old offender fatally stabbed a three year old girl, the sentencing judge took into account that the applicant poses “a significant risk of recidivism and of being a serious risk to the community in terms of potentially killing again or committing sexual offences”. The court stated at [40]:

“A sentencing judge is not bound to disregard the risk that a prisoner would pose for society in the future if he was at liberty merely because he or she cannot find on the criminal onus that the prisoner would re-offend. The view that the risk of future criminality can only be determined on the criminal standard is contrary to all the High Court decisions since Veen (No 1).”

R v SLD was approved in R v McNamara [2004] NSWCCA 42 at [23]–[30] and Knight v R (2006) 164 A Crim R 126 at [30]. Earlier, in R v Harrison (1997) 93 A Crim R 314 at 319, the court held that a sentencing judge is not required to be satisfied beyond reasonable doubt that an offender will in fact re-offend in the future. It is sufficient, for the purpose of considering the protection of the community, if a risk of re-offending is established by the Crown.

To top [2-260] To promote the rehabilitation of the offender: s 3A(d)

Rehabilitation as a purpose of sentencing is aimed at the renunciation by the offender of his or her wrongdoing and the offender’s establishment or re-establishment as an honourable law-abiding citizen: Vartzokas v Zanker (1989) 51 SASR 277 at 279. It has long been recognised as an important consideration in sentencing offenders, even in cases where the seriousness of the objective circumstances call for a custodial sanction. The concept of rehabilitation includes ensuring that an offender will not re-offend by addressing underlying issues that bear upon the risk of recidivism: R v Pogson (2012) 82 NSWLR 60 at [103]. However, rehabilitation as a concept is broader than merely avoiding re-offending. In R v Pogson, McClellan CJ at CL and Johnson J at [124]–[125], Price, RA Hulme and Button JJ agreeing at [152], [155]–[156], stated:

“[R]ehabilitation has as its purpose the remodelling of a person’s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker at 279 (King CJ).

In this sense, every offender is in need of rehabilitation. Some may need greater assistance than others.”

Rehabilitation has been described as one of the cornerstones of sentencing discretion: R v Cimone (2001) 121 A Crim R 433 per Beazley JA at [19]; and “[t]he prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being almost axiomatic”: R v Ponfield (1999) 48 NSWLR 327 per Grove J at [38].

Voluntary cessation of criminal activity provides strong evidence of rehabilitation: R v Burns [2007] NSWCCA 228 at [30].

In R v Groombridge (unrep, 30/9/90, NSWCCA) Wood J, with whom Hunt and McInerney JJ agreed, said at [8]–[9]:

“Judges need to be astute to detect cases where, after a poor record, a turning point or watershed in the life of a young offender has been reached, see R v Caridi CCA, unreported, 3 December 1987.

There is a strong public interest in rehabilitation, both for the benefit of the community and the individual. That interest of rehabilitation may properly be taken into account in determining whether or not to impose a fixed term. Additionally, if a minimum and additional term are imposed, it may also be taken into account in relation to each leg of the sentencing process. The force of rehabilitation is not confined to the minimum term to the exclusion of the additional term or vice versa, for the reasons explained by this court in R v Moffitt, unreported, 21 June 1990 and R v Chee Beng Lian, unreported, 28 June 1990.”

Sentencing judges must be vigilant to ensure that submissions to the effect that an offender is “at a turning point in his or her life”, “has seen the error of his or her ways”, or “has excellent prospects of rehabilitation”, are not accepted uncritically, or at face value: R v Govinden (1999) 106 A Crim R 314 at [35].

Rehabilitation while at large

Although genuine rehabilitation occurring while the offender has been at large after absconding is not to be ignored entirely, it cannot be given the same significance as rehabilitation during delay not brought about by the applicant: R v Warner (unrep, 7/4/97, NSWCCA) per Simpson J; and R v Nahle [2007] NSWCCA 40 at [25], where the court confirmed that the respondent could not receive full consideration for his rehabilitation, due to his conduct in absconding.

Rehabilitation and delay between offence and sentencing

Where there has been a substantial delay in prosecution and the offender is successfully rehabilitated and has refrained from re-offending, those matters will be relevant to determining a sentence that is proportionate to the offence and appropriate to punish the offender: AJB v R (2007) 169 A Crim R 32 at [29]–[30] (delay of 24 years); Kutchera v R [2007] NSWCCA 121 at [27]–[28]; Wright v R [2008] NSWCCA 91 at [14].

The non-parole period and rehabilitation

The parole system is an important influence for reform of those in gaol, a basis of hope for earlier release and an incentive for rehabilitation of the offender: Bugmy v The Queen (1990) 169 CLR 525 at 536. Non-parole periods are to be seen as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole, once the sentencing judge has determined the minimum period of custody appropriate to the circumstances of the offence: Bugmy v The Queen at 536.

The non-parole period should not be seen as the shortest time required for the Parole Board to assess the prospects of rehabilitation. It must represent the minimum period the offender must spend in custody having regard to the purposes of punishment and objective and subjective features of the case: Bugmy v The Queen; Power v The Queen (1974) 131 CLR 623.

Rehabilitation cannot be used to justify longer sentences

Allowance cannot be made for rehabilitation by lengthening the overall sentence above that which is appropriate to reflect the objective seriousness of the offence: R v Royal [2003] NSWCCA 275. See further discussion of special circumstances in Setting terms of imprisonment at [7-510].

Rehabilitation in prison

In Muldrock v The Queen (2011) 244 CLR 120 at [57], the High Court held that the Court of Criminal Appeal had erred in determining the structure of the sentence upon a view that the appellant would benefit from treatment while in full-time custody. This was because “full-time custody is punitive” and the availability of rehabilitative programs in prison is a matter for the executive: at [57].

To top [2-270] To make the offender accountable for his or her actions: s 3A(e)

This purpose is directed to making the offender liable to be called to account for his or her deeds. It has been recognised as a purpose of punishment that must be fulfilled: R v Pogson (2012) 82 NSWLR 60 at [98]. Making the offender accountable is an important purpose of sentencing: R v Dawes [2004] NSWCCA 363 at [40].

To top [2-280] To denounce the conduct of the offender: s 3A(f)

The purpose of denunciation is to condemn the offender for his or her conduct. Kirby J said in Ryan v The Queen (2001) 206 CLR 267 at [118]:

Denunciation and impartiality: A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct. The sentence represents ‘a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law’. In the case of offences against children, which involve derogations from the fundamental human rights of immature, dependent and vulnerable persons, punishment also has an obvious purpose of reinforcing the standards which society expects of its members.”

The notion of denunciation first appeared in R v MacDonald (unrep, 12/12/95, NSWCCA), where Gleeson CJ, Hunt CJ at CL and Kirby P said:

“In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.

… Society was entitled to have the conduct of the respondent denounced at least in that fashion.”

The court in R v King [2009] NSWCCA 117 at [1] made express reference to s 3A(f) and R v MacDonald and said:

“Society is entitled to have the sentence imposed denounce the criminal conduct of the offender and, if the sentence does not do so, there has been an error in the exercise of the sentencing discretion.”

A suspended sentence for an offence of sexual intercourse with a child under 10 years of age fell “far short” of appropriately denouncing the crime: R v King at [1].

The purpose of denunciation should be given more weight than in ordinary cases where a person such as a police officer, who is involved directly in the administration of justice, acts in a way that perverts the course of justice: R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343 at [43].

To top [2-290] To recognise the harm done to the victim of the crime and the community: s 3A(g)

In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) No 2 of 2002 (2002) 137 A Crim R 196 at [59], Spigelman CJ said that it is arguable s 3A(g) “introduces a new element into the sentencing task”. The issue of whether s 3A(g) alters the common law approach to victim impact statements has not been determined: R v Tzanis [2005] NSWCCA 274 at [16]; R v Berg [2004] NSWCCA 300 at [43]–[44]. This purpose permits the sentencer to set out the content of the victim impact statements of third parties providing the limitations upon the use of this evidence (as referred to in R v Previtera (1997) 94 A Crim R 76) is acknowledged: SBF v R (2009) 198 A Crim R 219 at [89]–[90].

At common law, courts are always required to take into account the impact of criminal behaviour on victims for the purposes of determining the culpability of the offender: Siganto v The Queen (1998) 194 CLR 656.

Where a crime involves multiple victims, acknowledgment should be made of the harm done to each victim, and this may require at least partial accumulation of the sentences: Baroudi v R [2007] NSWCCA 48 at [52]–[53] referring to R v Wilson [2005] NSWCCA 219 at [38]. See also Carlton v R (2008) 189 A Crim R 332 at [122].

The law in relation to victims is further discussed at Victims and Victim Impact Statements at [12-790]ff.

To top [2-295] Parsimony

There has been recent discussion of the common law concept of parsimony and its application in NSW.

In Webb v O’Sullivan [1952] SASR 65 at 66 Napier CJ described parsimony as “the minimum [punishment] which is consistent with a due regard for public interest”. Simpson J said in Blundell v R (2008) 70 NSWLR 660 at [42] that Napier CJ was not purporting to lay down any rule or principle of sentencing. The parsimony principle was described by Adams J in DB v R (2007) 167 A Crim R 393 at [10] as the imposition of “the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing” or the adoption of a sentence at the bottom of the range. It is not part of the sentencing law of NSW: Blundell v R at [47]; Leach v R (2008) 183 A Crim R 1 at [9]. This is because such a proposition is “inconsistent with the notion of a range of sentences, and the discretions properly open to sentencing judges”: Blundell v R at [47]; Kelly v R [2007] NSWCCA 357 at [30].

To top [2-297] Retribution

In R v Gordon (1994) 71 A Crim R 459 Hunt CJ at CL said at 468:

“Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: R v Goodrich (1952) 70 WN 42 at 43; R v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; R v Rushby [1977] 1 NSWLR 594 at 598.”

Not only must the community be satisfied that the offender is given his just desserts, it is important that the victim, or those who are left behind, also feel that justice has been done: Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [46].

In R v Milat (unrep, 27/7/96, NSWSC), Hunt CJ at CL seemed to treat “retribution” and “vengeance” as equivalent concepts:

“… above all, these truly horrible crimes of murder demand sentences which operate by way of retribution, or (as it is sometimes described) by the taking of vengeance for the injury which was done by the prisoner in committing them. Not only must the community be satisfied that the criminal is given his just desserts, it is important that those whom the victims have left behind also feel that justice has been done.”

However, the Canadian Supreme Court in The Queen v CAM [1996] 1 SCR 500 queried the “unfortunate association” between retribution and vengeance. Chief Justice Lamer at [80] explained that vengeance represents:

“… an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person”.

By contrast, retribution represents:

“… an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”.

Retribution and Form 1 offences

When taking additional offences into account on a Form 1, the penalty should be increased to recognise, inter alia, the community’s entitlement to retribution for each of the other offences, although the focus remains on the primary offence: Watts v R [2007] NSWCCA 153 at [4]; Yin v R [2007] NSWCCA 350 at [19]; R v Hamid (2006) 164 A Crim R 179 at [130]. In Watts v R at [5], the court held:

“In the interests of all the victims of the other [Form 1] offences the community was entitled to retribution, but again the large number of other offences did not bring commensurate arithmetic increase in penalty.”

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