Sentencing Bench Book — Sentencing procedures generally

Section 21A(1)–(5C) Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows:

When it was originally enacted, s 21A did not separately list aggravating and mitigating factors.

Section 21A does not purport to codify the law in the area of the aggravating and mitigating factors that can be taken into account at sentence: Porter v R [2008] NSWCCA 145 at [87].

The aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton (2006) 66 NSWLR 566 at [34]. Parliament has not used the word “aggravation” in its narrow common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and s 21A(2)(h) and (j) support that interpretation.

Successfully applying s 21A(2) requires a great degree of care akin to surgery. Howie J outlined some general observations about the section in an article entitled “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43. These observations include:

The Court of Criminal Appeal has developed specific approaches as to how s 21A should and should not be applied in a given case. They are designed to encourage transparency, ensure procedural fairness and avoid double counting.

The provision in s 21A(2) does no more than reflect the common law and therefore an aggravating factor in s 21A(2) cannot be taken into account if doing so would breach the De Simoni principle: R v Johnson [2005] NSWCCA 186 at [22]; R v Wickham [2004] NSWCCA 193 at [26]; Huntingdon v R [2007] NSWCCA 196 at [9]; Rend v R [2006] NSWCCA 41; and JAH v R [2006] NSWCCA 250.

R v Newham [2005] NSWCCA 325 is a good example of the principle. The sentencing judge erred by taking into account as an aggravating factor pursuant to s 21A(2)(e) that the indecent assault was committed in company. Section 61M(1) Crimes Act provides for a separate offence of greater seriousness, of which one of the available circumstances of aggravation is that the offence is committed in company. The applicant was not charged with the more serious offence and the sentencing judge was required to limit his consideration of the surrounding circumstances so as not to punish the applicant as if he had committed the more serious offence.

Section 21A(2)(a) is directed at offences committed against victims who exercise public or community functions and the offence arose because of the victim’s occupation.

The common law has long recognised that people in certain occupations work under a degree of risk. The fact that the victim is a police officer is treated as an aggravating factor: R v Penisini [2004] NSWCCA 339 at [20].

Since there is provision for a higher standard non-parole period for the murder of certain categories of persons (see Table of Standard non-parole periods under s 54D Crimes (Sentencing Procedure) Act 1999) care needs to be taken to ensure there is no double counting of aggravating circumstances when consideration is being given to the sentencing of this class of persons.

For the application of this subsection to specific offences see: Break and enter offences at [17-070]; Robbery at [20-260] (s 97 armed robbery), [20-270] (s 98 robbery with wounding) and [20-230] (s 95(1) robbery in circumstances of aggravation); Detain for advantage/kidnapping at [18-720]; Assault, wounding and related offences at [50-140].

For the application of this subsection to specific offences see: Break and enter offences at [17-070]; Robbery at [20-260] (s 97 armed robbery); [20-270] (s 98 robbery with wounding).

The absence of a weapon is not a matter of mitigation: Versluys v R [2008] NSWCCA 76 at [37]. Where the assailant has used his or her hands instead of a weapon it does not follow that the offence is necessarily less serious than if a weapon was used: Versluys v R at [37].

This subsection is discussed extensively in Subjective matters at common law at [10-400].

This subsection was amended by the Crimes (Sentencing Procedure) Amendment Act 2007, providing the additional text in parentheses. Under s 21A(6), a “serious personal violence offence” is a personal violence offence within the meaning of s 4 Crimes (Domestic and Personal Violence) Act 2007 that is punishable by imprisonment for life or a term of 5 years or more. The definition includes serious sexual offences.

Section 21A(2)(e) “relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person”: Gore v R (2010) 208 A Crim R 353 at [101]. It has no application to an offender who happens to use his wife to assist in his drug trade: Gore v R at [101]. The words “in company” in s 21A(2)(e) have the same meaning as they have at common law and where the fact the offence was in company is an element of an aggravated offence: White v R [2016] NSWCCA 190 at [2]–[4], [93]–[94]; Gore v R at [100]–[101]. Where “in company” is an element of an offence, it is an error to consider s 21A(2)(e) as an aggravating factor: Stevens v R [2007] NSWCCA 152 at [35].

The words are used to aggravate the gravity of the offence and the circumstance must be proved beyond reasonable doubt: White v R at [92]. The decisions concerning the construction to be placed on the element of an offence being committed in company are relevant to the construction to be given to s 21A(2)(e). However, statements in those decisions are not exhaustive of what might be held to be “in company”. Each case will depend upon its own facts: White v R at [94]. In White v R, Simpson JA at [94] set out three questions to focus on:

After reviewing relevant authorities, Simpson JA’s analysis in White v R [2016] NSWCCA 190 at [94] was applied in IS v R [2017] NSWCCA 116 at [50]. There was no error in finding the robbery was aggravated by its commission in company: IS v R at [51]. The two other offenders were in sufficient proximity to support the offender and intimidate the victim; one actively assisted the offender and the offender’s own evidence established the other offenders present shared a common purpose with him: IS v R at [50].

In R v Way (2004) 60 NSWLR 168 at [106]–[107], the court held that the fact that an offence was committed in company, where that is an element of the offence, cannot have an additional or cumulative effect on sentence. This, however, does not prevent the nature and extent of the company being taken into account when the court assesses the seriousness of the offence and the moral culpability of the offender. The presence of a “large number of overbearing and powerful companions can dramatically increase the objective seriousness, and moral culpability, of those who engage in a sexual assault of a lone victim” and s 21A(2)(e) does not exclude reference to such a consideration: R v Way at [107].

For the application of this subsection to specific offences see: Application of s 21A to break and enter offences at [17-070]; Robbery at [20-260] (armed robbery) and [20-270] (robbery with wounding); and Common aggravating factors under s 21A and the common law at [50-140].

Section 21A(2)(ea) “is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional well-being of a child. The commission of the offence may also be deleterious to the child’s moral values”: Gore v R [2010] NSWCCA 330, per Howie AJ at [104]. The supply of drugs in the presence of a child is a factor of aggravation”: Gore v R at [104]. It is not necessary that the offender is a parent of the child but if he or she is that will be an aggravating factor: Gore v R at [104]. This factor can also apply even if the offender is themselves a child: Lloyd v R [2017] NSWCCA 303 at [71]–[72].

The “generalised presence” of a child is not sufficient to constitute an aggravating factor. In McLaughlin v R [2013] NSWCCA 152, the court held it was an error to find two domestic assault offences were aggravated under s 21A(2)(ea) where the judge made no finding that the child was actually present or witnessed the offences: McLaughlin v R at [31]–[32]. Similarly, in Alesbhi v R [2018] NSWCCA 30, there was no basis for the sentencing judge to conclude an offence of affray was aggravated by the presence of children when the affray occurred outside and there was no evidence the children witnessed the offence or knew what was happening: Alesbhi v R at [55]–[56].

This factor is directed towards offences committed in the sanctity of the home. The text of s 21A(2)(eb) does not impose a pre-condition for its operation that the offender is an intruder in the victim’s home: Jonson v R [2016] NSWCCA 286. The five-judge bench in Jonson v R held that decisions, such as R v Comert [2004] NSWCCA 125, which stated that s 21A(2)(eb) is restricted to cases where the offender was an intruder were plainly wrong and should be overruled. Accordingly, there is no “rule of law” within the meaning of s 21A(4) to restrict the scope of s 21A(2)(eb) in the manner suggested in the such cases: Jonson v R at [50].

A literal construction therefore includes a home in which the offender is lawfully present, including one in which the offender resides with the victim: Jonson v R at [40].

The fact the provision can extend beyond offences committed by an intruder does not mean that in all cases the fact the offence occurred in a home will be an aggravating factor. The court must conclude, having regard to ordinary sentencing principles, that it actually aggravates the offence in question: Jonson v R at [52]; citing Gore v R [2010] NSWCCA 330 at [29]. Jonson v R was applied in the five-judge bench decision of R v Lulham [2016] NSWCCA 287 at [25] where the court held that the judge was correct to find the offence was aggravated on account of the fact the victim was attacked in his own home, despite the fact the offender was not an intruder. The reason given for the aggravating factor is that an offence involves a violation of the victim’s reasonable expectation of safety and security in his or her own home: R v Lulham at [5]. Bathurst CJ (Beazley P agreeing) opined that, despite the fact that the attack occurred on the driveway rather than in the home, this expectation of safety may extend beyond the actual residence to “the area on the same premises, at least reasonably adjacent to that building”: R v Lulham at [5]. Whether the offence is aggravated by the fact the offence occurs on the premises in question remains a matter for the sentencing judge’s discretion: R v Lulham at [6].

See further [17-070] Application of s 21A to break and enter offences.

Gratuitous cruelty suggests that the infliction of pain is an end in itself: McCullough v R [2009] NSWCCA 94 at [30]. “It is needless yet intentional violence committed simply to make the victim suffer”: McCullough v R at [30]. The application of s 21A(2)(f) depends upon matters of fact and degree: R v Atonio [2005] NSWCCA 200 at [23].

Gratuitous cruelty under s 21A(2)(f) requires more than an offence being committed without justification and causing great pain. For offences that are by their nature violent, there needs to be something more than the offender merely having no justification for causing the victim pain: McCullough v R at [30]. For instance, the factor may be present in a case of malicious wounding if the nature and purpose of the wounding involved torture: McCullough v R at [31]. A finding of gratuitous cruelty was made in R v King [2004] NSWCCA 444 at [139], where the offence of malicious wounding with intent included kicking a pregnant woman. Gratuitous cruelty was also established in R v Hoerler [2004] NSWCCA 184 at [43], [64], and [80], a manslaughter case which involved a prolonged and violent assault on a defenceless infant.

An offender’s good character does not preclude a finding of gratuitous cruelty: TMTW v R [2008] NSWCCA 50 at [43]. The subsection was not applied in Curtis v R [2007] NSWCCA 11 at [62] (stabbing of a police dog) or Stevens v R [2007] NSWCCA 152 at [32] (cruelty exhibited by the applicant towards the victims’ animals during a home invasion). The latter act of cruelty was not related to the offence and there was no mention of the issue in the agreed facts.

For the application of this subsection to Child pornography see [17-541].

Section 21A(2)(g) provides that an aggravating factor that is to be taken into account is whether “the injury, emotional harm, loss or damage caused by the offences is substantial”. The section must be understood through the prism of the common law. At common law, the court may have regard to the harm done to the victim by the commission of the crime: Signato v The Queen (1998) 194 CLR 656 at [29].

This is subject to the qualification that it cannot take into account harm that would effectively punish the offender for a more serious offence than the one charged: The Queen v De Simoni (1981) 147 CLR 383 at 389. A court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Josefski v R [2010] NSWCCA 41 at [4], [38]–[39]. The application of s 3A(g) of the Act (“harm done to the victim of the crime and the community”) and s 21A(2)(g) of the Act in a given case is limited by this common law rule. Neither provision was intended to alter the common law principles of sentencing: Muldrock v The Queen (2011) 244 CLR 120 at [15], [18]. Therefore it is an error, as well as unfair, to take into account as an additional aggravating factor harm, under s 21A(2)(g), harm that is not expected or could not have been reasonably foreseen to result from the commission of the crime: R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R at [4], [38]–[39].

As s 21A(2)(g) does not alter the common law a court is not permitted to take account of the effect upon persons of the death of a victim as an aggravating feature of an offence: R v Wickham. This is so notwithstanding the equivocal comments by Spigelman CJ in R v Berg [2004] NSWCCA 300: Josefski v R [36]–[39].

There must be evidence before the court to warrant a finding that the injury and emotional harm caused by the offence was substantial within the terms of s 21A(2)(g). As to the use of victim impact statements and s 21A(2)(g) see Victims and victim impact statements at [12-810].

Emotional harm in the context of s 21A(2)(g), qualified by the adjective substantial may be taken to be a reference to an appreciable psychological injury whether permanent or not: Huynh v R [2015] NSWCCA 179 at [29]. It refers to something more than the transient, or temporary, shock or fright that anyone would suffer who felt his or her safety was in peril, but which passes within a relatively short time leaving no lasting ill-effects: Huynh v R at [29]. A finding of substantial emotional fear of a transient type leaving no lasting ill-effects may amount to substantial emotional fear depending on the nature of the offending, informed by the common understanding of life shared by all adults: Huynh v R at [29].

Where there is no evidence directed to the issue of emotional harm suffered by the victim and no victim impact statement, it is not open to the sentencing judge to make a finding that offences have been aggravated on the basis of substantial emotional harm to the victim: R v Ross [2006] NSWCCA 65 at [27].

In the armed robbery case of R v Solomon [2005] NSWCCA 158, it was clear from the victim impact statements that it was open to the sentencing judge to find that the offences were aggravated by the effect that they had upon each victim. There was ample evidence to justify an additional finding that the injury or emotional harm occasioned to each of the victims was substantial.

As was explained in R v Solomon, because the court makes such an assumption, it would be unfair to take the psychological injury or emotional harm into account as an aggravating factor under s 21A(2)(g) in the absence of evidence that, in the particular case, it exceeded that which is already presumed: at [19], [53].

Sentencing judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences. Because of that entitlement, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm in s 21A(2)(g): Stewart v R [2012] NSWCCA 183 at [61]. Judges should make findings of fact founded on the evidence tendered rather than general observations: Stewart v R at [62].

Section 21A(2)(g) is not limited to injury, harm, loss or damage to the victim, but potentially extends to that suffered by the victim’s spouses and dependents: Aslett v R [2006] NSWCCA 360 at [37].

In cases where injury is an element of the offence for which the offender is being sentenced, the extent and nature of the injuries inflicted are relevant in assessing whether the aggravating factor applies: Taylor v R [2006] NSWCCA 7 at [40]. The nature of the injury, loss or damage in such a case must be such as to take it outside that which was necessary to establish the element of the offence: Heron v R [2006] NSWCCA 215 at [49]. Findings of substantial harm under s 21A(2)(g) must be based on what actually occurred rather than what might have occurred: Heron v R at [49].

For the application of this subsection to specific offences see: Break and enter offences at [17-070]; Dangerous driving at [18-390]; Robbery at [20-260] (armed robbery) and [20-270] (robbery with wounding); and Sexual assault at [20-810]. See also H Donnelly “Assessing harm to the victim in sentencing proceedings” (2012) 24(6) JOB 45.

Section 21A(2)(h) is directed towards offences motivated by hatred for, or prejudice against, a group of people (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), with the offender carrying out the offence because he or she believed the victim belonged to that particular group.

In Aslett v R [2006] NSWCCA 49, at [124], it was held there was no evidence to establish that the offence was motivated by hatred towards Asian people.

In Holloway v R [2011] NSWCCA 23 at [32] the court accepted that the assaults were racially motivated. Hall J said at [32]:

The examples in parentheses listed in s 21A(2)(h) — people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability — do not comprise an exhaustive list of the grounds envisaged by the subsection: Dunn v R [2007] NSWCCA 312 at [32]. In Dunn v R, paedophiles were held to be a “group of people” under s 21A(2)(h).

Section 21A(2)(i) provides that it is an aggravating feature of an offence if it is committed “without regard for public safety”. It is arguable that the elements of many offences (such as, for example, dangerous driving and, possibly, firearms offences) already take into account the “regard for public safety”. In Elyard v R [2006] NSWCCA 43 at [12] Basten JA opined:

This subsection is not directed to the specific victim of any offence, but to the danger caused to other members of the public by reason of the offence: R v Chisari [2006] NSWCCA 19 at [22].

It is the risk to public safety that falls to be assessed under s 21A(2)(i) and not what actually transpired: R v Fryar [2008] NSWCCA 171 at [34].

For the application of s 21A(2)(i) to specific offences see Dangerous driving at [18-390]; Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-890]; Assault, wounding and related offences at [50-140]; Firearms and prohibited weapons offences at [60-040]–[60-050]; and Damage by fire and related offences at [63-020].

Section 21A(2)(ib) provides that it is an aggravating feature if an offence “involved a grave risk of death to another person or persons”. Even where there is no actual injury, discharging a firearm directly at another person carries a grave risk of death and may, in an appropriate case, amount to an aggravating factor under s 21A(2)(ib): Z v R [2015] NSWCCA 274 at [77]. In Colomer v R [2014] NSWCCA 51 at [38]–[40], the court held there was a grave risk of death by pointing a firearm at another person, with a bullet in the chamber, even where the firearm was not actually discharged.

In Wallace v R [2014] NSWCCA 54, the court found that while the offender’s act of rescuing the victim after setting fire to a house knowing he was inside, warranted amelioration of the sentence, the judge was entitled to give some weight to the aggravating circumstance of the grave risk of death to the victim: Wallace v R at [78]–[81].

A cut to the throat, being potentially life-threatening, may also be an aggravating factor within s 21A(2)(ib): R v Dennis [2015] NSWCCA 297 at [31]; Kiernan v R [2016] NSWCCA 12.

Conditional liberty is discussed at [10-550].

When an offence is committed whilst being on conditional liberty, this may amount to an aggravating factor. The purpose of s 21A(2)(j) is to “capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence”: Porter v R [2008] NSWCCA 145 at [86]. The term “conditional liberty” in s 21A(2)(j) is not confined to circumstances where the foundational offence giving rise to the conditional liberty is one which itself must be punishable by imprisonment: Porter v R at [86].

Section 21A(2)(j) is a relevant consideration if the offender was on conditional liberty at the time of committing the offence, even though the charge in respect of which they were on conditional liberty for was later withdrawn: R v Deng [2007] NSWCCA 216 at [64].

In Frigiani v R [2007] NSWCCA 81, the offender was subject to a s 10 good behaviour bond for assaulting his wife. The offence he committed involved a further assault on the same person. The court held that the fact he was subject to the bond was an aggravating factor under s 21A(2)(j), irrespective of the conduct for which the bond was imposed: at [23]–[24]. It is more aggravating when the conduct is similar to that for which the offender is being sentenced: at [24].

In Archer v R [2017] NSWCCA 151, the court concluded that it was not double counting to take into account as distinct aggravating factors that the offence was committed in breach of an AVO and while the offender was on bail: Archer v R at [89]. Breach of bail and being subject to an AVO are two different concepts: Archer v R at [85].

It is clear both from the language of s 21A(2) and the decided cases that the section was not intended to extend the concept of breach of trust beyond the common law as it was understood at the time that the section was created: Suleman v R [2009] NSWCCA 70 at [26], approving R v Wickham [2004] NSWCCA 193 and R v Johnson [2005] NSWCCA 186. See also Mol v R [2017] NSWCCA 76 at [107]. For a relationship of trust to exist, there must have been a special relationship between the victim and offender at the time of the offending “which transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings”: Suleman v R at [22]. Examples of such special relationships are parent and child, doctor and patient, priest and penitent and teacher and student: at [23]–[24]. In R v Stanbouli [2003] NSWCCA 355, Hulme J, with whom Spigelman CJ agreed, elaborated on the concept at [34]:

The court in Suleman v R [2009] NSWCCA 70 at [28] found that the sentencing judge erred by finding that the s 21A(2)(k) applied by virtue of the applicant’s dealings with investors and the fact that he was a successful businessman in the Assyrian community. The common law would not have recognised that these things involved a breach of trust. On the other hand, in Mol v R, there was no error in applying s 21A(2)(k) against an offender who had represented himself as a professional artist and had indecently assaulted young women who had agreed to pose nude or partially nude as models. There was a “special or peculiar relationship” of trust which the offender had breached: Mol v R at [108].

A breach of trust is heightened substantially where a registered health practitioner commits offences of indecent assault against his patients in the course of treatment: Jung v R [2017] NSWCCA 24 at [60]; and, see Kearsley v R [2017] NSWCCA 28 at [15] where the offence was committed against a person the offender mentored. Additional considerations apply when a registered health professional commits sexual offences against patients: general and personal deterrence are important elements of the sentence: Jung v R at [63]; R v Arvind (unrep, 8/3/96, NSWCCA); see also Panda v State of Western Australia [2017] WASCA 5 at [126]. Nothing said by the High Court in Reeves v The Queen (2013) 88 ALJR 215, which overturned Reeves v R [2013] NSWCCA 3 at [205] where the principles in R v Arvind were applied, affects the application of the principles in R v Arvind to this case: Jung v R at [64].

In KJH v R [2006] NSWCCA 189 at [29] the judge erred by stating that breach of trust is an element of the offence under s 66A Crimes Act. Not all offences of sexual intercourse with a child under 10 years of age involve abuse of trust. The gross abuse of trust perpetrated by the applicant was an aggravating factor in the circumstances of this case and had to be taken into account on sentence under s 21A(2)(k). The offender in MRW v R [2011] NSWCCA 260 was convicted under s 66C(2) Crimes Act of sexual intercourse with a person between 10 and 16 years and who was under the authority of the offender. It was open to the trial judge to take abuse of trust under s 21A(2)(k) into account as an aggravating feature notwithstanding the ingredients of the offence under s 66C(2): MRW at [77]. Abuse of trust and authority in s 21A(2)(k) are distinct concepts, although often arising out of the same facts: MRW at [77]. However, a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor to avoid double counting: MRW at [78].

See further, Sexual offences against children at [17-560] and Fraud at [19-990].

Section 21A(2)(l) provides that it is an aggravating feature of an offence if:

Section 21A(2)(l) is concerned with the vulnerability of a particular class of victim who need to be especially protected because they are vulnerable to criminal offences: R v Tadrosse (2006) 65 NSWLR 740 at [24]–[26]. It is the fact of a victim’s vulnerability which aggravates the offence: Sumpton v R [2016] NSWCCA 162 at [147]. In R v Tadrosse, the court held that the judge erred in applying the section to fraud victims on the basis that persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents. The provision is concerned with the weakness of a particular class of victim, not the threat posed by a class of offender: R v Tadrosse at [26].

The court has subsequently reiterated the need for the victim to be part of a certain class of persons who need to be especially protected: Doolan v R [2006] NSWCCA 29 at [25]–[26]; Betts v R [2015] NSWCCA 39 at [29]. The fact that a victim is unarmed and unable to protect himself is not the sort of vulnerability that s 21A(2)(l) is concerned with: at [28]. Where a victim is not armed in a like manner to the assailant, this does not ordinarily mean that the victim is vulnerable: Morris v R [2007] NSWCCA 127 at [15].

In Sumpton v R, that the deceased was of a slight build, walked with a limp and was intoxicated at the time of the offence founded the sentencing judge’s conclusion that she was vulnerable. The engagement of s 21A(2)(l) does not depend on there being a causal connection (in a case of murder) between vulnerability and death: Sumpton v R at [147].

The Rural Crime Legislation Amendment Act 2017, which commenced on 23 November 2017, amended s 21A(2)(l) to include “the geographical isolation of the victim” as an example of a vulnerable victim. Previously, in Stevens v R [2007] NSWCCA 152 at [33], the court had held the fact the victims lived in a rural and isolated location may provide the basis for a finding of vulnerability within s 21A(2)(l).

Section 21A(2)(l) may still play a role in sentencing an offender in the context of an offence which contains the age of the victim as part of the offence. The younger the age of the victim, the more serious the offence: RJA v R [2008] NSWCCA 137 at [13].

In Veale v R [2008] NSWCCA 23, Hulme J said at [18]:

However, it should be noted that the examples given in s 21A(2)(l) do not amount to an exhaustive list: Perrin v R [2006] NSWCCA 64 at [35]; Ollis v R [2011] NSWCCA 155 at [96]; Longworth v R [2017] NSWCCA 119 at [17].

In R v Williams [2005] NSWCCA 99, the court held that the sentencing judge was in error for taking into account as an aggravating factor under the section that the victim of a manslaughter offence was vulnerable because they were not powerful or aggressive like the perpetrator. Howie J remarked at [27] in R v Tadrosse that, although the matter was relevant to an assessment of the gravity of the offence, it should not have been treated as a further aggravating factor, since “s 21A(2)(l) is not directed to vulnerability in that generalized sense … it is vulnerability of a particular kind that attracts its operation”.

Section 21A(2)(l) is not concerned with the threat posed by a particular class of offender. The fact that a victim does not have the characteristics of a powerful offender with violent tendencies does not make the victim vulnerable within the meaning of s 21A(2)(l). The subsection looks to the circumstances of groups or classes of victims inherent in their situation or characteristics as such divorced from any actions of an offender: Betts v R at [29]. For example, in Katsis v R [2018] NSWCCA 9, the court found an elderly victim who lived alone was vulnerable on account of age, social isolation and frailty: Katsis v R at [62].

In Ollis v R, the court held that the judge was correct to find, as an aggravating factor under s 21A(2)(l), that the victim was vulnerable: at [94]. The victim was an adolescent travelling alone on public transport in a foreign land and she trusted the applicant, who spoke some Japanese and offered assistance: at [97].

Taxi drivers (see text of the sub-section) and taxi passengers have been held to be a relevant class of vulnerable victim for the purposes of s 21A(2)(l): Ali v R [2010] NSWCCA 35 at [28], [35]. So have security guards working late at night at licensed premises because they face a significant risk of being subjected to aggressive intoxicated/disorderly people and may be outnumbered or isolated from others who could come to their assistance: Longworth v R, above, at [18].

Section 21A(2)(m) provides the court can take into account the fact that the offence involved multiple victims or a series of criminal acts. In R v Tadrosse (2006) 65 NSWLR 740 at [29] Howie J explained the purpose of the subsection:

The sentencing judge erred in R v Tadrosse since, while there were clearly multiple offences with multiple victims and acts of criminality before the court, the applicant was sentenced for each of them in accordance with the principle of totality. Similarly in R v Tzanis [2005] NSWCCA 274 at [19] the judge erred by applying s 21A(2)(m) where the applicant was sentenced for two separate offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm.

The error was repeated in R v Janceski [2005] NSWCCA 288, where the offender was sentenced to two counts of dangerous driving occasioning death. The court held that it was completely contrary to principle to aggravate each of those sentences on the basis that each offence involved multiple victims.

In Clinton v R [2018] NSWCCA 66, the court held the judge erred by taking into account various uncharged criminal acts set out in the agreed facts but not particularised in the fraud offences to which the offender pleaded guilty. While what was in the facts was relevant to determining the objective seriousness of the offences and the offender’s moral culpability, the uncharged criminal acts could not also be taken into account as an aggravating factor under s 21A(2)(m): Clinton v R at [37]–[39].

The term “offence” in s 21A(2)(m) does not include Form 1 matters: Hawkins v R [2006] NSWCCA 91 at [28]–[29]. In Aslett v R [2006] NSWCCA 360, the court indicated that s 21A(2)(m) is directed to “the offence” which is one involving multiple victims or a series of criminal acts: at [38].

In Hockey v R [2006] NSWCCA 146, Adams J considered the term “involved” at [16]:

Where an offender is charged with multiple offences, in which the victims are the same for each offence, there are not, in relation to each offence, multiple victims: McCabe v R [2006] NSWCCA 220 at [10].

It is prudent for a sentencing judge to raise with the parties his or her intention to take this aggravating factor into account: Stokes v R [2008] NSWCCA 123 at [14]. The scope of s 21A(2)(n) was considered in Hewitt v R [2007] NSWCCA 353. Hall J derived several general propositions from prior cases about the operation of the provisions at [25]. These are set out below:

The fact that there are several offences revealing some broad pattern of behaviour does not mean there is relevant “planning” for the purposes of s 21A(2)(n): RL v R [2015] NSWCCA 106 at [36]–[37]. In RL v R, a child sexual assault case, the court held that the applicant’s offences committed over a five-year period, did not involve planning but rather demonstrated opportunistic behaviour.

Section 21A(2)(n) can only be applied to the cultivation of a large commercial quantity of cannabis plant if its nature or extent in the particular case is unusual: Ta and Nguyen v R [2011] NSWCCA 32 at [126]. It is unclear whether planning under s 21A(2)(n) applies only where the offender has been involved in the planning of the offence, or whether it is sufficient that the offence itself was planned to take planning into account as an aggravating factor. The court has taken two different approaches on this matter as follows. Simpson J in Legge v R [2007] NSWCCA 244 said at [34]:

However, in DPP (NSW) v Cornwall [2007] NSWCCA 359, Latham J said at [56]:

The apparent differences of approach were raised in SS v R [2009] NSWCCA 114 at [97]–[99], but due to a concession by the Crown, the issue was not resolved.

For the offence of supply of a large commercial quantity of a prohibited drug, it is almost inevitably the case that inherent characteristics of that class of offence involve a level of planning and financial gain: Wat v R [2017] NSWCCA 62 at [44]. These inherent characteristics are not to be treated as aggravating factors unless such financial gain and planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence: Wat v R at [44] applying Prculovski v R [2010] NSWCCA 274 at [43]; Farkas v R [2014] NSWCCA 141 at [62].

In Wat v R, the level of planning was elaborate; the whole operation was sophisticated, well-organised and conducted by a transnational crime syndicate. Both the level of planning and financial gain went well beyond that which might be expected in the lowest level of an offence of this type: Wat v R at [48].

For the application of this subsection to drug offences, see Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890].

Where financial gain is an inherent characteristic of the offence, such as fraud, financial gain cannot be taken into account as an aggravating factor under s 21A(2)(o) unless its nature or extent is unusual: Clinton v R [2018] NSWCCA 66 at [20]. It is well established that a factor should not be taken into account as an aggravating factor under s 21A(2), if it is either an element of the offence or an inherent characteristic of that kind of offence: Mansour v R [2011] NSWCCA 28 at [46]. Doing so would contravene the requirement in s 21A(2) that the court is not to have additional regard to any of the aggravating factors identified “if it is an element of the offence”. In Clinton v R, the court held the judge erred by finding the offences were aggravated under s 21A(2)(o) because there was nothing unusual about the offending which would have permitted the pursuit of financial gain to be taken into account as an aggravating factor: Clinton v R at [21]–[22].

For the application of this section to drug supply offences, see Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890].

Section 21A(2)(p) was inserted on 16 November 2011 (s 2, LW 16.11.11) by the Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011 to provide that it is an aggravating factor for a prescribed traffic offence if it is committed while a child under 16 years of age was a passenger in the offender’s vehicle. A “prescribed traffic offence” is defined in s 21A(6).

Some of the mitigating factors set out under s 21A(3) reciprocally mirror the aggravating factors set out in s 21A(2). For example, the circumstance that the injury, emotional harm, loss or damage caused by the offence was substantial is an aggravating factor; while the circumstance that the injury, emotional harm, loss or damage caused by the offence was not substantial is a mitigating factor.

This factor operates so as to mitigate the objective seriousness of the offence and is the converse of the aggravating factor set out under s 21A(2)(g).

When considering the mitigating factor in s 21A(3)(a), a court should not assume there is no lasting impact on a victim. The court should assume that the effect upon a victim of an armed robbery is substantial and this is taken into account in the penalty to be imposed. If there is evidence of a long lasting effect on the victim, this might be a matter of aggravation: R v Bichar [2006] NSWCCA 1 at [22], applying R v Solomon [2005] NSWCCA 158.

The fact that there is no substantial loss or damage that results from the offence does not necessarily diminish the offender’s criminality. “Although it is calculated to reduce the demands of retribution, it does not impact on the weight to be given to most of the purposes of sentencing”: Van Can Ha v R [2008] NSWCCA 141 at [43].

This factor, when present, will detract from the objective seriousness of offence and may be contrasted with offences that are planned or organised prior to their commission: see s 21A(2)(n). A claim of spontaneity under s 21A(3)(b) was rejected in the malicious damage of property by fire case of Porter v R [2008] NSWCCA 145 at [46].

This provision gives statutory recognition to the principle that, where offences are committed under provocation, the provocation mitigates the seriousness of the offence: R v Engert (1995) 84 A Crim R 67 at 68 and 71; R v Cioban [2003] NSWCCA 304.

However, not in every case does the explanation of an offender’s conduct, whether characterised as provocation or not, operate as a mitigating factor. The motive must impinge on the offender’s moral culpability. The degree to which motive can be seen as pertinent depends on all the circumstances, the most significant of which is the nature of the offence: R v White (unrep, 23/6/98, NSWCCA). An offender cannot simply take the law into his or her own hands: R v Buddle [2005] NSWCCA 82 at [11].

Where provocation is established such that it is a mitigating factor under s 21A(3)(c), it is a fundamental quality of the offending which may reduce its objective seriousness. There cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account: Williams v R [2012] NSWCCA 172 at [42]. The absence of provocation is not a factor in aggravation and does not increase the objective seriousness of the offence: Williams v R at [43]. In Pitt v R [2014] NSWCCA 70 at [57], [65], the extreme provocation of the deceased and his brother towards the applicant was one of the bases upon which the court intervened and reduced the sentence for manslaughter.

Evidence of “relationship tension and general enmity … leading up to the offence”, while part of the overall circumstances in which the offence occurred, “does not constitute evidence of provocation such as to amount to mitigation”: Shaw v R [2008] NSWCCA 58 at [26].

In ordinary language, duress implies forcible restraint and compulsion: R v N [1999] NSWCCA 187 per Adams J at [35].

Section 21A(3)(d) must be interpreted in light of the common law on the subject. Where an offender commits a crime while acting under duress which falls short of a complete defence to the charge, this “non-exculpatory duress” is capable of being a mitigating factor at sentence: Tiknius v R [2011] NSWCCA 215 (although the case concerned a Commonwealth offence the court declared the common law on the subject). Non-exculpatory duress may be taken into account as a mitigating factor for two reasons: it may affect the degree of the offender’s subjective or moral culpability and prospects of rehabilitation: Tiknius v R at [41]. It is relevant to the assessment of objective gravity if an offence is committed because of threats and fear of harm to oneself or others rather than financial profit or greed. These matters bear upon the moral or true culpability of an offender: R v Z (2005) 2 AC 467 at [22]. Where the source of duress is conduct of persons in another country a court is entitled to approach such claims with a significant degree of circumspection as claims may be easily made: Tiknius v R at [45].

Where the offender satisfies the court that the commission of the offence was affected by duress, the weight given to that factor involves the court considering, inter alia, the form and duration of the offender’s criminal conduct, the nature of the threats made, and opportunities available to the offender to report the matter to relevant authorities: Tiknius v R at [49]. Johnson J said at [51]:

The Court of Criminal Appeal has continued to apply Tiknius v R notwithstanding the decision of Muldrock v The Queen (2011) 244 CLR 120: Giang v R [2017] NSWCCA 25 at [32]–[33]. Muldrock v The Queen did not place duress, provocation, mental state and mental illness outside the scope of objective features, or confine duress to a purely subjective consideration: Giang v R at [33]. As to decisions since Muldrock v The Queen, see Kuti v R [2012] NSWCCA 43; Lindsay v R [2012] NSWCCA 124; Cherdchoochatri v R [2013] NSWCCA 118; RCW v R (No 2) (2014) 244 A Crim R 541: Giang v R at [33].

In Kuti v R, duress was a mitigating factor to some extent, but not such as to remove the need for deterrence. In Lindsay v R, the judge was not convinced that pressure from the offender’s “creditors” was “pressing on him as a motivation to commit [the] crime”.

In R v Ceissman [2004] NSWCCA 466 at [24] Wood CJ at CL considered “economic duress” as a motive for participation in the offence of aggravated break enter and steal in company, contrary to s 112(2) Crimes Act, and held that it did not mitigate the respondent’s objective criminality. The respondent’s participation in the offence stemmed from independent criminal conduct arising out of his continued association with career criminals: at [24].

This principle was applied by Spigelman CJ in R v N at [57]–[59].

At common law offenders without prior convictions may generally expect to be treated more leniently than those with previous convictions. The presence of relevant priors is an aggravating factor: see s 21A(2)(d).

See discussion of this factor in Prior record at [10-405].

Where the offender has a record of previous convictions at the time of appearing for sentencing of an offence, but the record is in relation to offences which were committed after the offence before the court, it is an error to consider the absence of a prior record as a mitigating factor: R v MAK & MSK [2006] NSWCCA 381 at [59]–[60].

See discussion in Subjective matters at common law at [10-410].

The reference to “good character” in s 21A(3)(f) relates to the character of the offender prior to the commission of the offence: Lozanovski v R [2006] NSWCCA 143 at [12]. This was confirmed in Aoun v R [2007] NSWCCA 292 at [22] where it was explained that s 21A(3)(f) deals with previous good character due to the presence of the word “was” in the provision.

In R v PGM [2008] NSWCCA 172, Fullerton J considered that where there is a pattern of re-offending over an extended period in the course of an ongoing relationship fostered for the commission of the offence, “a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending … diminishes the mitigating impact of a finding of good character”: at [44].

Section 21A(5A) provides that, in determining the appropriate sentence for a child sexual offence (as defined in s 21A(6)), an offender’s good character or lack of previous convictions is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

It was observed by Hodgson JA in Aoun v R [2007] NSWCCA 292 at [23] that:

For s 21A(5A) to apply, the sentencing judge should make an express finding specific to the offender that good character or lack of previous convictions assisted the offender in the commission of the offence: NLR v R [2011] NSWCCA 246.

See further Special rule for child sexual offences in Good character at [10-410].

This mitigating factor involves a favourable assessment or prediction relating to an offender’s future offending behaviour. It is commonly linked to a positive finding that the offender has good prospects for rehabilitation and, accordingly, will often influence the selection of the dominant purpose of sentencing. Its influence is particularly noticeable in borderline cases of imprisonment, where the sentencing court resolves not to impose a full-time custodial sentence on the basis that neither the principle of general deterrence nor concern for protection of society from the offender appear justified.

In Elyard v R [2006] NSWCCA 43 the court held that the judge failed to take into account the applicant’s good prospects of rehabilitation, per s 21A(3)(h). The judge found that the applicant had poor prospects of rehabilitation without providing a cogent basis for rejecting the psychologist’s report, which referred to the applicant’s objective progress in terms of a significant and measurable improvement in attitudes to drugs and alcohol abuse. Basten JA and Hall J, in separate judgments, found that his Honour failed to give proper weight to the psychologist’s opinions: Basten JA at [27], Hall J at [92].

In the circumstances of a case, it may be that even though someone is unlikely to re-offend, their prospects of rehabilitation are not so favourable: Barlow v R [2008] NSWCCA 96 at [91]. It was possible to reconcile these seemingly inconsistent findings on the facts in Barlow v R.

For an explanation of remorse at common law see Alvares v R (2011) 209 A Crim R 297 at [44] extracted at Subjective matters at common law at [10-420]. In essence remorse means regret for the wrongdoing the offender’s actions caused and, as a feature of post offence conduct, may be relied upon to mitigate penalty: Windle v R [2011] NSWCCA 277 at [44].

The section was amended to provide that remorse may be taken into account, “but only” if the offender has provided evidence that he or she has accepted responsibility for his or her actions, and has acknowledged any injury, loss or damage caused by his or her actions, or made reparation (or both). The impact of this provision (if any) on the common law (given the terms of s 21A(4): see [11-040]) is yet to be decided, and it is worth noting that there is no equivalent provision which states that s 21A(3)(i) has “effect despite any Act or rule of law to the contrary” as there is for the special rules for child sexual offences in s 21A(5A), (5B). Ultimately, so far as this statutory form of remorse is concerned, the question will turn on whether “evidence” has been provided. This requirement in s 21A(3)(i) to provide evidence of remorse does not equate with a requirement that an offender give evidence of remorse: Butters v R [2010] NSWCCA 1 at [17]; Alvares v R at [65]; Doumit v R [2011] NSWCCA 134 at [19]; Sun v R [2011] NSWCCA 99 at [25], [31].

The court should not simply disregard evidence of remorse because the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters v R at [18]; Mun v R [2015] NSWCCA 234 at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79 where the sentencing judge, in each case, did not err by rejecting the offender’s self-serving untested statements as evidence of remorse. In R v Harrison, Spigelman CJ said at [44]:

This approach is consistent with the court cautioning against uncritical reliance on material contained in tendered reports where an offender does not give evidence: R v Qutami [2001] NSWCCA 353.

McClellan CJ at CL said in Pfitzner v R [2010] NSWCCA 314 at [33]:

The practice of offenders relying on hearsay statements for findings of fact in their favour is not uncommon, however, this practice is to be discouraged: Halac v R [2015] NSWCCA 121 at [106]. In Imbornone v R, there was no error in the sentencing judge concluding the offender’s untested hearsay expressions of remorse to his psychiatrist were not sufficient to prove, on the balance of probabilities, the offender was remorseful under s 21A(3)(i): Imbornone v R at [55], [59]. Wilson J at [57] set out a number of principles to be applied when a sentencing judge is asked to take into account an untested statement made to a third party: see Untested self-serving statements at [1-490].

An assessment of the genuineness of remorse is likely to be better informed when expressed directly, that is, face to face because it is intrinsically a subjective matter: Alvares v R at [65]; Mun v R at [39]. The evidence before the judge in Windle v R at [54] did not satisfy the section since there was no evidence showing the applicant accepted responsibility for his actions; nor did he acknowledge or pay any reparation for the loss caused.

A judge is not obliged to accept assertions of contrition made by an offender: R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21].

It is an error for a judge to look for evidence of contrition (or lack of contrition) only at the time of the commission of the offence, without regard to evidence of contrition at a later point in time: R v Johnston [2005] NSWCCA 80 at [28]. Later evidence of contrition — which appeared genuine and indicated the beginning of progress towards rehabilitation — should be taken into account by the sentencer.

The strength of the Crown case is a relevant consideration in relation to the evaluation of remorse: R v Sutton [2004] NSWCCA 225 at [12]; R v Thomson (2000) 49 NSWLR 383 at [137].

The court should not quantify the reduction for remorse either separately or as part of the utilitarian discount for the plea: R v Borkowski [2009] NSWCCA 102 at [32]. Given that s 21A makes specific provision for remorse to be considered as a separate mitigating factor, to include it as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting: Kite v R [2009] NSWCCA 12 at [12].

Remorse is a major factor in determining whether an offender is unlikely to re-offend (s 21A(3)(g)) and has good prospects of rehabilitation (s 21A(3)(h)). “Without true remorse it is difficult to see how either finding could be made”: R v MAK & MSK [2006] NSWCCA 381 at [41].

The reference in s 21A(3)(i)(ii) to reparation as a mitigating factor requires that before this factor comes into play, there must be evidence that the reparation has already been made at the time of sentence: R v Cage [2006] NSWCCA 304 at [34]. Repayment of the proceeds of crime is not necessarily evidence of genuine remorse: Chahal v R [2017] NSWCCA 203 at [39].

It has not been judicially determined just how the expression “not fully aware of the consequences of his or her actions because of the offender’s age” is to be applied or whether it adds anything to the common law on the subject. A narrow reading would suggest that the subsection would apply to very young offenders. The common law recognises “the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law”: KT v R [2008] NSWCCA 51 at [23]. Similarly, it is doubtful whether the subsection adds to the common law in relation to the relevance of the offender’s mental condition at sentence as expressed in Muldrock v The Queen (2011) 244 CLR 120 at [54]. In Taylor v R [2006] NSWCCA 7 the sentencing judge should have found that the applicant suffered from a “disability” and that his mental condition was a mitigating factor under s 21A(3)(j).

See further, Subjective matters at common law at [10-460] and Sentencing principles applicable to children dealt with at law at [15-090].

See Guilty pleas at [11-500].

The Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 was assented to on 18 April 2001 and commenced on 19 November 2001. It introduced procedures whereby the court could, on a case by case basis, impose pre-trial disclosure requirements on both the prosecution and the defence, in order to reduce delays in complex criminal trials. Now see Ch 3 Pt 3 Div 3 Criminal Procedure Act 1986.

Although s 22A Crimes (Sentencing Procedure) Act provides that a court may take into account the degree to which the offender cooperates with the court in making pre-trial disclosures, and may impose a lesser penalty than it would otherwise (s 22A(1)), any such lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence (s 22A(2)).

See Power to reduce penalties for pre-trial disclosure at [11-910].

See Power to reduce penalties for assistance to authorities at [12-200].

Section 21A(5AA) provides:

For a discussion of the effect this subsection has on the common law, see Subjective matters at common law at [10-480]ff and Special Bulletin No 6 — Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014. It has effect despite any Act or rule of law to the contrary.

Section 21B Crimes (Sentencing Procedure) Act 1999 provides that a court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing: s 21B(1). The standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing: s 21B(2). These provisions apply to proceedings commenced on or after 18 October 2022: see Crimes (Sentencing Procedure) Amendment Act 2022. Prior to the insertion of s 21B, unless the offence was a child sexual offence (see s 25AA(1) (rep)), the court was required to sentence in accordance with the sentencing patterns and practices existing at the time of the offence: R v MJR (2002) 54 NSWLR 368; see also Sentencing practice after long delay in [10-530] Delay. Section 25AA(1) continues to apply to proceedings commenced from 31 August 2018 to 17 October 2022.

The Crimes Amendment (Sexual Offences) Act 2008 inserted s 24A (effective 1 January 2009). Section 24A(1) provides that, in sentencing an offender, the court must not take into account as a mitigating factor the fact that the offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence.

Section 24A was amended by the Crimes (Sentencing Procedure) Amendment Act 2010 to further provide that the court must not take into account, as a mitigating factor, the fact the offender is prohibited from engaging in child-related employment under the Commission for Children and Young People Act 1998 because of their conviction for a serious sex offence, the murder of a child or a child-related personal violence offence. Such an offender’s status as a “prohibited person” is not extra-curial punishment.

Section 24A was further amended by the Crimes (Serious Sex Offenders) Amendment Act 2013, which commenced on 19 March 2013. Section 24A(1)(d) was inserted to provide that the fact that an offender is subject to an order under the Crimes (High Risk Offenders) Act 2006 must not be taken into account as a mitigating factor. The amendments were a consequence of renaming the Crimes (Serious Sex Offenders) Act as the Crimes (High Risk Offenders) Act 2006 which extended the application of the Act to high risk violent offenders as well as serious sex offenders.

See further discussion of extra-curial punishment in Sexual offences against children at [17-570].

Section 24B prevents a court from taking into account, as a mitigating factor, the consequences of any confiscation or forfeiture order imposed on the offender because of the offence. See R v Hall [2013] NSWCCA 47 for an approach to a drug proceeds order.

The Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 inserted s 24C into the Crimes (Sentencing Procedure) Act 1999 to preclude consideration of loss of parliamentary pension as mitigating factor in sentencing. The amendments have a retrospective effect in the sense that they do not only apply to Members of Parliament convicted forthwith: Sch 1, cl 11A Parliamentary Contributory Superannuation Act 1971. Section 24C was first applied in R v Macdonald [2017] NSWSC 638 at [262].