Update 61 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:
Intensive correction orders (ICOs) (alternative to full-time imprisonment)
- [3-632] Mandatory considerations when determining whether to impose ICO and [3-680] Federal offences to add reference to Vamadevan v R [2024] NSWCCA 223, a five-judge decision, regarding the application of s 16A Crimes Act 1914 (Cth) as the governing provision when making an ICO in relation to a federal offender under s 20AB(1) Crimes Act (not s 66 Crimes (Sentencing Procedure) Act 1999).
Deferral for rehabilitation or other purpose
The chapter at [5-400]ff was revised and updated.
Setting terms of imprisonment
- [7-507] Settled propositions concerning s 53A to add reference to McGregor v R [2024] NSWCCA 200, a five-judge bench decision, regarding aggregate sentencing and Commonwealth offences.
- [7-512] Special circumstances generally to add reference to Decision Restricted [2023] NSWCCA 10 regarding some of the practical considerations in respect of the application of cl 214A Crimes (Administration of Sentences) Regulation 2014.
Concurrent and consecutive sentences
- [8-220] Totality and sentences of imprisonment to add reference to Hall v R [2021] NSWCCA 220 and Benn v R [2023] NSWCCA 24 regarding there being no requirement to specify notional cumulation and concurrency across offences and complainants when imposing an aggregate sentence.
Objective factors at common law
- [10-013] Objective seriousness findings to add reference to Dorsett v R [2024] NSWCCA 192 regarding sentencing for multiple offences where the objective seriousness of each offence differs.
Subjective matters
- [10-410] Good character to add a cross-reference to Sexual offences against children at [17-450] Mitigating factors regarding the special rule for child sexual offences with respect to not taking into account the offender’s good character or lack of previous convictions as a mitigating factor if it assisted the commission of the offence.
- [10-460] Mental health or cognitive impairment to add reference to DB v R [2023] NSWCCA 323 regarding the causal relationship between the offender’s mental disorder or abnormality and the commission of the offence and sentencing considerations.
- [10-520] Extra-curial punishment to add reference to Wanstall v R [2024] NSWCCA 167 regarding extra-curial punishment related to adverse publicity, public humiliation and the loss of an offender’s career.
Section 21A factors “in addition to” any Act or rule of law
- [11-000] Section 21A — aggravating and mitigating factors to add amendments to s 21A(2)(h) Crimes (Sentencing Procedure) Act 1999 consequential on the commencement of the Equality Legislation Amendment (LGBTIQA+) Act 2024 by proclamation on 1 December 2024.
- [11-260] Section 21A(2)(l) — the victim was vulnerable to add a cross-reference to Sexual offences against children at [17-440] Aggravating factors regarding the application of s 21A(2)(1) to specific offences.
- [11-260] Section 21A(3)(f) — the offender was a person of good character to add a cross-reference to Sexual offences against children at [17-450] Mitigating factors regarding the special rule for child sexual offences with respect to not taking into account the offender’s good character or lack of previous convictions as a mitigating factor if it assisted the commission of the offence.
Children (Criminal Proceedings) Act 1987
- [15-110] Penalties to summarise the provisions in s 41(5) Children (Criminal Proceedings) Act 1987 regarding variation by the court of good behaviour bonds or probation and enforcement of conditions, and to add reference to PD v DPP (NSW) [2025] NSWSC 16 regarding the maximum length of a control order for a single offence, or an aggregate sentence for multiple offences, being limited to 2 years.
Crimes Act 1914 (Cth) — Sentencing Commonwealth offenders
- [16-030] Penalties that may be imposed to add reference to Vamadevan v R, a five-judge bench decision, regarding the application of s 16A Crimes Act (Cth) as the governing provision when making an ICO in relation to a federal offender under s 20AB(1) Crimes Act, and the steps to be taken by a sentencing court in this regard.
- [16-040] Sentencing for multiple offences to add reference to McGregor v R, a five-judge bench decision, regarding aggregate sentencing and Commonwealth offences.
Sexual offences against children (NSW)
The chapter at [17-400]ff has been substantially revised and updated with reference to the following cases added:
- BB v R [2024] NSWCCA 13 regarding the relevance on sentence of an offenders’ youth when sentencing children and young adults
- Wanstall v R [2024] NSWCCA 167 regarding extra-curial punishment
- Xerri v The King [2024] HCA 5, RA v R [2024] NSWCCA 149 and R v Fisher [2024] NSWCCA 191 regarding the retrospective application of s 66EA Crimes Act
- Nolan v R [2024] NSWCCA 140 and R v Lamey [2025] NSWCCA 17 regarding fact finding following a guilty verdict for a s 66EA offence
- R v Carey [2024] NSWCCA 90 regarding sentencing patterns and practices and breach of position of trust as an aggravating factor in sentencing
- Du Plessis v R [2024] NSWCCA 164 regarding a victim’s vulnerability as an aggravating factor in sentencing.
Commonwealth child sex offences
- [17-770] Subjective factors (including relevant s 16A(2) matters) to add reference to Elwdah v R [2024] NSWCCA 150 and Chan v R [2023] NSWCCA 206 regarding consideration of the “objective of rehabilitation” in s 16A(2AAA) and the “prospect of rehabilitation” in s 16A(2)(n).
- [17-780] Penalties for some Commonwealth child sex offences to add reference to McGregor v R [2024] NSWCCA 200, a five-judge bench decision, regarding the applicability of aggregate sentences (Crimes (Sentencing Procedure) Act 1999, s 53A) to federal offences.
- [17-790] Mandatory minimum penalties to add reference to McGregor v R, Glasheen v R [2022] NSWCCA 191 and R v Delzotto [2022] NSWCCA 117 regarding the discounts for an offender’s pleas of guilty and assistance in relation to a mandatory minimum sentence.
Sexual offences
The chapter at [20-600]ff has been substantially revised and updated, with reference to following cases added:
- Du Plessis v R [2024] NSWCCA 164 regarding a victim’s vulnerability as an aggravating factor in s 21A(2)(l).
- JL v R [2024] NSWCCA 246 regarding the significance of youth in relation to moral culpability.
- Tafra v R [2024] NSWCCA 190 regarding the s 61JA(1) offence of aggravated sexual assault in company.
- R v Jackson [2024] NSWCCA 156 regarding considerations relating to the duration of sexual offences and the age gap between offender and victim in determining the objective seriousness of a sexual offence.
- Moore v R [2024] NSWCCA 115 regarding the relevance of a prior relationship and consent to other sexual acts in assessing the objective seriousness of a sexual offence.
- Slater v R [2024] NSWCCA 210 and Cornish v R [2024] NSWCCA 177 regarding the relevance of the offender’s state of mind on sentence and Slater v R and Tuuholoaki v R [2024] NSWCCA 135 regarding the recklessness of an offender as to non-consent.
Money laundering
- [65-230] Relevance of offender’s belief and fault element to add reference to Garcia v R [2022] NSWCCA 172 regarding the distinction on sentence between money/property being the proceeds of crime, and there being a risk it will become an instrument of crime, and O’Leary v R (Cth) [2021] NSWCCA 83 regarding considerations of planning when assessing the objective seriousness of offending where the offender failed to inquire into the origin of monies received
Appeals
- [70-035] Appellate review of an aggregate sentence to add reference to Dorsett v R [2024] NSWCCA 192, KS v R [2024] NSWCCA 147 and AJ v R [2023] NSWCCA 158 regarding observations concerning appeals against indicative sentences, and DPP v Wolinski [2024] NSWCCA 139 regarding the setting of a non-parole period for a standard non-parole period offence as a statutory obligation.