Currency

Update 44, September 2019

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Penalties of imprisonment The text at [3-300] Imprisonment as a sanction of last resort has been updated to include Casella v R [2019] NSWCCA 201 at [63]–[65]. Failure to make clear that alternatives to full-time custody have been considered and rejected is not, of itself, erroneous, but might result in uncertainty about whether the s 5 threshold for a sentence of imprisonment was met. A similar reference has been added at [3-630] ICO is a form of imprisonment.

Intensive correction orders has been revised at [3-600]ff, to include R v Pullen [2018] NSWCCA 264, R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201. [3-630] ICO is a form of imprisonment now includes the discussion in R v Fangaloka at [60]-[61] of the implications arising from the third stage of the process engaged in when considering alternatives to full-time imprisonment (see R v Zamagias [2002] NSWCCA 17). Additional reference is made to R v Zamagias with respect to that third stage. The paragraph titled ICOs available for sentences of 6 months or less has been added. Inherently lenient or a substantial punishment? at [3-630] has been revised to include the discussion of the ICO statutory scheme in R v Pullen at [53]. In R v Pullen and subsequently in R v Fangaloka, the court observed that ICOs under the new scheme, while retaining the capacity to operate as substantial punishment, may also reflect a significant degree of leniency. The discussion in R v Fangaloka, at [57], concerning the effect of the competing purposes of punishment on whether a particular sentence should be served by way of an ICO has also been added. References in this section to cases which pre-date the current ICO scheme have been removed.

[3-632] Community safety is the paramount consideration A discussion of the approach to the construction of s 66 taken in R v Pullen, R v Fangaloka and Casella v R has been added. References to cases decided under the previous ICO scheme have been removed.

[3-640] ICO conditions Casella v R has been added as an example of a case where exceptional circumstances were established for the purposes of s 73A.

A Table of Cases, which is available online only, has been prepared and is now available including all cases to Update 44.

Update 43, May 2019

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Setting terms of imprisonment has been amended to include references to recent caselaw. Sheu v R [2018] NSWCCA 86 is included in Settled propositions concerning s 53A at [7-507] to illustrate that an aggregate sentence cannot be imposed for a combination of Commonwealth and State offences. Sonter v R [2018] NSWCCA 228 is discussed in Special circumstances under ss 44(2) or 44(2B) at [7-510] where a judge did not err by failing to make specific reference to the requirements of s 44(2). By considering the reasons as a whole, no oversight was found. Thach v R [2018] NSWCCA 252 at [45]–[46] was inserted in What constitutes special circumstances at [7-514]. In that case, special circumstances may be found if the offender merely has prospects of rehabilitation that would be assisted by a longer parole period.

Appendix A: Pt 4 Div 1A Table — standard non-parole periods at [8-000] and Appendix B: Legislative amendments relevant to the Pt 4 Div 1A Table — standard non-parole periods at [8-100] have been amended to include amendments made by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, namely the addition of s 61KD(1) (aggravated sexual touching) and the repeal of s 61M(2) (aggravated indecent assault).

Concurrent and consecutive sentences has been amended to include recent caselaw and legislation. Yeung v R [2018] NSWCCA 52 is included at [8-220] under the heading of Multiple sentences of imprisonment to clarify that s 55 ensures that, if the issue is not specifically addressed, the default position is that sentences are to be served concurrently. A reference to s 25AA is included at [8-230], under the heading Sexual assault. The new provision provides that historical leniency with regard to questions of concurrence and cumulation do not apply to child sexual offences as the court is required to take into account sentencing patterns and practice at the time of sentencing. A new heading, Offences in contravention of apprehended domestic violence orders (ADVO) has been inserted at [8-230] and includes reference to Suksa-Ngacharoen v R [2018] NSWCCA 142, where a distinction is drawn between an offence committed in breach of an ADVO and an offence of breaching an ADVO.

Victims and victim impact statements has been revised extensively at [12-820]–[12-838] to include the new statutory scheme for victim impact statements inserted by the Crimes Legislation Amendment (Victims) Act 2018, which commenced on 27 May 2019. A new [12-839] has been added to discuss new provisions regarding victim impact statements when offenders are forensic patients. That the prior statutory scheme still applies to proceedings that had commenced before 27 May 2019 is reflected in the commentary. The Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Regulation 2019 also commenced on 27 May 2019, inserting cll 11A, 12C, 12D and 12E, which discuss victim impact statements in relation to forensic patients relevant to [12-839]. Amendments made by the Victims Rights and Support (Victims Support Levy) Amendment Notice 2019 for the 2019–2020 financial year have been incorporated at [12-867].

Murder has been revised to include three new paragraphs. Relevance of motive at [30-045] deals with the need to consider the factual circumstances when there is an absence of motive. Cases discussed include DL v R [2018] NSWCCA 302 where a 16-year old boy murdered a 15-year-old girl in a frenzied attack where there was no satisfactory explanation, motive or trigger for the offence. Murders committed in context of domestic violence at [30-047] include references to The Queen v Kilic (2016) 259 CLR 256, Quinn v R [2018] NSWCCA 297, Cherry v R [2017] NSWCCA 150 and Patsan v R [2018] NSWCCA 129 to illustrate that significant weight is given to general deterrence, denunciation and community protection when sentencing an offender who takes their partner’s life. Delay between murder offence and sentence at [30-048] discusses the importance of sentencing patterns that had existed when the offence was committed when there is a lengthy delay between the offending conduct and sentencing. Other cases have been inserted into the Murder chapter, including Charbaji v R [2019] NSWCCA 28 at [30-010] and [30-040], where the state of mind in which murder is committed is directly relevant to determining the objective seriousness of the crime. R v Baker [2019] NSWCCA 58 was included in Conspiracy/solicit to murder at [30-090], discussing the objective seriousness of an offence that involved the offender arranging the murder of his son and his son’s friend (both 14 years old) who were to be witnesses at his pending trial.

Commonwealth drug offences has been amended to reflect the replacement of the Criminal Code Regulations 2002 (Cth) with the Criminal Code Regulations 2019. In particular, reference to the lists of applicable trafficable, marketable and commercial quantities for border controlled or controlled drugs set out in Pt 3, Div 1 and Schs 1 and 2 is noted at [65-130].

Appeals has been amended to update Tables 1-4 in Overview of Court of Criminal Appeal sentence appeals 2001–2018 at [70-010] to insert revised figures up to and including 2018. Further detailed information and figures have been included concerning inquiries into sentence under Pt 7 Crimes (Appeal and Review) Act 2001. These figures are not included in Tables 1 and 2 as they can lead to double counting.

Update 42, September 2018

Available sentencing options have significantly changed following the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 on 24 September 2018. As a result, there has been a major revision of the sections of the Sentencing Bench Book dealing with community-based sentencing options.

A new section “Custodial and non-custodial community based orders” has been created. That section includes:

  • A new chapter “Community-based orders generally” inserted at [3-500], which summarises the main aspects of the reforms and certain features of the reforms that apply to all community-based orders. It also includes tables which summarise the new orders, the transitional arrangements and the times it will take for Community Corrections to provide different types of assessment reports.

  • [3-600] has been retitled “Intensive correction orders (ICOs) (alternative to full-time imprisonment)” and the text has been re-written to accommodate the reforms made to the structure of an ICO.

  • [4-400] has been retitled “Community correction orders (CCOs)” and the text has been re-written to address the requirements for making a CCO.

  • [4-700] has been retitled “Conditional release orders (CROs)” and the text has been re-written to address the requirements for making a CRO upon conviction.

  • [5-000] has been retitled “Dismissal of charges and conditional discharge” and the text has been updated, revised and reorganised.

  • [5-300] has been retitled “Conviction with no other penalty” and minor consequential changes have been made to the text.

  • [5-700] “Suspended sentences” has been revised to take into account the repeal of s 12 of the Crimes (Sentencing Procedure) Act 1999 with effect from 24 September 2018.

  • [6-500] “Non-association and place restriction orders” has been revised to take into account the sentencing amendments which now enable such orders to be conditions of any of the community-based sentencing options.

  • [6-600] “Breaches of non-custodial community-based orders” has been inserted to outline the court’s power to deal with breaches of CCOs and CROs and to set out the procedures for dealing with breaches of these orders.

The section dealing with home detention (previously at [4-000]) has been deleted.

Further consequential amendments were made to various other chapters, including:

  • Penalties of imprisonment at [3-300]ff

  • Deferral for rehabilitation or other purpose at [5-400]ff

  • Fines at [6-100]ff

  • Setting terms of imprisonment at [7-500]ff

  • Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff

  • Concurrent and consecutive sentences at [8-200]ff

  • Subjective matters taken into account (cf s 21A(1)) at [10-400]ff

  • Section 21A factors “in addition to” any Act or rule of law at [11-000]ff

  • Court to take other matters into account (including pre-sentence custody) at [12-500]ff

  • Children (Criminal Proceedings) Act 1987 at [15-000]ff

  • Sentencing Commonwealth offenders at [16-000]ff

  • Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-800]ff

  • Sexual assault at [20-600]ff

  • Assault, wounding and related offences at [50-000]ff

  • Firearms and prohibited weapons offences at [60-000]ff

  • Domestic violence offences (which includes new material on the sentencing reforms in Statutory framework at [63-505]) at [63-500]ff

  • Appeals at [70-000]ff

  • Mental Health (Forensic Provisions) Act 1990 at [90-000]ff.

Update 41, July 2018

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Deferral for rehabilitation or other purpose References to forum sentencing intervention programs have been deleted from Declaration and regulation of intervention programs at [5-440] and Restrictions on the power to make intervention program orders at [5-450] following the commencement on 29 June 2018 of the Criminal Procedure Amendment (Intervention Programs) Regulation 2018.

Setting terms of imprisonment The text in Special circumstances under ss 44(2) or 44(2B) at [7-510] has been updated to include Brennan v R [2018] NSWCCA 22, where the court considered the extent to which a sentencing judge should give reasons for imposing a non-parole period greater than 75%. Commencement of sentence at [7-540] has been updated to include Kaderavek v R [2018] NSWCCA 92 which considers the operation of s 47. Kaderavek v R has also been added to Forward dating sentences of imprisonment at [7-547] to confirm when a sentence commences if an offender is bail refused for the relevant offence and is also subject to a statutory parole order.

Concurrent and consecutive sentences In Applications of the totality principle at [8-210], R v JDX [2017] NSWCCA 9 and Johnson v R [2017] NSWCCA 278 have been added. In R v JDX, it was held that, where some concurrent sentences have been later quashed, a correction may be necessary so the sentence adequately reflects the criminality of the remaining offences standing alone. In these circumstances, the original sentence is based on the basis of a premise that no longer exists: Johnson v R at [161]–[163]. In Totality and sentences of imprisonment at [8-220], Stanton v R [2017] NSWCCA 250 has been added to clarify that an extremely lengthy sentence is not necessarily crushing if it reflects the offender’s total criminality.

Parity The chapter has been reorganised. Co-offenders convicted of different charges at [10-810] has been amended to add references to Dunn v R [2018] NSWCCA 108 and Miles v R [2017] NSWCCA 266. In Dunn v R, the court concluded the parity principle did not apply when an offender is sentenced for an offence and the co-offenders have the same offence taken into account on a Form 1. Miles v R discussed the importance of having regard to the differences between the objective and subjective features of the co-offender’s case which reasonably justified the sentence imposed. Wan v R [2017] NSWCCA 261, Cameron v R [2017] NSWCCA 229 and Miles v R have been added to Severity appeals and parity at [10-840]. These cases discuss the test for establishing disparity.

Section 21A factors “in addition to” any Act or rule of law The text in Limitations on the use of s 21A(2) factors at [11-040] has been amended to include Kassoua v R [2017] NSWCCA 307 where Basten JA identified the risk of double counting aggravating factors by reference to s 21A(2) subsections. Section 21A(2)(ea) (offence committed in child’s presence) at [11-101] has been amended to include McLaughlin v R [2013] NSWCCA 152, Lloyd v R [2017] NSWCCA 303 and Alesbhi v R [2018] NSWCCA 30. In Lloyd v R, the court said s 21A(2)(ea) can also apply in circumstances where the offender is a child. Section 21A(2)(ib) (offence involved grave risk of death) was added at [11-145]. Section 21A(2)(j) (offence committed while offender on conditional liberty) at [11-150] includes a reference to Archer v R [2017] NSWCCA 151. Section 21A(2)(l) (vulnerable victim) at [11-170] has been updated to include references to Longworth v R [2017] NSWCCA 119 and Katsis v R [2018] NSWCCA 9 where security guards and the elderly, respectively, fell within the class of vulnerable victims. Section 21A(2)(n) (offence part of planned or organised criminal activity) at [11-190], has been revised. The discussion of cases dealing with planning and organisation in the context of drug supply offences has been moved to Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890]. Section 21A(2)(o) (offence committed for financial gain) has been added at [11-192] and includes Clinton v R [2018] NSWCCA 66 where financial gain was not considered an aggravating factor in an ordinary case of fraud. With regard to s 21A(3)(i) at [11-290], Chahal v R [2017] NSWCCA 203 was added. Repayment of the proceeds of crime is not necessarily evidence of genuine remorse.

Guilty plea to be taken into account The chapter has been revised following the commencement, on 30 April 2018, of Pt 3, Div 1A, which was introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. There are now two guilty plea discount schemes under the Crimes (Sentencing Procedure) Act. The mandatory sentencing discount scheme under Pt 3, Div 1A applies to offences dealt with on indictment where the proceedings commenced on or after 30 April 2018. Section 22 now applies only to a sentence for an offence dealt with summarily or to a sentence for an offence dealt with on indictment to which Div 1A does not apply (s 22(5)). In Guilty plea discounts for offences dealt with summarily and exceptions to Pt 3 Div 1A at [11-520], in the discussion of The R v Borkowski principles, Samuel v R [2017] NSWCCA 239 has been added. Delay caused by an offender absconding will affect whether a guilty plea after arrest can be characterised as “early”. New text has been added at [11-525] regarding whether guilty plea discounts should be given for Form 1 offences.

Court to take other matters into account (including pre-sentence custody) The text in Quasi-custody bail conditions at [12-530] has been revised and includes Kelly v R [2018] NSWCCA 44, regarding whether bail conditions amount to quasi-custody and the extent to which a sentence should be adjusted. In Counting pre-sentence custody at [12-500], Rafaieh v R [2018] NSWCCA 72 has been added. The fact an offender is not entitled to be released from custody for one offence but was granted bail for another does not mean his or her bail status has altered in respect of the latter offence. Kaderavek v R [2018] NSWCCA 92 at [20] has also been added at [12-500] to confirm that it is preferable but not mandatory to backdate a sentence by a period equivalent to the pre-sentence custody.

Victims and victim impact statements The text in Victims support levies at [12-867] has been updated to include the latest figures for the 2018–19 financial year, reflecting a recent amendment to the Table in cl 2 of the Victims Rights and Support (Victims Support Levy) Notice 2013 by Amendment Notice 2018, which commenced on 22 June 2018.

Taking further offences into account (Form 1 offences) In Taking further offences into account at [13-200], text has been updated to include Gordon v R [2018] NSWCCA 54 where it was held there is no statutory or common law requirement to take into account a guilty plea for an offence taken into account on a Form 1.

Children (Criminal Proceedings) Act 1987 The chapter has been revised to include references to the Children (Criminal Proceedings) Regulation 2016. In Intervention orders at [15-120], a reference to JIRS Diversionary Programs, which contains a list of some programs available for children has been added.

Sentencing Commonwealth offenders A summary of the approach to be taken in Commonwealth matters when dealing with the utilitarian value of a guilty plea in Huang aka Liu v R [2018] NSWCCA 70 has been added to General sentencing principles applicable at [16-010]. Singh v R [2018] NSWCCA 60, which contains a discussion of the overlap between remorse, contrition and a guilty plea, has also been added. Reference to the CDPP’s recently published Sentencing of Federal Offenders in Australia — A Guide for Practitioners is noted at the front of the chapter.

Dangerous driving and navigation The text in Licence disqualification at [18-410] has been updated to include Gray v R [2018] NSWCCA 39 to clarify that if the sentence for a “major disqualification offence” (as defined in s 206A(1) Road Transport Act 2013) is part of an aggregate sentence, the disqualification period is extended by the length of the aggregate sentence.

Drug Misuse and Trafficking Act 1985 (NSW) offences The commentary in Supply and the imposition of full-time custody at [19-835] has been rewritten after a five-judge bench decision was delivered in Parente v R [2017] NSWCCA 284, which overturned the “principle” in R v  Clark (unrep, 15/3/90, NSWCCA) that drug trafficking to a substantial degree ordinarily required a sentence of full-time imprisonment unless there were exceptional circumstances. A sentencing court must approach sentencing for drug supply offences in accordance with ordinary sentencing principles rather than starting from the assumption that a sentence of full-time custody is required. Fato v R [2017] NSWCCA 190 has been added to Quantity and purity of drug in Other factors relevant to objective seriousness at [19-870]. The text in Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890] has been revised to include the cases discussing financial gain as an aggravating factor under s 21A(2)(o) that were previously at [11-190]. See, in particular, the reference to the discussion by Basten JA in Kassoua v R [2017] NSWCCA 307 concerning whether financial gain could be taken into account as a separate aggravating factor under s 21A(2)(o). Huang v R [2017] NSWCCA 312 has also been added.

Robbery The text has been updated to include revised cross references.

Sexual assault The text in Assessing objective gravity of sexual assault at [20-630] has been updated to include R v Hall [2017] NSWCCA 313. The context in which offending occurs was an important part of determining objective seriousness. R v Hall is also discussed in Mitigating circumstances at [20-770] and in Sentencing for offences committed many years earlier at [20-780], with regard to how a 23-year delay between the commission of an offence and the offender’s arrest does not necessarily lead to a more lenient sentence. At [20-630], in a new section on Age gap between offender and victim, R v Shortland [2018] NSWCCA 34 has been added to highlight that, in cases of non-consensual intercourse between adults, age difference is rarely likely to be relevant. A new section Consent must be addressed when in issue at [20-645] includes R v Alcazar [2017] NSWCCA 51 where, when consent is in issue at sentence, the basis upon which the issue was resolved should be explained or addressed. R v Shortland has been added to Utility of sentencing statistics at [20-790] as an example of an erroneous use of sentencing statistics.

Domestic violence offences Domestic violence orders made in one State or Territory are now recognised in all other Australian jurisdictions. Reference to the national recognition scheme has been added to Introduction at [63-500]. The effect of delay between domestic violence offences and the victim making a complaint was discussed in Hurst v R [2017] NSWCCA 114 and has been added to Sentencing approach to domestic violence at [63-510]. Cherry v R [2017] NSWCCA 150 has been added to Breaches of apprehended violence orders at [63-520].

Commonwealth drug offences In Objective factors relevant to all Commonwealth drug offences at [65-130], a new section on Importing more than one border controlled drug has been inserted, including MEG v R [2017] WASCA 161. The text in Achieving consistency at [65-150] has been updated to include R v Nakash [2017] NSWCCA 196 and Rajabizadeh v R [2017] WASCA 133 concerning issues associated with equating sentences for Commonwealth offences with similar State offences.

Appeals A new section Judge may furnish report on appeal at [70-115] has been added and includes Zhang v R [2018] NSWCCA 82 concerning the relevant and permissible functions of a report that judges may furnish under s 11 of the Criminal Appeal Act 1912.

Index and Table of Statutes have been updated online to include the amendments made in Update 41. It is anticipated the hard copy pages will be updated in a future report.

Update 40, March 2018

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness At [1-010] Reasons for decision was updated to include R v Alcazar [2017] NSWCCA 51 which held that a sentencing judge is obliged to explain how disputed factual issues (in this case the issue of consent) have been resolved in the sentencing judgment. Warnings that courts must give for high risk offenders under the Crimes (High Risk Offenders) Act 2006 have been revised and commentary about warnings for terrorism-related offenders under the Terrorism (High Risk Offenders) Act 2017 has been added at the renamed [1-070] Warnings for high risk and terrorism-related offenders.

Obligation of parties A new [1-220] Duty of legal practitioners to correct error by sentencing judge has been added to address the situation where a judge misstates the maximum penalty while giving reasons before passing sentence. In Campbell v R [2018] NSWCCA 17 at [34], it was commented that legal practitioners have a duty to correct such an error immediately.

Setting terms of imprisonment At [7-505] Aggregate sentences, Hunt v R [2017] NSWCCA 305 is added to clarify that pronouncing the non-parole period before giving the total aggregate sentence is a technical error that does not invalidate the sentence. The text at [7-507] Settled propositions concerning s 53A has been amended to include TL v R [2017] NSWCCA 308, which states that discounts for assistance to authorities should be applied to indicative sentences, not the aggregate sentence. [7-570] Court not to make parole order and [7-580] No power to impose conditions on parole orders have been renamed and the text has been revised in light of the commencement of those parts of the Parole Legislation Amendment Act 2017 affecting a court’s previous power to make parole orders and impose conditions. Courts no longer have such a power.

Court to take other matters into account (including pre-sentence custody) An amendment to [12-500] Counting pre-sentence custody was made as a consequence of the repeal of ss 50 and 51 by the Parole Legislation Amendment Act 2017.

Sentencing Commonwealth offenders Text on whether s 16A(2)(g) Crimes Act 1914 (Cth) permits a utilitarian discount at [16-010] General sentencing principles applicable has been revised in light of a five-judge bench NSWCCA decision in Xiao v R [2018] NSWCCA 4. It is now accepted s 16A(2)(g) requires a court to take into account the utilitarian value of a guilty plea.

Break and enter offences In [17-070] Application of s 21A to break and enter offences, BB v R [2017] NSWCCA 189 at [38] was included for the proposition that taking into account, as an aggravating factor, the fact the offence occurred at the victim’s home does not amount to impermissible double-counting.

Dangerous driving and navigation In [18-336] General deterrence, R v Manok [2017] NSWCCA 232 was added to reiterate the importance of general deterrence in dangerous driving cases causing death.

Detain for advantage/kidnapping The court’s observations in Hurst v R [2017] NSWCCA 114 about factors relevant to the offence seriousness have been incorporated at [18-715] Factors relevant to the seriousness of an offence. The detention of the victim was categorised as very serious in circumstances where the offender derived pleasure from inflicting pain and humiliation, the victim genuinely feared for her life, and the offence was committed in a domestic violence context.

Manslaughter and infanticide At [40-040] Discount for rejected offer to plead guilty to manslaughter, Merrick v R [2017] NSWCCA 264 was discussed. A discount is only available where the offer fully discloses the circumstances and degree of culpability intended to be acknowledged by the plea.

Assault, wounding and related offences Text at [50-130] Particular types of personal violence has been revised to include The Queen v Kilic (2016) 259 CLR 256 where the High Court emphasised the importance of deterrence when sentencing for offences involving domestic violence. The discussion about the importance of deterrence in the domestic violence context in Cherry v R [2017] NSWCCA 150 and DPP v Darcy-Shillingsworth [2017] NSWCCA 224 has been added. The observations in Hurst v R [2017] NSWCCA 114 have been included that violent attacks on the victim, with the intent to humiliate and demean her, are the very worst aspects of domestic violence.

Money laundering The text at [65-205] Breadth of conduct caught and [65-210] Sentencing range has been amended to include discussion of Dickson v R [2016] NSWCCA 105, which was an example of serious money laundering.

Conspiracy A discussion of Dickson v R [2016] NSWCCA 105 was also inserted at [65-300] Introduction, [65-340] Yardstick principle — maximum penalty for substantive offence and [65-420] Commonwealth conspiracy offences. The sophistication, planning and complexity involved in the conspiracy to defraud justified the offence being categorised as in the “worst category”.

Appeals The severity appeals tables have been revised and updated with the 2016 figures at [70-010] Overview of Court of Criminal Appeal sentence appeals 2001–2016. In severity appeals to the District Court, Toth v DPP (NSW) [2017] NSWCA 344 illustrates how a failure to regard “natural limitations” of the District Court in a conviction appeal led to jurisdictional error.

Mental Health (Forensic Provisions) Act 1990 As a consequence of the Justice Legislation Amendment Act 2017, a magistrate in summary proceedings may divert a cognitively impaired defendant so that he or she is able to be assessed, treated or given support in relation to his or her cognitive impairment. The text in [90-050] Part 3 — Summary proceedings before a magistrate has been revised to reflect this amendment that updates old terminology and includes a definition of “cognitive impairment” that is found in s 32(6) Mental Health (Forensic Provisions) Act 1990. A relevant minor amendment by the Justice Legislation Amendment Act (No 2) 2017 has also been incorporated to clarify bail procedure when a person is assessed as not being mentally ill.

Update 39, September 2017

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Fact finding at sentence A new [1-445] Exceptions to the approach in Cheung and Isaacs has been added to include a reference to Chiro v The Queen [2017] HCA 37 which held that Cheung v The Queen (2001) 209 CLR 1 and R v Isaacs (1997) 41 NSWLR 374 do not govern fact finding for offences of persistent sexual exploitation (see further below). Imbornone v R [2017] NSWCCA 144 at [17] has been added at [1-490] Untested self-serving statements. In that case, Wilson J set out a number of principles to be applied where a sentencing court is faced with an untested statement to a third party.

Setting terms of imprisonment [7-507] Settled propositions concerning s 53A has been amended to include the proposition that the enactment of the aggregate sentencing provision was not intended to effect a change in the substantive law: PG v R [2017] NSWCCA 179 at [90]. A court that imposes an aggregate sentence need only apply a discount, or discounts, to each indicative sentence which are then taken into account for the purpose of setting the aggregate sentence: PG v R at [71], [76].

Standard non-parole period offences — Pt 4 Div 1A [7-955] Use of cases decided before Muldrock v The Queen has been amended to include the cases of Toole v R (2014) 247 A Crim R 272, Wang v R [2017] NSWCCA 61 at [16] and Davis v R [2015] NSWCCA 90 at [32]–[33]. Cases decided before Muldrock v The Queen (2011) 244 CLR 120 should be approached with caution. It is presumed that most, if not all, pre-Muldrock, cases were influenced by the erroneous principles in R v Way (2004) 149 A Crim R 168. KB v R [2015] NSWCCA 220 was added where the sentencing judge had regard to two comparable CCA cases (at the time) which were subsequently reconsidered following Muldrock v The Queen. The CCA intervened and resentenced the applicant.

Concurrent and consecutive sentences [8-240] Sentences for offences involving assault by convicted inmate was revised to include R v Hoskins [2004] NSWCCA 236 and R v Jeremiah [2016] NSWCCA 241 concerning the requirement to give reasons in s 56(3) to set a partly consecutive sentence.

Subjective matters taken into account (cf s 21A(1)) [10-420] Contrition was amended to include Roff v R [2017] NSWCCA 208 at [25] where the judge erred by using the offender’s lack of remorse as a reason for fixing a longer non-parole period.

Section 21A factors “in addition to” any Act or rule of law [11-290] Section 21A(3)(i) — remorse shown by the offender has been amended to include Van Zwam v R [2017] NSWCCA 127, where the CCA held that a judge was not entitled to disregard altogether evidence of remorse contained in a sworn affidavit in circumstances where the Crown chose not to cross-examine the deponent. Imbornone v R [2017] NSWCCA 144 was added for the proposition that a judge was entitled to find that the applicant’s untested hearsay expressions did not prove on the balance of probabilities that he was remorseful.

Victims and victim impact statements The VIS reforms in the Justice Legislation Amendment Act 2017, which permits certain victims to have a support person and for proceedings to be heard in camera, have been included at [12-820] The statutory scheme for victim impact statements. [12-860] Compensation orders for victims has been renamed “Statutory scheme for directions to pay compensation” and Upadhyaya v R [2017] NSWCCA 162 has been added. A direction under s 97(1) is clearly in the nature of a claw-back or disgorgement of an offender’s “ill-gotten gains”, and therefore by definition does not operate in mitigation of sentence according to common law principle: Upadhyaya v R at [65]–[66].

Taking further offences into account (Form 1 offences) In [13-260] The statutory power to reject a Form 1 under s 33(2)(b), the cases of Croxon v R [2017] NSWCCA 213 and DG v R [2017] NSWCCA 139 were added as examples of the inappropriate use of the Form 1 procedure.

Sexual offences against children In [17-500] Persistent sexual abuse of child: s 66EA, under the sub-heading Fact finding following a guilty verdict, Chiro v The Queen [2017] HCA 37 at [52] was added for the proposition that where a jury returns a verdict of guilty of a charge of persistent sexual abuse and the judge does not, or cannot, get the jury to identify which of the alleged acts of sexual exploitation the jury had found to be proved, the offender has to be sentenced on the basis most favourable to the offender.

Drug Misuse and Trafficking Act 1985 (NSW) offences Drug rip-offs (a new sub-heading under [19-830Supply) are regarded by the courts as objectively serious and remain subject to the penalties applicable to an offence contrary to s 25: R v Kijurina [2017] NSWCCA 117 at [99]. Chong v R [2017] NSWCCA 185 at [18], [106] has been added. The halving of the large commercial quantity of “ice” threshold indicates Parliament’s intention that those sentences (where the weight is between 500–999 grams) should increase.

In [19-835] Supply and the imposition of full-time custody, the “principle” that a sentence of full-time imprisonment must be imposed on an offender who is found to be engaged in substantial drug trafficking unless the court finds there are exceptional circumstances does not preclude consideration of s 5 and the imposition of an intensive correction order (ICO): Robertson v R [2017] NSWCCA 205 at [38]–[39]. In cases of drug supply, an ICO ought to be given full, fair and genuine consideration by the court: Robertson v R at [38].

The amendment by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015, halving the large commercial quantity threshold from 1kg to 500g, reflects Parliament’s intention that sentences imposed on persons supplying methylamphetamine should be increased: Chong v R [2017] NSWCCA 185 at [18], [106].

Offences against justice/in public office A new sub-heading Referrals by the Local Court to the Supreme Court and procedural fairness has been added at [20-155] Common law contempt of court. Before exercising its power of referral under s 24(4) Local Court Act 2007, the court must afford procedural fairness to a proposed contemnor: Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277; Prothonotary of the Supreme Court of NSW v Chan (No 23) [2017] NSWSC 535.

Domestic violence offences Cherry v R [2017] NSWCCA 150 has been added to [63-510] Sentencing approach to domestic violence. Domestic violence requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. A reference to the domestic violence case of DPP v Darcy-Shillingsworth [2017] NSWCCA 224 was also inserted. Drew v R [2016] NSWCCA 310 was added for the proposition that particular care is required when a court makes a finding concerning the vulnerability of the victim. It must avoid generalisations. A finding that the victim was vulnerable in the more general sense of being under an impaired ability to avoid physical conflict with the applicant, or defend herself, was well open on the evidence.

The Index and Table of Statutes have been updated online and minor amendments have been made to the following chapters as a result of the commencement on 1 September 2017 of a number of regulations, including the Crimes (Sentencing Procedure) Regulation 2017, Criminal Procedure Regulation 2017 and the Mental Health (Forensic Provisions) Regulation 2017:

  • [3-600] Intensive correction orders (ICOs)

  • [4-000] Home detention orders

  • [4-400] Community service orders (CSOs)

  • [5-400] Deferral for rehabilitation or other purpose

  • [7-500] Setting terms of imprisonment

  • [12-500] Court to take other matters into account (including pre-sentence custody)

  • [12-790] Victims and victim impact statements

  • [13-200] Taking further offences into account (Form 1 offences)

  • [90-000] Mental Health (Forensic Provisions) Act 1990.

Update 38, July 2017

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Section 9 good behaviour bonds In [4-770] Breach of bond has been rewritten to include DPP (NSW) v Jones [2017] NSWCCA 164 which held that the Local Court is a court of “like jurisdiction” for the purposes of dealing with a breach of a bond which was imposed in a sentence appeal in the District Court.

Suspended sentences The text at [5-780] Breaches, has been revised to include DPP (NSW) v Jones [2017] NSWCCA 164 and a cross reference to Breach of bond at [4-770].

Objective factors (cf s 21A(1)) A new paragraph at [10-025] Necessity to refer to “Explaining the statistics” document has been added in relation to the use of JIRS statistics as requested by RA Hulme J in Why v R [2017] NSWCCA 101 at [61]. A new paragraph [10-027] Recent changes to JIRS statistics notes the rationale for the removal of the variables “Multiple offences”, the median and 80% range from the statistics viewer for the higher courts. The cases of Knight v R [2015] NSWCCA 222 at [7], R v Wright [2017] NSWCCA 102 at [52] and Harper v R [2017] NSWCCA 159 at [34] support their removal.

Subjective matters taken into account (cf s 21A(1)) The following paragraphs have been amended:

  • At [10-410] Good character, the text was amended. Prior good character is no real assistance where it was a condition for the registration for a physiotherapist and the offender used his/her position to commit offences: Jung v R [2017] NSWCCA 24 at [57].

  • At [10-460] The relevance of an offender’s mental condition, the text was revised to include, in the existing discussion of High Court authorities, various checklists or summaries of the law by intermediate appellate courts. The cases of Alkanaan v R [2017] NSWCCA 56 at [108] and Jeffree v R [2017] NSWCCA 72 at [30]–[31] were added.

  • At [10-475] Deprived background of an offender, a new subheading “Specific applications of the principle in Bugmy v The Queen” has been included that discusses the cases of IS v R [2017] NSWCCA 116, Kiernan v R [2016] NSWCCA 12 and Drew v R [2016] NSWCCA 310.

  • At [10-520] Extra-curial punishment, the text has been revised to include three new subheadings “Public humiliation”, “Media coverage” and “Professional ramifications”. R v Obeid (No 12) [2016] NSWSC 1815 at [101]–[102] was added for the proposition that public humiliation does not mitigate a sentence where the media reports are not sensationalised and the offence involves political corruption.

    As to “Professional ramifications”, there is a difference of approach on the question whether it can be taken into account as extra-curial punishment. In Kearsley v R [2017] NSWCCA 28 at [76], it was held extra-curial punishment cannot arise when the loss of employment is a natural consequence of a conviction.

Section 21A factors “in addition” to any Act or rule of law The text at [11-100] Section 21A(2)(e) — the offence was committed in company has been amended to include IS v R [2017] NSWCCA 116 at [50] where the court held there was no misapplication of s 21A(2)(e) nor White v R [2016] NSWCCA 190. At [11-160] Section 21A(2)(k) — abuse of a position of trust or authority, the case of Mol v R [2017] NSWCCA 76 has been included. Section 21A(2)(k) was not intended to extend the categories of what might constitute a breach of trust or authority at common law where the special relationship between an offender and a victim imposes mutual obligations not to act to the detriment of the other: Mol v R at [107]. Section 21A(2)(k) could be applied to an artist who sexually assaulted young women who were employed to pose nude for artistic purposes: Mol v R at [108]. A breach of trust is heightened when an offence is committed against a patient/client of a health practitioner: Jung v R [2017] NSWCCA 24 at [64]. At [11-190] Section 21A(2)(n) — the offence was part of a planned or organised criminal activity, the case of Wat v R [2017] NSWCCA 62 at [48] was added. It was permissible to apply s 21A(2)(n) in a case involving the supply of a large commercial quantity of ephedrine because the level of planning was well beyond that which might be expected in the lowest level of an offence of this type. At [11-240] Section 21A(3)(d) — the offender was acting under duress, the text was revised to include Giang v R [2017] NSWCCA 25. There was no error in the judge factoring duress into the sentencing exercise at both the objective and subjective stages in respect of the offences. There is nothing in any of this court’s relevant decisions since Muldrock v The Queen (2011) 244 CLR 120 which confines duress as a purely subjective factor and the court has continued to apply Tiknius v R (2011) 221 A Crim R 365 in relation to non-exculpatory duress to sentence: Giang v R at [33]. A new [11-355] Section 24C — disqualification of parliamentary pension has been added. When an offender is, or was, a Member of Parliament, the court must not take into account the offender’s loss of their entitlement to a parliamentary pension because of their conviction for the offence. Section 24C was first applied in R v Macdonald [2017] NSWSC 638.

Power to reduce penalties for assistance to authorities A new [12-215] Broad scope of s 23(1) — “any other offence” has been added. The court in R v XX [2017] NSWCCA 90 at [32]–[35] considered the broad scope of the text of s 23(1) and concluded it encompasses assistance not related to the offence before the court and need not be provided after an offender’s arrest. Assistance rendered for unrelated offences years prior qualified as “assistance” under s 23 but the court is then required to exercise discretion to give or refuse discount: R v XX at [32].

Children (Criminal Proceedings) Act 1987 A new [15-130] The Criminal Records Act 1991 and the Children (Criminal Proceedings) Act 1987 has been added to address the question: how does the Criminal Records Act 1991 apply to orders under s 33 Children (Criminal Proceedings) Act 1987? Suffice to state the text of the Criminal Records Act could be clearer on the subject. A Table has been also inserted.

Fraud offences in NSW The text at [20-010] The relevance of a gambling addiction has been substantially rewritten following Johnston v R [2017] NSWCCA 53. A gambling addiction is not of itself a mitigating circumstance. A gambling addiction cannot reduce an offender’s moral culpability where fraud is committed over an extended period: Johnston v R at [38]. The R v Henry (1999) 46 NSWLR 346 principles regarding robbery offences committed to feed a drug addiction also apply to fraud offences committed to feed a gambling addiction: Johnston v R at [41].

Offences against justice/in public office The text at [20-155] Common law contempt of court has been amended to include the proposition that the “companion principle” is a principle that only attaches to criminal proceedings rather than a criminal standard of proof. It has no application in contempt proceedings commenced within a civil jurisdiction: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375. Part 55, r 14 Supreme Court Rules 1970 confers a power on the Supreme Court to revisit and review a decision to imprison for contempt in light of changed circumstances. Compliance with court orders, an acknowledgement of the seriousness of the contempt and contrition justified orders of release: Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280. At [20-190] Common law offence of misconduct in public office, R v Obeid (No 12) [2016] NSWSC 1815 and R v Macdonald [2017] NSWSC 638 have been added to the discussion of objective seriousness.

Update 37, March 2017

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

The following sections were revised to incorporate the High Court decision of The Queen v Kilic (2016) 91 ALJR 131, which held that courts should avoid using the expression “worst category” (as used in Ibbs v The Queen (1987) 163 CLR 447 at 451–452 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and should instead state whether an offence is so grave as to warrant maximum penalty: Mandatory life sentences under s 61 at [8-630] Comparison with common law cases that attract the maximum, Objective factors at [10-005] Cases that attract the maximum, and Murder at [30-040] Aggravating factors and cases that attract the maximum.

Consequential amendments were also made to the following chapters: Sexual offences against children, Detain for advantage/kidnapping, Drug Misuse and Trafficking Act 1985 (NSW) offences, Fraud offences in New South Wales, Robbery, Sexual assault, Murder, Manslaughter and infanticide, Assault, wounding and related offences, Firearms and prohibited weapons offences, Commonwealth drug offences and Money laundering.

Community service orders (CSOs) This section has been generally revised. At [4-440] Revocation and breach of CSO, DPP (NSW) v Caita-Mandra [2004] NSWSC 1127 and DPP v Brasher [2016] NSWSC 1707 have been added. The decision to revoke the CSO is distinct from the decision whether to make a consequential order and they should not be conflated. If the CSO is revoked, the court then determines, in the exercise of its discretion, whether to make a consequential order.

Mandatory life sentences under s 61 Text at [8-610] Application and [8-620] Extreme culpability has been amended to add Dean v R [2015] NSWCCA 307. It is not contrary to High Court authorities to apply a two-staged reasoning process under s 61. A murder committed by way of reckless indifference to human life can attract a life sentence under s 61.

Objective factors The text in [10-022] Use of information about sentences in other cases has been amended to include The Queen v Kilic (2016) 91 ALJR 131. The Court of Appeal (Vic) erred by attributing too much significance to sentences imposed in other cases and treating the sentences as defining a range. The cases used were disparate and the offences did not occur in a domestic context. The text in [10-024] Use of sentencing statistics has been amended to include SS v R [2016] NSWCCA 197 for the proposition that statistics do not provide any real assistance in determining whether a sentence is manifestly excessive in the absence of any detail concerning the circumstances of the particular cases in question.

Section 21A factors “in addition to” an Act or rule of law The text at [11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person has been amended to include the five-judge bench decisions of R v Lulham [2016] NSWCCA 287 and Jonson v R [2016] NSWCCA 286. The terms of s 21A(2)(eb) do not impose a pre-condition for its operation that the offender be an intruder into the victim’s home. A literal construction therefore includes the offender’s home.

Sexual assault The text at [20-604] Change in community attitude to sexual assault and harm has been amended to include the dictum in The Queen v Kilic (2016) 91 ALJR 131 at [21] that current sentencing practices in relation to sexual offences may be seen to depart from past practices by reason of changes in understanding of the long-term harm done to the victim.

Domestic violence offences The text at [63-510] Sentencing approach to domestic violence has been amended to include The Queen v Kilic (2016) 91 ALJR 131 at [21]. Current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations. The text at [63-520] Breaches of apprehended violence orders has been amended to include McIlwraith v R [2017] NSWCCA 17 at [39]–[42]. The offence of intimidation is one of “specific intent” and an accused’s intoxication can be taken into account for the purposes of liability. However, self–induced intoxication is not a matter in mitigation at sentence under s 21A(5AA).

Update 36, November 2016

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Obligations of the parties The text at [1-200] The prosecutor has been substantially revised to include a new subheading [1-203] Submissions as to the bounds of the range prohibited. The decision of Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113 is included. The decision explained Barbaro v The Queen (2014) 253 CLR 58 in particular that there is no room for the court to take account of the Crown’s opinion as to an appropriate length of sentence; to do so would create an unacceptable risk of breaking down the distinction that must exist between the court and the coercive power of the State which is exercised in the criminal jurisdiction: Commonwealth of Australia v Fair Work Building Industry Inspectorate at [56].

Intensive correction orders The text at [3-700] has been amended to include recent amendments to s 71 by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 which provide that an ICO may be ordered to commence on a date other than the one on which it is made if it is to be served consecutively, or partly consecutively, with some other sentence of imprisonment the subject of an ICO.

Setting terms of imprisonment The text at [7-500] has been revised to take in amendments to the Crimes (Sentencing Procedure) Act 1999 by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016.

Aggregate sentences Section 53B has been added which provides that the Local Court has a jurisdictional limit of 5 years for aggregate sentences. Dimian v R [2016] NSWCCA 223 has been added at [7-505] for the following propositions: (a) an aggregate sentence cannot exceed the sum of the indicative sentences; and (b) the only circumstance where an indicative sentence might be thought to equate with a non-parole period would be where the sentencing judge expressly states that the indicative sentence was to be treated as a fixed term.

Court not to set non-parole period for sentence of 6 months or less The text at [7-530] is amended to state that a court may decline to set a non-parole period (ie impose a fixed term) for an offence to which a standard non-parole period applies. The s 46(1) prohibition on the imposition of a non-parole period of 6 months or less does not apply if a court imposes an aggregate sentence of more than 6 months for multiple offences: new s 46(2).

Standard non-parole period offences has been amended at [7-980] to reflect amendments to s 45 which now permits fixed terms for standard non-parole period offences.

Sentencing Commonwealth offenders The test at [16-010] General sentencing principles applicable has been amended to include the Victorian decision of DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237 in relation to utilitarian discounts.

Fraud offences in New South Wales The text at [19-930] has been substantially revised.

Particular offences Section [65-300] Conspiracy has been added as a new offence. This section addresses the following sentencing issues in relation to conspiracy:

  • overt acts in furtherance of the conspiracy

  • role of the offender

  • standard non-parole period provisions

  • NSW statutory conspiracy offences

  • Commonwealth conspiracy offences.

Update 35, October 2016

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Fines The text at [6-110] Availability, which addresses the means to pay principle for fines, has been revised.

Setting terms of imprisonment The text at [7-547] Forward dating sentences of imprisonment has been amended to include White v R [2016] NSWCCA 190. A court does not have power under s 47(5) to post-date the commencement of a sentence of imprisonment where the non-parole period for the first sentence has expired. This is so regardless of whether an offender is eligible to be released on parole in relation to an earlier offence or parole is revoked and the offender is returned to custody.

Objective factors The text at [10-010] Proportionality has been amended under the subheading “Objective seriousness findings” to include a reference to R v Campbell [2014] NSWCCA 102. Proper attention should be given to assessing the objective seriousness of an offence even though it is not necessary to compare it to a notional mid-range offence. The text at [10-022] Use of information about sentences in other cases has been amended to include R v Smith [2016] NSWCCA 75. Care is required in the use of comparable cases and statistics. Comparable cases should be viewed broadly as providing a measure of the types of sentences imposed in similar cases. The text at [10-080] Possibility of summary disposal has been substantially revised to include the cases of Baines v R [2016] NSWCCA 132 and SM v R [2016] NSWCCA 171. Both cases appear to have narrowed the principle that it can be a mitigating factor that the offence could have been disposed of in the Local Court. Baines v R doubted whether it was a rule of law and SM v R held that, in the event that the principle applies, the court can impose a sentence above the Local Court jurisdictional maximum regardless of the stance of the prosecutor.

Subjective matters taken into account (cf s 21A(1)) The text at [10-450] Health has been amended to include a new subheading “Foetal alcohol spectrum disorder (FASD)”. In LCM v State of Western Australia [2016] WASCA 164, the West Australian Court of Appeal considered the medical condition of FASD and cautioned that attention must be directed beyond generalisations to the precise diagnosis, nature and extent of the specific deficits and disabilities and how they bear upon considerations relevant to the sentence.

Section 21A factors “in addition” to any Act or rule of law The text at [11-100] Section 21A(2)(e) — the offence was committed in company has been amended. 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. The text at [11-170] Section 21A(2)(l) — the victim was vulnerable has been amended. Section 21A(2)(l) is concerned with the weakness of a particular class of victim and not with the threat imposed by a class of offender: Sumpton v R [2016] NSWCCA 162. The engagement of s 21A(2)(l) does not require causal connection (in the case of murder) between vulnerability and death.

Guilty plea to be taken into account A new section [11-505] Setting aside a guilty plea has been added. The text at [11-514] The R v Borkowski principles has been amended to include Shine v R [2016] NSWCCA 149 and Lee v R [2016] NSWCCA 146. In Shine v R, the applicant should have been given a 25% discount where delay was attributable to the pending outcome of a psychiatric assessment. The failure to make any reference to the pleas and the discount constituted an error in Lee v R.

Court to take other matters into account (including pre-sentence custody) In [12-510] What time should be counted?, a new subheading “Immigration detention” has been added. In R v Parhizkar [2013] NSWSC 871, the court took the time spent in immigration detention into account in an unquantifiable way. In the ACT case of Islam v R [2014] ACTCA 2, the appellant was granted bail but was taken immediately into immigration detention. The sentence was backdated to take account of the detention.

Victims and victim impact statements The text at [12-838] Victim impact statements of family victims has been amended to include R v Halloun [2014] NSWSC 1707 and R v Turnbull (No 24) [2016] NSWSC 830. R v Halloun held that s 28(4) is an important mechanism for ensuring evidence of family victims is before the court. R v Turnbull (No 24) held the term “impact" should not be narrowly construed. It extends to the influence or effect of a death and can extend to devastation caused to the victim’s family and thought processes of victims which may include their strong feelings towards the perpetrator.

Dangerous driving and navigation The text in [18-320] Guideline judgment was amended to confirm that the guideline judgment of R v Whyte (2002) 55 NSWLR 252 remains a check or an indicator: Kerr v R [2016] NSWCCA 218. The offender’s speed may be taken into account as an aggravating factor where it is excessive in light of the surrounding circumstances. The text at [18-332] Momentary inattention or misjudgment was amended. Once it is concluded that an accident was not the result of momentary inattention, the distance during which the driver was inattentive to the road is a relevant and aggravating factor: Kerr v R. The text at [18-334] Prior record and the guideline has been amended to include Kerr v R. The determination of whether a criminal record is a matter of aggravation is largely a matter for the sentencing judge to determine.

Offences against justice/in public office (formerly Public justice offences) The chapter has been revised with the addition of new sections at [20-158] Disrespectful behaviour in court, [20-190] Common law offence of misconduct in public office and [20-195] Resisting/hindering/impersonating police.

Appeals The text at [70-040] Section 6(3) — some other sentence warranted in law has been amended to include Martin v R [2016] NSWCCA 104 where the court grappled with the consequence of the adoption in Kentwell v The Queen (2014) 252 CLR 601 of Spigelman CJ’s analysis in Baxter v R (2007) 173 A Crim R 284. The High Court said in Kentwell v The Queen at [42]: “not ... all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion”. The judge erred in failing to give effect to a finding of special circumstances and the NSWCCA sentencing discretion was exercised afresh and not limited to that error.

Update 34, July 2016

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness In [1-010] Reasons for decision, a reference to R v Van Ryn [2016] NSWCCA 1 has been added. It is not sufficient for a judge to state the general sentencing principles without explaining how the principles are applied in the case: R v Van Ryn at [123].

Fact finding at sentence A reference to Nguyen v The Queen (2016) 90 ALJR 595 at [28]–[29], [60] has been added at [1-500] De Simoni principle. The De Simoni principle operates for the benefit of an offender. It has nothing to say about the impropriety of a judge taking into account the absence of a circumstance which, if present, would render the subject offence a different offence.

Home detention orders A reference to R v A2 (No 24) [2016] NSWSC 737 has been added at [4-030] Steps involved before ordering home detention. The court closely examined the steps and process when a court is considering home detention. The process is not complete until the ultimate discretion as to whether to order home detention is exercised. The Crown is entitled to make further submissions and adduce additional evidence even after a favourable assessment.

Setting terms of imprisonment A reference to R v Price [2016] NSWCCA 50 was added at [7-507] Settled propositions concerning s 53A. The judge did not err by including sentences for s 166 (Criminal Procedure Act 1986) offences in an aggregate sentence.

Standard non-parole period offences — Pt 4 Div 1A At [7-925] Findings as to where an offence fits relative to the middle of the range, a court is required to assess the objective seriousness of a standard non-parole period offence and the assessment remains a critical component of the sentencing process: R v Van Ryn [2016] NSWCCA 1 at [134] citing R v Campbell [2014] NSWCCA 102 at [27].

Subjective matters taken into account (cf s 21A(1)) The text at [10-475] Deprived background of an offender has been amended to include Ingrey v R [2016] NSWCCA 31. An offender’s disadvantaged background is a factor a court ought to consider; the High Court’s use of the word “may” in Bugmy v The Queen (2013) 249 CLR 571 does not suggest it is optional factor. It was a recognition that there may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect: Ingrey v R at [35]. Although the offender’s disadvantage was not a result of the upbringing by his mother and father, the social disadvantage he experienced growing up and living in his community in which “criminal activity was the norm and likely to distort [his] moral compass” should have been taken into account: Ingrey v R at [27]. In Tsiakas v R [2015] NSWCCA 187, the offender’s solicitor should have given consideration to obtaining relevant background reports but the failure to do so did not cause the sentencing proceedings to miscarry.

In [10-485] Drug addiction, the text under “Drug addiction at a very young age” has been rewritten and also includes Hayek v R [2016] NSWCCA 126. There is no principle of law that a drug addiction which commenced when an offender was young will always operate as a mitigating factor: Hayek v R at [77]. It may be a mitigating factor in the particular circumstances of an individual case, however, an addiction which commenced when the offender was 14 years of age because of peer pressure and in an attempt to “‘look cool’ to impress a girl” but which continued for three decades “did nothing to mitigate the applicant’s crime”: Hayek v R at [41], [80], [83].

In [10-520] Extra-curial punishment, the text under “Self-inflicted injuries” has been revised and also includes Betts v R [2015] NSWCCA 39. Injuries suffered by the offender, which were either self-inflicted or inflicted by the victim at the offender’s request, could not be characterised as extra-curial punishment.

Guilty plea to be taken into account The text in [11-514] The R v Borkowski principles has been amended to make clear that part of principle No 5 — that an Ellis [R v Ellis (1986) 6 NSWLR 603] discount is not to be quantified — no longer applies following Panetta v R [2016] NSWCCA 85. (See further below.)

Power to reduce penalties for assistance to authorities Text on voluntary disclosure of unknown guilt has been moved to [12-218] and references to Panetta v R [2016] NSWCCA 85 have been added. The requirements for discounts for assistance under s 23 extend to an Ellis discount and the judge erred by failing to comply with s 23(4). The court must state the nature and quantum of the discount.

Victims and victim impact statements In [12-832] Victim impact statements and harm caused by sexual assault, references to R v Nelson [2016] NSWCCA 130 and AC v R [2016] NSWCCA 107 have been included. A court should be prepared to have regard to a victim impact statement (VIS) either by confirming or contradicting the presumption of substantial harm which exists for child sexual abuse: R v Nelson at [21]. An unchallenged victim impact statement should have been accepted as confirming the presumption of harm: R v Nelson at [22]. Given a VIS is defined under s 26 as “a statement containing particulars of … any personal harm”, a judge made no error in declining to give weight to a VIS expressing support for applicant: AC v R. Nor was the statement capable of constituting evidence that the offence was mitigated under s 21A(3)(a) because “the injury, emotional harm, loss or damage caused by the offence was not substantial”. The statement cannot sensibly be understood as evidencing either maturity or forgiveness, given the victim was 12-years-old at the time and subjected to extraordinary abuse: AC v R at [55].

Taking further offences into account (Form 1 offences) The text in [13-220] Restrictions on Form 1 procedure has been amended to add R v Van Ryn [2016] NSWCCA 1. It was erroneous to describe the use of a Form 1 procedure as providing “considerable utility”: it involved double counting, a factor in the offender’s favour, since he had already obtained the advantage of a cap on the available sentence confined to the primary offence to which the Form 1 was attached: R v Van Ryn at [214]–[215].

Sentencing Commonwealth offenders In [16-010] General sentencing principles applicable, under “Plea of guilty: s 16A(2)(g)”, the ACTCCA case of R v Harrington [2016] ACTCA 10 has been added. In obiter remarks in DPP (Cth) v Gow [2015] NSWCCA 208, it was said that Cameron v The Queen (2002) 209 CLR 339 has been misapplied in NSW and has nothing to say about the operation of Commonwealth law. R v Harrington held DPP (Cth) v Gow was “clearly wrong” on this point.

In [16-070] Conditional release on parole or licence, the section has been updated to incorporate legislative amendments which abolished automatic release on parole for sentences exceeding 3 years and less than 10 years. Section 19AL(1) Crimes Act 1914 (Cth) provides the Attorney-General (Cth) must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole.

Sexual offences against children The text in [17-541] Child abuse/pornography offences was amended to include a references to Special Bulletin 11 — DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74. It deals with sentencing for the offence of accessing child pornography using a carriage service, contrary to s 474.19(1) of the Criminal Code (Cth) and explains the Victorian Court of Appeal decision of DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74 where the court declined to follow R v De Leeuw [2015] NSWCCA 183.

In [17-570] Mitigating factors, it was an error to describe s 66C offences as “consensual”: R v Nelson [2016] NSWCCA 130. Lack of consent is not an element of the offences of sexual intercourse with children aged 10–14 and 14–16 because the law deems persons of that age unable to give informed consent. Mere lack of opposition is irrelevant and not a mitigating factor: R v Nelson at [23].

Drug Misuse and Trafficking Act 1985 (NSW) offences The text in [19-835] Full-time custody unless exceptional circumstances has been revised to add Forti v R [2016] NSWCCA 127. What constitutes “substantial” involvement in drug supply and whether it can be characterised as trafficking are matters for evaluation in a specific case.

Appeals In [70-010] Overview of Court of Criminal Appeal sentence appeals 2001–2015, the tables have been updated to include appeal figures for 2015.

In [70-040] Section 6(3) — some other sentence warranted in law, a new subheading has been added — “Reception of evidence following a finding of error”. An explanation of Betts v The Queen (2016) 90 ALJR 758 has also been included. As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law under s 6(3) Criminal Appeal Act 1912 is made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation in the period since the sentencing hearing: Betts v The Queen at [2], [11]. For that purpose the offender cannot run a “new and different case”: Betts v The Queen at [2].

In [70-060] Additional, fresh and new evidence, references to Betts v The Queen and Wright v R [2016] NSWCCA 122 have been added. The CCA has flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice: Betts v The Queen at [2], [10]. Wright v R reviewed the principles applicable to the admission of fresh evidence after sentencing. In Wright v R, ill health and advanced age already had major influence on what was a lenient sentence. The appellate court exercised its discretion not to receive fresh evidence.

Update 33, December 2015

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

A new chapter, Domestic violence offences, has been added at [63-500]ff. It collects the leading sentencing cases on the topic and makes cross-references to specific sections including offences where the issue is addressed.

Procedural fairness In [1-040] Published in oral form under the subheading Later increasing a proposed sentence, reference is made to Toole v R [2014] NSWCCA 318 where the court held that the judge was entitled to impose partially cumulative sentences despite the Crown’s written submission which accepted that concurrent sentences could be imposed.

Fact finding at sentence In [1-460] Agreed statement of facts, reference is made to CL v R [2014] NSWCCA 196 where the offender unsuccessfully challenged the agreed statement of facts to which his legal representatives did not object at first instance.

Intensive correction orders (ICOs) The text at [3-605] Inherently lenient or a substantial punishment? was amended to include R v Cahill [2015] NSWCCA 53. Notwithstanding that an ICO is substantial punishment, it is important not to lose sight of the need for immediate incarceration in cases of serious offending. R v Porte [2015] NSWCCA 174 has been added for the proposition that it is not appropriate to impose ICOs for child pornography offences of substantial objective seriousness. In the text at [3-620] Power to make ICO subject to Pt 5, R v West [2014] NSWCCA 250 has been added for the proposition that a court should not manipulate pre-sentence custody for the purpose of bringing a sentence within the jurisdictional ceiling for the imposition of an ICO.

Fines The text at [6-160] Fines for Commonwealth offences has been amended to update the current value of a penalty unit. The penalty unit amount was increased from $170 to $180 following the commencement of the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth).

Setting terms of imprisonment The text at [7-507] Settled propositions concerning s 53A has been amended to incorporate reference to R v Cahill [2015] NSWCCA 53, Miller v R [2015] NSWCCA 86 and Nguyen v R [2015] NSWCCA 209 as examples of the types of error that can result from non-compliance with s 53A. Reference was also made to commentary in (2015) 22(8) CrimLN 127 at [3572] concerning the approach taken by Basten JA in McIntosh v R [2015] NSWCCA 184.

Standard non-parole period offences — Pt 4 Div 1A In the text at [7-920] Consideration of the standard non-parole period in sentencing, Beale v R [2015] NSWCCA 120 was added for the proposition that an assessment of moral culpability, as distinct from criminal responsibility, in a joint criminal enterprise case cannot be undertaken in circumstances where the evidence does not differentiate between co-offenders. In [7-955] What of cases decided before Muldrock v The Queen?, Davis v R [2015] NSWCCA 90 was added for the proposition that the Crown ought to give careful consideration to the position it adopts when leave to appeal and extension of time is sought on the basis of an alleged “Muldrock error”. It is not to be lightly concluded that a sentencing judge, during the relevant period between R v Way (2004) 60 NSWLR 168 and Muldrock v The Queen (2011) 244 CLR 120, departed from the principles in R v Way. McDonald v R [2015] NSWCCA 80 was also added. The court rejected an argument that the judge had committed a Muldrock error in a case where the offender had pleaded guilty and the snpp was used as a yardstick.

Objective factors The text at [10-022] Use of information about sentences in other cases was revised to include the list of propositions set out by the plurality in the High Court case of The Queen v Pham [2015] HCA 39. The text in [10-024] Use of sentencing statistics — Hili v The Queen has been revised to incorporate the observations in The Queen v Pham in relation to the use that can be made of statistics and comparable cases.

Parity In [10-800] Introduction, Baquiran v R [2014] NSWCCA 221 was added for the proposition that a sentencing judge is not bound by findings of fact made by another judge who has sentenced a co-offender in different sentencing proceedings. Gaggioli v R [2014] NSWCCA 246 was added at [10-830] Co-offenders convicted of different charges for the proposition that there could be no justifiable sense of grievance caused by the different approach taken by the prosecution to charging the two co-offenders.

Section 21A factors “in addition to” any Act or rule of law In [11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person, the case of Aktar v R [2015] NSWCCA 123 has been added where the court affirmed RA Hulme J’s judgment in Melbom v R [2013] NSWCCA 210 but declined to decide the issue of whether a person who is a guest in a house but asked to leave falls within s 21A(2)(eb).

Guilty plea to be taken into account Reference to Atkinson v R [2014] NSWCCA 262 has been added to [11-514] The R v Borkowski principles. As to principle 9 in R v Borkowski (2009) 195 A Crim R 1, where the delay in the guilty plea is caused by the offender’s legal representative and is not the fault of the offender, the utilitarian value of the plea is not undermined.

Sentencing Commonwealth offenders In [16-002] Relevance of decisions of other State and Territory courts, under the subheading Achieving consistency in sentencing, reference has been made to The Queen v Pham [2015] HCA 39. It is implicit in Pt IB Crimes Act 1914 (Cth) that the court must have regard to sentences imposed in other States and Territories, in determining whether a sentence is manifestly excessive. Reference is made at [16-010] General sentencing principles applicable to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) (which relevantly commenced on 27 November 2015). It amended s 16A(2) Crimes Act 1914 to explicitly include general deterrence as a sentencing consideration and extend a court’s power to reduce a sentence for undertaking to assist authorities to any form of sentencing order and the DPP’s right to appeal for failure to fulfil the undertaking. The amending Act also removed the option of a recognizance release order where a sentence exceeds three years. Further, under the subheading Probable effect of sentence on offender’s family or dependents: s 16A(2)(p), the text has been amended to include Elshani v R [2015] NSWCCA 254, which confirmed the principle in R v Zerafa (2013) 235 A Crim R 265 that only exceptional hardship to an offender’s family can be taken into account under s 16A(2)(p).

Break and enter offences The text in [17-070] Application of s 21A to break and enter offences under the subheading Offence was committed in the victim’s home as an aggravating feature has been amended to include a reference to R v Bennett [2014] NSWCCA 197.

Sexual offences against children The text at [17-541] Child abuse/pornography offences under the subheading Mixture of State and Commonwealth offences has been revised to include reference to R v Porte [2015] NSWCCA 174 at [57], [58]. Increases to maximum penalties reflect the view of the State and Federal Parliaments of the serious criminality involved in child pornography offences: R v Porte at [57], [58]. In R v Porte, the court referred with approval to the principles set out in Minehan v R [2010] NSWCCA 140 and added three further considerations:

  • the absence of an intention to sell or distribute child abuse material does not mitigate the penalty for a possession offence,

  • the possession of child abuse material is not a victimless crime and general deterrence is of particular significance, and

  • evidence of rehabilitation, while important may have reduced significance.

The use of scales, such as the CETS (Child Exploitation Tracking System) scale, to categorise the material is a helpful way to assist a sentencing court in assessing the objective seriousness of the offence: R v Porte at [75]. It is of further assistance to provide random sample evidence of the material to the court so that it has before it something more than a formulaic classification which may not communicate the true nature of the material: R v Porte at [77], [114].

Drug Misuse and Trafficking Act 1985 (NSW) offences In [19-835] Full-time custody unless exceptional circumstances, reference is made to a number of NSWCCA cases, including Polley v R [2015] NSWCCA 247, which provide guidance as to what may constitute exceptional circumstances. R v Cahill [2015] NSWCCA 53 at [8] has also been added to the text. Where a judge forms a view that exceptional circumstances exist, it is imperative that appropriate findings of fact are made in relation to the issue.

Robbery The text in [20-230] Robbery in circumstances of aggravation: s 95 has been amended to incorporate reference to the cases of Kukovec v R [2014] NSWCCA 308 and McDonald v R [2015] NSWCCA 280. In McDonald v R, it was held that the court was entitled to take into account actual use of violence as an aggravating factor under s 21A(2)(b) where the offender had been convicted of aggravated robbery and the circumstance of aggravation was the deprivation of liberty. In Kukovec v R, the judge was held to err by taking into account the aggravating factor of “in company” under s 21A(2)(e) where being in company was an element of the offence (aiding and abetting an aggravated robbery).

Sexual assault In [20-760] Other aggravating circumstances a new subheading Risk of pregnancy has been inserted with a reference to the case of KAB v R [2015] NSWCCA 55. There was no denial of procedural fairness for the judge to take into account that there was a high risk of pregnancy when the agreed facts included that the offender had penile/vaginal intercourse with the victim and ejaculated into her vagina where neither party raised the issue at the sentencing hearing notwithstanding that the offender had a vasectomy.

Murder In [30-100] Attempted murder under the subheading Mitigating factors, a reference is made to Davis v R [2015] NSWCCA 90. A pre-existing heart condition, which may have contributed to the death of the victim, was not a mitigating factor.

Manslaughter and infanticide In [40-010] Categories of manslaughter under the subheading Substantial impairment, reference is made to Catley v R [2014] NSWCCA 249. An offender’s mental condition (in this case psychosis) did not play a great part in the commission of the offence and, to the extent that it did, the concomitant reduction in moral culpability had already been taken into account because he had been found guilty of manslaughter rather than murder.

Firearms and prohibited weapons The amendments made by the Firearms and Weapons Prohibition Legislation Amendment Act 2015 (commenced on assent on 24 November 2015) to, inter alia, the Firearms Act 1996 and the Weapons Prohibition Act 1998 have been incorporated at [60-030] Unauthorised possession or use: ss 7(1), 7A(1) and 36(1) and [60-055] Other miscellaneous offences. It increased maximum penalties for multiple firearms offences from 10 to 14 years imprisonment and expanded the offence of defacing or altering firearms. It also created new offences of possessing digital blueprints for firearm or prohibited weapon manufacture. The text at [60-050] Section 51D: possession of more than three firearms has been updated to include references to R v Lachlan [2015] NSWCCA 178. Factors that may render an offence under s 51D(2) serious include that the firearms are in working order and are not stored securely, are loaded or in close proximity to ammunition.

Damage by fire and related offences A new section [63-012] Section 197: dishonestly destroy or damage property and the De Simoni principle is inserted to incorporate the case of Ruge and Cormack v R [2015] NSWCCA 153. In Ruge and Cormack v R, the judge breached the De Simoni principle by taking into account a circumstance of aggravation (that Ruge wanted to commit an insurance job) for which the offender (Cormack) was not charged.

Money laundering The text in [65-215] The application of the De Simoni principle to the statutory scheme has been amended to include Shi v R [2014] NSWCCA 276. It is a breach of the De Simoni principle to take into account for an offence of money laundering contrary to s 400.9 Criminal Code 1995 (Cth) (which only requires that it may be reasonable to suspect that the money or property is the proceeds of crime) that the offender knew the money was the proceeds of crime.

Appeals In [70-030] The ordinary precondition of establishing error under the subheading Errors of fact and fact finding on appeal, it was held that it is incumbent on an applicant in a severity appeal to show that a factual finding was not open to the judge: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [26], [32]. In Clarke v R [2015] NSWCCA 232 at [34], Basten JA disapproved of R v O’Donoghue and opined that it was enough if the judge had made a mistake with respect to a factual finding that was material to the sentence. Button J reviewed the authorities in Turnbull and concluded, however, that the orthodox test of requiring an applicant to demonstrate that the factual finding was not open should remain: Turnbull at [32]. In [70-040] Section 6(3) — some other sentence warranted in law, any comparison of the proposed re-sentence with the original sentence is only made for the purposes of checking that the sentence arrived at by the appellate court does not exceed the original sentence: Thammavongsa v R [2015] NSWCCA 107 at [5]–[6]. The practice of the Crown relying in an appeal on the bare submission that “no other sentence is warranted in law” ought to cease: Thammavongsa v R at [3], [16]. In [70-060] Additional, fresh and new evidence under the subheading Medical evidence cases, Cornwell v R [2015] NSWCCA 269 and Turkmani v R [2014] NSWCCA 186 were added. In Turkmani v R, the court at [66] identified three categories of cases where fresh evidence is sought to be adduced in relation to the health of an offender.

Update 32, October 2015

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness In [1-010] Reasons for decision, a sentencing judgment should refer to the essential facts and provide some assessment of the serious of the offence: Gal v R [2015] NSWCCA 242 at [37]. New text at [1-045] Excessive intervention by the court include the following statements extracted from Ellis v R [2015] NSWCCA 262 at [65]–[72]:

  • it is not the function of the court to perform an inquisitorial role where there is an unsatisfactory statement of facts;

  • a court cannot insist in a drug case that an offender identify the co-offender(s); and

  • a miscarriage of justice will occur where intervention prevents a party from presenting its case.

Fact finding at sentence In [1-420] Disputed factual issues, the following propositions were extracted from Filippou v The Queen (2015) 89 ALJR 750; [2015] HCA 29 at [70]:

  • in some cases it is not possible to ascertain everything that is relevant to the offending or the issue of moral culpability;

  • if that occurs the court proceeds on what the Crown and the offender have proved to the requisite standard; and

  • the court is not bound to sentence according to a view of the facts most favourable to the offender.

The text at [1-480] Application of the Evidence Act 1995 to sentencing was amended to include Lam v R [2015] NSWCCA 143, where it was held, at [58], that it was open to a judge to reject an expert opinion where the opinion was wholly based on a version of facts favourable to offender.

Setting terms of imprisonment The text at [7-505] Aggregate sentences and [7-507] Settled propositions concerning s 53A has been amended to incorporate RL v R [2015] NSWCCA 106 at [63] where the Court of Criminal Appeal in re-sentencing “adopted an indicative sentence which did not involve a fulltime custodial penalty” contrary to proposition 9 in JM v R [2014] NSWCCA 297 at [39]. The text at [7-507] has also been amended to include McIntosh v R [2015] NSWCCA 184 where it has been held that where a court indicates a sentence for an offence that is not subject to a standard non-parole period, it is permissible to indicate a fixed term (or mandatory period of custody).

Standard non-parole period offences — Pt 4 Div 1A The Tables in [8-000] Appendix A: Pt 4 Div 1A and [8-100] Appendix B: Legislative amendments relevant to the Pt 4 Div 1A have been amended to incorporate the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015, which applies to offences committed on or after 21 August 2015. Several firearm offences were assigned a standard non-parole period and the standard non-parole period was increased for a number of other offences.

Objective factors The [10-022] Use of information about sentences in other cases was amended to include the findings that cases decided in the past do not define the permissible range for an offence and that the concept of an “available range” emanating from sentence appeals is merely a reference to the last limb of House v The King (1936) 55 CLR 499 at 505: Barbaro v The Queen (2014) 88 ALJR 372 at [28] and Robertson v R [2015] NSWCCA 251 at [21]. The [10-024] Use of sentencing statistics — Hili v The Queen has been revised to include Skocic v R [2014] NSWCCA 225 at [19] where the court summarised the law in relation to the use of statistics at sentence following Barbaro v The Queen. A new subheading and text Aggregate sentences and JIRS statistics has been added and includes a discussion of Knight v R [2015] NSWCCA 222 where it was held that it was an inherent flaw to use JIRS statistics for a principal offence to assert an aggregate non-parole period and that the aggregate term of sentence was excessive: Knight v R at [88]. Selecting the “multiple offences” variable is of no real utility because it does not limit the database to multiple instances of the same offence: Knight v R at [7]. The statistics do not capture such factors as the broad range of weight and purity of the drug involved and the role of the offender: R v Chidiac [2015] NSWCCA 241 at [40].

Subjective matters taken into account In [10-410] Good character, cases have been incorporated concerning the special rule for child sexual offences under s 21A(5A) that good character cannot be relied upon in stipulated circumstances. The judge had erred in R v Stoupe [2015] NSWCCA 175 at [86] by treating a respondent’s prior good character as a mitigating factor when it assisted in the commission of the offences. In AH v R [2015] NSWCCA 51 at [25], it was held that although the offender’s relationship with the victim’s mother created a trusting environment in which the offences could be committed, the offender’s good character could not be said to have assisted him in the commission of the offences.

Section 21A factors “in addition to” any Act or rule of law The text at [11-290] Section 21A(3)(i) — remorse shown by the offender has been revised to include Mun v R [2015] NSWCCA 234 at [34]–[41]. An offender is not required to give evidence to demonstrate remorse. Relying upon hearsay statements to show remorse will affect the weight of the evidence. It is a practice that is not to be encouraged.

Power to reduce penalties for assistance to authorities Reference to CMB v Attorney General for NSW (2015) 89 ALJR 407 at [78] has been added to [12-220] “Unreasonably disproportionate” penalty — s 23(3). The appellate task is to determine whether it was open to the sentencing judge to decide whether the sentence actually imposed is unreasonably disproportionate.

Children (Criminal Proceedings) Act 1987 In [15-020] Hearings, Siddiqi v R [2015] NSWCCA 169 has been added to text under the subheading Admissibility of evidence of prior offences. Inadmissible evidence of criminal history was erroneously considered in sentencing and the offender was denied leniency that might have otherwise been expected.

Sentencing Commonwealth offenders In [16-010] General sentencing principles applicable, under the subheading Plea of guilty: s 16A(2)(g), reference has been included to the obiter dictum in DPP (Cth) v Gow [2015] NSWCCA 208 at [26]–[28], [72] to the effect that Cameron v The Queen (2002) 209 CLR 339 has been misapplied in NSW. Cameron v The Queen did not limit the impact of a federal offender’s plea of guilty to an assessment of the extent to which it demonstrated a willingness to facilitate the course of justice.

Manslaughter and infanticide The discussion of excessive self-defence at [40-010] Categories of manslaughter has been amended to include Smith v R [2015] NSWCCA 193 at [45], [56], [59]. The response of an offender “in the circumstances as he or she perceives them” requires a sentencing judge to make a finding as to what the offender perceived the circumstances to be, and to evaluate the degree to which the conduct departed from what would have been a reasonable response to those circumstances as perceived.

Firearms and prohibited weapons The chapter has been updated to include amendments by the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015.

Update 31, July 2015

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Standard non-parole period offences — Pt 4 Div 1A The text at [7-895] includes a summary of the amendments made by the Crimes Legislation Amendment (Child Sex Offences) Act 2015. The Table in Appendix A: Pt 4 Div 1A Table at [8-000] has been amended to incorporate new offences with a standard non-parole period introduced by the amending Act. A new Appendix B: Legislative amendments relevant to the Pt 4 Div 1A Table has been inserted at [8-100], which sets out and describes all the legislative amendments relevant to the Table since 2003.

Objective factors The text at [10-020] Consistency, [10-022] Use of information about sentences in other cases, [10-024] Use of sentencing statistics — Hili v The Queen and [10-026] Enhancement of JIRS statistics following Hili v The Queen have been substantially rewritten to incorporate, inter alia, passages from the High Court cases of Barbaro v The Queen (2014) 242 CLR 520, Munda v Western Australia (2013) 249 CLR 600 and the CCA cases of RCW v R (No 2) [2014] NCWCCA 190 at [48], Atai v R [2014] NSWCCA 210 at [147], Skocic v R [2014] NSWCCA 225 at [19]–[20], Peiris v R [2014] NSWCCA 58 at [96] and Tweedie v R [2015] NSWCCA 71 at [45].

Subjective matters taken into account The text at [10-475] Deprived background of an offender has been amended to include Kentwell v R (No 2) [2015] NSWCCA 96 where the principle in Bugmy v The Queen (2013) 249 CLR 571 was applied where the offender had been removed from his family and adopted by a non-Aboriginal family. The text at [10-530] Delay has been rewritten to divide the text into the following discrete topics: Rehabilitation during a period of delay, Delay — state of uncertain suspense and Circumstances in which delay may not entitle an offender to leniency.

Victims and victim impact statements At [12-830], a new section — Cross-examination and victim impact statements — has been inserted. Although it is not envisaged that a victim would be cross-examined, the position may be different in relation to a “qualified person” under cl 8 Crimes (Sentencing Procedure) Regulation 2010: Muggleton v R [2015] NSWCCA 62 at [44]. At [12-870] Federal offences, B v R [2015] NSWCCA 103 has been added. There, the court held that there was no denial of natural justice where there was failure to permit cross-examination.

Sexual Offences against children at [17-420], [17-480], [17-490], [17-535], [17-540] and [17-541], and Sexual assault at [20-605] have been amended to incorporate the amendments made by the Crimes Legislation Amendment (Child Sex Offences) Act 2015, particularly in relation to the substitution of s 66A Crimes Act 1900 or to make clear that a standard non-parole period applies to various specific sexual assault offences referred to in Sch 2[2] of the amending Act.

Other Acts Text on the Mental Health (Forensic Provisions) Act 1990 has been revised. At [90-040] Limiting terms, general deterrence and denunciation under s 3A may be irrelevant when sentencing an offender suffering a mental condition: R v AB [2015] NSWCCA 57 at [41]. A new section — Extension and expiration of limiting terms — has been added to [90-040]. At [90-050] Part 3 — Summary proceedings before a magistrate, DPP v Soliman [2013] NSWSC 346 at [56]–[60] has been added. The court set out the reasons that should be given where an order under s 32 Mental Health (Forensic Provisions) Act is made.

Update 30, April 2015

Unless otherwise stated section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Appeals Updated figures showing the success rates for severity and Crown appeals for the years 2012, 2013 and 2014 have been added to Overview of Court of Criminal Appeal sentence appeals 2001–2014 at [70-010]. Equivalent figures have been added for standard non-parole period offence appeals within both severity and Crown appeals. The text in The ordinary precondition of establishing error at [70-030] has been amended to include Lay v R [2014] NSWCCA 310 at [52] and AB v R [2014] NSWCCA 339 at [44] concerning the circumstances in which the CCA will interfere with the findings of fact of the judge. The text in Purpose of Crown appeals at [70-090] has been amended to include the High Court decision of CMB v Attorney General for NSW (2015) 317 ALR 308. The court set out the two hurdles the Crown is required to surmount in an inadequacy of sentence appeal. The onus is on the Crown (once the discretion under s 5D Criminal Appeal Act 1912 to re-sentence is enlivened) to demonstrate to the court that it should exercise its discretion. Sabongi v R [2015] NSWCCA 25 has been added for the proposition that the CCA will be slow to interfere with the characterisation by a sentencing judge of the objective seriousness of the crime. The text in The residual discretion to intervene at [70-100] has been amended to include CMB v Attorney General for NSW particularly in relation to the conduct of the Crown at first instance in submitting that a non-custodial sentence should be imposed and/or leading the court into error.

Section 9 good behaviour bonds Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 at [43] has been added to Breach of bond at [4-770]. Consent from an offender for the purposes of a court of superior jurisdiction dealing with a suspected breach of a s 9 bond must occur at the time when the offender is called upon to appear before the court rather than at the appearance.

Suspended sentences R v RM [2015] NSWCCA 4 at [53] has been added to Suspended sentences and multiple offences at [5-760]. A court which decides to impose a suspended sentence is prohibited from utilising the aggregate sentencing provisions in s 53A. R v Taane [2014] NSWCCA 330 at [39] was added to Timing of disposal of further or subsequent offences at [5-785]. In re-sentencing following a breach, the correct sequential approach is to first revoke the bond and then consider the appropriate sentence for the offence at the same time as considering what sentences should be imposed for any later offences. Lambert v R [2015] NSWCCA 22 at [46] has been added to Effect of revocation and commencement of the sentence at [5-790]. On revoking a bond, sentence proceedings can miscarry if the court fails to consider an intensive correction order or home detention (under s 99(2)) where they are realistic sentencing outcomes.

Setting terms of imprisonment The text in Settled propositions concerning s 53A at [7-507] and Appellate review of an aggregate sentence at [7-508] has been rewritten to include the extensive discussion and settled principles concerning aggregate sentencing of RA Hulme J in JM v R [2014] NSWCCA 297 at [39]ff. Sabongi v R [2015] NSWCCA 25 was added to Giving effect to finding of special circumstances at [7-516]. The sentencing judge failed to give effect to a finding of special circumstances on the overall or effective sentence.

Subjective matters taken into account The text in Drug addiction at [10-485] has been substantially revised. The decisions of Toole v  R [2014] NSWCCA 318 and Brown v R [2014] NSWCCA 335 have been added to the discussion of addiction attributable to some other event for which the offender was not primarily responsible.

Court to take other matters into account (including presentence custody) The text in Counting pre-sentence custody at [12-500] has been amended to include R v West [2014] NSWCCA 250 at [36] ff. It is an error for a court to unilaterally revoke bail for the purpose of having the period of pre-sentence custody later taken into account for an intensive correction order. The text in What time should be counted? at [12-510] has been amended to include Barnes v R [2014] NSWCCA 224 at [29]. A court has a discretion to impose a partly concurrent or wholly consecutive sentence upon a revoked parole period. The five-judge bench case of Hampton v R [2014] NSWCCA 131 at [27] has been included in the text at [12-510]. Time spent in custody in relation to offences for which an offender is discharged is not to be taken into account as a form of credit and there is nothing requiring a court to take custody for an unrelated offence into account under the Act.

Victims and victim impact statements The text in Evidentiary status and use of victim impact statements at sentence at [12-830] and Victim impact statements and harm caused by sexual assault at [12-832] has been amended to include the extensive discussion of Simpson J in R v Tuala [2015] NSWCCA 8 at [52]–[81] concerning the evidentiary status and use of victim impact statements. The text under the subheading Aggravating factors at [12-830] has been rewritten to incorporate the propositions as to when caution must be exercised before a victim impact statement can be used to establish an aggravating factor.

Taking further offences into account (Form 1 offences) The text in The statutory power to reject a Form 1 under s 33(2)(b) at [13-260] has been amended to include the discussion in Elias v The Queen (2013) 248 CLR 483 concerning the scope for judicial intervention and the separation of the Executive and judicial functions at sentence.

Correction and adjustment of sentences Bungie v R [2015] NSWCCA 9 at [40] has been added to Re-opening proceedings under s 43 at [13-910]. A reopening (to correct an error) does not permit an offender to seek a different outcome on new or different evidence.

Sentencing Commonwealth offenders The text in General sentencing principles applicable at [16-010], addressing s 16A(2)(f) Crimes Act 1914 (Cth) (contrition by taking action to make reparation) has been amended to include R v Host [2015] WASCA 23. Section 16A(2)(f) has to be read down to accommodate s 320 Proceeds of Crime Act 2002. The latter section provides that the fact pecuniary penalty order payments are made is an irrelevant consideration at sentence.

Update 29, December 2014

Setting terms of imprisonment The text at [7-505] has been amended to incorporate the Crimes Legislation Amendment Act 2014 which amended s 53A to provide that the court must make a written record of the fact that an aggregate is being imposed and the sentences it would have imposed had a separate sentence been imposed. Khawaja v R [2014] NSWCCA 80 at [18] and R v Lolesio [2014] NSWCCA 219 at [87]–[91] have been added to the discussion of the judicial obligation under s 53A(2)(b) to assess the criminality for each offence. A discount for a guilty plea must be applied to each indicative sentence and not to a hypothetical aggregate: SHR v R [2014] NSWCCA 94 at [41], [43]. The text at [7-510] has been amended to include Briouzguine v R [2014] NSWCCA 264 at [67]. The need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances, but it must be justified by the special requirements of the case.

New text on the forward dating of sentences of imprisonment has been inserted at [7-547]. A direction under s 47(2)(b) to forward date may not be made in relation to a sentence of imprisonment imposed on an offender who is serving another term of full-time imprisonment if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. Thompson-Davis v R [2013] NSWCCA 75 at [52] is included in this discussion. New text on information about the release date has been added at [7-550]. Farkas v R [2014] NSWCCA 141 has been included where there was a division of opinion as to the appropriate eligibility date of parole. In R v BA [2014] NSWCCA 148 it was held it was not inconsistent with the Crimes (Sentencing Procedure) Act 1999 to order a person’s release on the last day of the non-parole period. Technical difficulties in entering the terms of the order into the court’s computerised record system can be avoided by making an order directing “that the offender be released on parole at the end of the non-parole period” rather than specifying a date.

Standard non-parole period offences — Pt 4 Div 1A This chapter has been substantially rewritten to incorporate Special Bulletin 5 which explained the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013. The aspects of Muldrock v The Queen (2011) 244 CLR 120 which remain relevant are articulated at [7-895]. Paragraph [7-910] contains a discussion of what facts might be included in the text in s 54A(2) “only the objective factors affecting the relative seriousness of that offence”? The discussion addresses mental condition, provocation and other additional factors.

A new paragraph concerning the consideration of standard non-parole periods in sentencing has been inserted at [7-920]. The repeal of s 54B(2) and the phrase “is to set” evinces an intention that a standard non-parole period is not to have determinative significance in the sentencing exercise. Under the new s 54B(2), it is “a matter to be taken into account by a court in determining the appropriate sentence”. The standard non-parole period is to take its place as a legislative guidepost. The discussion covers the issues of standard non-parole periods and the notion of moral culpability, findings about objective factors and relative seriousness and, at [7-925], findings as to where an offence fits relative to the middle of the range. A revised [7-955] discusses Muldrock appeals including applications for leave to appeal out of time and appeals under Pt 7 Crimes (Appeal and Review) Act 2001.

Appeals The text at [70-125] and [70-135] incorporates recent sentence appeals by the Crown and defendants from the Local to the Supreme Court. The revised text articulates the scope of these appeals including the decision of Roads and Maritime Services v Porret [2014] NSWCA 30 at [33].

Update 28, October 2014

Appeals Kentwell v The Queen [2014] HCA 37 and O’Grady v The Queen [2014] HCA 38 have been added at [70-020]. An applicant for an extension of time to apply for leave to appeal against sentence is not required to demonstrate that substantial injustice was occasioned by the sentence. A court must consider what the interests of justice require. The merits of appeal and prospects of success are relevant to extension of time applications and should be addressed by reference to s 6(3). Kentwell v The Queen has been added at [70-040] to set out the statutory duty of the CCA in severity appeals under s 6(3) where error is established. The court must exercise its discretion afresh to determine a whether lesser sentence is warranted in law. Bugmy v The Queen (2013) 249 CLR 571 at [22], [53] has been added at [70-090]. Grounds of appeal which assert the judge attributed insufficient weight to a factor do not engage the kinds of specific errors referred to in House v The King (1936) 55 CLR 499. The CCA cannot substitute a sentence under s 5D Criminal Appeal Act 1912 unless it first makes a finding that the sentence imposed is below the range: Bugmy v The Queen at [24]. R v Reeves [2014] NSWCCA 154 has been added to the discussion of the residual discretion at [70-100].

Fines Although Jahandideh v R [2014] NSWCCA 178 concerned s 16C(1) Crimes Act 1914 (Cth) it has been added at [6-110] because it cites common law cases which are relevant to the means to pay principal under State law. An offender’s financial circumstances do not dictate the fine that is to be imposed. Consideration of the financial circumstances of an offender may increase, rather than decrease, a fine in order for it to be a deterrent.

Victims and victim impact statements The text at [12-820] has been amended and a new [12-838] has been inserted to incorporate Special Bulletin 7, which explains the effect of the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014.

Sentencing Commonwealth offenders The text at [16-002] addressing the relevance of decisions of other State and Territory courts has been amended to include Barbaro v The Queen (2014) 88 ALJR 372 at [40], on the issue of the proper and ordinary use of sentencing statistics. Jahandideh v R [2014] NSWCCA 178 (referred to above) has been added at [16-030]. Lam v The Queen [2014] WASCA 114 has been added at [16-050] to the discussion concerning the fixing of non-parole periods for Commonwealth offences.

Manslaughter R v Wood [2014] NSWCCA 184 has been added at [40-000] for the proposition that statistics for manslaughter are of limited assistance due to wide variation of offences. Grant v R [2014] NSWCCA 67 at [64]–[66] and R v Nguyen [2013] NSWCCA 195 have been added at [40-010] to the discussion of the mental ingredients of manslaughter by excessive self-defence.

Commonwealth drug offences The text has been revised with reference to recent Research Monograph 38, Sentencing Commonwealth drug offenders. The discussion at [65-150] on achieving consistency has been re-written.

Money laundering R v Ly [2014] NSWCCA 78, which sets out a list of specific principles, has been added at [65-200]ff.

Update 27, May 2014

Procedural fairness The text at [1-040] Opportunity of addressing the court on issues has been amended to include R v Wang [2013] NSWCCA 2 at [81] as to the approach taken by the Court of Criminal Appeal where the procedural breach is a failure by the judge to foreshadow the rejection of uncontested evidence.

Purposes of sentencing The text at [2-240] has been amended to include Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 30 ALR 186 at [66] in the discussion of deterrence. The High Court said “[g]eneral and specific deterrence must play a primary role in assessing the appropriate [civil] penalty in cases of calculated contravention of legislation for commercial profit”.

Deferral for rehabilitation or other purpose The chapter at [5-400]ff has been revised to include the amendments of s 11 by the Bail (Consequential Amendments) Act 2014 as a consequence of the commencement of the Bail Act 2013. The case of R v Farrell [2014] NSWCCA 30 at [51], [58] has also been added. There must be good reason for concluding that a s 11 adjournment is likely to assist the court in determining whether a custodial sentence should be imposed and, if so, in assessing the length of the sentence or non-parole period.

Setting terms of imprisonment The text at [7-505] Aggregate sentences has been amended to include AB v R [2014] NSWCCA 31 at [10] which held it is unnecessary to specify commencement dates for indicative sentences and it is an error for a court to indicate a fixed term sentence for a standard non-parole period offence. Special circumstances under ss 44(2) or 44(2B) at [7-510] has been revised and rewritten. The cases of CM v R [2013] NSWCCA 341 at [39] and AB v R have been added under the heading Giving effect to finding of special circumstances.

Objective factors The text at [10-000] Maximum penalty has been amended to include Elias v The Queen (2013) 248 CLR 483 at [27]–[28] for the propositions that giving careful attention to the maximum penalty does not mean that it will necessarily play a decisive role and, further, a maximum penalty should not constrain a court’s discretion with the result that it imposes an inappropriately severe sentence on an offender.

Section 21A factors “in addition to” any Act or rule of law In the text at [11-230], Pitt v R [2014] NSWCCA 70 at [57], [65] has been added to the commentary concerning s 21A(3)(c). The extreme provocation of the deceased and his brother towards the applicant was a basis for reducing the sentence on appeal.

Guilty plea to be taken into account In the text at [11-514] The R v Borkowski principles have been amended to include Milat v R [2014] NSWCCA 29 at [72], [75] [92]. A utilitarian discount was withheld on the basis of the extreme circumstances of the murder. The range of cases where no discount may be given extends to those where the sentence imposed is less than the statutory maximum. The case of R v El-Andouri [2004] NSWCCA 178 at [34], which purported to confine the circumstances in which a plea will not warrant any discount, has the potential to misrepresent what the Chief Justice actually said in the guideline judgment: Milat v R at [83].

Power to reduce penalties for assistance to authorities In the text at [12-215] Scope of s 23(1) including reporting sexual abuse has been amended to include Peiris v R [2014] NSWCCA 58 at [38]. Section 23(1) applies to assistance given by the offender for “the offence concerned or any other offence”. This broad wording will create “difficulties” and will require resolution: Peiris v R at [38]. The case of CM v R [2013] NSWCCA 341 at [45]–[48], which has been added at [12-230] Application of discount under the heading Method of calculation of discount — combined or separate?, held that ordinarily a court is required to apply a discount to each sentence. When there is a degree of accumulation of multiple sentences, it is necessary to ensure that any discount is not eroded by the process of accumulating sentences but it need not be reflected with mathematical precision in the effective term.

Victims and victim impact statements In the text at [12-830] Evidentiary status and use of victim impact statements at sentence has been amended to include R v Gavel [2014] NSWCCA 56 at [110] and R v CMB [2014] NSWCCA 5 at [92] where the court observed child sex offences have profound and deleterious effects upon victims for many years and the high maximum penalty and standard non-parole period for some sexual offences reflects the harm that is caused.

Correction and adjustment of sentences The text at [13-900] has been revised and rewritten. At common law a court may review, correct or alter its judgment any time until its orders have been perfected: Achurch v The Queen (2014) 88 ALJR 490 at [17]. The slip rule allows for a limited correction of an order after its final entry: Achurch v The Queen at [18]. The statutory power under s 43 to re-open a proceeding can be used to correct a penalty which exceeds the maximum penalty or one which is beyond the power of the court. Section 43 cannot be applied to any penalty where the court was influenced by an error of law or fact including computation errors or errors in relation to commencement dates. The latter errors have to be corrected using the courts’ inherent or implied power or under the slip rule.

Appeals A new [70-065] Miscarriage of justice arising from legal representation has been inserted and [70-060] Additional, fresh and new evidence has been amended to include Grant v R [2014] NSWCCA 67 at [55]. A miscarriage of justice occurred at sentence by the legal representative failing to explain to the client the various states of mind within the offence of manslaughter and then informing the court what he thought his client’s intention was without clear instructions: Grant v R at [71], [77].

Particular offences

In the Detain for advantage/kidnapping chapter, R v Ball [2013] NSWCCA 126 at [117] has been added to [18-715] Factors relevant to the seriousness of an offence under the heading Sentences other than full-time imprisonment generally not appropriate for the proposition an intensive correction order is not an appropriate form of punishment because it does not address the issue of general deterrence.

In the Sexual assault chapter, text at [20-775] Factors which are not mitigating at sentence under the heading The relevance of a prior relationship has been amended to include, inter alia, R v Cortese [2013] NSWCCA 148 at [55], NM v R [2012] NSWCCA 215 at [59] and Bellchambers v R [2011] NSWCCA 131 at [47]. A pre-existing relationship between an offender and a victim does not mitigate the criminality of the sexual assault. Cases where there is initial consent on the part of the victim have been contrasted to an assault committed by a stranger where there is no such potential.

Update 26, March 2014

Obligations of the parties The chapter on “The prosecutor” at [1-200] has been amended to include Barbaro v The Queen (2014) 88 ALJR 372 which sets out the role of the prosecutor at sentence. A prosecutor should not be permitted, to make a submission as to the bounds of the available sentencing range.

Subjective matters taken into account (cf s 21A(1)) The following topics have been updated:

  • Race and ethnicity” at [10-470] has been amended to make clear that s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 abolishes that part of R v Fernando (1992) 76 A Crim R 58 that the High Court approved in Bugmy v The Queen (2013) ALJR 1022 at [38] concerning the significance of the circumstance that the offender was intoxicated at the time of the offence. It does not affect the issue of social deprivation.

  • Intoxication” at [10-480] has been amended to explain the effect of new 21A(5AA) that the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. The Drug addiction sub-heading has been amended to include references to Dang v R [2013] NSWCCA 246 at [22]–[29]. It is not clear what impact the decision of Dang has on Spigelman CJ’s statements (Newman and Hulme JJ agreeing) concerning moral culpability and drug addiction.

  • Deprived background of an offender” is a new segment that has been added at [10-475]. It is intentionally separated from race and ethnicity given the High Court’s approach to the issue in Bugmy v The Queen at [40].The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence.

  • Hardship to family/dependents” at [10-490] has been amended to include HJ v R [2014] NSWCCA 21 which concerns the relevance of an offender who is the mother of a young baby.

  • Hardship of custody” at [10-500] has been amended to include R v Chishimba [2011] NSWCCA 212 at [13]–[14]. A mathematical approach should not be taken to the issue of protective custody. It cannot be assumed that police officers will serve a sentence in protective custody: Hughes v R [2014] NSWCCA 15 at [54] . Evidence must be led on the issue.

Victims and victim impact statements The statutory scheme enacted by the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) for victim impact statements for Commonwealth offences is described at [12-870].

Particular offences

Assault, wounding and related offences The chapter at [50-150] has been amended to include reference to the new offences created by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014.

Update 25, October 2013

Fact finding at sentence Youkhana v R [2013] NSWCCA 85 has been added at [1-480] — the judge directed that the Evidence Act 1995 apply to sentence proceedings and admitted a hearsay statement in the Crown case. R v Nguyen [2013] NSWCCA 195 has been added at [1-500] — it is a breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 to take into account the absence of a fact that if present would have rendered an offender guilty of more serious offence.

Purposes of sentencing Munda v Western Australia [2013] HCA 38 at [54] has been added at [2-240] under the sub-heading “Arguments about the limited utility of general deterrence”. The High Court acknowledged that general deterrence has limited utility in some circumstances and retorted with three responses.

Intensive correction orders (ICOs) R v Glynatsis [2013] NSWCCA 131 has been added at [3-605] — the mode of serving sentences of imprisonment by way of an ICO did not adequately provide for general deterrence, given the nature of the criminality of nine insider trading offences. A reference has been at [3-640] in relation to the new mandatory condition that an offender submit to a medical examination in relation to capacity to undertake community service work as directed by a supervisor. A new paragraph has been added at [3-665] to address performance of ICOs and the discussion of breaches at [3-670] has been revised.

Suspended sentences R v Eckermann [2013] NSWCCA 188 has been added at [5-750] — asking whether a sentence of imprisonment should be suspended before announcing the term of imprisonment does not necessarily indicate error (that is, that the court overlooked the necessity of first determining the length of the sentence). A new paragraph has been added at [5-760] to address the issue of suspended sentences and multiple offences and also the fact that a court cannot utilise the aggregate sentence provisions in s 53A when imposing a suspended sentence.

Concurrent and consecutive sentences Franklin v R [2013] NSWCCA 122 and Magnuson v R [2013] NSWCCA 50 have been added at [8-230] to address the scenarios where several sexual offences are committed in one event or where a court can impose wholly cumulative sentences for discrete sexual offences committed on separate victims over an extended period. R v Hawkins [2013] NSWCCA 208 has also been added — the concurrency of various sentences for fraud offences meant the respondent effectively received no punishment for six of the offences.

Mandatory life sentences under s 61 Ngo v R [2013] NSWCCA 142 has been added at [8-600] and [8-630] — s 61(1) applies to all sentencing proceedings commenced after 3 April 2000, regardless of when the offence occurred. The phrase “can only be met” in s 61(1) is devoid of content in the sense that if the judge reaches the level of satisfaction required there is no room to impose a sentence other than life. It is difficult to reconcile the mandatory terms of s 61(1) with the preservation of s 21(1) Crimes (Sentencing Procedure) Act (general power to reduce penalties) in s 61(3).

Objective factors (cf s 21A(1)) Elias v The Queen [2013] HCA 31 has been added at [10-085] — a lesser offence that the prosecution could have proceeded upon is not relevant to the sentencing exercise.

Subjective matters taken into account (cf s 21A(1))

  • Prior record at [10-400] has been revised and also includes Van der Baan v R [2012] NSWCCA 5 at [29]ff.

  • Athos v R [2013] NSWCCA 205 has been added to the discussion of good character at [10-410] — possession of a prohibited firearm is not a category of offence where an offender’s good character has less significance than in other crimes.

  • Adzioski v R [2013] NSWCCA 69 and R v Wright (1997) 93 A Crim R 48 have been added to the discussion of mental condition at [10-460].

  • Munda v Western Australia [2013] HCA 38 and Bugmy v The Queen [2013] HCA 37 have been added to the discussion of race and ethnicity at [10-470].

  • In the section on intoxication at [10-480] a qualification has been added to a statement in Hasan v The Queen [2010] VSCA 352 based on what was held in Bugmy v The Queen (above). A new subsection has also been added “Social deprivation” to address Bugmy.

  • R v MacLeod [2013] NSWCCA 108 has been added to the discussion of hardship to family/dependents at [10-490] — evidence of hardship to employees caused by the offender’s imprisonment was insufficient to attract the principle.

Section 21A factors “in addition to” any Act or rule of law The discussion of s 21A(2)(eb) offences committed in the home of the victim or any other person at [11-105] has been rewritten to include the decisions of Montero v R [2013] NSWCCA 214, Melbom v R [2013] NSWCCA 210 and DJM v R [2013] NSWCCA 101. Doubt has been expressed about the limitation that has been placed on s 21A(2)(eb) that it cannot be applied when the offence was committed in the home of the offender and victim.

Victims and victim impact statements Munda v Western Australia [2013] HCA 38 has been added in the introduction at [12-790] — it is the role of the criminal law to vindicate the dignity of each victim of violence and to discourage victims from resorting to self-help. A new sub-heading “Victim impact statements and harm caused by sexual assault” has been added to [12-830] along with the decisions of RO v R [2013] NSWCCA 162 and RP v R [2013] NSWCCA 192 concerning factual findings about substantial harm.

Correction and adjustment of sentences This section at [13-900]ff has been re-written to include, among other things, Achurch v R (No 2) [2013] NSWCCA 117 — jurisdiction to re-open is only enlivened where the error led to a penalty contrary to law and generally the error will be apparent from the sentence itself and not from the reasoning.

Dangerous driving King v The Queen (2012) 245 CLR 588 has been added to the discussion of the statutory hierarchy of driving at [18-370] — dangerous driving is not a species of negligent driving. To the extent the decision in R v Buttsworth [1983] 1 NSWLR 658 holds otherwise, it is disapproved. Cases which have followed R v Buttsworth are similarly qualified.

Firearms and prohibited weapons offences A new paragraph has been added at [60-045] to address sentencing for the unauthorised manufacture of firearms. The decisions of Smart v R [2013] NSWCCA 37 and Troung v R [2013] NSWCCA 36 have been included.

Money laundering Wang v R [2013] NSWCCA 2 and Majeed v R [2013] VSCA 40 have been added at [65-210] — as there is a very wide range of circumstances that can encompass the offence, sentences imposed in other cases are of limited assistance and there is no discernible sentencing range. Ihemeje v R [2012] NSWCCA 269 has been added to the discussion at [65-225] — sentences should be higher for offenders who obtain higher rewards and have a lower risk of detection.

Update 24, June 2013

Procedural fairness A warning under the Crimes (High Risk Offenders) Act 2006 has been added at [1-070].

Deferral for rehabilitation or other purpose The legislative references in this chapter were updated. References to Rayment v R (2010) 200 A Crim R 48 have been added to the discussion of Crown appeals at [5-400].

Setting terms of imprisonment References to R v Rae [2013] NSWCCA 9 and the necessity for implicit accumulation where an aggregate sentence is set have been made at [7-505]. A new paragraph has been added at [7-545] Rounding sentences to months focusing on the decision in Rios v R [2012] NSWCCA 8.

Standard non-parole period offences — Pt 4 Div 1A The paragraph at [7-955] What of cases decided before Muldrock v The Queen? has been amended to add a subheading “Re-opening not available” and a reference to Achurch v R (No 2) [2013] NSWCCA 117. Reference to Beveridge v R [2011] NSWCCA 249 at [28] has also been added at [7-990] concerning the effect of standard non-parole period on sentencing levels for cultivation offences.

Subjective matters taken into account (cf s 21A(1)) Reference to ZZ v R [2013] NSWCCA 83 at [110] (the out of character exception is narrow and rarely applies) has been added to [10-480] Intoxication.

Section 21A factors “in addition” to any Act or rule of law from [11-000] has been substantially revised. Paragraphs [11-230] Section 21A(3)(c) — the offender was provoked by the victim and [11-240] Section 21A(3)(d) — the offender was acting under duress were re-written. New text was also added at [11-195], [11-340] and [11-350].

Power to reduce penalties for assistance to authorities At [12-205] a reference to LB v R [2013] NSWCCA 70 at [44] was made regarding the statutory requirement to indicate the reduction for assistance. A new [12-215] Extension to sexually abused offenders who assist has been inserted discussing RJT v R (2012) 218 A Crim R 490, which held a discount for assistance can be given to an offender who reports sexual abuse.

Victims and victim impact statements Paragraph [12-860] has been amended relating to court ordered compensation for victims following the enactment of the Victims Rights and Support Act 2013. The changes include the addition of a new segment on Victims support levies.

Murder A new paragraph has been inserted at [30-025] to explain the new provisional sentencing of offenders who were less than 16 years of age at the time of the murder.

Appeals Paragraph [70-090] has been amended to add text concerning appeals from aggregate sentences and the impact of the decision in R v Rae [2013] NSWCCA 9.

Update 23, December 2012

Purposes of Sentencing Reference to R v Pogson [2012] NSWCCA 225 has been added to the discussion of rehabilitation at [2-260] and [2-270].

Intensive correction orders (ICOs) The section was rewritten to take account of R v Pogson at [3-600]ff; Whelan v R [2012] NSWCCA 147, R v Tannous [2012] NSWCCA 243 and Zreika v R [2012] NSWCCA 44 at [3-635].

Setting terms of imprisonment Revised text concerning aggregate sentences has been added at [7-505] to include R v Nykolyn [2012] NSWCCA 219 and R v Brown [2012] NSWCCA 199. Commentary on s 45(1) Crimes (Sentencing Procedure) Act 1999 in [7-520] has been updated to include Collier v R [2012] NSWCCA 213. Parole orders by court at [7-570] includes reference to R v Cross (No 2) [2012] NSWCCA 234.

Standard non-parole period offences — Pt 4 Div 1A At [7-890]ff, the effect of Muldrock v The Queen (2011) 244 CLR 120 on the role accorded to standard non-parole periods has been updated to include references to Aldous v R [2012] NSWCCA 153, Zreika v R, Bolt v R [2012] NSWCCA 50, GN v R [2012] NSWCCA 96, Stewart v R [2012] NSWCCA 183, Williams v R [2012] NSWCCA 172, R v Ehrlich [2012] NSWCCA 38, Beldon v R [2012] NSWCCA 194 and R v Dungay [2012] NSWCCA 197.

Objective factors (cf s 21A(1)) The availability of a less punitive sentencing regime is discussed at [10-085]. Zreika v R has been added at [10-080] concerning the possibility of summary disposal.

Children (Criminal Proceedings) Act 1987 A discussion of JM v R [2012] NSWCCA 83 has been included at [15-070] in relation to setting terms of imprisonment for juveniles. The text addressing Youth Conduct Orders has been amended.

Sentencing Commonwealth offenders The commentary regarding the plea of guilty under s 16A(2)(g) Crimes Act 1914 (Cth) has been rewritten to include Lee v R [2012] NSWCCA 123.

Particular offences

  • The following chapters have been amended to include reference to Zreika v R: Break and enter offences at [17-030]; Robbery at [20-220]; Sexual assault at [20-770] and Firearms and prohibited weapons offences at [60-030].

  • Detain for advantage/kidnapping has been updated and includes a discussion of R v Speechley [2012] NSWCCA at [18-715]ff.

  • Firearms and prohibited weapons offences has been updated and includes references to R v AZ (2011) 205 A Crim R 222 and Dionys v R [2011] NSWCCA 272.

Appeals This section has been updated to include the figures for appeals in 2010 and 2011 in the severity and Crown appeals tables at [70-010]. Text which addresses the failure to mention a matter has been added in light of Stewart v R, Hanania v R [2012] NSWCCA 220 and Zreika v R. The section regarding fresh evidence has been rewritten at [70-060].

Update 22, August 2012

Particular offences

A new segment [65-200] Money laundering has been inserted, discussing the Commonwealth provisions in Pt 10.2 of the Criminal Code (Cth). The following topics are canvassed in the new segment:

  • The Commonwealth statutory scheme at [65-200]

  • Breadth of conduct caught at [65-205]

  • Sentencing range at [65-210]

  • The application of the De Simoni principle to the statutory scheme at [65-215]

  • General deterrence at [65-220]

  • Factual findings as to role and what the offender did at [65-225]

  • Relevance of offender’s belief at [65-230]

  • Other factors at [65-235]

  • Character at [65-240]

  • Relevance of related offences at [65-245]

  • Financial Transaction Reports Act 1988 at [65-250].

The text includes reference to recent cases such as Milne v R [2012] NSWCCA 24, R v Li (2010) 202 A Crim R 195, R v Guo (2010) 201 A Crim R 403 and Ungureanu v R [2012] WASCA 11.

The chapter on Commonwealth drug offences can now be found at [65-100]ff.

Several consequential amendments have been made to the Bench Book as a result of Muldrock v The Queen (2011) 244 CLR 120. The amendments delete, qualify or caution Bench Book users of NSWCCA cases which applied R v Way (2004) 60 NSWLR 168 in the specific offences section.

 

Update 21, June 2012

The section numbers below, except where indicated otherwise, refer to those in the Crimes (Sentencing Procedure) Act 1999.

[1-200] Obligations of the parties

[1-200] The prosecutor has been amended to include a reference to R v Lipton [2011] NSWCCA 247 and Director of Public Prosecutions Amendment (Disclosures) Act 2011 concerning the Crown’s obligations of disclosure at sentence. A list of various papers by Public Defenders is also included at [1-210] The defence.

[1-400] Fact finding at sentence

[1-480] Application of the Evidence Act 1995 to sentencing has been amended to include a reference to Badans v R [2012] NSWCCA 97, which held that a court does not have a power to make an order for costs under the Evidence Act unless it has made a direction under s 4(2) that the Act applies to sentence proceedings.

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

[12-205] New statutory requirement to make a record and [12-230] Application of discount have been substantially revised in light of the decision of R v Ehrlich [2012] NSWCCA 38.

[12-500] Court to take other matters into account (including pre-sentence custody)

[12-510] What time should be counted? has been amended to include a reference to R v DW [2012] NSWCCA 66. [12-520] Quasi-custody bail conditions has been substantially revised.

[12-790] Victims and victim impact statements

The whole section has been substantially revised and paragraph [12-830] has been renamed Evidentiary status of victim impact statements at sentence.

[50-000] Assault, wounding and related offences

The commentary in paragraph [50-010] Crimes Amendment Act 2007 concerning recklessness has been amended and renamed Repeal of malice: Crimes Amendment (Reckless Infliction of Harm) Bill 2012.

 

Update 20, April 2012

The section numbers below, except where indicated otherwise, refer to those in the Crimes (Sentencing Procedure) Act 1999.

[2-200] Purposes of Sentencing

At [2-210] Section 3A, a reference to Muldrock v The Queen (2011) 244 CLR 120 at [20] has been added.

[5-000] Section 10 dismissal of charges and conditional discharge

At [5-010] Section 10 bonds compared to s 9 bonds and [5-020] Use of s 10 orders generally, R v Mauger [2012] NSWCCA 51 at [37]–[41] (the differences between s 9 and s 10 bonds) has been inserted.

[7-890] Standard non-parole period offences — Pt 4 Div 1A

At [7-955]–[7-990], commentary has been substantially amended to include cases which applied Muldrock, including Butler v R [2012] NSWCCA 23 at [26] (finding error in cases decided before Muldrock), R v Koloamatangi [2011] NSWCCA 288 at [19] (the diminished role of snpp), Sheen v R [2011] NSWCCA 259 at [166] (snpp is a legislative guide for all cases) and Yang v R [2012] NSWCCA 49 at [28] (it “appears” that mental condition is not relevant to the assessment of objective seriousness).

[10-400] Subjective matters taken into account (cf s 21A(1))

At [10-420] Contrition, [10-460] The relevance of an offender’s mental condition and [10-500] Hardship of custody, references have been made to Alvares v R (2011) 209 A Crim R 297 at [44], Muldrock and Job v R [2011] NSWCCA 267 at [32] respectively.

[10-800] Parity

At [10-800]–[10-850], commentary has been substantially revised and rewritten in light of Green v The Queen (2011) 86 ALJR 36.

[11-000] Section 21A Factors “in addition to” any Act or Rule of Law

At [11-160] Section 21A(2)(k) — abuse of a position of trust or authority, a reference to MRW v R [2011] NSWCCA 260 has been inserted for child sexual assault.

[13-200] Taking Further Offences into Account

At [13-225] Charge negotiations: prosecutor to consult with victim, commentary has been added to make clear that s 35A applies to matters prosecuted by police in the Local Court.

At [13-230] Severity of additional penalty, a reference to Dionys v R [2011] NSWCCA 272 at [64]ff has been added.

[17-400] Sexual Offences Against Children

At [17-500] Persistent sexual abuse of child, commentary on s 66EA has been amended to include ARS v R [2011] NSWCCA 266 (concerning fact finding following a trial).

[70-000] Appeals

At [70-090] Principles applicable to Crown Appeals, Bui v DPP (Cth) [2012] HCA 1 has been added to the discussion of double jeopardy in Crown appeals concerning Commonwealth matters.

 

Update 19, November 2011

The section numbers below, except where indicated otherwise, refer to those in the Crimes (Sentencing Procedure) Act 1999.

Procedure

[1-000] Procedural fairness

At [1-040] Opportunity of addressing the court on issues, the commentary for later increasing a sentence proposed during sentence proceedings has been revised to include Weir v R [2011] NSWCCA 123 at [78]–[80]; Ng v R [2011] NSWCCA 227.

Crimes (Sentencing Procedure) Act 1999

[5-000] Section 10 dismissal of charges and conditional discharge

At [5-030] Application of factors in s 10(3) commentary concerning “Trivial nature of the offence” in s 10(3)(b) is added and a new paragraph, [5-035] Corporations and s 10 orders, is inserted.

[5-700] Suspended sentences

At [5-720] Commencement and setting non-parole period reference to R v JW (2010) 199 A Crim R 486 at [218] is included. At [5-790] Effect of revocation and commencement of the sentence, commentary is added concerning the point that a court cannot impose another suspended sentence following revocation.

[7-500] Setting terms of imprisonment

At [7-510] Special circumstances, a reference has been inserted to Caristo v R [2011] NSWCCA 7 at [47] which held that there is no set percentage for the ratio of the non-parole period to head sentence once special circumstances has been established. At [7-580] Conditions on parole orders, a reference to Muldrock v The Queen [2011] HCA 39 has been inserted concerning the point that a court has no power to impose conditions for a sentences more than three years.

[7-890] Standard non-parole period offences — Pt 4 Div 1A

This section has been substantially rewritten to reflect the High Court decision in Muldrock v The Queen [2011] HCA 39 including [7-940] Applying Pt 4 Div 1A: Muldrock v The Queen, [7-950] The approach required to sentencing under s 54B(2), [7-955Issues that may need clarification after Muldrock v The Queen and [7-960Move upwards in the length of non-parole periods?.

[9-700] Objective and subjective factors at common law

New commentary has been inserted at [9-710] The difficulty of compartmentalising sentencing considerations and [9-720The aggravating/mitigating binary fallacy.

[10-000] Objective factors

New commentary has been inserted at [10-015Objective seriousness and post-offence conduct and [10-020] Consistency, where reference has been made to Hili v The Queen (2010) 85 ALJR 195 at [18], [49]. The paragraph [10-040] Premeditation and planning has been re-written.

[10-800] Parity

This chapter has been substantially revised.

[11-500] Guilty plea to be taken into account

At [11-504] Obligations of the court taking the plea, a new paragraph has been added to incorporate the decision of Collier v Director of Public Prosecutions [2011] NSWCA 202. At [11-514The R v Borkowski principles, a reference has been inserted to R v AB [2011] NSWCCA 229 at [3], [33] where it was held that courts should generally continue to follow the approach in R v Borkowski (2009) 195 A Crim R 1, the principles being applied by reference to the particular circumstances in any case. In R v AB, it was further held that the discount for a plea may be eroded as a result of the manner in which the sentence proceedings are conducted. In [11-515Criminal Case Conferencing Trial Act 2008, commentary has been amended to note the cessation of the scheme and its application, and the consideration of the scheme in Passaris v R [2011] NSWCCA 216 where it was held that “substantial grounds” under s 17 of the Criminal Case Conferencing Trial Act 2008 is established where an offender’s offer to plead guilty to an alternative charge is initially rejected by the Crown because of disputed facts.

Children (Criminal Proceedings) Act 1987

[15-000] Children (Criminal Proceedings) Act 1987ff has been revised and includes a new paragraph at [15-120Intervention orders.

Particular offences

[19-930] Fraud offences in New South Wales has been amended to include references to the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 and a new paragraph has been inserted at [20-110Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009.

 

Update 18, June 2011

Crimes (Sentencing Procedure) Amendment Act 2010

The amendments made to the Crimes (Sentencing Procedure) Act 1999 by the Crimes (Sentencing Procedure) Amendment Act 2010, which include provision for aggregate sentencing, have been incorporated as indicated below. The section numbers below refer to those in the Crimes (Sentencing Procedure) Act 1999.

[5-700] Suspended sentences

[5-780] Breach of s 12 bond and limit of Local Court jurisdiction has been amended to make clear that the Local Court only has jurisdiction to deal with the breach of a s 12 bond imposed in the District Court if the suspended sentence was imposed in a sentence appeal to the latter court (from the Local Court).

[7-500] Setting terms of imprisonment

[7-500] Court to set non-parole period has been revised to incorporate amendments to ss 45 and 53, and the insertion of ss 44(2A)–(2C), 49(2), 53A, 54B(4A)-(4C), which provide for setting terms of imprisonment and non-parole periods for aggregate sentences. Two new paragraphs, Setting non-parole periods for aggregate sentences (within [7-500]) and [7-590] Aggregate sentences have been inserted. Consequential amendments have been made to [7-560] Restrictions on term of sentence. References to Caristo v R [2011] NSWCCA 7, RWB v R (2010) 202 A Crim R 209 and Aguirre v R [2010] NSWCCA 115 have been added.

[7-890] Standard Non-Parole Period Offences - Pt 4 Div 1A

This section has been substantially revised to incorporate the new provisions governing standard non-parole periods and aggregate sentences. These include references to new ss 54B(4A) and 54B(4B) at [7-920] and [7-940]. Paragraph [7-890] Crimes (Sentencing Procedure) Amendment Act 2007 has been revised and the cases of R v Lane [2011] NSWSC 289 and GSH v R [2009] NSWCCA 214 have been added. The sections in [7-940] entitled The staged approach required by s 54B, What is “objective seriousness”? and Standard non-parole period is a reference point even for guilty plea cases have been substantially revised to include references to Khoury v R [2011] NSWCCA 118, Georgopoulos v R [2010] NSWCCA 246, SKA v R; R v SKA [2009] NSWCCA 186 and Muldrock v The Queen [2011] HCATrans 55. A new section Specifying the extent to which an offence departs from the mid-range (within [7-940]) has been inserted to include a reference to Sellars v R [2010] NSWCCA 133. A separate section on Youth and standard non-parole periods within the discussion of What is “objective seriousness”? at [7-940] has been added. The Judicial Commission’s publication by Trish Poletti and Hugh Donnelly, Monograph 33: The impact of the standard non-period sentencing scheme on sentencing patterns in NSW, has been included as reference on the question of whether sentences should be increased as a result of the statutory scheme.

[8-200] Concurrent and Consecutive Sentences

This section has been substantially revised and [8-220] Aggregate sentences of imprisonment has been inserted to include reference to s 53A (when sentencing an offender for more than one offence a court may impose an aggregate sentence of imprisonment rather than separate sentences). Paragraph [8-250] Sentences for offences involving escape by inmate has been amended to include s 57(1A). References to the cases of R v Jarrold [2010] NSWCCA 69, Nahlous v R (2010) 201 A Crim R 150, Hinchcliffe v R [2010] NSWCCA  306 and Allan v R (No 2) [2011] NSWCCA 27 have been included.

[11-000] Section 21A Factors “in addition to” any Act or Rule of Law

This section has been amended to incorporate in [11-000] two new factors to be disregarded when imposing a sentence — ss 24A(1)(c) (prohibition against child-related employment) and 24B (confiscation of assets and forfeiture of proceeds of crime). References to Oh v R [2010] NSWCCA 148, Collon v R [2009] NSWCCA 187 and Holloway v R [2011] NSWCCA 23 have also been added.

[11-500] Guilty Plea to be taken into Account

This section has been revised to incorporate in [11-505] Section 22 Crimes (Sentencing Procedure) Act 1999 references to new ss 22(1)(c) (circumstances in which offender indicated intention to plead guilty) and 22(1A) (discount for guilty plea must not be unreasonably disproportionate to nature and circumstances of offence). Paragraph [11-515] Criminal Case Conferencing Trial Act 2008 has been amended to include reference to the Criminal Case Conferencing Trial Amendment (Extension) Regulation 2010 and the cases of Chompeay v R [2011] NSWCCA 96, Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183.

[11-900] Power to Reduce Penalties for Pre-Trial Disclosure

[11-900] Section 22A has been revised to incorporate amendments made to s 22A(1).

[12-200] Power to Reduce Penalties for Assistance to Authorities

[12-200] Statutory provision has been amended to remove references to repealed ss 23(2)(a) (the effect of the offence on the victim or victims of the offence and their families) and 23(2)(j) (the likelihood of the offender re-offending on release). A new section [12-205] New statutory requirement to make a record has been inserted to incorporate the amendments to s 23. References to R v Holland [2011] NSWCCA 65, R v AZ [2011] NSWCCA 43, AAT v R [2011] NSWCCA 17 and Brown v R [2010] NSWCCA 73 have been made.

[13-200] Taking Further Offences into Account

A new section [13-225] Charge negotiations: prosecutor to consult with victim and police has been added to incorporate s 35A (Prosecutor to file certificate verifying consultation with victim and police in relation to charge negotiations before Form 1 or agreed statement of fact the subject of charge negotiations can be taken into account by court). Guideline 20 of the NSW DPP Prosecution Guidelines has also been included. See also consequential amendments in [1-400] Fact Finding.

[17-400] Sexual Offences Against Children

The cases of PWB v R [2011] NSWCCA 84, BT v R [2010] NSWCCA 267, Corby v R [2010] NSWCCA 146 and Bonwick v R [2010] NSWCCA 177 have been added to paragraph [17-510] Aggravated indecent assault: s 61M and a reference to new ss 24A(1)(c) (see [11-000] above) is included. Reference to the paper by Domenic Pezzano “Information for ODPP/Courts on Options for Inmates who Request Protective Custody — Limited Association and Non-Association” has also been included.

[19-890] Drug Misuse and Trafficking Act 1985 (NSW) Offences

Mansour v R [2011] NSWCCA 28 has been added at [19-890] Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999. A court cannot take into account the offences of ongoing supply that were committed without regard to public safety unless the circumstances exceed the norm.

Consequential amendments have been made to [4-000] Home Detention Orders, [3-600] Intensive Correction Orders, and [6-500] Non-Association and Place Restriction Orders to incorporate amendments made by the Crimes (Sentencing Procedure) Amendment Act 2010.

 

Update 17, March 2011

[1-000] Procedural fairness

This section has been wholly revised to include, inter alia, Yaghi v R [2010] NSWCCA 2 at [50] (a court must give the parties notice before it sentences upon a basis which differs from agreed facts); Button v R [2010] NSWCCA 264 at [18] (procedural fairness is denied if the judge announces the sentence at the hearing but later increases it) and Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at [60] (extent of requirement to give reasons for sentence in the Local Court).

[1-400] Fact finding

This section has been substantially revised to include, inter alia, O’Neill-Shaw v R [2010] NSWCCA 42 at [26] (if evidence is unchallenged by the prosecution, and it is not inherently implausible, the court is not entitled to reject it or fail to act on it without giving proper notice to the offender of that intended course) and R v Crowley [2004] NSWCCA 256 at [46] (agreed facts should always be carefully checked).

[5-000] Section 10 Dismissal of charges and conditional discharge

This section has been substantially revised to include, inter alia, Hoffenberg v District Court of NSW [2010] NSWCA 142 (the structure and application of s 10 explained in the context of an offence of intentionally damaging property); R v Stephenson [2010] NSWSC 779 at [66] (impermissible to use s 10 order merely to circumvent operation of a statute); Morse (Office of State Revenue) v Chan [2010] NSWSC 1290 (“mental condition” in s 10(3)(a) need not be causally connected with the offence); and the Road Transport (Driver Licensing) Amendment Act 2010 (demerit points not recorded where s 10 order).

[5-700] Suspended sentences

[5-785] Timing of disposal of further or subsequent offences has been revised to include R v Nicholson [2010] NSWCCA 80 at [14]; R v Dinh (2010) 199 A Crim R 573 at [85] (a judge who is aware of an outstanding s 12 suspended sentence bond imposed in the Local Court should refuse to pass sentence for further offences until breach proceedings have been disposed of).

[10-000] Objective factors (cf s 21A(1))

[10-010] Categories of conduct within the offence has been renamed Proportionality and revised to include, inter alia, R v Field [2011] NSWCCA 13 (for offences not subject to a standard non-parole period, when describing the circumstances of the offence, the court should use the term “seriousness of the offence” rather than “objective seriousness”, and the court generally should not make findings of where the offence lies in relation to a mid-range of objective seriousness). [10-020] General patterns of sentences has been renamed Consistency and revised to include Hili v The Queen (2010) 85 ALJR 195 at [18], [48]–[49], [53]–[54] and BW v R (unrep, 23/2/11, NSWCCA) (achieving consistency in sentencing and use of sentencing statistics).

[10-400] Subjective matters taken into account (cf s 21A(1))

[10-480] Intoxication has been revised to include Bourke v R (2010) 199 A Crim R 38 at [26] (offender’s intoxication will ordinarily not mitigate penalty); SK v R [2009] NSWCCA 21 at [7] (intoxication may be treated as an equivocal factor); and Hasan v The Queen [2010] VSCA 352 at [21] (consideration of intoxication as a sentencing consideration).

[16-000] Sentencing Commonwealth offenders

[16-002] Relevance of decisions of other State and Territory courts and [16-050] Fixing non-parole periods and recognizance release orders have been revised to include Hili v The Queen at [18], [48]–[49], [54], [56]–[57] (achieving consistency in sentencing and use of sentencing statistics); and at [13], [37]–[38], [40]–[41], [44] (discussion of relevant principles for fixing non-parole periods and making recognizance release orders).

 

Update 16, December 2010

[3-300] Penalties of imprisonment

The principle that the court is to determine the appropriate term of imprisonment without regard to the manner in which the sentence is to be served reiterated: R v Assaad [2009] NSWCCA 182 at [33].

[3-600] Intensive correction orders (ICOs)

This chapter replaces the commentary on periodic detention. A new sentencing option, an intensive correction order (ICO), was introduced and the power to make periodic detention orders ceased: Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (effective 1 October 2010). Consequential amendments have been made to other chapters to remove references to periodic detention and to refer to ICOs: see [3-300] Penalties of imprisonment; [4-000] Home detention orders; [4-400] Community services orders (CSOs); [5-700] Suspended sentences; and [6-100] Fines. These chapters have also been generally revised.

[5-700] Suspended sentences

Before imposing an alternative to full-time imprisonment, a court is required to consider the question of totality where it is sentencing for multiple offences: Burnard v R (2009) 193 A Crim R 23 at [111]. A revocation order for a s 12 bond must be made before imposing a penalty for a further offence: at [5-785].

[7-500] Setting terms of imprisonment

It is desirable for a court to provide reasons when the non-parole period exceeds the statutory ratio to avoid an inference being drawn (on appeal) that it was overlooked: Briggs v R [2010] NSWCCA 250 at [29], [34]; Etchell v R [2010] NSWCCA 262 at [49]–[50]. Whether long term institutionalisation, or the fact that an offender is serving a first custodial sentence, are bases for special circumstances considered: Jackson v R [2010] NSWCCA 162 at [24]–[25]; Clarke v R [2009] NSWCCA 49 at [12], respectively. Appellate intervention is necessary where the judge finds special circumstances, but it is not reflected in the aggregate sentence: Maglis v R [2010] NSWCCA 247 at [24]–[26].

[16-000] Sentencing Commonwealth offenders

The relevance of decisions of other State and Territory courts, sentencing principles for Commonwealth offences and national consistency in sentencing considered: at [16-002]. Commentary on sentencing for multiple summary offences included: at [16-035].

[17-400] Sexual offences against children

Assessing the objective seriousness of indecent assault considered: Corby v R [2010] NSWCCA 146. Commentary on child abuse/pornography offences has been substantially revised to include new State and Commonwealth offences and reference to Minehan v R [2010] NSWCCA 140 (factors relevant to the seriousness of an offence): at [17-541].

[20-400] Car-jacking and car rebirthing offences

Factors relevant to the seriousness of the car rebirthing offence considered: R v Hamieh [2010] NSWCCA 189.

[20-600] Sexual assault

The short duration of a sexual assault does not lessen objective seriousness, but a prolonged duration of an offence increases its objective seriousness: R v Daley [2010] NSWCCA 223.

[70-000] Appeals

Success rates for 2009 have been included: at [70-010]. Section 68A Crimes (Appeal and Review) Act 2001 (abolished double jeopardy in Crown Appeals) applies to Commonwealth Crown appeals and is not inconsistent with s 16A Crimes Act 1914 (Cth): DPP (Cth) v De La Rosa [2010] NSWCCA 194.

 

Update 15, June 2010

[4-400] Community Service Orders (CSOs)

In breach proceedings for a CSO the sentencing discretion must be re-exercised and the offender should be dealt with for the original offence: Bonsu v R [2009] NSWCCA 316.

[5-700] Suspended Sentences

There is no power to backdate the commencement of a suspended sentence. It is permissible to take into account pre-sentence custody at the time the suspended sentence is imposed rather than at later revocation proceedings: Pulitano v R [2010] NSWCCA 45 at [5-800].

[10-800] Parity

The statements of Campbell JA in Jimmy v R [2010] NSWCCA 60 at [203] as to the limits of the application of the parity principle to offenders convicted of different charges have been incorporated at [10-830].

[12-500] Court to Take Other Matters into Account

It is not appropriate for a court to adopt a mathematical formula to convert time spent in protection to an equivalent period spent in the general prison population: Clinton v R [2009] NSWCCA 276 at [12-510].

[12-790] Victims and Victim Impact Statements

A court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: R v Josefski [2010] NSWCCA 41. Section 3A(g) and s 21A(2)(g) Crimes (Sentencing Procedure) Act are limited by the rule: R v Josefski. “The statutory scheme for victim impact statements” at [12-820] has been rewritten to incorporate recent legislative amendments.

[20-200] Robbery

It is not a breach of the De Simoni principle if a sentencer takes into account for an offence of stealing from the person the fact that the victim’s hand was squeezed: Edwards v R [2009] NSWCCA 199 at [20-220].

[17-900] Commonwealth Drug Offences

The statements in R v Lawless (unrep, 24/6/94, NSWCCA) in relation to the application of the De Simoni principle to the offence of possession vis-à-vis importation may need to be qualified in light of The Queen v Olbrich (1999) 199 CLR 270 at [30]: El-Ghourani v R [2009] NSWCCA 140. However, the circumstances relating to the process of importation may still be relevant to a charge of possession: El-Ghourani v R at [30].

[70-000] Appeals

This section has been rewritten to incorporate the leading authority on s 68A Crimes (Appeal and Review) Act 2001 — R v JW [2010] NSWCCA 49 — particularly the meaning of “double jeopardy” and its general effect on Crown appeals.

 

Update 14, March 2010

[1-400] Fact Finding at Sentence

The Crown is obliged to tender a comprehensible agreed statement of facts to enable the court to discern what is agreed to be fact and what is merely assertion: Della-Vedova v R [2009] NSWCCA 107 at [14].

Cross references to discussions in the Particular Offences section of the principle in The Queen v De Simoni (1981) 147 CLR 383 have been added at [1-500].

[5-700] Suspended Sentences

The section at [5-730] Prohibition against post-dating, consecutive sentences and suspending limiting terms has been revised to make clear that it is not permissible to post-date a suspended sentence (and therefore to impose a consecutively served suspended sentence) or to suspend a limiting term.

[6-100] Fines

The section at [6-130] Fine(s) imposed with other orders has been rewritten and text has been added describing the reforms made by the Fines (Further Amendment) Act 2008 at [6-140] Default provisions.

[7-500] Setting Terms of Imprisonment

This section has been re-written to incorporate the leading authorities in relation to setting a term of imprisonment and special circumstances under s 44 Crimes (Sentencing Procedure) Act 1999.

[8-600] Mandatory Life Sentences under s 61

This section has been re-written.

[10-700] Sentencing Following a Retrial

This new section addresses the correct sentencing approach where an offender is convicted of an offence and is sentenced after a retrial.

[11-000] Section 21A Factors “in addition to” any Act or Rule of Law

The requirement in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 to “provide evidence” of remorse does not equate with a requirement that an offender actually give evidence of remorse: Butters v R [2010] NSWCCA 1 at [17]. See [11-290] Section 21A(3)(i) — remorse shown by the offender.

[13-200] Taking Further Offences into Account (Form 1 Offences)

This section has been substantially revised. A new section [13-260] The statutory power to reject a Form 1 under s 33(2)(b) has been added which includes reference to the recent decisions of C-P v R [2009] NSWCCA 291; El-Youseff v R [2010] NSWCCA 4; R v Eedens [2009] NSWCCA 254.

 

Update 13, October 2009

[2-200] Purposes of Sentencing

There is no legal authority permitting a judge to dismiss general deterrence as a factor for assessment in sentencing: R v Miria [2009] NSWCCA 68 at [2-240].

Society is entitled to have the sentence imposed denounce the criminal conduct of the offender: R v King [2009] NSWCCA 117 at [2-280].

Parsimony is not part of sentencing law of New South Wales: Blundell v R (2008) 70 NSWLR 660; Leach v R (2008) 183 A Crim R 1 at [2-295].

[5-400] Deferral for Rehabilitation or Other Purpose

New commentary which describes the declared intervention programs under s 347 Criminal Procedure Act 1986 has been added at [5-440].

[10-400]  Subjective Matters Taken into Account (cf s 21A(1))

The discussion of advanced age as a factor in sentencing has been rewritten at [10-430].

Where injuries inflicted on an offender in prison were not inflicted for the purpose of punishing the offender for the offence, they cannot be considered as extra-curial punishment: Silvano v R (2008) 184 A Crim R 593 at [10-520].

A new section has been added addressing deportation as a factor in sentencing at [10-570].

[12-790] Victim and Victim Impact Statements

The common law position as to the use of victim impact statements expressed in R v Previtera (1997) 94 A Crim R 76 was accepted as the current and prevailing position in SBF v R [2009] NSWCCA 231 at [12-810].

[17-400]  Sexual Offences Against Children

A new column containing cross-references to commentary has been included in Table 1: Sexual offences against children under the Crimes Act 1900 at [17-420].

[18-300]  Dangerous Driving

The application of the De Simoni principle to driving offences is discussed at [18-370]. In the statutory hierarchy of offences, manslaughter should be treated as a most serious offence for the purposes of the principle: SBF v R [2009] NSWCCA 231 at [18-370].

The fact that some young men may perceive themselves as “bullet proof” is a significant reason for general deterrence to be a prominent factor in dangerous driving cases: SBF v R at [18-380].

[20-400]  Car-jacking and Car Rebirthing Offences

This is a new section which addresses car-jacking and car rebirthing offences under ss 154C(1) and 154G Crimes Act 1900 respectively.

[70-000]  Appeals

Commentary has been added at [70-095] to refer to the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 which abolished the principle of double jeopardy as it relates to Crown appeals against sentence.

[90-000]  Mental Health (Forensic Provisions) Act 1990

The phrase “any other penalty” in s 23(2) (procedure after completion of special hearing) includes sentencing options found in the Crimes (Sentencing Procedure) Act 1999: Smith v R (2007) 169 A Crim R 265; [2007] NSWCCA 39, but not imprisonment and all its forms: Warren v R [2009] NSWCCA 176 at [90-030].

The protection of the community is often an important consideration when a court sets a limiting term: Bhuiyan v R [2009] NSWCCA 221 at [90-040].

Index

The Index has been updated to incorporate material up to and including Release 12.

Table of Statutes

A Table of Statutes has been inserted to incorporate material up to and including Release 12.

 

Update 12, June 2009

[7-890] Standard Non-Parole Period Offences — Pt 4 Div 1A

The offence to which a SNPP provision applies is identified by the section of the statute in the Table rather than the words used to describe the offence: Hosseini v R [2009] NSWCCA 52 at [7-900].

SNPPs do not apply to sentencing if an offender is under 18 years at the time of the offence: new s 54D(3) (inserted by Crimes Amendment (Sexual Offences) Act 2008) at [7-900].

Section 54C requires the court to explain why a sentence is imposed without a non-parole period: R v Thawer [2009] NSWCCA 158 at [7-930].

A helpful summary of steps for a court to take when sentencing for a SNPP offence is set out in MLP v R (2006) 164 A Crim R 93, which was approved in Louizos v R, R v Louizos [2009] NSWCCA 71 at [7-945].

[10-400]  Subjective Matters Taken into Account (cf s 21A(1))

Good character has been amended to include the special rule under s 21A(5A) for child sexual offences at [10-410].

[10-800] Parity

Parity only applies in a “very limited class of case” where two offenders face different charges: Pham v R [2009] NSWCCA 25 at [10-830].

[11-000]  Section 21A Factors “in addition to” any Act or Rule of Law

The court must not take into account as a mitigating factor the fact that an offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000: new s 24A at [11-000].

“Gratuitous cruelty” in s 21A(2)(f) suggests that the infliction of pain is an end in itself: McCullough v R [2009] NSWCCA 94 at [11-110].

Section 21A(2)(k) is not intended to extend the concept of breach of trust beyond the common law. For the section to apply there must have been a special relationship between the victim and the offender at the time of the offending: Suleman v R [2009] NSWCCA 70 at [11-160].

[11-500] Guilty Plea to be Taken into Account

Twelve principles of general application which clarify the application of the discount for the utilitarian value of a plea are set out in R v Borkowski [2009] NSWCCA 102 at [11-514]. A discussion of the Criminal Case Conferencing Trial Act 2008 is provided at [11-515].

It is preferable to expressly acknowledge the significance of a voluntary disclosure of unknown guilt at sentence: DBW v R [2007] NSWCCA 236 at [11-530]. The circumstances where a court will set aside a guilty plea are set out in Johnston v R [2009] NSWCCA 82 at [11-545].

[15-000]  Children (Criminal Proceedings) Act 1987

A discussion of the amendments made by the Children (Criminal Proceedings) Amendment Act 2008 and SS v R [2009] NSWCCA 114 is provided at [15-010]. KT v R (2008) 182 A Crim R 571 which comprehensively discusses the relevance of youth at sentence is included at [15-015].

Commentary on the new sentencing options under s 33 created by the amending Act is also provided at [15-110].

[17-400]  Sexual Offences Against Children

The discussion of offences committed many years earlier has been substantially revised at [17-410]. A comprehensive table of sexual offences against children has been inserted at [17-420]. There is a new subsection addressing sentencing for child pornography offences at [17-541]. The new voyerism and related offences created under the Crimes Amendment (Sexual Offences) Act 2008 are discussed at [17-543].

[19-800]  Drug Misuse and Trafficking Act 1985 (NSW) Offences

Commentary on s 21A Crimes (Sentencing Procedure) Act 1999 as it applies to drug offences has been substantially revised at [19-890].

[20-120]  Public Justice Offences

Consideration of factors to be taken into account when punishing for a contempt in the context of a deliberate refusal to give evidence: Field v New South Wales Crime Commission [2009] NSWCA 144 at [20-155]. Discussion of the false and misleading evidence offence under s 107(1) Police Integrity Commission Act 1996 at [20-170].

[20-600]  Sexual Assault

A discussion of the amendments made by the Crimes Amendment (Sexual Offences) Act 2008 is provided, including the introduction of new sexual offences and increased maximum penalties for a number of existing offences.

The courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse: DBW v R [2007] NSWCCA 236. It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child: R v King [2009] NSWCCA 117 at [20-604].

A discussion of cases assessing the objective gravity of the sexual assault is included: R v PGM [2008] NSWCCA 172; R v Hibberd [2009] NSWCCA 20; R v King at [20-630].

A conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence: Sabapathy v R [2008] NSWCCA 82 at [20-640].

Further cases are included on the relevance of delay: R v Spiers [2008] NSWCCA 107 at [20-770], and assaults in a domestic context: Raczkowski v R [2008] NSWCCA 152 at [20-775].

[50-000]  Assault, Wounding and Related Offences

The seriousness of a s 35 offence will depend on the seriousness of the wounding: McCullough v R at [50-070].

Drink spiking is a very serious crime: Samadi v R [2008] NSWCCA 330 at [50-110]. Very severe penalties must be imposed for glassings: R v Miria [2009] NSWCCA 68 at [50-140].

[63-000]  Damage by Fire and Related Offences

This is a new section which addresses Pt 4 Div 2 Crimes Act. Division 2 contains the offences of malicious damage by means of fire under ss 195, 196 and 197.

[70-000]  Appeals

If the facts are challenged on appeal, it is necessary to identify specific error as a ground of appeal: Carroll v The Queen (2009) 83 ALJR 579 at [70-030].

It is open to an appeal court to form a different view of the objective seriousness of an offence when the only error asserted is that the sentence is “plainly unjust” within the terms of House v The King (1936) 55 CLR 499: Carroll v The Queen at [70-090].

 

Update 11, December 2008

[7-890] Standard non parole period offences

The table of Standard non parole periods found at [8-000] has been amended to provide an extra column cross referencing to commentary in the Book for the offences listed.

[70-000] Appeals

A new section has been inserted called “Appeals” which deals with appeals for matters dealt with on indictment and appeals from the Local Court. It provides an empirical overview of the success rates for Crown and severity appeals under the Criminal Appeal Act 1912 for the period 2001–2007; commentary on ss 5(1) and 6(3) (severity appeals) and s 5D (Crown appeals) of the Act. There is also a brief commentary of the statutory provisions for severity and Crown appeals against sentences imposed in the Local Court.

[90-000] Mental Health (Criminal Procedure) Act 1990

A new section has been inserted which deals with orders that can be made under Pts 2 and 3 of the Act specifically s 10(4) dismissals; sentencing outcomes after special hearings including limiting terms; diversionary orders under s 32; and s 33 (mentally ill persons) orders including community treatment orders.

[10-480] Intoxication

The commentary for this sentencing factor has been revised in light of Stanford v R [2007] NSWCCA 73 at [53]–[55] and R v Mitchell (2007) 177 A Crim R 94 at [29] that “…Violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence”.

[11-010] Section 21A Factors “in addition to” any Act or Rule of Law

This section has been streamlined and revised to include the voluminous case law on the section including: Van Can Ha v R [2008] NSWCCA 141 at [4] which held the mandatory language used in s 21A(1) “the court is to take into account” and ss 21A(2) and 21A(3) “…to be taken into account” does not require a court to engage in a ritual analysis of the possible s 21A factors; Porter v R [2008] NSWCCA 145 as to the meaning of “conditional liberty” in s 21A(2)(j); and Hewitt v R [2007] NSWCCA 353 which exhaustively addressed the scope of s 21A(2)(n) (the offence was part of a planned or organised criminal activity).

 

Update 10, October 2008

Particular Offences

[50-000Assault, Wounding and Related Offences

This new section contains sentencing commentary for personal violence offences under the Crimes Act 1900, namely offences found in ss 59, 61, 35, 33, 37, 38 and the offences of assaulting police while in execution of duty under ss 58 and 60. The commentary addresses the factors relevant to assessing the objective gravity of these offences: the extent and nature of the injuries; the degree of violence; and the intention or mental element of the offence. The section includes commentary on the Crimes Amendment Act 2007 which removed “maliciously” from all offences in the Crimes Act. It also addresses the application of The Queen v De Simoni (1981) 147 CLR 383 for each offence as well as common aggravating factors under s 21A Crimes (Sentencing Procedure) Act 1999 and the common law.

[40-000Manslaughter and Infanticide

This new section has sentencing commentary for manslaughter by unlawful and dangerous act, manslaughter by criminal negligence and the three statutory categories: manslaughter by provocation (s 23 Crimes Act); substantial impairment (s 23A Crimes Act); and excessive self defence (s 421 Crimes Act). It addresses, inter alia, the issue of relative seriousness between voluntary and involuntary manslaughter, joint criminal enterprise, killings of children by parents or carers, accessories after the fact to manslaughter and infanticide.

[18-300Dangerous Driving

This section has been updated and revised. It includes reference to Rosenthal v R [2008] NSWCCA 149 at [16]–[17] at [18-330] which held that an offender’s prior driving record is not relevant to the question of whether he or she had abandoned responsibility; Hughes v R [2008] NSWCCA 48 at [33] at [18-370] that where an act of dangerous driving causes the death of a pregnant woman, it is an error to have additional regard to the death of her foetus as a matter increasing the seriousness of the offence; and R v Carruthers [2008] NSWCCA 59 at [29]–[31] at [18-340] that where the offence involves the intoxication of the offender, there is a particular need for sentences to adequately reflect general deterrence.

[20-000Robbery

This section has been completely rewritten and includes commentary for all the robbery offences found in the Crimes Act including demand money with menaces under s 99.

[17-900] Commonwealth Drug Offences

This section has been updated and revised. It includes a reference to Adams v The Queen [2008] HCA 15 at [10] at [17-930] where the High Court held sentencing judges, in the application of the quantity-based system in the Customs Act should not apply a judicially constructed harm-based gradation of penalties since this cuts across the legislative scheme. The same principle applies to drug offences under the Criminal Code Act 1995 (Cth): R v Corbett [2008] NSWCCA 42.

Crimes (Sentencing Procedure) Act — Sentencing Procedure

[10-560Subjective Matters Taken into Account

A subheading “Ameliorative conduct” has been added in light of the decision of Thewlis v R [2008] NSWCCA 176 at [40] which holds that post crime ameliorative conduct can be taken into account as a factor in mitigation of sentence.

[12-790Victims and Victim Impact Statements

This section has been updated and revised. It includes a reference to R v Porter [2008] NSWCCA 145 at [53] at [12-825] which confirms that the statutory scheme for victim impact statements is not a code and where it does not apply to an offence, unsworn statements by victims may still be considered relevant and admissible to the sentencing process. The section also makes reference to the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Bill 2008 at [12-820] which, when enacted, will extend the statutory scheme to “prescribed sexual offences” and allow statements to be read by support persons.

 

Update 9, September 2008

Crimes Act 1914 (Cth)

[16-000]  Sentencing Commonwealth Offenders

The section has been substantially revised and includes the following additions:

  • it is legitimate for a sentencing judge to indicate a percentage discount for a plea of guilty or assistance to authorities for federal offences: Cahyadi v R (2007) 168 A Crim R 41 at [34]. In assessing the offender’s willingness to facilitate the course of justice the strength of the Crown case against the offender can be a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]

  • the appropriate range for a combined discount (plea and assistance) is generally between 20–50%, with 50% involving assistance of a very high order: R v SC [2008] NSWCCA 29 at [49], and

  • where there is a mixture of State and federal offences, with the latter being the most serious, the practice for determining the non-parole period for federal offences should be adopted (where the ratio is 60–66%) rather than unfairly applying s 44 of the Crimes (Sentencing Procedure) Act: Cahyadi v R (2007) 168 A Crim R 41 at [38].

Particular Offences

[17-000Break and Enter Offences

This section has been substantially revised and includes the following additions:

  • in cases involving domestic violence the court must have regard to the need for general and specific deterrence, denunciation of the conduct involved, and protection of the community: Shaw v R [2008] NSWCCA 58, and

  • where there are co-offenders, it will be of little relevance that an accused person may not have been personally involved in the planning and s 21A(2)(n) of the Crimes (Sentencing Procedure) Act can be applied: R v Cornwall [2007] NSWCCA 359 at [56].

[20-120Public Justice Offences

Some form of custodial sentence is normally appropriate for the offence of influencing witnesses/ jurors under s 323 Crimes Act. When the offence is committed in the context of domestic violence to dissuade the victim from giving evidence, there is a need for a significant element of general deterrence: R v Burton [2008] NSWCCA 128 at [101], [105]. In sentencing for s 323 it is an error to have regard to the absence of a fact which, if it were present, would constitute a different and more serious offence, such as an offence of threatening or intimidating a juror under s 322(a): Burton at [89].

[30-000Murder

If more than one murder is committed in a single episode of criminality, the objective criminality of one murder is capable of informing the objective criminality of another and such an approach does not infringe the principle that prior record cannot be used to increase the objective seriousness of an offence: Adanguidi v R (2006) 167 A Crim R 295 at [32].

[60-000Firearms and Prohibited Weapons Offences

A new section has been added at [60-000]ff containing commentary for firearms offences in the Firearms Act, Weapons Prohibition Act and the Crimes Act.

 

Update 8, June 2008

Particular Offences

Detain for advantage/Kidnapping

This section has been revised to include references to recent cases on sentencing for offences under s 86 and s 90A (repealed) of the Crimes Act 1900, including Heine v R [2008] NSWCCA 61; Davis v R [2006] NSWCCA 392; Wilmot v R (2007) 169 A Crim R 280; and R v Nahle [2007] NSWCCA 40.

Murder

A new section entitled Murder has been added at [30-000]. The section contains extensive commentary on:

  • the principles applicable to sentencing for murder, including consideration of the different categories of murder, the imposition of sentences of life imprisonment under s 61 of the Crimes (Sentencing Procedure) Act 1999 and at common law

  • the application of the standard non-parole period provisions to murder cases

  • the offences of accessory before and after the fact to murder, conspiracy/solicit to murder (s 26 Crimes Act 1900), and

  • attempted murder (ss 27–30 Crimes Act 1900).

The separate section on Solicit to Murder (previously at [21-000]) is deleted, having been incorporated and revised in the new section on Murder.

Public Justice Offences

The Public Justice Offences section has been reparagraphed and re-indexed. No change has been made to content.

Index

The Index has been updated to include material up to and including Release 7.

 

Update 7, March 2008

Crimes (Sentencing Procedure) Act 1999

Section 21A Factors “in addition to” any Act or Rule of Law
The amendments made by the Crimes (Sentencing Procedure) Amendment Act 2007 (the amending Act) have been incorporated to add seven new aggravating features under s 21A; add the amendment to s 21A(3)(i) which now provides that remorse may only be taken into account 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); and finally to include the amendment to s 21A(2)(d) (prior convictions) by adding the text “particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences”.

Standard Non-Parole Period Offences — Part 4 Division 1A
Eleven new offences added by the amending Act have been incorporated in the Table of standard non-parole periods. The case of R v Knight & Biuvanua [2007] NSWCCA 283 has been incorporated (where a judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation. When the objective criminality is above mid-range then, of course, the maximum penalty prescribed for the offence becomes of more significance.)

Particular Offences

Fraud Offences in New South Wales
A new section entitled Fraud Offences in New South Wales has been added at [19-930]. The section contains extensive commentary at [19-970] addressing the factors that bear upon objective seriousness of fraud offences, matters in mitigation and the application of s 21A to fraud offences. It also contains extensive commentary for commonly prosecuted fraud offences under ss 156, 176A, 178A, 178BA, 178BB and 300 of the Crimes Act 1900.

Public Justice Offences
A new section entitled Public Justice Offences has been added at [20-080]. The section contains extensive commentary for the offences found Pt 7 of the Crimes Act 1900 (NSW) headed “Public Justice Offences” and the common law offences of bribery and contempt. The section also contains commentary addressing the purposes of punishment and the particular aggravating feature of offences committed by public officials.

 

Update 6, December 2007

Offences under the Drug Misuse and Trafficking Act 1985

This section has been substantially revised at [19-800]ff to take account of the following authorities:

  • R v Godden [2005] NSWCCA 160 and Nguyen v R [2007] NSWCCA 94 (use of prior decisions for cultivation offences);

  • R v Nguyen [2006] NSWCCA 389 (marijuana is not to be regarded as a recreational drug);

  • R v Vu [2006] NSWCCA 188 (assessing the objective seriousness of offering or agreeing to supply);

  • Gip & Ly (2006) 161 A Crim R 173 (the principle that full time imprisonment should be imposed on drug traffickers also applies to cases where only one sophisticated well planned offence is proved);

  • R v Burns [2007] NSWCCA 228 (voluntary cessation of criminal activity weighed with other factors may establish exceptional circumstances);

  • Mirza v R [2007] NSWCCA 248 (the role of the weight of the drug when assessing the objective seriousness of the offence of ongoing supply); and

  • R v Burgess [2006] NSWCCA 319 (the standard non parole period of 10 years will have the effect of increasing sentences for supply offences under s 25(2)).

 

Update 5, November 2007

Concurrent and consecutive sentences

This section has been revised again in light of a series of Court of Criminal Appeal decisions on the application of the totality principle. The following paragraphs have been revised:

  • [8-210] Applications of the totality principle

    When a court is sentencing for multiple offences, and before it imposes the sentence for any one offence, it will have considered the outcome for all offences: R v JRD [2007] NSWCCA 55 at [33].

  • [8-230] Structuring sentences of imprisonment and the principle of totality

    The new section addresses the implications of the High Court decison in Pearce including the “orthodox method” of setting sentences for each offence before considering the issues of concurrency or cumulation.

    A new section headed Multiple victims and discrete offending usually require partly consecutive sentences has been included. The subheadings provide examples of the application of the totality principle in the context of dangerous driving, sexual assault, assault and wounding, robbery and break, enter.

Sexual assault

The revision of this section includes amendments to [20-630] Assessing the objective gravity of the sexual assault. The section addresses the topic of forms of sexual intercourse and objective seriousness.

 

Update 4, August 2007

Release 4 updates the index to cover the material incorporated into the book by Release 3.

 

Update 3, June 2007

Concurrent and Consecutive Sentences

This section has been re-written to incorporate recent decisions on the topic including: R v Folbigg (2005) 152 A Crim R 35; R v Hilton (2005) 157 A Crim R 504; EPA v Barnes [2006] NSWCCA 246; R v MMK (2006) 164 A Crim R 481; R v MAK [2006] NSWCCA 381; Richards v R [2006] NSWCCA 262; R v Smith [2006] NSWCCA 353; R v Harris [2007] NSWCCA 130; Cahyadi v R [2007] NSWCCA 1; Nguyen v R [2007] NSWCCA 14. The section addresses the following topics:

  • [8-200] The principle of totality

  • [8-210] Applications of the totality principle

  • [8-220] Totality and sentences of imprisonment

  • [8-230] Structuring sentences of imprisonment and the principle of totality

  • [8-240] Limitation on consecutive sentences imposed by Local Courts

  • [8-270] Power to vary commencement of sentence

  • [8-280] Application of Division to interstate sentences of imprisonment

Section 21A Factors “in addition to” any Act or Rule of Law

  • [11-030] Procedural rules and findings under s 21A(2)
    The sentencer must express whether an aggravating factor under s 21A(2) has actually been taken in to account R v McNamara [2005] NSWCCA 195 at [37]; R v Aslett [2006] NSWCCA 49 at [20].

  • [11-070] Section 21A(2)(b)
    The decision of R v Fairburn (2006) 165 A Crim R 434 at [31] on the question of whether the “actual or threatened use of violence” is an inherent characteristic of robbery.

  • [11-140] Section 21A(2)(i)
    The decision of Ward v R [2007] NSWCCA 22 at [28] in relation to supply offences.

  • [11-190] Section 21A(2)(n)
    The decisions of Fahs v R [2007] NSWCCA 26 at [22] and Reaburn v R [2007] NSWCCA 60 at [44] which discussed the application of s 21A(2)(n) to drug supply cases.

Power to Reduce Penalties for Assistance to Authorities

  • [12-230] Application of discount
    The method of calculating a discount for assistance and a plea of guilty and the level of the discount following SZ v R [2007] NSWCCA 19.

  • [12-240] Promised assistance
    Necessity of specifically quantifying the discount for future assistance SZ v R [2007] NSWCCA 19.
    Factors relevant to the discretion to allow a Crown Appeal under s 5DA of the Criminal Appeal Act when promised assistance is not forthcoming due to threats: R v Chaaban [2006] NSWCCA 352.

Court to Take Other Matters into Account (Including Pre-Sentence Custody)

  • [12-510] What [pre-sentence custody] time should be counted?
    Custody for Form 1 offences should be deducted from the sentence for the principal offence: Sultana v R [2007] NSWCCA 107 at [15].

 

Update 2, May 2007

[1-010] Reasons for decision

Thomas v R [2006] NSWCCA 313 at [16]; Gallant v R [2006] NSWCCA 339.

[1-030] Publish[ing] (reasons for decision) in oral form

The length of judgment is not a reason to deliver the remarks only in written form: Curtis v R [2007] NSWCCA 11 at [30]–[31].

[1-040] Opportunity of addressing

Information obtained by the sentencer in other cases: R v JRB [2006] NSWCCA 371 at [42]; and prevalence of an offence R v House [2005] NSWCCA 88 at [23].

[1-410] The standard(s) of proof at sentence

To add a reference to the High Court decision of Leach v The Queen [2007] HCA 3 at [41].

[3-610] Sentencing procedures for periodic detention orders

A court is entitled to consider the form of imprisonment selected when determining whether it should decline to set a non-parole period under s 45: R v Dickinson [2005] NSWCCA 284 at [15]–[16].

[5-700] Suspended Sentences

The following paragraphs have been substantially re-written following the passing of the Crimes and Courts Legislation Amendment Act 2006:

  • [5-700] Section 12 Crimes (Sentencing Procedure) Act 1999

  • [5-720] Non-parole period set at breach proceedings

  • [5-750] The steps involved in imposing a suspended sentence

  • [5-780] Breach

  • [5-790] Revocation and commencement of the sentence of imprisonment

  • [5-800] Pre-sentence custody

  • [5-810] Appeals against revocations

  • [5-820] Perceived leniency and the purposes of punishment

[5-300] Section 10A Conviction with no other penalty

Commentary on the rationale and use of this new sentencing option introduced by the Crimes and Courts Legislation Amendment Act 2006.

Guilty Plea to be taken into account

  • [11-540] Combining the plea with other factors

    Discounts for assistance to authorities and a plea of guilty should generally be combined and not normally exceed 50%. A combined discount exceeding 50% should be reserved for exceptional cases: SZ v R [2007] NSWCCA 19.

 

Update 1, September 2006

Release 1 comprises the folder, tab cards and all filed pages, as distributed.