The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

While s 21A(1) requires the court to take into account the aggravating factors and mitigating factors in s 21A(2) and (3) respectively, it does not purport to codify the law in the area of aggravating and mitigating factors that can be taken into account at sentence: Porter v R [2008] NSWCCA 145 at [87].

Section 21A(1)(c) provides that in determining an appropriate sentence for an offence the court is to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”. The language employed is very broad: R v Jammeh [2004] NSWCCA 327 at [23]. See Subjective matters at [10-600]ff.

The “matters” referred to in the suffix to s 21A(1) extend beyond the aggravating and mitigating factors tabled in s 21A(2) and (3): Van Can Ha v R [2008] NSWCCA 141 at [4].

Therefore, a judge can take account of the effect of the crime on the victim via ss 3A(g) and 21A(1)(c): R v Jammeh [2004] NSWCCA 327 at [23]. This is separate and different from applying s 21A(2)(g), which requires “the injury, emotional harm, loss or damage caused by the offence” to be “substantial” (discussed at Aggravating factors under s 21A(2) at [10-260]): R v Jammeh at [23].

Further, common law sentencing principles are preserved by s 21A(1) and must be applied: Archer v R [2017] NSWCCA 151 at [132]; Porter v R [2008] NSWCCA 145 at [87]; Cvitan v R [2009] NSWCCA 156 at [60]; Meis v R [2022] NSWCCA 118 at [39]–[43]. Section 21A(4) provides “the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.” A sentencing principle, established by common law and not abrogated by the Act, is a rule of law: R v Johnson [2004] NSWCCA 76 at [33]. In enacting s 21A, it was the intention of Parliament to replicate the common law: Meis v R at [24]; R v Way (2004) 60 NSWLR 168 at [56]–[57], [103], [118]; R v Wickham [2004] NSWCCA 193 at [23].

For an aggravating factor to be taken into account it must be proved beyond reasonable doubt, while mitigating factors need only be proved on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270 at [27]; Meis v R at [29], [47].

The aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton (2006) 66 NSWLR 566 at [34]. Parliament has not used the word “aggravation” in its narrow common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and s 21A(2)(h) and (j) support that interpretation. For example, the aggravating factor under s 21A(2)(j), that the offence was committed while the offender was on conditional liberty, is relevant as a subjective consideration but not as part of the assessment of the objective seriousness of the offence: Elhassan v R [2018] NSWCCA 118 at [14]; Kelly v R [2021] NSWCCA 205 at [16].

Note: Section 21A(5) provides, “The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.”

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

Mitigating factors must be proven on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270 at [27]; Meis v R [2022] NSWCCA 118 at [29], [47].

This factor operates so as to mitigate the objective seriousness of the offence and is the converse of the aggravating factor set out under s 21A(2)(g) (discussed at Aggravating factors under s 21A(2) at [10-260]).

The term “substantial” is a wide one and its meaning will depend on the context on which it is used including the offence charged: Chemaissem v R [2021] NSWCCA 66 at [64]–[65]. That an injury does not constitute grievous bodily harm does not, of itself, mean it is not substantial: Chemaissam v R at [66].

When considering s 21A(3)(a), a court should not assume there is no lasting impact on a victim. For example, in respect of an armed robbery offence, the court should assume the effect of the offence upon a victim is substantial (although not as an aggravating factor under s 21A(2)(g)) and this is to be taken into account in the penalty to be imposed: R v Bichar [2006] NSWCCA 1 at [22], applying R v Solomon [2005] NSWCCA 158.

Considerable caution is required in attempting to apply s 21A(3)(a) to drug supply offences on the basis the offence was foiled and the drugs not disseminated: Taysavang v R [2017] NSWCCA 146 at [47]–[53]; R v Chan [1999] NSWCCA 103 at [21]; see also [19-860] Supplying to undercover police. Further, generalised forms of harm arising from the commercialisation of drug supply include the funding of drug manufacturers and importers, and engagement of law enforcement time and resources: Taysavang v R at [48].

While evidence may be called from a victim regarding this mitigating factor, for example, in a victim impact statement, the sentencing judge determines whether such evidence is to be accepted and what weight is to be attributed to it: AC v R [2016] NSWCCA 107 at [49].

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

This factor, when present, will detract from the objective seriousness of an offence and may be contrasted with offences that are planned or organised prior to their commission: see s 21A(2)(n) (see Aggravating factors under s 21A(2) at [10-340]). A claim of spontaneity under s 21A(3)(b) was rejected in the malicious damage of property by fire case of Porter v R [2008] NSWCCA 145 at [46].

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

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

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

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

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

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

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

The High Court decision of Muldrock v The Queen (2011) 244 CLR 120 did not place duress, provocation, mental state and mental illness outside the scope of objective features, or confine duress to a purely subjective consideration, and the Court of Criminal Appeal continues to apply Tiknius v R (a decision pre-Muldrock v The Queen): Giang v R [2017] NSWCCA 25 at [32]–[33]; see also Tepania v R [2018] NSWCCA 247 at [112]. Case examples include: Hurkmans v R [2024] NSWCCA 126 at [84]–[86]; Eyeson v R [2024] NSWCCA 52 at [40]–[41], [54]; DG v R (No 1) [2023] NSWCCA 320 at [34]–[35]; Qaumi, Farhad v R [2020] NSWCCA 163 at [467]; Kuti v R [2012] NSWCCA 43; Lindsay v R [2012] NSWCCA 124; Cherdchoochatri v R [2013] NSWCCA 118; RCW v R (No 2) [2014] NSWCCA 190. Accordingly, non-exculpatory duress may be relevant to the assessment of objective seriousness: Tepania v R at [112].

In considering these factors, it is important to note the distinction between moral culpability and objective seriousness, and where they may overlap: see DS v R (2022) 109 NSWLR 82 at [96]; Paterson v R [2021] NSWCCA 273 at [29]; [9-710] The difficulty of compartmentalising sentencing considerations.

In Kuti v R, duress was a mitigating factor to some extent, but not such as to remove the need for deterrence: [41]. In Lindsay v R, the judge was not convinced that pressure from the offender’s “creditors” was “pressing on him as a motivation to commit [the] crime”: [15], [17]–[18].

In R v Ceissman [2004] NSWCCA 466 at [24] Wood CJ at CL considered “economic duress” as a motive for participation in the offence of aggravated break enter and steal in company, contrary to s 112(2) Crimes Act, and held that it did not mitigate the offender’s objective criminality. The offender’s participation in the offence stemmed from independent criminal conduct arising out of his continued association with career criminals: [24]. This principle was applied by Spigelman CJ in R v N at [57]–[59].

In Nye v R [2018] NSWCCA 244, the Court accepted there had been duress where the offender committed serous drug offences to obtain protection from threats to him and his family. The person providing the protection was not connected to the person who issued the threats, however, while there had been duress, the attenuation of the duress, the seriousness of the offences, and the “necessity” to commit them flowing from the offender’s refusal to seek assistance from authorities, had a bearing on the offender’s moral culpability: [67]–[75].

At common law offenders without prior convictions may generally expect to be treated more leniently than those with previous convictions. The presence of relevant priors is an aggravating factor: see s 21A(2)(d) (see Aggravating factors under s 21A(2) at [10-210]); see also discussion of Prior record at [10-400].

Section 21A(3)(e) recognises a record of previous convictions may exist but not be significant for sentencing purposes. If not significant, the offender is entitled to the benefit of their record as a mitigating factor (subject to weight): Meis v R [2022] NSWCCA 118 at [37].

Where the offender has a record of previous convictions at the time of appearing for sentencing, but the record is in relation to offences which were committed after the offence before the court, the absence of a prior record as a mitigating factor is not necessarily a mitigating factor: R v MAK & MSK [2006] NSWCCA 381 at [59]–[61].

See discussion in Subjective matters at [10-610].

The reference to “good character” in s 21A(3)(f) relates to the character of the offender prior to the commission of the offence: Lozanovski v R [2006] NSWCCA 143 at [12]; Aoun v R [2007] NSWCCA 292 at [22].

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

In Athos v R (2013) 83 NSWLR 224, Price J (Beazley P and Johnson J agreeing) at [36] indicated certain categories of offences where it had been held limited weight may be given to good character:

There is no closed category of offences to which less weight should be given to evidence of prior good character: R v Gent at [61] cited in Athos v R at [37]. In Athos v R, possessing a prohibited firearm was held not to be in a category of offence where less weight is to be afforded to prior good character: [37]–[45]. A similar, albeit qualified, finding was made in relation to domestic violence offences in Wornes v R [2022] NSWCCA 184 at [36].

Similar limitations apply in fraud cases where a person has been appointed to a position of trust because of their good character: R v Gentz [1999] NSWCCA 285 at [12]; see also [20-000] Mitigating factors. This is also the case where offending has taken place over a period of time or the offender has engaged in a course of conduct to avoid detection: R v Smith [2000] NSWCCA 140 at [20]–[24]; R v Phelan (1993) 66 A Crim R 446; R v Houghton [2000] NSWCCA 62 at [18].

If an offender’s good character or lack of previous convictions was of assistance in the commission of certain child sexual offences, it is not to be taken into account as a mitigating factor: s 21A(5A), (6); see [17-450] Mitigating factors.

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

Notwithstanding the above, an offender’s likelihood of reoffending should not be conflated with their prospects of rehabilitation; they are separate and distinct factors and, if applicable, must be addressed separately: TL v R [2020] NSWCCA 265 at [316]; [369]; Zuffo v R [2017] NSWCCA 187 at [47]; Meoli v R [2021] NSWCCA 213 at [29], [38]. For example, an offender may be in need of rehabilitation, notwithstanding they are unlikely to reoffend, as rehabilitation is a broader concept than the likelihood of reoffending: Zuffo v R at [47]; R v Pogson (2012) 82 NSWLR 60 at [118], [120]. In Meoli v R, the Court held the judge did not err by not addressing the unlikelihood of reoffending notwithstanding the judge’s finding the offender’s prospects were guarded as not every listed factor in s 21A(3) calls for a specific finding; only those arising in the circumstances of the case: [40]–[43].

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

In the circumstances of a case, it may be that even though someone is unlikely to re-offend, their prospects of rehabilitation are not so favourable: Barlow v R [2008] NSWCCA 96 at [91]. It was possible to reconcile these seemingly inconsistent findings on the facts in Barlow v R. See also [11-090] Section 21A(3)(g) — the offender is unlikely to re-offend.

Remorse shown by the offender can be taken into account under s 21A(3)(i) if:

For an explanation of remorse at common law see Alvares v R [2011] NSWCCA 33 at [44] extracted at Subjective matters at [10-620]. In essence remorse means regret for the wrongdoing the offender’s actions caused and, as a feature of post offence conduct, may be relied upon to mitigate penalty: Windle v R [2011] NSWCCA 277 at [44]. In accordance with the provision, before a judge takes remorse into account in mitigation, they should make a finding as to whether the expression of remorse is genuine: Pritchard v R [2022] NSWCCA 130 at [90].

The question of whether remorse is shown will turn on whether “evidence” has been provided (s 21A(3)(i)). There is a tension in the authorities regarding how evidence of remorse is to be given, for example, in affidavits or reports tendered, or in an offender’s sworn evidence, before it is accepted by a court.

In R v Qutami [2001] NSWCCA 353, the Court cautioned against uncritical reliance on an offender’s statements contained in tendered reports where they do not give evidence: [59]. In Lloyd v R [2022] NSWCCA 18, the Court said that this statement is not a principle, and if it were, it would be a “wrong principle”, and that the weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge: [45].

Decisions which discuss how evidence of remorse is to be given before it is accepted, and considerations of weight, include:

A judge is not obliged to accept assertions of contrition made by an offender: R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21]. If a judge is not to believe the offender’s expressions of remorse in sworn evidence, they should make some comment to that effect: Mihelic v R [2019] NSWCCA 2 at [77].

A judge should not look for evidence of contrition (or lack of contrition) at the time of the commission of the offence, without regard to evidence of contrition later: R v Johnston [2005] NSWCCA 80 at [28]. Further, the absence of remorse cannot operate to aggravate the term of sentence: Roff v R [2017] NSWCCA 208 at [19], [25].

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

The court should not quantify the reduction for remorse either separately or as part of the utilitarian discount for the plea: R v Borkowski [2009] NSWCCA 102 at [32]. Given that s 21A makes specific provision for remorse to be considered as a separate mitigating factor, to include it as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting: Kite v R [2009] NSWCCA 12 at [12]. In Ristevski v R [2022] NSWCCA 38, the judge erred by referring to remorse and contrition only in the context of the utilitarian discount for the guilty plea without discrete consideration of those matters: [32]–[33]; [55].

Remorse is a major factor in determining whether an offender is unlikely to re-offend (s 21A(3)(g)) and has good prospects of rehabilitation (s 21A(3)(h)). “Without true remorse it is difficult to see how either finding could be made”: R v MAK & MSK [2006] NSWCCA 381 at [41]. However, while the three concepts are interconnected, remorse is not a prerequisite to a finding of good prospects of rehabilitation, and the three concepts should not be conflated: BP v R [2010] NSWCCA 159 at [84]; MLP v R [2014] NSWCCA 183 at [34]; Pritchard v R at [95], [101]. Further, the failure of an offender to remember or explain their conduct is not mutually exclusive with a finding of genuine remorse: Pritchard v R at [97]; Medcalf v R [2016] NSWCCA 209 at [37].

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

It has not been judicially determined how the expression “not fully aware of the consequences of his or her actions because of the offender’s age” is to be applied or whether it adds anything to the common law on the subject. A narrow reading would suggest the subsection would apply to very young offenders. The common law recognises “the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law”: KT v R [2008] NSWCCA 51 at [23]. Similarly, it is doubtful whether the subsection adds to the common law in relation to the relevance of the offender’s mental condition at sentence as expressed in Muldrock v The Queen (2011) 244 CLR 120 at [54]. In Taylor v R [2006] NSWCCA 7, the Court held the sentencing judge failed to have regard to the offender’s “disability” and that his mental condition was a mitigating factor under s 21A(3)(j): [25], [30]–[31].

See further, Subjective matters at [10-660] and [15-090] Sentencing principles applicable to children dealt with at law.

See Guilty pleas, disclosure and assistance at [9-100].

The court can, on a case by case basis, impose pre-trial disclosure requirements on both the prosecution and the defence, in order to reduce delays in complex criminal trials: see Ch 3 Pt 3 Div 3 Criminal Procedure Act 1986.

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

See Section 22A — Power to reduce penalties for pre-trial disclosure at [9-190].

See Section 23 — Power to reduce penalties for assistance to authorities at [9-200].