In Muldrock v The Queen (2011) 244 CLR 120 at [58], Bugmy v The Queen (2013) 249 CLR 571 at [44]–[46], Munda v Western Australia (2013) 249 CLR 600 at [57] and Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, the High Court separated the notion of an offender’s moral culpability from the objective seriousness of the crime and, accordingly, in Court of Criminal Appeal cases decided after Muldrock v The Queen, an assessment of an offender’s moral culpability has been treated as a distinct but important part of the sentencing exercise: Tepania v R [2018] NSWCCA 247 at [112]; Paterson v R [2021] NSWCCA 273 at [29]; DS v R; DM v R [2022] NSWCCA 156 at [77], [82]–[88].

In Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, Muldrock v The Queen (2011) 244 CLR 120 at [58] and Bugmy v The Queen (2013) 249 CLR 571 at [44]–[46], the High Court found that, in relation to the respective offender, their moral culpability was diminished, lessened or reduced by various subjective factors. In DS v R; DM v R [2022] NSWCCA 156 at [91], the court noted this raises the issue as to from what an offender’s moral culpability is reduced, and “[t]he short answer is from a moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence.”

While an assessment of moral culpability is important, there is no requirement for a sentencing judge to use the phrase “moral culpability” provided it is clear they have considered all relevant matters going to sentence: TA v R [2023] NSWCCA 27 at [86]; see also DS v R [2022] NSWCCA 156 at [91]–[93].

The line between the assessment of the objective seriousness of the offence and the offender’s moral culpability is not always straight-forward, with some subjective factors in some circumstances being relevant to both assessments: DS v R [2022] NSWCCA 156 at [94]–[96]. See also The difficulty of compartmentalising sentencing considerations at [9-710]; Factors relevant to assessing objective seriousness at [10-012]; and taking into account subjective features on sentence below, particularly, Mental health or cognitive impairment at [10-660]; Deprived background at [10-670].