Objective and subjective factors at common law

[9-700] The interaction between s 21A(1) and the common law

Section 21A(1) Crimes (Sentencing Procedure) Act 1999 provides that in determining an appropriate sentence, the aggravating and mitigating factors referred to in s 21A(2) and (3) respectively are “in addition to” to any other matters required and/or permitted to be taken into account by the court under any Act or rule of law. In particular, s 21A(1)(c) provides the court is to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”.

The High Court in Muldrock v The Queen (2011) 244 CLR 120 at [18] found s 21A(1) “preserves the entire body of judicially developed sentencing principles, which constitute ‘law’ for the purposes of both s 21A(1) and s 21A(4)”.

The High Court also made it clear in Markarian v The Queen (2005) 79 ALJR 1048 at [27]:

what is required is that the sentencer must take into account all relevant considerations … in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence.

For a discussion of some of these discrete components, see:

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

  • Factors relevant to assessing objective seriousness at [10-012]

  • Subjective matters at common law at [10-400]

  • Mental health or cognitive impairment at [10-460]

  • Deprived background at [10-470]

  • Section 21A — aggravating and mitigating factors at [11-000].

[9-710] The difficulty of compartmentalising sentencing considerations

The task of sentencing an offender involves making a complex discretionary decision: Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 230. Sentencing is not an area amenable to bright-line distinctions and “it is important to avoid introducing ‘excessive subtlety and refinement’ to the task of sentencing”: Weininger v The Queen (2003) 212 CLR 629 at [24], citing R v Storey [1998] 1 VR 359 at 372 with approval.

A good illustration of the difficulties faced in compartmentalising concepts in sentencing are the separate but related assessments of the objective seriousness of an offence and the moral culpability of an offender which form part of the process of instinctive synthesis: see Muldrock v The Queen (2011) 244 CLR 120 at [58], Bugmy v The Queen [2013] HCA 37 at [44]–[46], Munda v Western Australia (2013) 249 CLR 600 at [57]. For example, some factors that are personal to an offender, such as a significant mental health impairment, may affect both the assessments of the objective seriousness of the offence and the moral culpability of the offender in some circumstances: R v Way (2004) 60 NSWLR 168 at [86]; DS v R [2022] NSWCCA 156 at [96]. Motive, provocation, non-exculpatory duress and an offender’s mental state are also potentially relevant to both assessments: Paterson v R [2021] NSWCCA 273 at [29]; Yun v R [2017] NSWCCA 317 at [40]–[47]. See Factors relevant to assessing objective seriousness at [10-012].

As Wilson J (dissenting) in Veen v The Queen (No 2) (1988) 164 CLR 465 at 486 observed, there is an “… ease with which obscurity of meaning can infect this area of discourse”. Over time other terms have developed to take on new meanings in response to changes in the sentencing regime and practice: Stanton v R [2021] NSWCCA 123 at [29]. For example, in the dangerous driving guideline judgment, R v Whyte (2002) 55 NSWLR 252, the “moral culpability” of an offender is a reference to the objective criminality of the offending and, in light of the current case law, using the expression “moral culpability” when dealing with objective seriousness, while consistent with R v Whyte, is apt to cause confusion: R v Eaton [2023] NSWCCA 125 at [56].

Regardless of the terms used and their categorisation, as the Court in DS v R [2022] NSWCCA 156 at [92] stated:

The discussion of [objective seriousness and moral culpability] is not meant to burden sentencing judges but to assist them by inviting, and to an extent requiring, them to determine the seriousness of the offence and how much moral blame the offender bears, but only as part of a consideration of the weight to be attached to the various sentencing factors and for the purpose of undertaking the instinctive synthesis described in Markarian.

[9-720] The aggravating/mitigating binary fallacy

In Weininger v The Queen (2003) 212 CLR 629 the plurality said at [22]:

The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

Therefore it is too simplistic and sometimes unhelpful to characterise a factor as either mitigating or aggravating.

The courts have also recognised what can be described as an aggravating/mitigating binary fallacy. It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. What has been done by an offender is not less serious because it could have been worse: Saddler v R [2009] NSWCCA at [3]; R v Woods [2009] NSWCCA 55; Faehringer v R [2017] NSWCCA 248 at [49]–[50]; Yaman v R [2020] NSWCCA 239 at [120]; Gibbons (a pseudonym) v R [2019] NSWCCA 150 at [30]; R v LS [2020] NSWCCA 148 at [150].

The logical extension of proposing that the absence of aggravating features justifies a downward revision in the assessment of objective gravity is that the greater the number of aggravating features missing from the commission of an offence, the lower its objective criminality will be, which is problematic: R v Woods at [52]. In R v Louizos [2009] NSWCCA 71, the judge erred in his approach by finding “the absence of comprehensible motivation causes me to impose a lesser non-parole period”: at [93]–[94]. The very serious nature of the offence of soliciting to murder made it unlikely that the respondent’s motive would significantly reduce the objective seriousness of the crime or her culpability, unless the judge concluded there was a motive that could truly be characterised as mitigating: at [90].

Section 21A uses an aggravating/mitigating binary outcome for various factors. It has been criticised by the courts. Grove J said Van Can Ha v R [2008] NSWCCA 141 at [4]:

… the language of [s 21A] is that of command but I would stress that the scope of the mandate should not be misunderstood and any compliance is dependent upon the existence of relevant evidence of any particular factor.

The discussion of the common law begins with what can loosely be defined as objective factors. Some of the factors listed because of their complexity are also relevant to subjective considerations (see [9-710] The difficulty of compartmentalising sentencing considerations above).