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 the matters referred to in ss 21A(2) and 21A(3) 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.

Section 21A(1)(c) provides that the court is to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”.

Section 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)”: Muldrock v The Queen (2011) 244 CLR 120 at [18]. The High Court 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.

[9-710] The difficulty of compartmentalising sentencing considerations

Wilson J, in his Honour’s dissenting judgment in Veen v The Queen (No 2) (1988) 164 CLR 465 at 486, referred to “… the ease with which obscurity of meaning can infect this area of discourse”. 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 example of the difficulties faced in compartmentalising concepts in sentencing is the use of the concept of the moral culpability of an offender. In the dangerous driving guideline in R v Whyte (2002) 55 NSWLR 252 at [214] moral culpability is assessed against the circumstances of the driving. But in Veen v The Queen (No 2) at 477, the High Court referred to moral culpability concerning the question of an offender’s prior record: “It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender.” The line between a subjective factor and an objective factor is not always easy to draw: R v Way (2004) 60 NSWLR 168 at [85]. A particular consideration can point in different directions. A sentencing factor like the offender’s mental condition is relevant to the purposes of punishment, a subjective consideration, and at least before Muldrock v The Queen (2011) 244 CLR 120 (see R v Way at [86]), a matter relevant to the assessment of the objective seriousness of a crime.

Other factors like non-exculpatory duress are said to be relevant to the assessment of objective seriousness of an offence if it is committed because of threats and fear of harm rather than financial profit or greed: Tiknius v R [2011] NSWCCA 215 at [43]. Some factors, such as an offender’s intoxication, can be relevant to a lack of motive or simply could be an explanatory factor which does not excuse an offender, it can be a matter in aggravation (see Bourke v R (2010) 199 A Crim R 38 and the discussion in Intoxication at [10-480]).

See further discussion of objective seriousness at Standard Non-Parole Period Offences — Pt 4 Div 1A at [7-955].

[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) 194 A Crim R 452 at [3]; R v Woods (2009) 195 A Crim R 173.

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) 194 A Crim R 223, 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.