Objective factors at common law

[10-000] Maximum penalty

Last reviewed: November 2023

The maximum penalty represents the legislature’s assessment of the seriousness of the offence, and for this reason provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483 at [27]; Gilson v The Queen (1991) 172 CLR 353 at 364. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out three reasons why sentencers should have particular regard to the maximum penalties prescribed by statute. Their Honours said:

careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

Giving careful attention to the maximum penalty does not mean that it “will necessarily play a decisive role in the final determination”: Elias v The Queen at [27]. Where a maximum sentence was fixed at a very high level in the 19th century it may be of little relevance: Elias v The Queen at [27] with reference to Markarian v The Queen at [30].

A maximum penalty should not constrain a court’s discretion with the result that it imposes an inappropriately severe sentence on an offender: Elias v The Queen at [27]. The court must arrive at a sentence that is just in all of the circumstances: Elias v The Queen at [27]. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion: Elias v The Queen at [27].

In Markarian, the High Court found error in the resentencing process because the Court of Criminal Appeal did not start with the maximum penalty for an offence involving the quantity of drug in question, but used another maximum penalty as its starting point: the maximum for an offence in the category of seriousness immediately below that of the principal offence. As indicated above, a maximum penalty serves as a yardstick or as a basis of comparison between the case before the court and the worst possible case. Their Honours also said at [31]:

[I]t will rarely be, and was not appropriate for Hulme J here to look first to a [lower] maximum penalty, and to proceed by making a proportional deduction from it. [Citations omitted.]

A failure by a sentencing judge to consider the correct maximum penalty for an offence is an error: R v Mason [2000] NSWCCA 82. Other appeal decisions discussing reference to, or a statement of, the wrong maximum penalty and its impact on the sentence include: Des Rosiers v R [2006] NSWCCA 16 at [20], R v O’Neill [2005] NSWCCA 353, R v Tadrosse (2005) 65 NSWLR 740, Smith v R [2007] NSWCCA 138 at [34] and R v Couch-Clarke [2010] NSWCCA 288 at [39].

Increase in statutory maximum

An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased: Muldrock v The Queen (2011) 244 CLR 120 at [31].

For example, where the Legislature almost triples the maximum sentence for a particular type of offence it must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the Legislature that the existing sentencing patterns are to move in a sharply upward manner: R v Slattery (unrep, 19/12/96, NSWCCA).

Decrease in the maximum penalty

It is permissible to take into account the subsequent reduction in the maximum penalty as a reflection of the Legislature’s policy in relation to fraud offences, and to reduce the impact of the maximum penalty for the repealed offence: R v Ronen [2006] NSWCCA 123 at [73]–[74].

Maximum penalties and the jurisdiction of the Local Court

For magistrates exercising summary jurisdiction, the maximum penalty for the offence, not the lower jurisdictional limit, is the starting point for determining the appropriate sentence: Park v The Queen (2021) 273 CLR 303 at [23]. The Local Court jurisdictional limit cannot regarded as some form of maximum penalty or a penalty reserved for the worst case: R v El Masri [2005] NSWCCA 167 at [30]. In R v Doan (2000) 50 NSWLR 115 at [35], Grove J (Spigelman CJ and Kirby J agreeing) stated that a jurisdictional maximum is:

not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a “worst case”.

In practical terms this means that a magistrate sentencing an offender for an indictable offence being dealt with summarily must identify and synthesise all the relevant factors to be weighed in determining the appropriate sentence, without regard to any jurisdictional limit: Park v The Queen at [2], [19]. This includes considering the appropriate discount to be applied for any plea of guilty (required by s 22 Crimes (Sentencing Procedure) Act 1999): Park v The Queen at [19]–[22]. The relevant jurisdictional limit is applied after the appropriate sentence for the offence has been determined: Park v The Queen at [2]; see also Park v R [2020] NSWCCA 90 at [22]–[35]; [182].

[10-005] Cases that attract the maximum

Last reviewed: August 2023

The maximum penalty for an offence is reserved for worst cases. Past High Court authorities, such as Ibbs v The Queen (1987) 163 CLR 447 at 451–452 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, described cases that attract the maximum penalty as cases as falling into the “worst category”. Courts should avoid using the expression “worst category”: The Queen v Kilic (2016) 259 CLR 256 at [19]–[20]. The expression may not be understood by lay people where a court finds that an offence is serious but does not fall into the “worst category”.

The better approach is for the court to clearly record whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty: The Queen v Kilic at [20]. Both the nature of the crime and the circumstances of the criminal are considered in determining that issue: The Queen v Kilic at [18]. It is irrelevant whether it is possible to envisage, or conceive of, a worse instance of the offence: The Queen v Kilic at [18]. It is not the case that “a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness”: Veen v The Queen (No 2) at 478.

Where the offence is not so grave as to warrant the imposition of the maximum penalty, a court is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instance to the worst: The Queen v Kilic at [19]; Elias v The Queen (2013) 248 CLR 483 at [27].

As to s 61(1) Crimes (Sentencing Procedure) Act 1999, relating to the circumstances in which mandatory life imprisonment may be imposed (previously, s 413B Crimes Act 1900 (NSW)), see Mandatory life sentences under s 61 at [8-600]ff.

[10-010] Objective seriousness and proportionality

Last reviewed: August 2023

Assessing the objective seriousness of an offence is a critical component of instinctive synthesis in the sentencing process: R v Campbell [2014] NSWCCA 102 at [27], [29]; FL v R [2020] NSWCCA 114 at [58]. It sets the parameters of an appropriate sentence, ensuring the sentence is proportionate to the offence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485–486, 490–491, 496; Hoare v The Queen (1989) 167 CLR 348 at 354; R v McNaughton (2006) 66 NSWLR 566 at [15].

Assessing the objective seriousness of an offence is a separate but related task to assessing the moral culpability of an offender: Muldrock v The Queen (2011) 244 CLR 120 at [27], [54]; Bugmy v The Queen (2013) 249 CLR 571 at [44]; Munda v Western Australia (2013) 249 CLR 600 at [57]; DS v R (2022) 109 NSWLR 82 at [77]. See also Subjective matters at common law at [10-400]ff.

The principle of proportionality

In Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, Mason CJ, Brennan, Dawson and Toohey JJ said:

The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.

Assessing the objective seriousness of an offence, is required to observe the principle of proportionality, ensuring the offender is “adequately punished” in accordance with s 3A Crimes (Sentencing Procedure) Act 1999: FL v R [2020] NSWCCA 114 at [58]. The imposition of a proportionate sentence is a purpose of the process of instinctive synthesis: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]; Zreika v R [2012] NSWCCA 44 at [46].

The proportionality principle requires that a sentence should not exceed what is required to reflect the objective seriousness of the crime regardless of how poor the offender’s subjective case: Veen v The Queen (No 2) at 472, 485–486, 490–491, 496; Hoare v The Queen (1989) 167 CLR 348 at 354; R v Whyte (2002) 55 NSWLR 252 at [156]–[158]; DS v R (2022) 109 NSWLR 82 at [68]. Nor should the sentence be less than the objective seriousness of the crime: R v Whyte at [156]; R v McNaughton (2006) 66 NSWLR 566 at [15].

To achieve proportionality, regard must be had to the “gravity of the offence viewed objectively” because “without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place”: Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 556. Elaborating on this, the court in R v Dodd said at 354:

Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 … stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64 …

Following The Queen v Kilic (2016) 259 CLR 256, the quote above should be qualified to the extent that the description “most grave category” is now to be avoided (see the discussion at [10-005], above).

[10-012] Factors relevant to assessing objective seriousness

Last reviewed: November 2012

The task of assessing the objective seriousness of an offence requires the court to identify factors relevant to the “nature of the offending” and consider where in the range of conduct covered by the offence the offending falls: Muldrock v The Queen (2011) 244 CLR 120 at [27]; Baumer v The Queen (1988) 166 CLR 51 at 57. The “nature of the offending” is assessed or “measured” against legislative guideposts, namely the maximum penalty and, where applicable, the standard non-parole period: R v Moon [2000] NSWCCA 534 at [70]. The court must also assess the “nature of the offending” in the case against other instances of such offending: R v Campbell [2014] NSWCCA 102 at [27]–[29]. See also Maximum penalty above at [10-000], Mandatory life sentences under s 61 at [8-600]ff, Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff and Consistency at [10-020].

The following factors are to be considered, when known and present, when assessing objective seriousness:

  • the offending conduct (for example, in relation to the offence of sexual intercourse without consent, the range of acts that can constitute “sexual intercourse” as defined)

  • the offender’s mental state (or fault element) at the time of the commission of the offence (ranging from intention to lesser mental states such as recklessness), and

  • the consequences of the offending.

See, for example, Muldrock v The Queen at [27]; R v Way (2004) 60 NSWLR 168 at [86]; Yun v R [2017] NSWCCA 317 at [35]; SKA v R [2009] NSWCCA 186 at [129]–[137]. See also more detailed discussion about particular features of offending conduct and its consequences in Premeditation and planning at [10-040]; Degree of participation at [10-050]; Breach of trust at [10-060]; Impact on the victim at [10-070]; and Co-offenders with joint criminal liability at [10-807] in Parity.

Since Muldrock v The Queen, whether matters personal to an offender form part of the “nature of the offending” and should also be considered when assessing objective seriousness has been the subject of debate: DS v R (2022) 109 NSWLR 82 at [71]. The decisions of DS v R at [96]; Paterson v R [2021] NSWCCA 273 at [29]; Yun v R at [40]–[47]; Tepania v R [2018] NSWCCA 247 at [112], suggest that the following personal factors may in some circumstances be relevant to assessing both the objective seriousness of an offence and the moral culpability of an offender:

  • motive

  • provocation

  • non-exculpatory duress

  • the offender’s mental illness, mental health impairment or cognitive impairment

  • the offender’s age.

In R v Way (2004) 60 NSWLR 168 at [85], a decision pre-Muldrock v The Queen, in the context of a standard non-parole period offence, the court held a personal factor would only impact on objective seriousness where it was “causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected”. While in DS v R at [96], the court stated the “nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter” are determinative considerations.

Consistent with Muldrock v The Queen and Bugmy v The Queen (2013) 249 CLR 571, in R v Eaton [2023] NSWCCA 125 at [49], the Court held that, for a personal factor to impact on the assessment of objective seriousness, more than a simple or indirect causal connection is required between the relevant subjective feature of the case and the offending.

See also Objective and subjective factors at common law at [9-700]ff; Subjective matters at common law at [10-400]ff.

Mental health or cognitive impairment and objective seriousness

An offender’s mental health or cognitive impairment may be relevant to the assessment of objective seriousness where it is causally related to an offence: DS v R (2022) 109 NSWLR 82 at [63]; Paterson v R [2021] NSWCCA 273 at [29]–[31]; R v Way (2004) 60 NSWLR 168 at [86]; cf Subramaniam v R [2013] NSWCCA 159 at [56]–[57]; Badans v R [2012] NSWCCA 97 at [53]. The circumstances in which a mental health or cognitive impairment will inform the objective seriousness of the offence in addition to be considered in assessing the offender’s moral culpability are “few and confined”: Lawrence v R [2023] NSWCCA 110 at [75].

In DS v R at [96] the Court stated:

The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premeditated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.

In Camilleri v R [2023] NSWCCA 106, a jury convicted an offender of manslaughter on the basis she was substantially impaired by a mental condition at the time of the offence (Crimes Act, s 23A), as an alternative to murder. The applicant had a longstanding, complex psychiatric history including intellectual disability, and autism spectrum and explosive disorders. Hamill J (Cavanagh J agreeing in large part) found the assessment of the extent to which the applicant was affected by her mental condition is to be made from the starting point that her mental responsibility was substantially impaired, and the role played by her cognitive or neurological impairment or mental illness on a proper assessment of objective criminality should not be diminished: at [138], [142]. Hamill J at [133] (Cavanagh J agreeing at [220]) also found the offender’s mental condition and resultant loss of self-control impacted objective seriousness, because it meant the offence was truly spontaneous and unplanned. Adamson JA dissenting, found that while the offender’s mental condition was potentially relevant to objective seriousness, it had been open to the sentencing judge to only take it into account when assessing moral culpability: at [26]–[28].

In Lawrence v R, the sentencing judge took the applicant’s background and mental conditions into account to reduce his moral culpability for domestic violence offences committed against his former partner. The court observed while mental conditions “may” reduce the objective seriousness of an offence, there is no principle that a related impairment “must” do so: at [75]. The court found the offender’s mental condition was not relevant to the objective seriousness of the offences which were “committed over a prolonged period that involved the assault, intimidation, and degradation of a former de facto spouse”: at [79].

See also Mental health or cognitive impairment at [10-460].

Provocation and objective seriousness

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: Williams v R [2012] NSWCCA 172 at [42]. It may be that whether a factor such as provocation is categorised as an objective or subjective factor will have little practical impact on the ultimate sentence: Williams v R at [43] See also Section 21A(3)(c) — the offender was provoked by the victim at [11-230].

Non-exculpatory duress and objective seriousness

The weight and characterisation of non-exculpatory duress as impacting on the assessment of objective seriousness will depend upon 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 matters to the authorities: Tiknius v R [2011] NSWCCA 215 at [40]–[49]; see also Giang v R [2017] NSWCCA 25. See also Section 21A(3)(d) — the offender was acting under duress at [11-240].

Age and objective seriousness

In IE v R [2008] NSWCCA 70 at [20], the court held an offender’s youth is a subjective factor that could not bear upon the assessment of objective seriousness. However, in R v AA [2017] NSWCCA 84 at [55], the court found, in some circumstances, an offender’s age may bear upon an assessment of objective seriousness, and can be relevant to an explanation of the context in which the offending occurred. For example, in respect of the age difference between a sexual offender and their victim: DS v R (2022) 109 NSWLR 82 at [129]. See also [10-440] Youth; Section 21A(3)(j) — the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability at [11-300].

Standard non-parole period offences

The principles discussed in DS v R (2022) 109 NSWLR 82 at [63]–[96] also apply to the application of standard non-parole periods: Tepania v R [2018] NSWCCA 247; Yun v R [2017] NSWCCA 317; cf Stewart v R [2012] NSWCCA 183 at [37]. See also Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

Factors that cannot be taken into account

It is not permissible to take into account the absence of a circumstance which, if present, would render the offence a different offence. This is irrelevant to, and likely to distort, the assessment of objective seriousness: Nguyen v The Queen (2016) 256 CLR 656 at [30], [43], [60]. Similarly, a comparison of the gravity of the subject offence with a hypothesised offence is erroneous: Nguyen v The Queen at [59].

The following factors, which are personal to an offender, do not bear upon the assessment of the objective seriousness of an offence:

  • prior criminal record: R v McNaughton (2006) 66 NSWLR 566 at [25]; Lawrence v R [2023] NSWCCA 110 at [57]–[58]

  • a plea of guilty (and its timing): Lovell v R [2006] NSWCCA 222 at [61], [66]

  • the liberty status of an offender at the time of the commission of the offence (for example, on bail or parole): Simkhada v R [2010] NSWCCA 284 at [25]; Martin v R [2011] NSWCCA 188 at [7], [17]; Sharma v R [2017] NSWCCA 85 at [65]–[67]

  • the offender committed multiple offences: R v Reyes [2005] NSWCCA 218 at [43].

Regardless of whether the personal factors discussed above may be considered in the assessment of objective seriousness, they may be relevant to the assessment of moral culpability and for other sentencing purposes. See Subjective matters at common law at [10-400]ff.

[10-013] Objective seriousness findings

Last reviewed: August 2023

A sentencing judge must “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen (2011) 244 CLR 120 at [29].

The judge’s assessment of the objective seriousness of an offence must be clear upon a fair reading of the sentencing remarks and mere recitation of the facts of an offence is unlikely to be sufficient: Kearsley v R [2017] NSWCCA 28 at [64]–[66]; R v Van Ryn [2016] NSWCCA 1 at [133], [134]; R v Cage [2006] NSWCCA 304 at [17]. In Kochai v R [2023] NSWCCA 116, it was “tolerably clear” the sentencing judge was satisfied the offending was objectively serious because they had enumerated all of the relevant factors, and all of those factors elevated the seriousness of the offending: [46], [54].

Since the introduction of standard non-parole periods it has been increasingly common for sentencing judges to place their findings of objective seriousness in a range or on a scale: R v Eaton [2023] NSWCCA 125 at [57]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]. Even for offences carrying a standard non-parole period a failure to assess objective seriousness on a “hypothetical arithmetical or geometrical continuum of seriousness” does not indicate error: R v Eaton at [57]; DH v R [2022] NSWCCA 200 at [33]; [56]; [58]–[60]. Further, that the parties dispute where on a scale the offences fall will not necessarily place an obligation on a judge to place the offending on a scale: Kochai v R at [52].

The characterisation of objective seriousness on a scale from low range, through to mid and high ranges “is often unhelpful …” and “is likely to lead to confusion and misinterpretation” for offences not carrying a standard non-parole period: Basten JA in Cargnello v Director of Public Prosecutions (Cth) at [88]; Howie AJ in Georgopolous v R [2010] NSWCCA 246 at [30]. In DH v R, Yehia J at [60] stated the use of descriptors such as “lower end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.

See also Standard non-parole period offences — Pt 4 Div 1A at [7-890] and Sentencing guidelines at [13-630].

[10-015] Objective seriousness and post-offence conduct

Last reviewed: August 2023

Post offence events can be taken into account in assessing the objective seriousness of a crime but it must be done with particular care: R v Wilkinson (No 5) [2009] NSWSC 432 per Johnson J, at [61]. Events which precede and follow the technical limits of a crime may be considered in assessing its objective seriousness: R v Wilkinson (No 5) at [61] citing DPP v England [1999] 2 VR 258 at 263 at [18]; R v Garforth (unreported, 23/5/94, NSWCCA). A sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: R v Austin (1985) 121 LSJS 181 at 183; R v Wilkinson (No 5) at [61].

Poor treatment of a deceased person’s body can be taken into account in homicide cases for the purpose of assessing the seriousness of the offence: R v Yeo [2003] NSWSC 315 at [36]; Knight v R [2006] NSWCCA 292 at [28]. Examples of aggravating post-offence conduct in murder and manslaughter cases include: infliction of further injury knowing the victim is already dead (R v Hull (1969) 90 WN (Pt 1) (NSW) 488 at 492); callous and disrespectful treatment of the body (Colledge v State of Western Australia [2007] WASCA 211 at [10] and [15], where the body was left for weeks before being buried with lime to hasten its decomposition); concealing the body (R v Lowe [1997] 2 VR 465 at 490, where a deceased child was hidden in a storm-water drain); dumping the body in a remote spot (R v Von Einem (1985) 38 SASR 207 at 218); disposing of the deceased’s possessions in different locations “to blur the trail” (Bell v R [2003] WASCA 216 at [16] and [25]); and incinerating the body (R v Schultz (1997) 68 SASR 377 at 384). In DPP v England, the sentencing judge erred by reasoning that acts after death could not amount to aggravating circumstances as the crime of murder was complete upon death: DPP v England at [14], [35]. It is not “double-counting” to have regard to post-offence conduct as adding an aggravating dimension to the crime, as well as indicating a lack of remorse: DPP v England at [37]; Bell v R at [25].

An offender’s false statements to police and others concerning the whereabouts of the body, and his failure to reveal its true whereabouts, could not be taken into account in an assessment of the objective seriousness of the murder itself: R v Wilkinson (No 5) at [62]. To do so would be tantamount to treating the accused’s conduct of his or her defence as an aggravating factor: R v Cavkic (No 2) [2009] VSCA 43 at [134].

As to post-crime ameliorative conduct of the offender as a matter in mitigation of sentence see Ameliorative conduct or voluntary rectification at [10-560].

[10-020] Consistency

Last reviewed: August 2023

The High Court in Hili v The Queen (2010) 242 CLR 520 at [18], [49] examined what is meant by “consistency” and considered “the means by which consistency is achieved”. The plurality said, at [18]: “... the consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence”. The principle was applied in Barbaro v The Queen (2014) 253 CLR 58 at [40]. The plurality in Lacey v Attorney-General of Queensland (2011) 242 CLR 573 at [54] also quoted the passage with approval and added: “Consistency in that sense is maintained by the decisions of intermediate courts of appeal.”

It is imperative for a court to have regard to previous cases and “[n]ot just to what has been done in other cases but why it was done”: Hili v The Queen at [18] (emphasis in the original judgment). Like cases should be decided alike and different cases should be dealt with differently: Hili v The Queen at [49].

In considering patterns of sentencing it is well to also keep in mind that sentencing is a task involving the exercise of a discretion and that there is no single correct sentence: Markarian v The Queen (2005) 228 CLR 357 at [27]. As to sentencing consistency for federal offences see Achieving consistency in sentencing at [16-035] Relevance of decisions of other State and Territory courts.

In striving to achieve consistency, courts have utilised previous cases on the one hand and statistics on the other. Many of the authorities cited below discuss both issues, however, for the purpose of this chapter, they have been dealt with separately. To some extent the utility of comparable cases and sentencing statistics depends on the offence. For example, courts have said sentencing statistics should be avoided when sentencing for manslaughter cases (discussed further in introduction to the Manslaughter and infanticide chapter at [40-000] under Use of statistical data). However, sentencing statistics are commonly utilised by the courts when sentencing for Commonwealth drug offences (see Achieving consistency at [65-150]). The issue of consistency and the use of statistics is discussed further within the chapters dealing with particular offences from [17-000] and following.

[10-022] Use of information about sentences in other cases

Last reviewed: August 2023

In seeking consistency, while care must be taken, courts (including first instance judges) must have regard to what has been done in other cases: Hili v The Queen (2010) 242 CLR 520 at [53]; Barbaro v The Queen (2014) 253 CLR 58 at [40]–[41]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; R v Nguyen [2010] NSWCCA 238 at [106]. In Barbaro v The Queen, the majority of the High Court said at [41]:

other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect … the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

Although Hili v The Queen and DPP (Cth) v De La Rosa concern sentences imposed for Commonwealth offences, the principles enunciated therein, subject to what was said by the High Court in The Queen v Pham (2015) 256 CLR 550 set out below, remain applicable to NSW offences (see the approach taken by the court to manslaughter in Lacey v Attorney-General of Queensland (2011) 242 CLR 573 at [54]).

In The Queen v Pham, the High Court examined the issue of using other cases during the sentencing process. The plurality (French CJ, Keane and Nettle JJ) set out at [28] the following non-exhaustive list of propositions concerning the way in which the assessment of sentences in other cases is to be approached [footnotes excluded]:


Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.


The consistency that is sought is consistency in the application of the relevant legal principles.


Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.


Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.


For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.


When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.


Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

It is to be noted that no reference was made by the plurality to the statement in Barbaro v The Queen at [41] (quoted above) that a court can synthesise raw material like statistics.

The plurality observed that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate (although not define) the possible range available: The Queen v Pham at [29]. Further, a court must have regard to such a decision unless the objective or subjective circumstances of the case make it distinguishable, or if the court thinks the outcome is manifestly inadequate or excessive: The Queen v Pham at [29].

Cases decided in the past do not define the permissible range for a court: DPP (Cth) v De La Rosa at [304]. The concept of an “available range”, commonly referred to in sentencing appeals, emanates from a conclusion that a sentence is manifestly inadequate or manifestly excessive, and, therefore, falling outside the available range. Such a conclusion is derived from the last limb of House v The King (1936) 55 CLR 499 at 505 — that the result is “plainly unjust”. However, it is wrong to suggest that a conclusion that a sentence is manifestly inadequate or manifestly excessive requires or permits setting the bounds of the range of available sentences: Barbaro v The Queen at [28]; see also Robertson v R [2015] NSWCCA 251 at [23]. Ordinarily, it should be assumed after Barbaro v The Queen that a court will only accept or reject a submission as to range after considering all the relevant facts and law which bear upon its merit: Matthews v R (2014) VR 280 at [17].

In Munda v Western Australia (2013) 249 CLR 600, Bell J held at [119] that the fact that the primary judge’s sentence was consistent with sentences imposed in comparable cases, and that his Honour’s reasons did not disclose patent error, invited careful consideration of the basis on which a conclusion of manifest inadequacy by the Court of Criminal Appeal was reached.

The Queen v Kilic (2016) 259 CLR 256 illustrates the perils of using comparative cases. The Court of Appeal of Victoria erred by attributing too much significance to the sentences imposed in other cases and by concluding that despite the “latitude” to be extended to a sentencing judge the disparity between the respondent’s sentence and current sentencing practice meant there was a breach of the principle of equal justice: The Queen v Kilic at [23]. The Court of Appeal impermissibly treated the sentences imposed in the few cases mentioned as defining the sentencing range: The Queen v Kilic at [24]. The cases mentioned by the parties could not properly be regarded as providing a sentencing pattern: The Queen v Kilic at [25]. There were too few cases, one dealt with a different offence, another was more than 12 years old and the circumstances of the offending in each case were too disparate, including the fact that some were not committed in the context of domestic violence against a woman in abuse of a relationship of trust: The Queen v Kilic at [25], [27]–[31]. At best they were representative of particular aspects of the spectrum of seriousness: The Queen v Kilic at [25].

Strict limits apply as to the use that can be made of sentences imposed in other cases. The court must make its own independent assessment of the particular case: R v F [2002] NSWCCA 125 at [38]. The court must identify the limits of the discretion by reference to the facts of the case before it: Robertson v R at [23]. Ultimately, the sentencing discretion is individual and must be exercised by the judge in respect of the individual offender and the particular offending: Gavin v R at [41]; DPP (Cth) v De La Rosa at [304], [305]; Hili v The Queen at [54].

Nevertheless, viewing comparable cases in an overall and broad way can provide some measure of the types of sentences passed in similar (although not identical) circumstances: R v Smith [2016] NSWCCA 75 at [73]. In R v Smith, the CCA referred to a first instance District Court decision and a decision of an intermediate appellate court as illustrations of how courts had approached the sentencing task in serious cases of dangerous driving causing death in the past: R v Smith at [70]–[71]. In Hili v The Queen at [64]–[65], the High Court also made reference to “one or two closely comparable cases” including the first instance decision of R v Wheatley (2007) 67 ATR 531.

It is not always helpful to trawl for comparisons with other decided cases and it would be futile to attempt to gauge the element of manifest seriousness from a single decision that forms part of a range of cases with widely differing objective and subjective circumstances: R v Zhang [2004] NSWCCA 358 at [26]; see also R v Salameh (unrep, 9/6/94, NSWCCA); R v Trevenna [2004] NSWCCA 43 at [98]–[100]; R v Mungomery [2004] NSWCCA 450 at [5]; R v Araya [2005] NSWCCA 283 at [67]–[71]. Thus, in RCW v R (No 2) [2014] NSWCCA 190, the court held at [48] that the judge erred in deriving a starting point for the sentence from a single comparable case on the basis of similarity in objective criminality without consideration of the offender’s subjective features. However, there have been exceptions to this principle. In Behman v R [2014] NSWCCA 239, the court used the sentence imposed in an earlier case involving conduct “very similar” to that for which the offender stood to be sentenced, as a “strong guide as to the appropriate range”: at [17]–[18], [22].

Singling out one subjective feature, such as age, in order to compare sentences is also an unproductive exercise: Atai v R [2014] NSWCCA 210 at [147], [161]. In Atai v R, a murder case, the Court of Criminal Appeal held that the range of criminality in the chosen cases, the bases upon which the offender was culpable and the subjective features were widely divergent. Similarly, in Briouzguine v R [2014] NSWCCA 264, a case involving the supply of significant quantities of drugs, the court held at [78] that reliance by the applicant on a number of other cases concerning drug supply offences involving large commercial quantities, wrongly assumed that the wide variety of facts and degree in which the offending can occur readily yielded a range.

At best, other cases do no more than become part of a range for sentencing, and in the case of manslaughter, this range is wider than for any other offence: R v George [2004] NSWCCA 247 at [48]; Robertson v R at [18], [20]. Therefore, in manslaughter cases, an examination of the results in other decided cases does not illuminate “in any decisive manner the decision to be reached in a particular case” and is “unhelpful and even dangerous”: BW v R [2011] NSWCCA 176 at [61]; R v Vongsouvanh [2004] NSWCCA 158 at [38]; CW v R [2011] NSWCCA 45 at [131]. In R v Hoerler [2004] NSWCCA 184 at [41]; Abbas v R [2014] NSWCCA 188 at [38]–[42]; R v Loveridge [2014] NSWCCA 120 at [226]–[227]; and R v Trevenna at [98]–[100], it was held that it was not possible to extrapolate a sentencing pattern from past manslaughter cases.

In Robertson v R, the applicant was entitled to rely upon comparative manslaughter cases, however, their assistance in the circumstances was limited: Robertson v R at [24].

In King v R [2015] NSWCCA 99, a murder case, the court held that reliance on four other sentencing judgments as a means of establishing some kind of benchmark against which the reasonableness of the sentence at hand was to be measured, was not particularly helpful. Murder, like manslaughter, is a protean offence and each case depends upon its own facts. Axiomatically, differences in facts and circumstances will often lead to differences in the resulting sentence: King v R at [80].

[10-024] Use of sentencing statistics

Last reviewed: March 2024

It is has long been established that a court should have regard to the general pattern of sentences: R v Visconti [1982] 2 NSWLR 104 per Street CJ at 109, 111. In Barbaro v The Queen (2014) 253 CLR 58 at [41], the High Court said it is the role of the court to synthesise raw material like statistics.

In Hili v The Queen (2010) 253 CLR 58 at [18], the High Court stated that the sentencing consistency sought is “consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence”. Accordingly, the presentation of sentences which have been passed in “numerical tables, bar charts or graphs” which merely depict outcomes is not useful as it is not possible to ascertain from them why the sentence(s) were imposed. Further, useful statistical analysis is not possible where there is a very small number of offenders sentenced each year, as is the case for federal offenders. The High Court stated at [48]:

Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

The Queen v Pham (2015) 256 CLR 550

Both Hili v The Queen and Barbaro v The Queen must now be read in light of the High Court decision of The Queen v Pham (2015) 256 CLR 550. In The Queen v Pham, the court unanimously held that the Victorian Court of Appeal erred in law by adopting an impermissible statistical analysis of comparable cases to determine the objective seriousness of the subject offence: [3], [43]. In this case, Maxwell P attached to his judgment a table of 32 cases of intermediate appellate courts for offences involving a marketable quantity of border controlled drug where the offender was a “courier (or recipient) and no more”, had pleaded guilty and had “no (or no relevant) prior convictions”. A column in the table expressed the quantity imported as a percentage of the commercial quantity for each of the different drug types. The cases were ranked from the highest percentage to the lowest and a line of best fit was added.

The plurality (French CJ, Keane and Nettle JJ) said the case illustrated the inutility of the presentation of sentences imposed on federal offenders using the numerical tables, bar charts and graphs referred to in Hili v The Queen (at [48], see above): The Queen v Pham at [32], [33]. Presentations in these forms should be avoided: The Queen v Pham at [28]. The statistical analysis was also flawed by treating the weight of drug imported as “the only variable factor affecting offence seriousness” and assuming that “courier” status was of uniform significance: The Queen v Pham at [37].

Bell and Gageler JJ did not agree with the plurality on this point and held that even if the Court of Appeal misused the table of 32 cases to determine the objective seriousness of the offence it does not demonstrate that presentation of this type of material is impermissible: The Queen v Pham at [45]. Hili v The Queen and Barbaro v The Queen are concerned not only with the consistent application of sentencing principles but also with reasonable consistency in sentencing outcomes: The Queen v Pham at [42], [46]. In Hili v The Queen, the court said it is not useful to use statistical material which only refers to the lengths of sentences passed because it says nothing about why sentences were fixed: The Queen v Pham at [46].

The joint justices further held that statistical material showing the pattern of past sentences for an offence may serve as a yardstick by which the sentencer assesses a proposed sentence and the appellate court assesses a challenge of manifest inadequacy or excess: The Queen v Pham at [47]. In Barbaro v The Queen, the court held that judges must have regard to past cases as they may establish a range. This history stands as a yardstick against which to examine a sentence but it does not define the outer boundary of the permissible discretion. It was accepted that comparable cases and sentencing statistics are aids and part of the material which the sentencer must take into account: The Queen v Pham at [48]. The Commonwealth Sentencing Database is a source of potentially relevant information about the pattern of sentencing for federal offences: The Queen v Pham at [49]. Bell and Gageler JJ said at [49] [footnote included]:

Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled [see Knight v R [2015] NSWCCA 222 at [3]–[13] per RA Hulme J] and provided the limitations explained in … Barbaro … are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set.

CCA statements concerning the use of statistics

The previous accepted authority in NSW of R v Bloomfield (1998) 44 NSWLR 734 at 739, particularly the statements of Spigelman CJ (statistics “may be of assistance in ensuring consistency in sentencing” and “may indicate an appropriate range”) must now be read in light of Wong v The Queen (2001) 207 CLR 584 at [59], Barbaro v The Queen at [41], Hili v The Queen at [48] and The Queen v Pham (2015) 256 CLR 550 at [49]. The court in SS v R [2016] NSWCCA 197 applied those cases. Bathurst CJ said at [63] that statistics in that case:

… do not provide any real assistance in determining whether the sentence was manifestly excessive in the absence of any detail concerning the circumstances of the particular cases in question.

The limited use that should be made of Judicial Commission statistics has been recognised previously: Ross v R [2012] NSWCCA 161 at [19]. Statistics do no more than establish the range of sentences imposed, without establishing that the range is the correct range or that the upper or lower limits are the correct upper or lower limits: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]; R v Boyd [2022] NSWCCA 120 at [139]; Holohan v R [2012] NSWCCA 105 at [51]. A failure by a court to consider Judicial Commission statistics does not in itself amount to error in the sentencing process: Lawson v R [2012] NSWCCA 56 at [13]. Sentencing statistics are a blunt instrument when seeking to establish manifest excess in a sentencing appeal: Windle v R [2011] NSWCCA 277 at [62] and an opaque tool for providing insight into a sentencing range in a sentencing appeal: R v Nikolovska [2010] NSWCCA 169 at [70]. For many offences, culpability varies over so wide a range that the statistics are of limited utility for a particular case and undue weight should not be given to them: Fogg v R [2011] NSWCCA 1 at [59].

In R v Lao [2003] NSWCCA 315 at [32]–[33], Spigelman CJ said:

What is an available “range” is sometimes not accurately stated, when reference is made to Judicial Commission statistics. The statistics of the Judicial Commission do not show a range appropriate for a particular offence.

This court is concerned to determine the appropriate range for the particular offence. The Judicial Commission statistics do not indicate that range. They reflect what was regarded as appropriate in the wide variety of circumstances in the cases reported in those statistics.

The court in Skocic v R [2014] NSWCCA 225 at [19]–[20] helpfully summarised the law in relation to the use that can be made of sentencing statistics following the decisions in Hili v The Queen and Barbaro v The Queen. In Skocic v R at [19], Bellew J said:

In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following:


consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]–[49][;]


sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41];


the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were;


this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] [see Chan v R [2010] NSWCCA 153] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another;


the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76 at [75].

The decisions of Sharma v R at [78]–[82], R v Boyd at [122], [139]–[143] and Tatur v R [2020] NSWCCA 255 at [46]–[47] reiterate some of these principles.

In Tweedie v R [2015] NSWCCA 71 at [45], the court held that the Judicial Commission sentencing statistics, which contained only five cases of the same fraud offence sentenced in the District Court, were of no use at all. Further, there was no utility in comparing the sentences imposed in that case with those imposed in the Local Court where the jurisdictional limit is 20% of the maximum penalty available in the District Court.

Generally, for offences involving the manufacture and supply of drugs, the utility of sentencing statistics are of limited weight because they do not record: the broad range of weight and purity of the drug involved; the role of the offender; and, whether there were aggravating features: R v Chidiac at [40]; see also R v Boyd at [169]; Bao v R [2016] NSWCCA 16 at [70]–[74]. The aggravating feature of being on conditional liberty at the time of the offending is not recorded in the statistics: Sparkes v R at [30].

It has been said that statistics can be used as broad support for a conclusion that a custodial sentence is appropriate: Mitchell v R [2013] NSWCCA 318 at [27]–[31]; Peiris v R [2014] NSWCCA 58 at [96]. However, the comparison of sentencing statistics becomes complicated where Form 1 offences have been taken into account: R v Lenthall [2004] NSWCCA 248; see also Bao v R at [70]–[74]; Simpson v R [2014] NSWCCA 23 at [39].

In Peiris v R, the court held that the sentencing judge’s reliance on sentencing statistics was erroneous. If comparison is to be made for the purposes of establishing a yardstick in a case where the offence can be tried summarily and on indictment, then it should be made with all the data including that obtained from the Local and higher courts: Peiris v R at [90].

As with the use of comparable cases, the myriad circumstances of manslaughter offences means it is unhelpful to speak in terms of a range of sentences, or a tariff, for a particular form of manslaughter: Leung v R [2014] NSWCCA 336 at [120]; R v Wood [2014] NSWCCA 184 at [56]. Sentencing statistics for manslaughter cases are of such limited assistance to sentencing judges that they should be avoided: R v Wood at [59]. Although, in Robertson v R [2015] NSWCCA 251, Basten JA said such statistics (and comparable cases) should be approached cautiously: at [18]–[23].

In Chandler v R [2023] NSWCCA 59, a sentence appeal for an offence of manslaughter (using a motor vehicle), N Adams J (Hamill J agreeing; Beech-Jones CJ at CL dissenting), in determining a sentence manifestly excessive, had regard to such sentencing statistics as well as those for the offence of murder where the weapon was a motor vehicle (in addition to comparable cases): at [101]–[107], [112], [118], [124]–[126], [128]. In Paterson v R [2021] NSWCCA 273 at [42]–[49], the Court also had regard to sentencing statistics (and comparable cases) in the determination of a sentence appeal for manslaughter.

In Simpson v R, the court held that the sentencing statistics in relation to sexual assault offences under s 61I were also of little value as they did not disclose which aggravating factors were present in those cases, nor what discounts were applied, nor the circumstances of each case: [39]–[41]. Similarly, in Alenezi v R [2023] NSWCCA 283, the court found the sentencing statistics relied upon by the offender, which were limited by the use of filters, and the “range” derived from them, excluded a number of cases which provided a reasonable basis of comparison: [45], [57].

Aggregate sentences and JIRS statistics

The applicant in Knight v R [2015] NSWCCA 222 was convicted of multiple counts of knowingly taking part in the supply of prohibited drugs contrary to s 25(1) Drug Misuse and Trafficking Act 1985. It was an inherent flaw to use the Judicial Commission sentencing statistics based on the principal offence to assert that an aggregate sentence was manifestly excessive: Knight v R at [13], [88]; Tweedie v R [2015] NSWCCA 71 at [47]. The Judicial Commission sentencing statistics (at the time) did not extend to aggregate sentences or to a number of different sentences that overlap: R v Chidiac [2015] NSWCCA 241at [41]; Knight v R at [8], [87], [88]; Sparkes v R [2015] NSWCCA 203 at [30]. But now see “Explaining the Statistics” in relation to aggregate sentences.

Additionally, in Knight v R, the applicant was seeking to compare his aggregate non-parole period (for four offences of supply) with the non-parole periods displayed in the statistics — which were non-parole periods referable either to a single s 25(1) offence or a s 25(1) offence which was the principal offence in a multiple offence sentencing exercise where all sentences were ordered to be concurrent: Knight v R at [11].

Selecting the statistical variable “multiple offences” was of no real utility where an offender is sentenced for multiple counts of the same offence because “multiple offences” does not limit the database to multiple instances of the same offence. It includes instances where there was one or more offences of any type: Knight v R at [7]. Knight v R was referred to by Bell and Gageler JJ in The Queen v Pham (2015) 256 CLR 550 at [49].

Further, an approach to a complaint of manifest excess involving consideration of the “undiscounted aggregate” sentence is contrary to principle as discounts are applied to indicative, not aggregate, sentences: Sharma v R [2022] NSWCCA 190 at [72].

[10-025] Necessity to refer to “Explaining the statistics” document

Last reviewed: August 2023

Where JIRS statistics are used by either party it is essential that reference is also made to the “Explaining the statistics” document (found at the top of the Statistics page on JIRS). This document explains how JIRS statistics are compiled. R A Hulme J in Why v R [2017] NSWCCA 101 at [60]–[61], [64] emphasised the need for the parties to refer to the “Explaining the statistics” document on JIRS:

Quite a deal has been said in judgments of this Court in recent years about the care which needs to attend the use of sentencing statistics provided by the Judicial Commission of New South Wales. Walton J has referred to those which discuss statistics in the context of aggregate sentencing [Cross reference omitted.]

In Knight v R [2015] NSWCCA 222 at [13] I wrote … “if [statistics] are to be relied upon, it is necessary that counsel ensure that the limits of their utility are properly understood”. Earlier (at [8]) I said:

Available on the opening page of the statistics section of the Judicial Commission’s website is a hyperlink to a document: ’Explaining the Statistics’. It contains an explanation of the counting methods employed and the variables that may be selected to refine the statistics.

The sentencing statistics can be a very valuable tool if properly understood and used appropriately. Once again, I can only implore practitioners to read the “Explaining the Statistics” document before relying upon statistics in any court, including this Court.

[10-026] Enhancements to JIRS statistics

Last reviewed: March 2024

JIRS statistics can be utilised to provide comparable cases that may be of assistance to the sentencing court. In response to the decision in Hili v The Queen (2010) 253 CLR 58, the higher courts’ sentencing statistics on JIRS were enhanced by a new feature allowing users to access further information behind each sentencing graph and isolate offender and offence characteristics relevant to the offender currently being sentenced. The new feature provides sentencing information to explain why the sentence was passed or, as the High Court put it in Hili v The Queen at [18], to have “proper regard not just to what has been done in other cases but why it was done” [emphasis in original].

The enhancements also facilitate compliance by sentencing courts with proposition (7) in The Queen v Pham (2015) 256 CLR 550 at [28] and the principle outlined by the plurality of that case that “intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available”: The Queen v Pham at [29].

The JIRS statistics include the following information:

  • registry file number

  • a link to a summary of the CCA judgment, the judgment (whether it is a Crown appeal or severity appeal) and where there is a CCA judgment a link to the first instance remarks if they are available

  • offence date

  • sentence date (either at first instance or the re-sentencing date on appeal)

  • the offender’s characteristics listed in summary form including: the number of offences (one/any additional offences); whether a Form 1 was taken into account; the offender’s prior record, plea, age and the penalty that was imposed

  • the precise overall or effective sentence and the overall non-parole period.

R A Hulme J in Why v R [2017] NSWCCA 101 at [62]–[63] made reference to the enhancements:

The Judicial Commission has provided enhancements to the statistics in recent times, partly in response to what the High Court has said in cases such as Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 and The Queen v Pham [2015] HCA 39; 256 CLR 550. They include the provision of statistics for “Aggregate/Effective” terms of sentence and non-parole periods. But there are limitations on the utility of these.

Another enhancement is the provision of further information about individual cases which make up the database. Sometimes it is limited but where published judgments are available there is a very helpful hyperlink to them (and sometimes to summaries of them). It is, unfortunately, rarely apparent in this Court that counsel who are relying upon the statistics have made use of this facility.

[10-027] Recent changes to JIRS statistics

Last reviewed: August 2023

The following changes have been made to JIRS sentencing statistics in light of recent Court of Criminal Appeal decisions referred to below. For the NSW higher courts, the menu option variable “Multiple offences” has been removed from the sentencing statistics viewer as the variable included offences of any type and any number and was considered to be too broad by the court in Knight v R [2015] NSWCCA 222 at [7]. In other cases the multiple offences variable was misunderstood, see R v Wright [2017] NSWCCA 102 at [52] where the parties assumed “multiple” referred only to multiple offences of the specific offence charged.

The “View” menu, which provided the “Median” and the “80% Range” options, has been removed from the sentencing statistics viewer for all NSW courts. Constructive feedback from users suggested that those features lacked utility and could be potentially open to misinterpretation. See also the statements concerning the use of medians in sentencing in Wong v The Queen (2001) 207 CLR 584 at [66] and Harper v R [2017] NSWCCA 159 at [34]. In the latter case, the applicant’s submission relied upon an underlying premise that the median represents the sentences impose for the middle range offences. In the absence of providing anything about the facts of the cases, the premise was not accepted.

[10-030] Uncharged acts

Last reviewed: May 2024

Representative charges

Although uncharged criminal conduct cannot generally be taken into account on sentence (see [1-500] De Simoni principle), in some cases, the court is required to sentence for “representative charges”, that is, charges which are representative of the total misconduct of the offender, including uncharged acts: R v JCW [2000] NSWCCA 209. This does not infringe the principle that a person should not be punished for a crime for which they have not been convicted: R v JCW per Spigelman CJ at [68], applying Siganto v The Queen (1998) 194 CLR 656.

Generally, uncharged acts cannot be taken into account as a circumstance of aggravation or to increase an otherwise proper sentence: R v JCW [2000] NSWCCA 209 per Spigelman CJ at [68]; MJL v R [2007] NSWCCA 261 at [15]; Fisher v R [2008] NSWCCA 129 at [19] (see below at Increasing objective seriousness). An exception to this is where the offender has made an admission to the uncharged conduct: R v JCW [2000] NSWCCA 209 per Spigelman CJ at [55]–[56]. Further, the overall history of the conduct from which the representative charges have been selected may be considered to understand the relationships between the parties, to exclude any suggestion the offences charged were of an isolated nature, and to inform the degree of leniency to be extended to the offender.

In R v JCW there was an express admission by the offender that the particular counts with respect to daughter DW were “representative”. That admission extended to an admission of the general nature of the relationship as set out in the uncontested evidence of DW, but this admission did not extend to any of the specific allegations contained in DW’s evidence. Chief Justice Spigelman at [68] said:

An admission of this general character is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence. It is not, however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all.

Where the offender has committed an offence of persistent child sexual abuse under s 66EA Crimes Act, they are sentenced in the same way for the representative counts as existed before the creation of the offence. Parliament did not intend to create a harsher sentencing regime for representative counts constituting a s 66EA offence: R v Fitzgerald (2004) 59 NSWLR 493.

See further Sexual assault at [20-840].

Increasing objective seriousness

Notwithstanding the above, evidence of earlier uncharged acts may be relied upon in sentencing to demonstrate (and increase) the objective seriousness of the charged offence: LN v R [2020] NSWCCA 131 at [41] (per Basten JA; RA Hulme J agreeing; Hamill J dissenting).

The decision of The Queen v De Simoni (1981) 194 CLR 656 (see [1-500] De Simoni principle) was distinguished as the uncharged acts formed the context to a more serious offence: [40].

Basten JA stated at [40], [54]:

[The principle in De Simoni] should not be applied without qualification to sentencing for the most serious offence, only because the surrounding circumstances and events, although capable of constituting separate offences, have not been the subject of separate charges. It would, of course, be an error to sentence the person for an uncharged offence, but it does not follow that conduct which might constitute an uncharged offence cannot be taken into account in sentencing for a more serious offence.

So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender’s interests must be established beyond reasonable doubt.

The sentencing judge in LN v R, in dealing with the applicant’s murder of his three-year-old son, took into account the applicant’s sustained physical, psychological and verbal abuse over a seven-week period leading up to the assault resulting in the child’s death. The majority in LN v R noted the victim was mentally and physically weakened by the prior acts of abuse which had a causal link to the death, as the actual violence required to cause death was lessened by the child being in a weakened state and, accordingly, the judge did not err by taking the uncharged earlier acts of violence into account: [59]–[60].

LN v R has been cited with approval in Ragg v R [2022] NSWCCA 150 at [39]–[46] (Beech-Jones CJ at CL; N Adams and Lonergan JJ agreeing); DPP (NSW) v TH [2023] NSWCCA 81 at [24] (Beech-Jones CJ at CL; Garling and Yehia JJ agreeing); GL v R [2022] NSWCCA 202 at [116] (Hamill J; Brereton JA and Garling J agreeing); TL v R [2020] NSWCCA 265 (Bellew J; Hoeben CJ at CL and Adamson J agreeing); and Turner v R [2021] NSWCCA 5 (Garling J; Payne JA and Davies J agreeing).

Other examples of where uncharged acts may be taken into account to inform some relevant feature of the charged offending conduct include to establish:

  • the offender’s state of mind in respect of the charged offences (Giles v DPP (NSW) [2009] NSWCCA 308; Einfeld v R [2010] NSWCCA 87; Ross v R [2016] NSWCCA 176);

  • the offender’s position within the hierarchy of a drug syndicate in respect of the charged drug offences (Lago v R [2015] NSWCCA 296; Mezher v R [2019] NSWCCA 76);

  • the offender’s awareness of a victim’s vulnerability in respect of the charged offences (LN v R at [159]; see also Ragg v R at [44]); and

  • an offence was not an isolated incident or aberration (see Sexual assualt at [20-840]); and

  • the offending was part of a sustained course of criminality (Turner v R at [46]).

[10-040] Premeditation and planning

Last reviewed: August 2023

At common law the degree of premeditation or planning has long been recognised as a factor in weighing the seriousness of an offence: R v Morabito (unrep, 10/6/92, NSWCCA) at 86. It permits a court to treat the conduct as a more serious example of the offence charged than would otherwise be the case. Conversely, offences which are unplanned, impulsive, opportunistic and committed spontaneously are generally regarded as less serious than those that are planned: R v Mobbs [2005] NSWCCA 371 at [50]. A court is not entitled to make a finding that an offence was planned when such an adverse finding is not open: BIP v R [2011] NSWCCA 224 at [50].

Although intoxication is not a matter in mitigation, an offender’s intoxication may be an indication that the offence was impulsive and unplanned: Waters v R [2007] NSWCCA 219 at [38] with reference to Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [273]; see LB v R [2011] NSWCCA 220 at [42].

The armed robbery guideline in R v Henry at [162] refers to the circumstance of a “a limited degree of planning” (see Robbery at [20-250]). Planning is also referred to as a factor in the break, enter and steal guideline (see Break and enter offences at [17-020] and cases at [17-070]). For fraud offences a distinction has been drawn between offences where there has been planning with a degree of sophistication and those committed on impulse: see R v Araya [2005] NSWCCA 283 at [96]; R v Tadrosse (2005) 65 NSWLR 740; Golubovic v R [2010] NSWCCA 39 at [23]. In such cases, general deterrence is an important factor in sentencing: R v Pont [2000] NSWCCA 419 at [43].

See discussion in Fraud offences at [19-970] and [19-990].

Planning is referred to as an aggravating factor under s 21A(2)(n) (see [11-190]). The terms of s 21A(2)(n) conveys more than simply that the offence was planned: Fahs v R [2007] NSWCCA 26 at [21]. It is only when the particular offence is part of a more extensive criminal undertaking that [s 21A(2)(n)] is engaged”: Williams v R [2010] NSWCCA 15, per McClellan CJ at CL at [20]. Where the offence was not planned it can be considered as a mitigating factor under s 21A(3)(b) (see [11-220]). This binary approach in s 21A to matters such as planning has been criticised on the basis that “[c]ategories of aggravating and mitigating factors are … not readily separable”: Einfeld v R [2010] NSWCCA 87 at [72].

See further the application of s 21A(2)(n) and (3)(b) at [11-190] and [11-220] respectively.

[10-050] Degree of participation

Last reviewed: August 2023

Where more than one offender is involved in the commission of an offence, a consideration of sentencing is the degree of participation of the offender in the offence: Lowe v The Queen (1984) 154 CLR 606 per Gibbs CJ at 609; R v Pastras  (unrep, 5/3/93, VSC). See also Co-offenders with joint criminal liability at [10-807].

The application of this principle to robbery is discussed in Robbery at [20-270] and its application to drugs is discussed in Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-870].

An offender’s criminal liability may be based on joint enterprise or extended joint enterprise or as an aider or abettor. For a discussion of the sentencing principles that are applied in the former category see A Dyer and H Donnelly, “Sentencing in complicity cases — Part 1: Joint criminal enterprise”, Sentencing Trends and Issues, No 38, Judicial Commission of NSW, 2009 and for a discussion of the latter category see “Sentencing in complicity cases — Abettors, accessories and other secondary participants (Part 2)”, Sentencing Trends and Issues, No 39, Judicial Commission of NSW, 2010.

See also the discussion in Robbery at [20-290].

[10-060] Breach of trust

Last reviewed: March 2024

Where an offence involves a breach of trust, the court regards it as a significant aggravating factor. For a breach of trust to exist there must be a special relationship between the victim and offender at the time of offending: Suleman v R [2009] NSWCCA 70 at [26]. It is a common feature of many fraud and child sexual assault offences. In the most serious examples these offences are often associated with planning or premeditation and may also involve a course of criminality or periodic criminality that may extend over a lengthy period of time. Generally, persons who occupy a position of trust or authority can expect to be treated severely by the criminal law: R v Overall (unrep, 16/12/93, NSWCCA); R v Hoerler [2004] NSWCCA 184; R v Martin [2005] NSWCCA 190.

Breach of trust is an aggravating factor under s 21A(2)(k): see Section 21A factors at [11-160].

The application of the principle to child sexual assault is discussed in Sexual offences against children at [17-560] and for fraud or dishonesty offences see “Breach of trust” in Fraud offences at [19-970].

[10-070] Impact on the victim

Last reviewed: August 2023

At common law, the impact of an offence on the victim has always been taken into account. It is a matter relevant to assessing the objective seriousness of the offence. A sentencing judge is entitled to have regard to the harm done to the victim as a consequence of the commission of the crime: Siganto v The Queen (1998) 194 CLR 656 at [29]. The court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen, and the application of s 3A(g) (“harm done to the victim and community”) and s 21A(2)(g) (“the injury, emotional harm, loss or damage caused by the offence is substantial”) in a given case are limited by the common law rule: Josefski v R [2010] NSWCCA 41 at [38]. All other things being equal, the greater the harm, the more serious the circumstances of the offence. Care needs to be taken, however, that in giving consideration to the harmful consequences of an offence, the De Simoni principle is not infringed: De Simoni v The Queen (1981) 147 CLR 383.

Where there is sought to be established an impact more deleterious than generally anticipated from the circumstances of the offence (such as an aggravating circumstance) one would generally require evidence supporting that issue: R v Solomon [2005] NSWCCA 158 at [26]; R v Youkhana [2004] NSWCCA 412.

This common law factor is discussed further: Victims and victim impact statements at [12-800]; Section 21A factors at [11-120], [11-210]; and Robbery at [20-290].

Age of victim

Disparity in the offender and victim’s ages may inform the assessment of the objective seriousness of the offence: R v KNL [2005] NSWCCA 260.

The younger the victim, the more serious the criminality: R v BJW [2000] NSWCCA 60 at [21]; MLP v R [2006] NSWCCA 271 at [22]; R v PWH (unrep, 20/2/92, NSWCCA). A child aged 13 years or under is virtually helpless in a family unit when abused by a step-parent, and all too often the child is afraid to inform on the step-parent: R v BJW per Sheller JA at [21].

[10-080] Possibility of summary disposal

Last reviewed: August 2023

In some circumstances the Supreme or District Court can take into account the fact that the offence or offences before the court could have been disposed of in the Local Court: R v Palmer [2005] NSWCCA 349 at [14]–[15]; Bonwick v R [2010] NSWCCA 177 at [43]–[45]; Peiris v R [2014] NSWCCA 58 at [85]. While it is a matter that may be relevant it is not always the case that a lost chance to be dealt with summarily will be a matter of mitigation: R v Doan (2000) 50 NSWLR 115 at [42].

In Bonwick v R at [45], the failure of the sentencing judge to refer to the Local Court limitation on sentence amounted to “an error justifying the intervention”. The prescription of a standard non-parole period for an offence such as indecent assault does not displace the principle: Bonwick v R at [47].

In Baines v R [2016] NSWCCA 132 at [12], Basten JA expressed misgivings about the basis of the principle given that it only operates where the prosecutor has already elected to have the matter dealt with upon indictment, under s 260 Criminal Procedure Act 1986. Basten JA stated at [12]–[13]:

[12] It is doubtful whether there is “a rule of law”; if there is, it should be applied, not “taken into account”. However, what was meant was that there is a factor to be taken into account with varying significance in different contexts. Again, the particular nature of the significance is not articulated, except to suggest that it concerns the subjective circumstances of the offender.

[13] To approach the matter on the basis of a presumptive fetter on the exercise of the court’s sentencing discretion implies a power to review the exercise of prosecutorial discretion in the selection of jurisdiction. As noted in the joint reasons in Magaming v The Queen [(2013) 252 CLR 381 at [20]], “[i]t is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.” To which one might add, and in what court. The court should impose the appropriate sentence for the offence as proved, within the limits of the sentencing court’s jurisdiction and discretion.

Other recent cases have narrowed or confined the application of the principle. A court can only take into account as a mitigating factor the possibility that an offence could have been disposed of summarily in “rare and exceptional” circumstances: Zreika v R [2012] NSWCCA 44 at [83]. It must be clear that the offence ought to, or would have, been prosecuted in the Local Court: Zreika v R at [83]. Johnson J said in Zreika v R at [109]:

Unless [the Court of Criminal Appeal] is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305 at [62]–[67].

An example is where the Crown withdraws an indictable offence following committal or where the offender is found not guilty of a purely indictable offence and the District Court is left with offences which — but for the serious offence — would have been dealt with in the Local Court: Zreika v R at [103]–[104] citing McCullough v R [2009] NSWCCA 94 at [22]–[23] and R v El Masri [2005] NSWCCA 167 at [30]; and see Peiris v R at [4] where the offender was acquitted of an offence charged under s 61J Crimes Act 1900 but found guilty of two counts of indecent assault under s 61M Crimes Act.

The court should give consideration as to whether a reduced maximum penalty would apply in the Local Court: McCullough v R at [22]–[23]. See penalties set out for specific offences in s 268(2) Criminal Procedure Act. Section 268(1A) also provides for a general jurisdictional limit for the Local Court of two years imprisonment. The extent of the criminality is also an important consideration in having regard to the Local Court penalty: Bonwick v R at [43]. The principle does not apply if the offence is too serious to be dealt with in the Local Court even though the magistrate may technically have had jurisdiction: R v Royal [2003] NSWCCA 275 at [38]; R v Hanslow [2004] NSWCCA 163 at [21]. In Peiris v R at [84]–[85] after accepting that the principle applied, the judge had regard to the sentencing patterns and statistics of the Local Court for indecent assault. The court did not prohibit such an approach but held that the manner the statistics had been interpreted and used by the judge disclosed a material error: Peiris v R at [89].

Where the court takes the factor into account, the sentence to be imposed is not limited to the two-year jurisdictional limit of the Local Court and there is no obligation to indicate in any arithmetical sense how it affected the sentence imposed: SM v R [2016] NSWCCA 171 at [24], [27]; R v Palmer at [15(a)]. In SM v R, the court said at [26]:

As explained in Baines v R, there has been little explanation in the caselaw as to precisely how the possibility that the matter could have been dealt with in the Local Court should be taken into account. If, as in the present case, the sentencing judge is satisfied that a term of imprisonment exceeding 2 years is required, the fact that the prosecutor might have taken a different view would not appear to be a relevant consideration.

However, in an appeal to the Court of Criminal Appeal against sentence, the court in Zreika v R held at [83] the fact that an offender’s legal representative does not raise the issue in the District Court is “a very practical barometer as to whether such an argument was realistically available”. In determining whether the factor was taken into account, although not explicitly mentioned, the experience of the judge is a relevant matter: Hendra v R [2013] NSWCCA 151 at [18].

In Baines v R [2016] NSWCCA 132, the court found the fact the charges could all have been dealt with in the Local Court was of no significance in circumstances where criminal liability was in issue. Liability in that case turned upon acceptance of the evidence of several female complainants and it was within the discretionary judgment of the Director of Public Prosecutions to elect that these issues be tried by jury: Baines v R at [133].

A failure of the sentencing judge to mention the matter does not constitute error: R v Jammeh [2004] NSWCCA 327 at [28] but see Bonwick v R at [45].

[10-085] Relevance of less punitive offences

Last reviewed: August 2023

There is no common law principle that a court is required to take into account, as a matter in mitigation, a lesser offence (with a lower maximum penalty) that the prosecution could have proceeded upon: Elias v The Queen (2013) 248 CLR 483 at [5], [25]; Pantazis v The Queen [2012] VSCA 160 at [43] overruled. The so-called Liang principle (R v Liang and Li (unrep, 27/7/95, VCA), which permitted such a course, is said to be premised on the idea that the prosecution’s selection of the charge should not constrain a court’s sentencing discretion and require it to impose a heavier sentence than what is appropriate: Elias v The Queen at [26]. It is wrong to suggest that the court is constrained by the maximum penalty: Elias v The Queen at [27]. It is one of many factors that the sentencing court takes into account in the exercise of the sentencing discretion designed to attain individualised justice: Elias v The Queen at [27]. The Liang approach, of reducing a sentence for an offence to take account of a lesser maximum penalty for a different offence, “does not promote consistency” in sentencing for an offence and is inconsistent with the separation of the prosecutorial and judicial functions: Elias v The Queen at [29], [33], [34].

The holding in Elias v The Queen supports the view of the NSWCCA that a sentence imposed in the exercise of State judicial power on conviction for the State offence is not to be reduced to conform to a lesser maximum penalty applicable to a Commonwealth offence: R v El Helou [2010] NSWCCA 111 at [90]; Standen v DPP (Cth) [2011] NSWCCA 187 at [29].