Objective factors (cf s 21A(1))

[10-000] Maximum penalty

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. It is not always the case that a sentence imposed by reference to a wrong maximum necessarily requires the court to resentence: Des Rosier v R (2006) 159 A Crim R 549 at [20], citing R v O’Neill [2005] NSWCCA 353 and R v Tadrosse (2005) 65 NSWLR 740. An erroneous statement as to the maximum penalty does not, of itself, warrant another sentence in law: Smith v R [2007] NSWCCA 138 at [34]; 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 (1996) 90 A Crim R 519 at 524.

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) 161 A Crim R 300 at [73]–[74].

Maximum penalties and the jurisdiction of the Local Court

Magistrates must not regard the jurisdictional limit of their court 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”.

[10-005] Cases that attract the maximum

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].

[10-010] Proportionality

Common law

The common law has long recognised that the punishment must fit the crime. 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

The principle of proportionality “finds statutory expression” in s 3A Crimes (Sentencing Procedure) Act through one of the purposes of punishment — “to ensure that an offender is adequately punished”: R v Scott [2005] NSWCCA 152 per Howie J at [15]; R v Rayment (2010) 200 A Crim R 48 at [112], [156].

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: 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 Dodd (1991) 57 A Crim R 349 at 354 and R v Whyte (2002) 55 NSWLR 252 at [156]–[158].

At common law, the term “objective circumstances” was used to describe the circumstances of the crime: see for example, R v McNaughton (2006) 66 NSWLR 566 at [15] (quoted below). The gravity of the offence was assessed by reference to its objective seriousness. In R v Dodd, the court (Gleeson CJ, Lee CJ at CL and Hunt J) referred to R v Geddes (1936) 36 SR (NSW) 554 at 556, where Jordan CJ spoke of the need for a reasonable proportionality between a sentence and the circumstances of the crime. This is achieved by having regard 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”. 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]). In a five-judge bench decision of R v McNaughton at [15], Spigelman CJ described the proportionality principle in the following terms:

It is authoritatively established that the common law principle of proportionality, propounded in Veen v The Queen (No 2), requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]–[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires.

Chief Justice Spigelman (the other justices agreeing) held at [24] that “the objective circumstances of the offence … do not encompass [the offender’s] prior convictions”.

The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; R v Moon (2000) 117 A Crim R 497 at 510; R v Way (2004) 60 NSWLR 168 at [77]; Hello v R [2010] NSWCCA 311 at [25]. In BW v R (2011) 218 A Crim R 10 at [70], Whealy JA said that this assessment will:

… generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie.

In very serious cases, the court will consider whether the maximum penalty should be imposed.

Taking into account the absence of a circumstance which, if present, would render the subject offence a different offence is irrelevant to, and likely to distort, the assessment of objective gravity: Nguyen v The Queen (2016) 90 ALJR 595 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].

See Maximum penalty above at [10-000] and Mandatory life sentences under s 61 at [8-600].

Objective seriousness findings

The High Court held in Muldrock v The Queen (2011) 244 CLR 120 at [27] that “objective seriousness” of a standard non-parole period offence as referred to in s 54A(2) Crimes (Sentencing Procedure) Act is to be determined wholly by reference to the offending without reference to matters personal to the offender or class of offenders. But a court is not required to assess whether a standard non-parole offence falls in the middle range of objective seriousness: at [25]. There is no “need to classify the objective seriousness of the offending”: at [29].

See Special Bulletin 5 as to the position following the enactment of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013. In essence, the amending Act affirmed Muldrock v The Queen. The Court of Criminal Appeal had held, before the decision of Muldrock v The Queen (when a middle of the range finding was required), that for offences which are not subject to a standard non-parole period the court should generally not make findings of where the offence lies in relation to a mid-range of objective seriousness: Sivell v R [2009] NSWCCA 286 at [5] and [32]; R v Field [2011] NSWCCA 13 at [49]; Georgopolous v R [2010] NSWCCA 246 Allsop P at [3]; per Howie AJ at [30].

Requirement to assess objective seriousness remains post-Muldrock

Although the court is not required to assess the objective gravity of a standard non-parole period offence by reference to notional offences in the mid-range of objective seriousness (see s 54A(6)), proper attention should still be paid to the objective seriousness of the particular offence under consideration: R v Campbell [2014] NSWCCA 102 at [27]. An assessment of the objective seriousness of an offence is a critical component of the sentencing process and a mere recitation of the facts of an offence will not satisfy the requirements of that process: R v Van Ryn [2016] NSWCCA 1 at [133], [134]; R v Cage [2006] NSWCCA 304 at [17].

See 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

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) 164 A Crim R 126 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

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 [16-002].

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 at [17-000]ff.

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

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]:

(1)

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

(2)

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

(3)

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

(4)

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

(5)

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.

(6)

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.

(7)

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) 129 A Crim R 126 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) 149 A Crim R 505 at [98]–[100]; R v Mungomery (2004) 151 A Crim R 376 at [5]; R v Araya (2005) 155 A Crim R 555 at [67]–[71]. Thus, in RCW v R (No 2) (2014) 244 A Crim R 541, 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) 149 A Crim R 39 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) 218 A Crim R 10 at [61]; R v Vongsouvanh [2004] NSWCCA 158 at [38]; CW v R [2011] NSWCCA 45 at [131]. In R v Hoerler (2004) 147 A Crim R 520 at [41]; Abbas v R [2014] NSWCCA 188 at [38]–[42]; R v Loveridge (2014) 243 A Crim R 31 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

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]; 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) 209 A Crim R 218 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 at [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 as it currently stands 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:

(i) 

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][;]

(ii) 

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];

(iii) 

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;

(iv) 

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] 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;

(v) 

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; (2013) 229 A Crim R 198 at [75].

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]. 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) 240 A Crim R 114 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.

In Peiris v R, the court held that it was an error for the sentencing judge to rely on statistics and rates of imprisonment derived from sentences imposed in the Local Court for the purpose of determining an appropriate sentence for a matter dealt with in the District Court, despite the fact that the proceedings could well have been disposed of in the Local Court. 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 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) 244 A Crim R 501 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].

In Simpson v R [2014] NSWCCA 23, the court held at [41] that the Judicial Commission’s statistics in relation to offences under s 61I were also of little value. The statistics failed to disclose the aggravating factors for each case of which there were many in the case before the court: Simpson v R at [31], [35], [37], [39].

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 at [49].

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

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

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 now provides the following additional 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

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] Isolated incidents and offences not charged

In sentencing for certain types of charges, such as sexual assault or fraud, the sentencing judge may consider evidence by which the true nature of the offence(s) charged may be judged, including evidence of past and future events not the subject of charges. This does not apply to events significantly later in time or of a type different from those charged. For such evidence to be taken into account there must be an admission to the commission of other offences or an admission that the offences were representative: R v JCW (2000) 112 A Crim R 466 per Spigelman CJ at [55]–[56].

In these circumstances the charges before the court have been described as “representative charges”, that is, representative of the total misconduct. Such evidence is admissible not to increase an otherwise proper sentence but only to rebut any suggestion that the charged misconduct was an isolated, spur-of-the-moment lapse, or out of character. Ordinarily, the submission comes from the offender and the Crown adduces evidence to rebut the claim. The line of distinction is often fine: R v Holyoak (1995) 82 A Crim R 502 per Allen J at 509–513, adopting R v Reiner (1974) 8 SASR 102 and R v H (1980) 3 A Crim R 53; compare Hulme J at 515–517 doubting the use of the term “representative” as calculated to lead to the introduction of inadmissible considerations.

This method of taking into account representative counts does not infringe the principle that a person should not be punished for a crime for which he or she has not been convicted. There is a distinction between not increasing a penalty based on aggravation and not granting leniency on account of the fact that the events as charged were not isolated incidents: R v JCW per Spigelman CJ at [68], applying Siganto v The Queen (1998) 194 CLR 656.

Approach to sentencing

The accepted approach when courts are imposing a sentence in respect of “representative” charges to which pleas of guilty have been entered is:

  • that the overall history of the conduct from which the representative charges have been selected may be looked at for purposes of understanding the relationships between the parties

  • to exclude any suggestion that the offences charged were of an isolated nature, and

  • as bearing upon the degree of any leniency the court might be considering in regard to sentencing.

The history should not be used as the basis for sentencing the convicted person for charges other than those in the indictment or as matter of aggravation of those charges: R v D (unrep, 22/11/96, NSWCCA) per Priestley JA; R v EMC (unrep, 21/11/96, NSWCCA). In R v JCW (2000) 112 A Crim R 466 at [3], Spigelman CJ expressed the view that when there are two isolated instances of admitted sexual assault, a lower sentence is called for than if the two assaults were part of a general course of conduct.

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.

In Giles v R (2009) 198 A Crim R 395 (also referred to in Einfeld v R (2010) 200 A Crim R 1 at [145]), the court re-considered the issue of whether uncharged matters can be taken into account not just to rebut a claim that the incidents were isolated, but also to increase the objective seriousness of the offences charged. The applicant’s commission of numerous additional offences similar to those charged was relevant to his state of mind in committing the offences charged: per Basten JA at [67]. The fact that the charged offences constituted part of an ongoing course of conduct placed them in the higher range of objective seriousness: per Basten JA at [68]. Although Basten JA’s reasoning was persuasive, the issue should await determination in an appropriate case: per Johnson J at [102]. There is no basis for qualifying the settled law on the subject: per RS Hulme J at [86].

Where the prisoner has committed an offence of persistent child sexual abuse under s 66EA Crimes Act, he or she is 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].

[10-040] Premeditation and planning

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 (1992) 62 A Crim R 82 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 (above) 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) 155 A Crim R 555 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) 121 A Crim R 302 at [43].

See discussion in Fraud offences in New South Wales 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) 200 A Crim R 1 at [72].

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

[10-050] Degree of participation

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; Pastras v The Queen (1993) 65 A Crim R 584 at 588.

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

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 (1993) 71 A Crim R 170; R v Hoerler (2004) 147 A Crim R 520; 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 in New South Wales at [19-970].

[10-070] Impact on the victim

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) 153 A Crim R 32 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) 154 A Crim R 268.

The younger the victim, the more serious the criminality: R v BJW (2000) 112 A Crim R 1 at [21]; MLP v R (2006) 164 A Crim R 93 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

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) 240 A Crim R 114 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) 223 A Crim R 460 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; 198 A Crim R 549 at 561-562 [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) 194 A Crim R 439 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, 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

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) 217 A Crim R 31 at [43] overruled. The so-called Liang principle (R v Liang and Li (1995) 82 A Crim R 39), 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) 267 ALR 734 at [90]; Standen v DPP (Cth) (2011) 254 FLR 467 at [29].