Sentencing Bench Book — Sentencing procedures generally

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:

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]:

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].

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.

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 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:

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:

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.

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].

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].

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.

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]:

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]:

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].

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]:

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:

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:

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

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.

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.

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].

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].

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].

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]:

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]:

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]:

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].

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].