Section 21A(5AA) provides:

For a discussion of the effect this subsection has on the common law, see Subjective matters at [10-680]ff and Special Bulletin No 6 — Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014. It has effect despite any Act or rule of law to the contrary.

Section 21B Crimes (Sentencing Procedure) Act 1999 provides that a court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing: s 21B(1). The standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing: s 21B(2). These provisions apply to proceedings commenced on or after 18 October 2022: see Crimes (Sentencing Procedure) Amendment Act 2022. Prior to the insertion of s 21B, unless the offence was a child sexual offence (see s 25AA(1) (rep)), the court was required to sentence in accordance with the sentencing patterns and practices existing at the time of the offence: R v MJR (2002) 54 NSWLR 368; see also Sentencing practice after long delay in [10-740] Delay. Section 25AA(1) continues to apply to proceedings commenced from 31 August 2018 to 17 October 2022.

The Crimes Amendment (Sexual Offences) Act 2008 inserted s 24A (effective 1 January 2009). Section 24A(1) provides that, in sentencing an offender, the court must not take into account as a mitigating factor the fact that the offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence.

Section 24A was amended by the Crimes (Sentencing Procedure) Amendment Act 2010 to further provide that the court must not take into account, as a mitigating factor, the fact the offender is prohibited from engaging in child-related employment under the Commission for Children and Young People Act 1998 because of their conviction for a serious sex offence, the murder of a child or a child-related personal violence offence. Such an offender’s status as a “prohibited person” is not extra-curial punishment.

Section 24A was further amended by the Crimes (Serious Sex Offenders) Amendment Act 2013, which commenced on 19 March 2013. Section 24A(1)(d) was inserted to provide that the fact that an offender is subject to an order under the Crimes (High Risk Offenders) Act 2006 must not be taken into account as a mitigating factor. The amendments were a consequence of renaming the Crimes (Serious Sex Offenders) Act as the Crimes (High Risk Offenders) Act 2006 which extended the application of the Act to high risk violent offenders as well as serious sex offenders.

See further discussion of extra-curial punishment in Sexual offences against children at [17-450].

Section 24B prevents a court from taking into account, as a mitigating factor, the consequences of any confiscation or forfeiture order imposed on the offender because of the offence. See R v Hall [2013] NSWCCA 47 for an approach to a drug proceeds order.

The Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 inserted s 24C into the Crimes (Sentencing Procedure) Act 1999 to preclude consideration of loss of parliamentary pension as mitigating factor in sentencing. The amendments have a retrospective effect in the sense that they do not only apply to Members of Parliament convicted forthwith: Sch 1, cl 11A Parliamentary Contributory Superannuation Act 1971. Section 24C was first applied in R v Macdonald [2017] NSWSC 638 at [262].