Other relevant provisions
[11-700] Section 21A(5AA) — special rule for intoxication
Section 21A(5AA) provides:
In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.
The provision is discussed in Subjective matters at [10-680] and [10-690].
[11-710] Section 21B — sentencing patterns and practices
Section 21B Crimes (Sentencing Procedure) Act 1999 provides 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, 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; s 25AA(1) (rep); see also Sentencing practice after long delay in [10-740] Delay. Section 25AA(1) (rep) continues to apply to proceedings commenced from 31 August 2018 to 17 October 2022.
Exceptions to s 21B(1)
Section 21B(3) provides that a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if:
- (a)
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the offence is not a child sexual offence; and
- (b)
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the offender establishes that there are exceptional circumstances.
(See also Delay in [17-450] in Sexual offences against children).
Further, s 21B(4) provides that a court, when varying or substituting a sentence, must do so in accordance with the sentencing patterns and practices at the time of the original sentencing.
[11-720] Section 24A — mandatory requirements for supervision of sex offenders and prohibitions against child-related employment to be disregarded in sentencing
Section 24A(1) provides, when sentencing an offender, the court must not take into account as a mitigating factor the fact the offender:
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has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence: s 24A(1)(a); or
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has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, Crimes (High Risk Offenders) Act 2006 or Terrorism (High Risk Offenders) Act 2017 (s 24A(1)(b), (d), (e) respectively); or
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has become a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012 (s 24A(1)(c)).
See [17-540] Child Protection (Offenders Registration) Act 2000 for a discussion of that scheme. See also Extra-curial punishment in [17-450] in Sexual offences against children.
[11-730] Section 24B — confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing
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.
[11-740] Section 24C — disqualification of parliamentary pension
Section 24C precludes consideration of the loss of a parliamentary pension as a mitigating factor in sentencing. See R v Macdonald [2017] NSWSC 638 at [262] for an example of the provision’s application.