Sentencing Bench Book
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Particular offences, appeals and other Acts
Table of Contents
Particular offences
Break and enter offences
[17-000]
The statutory scheme
[17-010]
Break, enter and commit serious indictable offence: s 112(1)
[17-020]
Break, enter and steal: s 112(1)
[17-025]
Totality and break and enter offences
[17-030]
Summary disposal
[17-040]
Aggravated and specially aggravated break, enter and commit serious indictable offence
[17-050]
The standard non-parole period provisions
[17-060]
Application of the De Simoni principle
[17-070]
Application of s 21A to break and enter offences
[17-080]
Double punishment — Pearce v The Queen (1998) 194 CLR 610 at 614
Sexual offences against children
[17-400]
Change in community attitudes to child sexual assault
[17-410]
Sentencing for historical child sexual offences
[17-420]
Statutory scheme in the Crimes Act 1900 (NSW)
[17-430]
Standard non-parole periods
[17-440]
Section 21A Crimes (Sentencing Procedure) Act 1999
[17-450]
De Simoni principle
[17-460]
Victim impact statements
[17-480]
Sexual intercourse — child under ten: s 66A
[17-490]
Sexual intercourse — child between 10 and 16: s 66C
[17-500]
Maintain unlawful sexual relationship with child: s 66EA
[17-505]
Aggravated sexual assault: s 61J
[17-510]
Aggravated indecent assault: s 61M
[17-520]
Act of indecency: s 61N
[17-530]
Sexual intercourse with child between 16 and 18 under special care: s 73
[17-535]
Procuring or grooming: s 66EB
[17-540]
Child sexual servitude and prostitution
[17-541]
Child abuse/pornography offences
[17-543]
Voyeurism and related offences
[17-545]
Incitement to commit a sexual offence
[17-550]
Intensive correction order not available for a “prescribed sexual offence”
[17-560]
Other aggravating circumstances
[17-570]
Mitigating factors
Dangerous driving, and navigation
[18-300]
Statutory history
[18-310]
The statutory scheme for dangerous driving offences
[18-320]
Guideline judgment
[18-330]
The concepts of moral culpability and abandonment of responsibility
[18-332]
Momentary inattention or misjudgment
[18-334]
Prior record and the guideline
[18-336]
Length of the journey
[18-340]
General deterrence
[18-350]
Motor vehicle manslaughter
[18-360]
Grievous bodily harm
[18-365]
Victim impact statements
[18-370]
Application of the De Simoni principle
[18-380]
Mitigating factors
[18-390]
Other sentencing considerations
[18-400]
Totality
[18-410]
Licence disqualification
[18-415]
Failure to stop and assist
[18-420]
Dangerous navigation
[18-430]
Application of the guideline to dangerous navigation
Detain for advantage/kidnapping
[18-700]
Section 86 Crimes Act 1900
[18-705]
Attempts to commit the offence
[18-715]
Factors relevant to the seriousness of an offence
[18-720]
Elements of offence and s 21A factors not to be double counted
[18-730]
Joint criminal enterprise and role
Drug Misuse and Trafficking Act 1985 (NSW) offences
[19-800]
Introduction
[19-810]
Offences with respect to prohibited plants
[19-820]
Manufacture
[19-830]
Supply
[19-835]
Supply and the imposition of full-time custody
[19-840]
Section 25(2) — The standard non-parole period
[19-850]
Ongoing supply
[19-855]
Section 26 — Conspiracy offence
[19-860]
Supplying to undercover police
[19-870]
Other factors relevant to objective seriousness
[19-880]
Subjective factors
[19-890]
Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999
Fraud offences
[19-930]
Summary of relevant considerations
[19-932]
Introduction
[19-935]
The NSW statutory framework
[19-940]
General sentencing principles for NSW fraud offences
[19-970]
Objective seriousness — factors of common application to fraud
[19-980]
Section 21A Crimes (Sentencing Procedure) Act 1999
[19-990]
Aggravating factors
[20-000]
Mitigating factors
[20-010]
The relevance of a gambling addiction
[20-020]
Totality
[20-035]
Fraud offences — ss 192E–192H Crimes Act 1900
[20-037]
Identity crime offences — ss 192J–192L Crimes Act 1900
[20-038]
Forgery offences — ss 253–256 Crimes Act 1900
[20-039]
Larceny by clerk or servant — s 156 Crimes Act 1900
[20-045]
The Commonwealth statutory framework
[20-050]
Relevance of NSW fraud principles and comparative cases for federal matters
[20-055]
Statutory factors under s 16A(2) Crimes Act 1914 (Cth)
[20-060]
General sentencing principles for federal offending
[20-065]
Types of Commonwealth fraud
Offences against justice/in public office
[20-120]
Introduction
[20-130]
Purposes of punishment — general deterrence and denunciation
[20-140]
Offences against justice committed by public officials
[20-150]
Interference in the administration of justice: Pt 7 Div 2
Crimes Act
1900
[20-155]
Common law contempt of court
[20-158]
Disrespectful behaviour in court
[20-160]
Interference with judicial officers, witnesses, jurors etc: Pt 7 Div 3 Crimes Act 1900; s 68A Jury Act 1977
[20-170]
Perjury, false statements etc: Pt 7 Div 4 Crimes Act 1900; ICAC Act 1988; Police Integrity Commission Act 1996; Crime Commission Act 2012
[20-180]
Other corruption and bribery offences: Pt 4A Crimes Act 1900; s 200 Police Act 1990; common law bribery
[20-190]
Common law offence of misconduct in public office
[20-195]
Resisting/hindering/impersonating police
Robbery
[20-200]
The essence of robbery
[20-210]
The statutory scheme
[20-215]
The Henry guideline judgment for armed robbery
[20-220]
Robbery or assault with intent to rob or stealing from the person: s 94
[20-230]
Robbery in circumstances of aggravation: s 95
[20-240]
Robbery in circumstances of aggravation with wounding: s 96
[20-250]
Robbery etc or stopping mail, being armed or in company: s 97(1)
[20-260]
Robbery armed with a dangerous weapon: s 97(2)
[20-270]
Robbery with arms and wounding: s 98
[20-280]
Demanding property with intent to steal: s 99
[20-290]
Objective factors relevant to all robbery offences
[20-300]
Subjective factors commonly relevant to robbery
Car-jacking and car rebirthing offences
[20-400]
Car-jacking offences
[20-420]
Car rebirthing offences
Sexual assault
[20-600]
Statutory scheme in Crimes Act 1900
[20-604]
Change in community attitudes to sexual assault and harm
[20-610]
Effect of increase in maximum penalties
[20-620]
Standard non-parole period sexual assault offences
[20-630]
Assessing objective gravity of sexual assault
[20-640]
Sexual intercourse without consent: s 61I
[20-645]
Consent must be addressed when in issue
[20-650]
De Simoni principle and s 61I
[20-660]
Aggravated sexual assault: s 61J
[20-670]
Aggravated sexual assault in company: s 61JA
[20-680]
Assault with intent to have sexual intercourse: s 61K
[20-690]
Indecent assault
[20-700]
Sexual assault procured by intimidation, coercion and other non-violent threats
[20-710]
Victim with a cognitive impairment: s 66F
[20-720]
Sexual assault by forced self-manipulation: s 80A
[20-730]
Incest
[20-740]
Bestiality
[20-750]
Intensive correction order not available for a “prescribed sexual offence”
[20-760]
Other aggravating circumstances
[20-770]
Mitigating circumstances
[20-775]
Factors which are
not
mitigating at sentence
[20-780]
Sentencing for offences committed many years earlier
[20-790]
Utility of sentencing statistics
[20-800]
Victim impact statements
[20-810]
Section 21A Crimes (Sentencing Procedure) Act 1999
[20-820]
Totality and sexual assault offences
[20-830]
Circumstances of certain sexual offences to be considered in passing sentence: s 61U
[20-840]
Use of evidence of uncharged criminal acts at sentence
Murder
[30-000]
Introduction
[30-010]
Relative seriousness of the categories of murder
[30-020]
Standard non-parole periods
[30-025]
Provisional sentencing of children under 16
[30-030]
Life sentences
[30-040]
Aggravating factors and cases that attract the maximum
[30-045]
Relevance of motive
[30-047]
Murders committed in a domestic violence context
[30-050]
Rejection of defences to murder
[30-070]
Joint criminal enterprise
[30-080]
Accessories
[30-090]
Conspiracy/solicit to murder: s 26 Crimes Act 1900
[30-095]
Cause loss of foetus (death of pregnant woman)
[30-100]
Attempted murder
[30-105]
Conceal corpse
Manslaughter and infanticide
[40-000]
Introduction
[40-010]
Categories of manslaughter
[40-020]
Killing of children by parents or carers
[40-030]
Motor vehicle manslaughter
[40-040]
Discount for rejected offer to plead guilty to manslaughter
[40-050]
Joint criminal enterprise
[40-060]
Accessories after the fact to manslaughter
[40-070]
Infanticide
[40-075]
Cause of loss of foetus (death of pregnant woman)
Assault, wounding and related offences
[50-000]
Introduction and statutory framework
[50-020]
Offences of personal violence generally viewed seriously
[50-030]
The De Simoni principle
[50-040]
Factors relevant to assessment of the objective gravity of a personal violence offence
[50-050]
Common assault: s 61
[50-060]
Assault occasioning actual bodily harm: s 59
[50-070]
Recklessly causing grievous bodily harm or wounding: s 35
[50-080]
Wound or inflict grievous bodily harm with intent to do grievous bodily harm or resist arrest: s 33
[50-085]
Assault causing death: s 25A
[50-090]
Use weapon/threaten injury to resist lawful apprehension: s 33B
[50-100]
Choking, suffocating and strangulation: s 37
[50-110]
Administer intoxicating substance: s 38
[50-120]
Assaults etc against law enforcement officers and
frontline emergency and health workers
[50-125]
Assaults etc against persons who aid law enforcement officers, and other offences
[50-130]
Particular types of personal violence
[50-140]
Common aggravating factors under s 21A and the common law
[50-150]
Intoxication
[50-160]
Common mitigating factors
Firearms and prohibited weapons offences
[60-000]
Introduction
[60-010]
Offences under the Firearms Act 1996
[60-020]
Principles and objects of the Act
[60-025]
Definitions
[60-030]
Unauthorised possession or use: ss 7(1), 7A(1) and 36(1)
[60-040]
Assessing the objective seriousness of possession/use
[60-045]
Section 50A: unauthorised manufacture of firearms
[60-050]
Section 51D: possession of more than three firearms
[60-052]
Supply and acquisition of firearms
[60-055]
Other miscellaneous offences
[60-060]
Prohibited weapons offences under Weapons Prohibition Act 1998
[60-070]
Firearms offences under the Crimes Act 1900
Damage by fire and related offences
[63-000]
The statutory scheme
[63-010]
Destroying or damaging by fire
[63-012]
Section 197: dishonestly destroy or damage property and the De Simoni principle
[63-015]
Section 198: intention to endanger life and the De Simoni principle
[63-020]
Bushfires
Domestic violence offences
[63-500]
Introduction
[63-505]
Statutory framework
[63-510]
Sentencing approach to domestic violence
[63-515]
Apprehended violence orders
[63-518]
Impact of AVO breaches on sentencing
[63-520]
Stalking and intimidation
[63-540]
Abusive behaviour towards intimate partners
Commonwealth drug offences
[65-100]
Criminal Code offences
[65-110]
The requirements of s 16A Crimes Act 1914 (Cth)
[65-130]
Objective factors relevant to all Commonwealth drug offences
[65-140]
Subjective factors
[65-150]
Achieving consistency
Money laundering
[65-200]
The Commonwealth statutory scheme
[65-205]
Breadth of conduct caught
[65-210]
Sentencing range
[65-215]
The application of the De Simoni principle to the statutory scheme
[65-220]
General deterrence
[65-225]
Factual findings as to role and what the offender did
[65-230]
Relevance of offender’s belief and fault element
[65-235]
Other factors
[65-240]
Character
[65-245]
Relevance of related offences
[65-250]
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Conspiracy
[65-300]
Introduction
[65-320]
Overt acts in furtherance of the conspiracy
[65-340]
Yardstick principle — maximum penalty for substantive offence
[65-360]
Role of the offender
[65-380]
Standard non-parole period provisions
[65-400]
NSW statutory conspiracy offences
[65-420]
Commonwealth conspiracy offences