Note:

Unless otherwise specified, references to sections in this chapter are to the Crimes (Sentencing Procedure) Act 1999 (the Act).

Section 3A sets out the following purposes “for which a court may impose a sentence on an offender”:

The High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

Generally, s 3A has been regarded as a codification of the common law principles of sentencing and did not alter common law principles: see Re Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515 at [57]–[60]; R v MA [2004] NSWCCA 92 at [23]; R v King [2004] NSWCCA 444 at [130]; R v MMK [2006] NSWCCA 272 at [10]; Josefski, Shane Stewart v R [2010] NSWCCA 41 at [38]; Sheiles v R [2018] NSWCCA 285 at [17].

It is an appellable error to fail to address the purposes of sentencing at all: R v Stunden [2011] NSWCCA 8 at [112]. A failure to expressly refer to each does not mean that they were not considered: R v Stunden at [113].

For a discussion of the comparison between s 3A and the Commonwealth sentencing considerations in s 16A of the Crimes Act 1914 (Cth), see Chan v R [2023] NSWCCA 206 at [104]ff (in the context of consideration of an intensive correction order and s 66 of the Act).

Given s 3A does not depart from the common law (see above), the starting point for any discussion of the purposes of punishment must be Veen v The Queen (No 2) (1988) 164 CLR 465 where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

In R v Engert (1995) 84 A Crim R 67, the Court noted the complex and intricate interplay of the considerations relevant to sentencing, and determined that sentencing should not be approached as though automatic consequences follow from the presence or absence of particular factual circumstances. Instead, a discretionary decision should be made in the light of the circumstances of the individual case, and purposes of the sentencing exercise: [1]–[2] affirmed in Munda v Western Australia (2013) 249 CLR 600 at [58].

Each of the subsections in s 3A, as well as the concept of retribution, is further discussed in the following paragraphs.

Section 3A(a) incorporates the common law principle of proportionality, in that a sentence must ultimately reflect the objective seriousness of the offence, and there must be reasonable proportionality between the sentence and the circumstances of the crime: R v Scott [2005] NSWCCA 152 at [15] citing R v Dodd (1991) 57 A Crim R 349.

Assessing the objective seriousness of an offence is an essential element of the instinctive synthesis process, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: Zreika v R [2012] NSWCCA 44 at [46]; s 3A(a).

The principle of proportionality operates to guard against the imposition of unduly lenient or unduly harsh sentences, requiring that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: R v McNaughton [2006] NSWCCA 242 at [15]; Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; Hoare v The Queen (1989) 167 CLR 348 at 354; R v Dodd (1991) 57 A Crim R 349; R v Whyte (2002) 55 NSWLR 252 at [156]–[158].

Section 3A(b) incorporates the common law principles of specific and general deterrence, thereby giving effect to the role of the criminal law in deterring the offender, as well as others, who would otherwise consider committing an offence: Weribone v R [2018] NSWCCA 172 at [14], [54]; R v Hamieh [2010] NSWCCA 189 at [63].

The prevalence of an offence is a matter relevant to the significance of general deterrence: R v Eaton [2023] NSWCCA 125 at [71]. General deterrence might also be regarded as important because of the notoriety or high profile of the offender: see, for example, R v Wilhelm [2010] NSWSC 378 at [30] referred to in R v Mauger [2012] NSWCCA 51 at [38].

By enacting s 3A(c), Parliament did not intend to introduce a system of preventative detention contrary to the principles expressed by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465: Aslett v R [2006] NSWCCA 49 at [137].

At common law, it was accepted that the various purposes of punishment were said to achieve the single or main purpose of protecting the community from crime: R v Goodrich (1952) 70 WN (NSW) 42; R v Radich [1954] NZLR 96; R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274; Munda v Western Australia (2013) 249 CLR 600 at [54]. This purpose can be achieved by the imposition of a sentence designed to assist in an offender’s rehabilitation at the expense of deterrence, retribution and denunciation: R v Zamagias [2002] NSWCCA 17 at [32]; see also Stanley v DPP (2023) 278 CLR 1 at [74]; Zheng v R [2023] NSWCCA 64 at [283] regarding an offender’s rehabilitation and community safety considerations under s 66(2) when determining whether to impose an intensive correction order (discussed below at Intensive correction orders and [3-632]).

In Veen v The Queen (No 2), the High Court (per Mason CJ, Brennan, Dawson and Toohey JJ) held that while protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of further offending by the offender: [472]. The Court added at [473]:

Generally, giving substantial weight to general and specific deterrence also furthers community protection, including from the offender: R v Dong [2021] NSWCCA 82 at [44], [48]. However, where there are circumstances making the offender a potential danger and a poor candidate for general and specific deterrence, protecting the community from the offender may require separate and express consideration, albeit consistently with Veen v The Queen (No 2): R v Dong at [48]. In R v Dong, the offender was mentally ill, committed premeditated murder for no apparent motive, had poor prospects of rehabilitation, limited insight into his condition and while in custody had been involved in violence, and had not taken his medication on occasion. In those circumstances, the need to protect the community required express consideration and the judge’s failure to do so was erroneous: at [53]–[54].

For statutory exceptions to the principle prohibiting preventative detention in NSW, see: Habitual Criminals Act 1957, Crimes (High Risk Offenders) Act 2006 and Terrorism (High Risk Offenders) Act 2017. Proclamations under the Habitual Criminals Act are extremely rare: Strong v The Queen (2005) 224 CLR 1. The High Court discussed preventative detention legislation in Australia in Buckley v The Queen (2006) 80 ALJR 605 at [2]; see also Minister for Home Affairs v Benbrika (2021) 272 CLR 68, where the court considered the continuing detention order scheme in Div 105A of the Criminal Code Act 1995 (Cth) for Commonwealth terrorism offenders.

An offender’s prior criminal record is a powerful factor when considering retribution, personal deterrence and community protection: R v Baxter [2005] NSWCCA 234 at [39]. Although fresh punishment may not be imposed for past offences, it is legitimate to take into account the offender’s antecedent criminal history when it shows their dangerous propensity: Veen v The Queen (No 2).

Rehabilitation as a purpose of sentencing is aimed at the renunciation by the offender of their wrongdoing and the offender’s establishment or re-establishment as a law-abiding citizen: Vartzokas v Zanker (1989) 51 SASR 277 at 279. It has long been recognised as an important consideration in sentencing offenders, even in cases where the seriousness of the objective circumstances call for a custodial sanction. The concept of rehabilitation includes ensuring that an offender will not reoffend by addressing underlying issues that bear upon the risk of recidivism: R v Pogson (2012) 82 NSWLR 60 at [103]. However, rehabilitation as a concept is broader than merely avoiding reoffending. In R v Pogson, McClellan CJ at CL and Johnson J at [124]–[125], Price, RA Hulme and Button JJ agreeing at [152], [155]–[156], stated:

Rehabilitation has been described as one of the cornerstones of sentencing discretion: R v Cimone [2001] NSWCCA 98 at [19]; and “[t]he prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being almost axiomatic”: R v Ponfield (1999) 48 NSWLR 327 at [38].

Voluntary cessation of criminal activity provides strong evidence of rehabilitation: R v Burns [2007] NSWCCA 228 at [30].

In R v Groombridge (unrep, 30/9/90, NSWCCA) Wood J, with whom Hunt and McInerney JJ agreed, said at [8]–[9]:

The offender’s level of insight into the offending behaviour may be relevant to the question of remorse and prospects of rehabilitation: AK v R [2016] NSWCCA 238 at [97]; Carr v R [2020] NSWCCA 214 at [53].

Where an offender’s prospects of rehabilitation are found to be “guarded”, the promotion of the offender’s rehabilitation is of relatively minor significance: R v Campbell; R v Smith [2019] NSWCCA 1 at [188].

Sentencing judges must be vigilant to ensure that submissions to the effect that an offender is “at a turning point in his or her life”, “has seen the error of his or her ways”, or “has excellent prospects of rehabilitation”, are not accepted uncritically, or at face value: R v Govinden [1999] NSWCCA 118 at [35].

See also, generally, [10-600] Subjective matters; [11-100] Section 21A(3)(h) — the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise.

This purpose aims to make the offender liable to be called to account for their deeds. This is a purpose of punishment that must be fulfilled: R v Pogson (2012) 82 NSWLR 60 at [98]. Making the offender accountable is an important purpose of sentencing: R v Dawes at [40]. It is particularly important where the offending conduct has tragic consequences: Davidson v R [2022] NSWCCA 153 at [216]. If the offender has mental health issues, there is less reason to make the offender accountable for their offences: McDowall v R [2019] NSWCCA 29 at [59].

The purpose of denunciation is to condemn the offender for their conduct. Justice Kirby said in Ryan v The Queen (2001) 206 CLR 267 at [118]:

Denunciation was briefly discussed in R v MacDonald (unrep, 12/12/95, NSWCCA) before the commencement of the Crimes (Sentencing Procedure) Act 1999, in relation to an offence of manslaughter.

In R v King [2009] NSWCCA 117, the Court made express reference to s 3A(f) and R v MacDonald at [1] and said:

In that case, a suspended sentence for an offence of sexual intercourse with a child under 10 years of age fell “far short” of appropriately denouncing the crime: [1]; see also, in relation to sexual offences against children and child abuse material offences, Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [120], [209], [131]; Davies v R [2019] NSWCCA 45 at [61].

In cases where an offender who is involved directly in the administration of justice, such as a police officer, acts in a way that perverts the course of justice, the purpose of denunciation should be given more weight: R v Nguyen [2004] NSWCCA 332 at [43].

The common law requires a sentencing judge to take into account the harm done to the victim and the community in relation to an offence: see Siganto v The Queen (1998) 194 CLR 656; Josefski, Shane Stewart v R [2010] NSWCCA 41 at [38]; R v Packer [2023] NSWCCA 87 at [72]. Section 3A(g) codifies this requirement: Josefski, Shane Stewart v R at [38]; see also s 21A(2)(g). Pt 3 Div 2 of the Act makes provision for victim impact statements in sentence proceedings (see further at [10-430]) and such statements may be taken into account in furtherance of s 3A(g): Hughes v R [2015] NSWCCA 330 at [372]–[373]; Issa v R [2017] NSWCCA 188 at [46]; Stein v R [2023] NSWCCA 324 at [92].

Where a crime involves multiple victims, acknowledgment should be made of the harm done to each victim, and this may require at least partial accumulation of the sentences: Baroudi v R [2007] NSWCCA 48 at [52]–[53] referring to R v Wilson [2005] NSWCCA 219 at [38];see also Carlton v R [2009] NSWCCA 231 at [122]; Davidson v R [2022] NSWCCA 153 at [149]. Harm caused to victims in respect of sexual offences against both children and adults is also to be recognised: see for example Stein v R [2023] NSWCCA 324 at [93]; Stanton v R [2017] NSWCCA 250 at [145]. The principle may also apply irrespective of an offender’s circumstances: see, for example, Quinn v R [2018] NSWCCA 297at [219].

There is no error in elevating harm to the community over and above harm to individual victims: see, for example, Harris v R [2023] NSWCCA 174 at [56].

Although “retribution” is absent from s 3A, it featured as a purpose of criminal punishment in the High Court’s formulation of the purposes of sentencing in Veen v The Queen (No 2) (1988) 164 CLR 465 (see [2-200]) and has since remained a latent concern in the minds of sentencing judges: see, for example, Williams v R [2022] NSWCCA 15 at [185]–[186]; McKinley v R [2022] NSWCCA 14 at [45].

Although courts have continued to refer to “retribution” as one of the purposes of sentencing, it is not clearly defined, and has variously been referred to as:

Note:

“retribution” is also one of the factors to be considered when determining whether to:

• impose a sentence of life imprisonment pursuant to s 61(1) of the Act; or

• apply no discount, or a reduced discount, pursuant to s 25F(2) of the Act, in relation to a guilty plea.