[11-000] Section 21A — aggravating and mitigating factors
[11-010] Legislative background and purpose of s 21A
Section 21A(1)(c) — any other objective or subjective factors
[11-020] General observations about s 21A(2)
Sentencing now more prone to error
[11-030] Procedural rules and findings under s 21A(2)
Section 21A should be raised during addresses
Clear findings must be made
Applying s 21A where multiple offences committed
[11-040] Limitations on the use of s 21A(2) factors
The common law and s 21A(2)
Double counting
Direct double counting of an element of the offence
The “nature and extent” of the element
Double counting elements where the policy underlying the offence is given expression as a s 21A(2) factor
Double counting an inherent characteristic of an offence
[11-050] Section 21A(2) and the De Simoni principle
[11-060] Section 21A(2)(a) — victims who exercise public or community functions
[11-070] Section 21A(2)(b) — the offence involved the actual or threatened use of violence
[11-080] Section 21A(2)(c) — the offence involved the actual or threatened use of a weapon
[11-090] Section 21A(2)(d) — the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)
[11-100] Section 21A(2)(e) — the offence was committed in company
[11-101] Section 21A(2)(ea) — the offence committed in the presence of a child under 18
[11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person
[11-110] Section 21A(2)(f) — the offence involved gratuitous cruelty
[11-120] Section 21A(2)(g) — the injury, emotional harm, loss or damage caused by the offence is substantial
[11-130] Section 21A(2)(h) — offences motivated by hatred and/or prejudice against a group of people
[11-140] Section 21A(2)(i) — the offence was committed without regard for public safety
[11-150] Section 21A(2)(j) — the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence
[11-160] Section 21A(2)(k) — abuse of a position of trust or authority
[11-170] Section 21A(2)(l) — the victim was vulnerable
Child sexual assault
[11-180] Section 21A(2)(m) — the offence involved multiple victims
[11-190] Section 21A(2)(n) — the offence was part of a planned or organised criminal activity
[11-195] Section 21A(2)(p) — prescribed traffic offence committed while child under 16 years was passenger in offender’s vehicle
[11-200] General observations about s 21A(3)
[11-210] Section 21A(3)(a) — the injury, emotional harm, loss or damage caused by the offence was not substantial
[11-220] Section 21A(3)(b) — the offence was not part of a planned or organised criminal activity
[11-230] Section 21A(3)(c) — the offender was provoked by the victim
[11-240] Section 21A(3)(d) — the offender was acting under duress
[11-250] Section 21A(3)(e) — the offender does not have any record (or any significant record) of previous convictions
[11-260] Section 21A(3)(f) — the offender was a person of good character
[11-270] Section 21A(3)(g) — the offender is unlikely to re-offend
[11-280] Section 21A(3)(h) — the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise
[11-290] Section 21A(3)(i) — remorse shown by the offender
[11-300] Section 21A(3)(j) — the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability
[11-310] Section 21A(3)(k) — a plea of guilty by the offender
[11-320] Section 21A(3)(l) — the degree of pre-trial disclosure by the defence
[11-330] Section 21A(3)(m) — assistance by the offender to law enforcement authorities
[11-335] Special rule for intoxication
[11-340] Section 24A — mandatory requirements for supervision of sex offenders and prohibitions against child-related employment to be disregarded in sentencing
[11-350] Section 24B — confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing

To top [11-000] Section 21A — aggravating and mitigating factors

Section 21A(1)–(5C) Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows:

21A Aggravating, mitigating and other factors in sentencing

(1)

General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) 

the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) 

the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) 

any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2)

Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a)

the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,

(b)

the offence involved the actual or threatened use of violence,

(c)

the offence involved the actual or threatened use of a weapon,

(ca)

the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb)

the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d)

the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e)

the offence was committed in company,

(ea)

the offence was committed in the presence of a child under 18 years of age,

(eb)

the offence was committed in the home of the victim or any other person,

(f)

the offence involved gratuitous cruelty,

(g)

the injury, emotional harm, loss or damage caused by the offence was substantial,

(h)

the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i)

the offence was committed without regard for public safety,

(ia)

the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib)

the offence involved a grave risk of death to another person or persons,

(j)

the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k)

the offender abused a position of trust or authority in relation to the victim,

(l)

the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m)

the offence involved multiple victims or a series of criminal acts,

(n)

the offence was part of a planned or organised criminal activity,

(o)

the offence was committed for financial gain,

(p)

without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3)

Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) 

the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) 

the offence was not part of a planned or organised criminal activity,

(c) 

the offender was provoked by the victim,

(d) 

the offender was acting under duress,

(e) 

the offender does not have any record (or any significant record) of previous convictions,

(f) 

the offender was a person of good character,

(g) 

the offender is unlikely to re-offend,

(h) 

the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) 

the remorse shown by the offender for the offence, but only if:

(i) 

the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) 

the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j) 

the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) 

a plea of guilty by the offender (as provided by section 22),

(l) 

the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) 

assistance by the offender to law enforcement authorities (as provided by section 23).

(4)

The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5)

The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(5A)

Special rules for child sexual offences

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5AA)

Special rule for self-induced intoxication

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.

(5B)

Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

(5C)

For the purpose of subsection (2)(p), an offence under any of the following provisions is taken to have been committed while a child under 16 years of age was a passenger in the offender’s vehicle if the offence was part of a series of events that involved the driving of the vehicle while the child was a passenger in the vehicle:

(a) 

section 13(2), 15(4), 18B(2), 18D(2), 22(2), 24D(1) or 29(2) of the Road Transport (Safety and Traffic Management) Act 1999

(b) 

clause 16(1)(a), (b) or (c), 17(1) or 18(1) of Schedule 3 to the Road Transport Act 2013.

To top [11-010] Legislative background and purpose of s 21A

When it was originally enacted, s 21A did not separately list aggravating and mitigating factors.

Section 21A does not purport to codify the law in the area of the aggravating and mitigating factors that can be taken into account at sentence: Porter v R [2008] NSWCCA 145 at [87].

Section 21A(1)(c) — any other objective or subjective factors

Section 21A(1)(c) provides that in determining an appropriate sentence for an offence the court is to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”. The language employed is very broad: R v Jammeh [2004] NSWCCA 327 at [23].

A judge can, therefore, take account of the effect of the crime on the victim via ss 3A(g) and 21A(1)(c): R v Jammeh [2004] NSWCCA 327 at [23]. This is separate and different from applying s 21A(2)(g), which requires “the injury, emotional harm, loss or damage caused by the offence” to be “substantial” (discussed below): R v Jammeh at [23]. The “matters” referred to in s 21A(1) extend beyond the aggravating and mitigating factors tabled in s 21A(2) and s 21A(3): Van Can Ha v R [2008] NSWCCA 141 at [4].

To top [11-020] General observations about s 21A(2)

The aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton (2006) 66 NSWLR 566 at [34]. Parliament has not used the word “aggravation” in its narrow common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and ss 21A(2)(h) and (j) support that interpretation.

Successfully applying s 21A(2) requires a great degree of care akin to surgery. Howie J outlined some general observations about the section in an article entitled “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43. These observations include:

  • Many sentencing judges are concentrating too much on s 21A as a separate and discrete part of the sentencing discretion rather than considering it, where necessary, because of some particular submission made to the court, or as a guide to ensuring that relevant matters are taken into account.

  • If the sentencing judge is taking into account a matter as an aggravating factor under s 21A(2), which would not have been taken into account before the enactment of the section, there is a real risk that the section is being misapplied.

  • A judge who goes through the aggravating factors in s 21A(2) at the end of sentencing remarks as a kind of checklist is likely to fall into error by either double counting aggravating factors or by taking into account matters that have no real application to the particular case before the court.

  • The risk of error increases if a judge feels obliged to go through those factors as a task that is independent from the general sentencing exercise of identifying objective and subjective features that are relevant to the sentencing discretion.

  • If the Crown does not assert an aggravating feature is present under s 21A(2), the judge should be cautious about independently attempting to identify such a feature, without receiving assistance from counsel during addresses. Judges should make it clear in their sentencing remarks if the Crown does not assert that there is an aggravating feature present, so a failure to take into account an aggravating factor would be difficult to argue on a Crown appeal against adequacy of the sentence.

  • Section 21A(2) has a limited role to play where there is a guideline judgment for a particular offence (at 44):

    The guideline judgments are offence specific. The facts relevant to a determination of whether or not the guideline applies will generally merely be specific aspects of the aggravating and mitigating factors in s 21A. There will be few, if any, aggravating or mitigating features to take into account once the specific offence-related matters have been considered.

Sentencing now more prone to error

Section 21A has made the task of sentencing courts “more difficult, or at least more prone to error”: Elyard v R [2006] NSWCCA 43 at [39]. In Elyard v R, Howie J stated at [39] that “if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section’s demands”.

To top [11-030] Procedural rules and findings under s 21A(2)

The Court of Criminal Appeal has developed specific approaches as to how s 21A should and should not be applied in a given case. They are designed to encourage transparency, ensure procedural fairness and avoid double counting.

Section 21A should be raised during addresses

It is important that sentencing courts give careful consideration to the factors of aggravation in s 21A(2) to determine not only whether they are available as a matter of law but also whether they arise on the facts of the case: R v Holten [2005] NSWCCA 408 at [42]. In fairness to the offender, the judge should indicate to the offender’s legal representative that he or she is considering taking that matter into account so that counsel have the opportunity to persuade the judge that the aggravating feature is not present or should not be taken into account in the circumstances of the case: R v Tadrosse (2005) 65 NSWLR 740 at [19].

See further Opportunity of addressing the court on issues at [1-040].

Clear findings must be made

The mandatory language used in s 21A(1) “the court is to take into account”, and ss 21A(2) and 21A(3) “to be taken into account”, does not require a court to engage in a ritual analysis of the possible s 21A factors. What is required is for the court to making findings about the factor in accordance with the evidence: Van Can Ha v R [2008] NSWCCA 141 at [4]. The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account: DBW v R [2007] NSWCCA 236 at [33], [36].

It is not necessary for a sentencing judge to refer to each of the factors, both aggravating and mitigating, to which s 21A directs attention, but it is necessary to take them into account to the extent that they are relevant to the case before the court: R v Wickham [2004] NSWCCA 193; R v Lilley (2004) 150 A Crim R 591 at [41], [53]. This involves addressing the s 21A matters by reference to the circumstances of the actual offence: R v King (2004) 150 A Crim R 409 at [139]–[141].

It is also important to give reasons why aggravating factors adverse to the offender have been made: Doolan v R (2006) 160 A Crim R 54 at [20]; Thorne v R [2007] NSWCCA 10 at [68]. It “enlightens the sentencing process” and informs the offender, the Crown and the community how the sentencing judge has applied the particular factor: R v Walker [2005] NSWCCA 109 at [32].

More than mere lip service to s 21A is required. The judge has to clearly identify “the relevant factors, the weight given to them, and their role”: R v Mills (2005) 154 A Crim R 40 at [49]. In R v Dougan (2006) 160 A Crim R 135 at [30], the judge erred by failing to make clear precisely how the aggravating factor of threatened use of violence (s 21A(2)(b)) was taken into account in sentencing for the armed robbery offence. The need for an explanation is not limited to situations where a judge may double count aggravating features, where a feature is an element of an offence and an aggravating factor under s 21A(2).

The court should be careful to make clear in its remarks whether it rejects or accepts matters of aggravation in s 21A(2) relied on by the Crown. It was said in R v Wilson (2005) 62 NSWLR 346 at [42] that if a judge does not expressly reject matters raised by the Crown, it will be taken on appeal that the judge accepted them.

On the other hand, if a judge makes only a general reference to s 21A it may however indicate no more than that he or she had considered the whole list of aggravating and mitigating factors but had given weight to those identified in his remarks on sentence: DBW v R at [33]. The court in DBW v R (at [37]) did not follow the approach in R v Wilson at [42]. It is incumbent upon a court, however, to express whether a factor has actually been taken into account: R v McNamara [2005] NSWCCA 195 at [37].

It is erroneous to identify a precise amount which is added or deducted for each s 21A factor: R v Johnson [2005] NSWCCA 186 at [27]; R v Taylor [2005] NSWCCA 242 at [10].

Applying s 21A where multiple offences committed

Where there are multiple offences, s 21A must be applied to individual offences and not in a general or global way. Where an aggravating factor is found to apply to one or more offences, but not all, it must be indicated in respect of which offence or offences the aggravating factor is taken into account: R v Tadrosse at [22]; Aslett v R [2006] NSWCCA 49 at [119]–[120]; and RJA v R [2008] NSWCCA 137 at [20].

A general or overall reference to which aggravating factors apply may lead to error where some of the factors do not apply to all of the offences for which the offender is being sentenced: TS v R [2007] NSWCCA 194 at [21]; R v Tadrosse. The statement of Sully J in R v FD (2006) 160 A Crim R 392 at [94] that a court can “have regard to the relevant section 21A criteria in an undifferentiated way and as part of an overall instinctive synthesis” has never received support.

To top [11-040] Limitations on the use of s 21A(2) factors

The common law and s 21A(2)

Whatever the meaning of the subsections in s 21A(2), parliament did not intend to alter the common law: Cvitan v R [2009] NSWCCA 156 at [60]. Section 21A(4) provides that “the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.” A sentencing principle, established by common law, and not abrogated by the Act is a rule of law: R v Johnson [2004] NSWCCA 76 at [33].

Section 21A(2) was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: Suleman v R [2009] NSWCCA 70 at [26]. The court should always give attention to the words used to describe any aggravating factor, the policy rationale behind it and the fact that the Crown is to prove a matter of aggravation beyond reasonable doubt: Gore v R (2010) 208 A Crim R 353 at [105].

Double counting

Section 21A(2) provides that “the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.” That provision prohibits double counting of aggravating features of an offence. The importance of the inclusion of s 21A(2) is to remind judges, who use s 21A as a “check list” for all offences, to ensure that any particular matter listed as an aggravating factor is not already an element of the offence: R v Johnson [2005] NSWCCA 186 at [22].

In cases where the aggravating factor is an element of the offence or may be thought to be an inherent characteristic of offences of the kind for which sentence is being passed the judge should explain why the factor is present in the particular case before the court: Ward v R (2007) 168 A Crim R 545 at [29]. An absence of an explanation of how the aggravating factor has been taken into account creates a risk that there has been “double counting” by increasing punishment for a factor that has already been taken into account as an element of offence, and may constitute error: Andrews v R (2006) 160 A Crim R 505 at [18].

Direct double counting of an element of the offence

There are numerous cases to illustrate direct double counting. They are discussed in the Particular offences section, under the tab card of that name, beginning at [17-000]. In R v Davis [2004] NSWCCA 310, for example, the judge erroneously took into account the fact that the victim sustained actual bodily harm under s 21A(2)(b) when it was an element of the offence of taking and detaining in company with intent to obtain advantage and occasion actual bodily harm: s 86(3) Crimes Act.

The “nature and extent” of the element

The prohibition in s 21A(2) does not prevent the court from considering the nature and seriousness of the facts of the offence: Bou-Antoun v R [2008] NSWCCA 1 at [14]. In R v Way (2004) 60 NSWLR 168 at [106]–[107] the court addressed the question of double counting the fact that the offence was committed in company. It was held that the fact that an offence was committed in company (s 21A(2)(e)), where that is an element of the offence, cannot have an additional effect. However, a court is entitled to have regard to the nature and extent of the company and the manner in which the presence and behaviour add to the menace of the occasion. These matters are relevant to the seriousness of the offence charged.

Similarly, in Hamze v R [2006] NSWCCA 36 at [29] it was held that it is permissible for a court to take into account the fact of the threatened use of violence as an element of the offence of robbery and then have regard to the nature of the threat of violence under s 21A(2)(b) in considering the seriousness of the offence. Double counting occurs if the judge takes into account the fact of the threatened use of violence twice; that is, first as an element of the offence and then under s 21A(2)(b) (see further discussion below). Suffice to state, it is only possible to achieve a correct result if clear findings are made by the sentencer.

Double counting elements where the policy underlying the offence is given expression as a s 21A(2) factor

An element of an offence should not be treated as aggravating factor if it merely reflects the policy underlying the offence: Elyard v R [2006] NSWCCA 43 at [9]–[10]. The task involves identifying the purpose underlying the inclusion of an element of a particular offence against the matters listed in s 21A(2). The court must consider any differences in the language used to describe the element of an offence and the description of the particular aggravating factor in question: Elyard v R at [9]–[10].

For offences of aggravated dangerous driving causing grievous bodily harm or death “it will almost inevitably be the case that it is an inherent characteristic of the class of offence that it is committed without regard for public safety [s 21A(2)(i)]”: Elyard v R at [12], [43].

Where an offender has been convicted of an aggravated form of an offence it is not an error for the sentencing judge to consider other s 21A(2) aggravating factors that were not charged (for example, breach of trust) on the indictment under s 21A(2): Ivimy v R [2008] NSWCCA 25 at [28].

Double counting an inherent characteristic of an offence

The court cannot take into account an aggravating feature in s 21A(2) where it would be expected to result from the commission of the offence: R v Youkhana [2004] NSWCCA 412 applied in R v Solomon (2005) 153 A Crim R 32 at [20]; Elyard v R at [39]. However, where the lack of regard for public safety is so heinous that it “transcends that which would be regarded as an inherent characteristic of the offence”, it may be given additional effect as an aggravating factor: Elyard v R at [10], [43].

The court must find beyond reasonable doubt that the element exceeds that which would ordinarily be expected of the crime before taking it into account under s 21A: R v Yildiz (2006) 160 A Crim R 218 at [39].

For the application of this subsection to specific offences see: Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890] and Robbery at [20-260] (armed robbery).

To top [11-050] Section 21A(2) and the De Simoni principle

The provision in s 21A(2) does no more than reflect the common law and therefore an aggravating factor in s 21A(2) cannot be taken into account if to do so would breach the De Simoni principle: R v Johnson [2005] NSWCCA 186 at [22]; R v Wickham [2004] NSWCCA 193 at [26]; Huntingdon v R [2007] NSWCCA 196 at [9]; Rend v R (2006) 160 A Crim R 178; and JAH v R [2006] NSWCCA 250.

R v Newham [2005] NSWCCA 325 is a good example of the principle. The sentencing judge erred by taking into account as an aggravating factor pursuant to s 21A(2)(e) that the indecent assault was committed in company. Section 61M(1) Crimes Act provides for a separate offence of greater seriousness, of which one of the available circumstances of aggravation is that the offence is committed in company. The applicant was not charged with the more serious offence and the sentencing judge was required to limit his consideration of the surrounding circumstances so as not to punish the applicant as if he had committed the more serious offence.

To top [11-060] Section 21A(2)(a) — victims who exercise public or community functions

Section 21A(2)(a) is directed at offences committed against victims who exercise public or community functions and the offence arose because of the victim’s occupation.

The common law has long recognised that people in certain occupations work under a degree of risk. The fact that the victim is a police officer is treated as an aggravating factor: R v Penisini [2004] NSWCCA 339 at [20].

Since there is provision for a higher standard non-parole period for the murder of certain categories of persons (see Table of Standard non-parole periods under s 54D Crimes (Sentencing Procedure) Act 1999) care needs to be taken to ensure there is no double counting of aggravating circumstances when consideration is being given to the sentencing of this class of persons.

To top [11-070] Section 21A(2)(b) — the offence involved the actual or threatened use of violence

For the application of this subsection to specific offences see: Break and enter offences at [17-070]; Robbery at [20-260] (s 97 armed robbery), [20-270] (s 98 robbery with wounding) and [20-230] (s 95(1) robbery in circumstances of aggravation); Detain for advantage/kidnapping at [18-720]; Assault, wounding and related offences at [50-140].

To top [11-080] Section 21A(2)(c) — the offence involved the actual or threatened use of a weapon

For the application of this subsection to specific offences see: Break and enter offences at [17-070]; Robbery at [20-260] (s 97 armed robbery); [20-270] (s 98 robbery with wounding).

The absence of a weapon is not a matter of mitigation: Versluys v R [2008] NSWCCA 76 at [37]. Where the assailant has used his or her hands instead of a weapon it does not follow that the offence is necessarily less serious than if a weapon was used: Versluys v R at [37].

To top [11-090] Section 21A(2)(d) — the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)

This subsection is discussed extensively in Subjective matters taken into account at [10-400].

This subsection was amended by the Crimes (Sentencing Procedure) Amendment Act 2007, providing the additional text in parentheses. Under s 21A(6), a “serious personal violence offence” is a personal violence offence within the meaning of s 4 Crimes (Domestic and Personal Violence) Act 2007 that is punishable by imprisonment for life or a term of 5 years or more. The definition includes serious sexual offences.

To top [11-100] Section 21A(2)(e) — the offence was committed in company

Section 21A(2)(e) “relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person”: Gore v R (2010) 208 A Crim R 353 at [101]. It has no application to an offender who happens to use his wife to assist in his drug trade: Gore v R at [101].The common law understanding of “in company” should inform the appreciation of the aggravating factor under s 21A(2)(e): Gore at [101]. Where “in company” is an element of an offence, it is an error to consider s 21A(2)(e) as an aggravating factor: Stevens v R [2007] NSWCCA 152 at [35].

In R v Way (2004) 60 NSWLR 168 at [106]–[107], the court held that the fact that an offence was committed in company, where that is an element of the offence, cannot have an additional or cumulative effect on sentence. This, however, does not prevent the nature and extent of the company being taken into account when the court assesses the seriousness of the offence and the moral culpability of the offender. The presence of a “large number of overbearing and powerful companions can dramatically increase the objective seriousness, and moral culpability, of those who engage in a sexual assault of a lone victim” and s 21A(2)(e) does not exclude reference to such a consideration: R v Way at [107].

For the application of this subsection to specific offences see: Application of s 21A to break and enter offences at [17-070]; Robbery at [20-260] (armed robbery) and [20-270] (robbery with wounding); and Common aggravating factors under s 21A and the common law at [50-140].

To top [11-101] Section 21A(2)(ea) — the offence committed in the presence of a child under 18

Section 21A(2)(ea) “is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional well-being of a child. The commission of the offence may also be deleterious to the child’s moral values”: Gore v R (2010) 208 A Crim R 353, per Howie AJ at [104]. The supply of drugs in the presence of a child is a factor of aggravation”: Gore v R at [104]. It is not necessary that the offender is a parent of the child but if he or she is that will be an aggravating factor: Gore v R at [104].

To top [11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person

This factor is directed toward the sanctity of the home and can be applied when a victim is assaulted by an unauthorised intruder. The application of the provision has been limited by a view of the common law on the subject and hence the application of limiting statutory principle in s 21A(4). At common law the mere fact that an offence is committed in the home in which both the offender and the victim reside is not a circumstance of aggravation: R v Comert [2004] NSWCCA 125; EK v R (2010) 79 NSWLR 740 at [79]; Ingham v R [2011] NSWCCA 88 at [112]; R v BIP [2011] NSWCCA 224 at [61]; R v MH [2011] NSWCCA 230 at [34]; Essex v R [2013] NSWCCA 11 at [72].

These authorities which hold that s 21A(2)(eb) cannot be applied when the offence was committed in the home of the offender and the victim have been questioned by the later decisions of Melbom v R [2013] NSWCCA 210 at [44] and Montero v R [2013] NSWCCA 214 at [47]. Doubt had been expressed in Oh v R [2010] NSWCCA 148 at [40] as to whether the provision should be confined. RA Hulme J in Melbom acknowledged at [44] that the “plain words of s 21A(2)(eb) do not support the limitation that [the CCA] has placed on their application” and “it was never intended by Parliament that there should be the constraint upon their application that this Court has imposed”. Simpson J (Price J agreeing) shared RA Hulme J’s reservations and noted in additional remarks at [2]: “It is, perhaps, time for re-examination by this Court of those previous decisions”.

The offender in Melbom committed offences of violence on his two flatmates in their shared unit. A close analysis of the judge’s remarks did not reveal that the judge in fact applied s 21A(2)(eb) contrary to previous authorities: Melbom at [51]. The judge was entitled to take account other matters relating to the seriousness of the offence particularly “an element of domestic violence” and the victims had “nowhere to go because the domestic relationship … [was] such that there is a special geographical vulnerability for the victims”.

Melbom was decided in a similar way to DJM v R [2013] NSWCCA 101 at [7]. There sexual offences were committed in the home of the offender during access visits by the victim. The court held the judge could treat the fact that the victim had no place to safely escape to as an aggravating circumstance. However, this was not a reference to s 21A(2)(eb) but rather to the breach of trust that was involved. The judge’s comment was “nothing more than a statement of the obvious in relation to these sorts of offences committed in the family home”: per Blanch J at [10].

The sexual offences in Montero v R [2013] NSWCCA 214 were committed on a 15-year-old friend of the applicant’s girlfriend, while the former stayed overnight. The judge could have regard, as an aggravating factor, the fact that the offences occurred in the applicant’s home because unlike previous cases (cited at [53]) it was not that fact alone that was taken into account: Montero at [52]. Although the applicant was lawfully in the home, the complainant was a guest and was entitled to a sense of safety and security: Montero at [52]. RA Hulme J held that the “judge was nevertheless entitled to take the violation of the expectation of safety and security into account as rendering the offence more serious”: Montero at [54].

The issue was raised again in Aktar v R [2015] NSWCCA 123 where the court affirmed RA Hulme J’s judgment in Melbom but declined to add to the law on the subject (see Hoeben CJ at CL at [1]; RA Hulme J at [2] and Wilson J at [64]).

See further [17-070] Application of s 21A to break and enter offences.

To top [11-110] Section 21A(2)(f) — the offence involved gratuitous cruelty

Gratuitous cruelty suggests that the infliction of pain is an end in itself: McCullough v R [2009] NSWCCA 94 at [30]. “It is needless yet intentional violence committed simply to make the victim suffer”: McCullough v R at [30]. The application of s 21A(2)(f) depends upon matters of fact and degree: R v Atonio (2005) 154 A Crim R 183 at [23].

Gratuitous cruelty under s 21A(2)(f) requires more than an offence being committed without justification and causing great pain. For offences that are by their nature violent, there needs to be something more than the offender merely having no justification for causing the victim pain: McCullough v R at [30]. For instance, the factor may be present in a case of malicious wounding if the nature and purpose of the wounding involved torture: McCullough v R at [31]. A finding of gratuitous cruelty was made in R v King (2004) 150 A Crim R 409 at [139], where the offence of malicious wounding with intent included kicking a pregnant woman. Gratuitous cruelty was also established in R v Hoerler (2004) 147 A Crim R 520 at [43], [64], and [80], a manslaughter case which involved a prolonged and violent assault on a defenceless infant.

An offender’s good character does not preclude a finding of gratuitous cruelty: TMTW v R [2008] NSWCCA 50 at [43]. The subsection was not applied in Curtis v R [2007] NSWCCA 11 at [62] (stabbing of a police dog) or Stevens v R [2007] NSWCCA 152 at [32] (cruelty exhibited by the applicant towards the victims’ animals during a home invasion). The latter act of cruelty was not related to the offence and there was no mention of the issue in the agreed facts.

For the application of this subsection to Child pornography see [17-541].

To top [11-120] Section 21A(2)(g) — the injury, emotional harm, loss or damage caused by the offence is substantial

Section 21A(2)(g) provides that an aggravating factor that is to be taken into account is whether “the injury, emotional harm, loss or damage caused by the offences is substantial”. The section must be understood through the prism of the common law. At common law, the court may have regard to the harm done to the victim by the commission of the crime: Signato v The Queen (1998) 194 CLR 656 at [29].

This is subject to the qualification that it cannot take into account harm that would effectively punish the offender for a more serious offence than the one charged: The Queen v De Simoni (1981) 147 CLR 383 at 389. A court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Josefski v R (2010) 217 A Crim R 183 at [4], [38]–[39]. The application of s 3A(g) of the Act (“harm done to the victim of the crime and the community”) and s 21A(2)(g) of the Act in a given case is limited by this common law rule. Neither provision was intended to alter the common law principles of sentencing: Muldrock v The Queen (2011) 244 CLR 120 at [15], [18]. Therefore it is an error, as well as unfair, to take into account as an additional aggravating factor harm, under s 21A(2)(g), harm that is not expected or could not have been reasonably foreseen to result from the commission of the crime: R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R at [4], [38]–[39].

As s 21A(2)(g) does not alter the common law a court is not permitted to take account of the effect upon persons of the death of a victim as an aggravating feature of an offence: R v Wickham. This is so notwithstanding the equivocal comments by Spigelman CJ in R v Berg [2004] NSWCCA 300: Josefski v R [36]–[39].

There must be evidence before the court to warrant a finding that the injury and emotional harm caused by the offence was substantial within the terms of s 21A(2)(g). As to the use of victim impact statements and s 21A(2)(g) see Victims and victim impact statements at [12-810].

Emotional harm in the context of s 21A(1)(g), qualified by the adjective substantial may be taken to be a reference to an appreciable psychological injury whether permanent or not: Huynh v R [2015] NSWCCA 179 at [29]. It refers to something more than the transient, or temporary, shock or fright that anyone would suffer who felt his or her safety was in peril, but which passes within a relatively short time leaving no lasting ill-effects: Huynh v R at [29]. A finding of substantial emotional fear of a transient type leaving no lasting ill-effects may amount to substantial emotional fear depending on the nature of the offending, informed by the common understanding of life shared by all adults: Huynh v R at [29].

Where there is no evidence directed to the issue of emotional harm suffered by the victim and no victim impact statement, it is not open to the sentencing judge to make a finding that offences have been aggravated on the basis of substantial emotional harm to the victim: R v Ross (2006) A Crim R 526 at [27].

In the armed robbery case of R v Solomon (2005) 153 A Crim R 32, it was clear from the victim impact statements that it was open to the sentencing judge to find that the offences were aggravated by the effect that they had upon each victim. There was ample evidence to justify an additional finding that the injury or emotional harm occasioned to each of the victims was substantial.

As was explained in R v Solomon, because the court makes such an assumption, it would be unfair to take the psychological injury or emotional harm into account as an aggravating factor under s 21A(2)(g) in the absence of evidence that, in the particular case, it exceeded that which is already presumed: at [19], [53].

Sentencing judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences. Because of that entitlement, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm in s 21A(2)(g): Stewart v R [2012] NSWCCA 183 at [61]. Judges should make findings of fact founded on the evidence tendered rather than general observations: Stewart v R at [62].

Section 21A(2)(g) is not limited to injury, harm, loss or damage to the victim, but potentially extends to that suffered by the victim’s spouses and dependents: Aslett v R [2006] NSWCCA 360 at [37].

In cases where injury is an element of the offence for which the offender is being sentenced, the extent and nature of the injuries inflicted are relevant in assessing whether the aggravating factor applies: Taylor v R [2006] NSWCCA 7 at [40]. The nature of the injury, loss or damage in such a case must be such as to take it outside that which was necessary to establish the element of the offence: Heron v R [2006] NSWCCA 215 at [49]. Findings of substantial harm under s 21A(2)(g) must be based on what actually occurred rather than what might have occurred: Heron v R at [49].

For the application of this subsection to specific offences see: Break and enter offences at [17-070]; Dangerous driving at [18-390]; Robbery at [20-260] (armed robbery) and [20-270] (robbery with wounding); and Sexual assault at [20-810]. See also H Donnelly “Assessing harm to the victim in sentencing proceedings” (2012) 24(6) JOB 45.

To top [11-130] Section 21A(2)(h) — offences motivated by hatred and/or prejudice against a group of people

Section 21A(2)(h) is directed towards offences motivated by hatred for, or prejudice against, a group of people (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), with the offender carrying out the offence because he or she believed the victim belonged to that particular group.

In Aslett v R [2006] NSWCCA 49, at [124], it was held there was no evidence to establish that the offence was motivated by hatred towards Asian people.

In Holloway v R [2011] NSWCCA 23 at [32] the court accepted that the assaults were racially motivated. Hall J said at [32]:

In any multi-cultural society, criminal acts involving racial violence ought to be strongly deterred and this fact taken into account in a case such as the present when sentencing an offender in respect of such conduct: Crimes (Sentencing Procedure) Act1999, s.21A(2)(h).

The examples in parentheses listed in s 21A(2)(h) — people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability — do not comprise an exhaustive list of the grounds envisaged by the subsection: Dunn v R [2007] NSWCCA 312 at [32]. In Dunn v R, paedophiles were held to be a “group of people” under s 21A(2)(h).

To top [11-140] Section 21A(2)(i) — the offence was committed without regard for public safety

Section 21A(2)(i) provides that it is an aggravating feature of an offence if it is committed “without regard for public safety”. It is arguable that the elements of many offences (such as, for example, dangerous driving and, possibly, firearms offences) already take into account the “regard for public safety”. In Elyard v R [2006] NSWCCA 43 at [12] Basten JA opined:

Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy.

This subsection is not directed to the specific victim of any offence, but to the danger caused to other members of the public by reason of the offence: R v Chisari [2006] NSWCCA 19 at [22].

It is the risk to public safety that falls to be assessed under s 21A(2)(i) and not what actually transpired: R v Fryar [2008] NSWCCA 171 at [34].

For the application of s 21A(2)(i) to specific offences see Dangerous driving at [18-390]; Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-890]; Assault, wounding and related offences at [50-140]; Firearms and prohibited weapons offences at [60-040]–[60-050]; and Damage by fire and related offences at [63-020].

To top [11-150] Section 21A(2)(j) — the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence

Conditional liberty is discussed at [10-550].

When an offence is committed whilst being on conditional liberty, this may amount to an aggravating factor. The purpose of s 21A(2)(j) is to “capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence”: Porter v R [2008] NSWCCA 145 at [86]. The term “conditional liberty” in s 21A(2)(j) is not confined to circumstances where the foundational offence giving rise to the conditional liberty is one which itself must be punishable by imprisonment: Porter v R at [86].

Section 21A(2)(j) is a relevant consideration if the offender was on conditional liberty at the time of committing the offence, even though the charge in respect of which they were on conditional liberty for was later withdrawn: R v Deng (2007) 176 A Crim R 1 at [64].

In Frigiani v R [2007] NSWCCA 81, the offender was subject to a s 10 good behaviour bond for assaulting his wife. The offence he committed involved a further assault on the same person. The court held that the fact he was subject to the bond was an aggravating factor under s 21A(2)(j), irrespective of the conduct for which the bond was imposed: at [23]–[24]. It is more aggravating when the conduct is similar to that for which the offender is being sentenced: at [24].

To top [11-160] Section 21A(2)(k) — abuse of a position of trust or authority

It is clear both from the language of s 21A(2) and the decided cases that the section was not intended to extend the concept of breach of trust beyond the common law as it was understood at the time that the section was created: Suleman v R [2009] NSWCCA 70 at [26], approving R v Wickham [2004] NSWCCA 193 and R v Johnson [2005] NSWCCA 186. For a relationship of trust to exist, there must have been a special relationship between the victim and offender at the time of the offending “which transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings”: Suleman v R at [22]. Examples of such special relationships are parent and child, doctor and patient, priest and penitent and teacher and student: at [23]–[24]. In R v Stanbouli (2003) 141 A Crim R 531 Hulme J, with whom Spigelman CJ agreed, elaborated on the concept at [34]:

The cases where, traditionally, breach of trust has been regarded as exacerbating criminality are where it is the victim of the offence who has imposed that trust — an employer defrauded by his employee, a solicitor who appropriates trust funds to his own use — or where the criminality involves a breach of that which the offender was engaged or undertook to do, eg a teacher or baby-sitter who indecently deals with the subject of his or her charge. Another example is afforded by the case of R v McLean (unreported, CCA, 31 March 1989) where a customs officer employed in the investigations section of the department had conspired to import heroin and cannabis. The offence there was in direct contravention of what the offender had been employed to do.

The court in Suleman v R [2009] NSWCCA 70 at [28] found that the sentencing judge erred by finding that the s 21A(2)(k) applied by virtue of the applicant’s dealings with investors and the fact that he was a successful businessman in the Assyrian community. The common law would not have recognised that these things involved a breach of trust.

In KJH v R [2006] NSWCCA 189 at [29] the judge erred by stating that breach of trust is an element of the offence under s 66A Crimes Act. Not all offences of sexual intercourse with a child under 10 years of age involve abuse of trust. The gross abuse of trust perpetrated by the applicant was an aggravating factor in the circumstances of this case and had to be taken into account on sentence under s 21A(2)(k). The offender in MRW v R [2011] NSWCCA 260 was convicted under s 66C(2) Crimes Act of sexual intercourse with a person between 10 and 16 years and who was under the authority of the offender. It was open to the trial judge to take abuse of trust under s 21A(2)(k) into account as an aggravating feature notwithstanding the ingredients of the offence under s 66C(2): MRW at [77]. Abuse of trust and authority in s 21A(2)(k) are distinct concepts, although often arising out of the same facts: MRW at [77]. However, a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor to avoid double counting: MRW at [78].

See further, Sexual offences against children at [17-560] and Fraud at [19-990].

To top [11-170] Section 21A(2)(l) — the victim was vulnerable

Section 21A(2)(l) provides that it is an aggravating feature of an offence if:

the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant).

Section 21A(2)(l) is concerned with the vulnerability of a particular class of victim who need to be especially protected because they are vulnerable to criminal offences: R v Tadrosse (2006) 65 NSWLR 740 at [24]–[26]. In R v Tadrosse the court held that the judge erred in applying the section to fraud victims on the basis that persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents. The provision is concerned with the weakness of a particular class of victim, not the threat posed by a class of offender: R v Tadrosse at [26].

The court has subsequently reiterated the need for the victim to be part of a certain class of persons who need to be especially protected: Doolan v R (2006) 160 A Crim R 54 at [25]–[26]. The fact that a victim is unarmed and unable to protect himself is not the sort of vulnerability that s 21A(2)(l) is concerned with: at [28]. Where a victim is not armed in a like manner to the assailant, this does not ordinarily mean that the victim is vulnerable: Morris v R [2007] NSWCCA 127 at [15].

The fact the victim lived in a rural and isolated location may provide the basis for a finding of vulnerability: Stevens v R [2007] NSWCCA 152 at [33].

Section 21A(2)(l) may still play a role in sentencing an offender in the context of an offence which contains the age of the victim as part of the offence. The younger the age of the victim, the more serious the offence: RJA v R [2008] NSWCCA 137 at [13].

In Veale v R [2008] NSWCCA 23, Hulme J said at [18]:

The examples given seem to indicate that persons engaged in occupations that involve having access to, or being in charge of, significant sums of cash are intended by Parliament to be characterised as vulnerable.

However, it should be noted that the examples given in s 21A(2)(l) do not amount to an exhaustive list: Perrin v R [2006] NSWCCA 64 at [35]; Ollis v R [2011] NSWCCA 155 at [96].

In R v Williams [2005] NSWCCA 99, the court held that the sentencing judge was in error for taking into account as an aggravating factor under the section that the victim of a manslaughter offence was vulnerable because they were not powerful or aggressive like the perpetrator. Howie J remarked at [27] in R v Tadrosse that, although the matter was relevant to an assessment of the gravity of the offence, it should not have been treated as a further aggravating factor, since “s 21A(2)(l) is not directed to vulnerability in that generalized sense … it is vulnerability of a particular kind that attracts its operation”.

In Ollis v R, the court held that the judge was correct to find, as an aggravating factor under s 21A(2)(l), that the victim was vulnerable: at [94]. The victim was an adolescent travelling alone on public transport in a foreign land and she trusted the applicant, who spoke some Japanese and offered assistance: at [97].

Taxi passengers have also been held to be a relevant class of vulnerable victim for the purposes of s 21A(2)(l): Ali v R [2010] NSWCCA 35 at [28], [35].

Child sexual assault

Fine distinctions have been drawn regarding the application of s 21A(2)(l) in the context of child sexual assault. In R v JDB (2005) 153 A Crim R 164 the court held at [46] that the judge contravened s 21A(2) by finding, as an aggravating factor, that the offence was committed against a vulnerable victim (aged eight years) when it was already an element of the offence of sexual intercourse with a child under 10 years of age. Again, in R v Boulad [2005] NSWCCA 289 at [21], the sentencing judge erred in saying that the victim was vulnerable “because she was young” where the charge was sexual intercourse with a person who was of, or above, the age of 14 and under the age of 16.

In R v Pearson [2005] NSWCCA 116 the offender was convicted of aggravated indecent assault. The circumstance of aggravation was that the victim was under 16. She was actually 13 years of age. The court held that the judge was entitled to take into account the fact that the victim was vulnerable (having regard to her age) as an aggravating feature without contravening s 21A(2).

R v Pearson was applied in R v JTAC [2005] NSWCCA 345. There the offender was convicted of sexual intercourse with a child under 10 years of age, under s 66A Crimes Act, and aggravated indecent assault of a child under 10 years of age, under s 61M(2) Crimes Act. The circumstance of aggravation was that the victims, who were aged five and seven, were under 10 years of age. The court held that the judge was entitled to take account of the vulnerability of the victims, having regard to their ages, without contravening s 21A(2).

In Shannon v R [2006] NSWCCA 39 the court confirmed that s 21A(2) does not preclude a sentencing judge taking into account as an aggravating factor the vulnerability of the victim for offences committed under s 66C Crimes Act, despite the fact that s 66C is concerned to protect the vulnerable.

The fact that a victim is vulnerable because of limited intellectual functioning has been considered an aggravating circumstance under s 21A(2)(l): Corby v R [2010] NSWCCA 146 at [73].

For the application of s 21A(2)(l) to specific offences see Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-890]; Robbery at [20-290]; and Sexual assault at [20-810].

To top [11-180] Section 21A(2)(m) — the offence involved multiple victims

Section 21A(2)(m) provides the court can take into account the fact that the offence involved multiple victims. In R v Tadrosse (2006) 65 NSWLR 740 at [29] Howie J explained the purpose of the subsection:

… the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act. Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act. When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged.

The sentencing judge erred in R v Tadrosse since, while there were clearly multiple offences with multiple victims and acts of criminality before the court, the applicant was sentenced for each of them in accordance with the principle of totality. Similarly in R v Tzanis [2005] NSWCCA 274 at [19] the judge erred by applying s 21A(2)(m) where the applicant was sentenced for two separate offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm.

The error was repeated in R v Janceski [2005] NSWCCA 288, where the offender was sentenced to two counts of dangerous driving occasioning death. The court held that it was completely contrary to principle to aggravate each of those sentences on the basis that each offence involved multiple victims.

The term “offence” in s 21A(2)(m) does not include Form 1 matters: Hawkins v R [2006] NSWCCA 91 at [28]–[29]. In Aslett v R [2006] NSWCCA 360, the court indicated that s 21A(2)(m) is directed to “the offence” which is one involving multiple victims or a series of criminal acts: at [38].

In Hockey v R [2006] NSWCCA 146, Adams J considered the term “involved” at [16]:

“Involved”, to my mind, means those actually injured by the particular offence for which the offender is sentenced. This interpretation is fortified by the coupling of the notion of multiple victims with the notion of multiple offences: the point being made is that one offence may have multiple victims, as also may a series of offences. I do not think that anything in R v Tadrosse (2006) 65 NSWLR 740 suggests otherwise.

Where an offender is charged with multiple offences, in which the victims are the same for each offence, there are not, in relation to each offence, multiple victims: McCabe v R (2006) 164 A Crim R 344 at [10].

To top [11-190] Section 21A(2)(n) — the offence was part of a planned or organised criminal activity

The scope of s 21A(2)(n) was considered in Hewitt v R (2007) 180 A Crim R 306. Hall J derived several general propositions from prior cases about the operation of the provisions at [25]. These are set out below:

(a) 

The wording of the provision conveys more than simply that the offence was planned: Fahs v Regina

(b) 

In a case where an offender has been charged with multiple drug trafficking offences, a conclusion may be drawn that it is part of a planned or organised criminal activity …

(c) 

The expression “organised criminal activity” may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia v Credit Connection [2005] NSWSC 1118, Campbell J observed at [72]:

“In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by ‘organised criminal activity’. In one sense, ‘organised criminal activity’ involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation.”

His Honour also observed:

“… as a matter of ordinary English, to think that ‘planned criminal activity’ has any necessary element in it of there being more than one person involved … For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person.” (at [74] and [75]).

(d) 

Offences committed over a period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of paragraph (n): NCR Australia (supra) at [76].

(e) 

In determining whether the facts give rise to “planning” as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in Regina v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]:

“It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning.”

(f) 

Planning that is “… somewhat haphazard, clumsy in many respects and bound to fail …” may nevertheless be sufficient so as to enliven the application of s 21A(2)(n): Regina v Willard [2005] NSWSC 402 per Whealy J at [32]. [Emphasis in original.]

The fact that there are several offences revealing some broad pattern of behaviour does not mean there is relevant “planning” for the purposes of s 21A(2)(n): RL v R [2015] NSWCCA 106 at [36]–[37]. In RL v R, a child sexual assault case, the court held that the applicant’s offences committed over a five-year period, did not involve planning but rather demonstrated opportunistic behaviour.

Section 21A(2)(n) can only be applied to the cultivation of a large commercial quantity of cannabis plant if its nature or extent in the particular case is unusual: Ta and Nguyen v R [2011] NSWCCA 32 at [126]. It is unclear whether planning under s 21A(2)(n) applies only where the offender has been involved in the planning of the offence, or whether it is sufficient that the offence itself was planned to take planning into account as an aggravating factor. The court has taken two different approaches on this matter as follows. Simpson J in Legge v R [2007] NSWCCA 244 said at [34]:

S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation.

However, in Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359, Latham J said at [56]:

Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning.

The apparent differences of approach were raised in SS v R [2009] NSWCCA 114 at [97]–[99], but due to a concession by the Crown, the issue was not resolved.

To top [11-195] Section 21A(2)(p) — prescribed traffic offence committed while child under 16 years was passenger in offender’s vehicle

Section 21A(2)(p) was inserted on 16 November 2011 (s 2, LW 16.11.11) by the Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011 to provide that it is an aggravating factor for a prescribed traffic offence if it is committed while a child under 16 years of age was a passenger in the offender’s vehicle. A “prescribed traffic offence” is defined in s 21A(6).

To top [11-200] General observations about s 21A(3)

Some of the mitigating factors set out under s 21A(3) reciprocally mirror the aggravating factors set out in s 21A(2). For example, the circumstance that the injury, emotional harm, loss or damage caused by the offence was substantial is an aggravating factor; while the circumstance that the injury, emotional harm, loss or damage caused by the offence was not substantial is a mitigating factor.

To top [11-210] Section 21A(3)(a) — the injury, emotional harm, loss or damage caused by the offence was not substantial

This factor operates so as to mitigate the objective seriousness of the offence and is the converse of the aggravating factor set out under s 21A(2)(g).

When considering the mitigating factor in s 21A(3)(a), a court should not assume there is no lasting impact on a victim. The court should assume that the effect upon a victim of an armed robbery is substantial and this is taken into account in the penalty to be imposed. If there is evidence of a long lasting effect on the victim, this might be a matter of aggravation: R v Bichar [2006] NSWCCA 1 at [22], applying R v Solomon (2005) 153 A Crim R 32.

The fact that there is no substantial loss or damage that results from the offence does not necessarily diminish the offender’s criminality. “Although it is calculated to reduce the demands of retribution, it does not impact on the weight to be given to most of the purposes of sentencing”: Van Can Ha v R [2008] NSWCCA 141 at [43].

To top [11-220] Section 21A(3)(b) — the offence was not part of a planned or organised criminal activity

This factor, when present, will detract from the objective seriousness of offence and may be contrasted with offences that are planned or organised prior to their commission: see s 21A(2)(n). A claim of spontaneity under s 21A(3)(b) was rejected in the malicious damage of property by fire case of Porter v R [2008] NSWCCA 145 at [46].

To top [11-230] Section 21A(3)(c) — the offender was provoked by the victim

This provision gives statutory recognition to the principle that, where offences are committed under provocation, the provocation mitigates the seriousness of the offence: R v Engert (1995) 84 A Crim R 67 at 68 and 71; R v Cioban (2003) 139 A Crim R 265.

However, not in every case does the explanation of an offender’s conduct, whether characterised as provocation or not, operate as a mitigating factor. The motive must impinge on the offender’s moral culpability. The degree to which motive can be seen as pertinent depends on all the circumstances, the most significant of which is the nature of the offence: R v White (unrep, 23/6/98, NSWCCA). An offender cannot simply take the law into his or her own hands: R v Buddle [2005] NSWCCA 82 at [11].

Where provocation is established such that it is a mitigating factor under s 21A(3)(c), it is a fundamental quality of the offending which may reduce its objective seriousness. There cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account: Williams v R [2012] NSWCCA 172 at [42]. The absence of provocation is not a factor in aggravation and does not increase the objective seriousness of the offence: Williams v R at [43]. In Pitt v R [2014] NSWCCA 70 at [57], [65], the extreme provocation of the deceased and his brother towards the applicant was one of the bases upon which the court intervened and reduced the sentence for manslaughter.

Evidence of “relationship tension and general enmity … leading up to the offence”, while part of the overall circumstances in which the offence occurred, “does not constitute evidence of provocation such as to amount to mitigation”: Shaw v R [2008] NSWCCA 58 at [26].

To top [11-240] Section 21A(3)(d) — the offender was acting under duress

In ordinary language, duress implies forcible restraint and compulsion: R v N (1999) 106 A Crim R 493 per Adams J at [35].

Section 21A(3)(d) must be interpreted in light of the common law on the subject. Where an offender commits a crime while acting under duress which falls short of a complete defence to the charge, this “non-exculpatory duress” is capable of being a mitigating factor at sentence: Tiknius v R [2011] NSWCCA 215 (although the case concerned a Commonwealth offence the court declared the common law on the subject). Non-exculpatory duress may be taken into account as a mitigating factor for two reasons: it may affect the degree of the offender’s subjective or moral culpability and prospects of rehabilitation: Tiknius v R at [41]. It is relevant to the assessment of objective gravity if an offence is committed because of threats and fear of harm to oneself or others rather than financial profit or greed. These matters bear upon the moral or true culpability of an offender: R v Z (2005) 2 AC 467 at [22]. Where the source of duress is conduct of persons in another country a court is entitled to approach such claims with a significant degree of circumspection as claims may be easily made: Tiknius v R at [45].

Where the offender satisfies the court that the commission of the offence was affected by duress, the weight given to that factor involves the court considering, inter alia, the form and duration of the offender’s criminal conduct, the nature of the threats made, and opportunities available to the offender to report the matter to relevant authorities: Tiknius v R at [49]. Thus in Kuti v R [2012] NSWCCA 43 duress was a mitigating factor to some extent, but not such as to remove the need for deterrence. In Lindsay v R [2012] NSWCCA 124 the judge was not convinced that pressure from the offender’s “creditors” was “pressing on him as a motivation to commit [the] crime”.

In R v Ceissman [2004] NSWCCA 466 at [24] Wood CJ at CL considered “economic duress” as a motive for participation in the offence of aggravated break enter and steal in company, contrary to s 112(2) Crimes Act, and held that it did not mitigate the respondent’s objective criminality. The respondent’s participation in the offence stemmed from independent criminal conduct arising out of his continued association with career criminals: at [24].

This principle has been subsequently applied by Spigelman CJ in R v N at [57]–[59].

To top [11-250] Section 21A(3)(e) — the offender does not have any record (or any significant record) of previous convictions

At common law offenders without prior convictions may generally expect to be treated more leniently than those with previous convictions. The presence of relevant priors is an aggravating factor: see s 21A(2)(d).

See discussion of this factor in Prior record at [10-400].

Where the offender has a record of previous convictions at the time of appearing for sentencing of an offence, but the record is in relation to offences which were committed after the offence before the court, it is an error to consider the absence of a prior record as a mitigating factor: R v MAK & MSK (2006) 167 A Crim R 159 at [59]–[60].

To top [11-260] Section 21A(3)(f) — the offender was a person of good character

See discussion in Subjective Matters Taken into Account at [10-410].

The reference to “good character” in s 21A(3)(f) relates to the character of the offender prior to the commission of the offence: Lozanovski v R [2006] NSWCCA 143 at [12]. This was confirmed in Aoun v R [2007] NSWCCA 292 at [22] where it was explained that s 21A(3)(f) deals with previous good character due to the presence of the word “was” in the provision.

In R v PGM [2008] NSWCCA 172, Fullerton J considered that where there is a pattern of re-offending over an extended period in the course of an ongoing relationship fostered for the commission of the offence, “a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending … diminishes the mitigating impact of a finding of good character”: at [44].

Section 21A(5A) provides that, in determining the appropriate sentence for a child sexual offence (as defined in s 21A(6)), an offender’s good character or lack of previous convictions is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

It was observed by Hodgson JA in Aoun v R [2007] NSWCCA 292 at [23] that:

if there is evidence suggesting criminal conduct other than that for which an offender is being punished, that may be taken into account by a sentencing judge in deciding whether or not the accused has shown previous good character on the balance of probabilities …

For s 21A(5A) to apply, the sentencing judge should make an express finding specific to the offender that good character or lack of previous convictions assisted the offender in the commission of the offence: NLR v R [2011] NSWCCA 246.

To top [11-270] Section 21A(3)(g) — the offender is unlikely to re-offend

This mitigating factor involves a favourable assessment or prediction relating to an offender’s future offending behaviour. It is commonly linked to a positive finding that the offender has good prospects for rehabilitation and, accordingly, will often influence the selection of the dominant purpose of sentencing. Its influence is particularly noticeable in borderline cases of imprisonment, where the sentencing court resolves not to impose a full-time custodial sentence on the basis that neither the principle of general deterrence nor concern for protection of society from the offender appear justified.

To top [11-280] Section 21A(3)(h) — the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise

In Elyard v R [2006] NSWCCA 43 the court held that the judge failed to take into account the applicant’s good prospects of rehabilitation, per s 21A(3)(h). The judge found that the applicant had poor prospects of rehabilitation without providing a cogent basis for rejecting the psychologist’s report, which referred to the applicant’s objective progress in terms of a significant and measurable improvement in attitudes to drugs and alcohol abuse. Basten JA and Hall J, in separate judgments, found that his Honour failed to give proper weight to the psychologist’s opinions: Basten JA at [27], Hall J at [92].

In the circumstances of a case, it may be that even though someone is unlikely to re-offend, their prospects of rehabilitation are not so favourable: Barlow v R [2008] NSWCCA 96 at [91]. It was possible to reconcile these seemingly inconsistent findings on the facts in Barlow v R.

To top [11-290] Section 21A(3)(i) — remorse shown by the offender

For an explanation of remorse at common law see Alvares v R; Farache v R (2011) 209 A Crim R 297 at [44] extracted at Subjective matters taken into account at [10-420]. In essence remorse means regret for the wrongdoing the offender’s actions caused and, as a feature of post offence conduct, may be relied upon to mitigate penalty: Windle v R [2011] NSWCCA 277 at [44].

The section was amended to provide that remorse may be taken into account, “but only” if the offender has provided evidence that he or she has accepted responsibility for his or her actions, and has acknowledged any injury, loss or damage caused by his or her actions, or made reparation (or both). The impact of this provision (if any) on the common law (given the terms of s 21A(4): see [11-040]) is yet to be decided, and it is worth noting that there is no equivalent provision which states that s 21A(3)(i) has “effect despite any Act or rule of law to the contrary” as there is for the special rules for child sexual offences in s 21A(5A), (5B). Ultimately, so far as this statutory form of remorse is concerned, the question will turn on whether “evidence” has been provided. This requirement in s 21A(3)(i) to provide evidence of remorse does not equate with a requirement that an offender give evidence of remorse: Butters v R [2010] NSWCCA 1 at [17]; Alvares v R; Farache v R at [65]; Doumit v R [2011] NSWCCA 134 at [19]; Sun v R [2011] NSWCCA 99 at [25], [31].

The court should not simply disregard evidence of remorse because the offender does not go into the witness box and give evidence. It is however relevant to the weight of the evidence: Butters v R at [18]; Mun v R [2015] NSWCCA 234 at [37]. This is consistent with the court cautioning against uncritical reliance on material contained in tendered reports where an offender does not give evidence: R v Qutami (2001) 127 A Crim R 369.

McClellan CJ at CL said in Pfitzner v R [2010] NSWCCA 314 at [33]:

it does not follow that if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made.

The practice of offenders relying on hearsay statements for findings of fact in their favour is not uncommon, however, this practice is to be discouraged: Halac v R [2015] NSWCCA 121 at [106].

An assessment of the genuineness of remorse is likely to be better informed when expressed directly, that is, face to face because it is intrinsically a subjective matter: Alvares v R; Farache v R at [65]; Mun v R at [39]. The evidence before the judge in Windle v R at [54] did not satisfy the section since there was no evidence showing the applicant accepted responsibility for his actions; nor did he acknowledge or pay any reparation for the loss caused.

A judge is not obliged to accept assertions of contrition made by an offender: R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21].

It is an error for a judge to look for evidence of contrition (or lack of contrition) only at the time of the commission of the offence, without regard to evidence of contrition at a later point in time: R v Johnston [2005] NSWCCA 80 at [28]. Later evidence of contrition — which appeared genuine and indicated the beginning of progress towards rehabilitation — should be taken into account by the sentencer.

The strength of the Crown case is a relevant consideration in relation to the evaluation of remorse.

The court should not quantify the reduction for remorse either separately or as part of the utilitarian discount for the plea: R v Borkowski [2009] NSWCCA 102 at [32]. Given that s 21A makes specific provision for remorse to be considered as a separate mitigating factor, to include it as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting: Kite v R [2009] NSWCCA 12 at [12].

Remorse is a major factor in determining whether an offender is unlikely to re-offend (s 21A(3)(g)) and has good prospects of rehabilitation (s 21A(3)(h)). “Without true remorse it is difficult to see how either finding could be made”: R v MAK & MSK (2006) 167 A Crim R 159 at [41].

The reference in s 21A(3)(i)(ii) to reparation as a mitigating factor requires that before this factor comes into play, there must be evidence that the reparation has already been made at the time of sentence: R v Cage [2006] NSWCCA 304 at [34].

To top [11-300] Section 21A(3)(j) — the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability

It has not been judicially determined just how the expression “not fully aware of the consequences of his or her actions because of the offender’s age” is to be applied or whether it adds anything to the common law on the subject. A narrow reading would suggest that the subsection would apply to very young offenders. The common law recognises “the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law”: KT v R (2008) 182 A Crim R 571 at [23]. Similarly, it is doubtful whether the subsection adds to the common law in relation to the relevance of the offender’s mental condition at sentence as expressed in Muldrock v The Queen (2011) 244 CLR 120 at [54]. In Taylor v R [2006] NSWCCA 7 the sentencing judge should have found that the applicant suffered from a “disability” and that his mental condition was a mitigating factor under s 21A(3)(j).

See further, Subjective matters taken into account at [10-460] and Relevance of youth at sentence at [15-015].

To top [11-310] Section 21A(3)(k) — a plea of guilty by the offender

See Guilty plea to be taken into account at [11-500].

To top [11-320] Section 21A(3)(l) — the degree of pre-trial disclosure by the defence

The Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 was assented to on 18 April 2001 and commenced on 19 November 2001. It introduced procedures whereby the court could, on a case by case basis, impose pre-trial disclosure requirements on both the prosecution and the defence, in order to reduce delays in complex criminal trials. Now see Ch 3 Pt 3 Div 3 Criminal Procedure Act 1986.

Although s 22A Crimes (Sentencing Procedure) Act provides that a court may take into account the degree to which the offender cooperates with the court in making pre-trial disclosures, and may impose a lesser penalty than it would otherwise (s 22A(1)), any such lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence (s 22A(2)).

See Power to reduce penalties for pre-trial disclosure at [11-910].

To top [11-330] Section 21A(3)(m) — assistance by the offender to law enforcement authorities

See Power to reduce penalties for assistance to authorities at [12-200].

To top [11-335] 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.

For a discussion of the effect this subsection has on the common law, see Subjective matters taken into account at [10-480]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.

To top [11-340] Section 24A — mandatory requirements for supervision of sex offenders and prohibitions against child-related employment to be disregarded in sentencing

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 [17-570].

To top [11-350] 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. As to the approach to a drug proceeds order see R v Hall [2013] NSWCCA 47.