Subjective matters taken into account (cf s 21A(1))

[10-400] Prior record

Section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 and the common law

Section 21A(2) (aggravating factors) Crimes (Sentencing Procedure) Act 1999 provides:

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

(d) 

the offender has a record of previous convictions.

Section 21A(4) provides:

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.

The Court of Criminal Appeal sat a bench of five in R v McNaughton (2006) 66 NSWLR 566 to settle how prior criminal record should be used against an offender in light of the common law and the terms of s 21A(2). The following sequential propositions can be extracted from the case with reference to the principle of proportionality:

1. 

The common law principle of proportionality requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: R v McNaughton at [15]; Veen v The Queen (No 2) (1988) 164 CLR 465; Hoare v The Queen (1989) 167 CLR 348 at 354.

2. 

Prior offending is not an “objective circumstance” for the purposes of the application of the proportionality principle: R v McNaughton at [25]; Veen v The Queen (No 2); Baumer v The Queen (1988) 166 CLR 51. It is not open for a court to use prior convictions to determine the upper boundary of a proportionate sentence.

3. 

Prior convictions are pertinent to deciding where, within the boundary set by the objective circumstances, a sentence should lie: R v McNaughton at [26].

4. 

Prior record is not restricted only to an offender’s claim for leniency: R v McNaughton at [20]; Veen v The Queen (No 2) at 477. As stated in Veen v The Queen (No 2) at 477, prior record is also relevant:

… to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.

5. 

There is a difficulty with the reference in Veen v The Queen (No 2) to prior convictions “illuminating” the offender’s “moral culpability”: R v McNaughton at [26]. Taking into account in sentencing for an offence all aspects, both positive and negative, of an offender’s known character and antecedents, is not to punish the offender again for those earlier matters: R v McNaughton at [28]. As Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Weininger v The Queen (2003) 212 CLR 629 at [32]:

A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.

6. 

The aggravating factor of prior convictions under s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 should be interpreted in a manner consistent with the proportionality principle in Veen v The Queen (No 2) at 477; R v McNaughton at [30]. Prior criminal record “cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”.

7. 

The reference to “aggravating factors” in s 21A(2) does not mean that s 21A(4) should be applied to deprive s 21A(2)(d) of any effect: R v McNaughton at [33]. The words “aggravating factors” in s 21A(2) should not be interpreted as if they were a reference only to “objective considerations”. 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 at [34]. Parliament has not used the word “aggravation” in its common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and s 21A(2)(h) and (j) supports that interpretation. Thus, prior criminal record may be used in the manner set out in Veen v The Queen (No 2) at 477, as a subjective matter adverse to an offender via s 21A(2)(d). The statement by Howie J in R v Wickham [2004] NSWCCA 193 at [24], that “[o]n its face [s 21A(2)(d)] would indicate that a prior criminal record is a matter of aggravation by making the offence more serious”, confines s 21A(2) to objective considerations and is therefore disapproved.

The court in Hillier v DPP (2009) 198 A Crim R 565 and Van der Baan v R [2012] NSWCCA 5 at [34] reiterated the above approach.

Requirement to state the precise manner prior record is taken into account under s 21A(2)(d)

It is incumbent upon the court to explain the manner in which the factor has been taken into account. A passing reference to s 21A(2)(d) is unsatisfactory: R v Walker [2005] NSWCCA 109 at [32]; R v Tadrosse (2005) 65 NSWLR 740 at [21]; Doolan v R (2006) 160 A Crim R 54 at [20]; Adegoke v R [2013] NSWCCA 193 at [35].

Undetected or ongoing criminal offending

If an offender has committed offences that had gone undetected and unpunished until current proceedings, or is being punished for a series of ongoing offences, the offender may have no record of prior convictions despite having committed numerous offences.

In R v Smith (2000) 114 A Crim R 8, a case which involved ongoing misappropriation of funds, the Court of Criminal Appeal said at [21]–[22]:

[The offender] was not a first offender from the time he committed the second offence, only he had not been caught out. See also R v Phelan (1993) 66 A Crim R 446 at 448.

In many respects the position may be compared with a sexual offender who commits a number of offences on young persons over a number of years where those offences go undetected for a long time. He cannot rely on the fact that he has no previous convictions when he comes to be sentenced for those offences. These offences are of a very different nature but, so far as relying on prior good character, it seems to me that similar considerations apply.

Gap in history of criminal offending

Where an offender’s criminal record discloses a long “gap” in offending — a period in which no convictions have been recorded — this may provide a basis for inferring the offender has reasonable prospects of rehabilitation and may be unlikely to return to crime in the future: Ryan v The Queen (2001) 206 CLR 267 at 288. This assessment, however, still depends upon the circumstances of the individual case.

For example, in R v Johnson [2004] NSWCCA 76 at [29], the court held that, despite a gap in offending of over 10 years, the nature of the crimes committed both before and after the gap “could hardly inspire confidence concerning his rehabilitation or the unlikelihood of his returning to crime” and that leniency was plainly unwarranted.

Subsequent offending/later criminality

Offences in the offender’s record which were committed after the date of the offence for which the offender stands for sentence may not be taken into account for the purposes of imposing a heavier sentence, but may be considered for the purposes of deciding whether the offender is deserving of leniency: R v Hutchins (1958) 75 WN (NSW) 75; R v Kennedy (unrep, 29/5/90, NSWCCA) at p 5, R v Boney (unrep, 22/7/91, NSWCCA); Bingul v R [2009] NSWCCA 239 at [69]. In Charara v DPP (2001) 120 A Crim R 255 at [38], the court queried the logic of the reasoning in R v Hutchins:

It is obvious that, even if taken into account only for the purpose of withholding leniency, offences committed after the offence for which sentence is imposed can result in increased punishment in the sense that the punishment is greater than it would have been in the absence of the later offences.

Charara v DPP was quoted with approval in R v MAK (2006) 167 A Crim R 159 at [58].

In R v MAK, the judge erred by treating as a mitigating factor the absence of any criminal record notwithstanding the commission of later sexual offences. The later offending illustrated that the conduct for which the offender stood for sentence was not an aberration but rather the start of a course of conduct: R v MAK at [60]. The later offending was relevant not by way of aggravating the offences but by depriving the offender of any leniency to which he might otherwise have been entitled by the fact that he had no criminal record at the time of the commission of the original offences: R v MAK at [59]. The fact that the offender had no criminal record at the time was not considered to be a significant factor in the determination of the appropriate sentence. The court in R v MAK at [61] articulated the tension between the authorities as follows:

We appreciate that less regard might be paid to later offending because at the time of the offence for which sentence is to be passed the offender has not been subject to the “formal condemnation of the law” or been given “the warning as to the future which the conviction experience implies”; see [R v] McInerney [(1986) 42 SASR 111] at 113 applied in R v Bui (2002) 137 A Crim R 220 at [27]. But in the circumstances of this case and given the seriousness of the conduct for which he was before Hidden J we do not think that the fact that MAK had not been convicted of sexual assault offences when he committed the offences against TW or TA was a basis for treating as a mitigating factor the absence of any criminal record.

Prior convictions subject of pending appeal

Prior convictions are to be taken into account even in circumstances where the convictions are the subject of a pending appeal on the basis that verdicts are not to be treated as provisional, pending their confirmation on appeal: R v Sinanovic [2000] NSWCCA 394 at [84].

Spent convictions

The Criminal Records Act 1991 implements a “scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history”: s 3(1).

Where a conviction becomes spent (in most cases, after a period of 10 years without further convictions) the conviction ceases to form part of the offender’s criminal record. For general purposes other than in proceedings before a court, an offender is not required to disclose spent convictions when questioned as to his or her criminal record: s 12.

Because s 12 does not apply to proceedings before courts (s 16), a court may have regard to a spent conviction, and the general rule that the conviction need not be disclosed does not apply.

A court must take reasonable steps to ensure an offender’s privacy before admitting evidence of a spent conviction: s 16(2).

Section 10 bonds

The use of the phrase “record of previous convictions” in s 21A(2)(d) excludes s 10 orders under the Act: R v Price [2005] NSWCCA 285 at [36]. A s 10 order does not form part of an offender’s record of previous convictions. If a s 10 order is to be taken into account it must be done by applying the specific common law principles in Veen v The Queen (No 2) in a limited way: R v Price at [38].

The absence of a prior record as a mitigating factor

Section 21A(3)(e) provides that a mitigating factor to be taken into account in determining the appropriate sentence for an offence includes the offender not having any record (or any significant record) of previous convictions. However, the provision or the common law on the subject does not apply where the special rule for child sexual assault offences in s 21A(5A) applies (see further below).

Proof of prior convictions

Prior convictions may be formally proved under the provisions of the Evidence Act 1995, s 178. It provides that a certificate may be issued by a judge, magistrate, registrar or other proper officer of the court detailing particular convictions and sentences. Such a certificate is proof not only of the conviction or sentence itself, but also evidence of “the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate”: s 178(3).

Foreign convictions

Evidence of previous convictions in a foreign country may be taken into account in sentencing, even though the foreign procedures have not conformed to local trial methods: R v Postiglione (1991) 24 NSWLR 584 per Grove J at 590.

Federal offenders

A court sentencing a federal offender must take into account antecedents: s 16A(2)(m) Crimes Act 1914 (Cth). See also Weininger v The Queen (2003) 212 CLR 629.

Child offenders

A distinction needs to be made between recording a conviction in respect of an offence committed by a juvenile and the admission of evidence of prior offences, where those offences were committed by a juvenile.

Recording a conviction

Section 14(1) Children (Criminal Proceedings) Act 1987 deals with recording a conviction against a child. It provides that a court shall not, in respect of any offence, proceed to, or record, a conviction in relation to a child who is under the age of 16 years. However, in respect of an offence which is disposed of summarily, the court may either refuse to proceed or record a conviction in relation to a child who is of or above the age of 16 years.

Subsection (1) does not limit any power of a court to proceed to, or record, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily: s 14(2).

Admission of evidence of prior offences

Section 15 sets out the test for the admission of evidence of prior offences where those offences were committed when the offender was a child. It provides:

(1)

The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if:

(a) 

a conviction was not recorded against the person in respect of the first mentioned offence, and

(b) 

the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.

(2)

Subsection (1) or (3) does not apply to any criminal proceedings before the Children’s Court.

(3)

The fact that a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 (being in respect of an alleged offence committed when the person was a child) is not to be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence.

In R v Tapueluelu [2006] NSWCCA 113 Simpson J (Grove and Howie JJ agreeing) said at [30]:

s 15 is intended to protect a person who has remained crime free for a period of two years from suffering the admission of evidence of offences committed outside of that period, but once it is established that the crime-free period has not existed, then evidence of any other offences, whenever committed, does become admissible, or at least they are not subject to the prohibition otherwise contained in s 15. That is the only logical way of reading s 15.

Duty of Crown to furnish antecedents

The Crown has a duty to assist the court by furnishing appropriate and relevant material touching on sentence, including the offender’s criminal antecedents report. This is a well recognised obligation and it is difficult to see how the sentencing process could be properly carried through without the Crown fulfilling it: R v Gamble [1983] 3 NSWLR 356 at 359.

[10-410] Good character

At common law, and now under s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999, the good character of the offender is a matter that may be taken into account in mitigation of penalty.

Special rule for child sexual offences

There is a statutory exception to this rule introduced by the Crimes Amendment (Sexual Offences) Act 2008. An offender’s good character or lack of previous convictions is not to be taken into account as a mitigating factor for a child sexual offence if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence: s 21A(5A). Section 21A(5A) has effect despite any Act or rule of law to the contrary: s 21A(5B). “Child sexual offence” is defined in s 21A(6). The exception applies to the determination of a sentence for an offence whenever committed unless, before the commencement of the amendments on 1 January 2009, a court has convicted the person being sentenced of the offence or accepted a plea of guilty (which has not been withdrawn): Sch 2 Pt 19 cl 59 Crimes (Sentencing Procedure) Act.

In order for s 21A(5A) to apply the court should make an express statement that it is satisfied that an offender’s good character or lack of previous convictions had been of assistance to the offender in the commission of the offence: NLR v R [2011] NSWCCA 246 at [31]. In O’Brien v R [2013] NSWCCA 197, the court held that the sentencing judge erred by taking into account the applicant’s good character and lack of previous convictions as a mitigating factor in sentencing. Section 21A(5A) arguably precluded it being taken into account in that way since the applicant’s good character and position as a responsible member of the community appears to have been of assistance to him in befriending the victim’s family and facilitating the commission of the offences: O’Brien v R at [40]. Similarly, in R v Stoupe [2015] NSWCCA 175, the court held the respondent’s good character assisted him to hold the position of a childcare worker which he abused by committing the offences against the victim. The case fell squarely within the terms of s 21A(5A): R v Stoupe at [86].

On the other hand, in AH v R [2015] NSWCCA 51, the court held that the judge should not have applied s 21A(5A). Although the offender’s relationship with the victim’s mother and the trust which that engendered created an environment in which the offences could be committed, his good character could not be said to have assisted him in the commission of the offences: AH v R at [25].

Circumstances where good character may carry less weight

There are also classes of offences where good character may carry less weight than others because they are frequently committed by persons of otherwise good character. For example, it has been held that less weight may be afforded to this factor in cases of:

  • drug couriers: R v Leroy (1984) 2 NSWLR 441 at 446–447

  • dangerous driving: R v McIntyre (1988) 38 A Crim R 135 at 139

  • drink driving: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at [118]–[119]

  • child pornography offences: R v Gent (2005) 162 A Crim R 29 at [64]; and white-collar offences: R v Gent at [59]

  • child sexual assault offences where s 21A(5A) does not apply on the facts. The common law position is set out in R v PGM (2008) 187 A Crim R 152 at [43]–[44] and Dousha v R [2008] NSWCCA 263 at [49].

As to adding to the above list, it has been held that there is not a sufficient basis to add offences involving possession of prohibited firearms, but the court can consider the issue of weight in an individual case: Athos v R [2013] NSWCCA 205 at [44].

The category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character is not closed: R v Gent at [61].

Ryan v The Queen (2001) 206 CLR 267, a case involving a paedophile priest, is a leading case discussing good character. What was said there is now subject to the special rule in s 21A(5A) described above. McHugh J in Ryan v The Queen at [23] and [25] said that when considering the element of prior good character the court must distinguish two logically distinct stages:

1. 

It must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced.

2. 

If a prisoner is of otherwise good character, the sentencing judge is bound to take that fact into account.

The weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case: Ryan v The Queen at [25].

The law on good character, including Ryan v The Queen, is comprehensively reviewed by Johnson J in R v Gent at [51]. The weight to be given to good character on sentence depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan v The Queen at [143].

In R v Kennedy [2000] NSWCCA 527 at [21]–[22] and later Jung v R [2017] NSWCCA 24, it was held that little or no weight may be attributed to an offender’s prior good character where:

  • general deterrence is important and the particular offence before the court is serious and one frequently committed by persons of good character;

  • the prior good character of the offender has enabled the offender to gain a position where the particular offence can be committed. In Jung v R, the offender’s good character prior to the offences he committed against his clients was of no real assistance to him: Jung v R at [56]. Good character was a precondition to his registration as a physiotherapist. The offender’s position provided him access to patients and gave him the opportunity to offend: Jung v R at [57]–[58];

  • there is a pattern of repeat offending over a significant period of time.

The otherwise good character of the offender is only one of a number of matters the court must consider and the nature and circumstances of the offence is of utmost importance: R v Gent at [53].

Where a person has been convicted of an offence or offences to which he or she has expressly admitted being “representative”, or where there is uncontested evidence supporting such a proposition, the offender should not be given credit for being of prior good character: R v JCW (2000) 112 A Crim R 466, considered in R v Weininger (2000) 119 A Crim R 151 at [51]–[56].

The good reputation of the offender sometimes occurs only because the offences are committed in secret and the offences themselves are seldom committed “out of character” because they are premeditated: R v Levi (unrep, 15/5/97, NSWCCA). Gleeson CJ, however, added the following observation:

there is a certain ambiguity about the expression “good character” in a context such as the present. Sometimes it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community.

This was referred to in the judgment of McHugh J in Ryan v The Queen at [27] and again in R v Gent at [49].

[10-420] Contrition

In Alvares v R (2011) 209 A Crim R 297 at [44], Buddin J said:

Remorse in [a sentencing] context means regret for the wrongdoing which the offender’s actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it.

In Roff v R [2017] NSWCCA 208 at [25], the court held:

An offender who is found to be remorseful, in the particular way required by s 21A(3)(i), is entitled to the benefit of that finding in mitigation, and if other things are equal, may anticipate a lesser sentence than a co-offender who has not been found to be remorseful. Thus the absence of remorse may explain why a heavier sentence was imposed upon the co-offender, insofar as it has the consequence that the offender has not been able to establish the mitigating factor of remorse. However, as was common ground on appeal, regard may not be had to the absence of remorse in imposing a heavier sentence.

The preferable course is not to quantify a discount for remorse, see Section 21A(3)(i) — remorse shown by the offender at [11-290].

The extent to which leniency will be afforded on the ground of contrition will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: R v Winchester (1992) 58 A Crim R 345. The strength of the Crown case is relevant to the question of remorse: R v Sutton [2004] NSWCCA 225 at [12].

The value of a plea of guilty as evidence of contrition is not reduced as a consequence of the Crown case being strengthened by the offender’s assistance to authorities. An offender who takes the course of admitting guilt at an early stage should not, because of that, lose the benefit of a subsequent plea of guilty: R v Hameed (2001) 123 A Crim R 213 at [4]–[6].

In addition to remorse, a plea of guilty may indicate acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339. A failure to show remorse is not a justification for increasing the sentence. An offender’s reluctance to identify his co-offenders in a drug case was not an indication of an absence of remorse because of the well-known reasons why such offenders might be reluctant: Pham v R [2010] NSWCCA 208 at [27].

See further Ameliorative conduct or voluntary rectification at [10-560]; Section 21A(3)(i) — remorse shown by offender at [11-290]; principle 5 in relation to discount and remorse in The R v Borkowski principles at [11-520]; and General sentencing principles applicable to Commonwealth offenders at [16-010].

[10-430] Age

See also Youth at [10-440].

Advanced age

At common law an offender’s age is a relevant subjective consideration at sentence: R v Yates (1984) 13 A Crim R 319 at 328; [1985] VR 41 at 50. There is also a statutory basis for taking age into account age as a mitigating factor at sentence under s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999, where “the offender was not fully aware of the consequences of his or her actions” because of the offender’s age. Section 16A(2)(m) Crimes Act 1914 (Cth) requires the court to take into account age for Commonwealth offenders. However, as in the case of other subjective considerations, the court must nevertheless impose a sentence which reflects the objective seriousness of the offence: R v Gallagher (unrep, 29/9/95, NSWCCA); R v McLean (2001) 121 A Crim R 484 at [44]; R v Knight [2004] NSWCCA 145 at [33]; Des Rosiers v R (2006) 159 A Crim R 549 at [32].

Advanced age may affect the type or length of penalty to be imposed, and may be relevant in combination with other factors at sentence such as health. Age and health are “relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted”: R v Sopher (1993) 70 A Crim R 570 at 573. See further Health at [10-450].

The extent of any mitigation that results from advanced age will depend on the circumstances of the case, including the offender’s life expectancy and any treatment needed: R v Sopher at 573. Where “serving a term of imprisonment will be more than usually onerous”, age may entitle the offender to some discount on sentence: R v Mammone [2006] NSWCCA 138 at [45]; R v Sopher at 574. A court cannot overlook that each year of a sentence of imprisonment may represent a substantial proportion of the life left of an offender: R v Hunter (1984) 36 SASR 101 at 104. On the other hand, a life sentence may be the appropriate sentence where a person of advanced age commits very serious crimes: R v Walsh [2009] NSWSC 764 at [43].

Age is not a licence to commit an offence: R v Holyoak (1995) 82 A Crim R 502 at 507, following R v DCM (unrep, 26/10/93, NSWCCA). In R v McLean, Wood CL at CL stated at [44]:

Moreover, while the age of a person standing for sentence needs to be taken into account, as do any other circumstances such as the classification of the offender, or illness, that may make imprisonment more onerous, lest a punishment be imposed that is out of proportion to the objective and subjective criminality involved, this cannot give rise to an expectation that the elderly can offend with relative impunity.

Proportionality or balance remains a guiding principle. Undue emphasis cannot be placed “on the subjective factor of an offender’s age, at the expense of other objective and subjective factors”: Des Rosiers v R at [32]. The court in R v Sopher stated at 573:

An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life.

The sentence may unavoidably extend for all or most of the offender’s life expectancy in order to reflect the objective seriousness of the offence: Goebel-McGregor v R [2006] NSWCCA 390 at [128]. Adherence to the principle of proportionality may have the practical effect of imposing a “de facto” life sentence on a person of advanced age: Barton v R [2009] NSWCCA 164 at [22]. In R v Holyoak, Allen J stated at 507:

It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged [sic] of the offender, that he well may spend the whole of his remaining life in custody.

However, a sentence should not be “crushing” in the sense that it “connotes the destruction of any reasonable expectation of useful life after release”: R v Yates (1984) 13 A Crim R 319 at 326; [1985] VR 41 at 48. The Court of Appeal of Victoria later observed that “it does not follow that every sentence which justifiably deserves that epithet [‘crushing’] must on that account and on that account alone be held to be manifestly excessive”: R v Crowley (1991) 55 A Crim R 201 at 206; R v Bazley (1993) 65 A Crim R 154 at 158.

[10-440] Youth

See discussion of s 6 Children (Criminal Proceedings) Act 1987 in 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 at [11-300]; Principles relating to the exercise of criminal jurisdiction at [15-010]; Relevance of youth at sentence at [15-015]; and Sentencing principles applicable to children dealt with at law at [15-090].

[10-450] Health

There are numerous ways in which the intellectual or physical condition of an offender may have an impact on the sentencing process. It has long been the practice of the courts to take into account circumstances which make imprisonment more burdensome for offenders, including considerations pertaining to an offender’s health: R v Bailey (unrep, 3/6/98, NSWCCA) per Lee J, applying R v Smith (1987) 44 SASR 587, per King CJ; Bailey v DPP (1988) 62 ALJR 319. It is only in relatively rare cases that the Smith principle is applicable: R v Badanjak [2004] NSWCCA 395 at [11]. Relevant factors set out in R v Vachalec [1981] 1 NSWLR 351 at 353 include:

  • the need for medical treatment

  • hardship in prison

  • the likelihood of an offender’s reasonable needs being met while imprisoned.

Ill-health cannot be allowed to become a licence to commit crime, nor should offenders expect to escape punishment because of the condition of their health. It is the responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners and the court will not interfere: R v Vachalec per Street CJ; cited with approval in R v Achurch (2011) 216 A Crim R 152 at [135].

Generally, ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his or her state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health: R v Smith, per King CJ at 317; Bailey v DPP; R v Badanjak at [9]–[11]; R v Achurch at [118]; Pfeiffer v R [2009] NSWCCA 145; R v L (unrep, 17/6/96, NSWCCA).

Serious injuries suffered by an offender as a consequence of a motor vehicle accident, for which he or she is responsible are included: R v Wright [2013] NSWCCA 82 at [60]. An offender’s condition need not be as serious as identified in R v Smith or even life threatening: R v Miranda (2002) 128 A Crim R 362. For example, in R v Miranda at [38], the offender had been suffering from bowel cancer. The court found that the inevitable rigidity of the prison system, the need to deal with bowel movements and the extreme embarrassment to the offender on a constant basis, would make the offender’s life very difficult.

In R v Higgins (2002) 133 A Crim R 385, the applicant suffered from the HIV virus. The court held that the criminal system could not give priority to the applicant’s health and must tailor the sentence with an eye to the overriding concern of the welfare and protection of the community generally, as far as common humanity will allow: per Howie J at [32].

Physical disability and chronic illness

As well as the risks associated with an offender’s medical condition, the realities of prison life should not be overlooked: R v Burrell (2000) 114 A Crim R 207 at [27]. This does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require: R v L (unrep, 17/6/96, NSWCCA).

Special circumstances

Serious physical disabilities or poor health rendering imprisonment more burdensome to the offender than for the average prisoner has been held to establish special circumstances warranting a longer period on parole: R v Sellen (1991) 57 A Crim R 313.

Foetal alcohol spectrum disorder (FASD)

In LCM v State of Western Australia [2016] WASCA 164, the West Australian Court of Appeal considered the medical condition of foetal alcohol spectrum disorder (FASD) and how it could be relevant in sentencing proceedings. FASD is a mental impairment and as such engaged sentencing principles relating to an offender’s mental condition: LCM v State of Western Australia at [121]. The case contains a comprehensive discussion of Australian and overseas cases and literature. Mazza JA and Beech J at [123] (Martin CJ agreeing at [1] with additional observations at [2]–[25]) cautioned against the use of generalisations about FASD:

By its nature, and as its name indicates, FASD involves a spectrum of disorders. The particular disorder of an individual with FASD may be severe, it may be minor. FASD may lead to a varying number of deficits of varying intensity. Thus blanket propositions about how a diagnosis of FASD bears on the sentencing process should be avoided. Rather, attention must be directed to the details of the particular diagnosis of FASD, including the nature and extent of the specific disabilities and deficits, and how they bear upon the considerations relevant to sentence.

See also R v MBQ; ex parte Attorney-General (Qld) [2012] QCA 202.

The Australian Medical Association (AMA) acknowledges that FASD occurs in Australia and recommends in the AMA 2016 position statement on FASD:

7. Implementation of strategies that identify and support people with FASD who come into contact with the education, criminal justice and child protection systems.

[10-460] The relevance of an offender’s mental condition

The fact that an offender was, or is, suffering from a mental disorder or disability either at the time of the commission of the offence or at the time of sentencing may be taken into account at sentencing: R v Anderson [1981] VR 155; (1980) 2 A Crim R 379. In summary proceedings, it may be relevant to a s 32 application under the Mental Health (Forensic Provisions) Act 1990 (see [90-050]).

An offender’s mental condition can have the effect of reducing a person’s moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]; Skelton v R [2015] NSWCCA 320 at [141].

The High Court explained the rationale for the principle in Muldrock v The Queen at [53]:

One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, [in R v Mooney in a passage that has been frequently cited, said this [(unrep, 21/6/78, Vic CCA) at p 5]:

“General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”

The High Court continued at [54]:

The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community. [Footnotes excluded.]

Sentencing an offender who suffers from a mental disorder commonly calls for a “sensitive discretionary decision”: R v Engert (1995) 84 A Crim R 67 at 67. This involves the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 488. The purposes overlap and often point in different directions. It is therefore erroneous in principle to approach sentencing, as Gleeson CJ put it in R v Engert at 68:

as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

Some of the types of mental conditions that offenders can have are described in Intellectual Disability and Rights Service, “Step by Step Guide to Making a Section 32 Application for a Person with an Intellectual Disability”, October 2011, accessed 11 April 2012. The broad term “developmental disability” is used in the publication to cover “disability categories such as: intellectual disability, cerebral palsy, epilepsy, autism (including Asperger disorder) and some neurological conditions (at p 8, referencing Errol Cocks, An Introduction to Intellectual Disability in Australia, 3rd edn, Australian Institute on Intellectual Disability, 1998). Mental condition also includes a disability of mind resulting from acquired brain injury (at p 11).

It should not be assumed that all the mental conditions recognised by the Diagnostic and Statistical Manual of Mental Disorders DSM (IV), 4th edn, American Psychiatric Association, 2000, Washington DC, attract the sentencing principle that less weight is given to general deterrence: R v Lawrence [2005] NSWCCA 91. Some conditions do no attract the principle. Spigelman CJ cited literature on the limitations of DSM (IV) at [23] and said at [24]:

Weight will need to be given to the protection of the public in any such case. Indeed, one would have thought that element would be of particular weight in the case of a person who is said to have what a psychiatrist may classify as an Antisocial Personality Disorder.

Note: Diagnostic and Statistical Manual of Mental Disorders DSM-5, 5th edn, 2013 is now available.

Standard non-parole period provisions

The High Court said in Muldrock at [27] that: “The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.” The snpp statutory scheme was amended following Muldrock see discussion at What is the standard non-parole period? at [7-910] and Consideration of the standard non-parole period in sentencing at [7-920].

Section 21A(3)(j) also refers to an offender not being aware of the consequences of his or her actions because of a disability, as a mitigating factor. Whatever it may mean, the terms of s 21A(3)(j) are restricted to the common law on the subject. See discussion of Section 21A factors “in addition to” any Act or rule of law at [11-300].

A causal relationship between the mental disorder or abnormality and the commission of the offence will not always result in a reduced sentence. In R v Engert (1996) 84 A Crim R 67 Gleeson CJ said at 71:

The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public.

Offender acts with knowledge of what she or he is doing

In R v Wright (1997) 93 A Crim R 48 at 51 the court held that it is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender is not an appropriate medium for making an example to others. However, if the offender acts with knowledge of what he or she is doing and with knowledge of the gravity of the actions, the moderation need not be great. In R v Wright the applicant’s psychotic state was self-induced by a failure to take medication and a deliberate or reckless taking of drugs. Hunt CJ at CL stated at 52:

by his recklessness in bringing on these psychotic episodes, [the applicant] is a continuing danger to the community, a matter which would in any event reduce — if not eradicate — the mitigation which would otherwise be given for the respondent’s mental condition.

R v Wright was referred to in passing by the High Court in Muldrock (at fn 68). Wright has been applied in a number of cases including, R v Hilder (1997) 97 A Crim R 70 at 84; R v Mitchell (1999) 108 A Crim R 85 at [42]–[45]; Benitez v R (2006) 160 A Crim R 166 at [41]–[42]; Taylor v R [2006] NSWCCA 7 at [30]; Cole v R [2010] NSWCCA 227 at [71]–[73]; R v Burnett [2011] NSWCCA 276. The Crown in Adzioski v R [2013] NSWCCA 69 submitted without success that the judge had failed to apply R v Wright.

In Skelton v R [2015] NSWCCA 320 at [138]–[139], the jury rejected the defence of mental illness, ie that the accused did not know his actions were wrong. The sentencing judge was found to err in concluding that the extent of the reduction in the offender’s moral culpability was “not as great as might have been available if [he] did not fully appreciate his actions were wrong”. The court held that, had the offender fully appreciated his actions were wrong, the defence of mental illness would have been established. The jury’s verdict left open the possibility that the offender was impaired to some degree. The judge’s conclusion that the impairment was “not great at all, or even significant” was contrary to the expert evidence on the subject: Skelton v R at [138]ff.

Intermediate appellate court checklists

Intermediate appellate courts in NSW and Victoria have, from time to time, summarised sentencing principles where the offender suffers from a mental condition. See the list in R v Verdins [2007] VSCA 102 at [32] quoted with approval in Courtney v R (2007) 172 A Crim R 371 at [14]. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, McClellan CJ at CL at [177], listed the following propositions (case references omitted):

  • Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence …

  • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed …

  • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced …

  • It may reduce or eliminate the significance of specific deterrence …

  • Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...

Another factor that may be relevant is whether there is a serious risk that imprisonment will have a significant adverse effect on the offender’s mental health: R v Verdins at [32]; Courtney v R at [14]–[15].

The above principles are not absolute in their terms and there is no presumption as to their application. They merely direct attention to considerations that experience has shown commonly arise in such cases: Alkanaan v R [2017] NSWCCA 56 at [108]. The sentencing judge must examine the facts of the specific case to determine whether the mental condition has an impact on the sentencing process: Aslan v R [2014] NSWCCA 114 at [34]; Jeffree v R [2017] NSWCCA 72 at [31]. The principles set out in DPP (Cth) v De La Rosa have been applied in Biddle v R [2017] NSWCCA 128 at [89]–[90]; Laspina v R [2016] NSWCCA 181 at [39]; Aslan v R at [33] and Jeffree v R at [30].

As to the relevance of mental condition when sentencing for a standard non-parole period offence, see “Standard non-parole period provisions” above.

As a factor relevant to rehabilitation

In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said at 71:

there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.

In Benitez v R (2006) 160 A Crim R 166 the judge erred by finding that, although the applicant had good prospects of rehabilitation, his mental condition was not a mitigating factor because it was not the cause of the commission of the offence. It is not necessary to show that it was the cause, or even a cause, of the commission of the crime: Benitez v R at [36], referred to in R v Smart [2013] NSWCCA 37 at [26], [30].

Protection of society and dangerousness

In Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 Gleeson CJ said at [20]:

As Veen [No 2] held, it is well settled that common law sentencing principles have long accepted protection of the community as a relevant sentencing consideration.

In Veen v The Queen (No 2) (1988) 164 CLR 465, the majority said at 476:

a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter.

In R v Engert (1995) 84 A Crim R 67 Gleeson CJ explained the problem that confronted the High Court in Veen v The Queen (No 2). His Honour stated at 68:

in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

R v Whitehead (unrep, 15/6/93, NSWCCA) is an example of an application of the principle. Gleeson CJ stated that it would be incongruous to treat sexual sadism as a mitigating factor in sentencing for malicious wounding, explaining:

One reason for this is that the very condition that diminishes the offender’s capacity for self-control at the same time increases the need for protection of the public referred to by the High Court in the case of Veen v The Queen (No 2)

Similarly, in R v Adams [2002] NSWCCA 448, a case where the offender had a fascination with knives and suffered from a severe personality disorder of an antisocial type, the court held that there was a “compelling need to have regard to the protection of the community”. See Cole v R [2010] NSWCCA 227 at [73]–[75].

However, a consideration of the danger to society cannot lead to a heavier sentence than would be appropriate if the offender had not been suffering from a mental abnormality: Veen v The Queen (No 2) at 477; R v Scognamiglio (1991) 56 A Crim R 81 at 85. In Veen v The Queen (No 2), the High Court put the principle in these terms at 473:

It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.

Fact finding for dangerousness and risk of re-offending

It is accepted that an assessment of an offender’s risk of re-offending where a lengthy sentence is imposed is necessarily imprecise: Beldon v R [2012] NSWCCA 194 at [53]. In Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 Gleeson CJ said at [12]:

No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles … permit or require such predictions at the time of sentencing, which will often be many years before possible release.

Kirby J discussed the issue in Fardon v Attorney General for the State of Queensland at [124]–[125].

Findings as to future dangerousness and likelihood of re-offending do not need to be established beyond reasonable doubt: R v SLD (2003) 58 NSWLR 589. The Court of Criminal Appeal stated at [40]:

A sentencing judge is not bound to disregard the risk that a prisoner would pose for society in the future if he was at liberty merely because he or she cannot find on the criminal onus that the prisoner would re-offend. The view that the risk of future criminality can only be determined on the criminal standard is contrary to all the High Court decisions since Veen (No 1).

R v SLD was approved in R v McNamara [2004] NSWCCA 42 at [23]–[30] and earlier, in R v Harrison (1997) 93 A Crim R 314 at 319, the court held that a sentencing judge is not required to be satisfied beyond reasonable doubt that an offender will in fact re-offend in the future. It is sufficient, for the purpose of considering the protection of the community, if a risk of re-offending is established by the Crown: Beldon v R at [53].

Provisional sentencing for murder is now available for an offender aged 16 years or less at the time of the offence as was the case in R v SLD and also Elliott v The Queen; R v  Blessington (2007) 234 CLR 38 at [1]. See further at [30-025].

For a discussion of limiting terms see Limiting terms at [90-040].

[10-470] Race and ethnicity

See Special Bulletin 4 — Relevance of deprived background of an Aboriginal offender — October 2013.

The same sentencing principles are to be applied to every case, irrespective of the offender’s identity or membership of an ethnic or other group. However, sentencing courts should take into account all material facts, including those facts which exist only by reason of the offender’s membership of such a group: Neal v The Queen (1982) 149 CLR 305, per Brennan J at 326.

The High Court in Munda v Western Australia (2013) 249 CLR 600 at [53] reiterated the principle in Neal v The Queen in the context of a manslaughter committed by an Aboriginal offender who perpetrated domestic violence against his partner:

It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. [Footnotes omitted.]

For the purposes of applying the statutory principle of imprisonment as the last resort in s 5(1) Crimes (Sentencing Procedure) Act 1999, courts in NSW should not apply a different method of analysis for Aboriginal offenders as a group: Bugmy v The Queen (2013) 249 CLR 571 at [36]. Nor should courts in NSW take into account the “unique circumstances of all Aboriginal offenders” as relevant to the moral culpability of an individual Aboriginal offender and the high rate of incarceration of Aboriginal Australians: at [28].

R v Fernando (1992) 76 A Crim R 58

The High Court in Bugmy v The Queen (2013) 249 CLR 571 carefully considered the first instance case of R v Fernando (1992) 76 A Crim R 58. Principle (E) in R v Fernando (also approved by the High Court in Bugmy v The Queen) has been altered by s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 (see below). In R v Fernando, Wood J set out the following propositions:

(A) 

The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender’s membership of such a group.

(B) 

The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but, rather, to explain or throw light on the particular offence and the circumstances of the offender.

(C) 

It is proper for the court to recognise that the problems of alcohol abuse and violence, which to a very significant degree go hand in hand within Aboriginal communities, are very real ones and require more subtle remedies than the criminal law can provide by way of imprisonment.

(D) 

Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) 

While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) 

In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt, yet must nevertheless realistically assess the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) 

In sentencing an Aboriginal person who has come from a deprived background, or is otherwise disadvantaged by reason of social or economic factors, or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him or her and which is dominated by inmates and prison officers of European background, who posses little understanding of Aboriginal culture and society or of the offender’s own personality.

R v Fernando gives recognition to social disadvantage at sentence and is not about sentencing Aboriginal offenders: Bugmy v The Queen at [37].

The High Court observed in Bugmy v The Queen that many of the propositions in R v Fernando address the significance of intoxication at the time of the offence and that the decision correctly recognises that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor: Bugmy v The Queen at [37]. However, since Bugmy v The Queen, s 21A(5AA) Crimes (Sentencing Procedure) Act was enacted. It abolishes intoxication as a mitigating factor at the time of the offence (see further below at [10-480]).

The High Court in Bugmy v The Queen at [38] affirmed the proposition in R v Fernando that a lengthy term of imprisonment might be particularly burdensome for an Aboriginal offender because of his or her background or “lack of experience of European ways”. These observations reflect the statement by Brennan J in Neal v The Queen at 326 that the same sentencing principles are to be applied irrespective of the offender’s ethnic or other group. However, a court can take into account facts which exist only by reason of the offender’s membership of such a group. Wood J was right to recognise in R v Fernando the problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them: Bugmy v The Queen at [40].

[10-475] Deprived background of an offender

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571 at [40]. The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy v The Queen at [42]–[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy v The Queen at [43]. Social deprivation may impact on those purposes in different ways. The court in Bugmy v The Queen explained at [44]–[45]:

An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

The point was made by Gleeson CJ in [R v] Engert [(1995) 84 A Crim R 67 at [68]] in the context of explaining the significance of an offender’s mental condition in sentencing …

An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence: Bugmy v The Queen at [37].

Not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence: Bugmy v The Queen at [40].

In Ingrey v R [2016] NSWCCA 31 at [34]–[35], the court held that in using the word “may”, the plurality in Bugmy v The Queen at [40] were not saying that a consideration of this factor is optional; it was a recognition that there may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect.

A deprived background is not, however, confined to that of violence and alcohol abuse in an immediate family context. The principle has been applied where an offender had a supportive immediate family background but he had an association with peers and extended family who were part of the criminal milieu: Ingrey v R at [38]–[39] (see further below).

In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background: Bugmy v The Queen at [41]. In Tsiakas v R [2015] NSWCCA 187, the court held that the offender’s solicitor should have given consideration to obtaining a psychiatric or psychological report, which could have addressed the applicant’s background. The sentence proceedings were, however, conducted on the premise of a background of disadvantage: Tsiakas v R at [74]. The failure to obtain a report did not occasion a miscarriage of justice in the circumstances of the case because “something of real significance was required to be presented … to be capable of materially affecting the outcome of the sentencing hearing”: Tsiakas v R per Beech-Jones J at [67].

Specific applications of the principle of Bugmy v The Queen

In Ingrey v R, the offender’s particular disadvantage was not the circumstances of his immediate upbringing by his mother and father, but his association with peers and extended family who were part of the criminal milieu. They regularly exposed the offender from a young age to criminal activity: Ingrey v R at [27]. Such circumstances would have compromised the offender’s capacity to mature and learn from experience and amounted to social disadvantage of the kind envisaged in Bugmy v The Queen: Ingrey v R at [35]–[39].

In Kentwell v R (No 2) [2015] NSWCCA 96, the offender succeeded in establishing that he had a deprived background. He was removed from his Aboriginal parents at 12 months of age and adopted out to a non-Aboriginal family, where he grew up deprived of knowledge about his family and culture. The court applied Bugmy v The Queen and held that the offender’s moral culpability was reduced, as the social exclusion he experienced was capable of constituting a background of deprivation explaining recourse to violence: Kentwell v R (No 2) at [90]–[93]. This was supported by a body of evidence demonstrating that social exclusion could cause high levels of aggression and anti-social behaviours.

In IS v R [2017] NSWCCA 116, evidence established that the offender had been exposed to parental substance abuse and familial violence before being placed under the care of the Minister at the age of seven, after which time he moved around considerably. The sentencing judge accepted that the principle in Bugmy v The Queen was engaged and also found that the offender had favourable rehabilitation prospects. However, it was implicit in the conclusions of the judge, concerning general deterrence and the need for community protection, that the judge failed to give any weight to the reduction in moral culpability made explicit in the earlier findings: IS v R at [58]. Campbell J said “… the weight that would ordinarily be given in offending of this serious nature to personal and general deterrence and the protection of society ‘to be moderated in favour of other purposes of punishment’ and, in particular, his ‘rehabilitation’: Bugmy at 596 [46]”: IS v R at [65].

The court in Kiernan v R [2016] NSWCCA 12 held that the sentencing judge did not err in dealing with the offender’s criminal history and subjective case notwithstanding the deprived and depraved circumstances of the latter’s upbringing. Hoeben CJ at CL said at [60]: “the applicant’s criminal history, together with the effect on him of his deprived and abusive childhood, meant that his Honour had to take into account the protection of the community …”

The plurality in Bugmy v The Queen did not talk in terms of general deterrence having no effect, but referred to that factor being “moderated in favour of other purposes of punishment” depending upon the particular facts of the case: Kiernan v R at [63]. The CCA in Kiernan v R concluded (at [64]) the judge understood and applied Bugmy v The Queen.

In Drew v R [2016] NSWCCA 310, it was accepted that the offender suffered economic and social deprivation during childhood, both while residing with his family on an Aboriginal reserve until the age of 14 and then after being placed in a boys’ home to learn a trade. However, limited weight could only be given to any allowance for the offender’s deprived background under the principles in Bugmy v The Queen per Fagan J at [18] (Gleeson JA agreeing at [1]). Even having regard to his background of social disadvantage, the fact remained that the offender was a recidivist violent offender with convictions for matters of violence stretching over 35 years, committed against 13 separate victims, including domestic partners and the offender’s son. The needs of specific deterrence and community protection loomed large: Drew v R at [1], [17], [125].

[10-480] Intoxication

Section 21A(5AA) Crimes (Sentencing Procedure) Act 1999 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.

Section 21A(6) provides that self-induced intoxication has the same meaning as it has in Pt 11A Crimes Act.

Section 21A(5AA) applies to the determination of a sentence for an offence whenever committed unless, before the commencement date (ie 31 January 2014), the court has convicted the person being sentenced of the offence, or a court has accepted a plea of guilty and the plea has not been withdrawn.

Before the introduction of s 21A(5AA), an offender’s intoxication, whether by alcohol or drugs, could explain an offence but ordinarily did not mitigate the penalty: Bourke v R (2010) 199 A Crim R 38 at [26]. The NSWCCA endorsed (in GWM v R [2012] NSWCCA 240 at [82] and ZZ v R [2013] NSWCCA 83 at [110]) the statement in Hasan v The Queen [2010] VSCA 352 at [21] that:

courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability. An “out of character” exception is acknowledged to exist, but it has almost never been applied.

Section 21A(5AA) abolishes the out of character exception.

Section 21A(5AA) also abolishes the common law approach to intoxication in R v Fernando (1992) 76 A Crim R 58 approved in Bugmy v The Queen (2013) 249 CLR 571 at [38] where French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:

The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. … [Footnotes excluded.]

Section 21A(5AA) prohibits a court from taking into account an offender’s intoxication at the time of the offence as a mitigating factor even if it is a “reflection of the environment in which he or she was raised”. It does not impact upon the relevance of an offender’s deprived background.

As an equivocal or aggravating factor

Section 21A(5AA) does not alter common law authority which holds that an offender’s intoxication at the time of the offence can be a relevant factor in determining the “degree of deliberation involved in the offender’s breach of the law”: R v Coleman (1990) 47 A Crim R 306 per Hunt J at 327. An offender’s intoxication can aggravate the crime because of the recklessness with which the offender became intoxicated and proceeded to commit the crime: R v Coleman at 327.

Intoxication may also be treated as an equivocal factor, that is, one that neither aggravates nor mitigates but rather explains the context of the crime: R v Fletcher-Jones (1994) 75 A Crim R 381 at 387–388; SK v R [2009] NSWCCA 21 at [7]; BP v R [2010] NSWCCA 159 at [79], see also [55]; ZZ v R at [113].

Where intoxication involves the voluntary ingestion of alcohol by a person with a history of alcohol-related violence, it may also be an aggravating factor: R v Fletcher-Jones at 387; Mendes v R (2012) 221 A Crim R 161 at [73]–[75], [83]. In R v Mitchell (2007) 177 A Crim R 94 at [29], the court said that:

violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence.

The court in GWM v R [2012] NSWCCA 240 at [75] held that voluntary or self induced intoxication by an offender where he committed an aggravated child sexual assault was not relevant to assessing the gravity of the offence except as a possible aggravating factor.

See also Assault, wounding and related offences at [50-150].

Where the offender becomes intoxicated voluntarily and embarks on a course that is criminal conduct, such as dangerous driving, the reason that the offender was intoxicated is generally irrelevant: Stanford v R at [53]. This is due to the fact that “the offence is not concerned with punishing the drinking of alcohol but with the driving thereafter”: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at [142]; see also R v Doyle [2006] NSWCCA 118 at [30]. Subsequent offences will be treated more seriously: Stanford v R at [54].

Where intoxication is the basis upon which an aggravated version of dangerous driving is charged, it should not be double-counted as an aggravating factor: R v Doyle at [25]. The same double counting problem would arise if a court took into account an offender’s intoxication as an aggravating factor where it is an ingredient of the crime such as the offence of assault causing death while intoxicated under s 25A(2) Crimes Act. For intoxication and dangerous driving, see also [18-340] in Dangerous driving and navigation.

The approach of having regard to intoxication when applying the standard non-parole statutory scheme needs to be considered in light of the recently re-enacted s 54A(2) Crimes (Sentencing Procedure) Act. See further the discussion at What is the standard non-parole period? at [7-910].

[10-485] Drug addiction

Drug addiction is not a mitigating factor: R v Valentini (1989) 46 A Crim R 23 at 25. The observations in the armed robbery guideline case of R v Henry (1999) 46 NSWLR 346 at [273] as to the relevance of an offender’s drug addiction in assessing the objective criminality of an offence and as being a relevant subjective circumstance (explained further below) do not appear to be directly affected by the enactment of s 21A(5AA).

Spigelman CJ made clear in R v Henry at [206] that an offender’s drug addiction is not a matter in mitigation:

I attach particular significance to the impact that acknowledgment of drug addiction as a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse.

Addiction is “not an excuse” but a choice

Very many offences of armed robbery are committed because of an addiction to drugs. However, drug addiction is not an excuse: R v Henry per Wood CJ at CL at [236]; see also principle (a) at [273].

Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry at [185]. Per Spigelman CJ at [197]:

drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction.

Persons who choose a course of addiction must be treated as choosing its consequences: R v Henry per Spigelman CJ at [198]. Not all persons who suffer from addiction commit crime, therefore to do so involves a choice: per Spigelman CJ at [200]; per Wood CJ at CL at [250]. There is no warrant in assessing a crime that was induced by the need for funds to feed a drug addiction, as being at the lower end of the scale of moral culpability or lower than other perceived requirements for money (such as gambling): R v Henry per Spigelman CJ at [202]. The proposition has been followed and applied repeatedly: Toole v  R [2014] NSWCCA 318 at [4]; R v SY [2003] NSWCCA 291; Jodeh v R [2011] NSWCCA 194.

Further, the decision to persist with an addiction, rather than to seek assistance, is also a matter of choice: R v Henry per Spigelman CJ at [201]. Those who make such choices must accept the consequences: R v Henry per Wood CJ at CL at [257], with which Spigelman CJ agreed.

In R v Henry, Wood CJ at CL set down a number of general principles in relation to the sentencing of offenders with drug addictions: at [273].

To the extent that an offence is motivated by a need to acquire funds to support a drug habit, such a factor may be taken into account as a factor relevant to objective criminality. This may be done in so far as it assists the court to determine:

  • the extent of any planning involved in the offence, and its impulsivity

  • the existence (or otherwise) of an alternative reason in aggravation of the offence (for example whether it was motivated to fund some other serious criminal venture), and

  • the state of mind (or capacity) of the offender to exercise judgment: R v Henry per Wood CJ at CL, principle (b) at [273].

The use of alcohol or drugs by an offender may be relevant in sentencing for one or more of a number of reasons. For example, it may be that a crime such as armed robbery has been committed in order to provide money for a drug addiction. The origin or extent of a drug addiction (or any attempts to overcome it) may be relevant subjective considerations where such an addiction might:

  • impact upon the prospects of recidivism

  • impact upon the prospects of rehabilitation

  • suggest that the addiction was attributable to some other event for which the offender was not primarily responsible — thereby removing personal choice (for example, where it arose as the result of a medical prescription or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete); or

  • justify special consideration in the case of offenders at the “cross-roads” (R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394): R v Henry per Wood CJ at CL, principle (c) at [273].

While it can be said that the objective of rehabilitation needs to be taken into account along with the other objectives of retribution and deterrence, it is but one aspect of sentencing. Such offenders should not be placed in a special category for sentencing: R v Henry per Wood CJ at CL at [268], [269] and [270].

Addiction attributable to some other event

Since R v Henry there have been instances where offenders have sought to bring their addiction within the third bullet point above.

Drug addiction at a very young age

Drug addiction may be a relevant as a subjective circumstance where the origin of the addiction might suggest that it was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it occurred at a very young age or the person’s mental or intellectual capacity was impaired: R v Henry per Wood CJ at CL at [273] with whom Spigelman CJ agreed at [201].

There is, however, no principle of law that a drug addiction that commenced when an offender was young will always operate as a mitigating factor: Hayek v R [2016] NSWCCA 126 at [75]. It may be a mitigating factor in the particular circumstances of an individual case: Hayek v R at [80].

In Brown v R [2014] NSWCCA 335, the offender became addicted to a number of drugs from the age of 9 or 10. The court held that this was an age at which his drug addiction could not be classified as a personal choice and the offender was entitled to some leniency. The court adopted the remarks of Simpson J in R v Henry at [336] and [344]. If the drug addiction has its origins in circumstances such as social disadvantage; poverty; emotional, financial or social deprivation; poor educational achievement; or, sexual assault, it is appropriate for rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case: see Brown v R at [26]–[29].

Similarly, in SS v R [2009] NSWCCA 114, the court held that the applicant’s addiction to cannabis from 11 years of age could be regarded as a matter of mitigation: SS v R at [35], [103]. However, in R v Gagalowicz [2005] NSWCCA 452 at [33], the judge erred by treating the 16-year-old offender’s drug addiction as a matter in mitigation. The offender’s history did not suggest he became involved in drugs other than as a result of a choice he made as a teenager and he persisted with the addiction thereafter: R v Gagalowicz at [38] citing R v Henry at [201]. In Fitzpatrick v R [2010] NSWCCA 26 at [23], the sentencing judge acknowledged that the offender used drugs at a very young age. The CCA held that the factor was attributed sufficient weight in the sentencing exercise: Fitzpatrick v R at [25].

An addiction which commenced when the offender was 14 years of age because of peer pressure and in an attempt to “‘look cool’ to impress a girl” but which continued for three decades, did “nothing to mitigate the applicant’s crime”: Hayek v R per Wilson J at  [83] and see [80]–[81], [41]. To the contrary, the “long term unaddressed addiction to prohibited drugs could have legitimately increased the sentence”: Hayek v R at [84].

Self-medication

In some circumstances, an addiction to drugs used to overcome psychological or physical trauma may be a factor in mitigation. In Turner v R [2011] NSWCCA 189, the court held that an addiction to prescription opioid medication following an accident was a matter that mitigated the offence. The case fell squarely within the exception to the principle that drug dependence is not a mitigating factor: Turner v R at [58]. However, in many instances self-medication will not fall within the exception: Bichar v R [2006] NSWCCA 1 at [25]; R v SY [2003] NSWCCA 291 at [62]; R v CJP [2004] NSWCCA 188. In Jodeh v R [2011] NSWCCA 194, the court held that the offender’s illicit drug use to manage pain caused by a motorbike accident did not fall into the “rare category” of circumstances in which an addiction to drugs will be a mitigating factor: Jodeh v R at [28]–[29]. Similarly, in Bichar v R, the court observed at [23]–[24]:

It is very often the case that there will be some life experience or some psychological or psychiatric state that causes, or at least contributes to, the use of drugs. One will almost always be able to assume that without that experience or without the disturbed psychological or psychiatric state the person would have been unlikely to have resorted to illegal drugs.

… the fact that some traumatic or injurious event results in a person using drugs does not mean that drug addiction is a matter of mitigation …

Compulsory Drug Treatment Correctional Centre Act 2004

The Compulsory Drug Treatment Correctional Centre Act 2004 amended the Drug Court Act 1998, the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999 to provide for imprisonment by way of compulsory treatment detention for drug-dependent recidivist offenders. The courts listed under the Drug Court Regulation have a duty to ascertain whether an offender sentenced to imprisonment might be eligible and, if so, to refer the offender to the Drug Court: s 18B Drug Court Act 1998. See R Dive, “Compulsory drug treatment in gaol — a new sentencing issue” (2006) 18(7) JOB 51.

The Drug Court determines eligibility, makes compulsory drug treatment orders and supervises participants.

[10-490] Hardship to family/dependants

The general principle is that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is “wholly”, “highly” or “truly” exceptional. In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at 515:

There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.

The passage was quoted with approval in Hoskins v R [2016] NSWCCA 157 at [63].

It is not uncommon for hardship to be caused to third parties by sentencing a person to prison. Judges and magistrates are required in the course of their duty to sentence offenders to imprisonment where incarceration will cause hardship to third parties: R v Scott (unrep, 27/11/96, NSWCCA).

It is only where circumstances are “highly exceptional” — and where it would be inhumane to refuse to do so — that hardship to others in sentencing can be taken into account: R v Edwards. Hardship to employees did not justify the suspension of a sentence in R v MacLeod [2013] NSWCCA 108 at [49] where full-time imprisonment should have been imposed. The evidence neither established “extreme hardship” nor extraordinary circumstances: R v MacLeod at [50]–[52], [55].

The court must identify a ground upon which the hardship to a family member or third party caused by the imprisonment of the offender can properly and relevantly be regarded as exceptional before it is taken into account in the sentencing of the offender.

As a matter of logic or even mercy, hardship to a member of an offender’s family does not have a lesser claim upon a court’s attention than hardship to a person for whom the offender was a paid carer. A case does not become “wholly exceptional” simply because the person affected by the hardship was not a member of the offender’s family: R v Edwards (1996) 90 A Crim R 510 at 516 per Gleeson CJ; R v Chan [1999] NSWCCA 103 at [39].

If a custodial sentence is required but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of imprisonment, shortening the term of sentence and/or reducing the non-parole period: Dipangkear v R [2010] NSWCCA 156 at [34]; R v MacLeod at [49]. Each case will depend on the seriousness of the crime, whether there is a need for deterrence and the nature and degree of the impact of the sentence upon the third person: Dipangkear v R at [34].

Pregnancy, young babies

The fact that a person to be sentenced is pregnant or the mother of young baby is a relevant factor to be taken into account: R v Togias (2001) 127 A Crim R 23; R v SLR (2000) 116 A Crim R 150; HJ v R [2014] NSWCCA 21 at [67], [73].

R v Togias involved the application of s 16A(2)(p) Crimes Act 1914 (Cth), which requires a court to have regard to “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”: HJ v R at [69].

In NSW, there are no facilities for mothers and babies to live together whilst an offender is in any juvenile detention facility. However, in the adult correctional system, there is a facility at Jacaranda House where mothers in custody can have their baby with them: HJ v R at [63]. Accordingly, in an appropriate case where a juvenile offender is pregnant at the time of sentence, a court may make an order with the effect that the offender be transferred to an adult correctional facility: R v SLR.

A court is required to have regard to the fact that an offender is the mother of a young baby, the effect of separation on her and the degree to which it may impact upon the hardship of her custody: HJ v R at [76]. If exceptional circumstances can be shown, it is relevant to have regard to any effect of full time custody on the offender’s child: HJ v R at [76]. Evidence of hardship and/or increased risk to the offender should she be imprisoned was lacking: R v Togias at [11]–[13], [57]–[58].

Where an offender has a young baby a court may consider declining to make an order that the offender serve her term of imprisonment in juvenile detention: HJ v R at [76].

[10-500] Hardship of custody

Protective custody

The hardship that will be suffered by a prisoner in gaol because he or she will be in protective custody, is a matter to be taken into account in sentencing. Protective custody can only be taken into account in mitigation in the determination of the sentence or in the finding of special circumstances where there is evidence that the conditions of imprisonment will be more onerous: RWB v R (2010) 202 A Crim R 209 at [192]–[195]; R v LP [2010] NSWCCA 154 at [21]. See further discussion in Mitigating factors at [17-570].

It was well recognised in Australia that every year in protective custody is equivalent to a longer loss of liberty under the ordinary conditions of imprisonment: AB v The Queen (1999) 198 CLR 111 per Kirby J at [105]; R v Howard [2001] NSWCCA 309; R v Rose [2004] NSWCCA 326; R v Patison (2003) 143 A Crim R 118 at 136–137. However, these authorities must give way to the evidence based approach of the more recent authorities beginning with R v Durocher-Yvon (2003) 58 NSWLR 581. It was held in Clinton v R [2009] NSWCCA 276 per Howie J at [25] that it is not:

appropriate for a court to adopt a mathematical formula to convert time spent in protection to an equivalent period spent in the general prison population. There are too many variables and there is not always a significant difference between being on protection and being part of the normal prison population. There may well be benefits derived from being on protection that offset some of the deprivations.

It was held in R v Chishimba [2011] NSWCCA 212 at [13]–[14] that it was erroneous for the sentencing judge to take a mathematical approach to the issue of protective custody and to accept that every year in protective custody should be regarded as equivalent to 18 months in general custody.

Safety of prisoners

In York v The Queen (2005) 225 CLR 466, the High Court set aside a partially suspended sentence of imprisonment that had been substituted by the Court of Appeal of the Supreme Court of Queensland and reinstated a wholly suspended sentence that had been imposed by the sentencing judge. The majority of the court had held that it would be bowing to pressure from criminals if the offender were able to avoid a custodial sentence because of the risk to her safety while in prison. However, the High Court made it clear that the safety of a prisoner is a relevant consideration in determining an appropriate sentence. In the particular circumstances of this case, there was persuasive evidence before the sentencing judge that the prisoner could not be protected in the Queensland prison system. McHugh J said at [31] that:

the duty of sentencing judges is to ensure, so far as they can, that they do not impose sentences that will bring about the death of or injury to the person sentenced.

At [32] McHugh J further said:

Where a threat exists — as it often does in the case of informers and sex offenders — recommendations that the sentence be served in protective custody will usually discharge the judge’s duty. Here the learned sentencing judge concluded on persuasive evidence that no part of the Queensland prison system could be made safe for Mrs York. That created a dilemma for the sentencing judge. She had to balance the safety of Mrs York against the powerful indicators that her crimes required a custodial sentence. In wholly suspending Mrs York’s sentence, Atkinson J appropriately balanced the relevant, even if conflicting, considerations of ensuring the sentence protected society from the risk of Mrs York re-offending and inflicting condign punishment on her on the one side and ensuring the sentence protected her from the risk of her fellow inmates committing serious offences against her on the other side. In suspending the sentence, the learned judge made no error of principle. Nor was the suspended sentence manifestly inadequate.

It is the responsibility of the authorities, not the courts, to ensure the safety of prisoners in custody. The fact that prisoners will have to serve their sentences in protection is a very important consideration to be taken into account in fixing the length of the sentence but it should not usually be permitted to dictate that the custody should not be full time: R v Burchell (1987) 34 A Crim R 148 at 151; R v King (unrep, 20/8/91, NSWCCA).

Former police

In R v Jones (1985) 20 A Crim R 142, Street CJ said at 153:

In view of his past work in the Police Force, it is also to be recognised that the time that he must necessarily spend in custody will involve a greater degree of hardship than might otherwise be the case. It is well-known that a period of imprisonment for a former member of the Police Force can at times be fraught with a considerable degree of harassment being directed against the prisoner by his fellow prisoners. This can lead, as it has in this case, to the need for the prisoner being held in protection in conditions inferior to those affecting the general prison population.

See also R v Patison (2003) 143 A Crim R 118 at [38].

It cannot be assumed that an offender who is a police officer will serve his or her imprisonment in protective custody: Hughes v R [2014] NSWCCA 15 at [54]. It is necessary to point to evidence to that effect: Hughes v R at [54].

Foreign nationals

Any person who comes to Australia specifically to commit a serious crime has no justifiable cause for complaint when he or she is incarcerated in this country where the language is foreign to him or her and he or she is isolated from outside contact: R v Chu (unrep, 16/10/98, NSWCCA) per Spigelman CJ. See also R v Faneite (unrep, 1/5/98, NSWCCA) per Studdert J and R v Sugahara (unrep, 16/10/98, NSWCCA) per McInerney J.

The fact that the prisoner is a foreigner with limited English and has no friends or family who are able to visit will make their imprisonment harsher than would be the case for the ordinary prisoner. This requires some, though not much recognition: R v Huang (2000) 113 A Crim R 386 per Adams J at [19]. A failure to have regard to this factor does not mean the sentence(s) exhibit error: Yang v R [2007] NSWCCA 37. However, if there is no evidence before the sentencing judge as to the offender’s experience as a prisoner, it is not a consideration that requires substantial recognition but it is relevant to the question whether a sentence is manifestly excessive: Nguyen v R [2009] NSWCCA 181 at [27].

[10-510] Entrapment

Many of the commonly quoted cases in this area of the law occurred prior to the High Court judgment of Ridgeway v The Queen (1995) 184 CLR 19. Legislation that permits and regulates controlled operations by the police has been enacted at both the State and federal levels.

Entrapment is not a defence in Australia. At sentence it involves the idea that an accused person has been induced to commit a crime which he or she would not have committed, or would have been unlikely to commit: R v Sloane (1990) 49 A Crim R 270 per Gleeson CJ at 272–273.

In R v Taouk (1992) 65 A Crim R 387 at 404, Badgery-Parker J, Clarke JA and Abadee J agreeing, said that, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police, he or she would not have committed the crime; but, rather, whether, in all circumstances of the case, the involvement of the police was such as to diminish the culpability of the accused.

Similarly, in R v Leung (unrep, 21/7/94, NSWCCA) per Hunt CJ at CL, the court echoed the principle that entrapment is relevant to mitigation of penalty, but each case must be judged on its own facts. The prisoner’s culpability will be regarded as diminished if the offence may not have been committed had the police not facilitated it. There is no entrapment if the prisoner was prepared to sell drugs to whomever asked for them.

It is legitimate to discount a sentence by reason of the circumstances in which the offender was led to commit the offence, including dealings with an undercover police officer acting as agent provocateur. This may be a ground for mitigation, but each case must be judged on its own facts: R v Scott (unrep, 30/6/83, NSWCCA) per Lee J; R v Rahme (1991) 53 A Crim R 8 at 13; R v Reppucci (1994) 74 A Crim R 353.

It is permissible for a sentencing judge to regard, as a mitigating factor, the fact that an offender engaged in criminal acts to a greater extent than would have happened if no assistance was provided by the authorities. This principle applies to a case where it is likely that, without assistance, the offender would have made little progress in carrying out the enterprise: R v Thomson [2000] NSWCCA 294 per James J at [80].

On the other hand, the fact that authorities have allowed criminal conduct to continue is not a circumstance of mitigation: R v Thomson per James J at [84].

Role of undercover police officers

Similarly, in R v Anderson (1987) 32 A Crim R 146, Kirby P was of the view that in assessing the culpability of an offender, the role played by undercover police may be relevant to the sentence to be imposed. His Honour observed that there is a fine line between the passive yet properly inquisitive conduct of an undercover police agent approached by a drug dealer to become involved in an illegal drug offence and a positive inducement by that agent to such an offence or an encouragement which lifts the offence from a minor category to a major one.

[10-520] Extra-curial punishment

A court can take into account “extra-curial punishment”, that is, “loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence”: Silvano v R (2008) 184 A Crim R 593 at [29]. It is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 per Howie J at [21]. The court in Silvano v R at [26]–[33] collected several authorities on the subject. The weight to be given to any extra-curial punishment will depend on all the circumstances of the case and in some cases, extra-judicial punishment attracts little or no weight: R v Daetz (2003) 139 A Crim R 398 at [62].

A court is entitled to take into account punishment meted out by others, such as abuse, harassment and threats of injury to person and property, or persons extracting retribution or revenge for the commission of an offence: R v Daetz at [62]; R v Allpass (1993) 72 A Crim R 561 at 566–567.

A failure by the judge to take into account the injury suffered by the offender when the injuries did not result in “a serious loss or detriment” was held not to be erroneous in Mackey v R [2006] NSWCCA 254 at [23]. Where injuries inflicted on an offender in prison by other prisoners were not inflicted for the purpose of punishing the offender for having committed the offence(s), they could not be considered extra-curial punishment: Silvano v R at [34]. A sufficient nexus is not established by simply asserting that the injuries inflicted in prison would not have been suffered had the offender not been arrested and remanded in custody as a result of having committed the offences: Silvano v R at [35].

See further Dangerous Driving at [18-380]. Registration on the Child Protection Offender Register is not extra-curial punishment: see Sexual Offences Against Children at [17-570].

Self-inflicted injuries

The sentencing principles concerning extra-curial punishment extend to unintentional self-inflicted injuries received in the course of the offence but not if an offender deliberately self-inflicts injuries: Christodoulou v R [2008] NSWCCA 102 at [41]–[42]. In Cvetkovic v R [2013] NSWCCA 66, the court held the sentencing judge did not err by following Christodoulou v R and in not placing much weight on the harm the offender had done to himself. In dismissing an application for special leave to the High Court, Bell and Gageler JJ stated that leave to appeal was not warranted on the basis that Christodoulou v R was wrongly decided. The ground had “insufficient prospects of success” in the circumstances of the case: Cvetkovic v The Queen [2013] HCASL 131 at [5]. Note, however, that reasons for refusing an application for special leave create no precedent and are not binding on other courts: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [112], [119].

Similarly, in Betts v R [2015] NSWCCA 39 at [35], the court held the injuries suffered by the offender were either deliberately self-inflicted, or inflicted by the victim at the offender’s instigation and intimately bound up with his criminal conduct. Therefore, the injuries could not be considered extra-curial punishment for the purposes of sentencing.

Public humiliation

The High Court, in Ryan v The Queen (2001) 206 CLR 267, expressed conflicting views on the question of whether public humiliation may be considered as a mitigating factor on sentence. Kirby and Callinan JJ were each of the view that adverse publicity and public opprobrium suffered by a paedophile priest could properly be taken into account: Ryan v The Queen at [123] and [177] respectively. Hayne J disagreed with Kirby and Callinan JJ: Ryan v The Queen at [157]. McHugh J expressed the view that public opprobrium and stigma did not entitle a convicted person to leniency, as such an approach would be “an impossible exercise” and appear to favour the powerful: Ryan v The Queen at [52]–[53]. McHugh J also considered it incongruous that the worse the crime, and the greater the public opprobrium, the greater the reduction might have to be: Ryan v The Queen at [55].

It is accepted in NSW that where public opprobrium reaches such a proportion that it has a physical or psychological effect on the person, it may properly be considered by the sentencing court: R v Allpass (1993) 72 A Crim R 561; Kenny v R [2010] NSWCCA 6; Duncan v R [2012] NSWCCA 78 at [28]; BJS v R (2013) 231 A Crim R 537 at [228]–[231].

In R v Obeid (No 12) [2016] NSWSC 1815, no such physical or psychological effect was shown: at [102].

In upholding a Crown appeal, the court in R v King [2009] NSWCCA 117 took into account a degree of extra-curial punishment the offender suffered as a result of the manifestly inadequate sentence (at [71]), acknowledging that “[p]ublic outrage at the sentence was turned upon the offender … Had a sentence that appropriately denounced his conduct been imposed on him, he would have been spared further public humiliation and anger”: at [69].

Media coverage

The proceedings in R v Wran [2016] NSWSC 1015, according to the sentencing judge, attracted significant public attention and inaccurate reporting. Harrison J said “the publication of [the] egregious articles warrants the imposition of a sentence that takes account of Ms Wran’s continuing exposure to the risk of custodial retribution, the unavoidable spectre of enduring damage to her reputation and an impeded recovery from her ongoing mental health and drug related problems”: R v Wran at [79].

Very limited weight was nonetheless attributed to extensive media coverage as a form of extra-curial punishment in R v Obeid (No 12) at [103]. This was because the offending involved the abuse of a public position; the media reports did not sensationalise facts; and, the case concerned an issue of public importance (political corruption). Therefore, it seemed “incongruous that the consequential public humiliation should mitigate the sentence”: R v Obeid (No 12) at [101]. R v Obeid (No 12) can be contrasted with R v Wilhelm [2010] NSWSC 378 per Howie J at [16], where the offender’s reputation was “destroyed by the allegations made against him and the reporting of those allegations in the media”.

Professional ramifications

There is a divergence of authority on the question of whether the professional ramifications experienced by an offender as a result of their offending can be taken into account as extra-curial punishment.

Wood J (as he then was) said in R v Hilder (unrep, 13/5/93, NSWCCA) that a court could “take into account the loss of reputation, and employment and also where appropriate, the loss of a pension or superannuation benefits”. This statement cannot apply to Members of Parliament to the extent that s 24C applies: see Section 24C — disqualification of parliamentary pension at [11-355]. In Ryan v The Queen (2001) 206 CLR 267 at [54], McHugh J expressed the view that “[i]t is legitimate … to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation”. None of the other Justices directly addressed the issue.

In Einfeld v R (2010) 200 A Crim R 1, the court noted there was an element of uncertainty as to whether the concept of extra-curial punishment “includes legal consequences of a kind which flow directly from the conviction or the sentence, such as disqualification from holding an office, remaining in an occupation or holding a licence”: Einfeld v R at [86]. However, their Honours found that the fact the offender would lose his practising certificate and be struck off the roll of solicitors could be taken into account: Einfeld v R at [95]. Such a conclusion was consistent with earlier authority: Oudomvilay v R [2006] NSWCCA 275 at [19]; R (Cth) v Poynder (2007) 171 A Crim R 544 at [86].

In R v Zerafa (2013) 235 A Crim R 265, the court accepted the professional ramifications of the offending were a mitigating factor, but found them to be of limited effect because the respondent “must have … anticipated … that an inevitable consequence, if his offending [defrauding the Commonwealth] were discovered … would be that he would be struck off the role of chartered accountants”: R v Zerafa at [92]. See also Kenny v R [2010] NSWCCA 6 at [48]–[50]. This was similar to the approach taken in FB v R [2011] NSWCCA 217, which concerned a high school teacher convicted of aggravated sexual assault of a student. The court noted at [156] that the “respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end”. In DPP v Klep [2006] VSCA 98 at [18], the Victorian Court of Appeal accepted that the loss of either a profession, office or trade as a direct result of the offending was a factor to be borne in mind but it was not a substitute for the punishment required by law.

Other authorities have declined to find professional ramifications were sufficient to constitute extra-curial punishment. In Greenwood v R [2014] NSWCCA 64 at [35], Hoeben CJ at CL (Bathurst CJ and Adams J agreeing) held that “[l]oss of employment, no matter what the employment, would be an inevitable consequence in almost every circumstance where a person was convicted of an offence of this kind [sexual and indecent assault]”. In Kearsley v R [2017] NSWCCA 28 at [76], the court held that extra-curial punishment cannot arise when the loss of employment is a natural consequence of a conviction. The applicant’s irrevocable loss of his medical career and good standing in the community were not “the superadded or unexpected result of something that is not reasonably associated with the fact of his conviction and sentence”: Kearsley v R at [77].

The relevance and/or weight to be given to professional ramifications as extra-curial punishment may be influenced by whether the offence was connected to, or committed in the course of, the offender’s occupation. The Victorian Court of Appeal has endorsed such an approach, observing in R v Talia [2009] VSCA 260, that “[t]here seems … to be a distinct difference between a disqualification resulting from criminal conduct in the course of the employment … and criminal conduct remote from that employment but having that consequence … [i]n the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation”: R v Talia at [28].

[10-530] Delay

Delay by itself is not mitigatory but it may be in combination with other relevant sentencing factors favourable to the offender: R v Donald [2013] NSWCCA 238 at [49] citing Scook v R (2008) 185 A Crim R 164. Each case depends on its own circumstances: R v V (1998) 99 A Crim R 297. Street CJ’s statement, in R v Todd [1982] 2 NSWLR 517 at 519, is the starting point:

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

R v Todd was endorsed in Mill v The Queen (1988) 166 CLR 59 (at 66) as being a just and principled approach.

For a discussion of delay as a mitigating factor in the specific context of child sexual assault offences, see Mitigating factors at [17-570].

Rehabilitation during a period of delay

Rehabilitation undertaken by an offender during a period of delay may effect the sentencing exercise by lessening the significance of general deterrence: PH v R [2009] NSWCCA 161 per Howie J at [32]. For example, in Thorn v R (2009) 198 A Crim R 135 at [57], the court found that during the delay of 7 years between the commission of 55 fraud offences and the sentence “the applicant has not only completely reformed but he has also matured from a misguided youth with a compulsion to gamble into a well-respected citizen with honest and steady employment on the threshold of marriage”. Similarly, in R v Ware (unrep, 9/7/97, NSWCCA), Gleeson CJ said evidence of substantial rehabilitation might be regarded as mitigating. See also the discussion in R v Pickard [2011] SASCFC 134 at [95].

The cause of delay is relevant to determining the weight to be given to rehabilitation. Genuine rehabilitation undertaken during a period of delay caused by the offender absconding is not to be entirely ignored, but cannot be given the same significance as in a case where the delay was due to circumstances outside the offender’s control: R v Shore (1992) 66 A Crim R 37 at 47. In comparison, in Thorn v R, the offender had admitted the offences in 2003 and prosecution was not commenced until late 2008, with no explanation for the period of delay, which was in no way the fault of the offender.

Rehabilitation undertaken by an offender during a period of delay may also be a factor weighing in favour of the exercise of an appellate court’s residual discretion to dismiss a Crown appeal: see also The residual discretion to intervene at [70-100].

Delay — state of uncertain suspense

The “state of uncertain suspense” (Street CJ in R v Todd at 519) — where an offender experiences a delay following the initial intervention of the authorities — is a matter which can entitle an offender to an added element of leniency: R v Blanco (1999) 106 A Crim R 303 at [11], [16] and Mill v The Queen at 64–66). Where an offender relies on such a mitigating factor, they must establish it on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47], applying The Queen v Olbrich (1999) 199 CLR 270. In Sabra v R, the court held that the sentencing judge had erred in tending to the view that although the offender had evidently suffered anxiety and concern over the delay, greater consequences needed to be established before the delay could be taken into account: Sabra v R at [44]–[46].

An additional consideration is the desirability for prosecuting authorities to act promptly where there is evidence of serious criminality. It is in the public interest that those who are suspected of serious crime be brought to justice quickly, particularly where there is a strong case against them: R v Blanco at [17]. However, it is not permissible to reduce a sentence merely as a means of expressing disapproval at neglectful or dilatory conduct by the State. The focus is overwhelmingly on the consequences of the delay on the offender, no matter what the explanation for it: R v Donald at [49].

However, the principle does not apply to a state of suspense or uncertainty experienced by an offender who remains silent and hopes that his or her offending will remain undetected: R v Spiers [2008] NSWCCA 107 at [37]–[38] (applying R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]). An offender should not be rewarded for his successful concealment of his offending: R v Kay [2004] NSWCCA 130 at [33].

Relevance of onerous bail conditions during delay

Lapse of time on bail brought about as a consequence of the proceedings, such as a delay of three years during which time the offender had been subject to restrictions on liberty, may properly be regarded as a penal consequence that can be taken into account in sentencing: R v Keyte (unrep, 26/3/86, NSWCCA) per Street CJ. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment: R v Fowler (2003) 151 A Crim R 166 at [242]. See also R v Khamas (1999) 108 A Crim R 499 and R v Jajou (2009) 196 A Crim R 370 concerning delay and the relevance of onerous reporting requirements while on bail.

Circumstances in which delay may not entitle an offender to leniency

Delay will not usually be a mitigating factor where it is caused by the problems associated with detecting, investigating or proving the offences and the period of the delay is reasonable in the circumstances: Scook v R per Buss JA quoted with approval in R v Donald [2013] NSWCCA 238 at [49].

Delay will not operate to the benefit of an offender where advantage is taken of the opportunity afforded by his/her liberty during that period to reoffend: R v DKL [2013] NSWCCA 233 at [46]. Nor does it apply to the sentencing for murder where there was no uncertainty as to the sentence the prisoner would receive if found guilty because of the provisions of s 19 Crimes Act 1900, as it then stood: R v King (1998) 99 A Crim R 288. It is the fact of imprisonment, rather than the length of the sentence, which will be of greatest significance in punishing the offender and denouncing his conduct: R v Moon (2000) 117 A Crim R 497 per Howie J at [81].

Sentencing practice after long delay

Where there has been long delay between the time of commission of an offence and the time of sentencing, should a court sentence by reference to sentencing patterns as they existed when the offence was committed or by reference to current sentencing patterns? This question was considered by a five-member bench of the Court of Criminal Appeal in R v MJR (2002) 54 NSWLR 368 (Spigelman CJ, Grove J, Sully J and Newman AJ; Mason P dissenting). It held that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, and if an authentic and credible body of statistical material exists that is capable of reconstructing what would have been done previously, then the approach outlined in R v Shore (1992) 66 A Crim R 37 should be adopted. In R v Shore Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) at [42] approved the trial judge’s statement of his approach as follows:

In my opinion I should, so far as I am able to do so, seek to impose upon the offender, a sentence appropriate not only to then applicable statutory maxima but also to then appropriate sentencing patterns. That is by no means easy, but in my view I must endeavour to do so.

In the absence of such statistical material, the court is constrained to take the non-statistical approach, as described by Howie J in R v Moon (2000) 117 A Crim R 497 at 511, and approved by Sully J in R v MJR at [107]:

The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence … and be proportional to the criminality involved in the offence committed … Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the Court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.

This view was endorsed by Spigelman CJ, who held that the sentencing practice at the time of the commission of the offences should be applied, rather than the higher severity that had been adopted since that time. According to Spigelman CJ, the propositions he put forward in R v PLV (2001) 51 NSWLR 736 at [94], concerning the difficulty in determining what the court would have done many years before, and in making such an artificial and inappropriate distinction, were incorrect. Instead, he found at [31]:

it is “out of keeping” with the provisions of s 19 of the Crimes (Sentencing Procedure) Act 1999, for this court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender.

Where considerable delay has occurred before sentencing, the sentencing judge must have regard to the maximum sentence and the level of sentences in fact imposed at the date of the offence.

For a discussion of sentencing practices following delay in the context of sexual offences against children see Sentencing for offences committed many years earlier at [17-410].

[10-540] Restitution

It is usual for the court to have regard to whether, and the extent to which, there has been restitution to those affected by the crime, but this will not carry much weight in the way of mitigation if the prospects of adequate compensation for loss is remote: see, for example, R v Kilpatrick (2005) 156 A Crim R 478 at [37]. There is an extensive discussion of the authorities in Job v R [2011] NSWCCA 267 at [32]–[49]. See further, in the context of fraud offences, in Mitigating factors at [20-000].

There should be evidence of any claims that restitution has been effected if such a consideration is to be taken into account as a mitigating factor. In R v Johnstone [2004] NSWCCA 307 at [37]–[38].

The principal restitution power is found in s 43 Criminal Procedure Act 1986, and relates to all offences and all courts: s 3 Sch 2 Crimes Act 1900. Section 43 provides:

43 Restitution of property

(1) 

In any criminal proceedings in which it is alleged that the accused person has unlawfully acquired or disposed of property, the court may order that the property be restored to such person as appears to the court to be lawfully entitled to its possession.

(2) 

Such an order may be made whether or not the court finds the person guilty of any offence with respect to the acquisition or disposal of the property.

(3) 

Such an order may not be made in respect of:

(a) 

any valuable security given by the accused person in payment of a liability to which the person was subject when the payment was made, or

(b) 

any negotiable instrument accepted by the accused person as valuable consideration in circumstances in which the person had no notice, or cause to suspect, that the instrument had been dishonestly come by.

Availability

Pursuant to s 43, a court may order property to be restored to the person lawfully entitled to possession, where a person is accused under the Crimes Act of unlawfully acquiring or disposing of property: s 43(1) Criminal Procedure Act 1986.

Restitution orders may not be made in respect of certain valuable securities or negotiable instruments: s 43(3).

Any order under s 10 Crimes (Sentencing Procedure) Act 1999 has the effect of a conviction for a restitution order: s 10(4) Crimes (Sentencing Procedure) Act 1999.

As to restitution in respect of an offence taken into account, see below.

Effect of acquittal

Restitution orders may be made irrespective of whether or not the person is found guilty of an offence with respect to the acquisition or disposal of the property in question: s 43(2) Criminal Procedure Act 1986.

Subject matter

The section does not expressly deal with the proceeds of the original property where those proceeds are in the hands of the defendant. However, it has been held, in R v Justices of the Central Criminal Court (1860) 18 QBD, that when examining similar legislation, proceeds are capable of being the subject of orders for restitution. The court in that case also said that a restitution order could be made against an agent, where the agent holds the proceeds on behalf of the defendant. It has been held that a court can make an order for restitution against the property or proceeds, but it cannot do both: R v London County Justices (1908) 72 JP 513.

Where an offender is charged with offences in relation to certain goods, and all those goods have been recovered, it is an incorrect exercise of judicial discretion to order the offender to make restitution out of money taken from him or her at the time of apprehension that relates to other offences with which the offender is not charged.

Restitution for offences taken into account

Where a person is found guilty of an offence, the sentencer may, with the consent of the person, take into account other offences to which guilt is admitted under s 33 Crimes (Sentencing Procedure) Act 1999: see Taking Further Offences into Account (Form 1 Offences) at [13-200].

A restitution order may be made in respect of such offences as though the person had been convicted: s 34 Crimes (Sentencing Procedure) Act 1999.

Third party interests

Where any valuable security has been paid by a person liable to payment thereof, or, being a negotiable instrument, has been taken for a valuable consideration without notice or cause to suspect that the same had been dishonestly come by, a court may not order restitution: s 43(3) Criminal Procedure Act 1986.

Beyond this provision, civil law regulates the rights of third parties.

There is a general principle that restitution orders should only be made in very clear cases: Stamp v United Dominions Trust (Commercial) Ltd [1967] 1 QB 418.

Where third party interests are affected, the third party is entitled to be heard before the restitution order is made: R v Macklin (1850) 5 Cox CC 216; Barclays Bank Ltd v Milne [1963] 1 WLR 1241.

It seems settled that, where there are serious competing claims between third parties, then criminal courts should not exercise their discretion to make restitution orders.

Good behaviour bonds and restitution

For the power of the court to impose restitution in addition to orders under s 10 Crimes (Sentencing Procedure) Act 1999 (which include good behaviour bonds), see Availability, above.

As to the power to impose restitution as a condition of either a s 10 dismissal or a s 12 suspended sentence, both those provisions are silent.

Victims Rights and Support Act 2013

The Victims Support Scheme was established by the Victims Rights and Support Act 2013 for the provision of support for victims of acts of violence: see Pt 4. Concerning the eligibility for support, see Pt 4 Div 2. Provision for restitution by offenders is covered by Pt 5 Div 2. The Commissioner of Victims Rights has a discretion to make a provisional order for restitution by an offender: s 59.

Children’s Court

The Children’s Court has such power as magistrates generally to award restitution: Children (Criminal Proceedings) Act 1987, s 27. Specifically, nothing in the list of penalties which the court may impose limits its power to make orders for restitution under s 43 Criminal Procedure Act 1986: s 33(5)(c) Children (Criminal Proceedings) Act 1987.

[10-550] Conditional liberty

See also commentary for Section 21A(2)(j) — the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence at [11-150].

The courts have long recognised that the commission of an offence whilst the offender is subject to a form of conditional liberty is an aggravating factor at sentence: Porter v R [2008] NSWCCA 145 at [86]; Maxwell v R [2007] NSWCCA 304 at [27]; RC v DPP [2016] NSWSC 665 at [39]; R v Tran [1999] NSWCCA 109 at [15]; Kerr v R [2016] NSWCCA 218 at [71]–[72]. It is not necessary that the offence(s) committed is similar to the one that curtails the offender’s liberty: Frigiani v R [2007] NSWCCA 81 at [26].

Whilst it is an aggravating subjective factor it is not to be considered as part of the objective seriousness of the crime: Simkhada v R [2010] NSWCCA 284 at [25]; Martin v R [2011] NSWCCA 188 at [7], [17]. See [7-910] What is the standard non-parole period? under the subheading “Other factors”.

It is considered an abuse of freedom “by taking the opportunity to commit further crimes”: R v Richards (1981) 2 NSWLR 464 at 465. Where the offender breaches a non-custodial sentencing option there is a “very real risk that the whole regimen of non-custodial sentencing options will be discredited”: R v Morris (unrep, 14/7/95, NSWCCA), where the offender had committed offences which amounted to a breach of the recognizance.

Impact on rehabilitation

The commission of an offence whilst an offender is subject to conditional liberty can cast doubt on an offender’s rehabilitation and has been described as a “[b]etrayal of the opportunity for rehabilitation” which should be “regarded very seriously”: R v Tran [1999] NSWCCA 109 at [15] citing R v Vranic (unrep, 7/5/91, NSWCCA) and R v McMahon (unrep, 4/4/96, NSWCCA); R v Cicekdag (2004) 150 A Crim R 299 at [53]; R v Fernando [2002] NSWCCA 28 at [42].

Status of an escapee

It has been held that a person who commits offences while an escapee from lawful custody is, in terms of offence seriousness, in a scale above that of a person who commits offences while on conditional liberty on bail or parole: R v King [2003] NSWCCA 352 at [38].

On appeal

A failure of the Crown to draw the sentencing judge’s attention to the fact that the offender was on conditional liberty (parole) at the time of committing the offence makes it difficult for the Crown to rely on that fact on an appeal against sentence: R v Amohanga (2005) 155 A Crim R 202 at [119].

As to the consequences of breaching various forms of conditional liberty, see further Variation and revocation of CRO conditions at [4-730] and Breaches of non-custodial community-based orders at [6-600]ff.

[10-560] Ameliorative conduct or voluntary rectification

A court may take into account the post-crime ameliorative conduct of the offender as a matter in mitigation of sentence: Thewlis v R (2008) 186 A Crim R 279 at [4]–[5], [40], [43]. The conduct is not relevant to the assessment of the objective gravity of the offence since by that time the offence is complete: at [38]. Simpson J said at [43]:

it ought now be accepted that, in an appropriate case … conduct of the kind engaged in by the applicant warrants some consideration in mitigation of sentence. (I stress that I have twice referred to “mitigation of sentence”. That is different from, and not to be confused with, mitigation of the offence: the latter concept is concerned with the evaluation of objective gravity.).

After two knife attacks, Thewlis immediately disclosed to neighbours what he had done, arranged for an ambulance to be called, and waited for police to arrive. Prompt medical attention played a role in saving the life of one of the victims: at [4], [33]. Simpson J also said ameliorative conduct does not come within s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (remorse shown by the offender for the offence) and is different from voluntary disclosure of guilt (R v Ellis (1986) 6 NSWLR 603).

Spigelman CJ in Thewlis v R relied upon the judgment of Hunt CJ at CL in R v Phelan (1993) 66 A Crim R 446. Spigelman CJ said at [4]–[5]:

The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough.

In the present case that special additional element is to be found in the fact that it does appear that the applicant’s immediate recognition of his wrongful act played a significant, and quite possibly decisive role, in saving the victim’s life.

Price J said at [46]: “I agree with Simpson J. I also agree with the observations made by Spigelman CJ”.

[10-570] Deportation

Deportation is “irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government”: R v Pham [2005] NSWCCA 94 at [13]; R v Jap (unrep, 20/7/98, NSWCCA); R v Latumetan [2003] NSWCCA 70. However, it is not clear whether the broad statement in R v Pham reflects the law (see below) at least for Commonwealth offences.

Structuring a sentence

The fact of actual or potential deportation is irrelevant to structuring a sentence and it is an error to use deportation to determine any aspect of the sentence: R v Pham [2005] NSWCCA 94 at [13]–[14]; He v R [2016] NSWCCA 220 at [23].

A court should not discriminate against potential deportees in determining whether the offender can ever be eligible for release on parole: The Queen v Shrestha (1991) 173 CLR 48 at 71. A primary benefit of parole is the rehabilitation of an offender. A non-resident, non-citizen offender who is likely to be deported should also receive this benefit by being eligible for release on parole: The Queen v Shrestha at 71. Deane, Dawson and Toohey JJ said at 71:

This country has a direct and significant interest in the well-being and rehabilitation of all who are detained within its gaols, whether or not their origins, ties or future prospects lie in this or in some other country.

It is impermissible to consider the fact of deportation in determining the length of the non-parole period for offenders who are likely to be deported even though their deportation will mean that they will not receive the supervision of the NSW Probation and Parole Service: R v Mirzaee [2004] NSWCCA 315 at [20]–[21]; R v Pham at [13]. An offender who is likely to be deported should similarly not be denied a finding of special circumstances if they would otherwise qualify for such a finding: R v Mirzaee at [21]; R v Pham at [13]; He v R at [25]–[26].

The likelihood of deportation is therefore irrelevant to the way a sentence is structured including the selection of an appropriate commencement date: R v Pham at [14]. It is also impermissible to reduce a sentence that would otherwise be imposed or to structure a sentence differently because the threat of deportation has the effect of being an additional punishment which increases the seriousness of the consequences of the sentence that is imposed: R v Qin [2008] NSWCCA 189 at [38], [40]. However, the isolation for such offenders in an Australian prison may be a factor relevant to a finding of “special circumstances”: R v Yu [2003] NSWSC 1153 at [75], [81].

The prospect of deportation and cancellation of the offender’s visa (under s 501 Migration Act 1958 (Cth)) were both held to be proper matters for consideration when determining whether exceptional circumstances existed for the purposes of s 16A(2)(p) Crimes Act 1914 (Cth) (effect of the sentence on the family): Decision Restricted [2016] NSWSC 634 at [130], [131].

Deportation as a matter in mitigation

A line of authority has developed in Victoria which differs from that outlined above in NSW. In Guden v R (2010) 28 VR 288, the Victorian Court of Appeal held that the prospect of deportation is a personal circumstance of the offender that can be a mitigating factor at sentence. The Court of Appeal confined the High Court’s reasoning in The Queen v Shrestha (and Street CJ’s reasoning in R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311) to its particular statutory context — specifically the power to fix a non-parole period for foreign offenders. The Court of Appeal held that the cases in Queensland and Western Australia have misinterpreted Street CJ in making any wider statement about the relevance of deportation as a factor in sentencing: Guden v R at [19] (and see cases cited at fn 14). The question for the court in Guden v R was not the propriety of fixing a non-parole period but rather whether the prospect of the offender being deported upon completion of the custodial portion of the sentence could be relied upon in mitigation of sentence: Guden v R at [20].

The principle in Guden v R has been applied in a number of Victorian cases including Konamala v R [2016] VSCA 48 at [33]; Da Costa Junior v R [2016] VSCA 49; Darcie v R [2012] VSCA 11 and Schneider v R [2016] VSCA 76 at [17], [23]–[27]. In Schnieder v R, the offender was sentenced for the common law offence of conspiring to defraud.

In Nguyen v R [2016] VSCA 198, the offender had overstayed his visitor visa and was an illegal immigrant at the time he committed his offences. The Victorian Court of Appeal distinguished the case from Guden v R, Konamala v R, Da Costa Junior v R and Schneider v R where each of the offenders had existing visas to reside in Australia when they committed their respective offences. In Konamala v R, Da Costa Junior v R and Schneider v R, the cancellation of an existing visa could be attended by a sense of real loss of the prospect of settling in Australia which the offender had previously secured, whereas in Nguyen v R the offender had not lost an existing right but only the possibility of securing a partner visa. The court did not determine whether in this case the risk of deportation was a relevant mitigatory factor on the basis that prison will be more burdensome, however it found that even if it were, it was not of an order to justify a different sentence: Nguyen v R at [36].

Migration Act 1958 (Cth)

In 2014, s 501 Migration Act 1958 was amended to convert what had been a Ministerial power to cancel a visa and order deportation of a person who fails the character test into a duty to do so (Migration Amendment (Character and General Visa Cancellation) Act 2014, commencing 11 December 2014). Section 501(3A) now provides that the Minister must cancel a visa that has been granted if the Minister is satisfied the person does not pass the character test or is serving a sentence of full-time imprisonment. A person does not pass the character test where they have a substantial criminal record. Substantial criminal record is defined in s 501(7) and includes where the person is sentenced to a term of imprisonment of 12 months or more. The Minister may revoke the decision to cancel the visa under s 501CA(4). It is likely the onus of proving the Minister should exercise his or her discretion to revoke the cancellation of an existing visa should be borne by the person whose visa was cancelled: Nguyen v R [2016] VSCA 198 at [30].

In Decision Restricted [2016] NSWSC 634, the court held that the prospect of deportation and the certainty of cancellation of the offender’s visa were matters for proper consideration under s 16A(2)(p) Crimes Act 1914 (Cth) regardless of what may subsequently happen concerning the offender’s status in Australia: Decision Restricted at [130].

The Victorian cases have grappled with the question of whether the amendment to the Migration Act has upgraded the threat of deportation following criminal proceedings from a theoretical risk to a definite outcome. In Konamala v R [2016] VSCA 48 at [35], the court said that despite the changes to the Act, the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. In DPP v Zhuang [2015] VSCA 96 at [54], the court said that the respondent sentenced to a term of imprisonment of 12 months or more could “expect, with some certainty, to be deported upon [her] release from custody”. However, it was held in Da Costa Junior v R [2016] VSCA 49 at [52]–[53], that the change in the law does not require a different approach to sentencing. It is still a matter of speculation as to what the Minister may or may not do when an application for revocation is made following the automatic cancellation of a visa.