Note:

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

When sentencing an offender for an offence (the principal offence), a court may take into account additional charges with which the offender has been charged but not convicted (further offences). The offender must want the further offences to be taken into account and a court may only take the criminality of those further offences into account if certain criteria and formalities have been met. The offender is only convicted of the principal offence and generally no proceedings can be taken or continued in relation to the further offences. This is known as the Form 1 procedure.

Part 3 Div 3 (ss 31–35A) governs the authority and procedure for taking further (Form 1) offences into account, and the relevant provisions are discussed throughout this chapter.

Note:

a Form 1 is not a prescribed form in the regulations, but a document prepared by legal practitioners and the police.

In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline), the Court (Spigelman CJ with Wood CJ at CL, Grove, Sully and James JJ agreeing) set out the proper approach to be taken by sentencing courts when considering Form 1 offences.

The Court provided guidance in relation to:

The Guideline is also generally discussed throughout this chapter where relevant.

Chief Justice Spigelman at [62]–[65] noted two distinct but consistent rationales for the procedure of taking matters into account on a Form 1:

Including offences on a Form 1 gives them a significantly lower prominence in the sentencing process, affording an obvious advantage and a greater incentive to admit guilt: [66].

In proceedings for the principal offence (defined in s 31 as an offence the subject of proceedings under s 32(1)), the prosecutor may file in court a list of further offences in a Form 1, for which the offender has been charged but not convicted, and which the offender wants taken into account on sentence for the principal offence: s 32(1). The Form 1 should clearly identify the principal offence, for example, by including, where necessary, the count, sequence or charge number if there are multiple counts of the same offence: LS v R [2020] NSWCCA 27 at [90].

Note:

a Form 1 is not a prescribed form in the regulations, but a document prepared by legal practitioners and the police.

A Form 1 may be filed at any time after the court finds the offender guilty and before dealing with them for the principal offence: s 32(2).

A copy of the Form 1, as filed, must be given to the offender and signed both by the offender and by, or on behalf of, the Director of Public Prosecutions, or a person prescribed by the regulations: s 32(3), (4); cl 4 Crimes (Sentencing Procedure) Regulation 2024.

If a Form 1 is taken into account, the court must certify this on the list of additional charges: s 35(1)(a).

The Form 1 should not include offences for which the court does not have jurisdiction to impose a penalty, or offences with a maximum penalty of life imprisonment: s 33(4)(a), (b); see R v JH [2021] NSWCCA 299 for an example of a case where error was established because an offence in the latter category was placed on a Form 1. In such circumstances, it is appropriate for the appeal court to remit the matter to the sentencing court as it is for the prosecution to decide whether and how to proceed with the impugned Form 1 offence: R v Zycki [2024] NSWCCA 9 at [8]; R v Issa [2002] NSWCCA 206; Clappison v R [2017] NSWCCA 33.

However, the Court of Criminal Appeal, the Supreme Court and the District Court may take summary offences into account on a Form 1: s 33(6).

A court can only take offences on a single Form 1 into account on a single principal offence, not across multiple offences: LS v R at [27]; see also Breen v R [2025] NSWCCA 182 at [14].

Any penalty imposed for the principal offence must not exceed its statutory maximum penalty had a Form 1 offence not been taken into account: s 33(3). Section 31 provides that the full range of penalties for the principal offence can be imposed, including a non-association or place restriction order (see also [13-320] Ancillary orders and penalties).

The Form 1 procedure does not apply to Commonwealth offences. Section 16BA Crimes Act 1914 (Cth) provides a similar procedure for federal offences (and only federal offences). See Taking other offences into account: ss 16A(2)(b) and 16BA in [16-010]. Where there is mixed State and federal offending, a federal offence cannot be taken into account on a Form 1 in relation to the sentence for a State principal offence: Ilic v R [2020] NSWCCA 300 at [44].

A failure to comply with the terms of s 32 does not invalidate a sentence imposed for “the principal offence”: s 32(6). However, a sentencing court must be mindful of the need to comply with the various mandatory statutory requirements: Woodward v R [2017] NSWCCA 44 at [26]; Ghalbouni v R [2020] NSWCCA 21 at [29].

There are limits to an offender’s capacity to withdraw their consent to the Form 1 procedure. For example, it is unlikely a Form 1 can be withdrawn after the evidence has been presented and both cases closed in the sentence proceedings: Abel v R [2020] NSWCCA 82 at [82].

The Form 1 procedure cannot be conflated with the procedures for back-up and related offences in ss 165–167 Criminal Procedure Act 1986: CH v R [2019] NSWCCA 68 at [7]–[18].

The court must ask the offender whether they want the court to take any further offences into account in dealing with them for the principal offence: s 33(1). The obligation imposed by s 33(1) should not be disregarded because its purpose is to demonstrate whether there is any doubt about an offender’s intention to have the offences taken into account on the Form 1: Dale v R [2021] NSWCCA 320 at [38]–[40]. See Pham v R [2021] NSWCCA 234 for an example of where the judge’s failure to personally confirm with the offender the charge the offender wanted to be taken into account was an error: [27]; cf Dale v R where the offender’s intention could be discerned from the actions of her counsel during the sentence proceedings: [20].

Further, the court may only take a further offence into account if the offender:

The formal requirements in s 33(2)(a) to ask whether the offender admits guilt and consents to having the further offences taken into account should not be dispensed with. They are important safeguards to ensure the offender is aware of what is taking place and consents to procedures that may significantly “impact upon his freedom or the period during which he will remain in custody”: R v Felton [2002] NSWCCA 443 at [3], cited with approval in R v Brandt [2004] NSWCCA 3 at [8]; Woodward v R [2017] NSWCCA 44 at [25].

In relation to point 3, see [13-500] Statutory power to reject a Form 1 under s 33(2)(b).

For a discussion of the formal requirements where there are charge negotiations involving victims, see [13-440] Effects of the Form 1 procedure and Charge negotiations: prosecutor to consult with victim and police at [13-520].

It is not permissible to impose a distinct penalty for a Form 1 offence/s: Koosmen v R [2025] NSWCCA 122 at [92]. However, certain ancillary orders or directions (restitution, compensation, costs, forfeiture, destruction, licence/privilege disqualification, loss or suspension) relating to them may be made: s 34. The offender retains the same right of appeal as if the order had been made on conviction of the further offence: s 34(2). For example, in Gardner v R [2003] NSWCCA 199, the Court said, by operation of s 34, it was open to the sentencing judge to consider whether, as an ancillary order, a prescribed licence disqualification period (now in ss 205 and 205A Road Transport Act 2013) should be reduced or extended: [1].

If the conviction in respect of which the offence was taken into account is quashed, or set aside, then any ancillary order lapses: s 34(3).

It is important that Form 1 matters should be taken into account only in relation to the principal offence. In the Guideline, Spigelman J said at [39]–[42]:

See also Koosmen v R [2025] NSWCCA 122 at [92]. However, Spigelman CJ in the Guideline indicated that personal deterrence and retribution are not the only relevant factors when taking into account Form 1 offences: [43]–[44]; see also [13-380] Form 1 offences and assessing objective seriousness of principal offence.

Sentencing judges may, in sentencing for the principal offence, take into account the Form 1 matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate. However, “the important point is that the focus throughout must be on sentencing for the primary offence”: Guideline at [43]–[44].

Form 1 matters should be taken into account only in relation to the principal offence and care should also be taken to ensure the Form 1 offences are taken into account in relation to the correct principal offence: Ghalbouni v R [2020] NSWCCA 21 at [48]. Taking a Form 1 offence into account in relation to an offence other than the principal offence is an error: Breen v R [2025] NSWCCA 182 at [14].

The Court of Criminal Appeal endorses an approach where the focus is on the appropriate sentence for the principal offence, which is then increased by reason of the Form 1 offences (the “bottom up” approach): R v Timmis [2003] NSWCCA 158; see also Abbas v R [2013] NSWCCA 115 at [15]; Guideline at [19], [24], [33], [40], [42].

This is in contrast to the “top down” approach where a notional sentence is identified for the principal offence and Form 1 offences, to which a discount or reduction is then applied as a result of the Form 1 offences: Guideline at [20], [24]. In the Guideline, Spigelman CJ held the “top down” approach was inconsistent with the Form 1 statutory scheme: [24], [35]–[39].

Generally, Form 1 offences should not be taken into account to increase the objective seriousness of the principal offence: Singh v R [2021] NSWCCA 96; RO v R [2019] NSWCCA 183 at [57]; Tukuafu v R [2024] NSWCCA 84 at [129]–[131]; Roulstone v R [2025] NSWCCA 7 at [130]. The context, facts and circumstances relating to a Form 1 offence may inform the assessment of objective seriousness of the principal offence, but they do not per se increase the objective seriousness by virtue of the further offence: Ragg v R [2022] NSWCCA 150 citing LN v R [2020] NSWCCA 131; DPP v TH [2023] NSWCCA 81.

Consideration of further offences merely assists in assessing the gravity of the principal offence by reference to relevant broader context evident in the commission of further offences, rather than intending to penalise an offender for a multiplicity of offences: Flick v R [2023] NSWCCA 197 at [73]–[80].

A further offence may:

Tukuafu v R [2024] NSWCCA 84 at [129], affirmed in Roulstone v R [2025] NSWCCA 7 at [131]–[132], Lowe v R [2025] NSWCCA 202.

Consideration of these additional factors is part of the instinctive synthesis approach in Markarian v The Queen (2005) 228 CLR 357 at [51]–[54]: Koosmen v R at [92].

In LN v R, Basten JA (RA Hulme J agreeing; Hamill dissenting) said at [54]:

A further offence may demonstrate a principal offence is representative of ongoing conduct; that a person is not of good character; an offender’s motive, state of mind or intention; or the complainant’s vulnerability: Tukuafu v R at [112] citing DPP v TH at [24]–[26]; see also LN v R at [54]; Ragg v R at [38]–[47].These are relevant “facts and circumstances” of the principal offence found in the commission of the further offence/s, and may place the principal offence in context or increase the offender’s moral culpability: Lowe v R at [18]; LN v R at [54]. A court may take into account the criminality of the Form 1 offences: Tukuafu v R at [117]. This can be determined by reference to the additional need for personal deterrence and retribution arising from the Form 1 offences: Koosmen v R at [92]; Guideline at [39]–[42]; see [13-380].

That approach is consistent with the terms of s 33 and the Guideline for Form 1 offences: Abbas v R at [22], [23]; Guideline at [42]. When the Form 1 offence is taken into account, the principle of proportionality is assessed by reference to those additional factors: Koosmen v R at [92]. The court takes the Form 1 offence into account within the terms of s 32 as part of the instinctive synthesis process of sentencing: Abbas v R at [22], [23].

It will be rarely appropriate for a sentencing judge to attempt to quantify the effect of Form 1 offences: Guideline at [44]; R v Kay [2002] NSWCCA 286 at [69]. The object of s 33 is not to impose a distinct penalty for the offences to be taken into account: Abbas v R at [14]; see also Koosmen v R at [92].

It may occasionally be useful and not erroneous (albeit rare) to specify the amount by which the penalty for the principal offence has been increased by reason of a Form 1 offence: Markarian v The Queen at [43]. However, in these circumstances the additional penalty is imposed not as a separate penalty for the further offences but by way of increase of the sentence for the principal offence: Markarian v The Queen at [43].

Although the offender admits guilt to further offences on a Form 1, it is erroneous to confer a further benefit on them because they co-operated in settling the Form 1: R v Van Ryn [2016] NSWCCA 1 at [214]–[215] citing R v Hinchliffe [2013] NSWCCA 327 at [219]. An offender already obtains an advantage from the Form 1 procedure as there is a cap upon the available sentence confined to the principal offence. It is an erroneous form of double counting to seek to confer a further benefit: R v Hinchliffe at [219].

There is no statutory or common law requirement to take into account that an offender pleaded guilty to an offence if it is being taken into account on a Form 1: Gordon v R [2018] NSWCCA 54 at [95]. However, where it is taken into account, the discount for an offender’s guilty plea is to be applied to the sentence after the Form 1 matters have been taken into account: Koosmen v R at [92].

In Gordon v R, RA Hulme J at [96]–[100] identified some potential difficulties associated with considering the procedural history of Form 1 offences when assessing the discount for the utilitarian value of the guilty plea for the principal offence. However, procedural history should not be completely disregarded in assessing the sentence for the principal offence as it may have a bearing on other relevant matters including personal deterrence, remorse and prospects of rehabilitation: [101].

See Guilty plea discount and Form 1 offences at [9-160].

If a further offence is taken into account, the court is required to certify on the list of additional charges that the offence has been taken into account, and no proceedings may be taken or continued in respect of it unless the conviction for the principal offence is quashed or set aside: s 35(1)(a) and (b).

A court is not prevented from taking the further offence into account when sentencing or re-sentencing the offender for the principal offence if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence: s 35(2).

An admission of guilt for the purposes of Pt 3 Div 3 Crimes (Sentencing Procedure) Act (ss 31–35) is not admissible in evidence in further criminal proceedings in relation to any such offence, or any other offence specified in the list of additional charges: s 35(3).

In any criminal proceedings, where reference may be made to, or evidence given about, the fact the offender was convicted of the principal offence, reference may also lawfully be made to, or evidence given about, the fact a further offence was taken into account in imposing a penalty for the principal offence: s 35(5).

The fact an offence was taken into account under Pt 3 Div 3 may be proved in the same manner as the conviction for the principal offence: s 35(6).

The statutory scheme contemplates that serious offences can be included on a Form 1: Guideline at [49]–[50]. The statement in R v Vougdis (unrep, 19/4/89, NSWCCA) at 132 that serious offences must be separately charged has to be understood in light of s 33(4) which provides that only offences with a maximum of life imprisonment may not be included on a Form 1. See [9-280] Form 1 restrictions. Nevertheless, Spigelman CJ said in the Guideline at [50]:

See also [13-500] Statutory power to reject a Form 1 under s 33(2)(b).

There is also a difficulty of taking into account further offences which may appear to be disproportionate, not comparable, or not of the same kind and order of gravity as the principal offence under consideration: Guideline at [51], [56].

A particular difficulty also confronts a court where there are numerous offences, or the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1: Guideline at [57].

It is predominantly a matter for the Crown as to what offences are included on the Form 1, so as to strike a balance between overloading an indictment and ensuring it adequately reflects the totality of the admitted criminality: Guideline at [68]. However, it is also necessary for the Crown to have regard to the difficulties faced by a court in undertaking the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of conduct revealed by the indictment and the Form 1: [57].

Roulstone v R [2025] NSWCCA 7 is an example of a case where the sentencing judge was not assisted, and their task made more difficult, by the Form 1 offences being more numerous, and greater in criminality, than the principal offences. The Court observed such an approach appeared contrary to Spigelman CJ’s observations in the Guideline and the relevant Prosecution Guidelines: [135]–[139].

By the terms of s 33(2)(b), “if, in all of the circumstances, the court considers it appropriate to do so”, the court must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences: Guideline at [67].

The words in s 33(2)(b) have to be read in light of the common law principle that the selection of the charge is within the “absolute discretion” of the prosecutor: Elias v The Queen (2013) 248 CLR 483 at [33]. The scope for judicial intervention is thus limited to rare cases.

The court should recognise the many considerations which may inform a prosecutor’s decision to include matters on a Form 1: Guideline at [68]. There will be cases in which the administration of justice could be brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis: Guideline at [67].

However, the court must be constrained, to ensure the independence of the judiciary in an adversary system is protected: Guideline at [67]; cf Maxwell v R (1995) 184 CLR 501 especially at 513–514 and 534–535. It is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences: Magaming v The Queen (2013) 252 CLR 381 at [20]. In CP v R [2009] NSWCCA 291, McClellan CJ at CL at [8] said:

Where the gravity of the Form 1 offences far exceed the principal offence, or where the magnitude of the offences on the Form 1 make it impossible to take them into account in sentencing for the principal offence, the court should give consideration to declining to take the Form 1 offences into account: Abbas v R [2013] NSWCCA 115 at [26].

Examples of cases where the Court of Criminal Appeal has been critical of a Form 1 include:

In Elias v The Queen (2013) 248 CLR 483, the High Court criticised a Victorian sentencing practice of sentencing an offender for a lesser charge if the facts could accommodate such an outcome. While the selection and structure of charges may have a bearing on the sentence, the separation of Executive and judicial functions does not permit the court to canvas the exercise of the prosecutor’s discretion in a case where it considers a less serious offence to be more appropriate any more than when the court considers a more serious charge to be more appropriate: [34]. In expressing such a view, the court is attempting to influence the exercise of a discretion which is not any part of its own function: Maxwell v R at 514. The same reasoning could be applied to the exercise of power under s 33(2)(b).

Section 35A requires the prosecutor to file a certificate verifying consultation with a victim (defined in s 26) and police in relation to charge negotiations before a Form 1 offence or any agreed statement of facts the subject of charge negotiations can be taken into account by the court. Section 35A(2) provides:

The reference in s 35A(2)(b) to “prosecution guidelines” includes the Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines [March 2021], Chapter 4, Charge Resolution, which states:

See also Chapter 5, Victims and witnesses, in particular, at 5.4 “Information to be provided” and 5.6 “Consultation resolving charges and discontinuing prosecutions”.

Section 35A(3) provides the certificate must be signed by or on behalf of the DPP or by a person or class of persons prescribed by the regulations (see cl 5 Crimes (Sentencing Procedure) Regulation 2024 for list). The court may require the prosecution to explain the reason for a failure to file a certificate when it is required to do so: s 35A(5).

Section 35A is not limited to matters dealt with on indictment. It is intended to apply to Local Court matters where a Form 1 is taken into account. Clause 5(a) Crimes (Sentencing Procedure) Regulation 2024 provides that s 35A(3) applies to “proceedings being prosecuted by a police prosecutor — police officers”.