Taking further offences into account (Form 1 offences)
Where a person is before the court for sentencing, it may take into account further offences with which the offender has been charged but not convicted, being offences which the offender “wants the court to take into account when dealing with the offender for the principal offence”: s 32 Crimes (Sentencing Procedure) Act 1999. The admitted offence(s) will be taken into account with the principal offence but only if the court considers it appropriate to do so: s 33(2)(b). This is known as the Form 1 procedure.
A failure to comply with the terms of s 32 does not invalidate a sentence imposed for what is referred to in s 32(1) as “the principal offence”: s 32(6).
Unless otherwise specified, references to sections below are references to sections of the Crimes (Sentencing Procedure) Act 1999.
[13-200] Taking further offences into account
The relevant statutory provisions governing the authority and procedure for taking additional charges into account are found in Pt 3 Div 3 (ss 31–35) Crimes (Sentencing Procedure) Act 1999, and are based on earlier provisions that were set out in former s 161 Criminal Procedure Act 1986, and before that, in former s 447B Crimes Act 1900. The procedure was derived from the non-statutory practice of the English courts: see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (the Guideline) per Spigelman CJ at .
In any 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 document specifying other offences with which the offender has been charged but not convicted: s 32(1).
The offender must indicate that he or she wants the court to take these additional offences into account when dealing with the principal offence: s 32(1).
A list of additional charges may be filed at any time after the court finds the offender guilty and before the court deals with the offender for the principal offence: s 32(2).
A copy of the list of additional charges, as filed, is to be given to the offender and must be signed both by the offender and by, or on behalf of, the Director of Public Prosecutions: s 32(3), (4).
Section 33(1) provides that the court must ask the offender “whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence”.
Then, under s 33(2), the court may take a further offence into account in dealing with the offender for the principal offence:
if the offender:
admits guilt to the further offence, and
indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
if, in all of the circumstances, the court considers it appropriate to do so.
Although the offender admits guilt to further offences on a Form 1 under s 33(2)(a)(i), 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  NSWCCA 54 at . See Whether guilty plea discount given for Form 1 offences at [11-525]. RA Hulme J identified, at –, some of the potential difficulties associated with considering the procedural history of Form 1 offences when assessing the discount of the sentence for the principal offence for the utilitarian value of the guilty plea. However, his Honour observed that the procedural history should not be completely disregarded in assessing the sentence for the primary offence as it may have a bearing on other relevant matters including personal deterrence, remorse and prospects of rehabilitation: Gordon v R at . See also Should the effect of Form 1 matters be quantified? at [13-215].
The requirement in s 33(2)(a)(ii) to ask the applicant whether he or she wants the court to take into account the Form 1 offences is a formality that should not be dispensed with because it is an important safeguard “to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody”: R v Felton (2002) 135 A Crim R 328 per Howie J at , cited with approval in R v Brandt  NSWCCA 3 at .
[13-210] Guideline judgment for Form 1 sentencing
The Attorney General (NSW) applied for a guideline judgment in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 on the basis that there was a need for a guideline setting out the proper approach to be taken by sentencing courts when Form 1 matters were under consideration. Chief Justice Spigelman delivered the judgment of the court with Wood CJ at CL, Grove, Sully and James JJ agreeing.
The rationale for the Form 1 procedure
Chief Justice Spigelman at – noted the following two distinct but consistent rationales for the procedure of taking matters into account on a Form 1.
It promotes the objective of rehabilitation by providing an opportunity for an offender to emerge with a “clean slate” following sentencing for the principal offence.
There is utilitarian value in the admission of guilt which saves resources utilised in further investigation by law enforcement agencies.
The effect of including offences on a Form 1 is to give them a significantly lower prominence in the sentencing process, affording an obvious advantage and a greater incentive to admit guilt: per Spigelman CJ at .
Focus throughout is on the principal offence
It is important that Form 1 matters should be taken into account only in relation to the principal offence. At – Spigelman CJ said:
The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure. This is not sentencing for the principal offence.
 In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence.
 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences … These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.
Chief Justice Spigelman indicated at – that the factors of personal deterrence and retribution are not the only factors of relevance to the Form 1 procedure:
I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence.
The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at ).
“Bottom up” approach appropriate
Chief Justice Spigelman observed at  that there were a number of propositions that were well established and uncontroversial. First, the essence of the process is to impose a longer sentence, or to alter the nature of the sentence, that would have been imposed if the primary sentence had stood alone. Secondly, the additional penalty may sometimes be substantial; it is incorrect to suggest that it should be small. However, Spigelman CJ said that there was a divergence of approaches, characterised as either a “bottom up” or “top down” approach. This choice raised an important issue of principle which had been the subject of uncertain and sometimes conflicting guidance in previous decisions of the court. The “bottom up” approach focuses on the sentence that is appropriate for the principal offence, that is the offence charged on the indictment. This sentence is then increased by reason of the Form 1 offences for which guilt has been admitted. In contrast, a “top down” approach considers the sentence that would have been imposed by the application of sentencing principles if the court had been sentencing for the full range of offences.
The starting point of any analysis is the terms of the statutory power, with its emphasis that the court is concerned only with imposing a sentence for the “principal offence”. Such a power was held to be inconsistent with the “top down” approach advocated by the Attorney General in his submissions: at .
The court endorsed the “bottom up” approach in R v Timmis  NSWCCA 158. See also Abbas v R (2013) 231 A Crim R 413 at .
[13-215] Should the effect of Form 1 matters be quantified?
In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, Spigelman CJ said that “it will rarely be appropriate for a sentencing judge to attempt to quantify the effect … of Form 1 offences”: at . This approach was confirmed in Abbas v R (2013) 231 A Crim R 413 at  where Bathurst CJ held that the object of s 33 was not to impose a distinct penalty for the offences to be taken into account. This interpretation “… is reflected in s 33(3) … which provides that any increase in penalty must not exceed the maximum penalty that the Court could have imposed for the principal offence”: Abbas v R at .
However, the plurality of the High Court decision in Markarian v The Queen (2005) 228 CLR 357 considered that occasionally “it may be useful and certainly not erroneous” to specify the amount by which the penalty for the principal offence has been increased for Form 1 matters. Chief Justice Gleeson, Gummow, Hayne and Callinan JJ said at :
Just as on occasions, albeit that they may be rare ones, it may not be inappropriate for a sentencing court to adopt an arithmetical approach, it may be useful and certainly not erroneous for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt. Here Hulme J sought to, and in our opinion did make it clear, that the additional period of imprisonment was imposed not as a separate penalty for the further offences but by way of increase of penalty for the principal offence.
[13-217] Deterrence and retribution
A court can take into account the criminality of the Form 1 offences or increase a sentence for a principal offence to take account of an additional need for deterrence and retribution for the offences charged: Abbas v R (2013) 231 A Crim R 413 at . That approach is consistent with the terms of s 33 and Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 for Form 1 offences: Abbas v R at , . The Form 1 offence may demonstrate the greater need for personal deterrence and retribution for the principal offence. When the Form 1 offence is taken into account, the principle of proportionality is assessed by reference to those additional factors. 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 , .
[13-220] Restrictions on Form 1 procedure
Any penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account: s 33(3) Crimes (Sentencing Procedure) Act.
A court may not take a further offence into account if it is of a kind where the court has no jurisdiction to impose a penalty or if the offence is punishable with imprisonment for life: s 33(4)(a), (b).
Certain ancillary orders or directions (restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege) relating to offences taken into account may be made. The offender retains the same right of appeal as if the order had been made on conviction of the further offence, but a court may not impose a separate penalty for the offence that is taken into account: s 34; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ at . A right of appeal is available in respect of any of the above orders, as if the offender had been convicted of the offence in respect of which the order is made: s 34(2).
If the decision in respect of which the offence was taken into account is quashed, or set aside, then any ancillary order lapses: s 34(3).
In R v Gardner  NSWCCA 199 it was held that by operation of s 34 Crimes (Sentencing Procedure) Act 1999, it was open to the sentencing judge to consider whether, as an ancillary order, the disqualification period prescribed by s 25(2)(d) Road Transport (General) Act 1999 should be reduced or extended.
The Court of Criminal Appeal, the Supreme Court or the District Court may take into account summary offences: s 33(6).
It is erroneous to confer a further benefit on an offender or attribute “considerable utility” because the offender co-operated in settling the Form 1 and “clear[ed] the slate”: R v Van Ryn  NSWCCA 1 at – citing Hinchliffe v R  NSWCCA 327 at . An offender already obtains an advantage by the Form 1 procedure in that 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.
[13-230] Severity of additional penalty
The penalty imposed for the offence of which the person has been found guilty shall not exceed the maximum penalty that the court would have been empowered to impose on the person for the offence, if no other offence had been taken into account: s 33(3).
If the criteria are satisfied the court may, if it thinks fit, take all or any of the offences in respect of which guilt has been admitted into account when imposing a penalty on the person for the offence in respect of which he or she has been found guilty: s 33(2).
Section 31 provides that the full range of penalties can be imposed and includes the imposition of a non-association or place restriction order.
[13-240] Serious, numerous and unrelated offences on a Form 1
The statutory scheme contemplates that serious offences can be included on a Form 1: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (the Guideline) at –. The statement in R v Vougdis (1989) 41 A Crim R 125 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: at . Nevertheless Spigelman CJ said in the Guideline at :
It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct to be appropriately reflected in the sentence.
There is also a difficulty of “taking into account” matters which may appear to be disproportionate, not comparable, or not of the same kind and order of gravity as the principal offence under consideration: the Guideline at , .
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: the Guideline at .
[13-250] Obligation on the Crown to strike a balance
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 that the indictment adequately reflects the totality of the admitted criminality: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at . 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: at .
[13-260] The statutory power to reject a Form 1 under s 33(2)(b)
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: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at .
The court should recognise the many considerations which may inform a prosecutor’s decision to include matters on a Form 1: at . Chief Justice Spigelman said of the exercise of the discretion at :
There will be cases in which, for example, 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. I do not intend the previous sentence to constitute a comprehensive statement of the circumstances in which the broad discretion vested in the sentencing judge by s 33(1)(b) [sic] can be exercised. Nevertheless, the role of the Court must be constrained, to ensure that the independence of the judicial office in an adversary system is protected. (Cf Maxwell v The Queen (1995) 184 CLR 501 esp at 513-514 and 534-535.)
In CP v R  NSWCCA 291, McClellan CJ at CL at  said:
… when an entirely inappropriate arrangement is proffered and because of it a court would be denied the opportunity to impose a proper sentence, the discretion provided by s 33(2)(b) should be invoked and the court should decline to accept the Form 1.
The applicant in CP v R had pleaded guilty to two counts of armed robbery and one count of being an accessory to an aggravated car-jacking. Eight further offences were taken into account on a Form 1, including a charge of armed robbery. According to McClellan CJ at CL, the inclusion on the Form 1 of both the armed robbery offence and the concealing robbery offence was inappropriate: at . Justice McCallum (with whom Fullerton J agreed) noted at  that it would have been open to the sentencing judge to decline to take the armed robbery on the Form 1 into account.
Similarly, in El-Youssef v R  NSWCCA 4 at , the court held that an armed robbery was inappropriately placed onto a Form 1 with the result that the judge could not impose a sentence to reflect the seriousness of that offence.
In R v Eedens  NSWCCA 254, the principal offence was sexual intercourse with a child under 10 years on indictment under s 66A Crimes Act 1900. Two further offences under ss 66A and 66C(1) were placed on a Form 1. The court held this was an inappropriate use of Form 1 because the sentence imposed could not sufficiently reflect the seriousness of the totality of applicant’s conduct. Generally, it is inappropriate to have a matter that carries a standard non-parole period taken into account on a Form 1, except in a situation which can be justified, such as when the offender is sentenced for numerous similar offences: R v Eedens at . Similarly, in JL v R  NSWCCA 130, after referring to the power to reject a Form 1 under s 33(2)(b), the court cited CP v R and held that a charge of anal intercourse committed against an eight-year old girl was not an appropriate one for inclusion on a Form 1: JL v R at .
In Abbas v R (2013) 231 A Crim R 413, Bathurst CJ said at  that where the gravity of the Form 1 offences far exceed those for which the offender is being sentenced, or where the magnitude of the offences on the Form 1 make it impossible to take them into account in sentencing for the convicted offence, the court should give consideration to declining to take the Form 1 offences into account.
Hoeben CJ at CL (Garling and Bellew JJ agreeing) in DG v R  NSWCCA 139 observed that by charging three aggravated indecent assaults contrary to s 61M(1) Crimes Act and including sexual offences under subss 66C(2) and 66C(4) Crimes Act on a Form 1 involved “a distortion of the intention behind the Form 1 procedure … [and] … made the sentencing task to be performed by his Honour considerably more difficult than it should have been”. DG v R at . Similarly, in Croxon v R  NSWCCA 213, the inclusion of an aggravated sexual assault offence under s 61J(1) Crimes Act was considered by Bellew J at  to be “an entirely inappropriate use of the [Form 1] procedure” given the other charges faced by the offender (Hoeben CJ at CL and Davies J agreeing).
It should be noted, however, that there is no recorded case (first instance or on appeal) where a court has exercised its power under s 33(2)(b) upon finding that it was inappropriate for a particular charge to be included on a Form 1. Further, 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 . The scope for judicial intervention is thus limited to rare cases.
In Elias v The Queen, 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: Elias v The Queen at . 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 The Queen (1996) 184 CLR 501 at 514. The same reasoning could be applied to the exercise of power under s 33(2)(b).
[13-270] Effects of the Form 1 procedure
If a further offence is taken into account, the court is required to certify on the list of additional charges that the further offence has been taken into account, and no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside: s 35(1)(a) and (b). The offender is not convicted of the offence(s) taken into account: s 35(4).
The 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 that the offender was convicted of the principal offence, reference may also lawfully be made to, or evidence given about, the fact that a further offence was taken into account in imposing a penalty for the principal offence: s 35(5).
The fact that 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).
[13-275] Charge negotiations: prosecutor to consult with victim and police
Section 35A requires the prosecutor to file a certificate verifying consultation with victim 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:
A court must not take into account offences specified in a list of additional charges under section 32 in relation to an offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that:
the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and
any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines.
The reference in s 35A(2)(b) to “prosecution guidelines” is a reference to, inter alia, the Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, Guideline 20, Charge Negotiation and Agreement: Agreed Statements of Facts, where it is stated:
… A plea of guilty in those circumstances may be accepted if the public interest is satisfied after consideration of the following matters:
the alternative charge adequately reflects the essential criminality of the conduct and the plea provides adequate scope for sentencing; and/or
the evidence available to support the prosecution case is weak in any material respect; and/or
the saving of cost and time weighed against the likely outcome of the matter if it proceeded to trial is substantial; and/or
it will save a witness, particularly a victim or other vulnerable witness, from the stress of testifying in a trial and/or a victim has expressed a wish not to proceed with the original charge or charges.
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. 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 8(a) Crimes (Sentencing Procedure) Regulation 2017 provides that s 35A(3) applies to “proceedings being prosecuted by a police prosecutor — police officers”.