Reforms to NSW Sentencing Law – The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

by Peter Johnson SC

A Paper for a Seminar conducted by the Judicial Commission of New South Wales

Presented – 12 March 2003
Revised – 14 March 2003


Introduction
1. On 1 February 2003, significant changes to New South Wales sentencing law were made by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (‘the 2002 Act’), which effected amendments to the Crimes (Sentencing Procedure) Act 1999 (‘CSP Act’). In particular, the amendments which commenced on 1 February 2003:
(a) added a statutory statement of the purposes of sentencing (s.3A);
(b) provided a more elaborate list of factors relevant to sentence (including specified aggravating and mitigating factors) (new s.21A);
(c) provided for a new system of standard non-parole period sentencing for designated serious offences (ss.54A-54D).
2. On 17 February 2003, other provisions in the 2002 Act commenced, the effect of which was to establish a NSW Sentencing Council (ss.100I-100L).
3. Amendments made by the 2002 Act extend from substantial reform to the law of sentencing for certain serious offences (ss.54A – 54D) to enactment of a more elaborate statement of existing principle concerning factors relevant to sentence (s.21A) and a statement of the purposes of sentencing which appears to reflect existing law (s.3A). A new body, the NSW Sentencing Council, is established (ss.100I – 100L). The level of interest in the amendments is reflected by the publication of several articles analysing the changes before the legislation had even commenced: Marien, ‘Standard Non-Parole Sentencing – the New Sentencing Reforms’, (2002) 14Judicial Officers’ Bulletin 83; Loukas, ‘Crimes (Sentencing Procedure Amendment) Standard Minimum Sentencing Bill 2002’, Bar News, Summer 2002/2003, p.51; Warner, ‘The Role of Guideline Judgments in the Law and Order Debate in Australia’, (2003) 27 Crim LJ 8 at 14, 20.
Sentencing in NSW prior to 2002 Amendments
4. Traditionally, Australian courts have attached great value to the breadth of discretion available in passing sentence. In R -v- Whyte (2002) 55 NSWLR 252 Spigelman CJ said at 276 [147]:
“The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised”.
5. Guideline judgments have been utilised. However, Spigelman CJ said in Whyte at 288 [232]:
“The guideline is, to reiterate, a ‘guide’ or a ‘check’. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by [the now repealed] s.21A of the Crimes (Sentencing Procedure) Act”.
5A. However, the exercise of discretion has not been totally free from statutory constraint. Section 5(2) of the repealed Sentencing Act 1989 (see now s.44(2) CSP Act) was described as a ‘statutory provision which constrains a sentencing judge’s exercise of discretion’: R -v- GDR (1994) 35 NSWLR 376 at 381G.
6. The exceptional powers available under the Habitual Criminals Act 1957 have been rarely exercised although the Act remains part of the law of NSW: R -v- Riley (1973) 2 NSWLR 107; R -v- Connolly (1975) 4 Petty Sessions Review 1781; NSW Law Reform Commission Report 79 – Sentencing, at 10.9-10.11, 10.19-10.20.
Other Sentencing Models
7. Before examining the reforms to NSW sentencing law, it is useful to refer to some sentencing models in other jurisdictions. In doing so it must be kept in mind that the 2002 NSW reforms have not followed, in terms, any other jurisdiction. Controversy has surrounded a number of these models.
Mandatory sentencing
8. The use of forms of mandatory sentencing has attracted judicial criticism in Australia, the United Kingdom, Canada and the United States.
9. In Sillery -v- The Queen (1981) 180 CLR 353 at 357, Gibbs CJ (Aickin J agreeing) said that mandatory sentencing ‘would lead to results that would be plainly unreasonable and unjust’. Gibbs CJ said, at 357, that even in the case of a most serious crime:
“… there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion for the judge at trial to impose an appropriate sentence not exceeding the statutory maximum.”
10. In Palling -v- Corfield (1970) 123 CLR 52, Barwick CJ said at 58:
“Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.”
11. In Reyes -v- The Queen (2002) UKPC 11; Hughes -v- The Queen (2002) UKPC 12 and Fox -v- The Queen (2002) UKPC 13, the Privy Council held that the mandatory death sentence for murder in several West Indian nations was unconstitutional and amounted to inhuman and degrading punishment. In Reyes, Lord Bingham noted that murder differed widely in severity and character and that ‘to deny the offender the opportunity, before sentence is passed, to seek to persuade the Court that in all the circumstances to condemn him to death would be disproportionate and inappropriate’ amounted to inhuman and degrading punishment (paragraph 43).
12. In Latimer -v- The Queen (2001) 150 CCC(3d) 129, the Supreme Court of Canada said at 161:
“The choice is Parliament’s on the use of minimum sentences, though considerable differences of opinion continue on the wisdom of employing minimum sentences from a criminal law policy or penological point of view.”
Without judicial discretion, it has been observed that the only answer to the palpable injustice that may result from mandatory sentencing lies in the exercise of the royal prerogative of mercy by the executive: Latimer, above, at 137, 161-162.
13. In Harris -v- United States 536US (2002), the majority of the Supreme Court of the United States said:
“The court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. … These criticisms may be sound, but they would persist whether the judge or the jury found the facts giving rise to the minimum. We hold only that the Constitution permits the judge to do so, and we leave the other questions to Congress, the States and the democratic processes. …”
In a separate judgment in Harris, Breyer J at 1-2 was strongly critical of mandatory minimum sentencing:
“Mandatory minimum statutes are fundamentally inconsistent with Congress’ simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency. … They rarely reflect an effort to achieve sentencing proportionality – a key element of sentencing fairness that demands that the law punish a drug ‘kingpin’ and a ‘mule’ differently. They transfer sentencing power to prosecutors, which can determine sentences through the charges they decide to bring, and thereby have reintroduced much of the sentencing disparity that Congress created guidelines to eliminate. …”
14. The use of a form of mandatory sentencing in the Northern Territory has attracted much criticism, including the suggestion that the legislation was open to constitutional challenge: Morgan, ‘Mandatory Sentencing in Australia: Where Have We Been and Where are We Going?’ (2000) 24 Crim LJ 164; Santow, ‘Mandatory Sentencing: A Matter for the High Court?’ (2000) 74 ALJ 298; Manderson and Sharp, ‘Mandatory Sentences and the Constitution: Discretion, Responsibility and Judicial Process’ (2000) 22 Syd LR 585; Morgan, ‘Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002’ (2002) 26 Crim LJ 293.
‘Three strike’ laws
15. A further form of sentencing which has attracted substantial criticism is the Californian ‘Three Strikes’ Law. On 5 March 2003, the Supreme Court of the United States rejected a challenge to this law which had resulted in a sentence of imprisonment of 25 years to life for an offence of stealing three golf clubs with a total value of US$1,197 from a golf course pro-shop (Ewing) and total sentences of imprisonment of 50 years to life for two offences of stealing a total of nine videotapes with a total value of US$153.54 from K-Mart Stores (Andrade): Ewing -v- California (2003) 538 US; Lockyer -v- Andrade (2003) 538 US. There was a sharp division of opinion between the majority and the minority which divided on a 5-4 basis in each case (Rehnquist CJ, O’Connor, Kennedy, Scalia and Thomas JJ agreeing; Stevens, Souter, Ginsburg and Breyer JJ dissenting).
16. The difference of view between the majority and minority is illustrated by the following excerpts (footnotes excluded). In Ewing, O’Connor J (for the majority) said at 1:
“California’s three strikes law reflects a shift in the State’s sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offences”.
17. At 15, O’Connor J said:
“To be sure, California’s three strikes law has sparked controversy. Critics have doubted the law’s wisdom, cost efficiency, and effectiveness in reaching its goals. This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a ‘super legislature’ to second-guess these policy choices”.
18. O’Connor J said at 17-18:
“Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior ‘strikes’ were serious felonies including robbery and three residential burglaries. To be sure, Ewing’s sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated”.
19. In Ewing, Stevens J, for the minority, said at 3-4 (excluding footnotes):
“Throughout most of the Nation’s history – before guideline sentencing became so prevalent – Federal and state trial judges imposed specific sentences pursuant to grants of authority that gave them uncabined discretion within broad ranges. It was not unheard of for a statute to authorise a sentence ranging from one year to life, for example. In exercising their discretion, sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment – namely, deterrence, incapacitation, retribution and rehabilitation. Likewise, I think it is clear that the Eighth Amendment’s prohibition of ‘cruel and unusual punishments’ expressed a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking”.
20. In Andrade, Souter J, for the minority, completed his judgment at 7 with the pointed observation:
“If Andrade’s sentence is not grossly disproportionate, the principle has no meaning”.
20A. The United Kingdom has a form of ‘three strikes’ law. Section 111 Powers of Criminal Courts (Sentencing) Act 2000 (UK) provides that a court is obliged to impose a custodial sentence of at least three years on a person convicted of a third domestic burglary unless the court is of the opinion that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so in all the circumstances. Where the court does not impose the minimum sentence, it shall state in open court that it is of that opinion and what the particular circumstances are: s.111(3). The provisions were considered in R -v- McGuire (2002) EWCA Crim 2689; (2003) Crim LR 126.
South Africa
21. The Republic of South Africa has enacted a system of minimum sentences for certain serious offences with a confined judicial discretion allowing the imposition of a lesser sentence if the Court is satisfied that ‘substantial and compelling circumstances’ exist.
22. The Constitutional Court of South Africa rejected a challenge to the Constitutional validity of these provisions in Buzani Dodo -v- The State (case CCT1/01, 5 April 2001). In the judgment of the Court delivered by Ackermann J, it was said at paragraphs [24] – [26]:
“[24] The executive and legislative branches of state have a very real interest in the severity of sentences. The executive has a general obligation to ensure that law-abiding persons are protected, if needs be through the criminal laws, from persons who are bent on breaking the law. This obligation weighs particularly heavily in regard to crimes of violence against bodily integrity and increases with the severity of the crime.
[25] In order to discharge this obligation, which is an integral part of constitutionalism, the executive and legislative branches must have the power under the Constitution to carry out these obligations. They must have the power, through legislative means, of ensuring that sufficiently severe penalties are imposed on dangerous criminals in order to protect society. The legislature’s objective of ensuring greater consistency in sentencing is also a legitimate aim and the legislature must have the power to legislate in this area. …
[26] The legislature’s powers are decidedly not unlimited. Legislation is by its nature general. It cannot provide for each individually determined case. Accordingly such power ought not, on general constitutional principles, wholly exclude the important function and power of a court to apply and adapt a general principle to the individual case. This power must be appropriately balanced with that of the judiciary. What an appropriate balance ought to be is incapable of comprehensive abstract formulation, but must be decided as specific challenges arise. In the field of sentencing, however, it can be stated as a matter of principle, that the legislature ought not to oblige the judiciary to impose a punishment which is wholly lacking in proportionality to the crime. This would be inimical to the rule of law and the constitutional state. It would a fortiori be so if the legislature obliged the judiciary to pass a sentence which was inconsistent with the Constitution and in particular with the Bill of Rights. The clearest example of this would be a statutory provision that obliged a court to impose a sentence which was inconsistent with an accused’s right not to be sentenced to a punishment which was cruel, inhuman or degrading as envisaged by s.12(1)(e) of the Constitution, or to a fair trial under s.35(3)”.
23. The Constitutional Court, at paragraph [11], approved the approach of the Supreme Court of Appeal of South Africa in Malgas -v- The State (Case No 117/2000, 19 March 2001). In delivering the judgment of the Supreme Court of Appeal, Marais JA said at paragraphs [1] – [3]:
“[1] Judicial hostility to legislative prescriptions which strip courts of their sentencing discretion is hardly surprising. Given the infinite variety of circumstances which attend the commission of crimes, who are better placed than the courts, which experience daily the complexities of imposing sentences which are as just as human infallibility can make them, to understand the arbitrariness and potential unjustness of such edicts? Sentencing has rightly been described as ‘a lonely and onerous task’. For those who must shoulder that responsibility in society’s name, to have to impose a statutorily decreed sentence which is manifestly unjust in the particular circumstances of the case is a monstrous thing.
[2] That said, there is a significant distinction between, on the one hand, a legislative provision which does in truth deprive a court of any sentencing discretion at all, or so attenuates it that it’s existence is illusory, and on the other, one which fetters only partially the exercise of a discretion and leaves it otherwise largely intact. Ritualistic incantations of the doctrine of the separation of powers to justify resistance to anyform of legislative intervention in this regard seem to me to lack plausibility. Subject of course to constraints going to substance imposed by the Constitution, Parliament is obviously empowered to create new offences and abolish old ones (whether they were statutorily created or originated in the common law) and to provide for the penalties courts may impose. It may, and does, limit the sentencing powers of courts in a variety of ways. The types of sentence which may be imposed may be laid down, for example, those listed in s.276 of the Criminal Procedure Act 51 of 1977. A maximum penalty of one kind or another may be specified. Even in those countries where the doctrine of a separation of powers is an article of faith, legislatures have been doing such things for generations without protest from the judiciary or the citizenry. No court exercising criminal jurisdiction in South Africa could convincingly claim to be the sole constitutional repository of power to do such things. Indeed, the courts have no inherent power to do any such thing. They cannot create new crimes. Nor can they invent a new kind of penalty such as, for example, physical detention under lock and key at some place other than a prison.
[3] What is rightly regarded as an unjustifiable intrusion by the legislature upon the legitimate domain of the courts, is legislation which is so prescriptive in its terms that it leaves a court effectively with no sentencing discretion whatsoever and obliges it to pass a specific sentence which, judged by all normal and well established sentencing criteria, could be manifestly unjust in the circumstances of a particular case. Such a sentencing provision can accurately be described as a mandatory provision in the pejorative sense intended by opponents of legislative incursions into this area. A provision which leaves the courts free to exercise a substantial measure of judicial discretion is not, in my opinion, properly described as a mandatory provision in that sense. As I see it, this case is concerned with such a provision”.
New Zealand
24. The Sentencing Act 2002 (NZ) made substantial reforms to NZ sentencing law. Statutory provision was made for the purposes of sentencing (s.7) and a list of aggravating and mitigating factors (s.9). Section 8 provides:
“8. Principles of Sentencing or Otherwise Dealing with Offenders
In sentencing or otherwise dealing with an offender the court –
(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f) must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g) must impose the least restrictive outcome that is appropriate in the circumstances; and
(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i) must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10)”.
25. Sections 102 – 104 provide for sentencing for murder including imposition of a minimum period of imprisonment of 17 years where certain aggravating circumstances exist unless the Court is satisfied that it would be manifestly unjust to set such a minimum period (s.104).
Sweden
26. In Sweden, punishment is imposed in proportion to the gravity of the crime and the offender’s culpability. Proportionality is determined by establishing a crime’s penal value. In determining the penal value of a crime, special consideration is to be given to the harm, wrong or danger occasioned by the criminal act, what the offender realised or ought to have realised about it, as well as his intentions or motives (s.1, chapter 29, Swedish Penal Code). In assessing penal value, a Court is to have regard to certain specified aggravating circumstances and mitigating circumstances (ss. 2-3, chapter 29).
27. The Swedish Penal Code provides the penalty for specified crimes. For example, an offender shall be sentenced for rape to imprisonment for at least two and at most six years and, if the crime is gross, a sentence of imprisonment for at least four and at most ten years (s.1, chapter 6, Swedish Penal Code). For arson, the sentence is imprisonment for at least two and at most eight years, but in the case of gross arson, imprisonment for a term of at least six and at most ten years (ss.1-2, chapter 13, Swedish Penal Code). In determining the appropriate punishment, a Swedish Court will have regard to whether the accused has previously been guilty of crime (s.4, chapter 29). In determining the appropriate punishment, the Court shall, besides the penal value of the crime, give reasonable consideration to a number of specified factors (eg whether the accused gave himself up, whether an unusually long time has elapsed since the commission of the crime etc), and if any of the specified circumstances exists, the Court may, if there are special grounds for so doing, impose a less severe punishment than that prescribed for the crime (s.5, chapter 29).
Germany
28. In Germany, judicial sentencing is circumscribed by legislative scaling of penalties which provides for cases which differ in gravity from the average type of offence and do not fit within the normal levels provided. In such cases, judges may evaluate aggravating or mitigating circumstances according to guideline examples or exercise complete discretion if necessary.
29. Section 211 of the German Criminal Code provides for imprisonment for life for murder, and s.212 provides for imprisonment for not less than five years for the offence of manslaughter. By way of other example, s.226 of the Criminal Code provides for imprisonment of not less than three years if an offender intentionally or knowingly causes specified serious bodily injury to a victim.
Section 3A – Statutory Purposes of Sentencing
30. Section 3A specifies the purposes for which a Court may impose a sentence on an offender. In the second reading speech, the Attorney-General, Mr Debus, said (Legislative Assembly, Hansard, 23 October 2002):
“The Bill inserts a new s.3A into the principal Act, which sets out the purposes for which a Court may impose a sentence on an offender. These purposes are to ensure that the offender is adequately punished for the offence; to prevent crime by deterring the offender and other persons from committing similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his or her actions; to denounce the conduct of the offender; and to recognise the harm done to the victim of the crime and the community”.
31. In recent years, it has become more common for a statutory provision to state the purposes of sentencing. See, for example, s.9 Penalties and Sentences Act 1992 (Qld); s.3 Sentencing Act 1997 (Tas); s.1 Sentencing Act 1991 (Vic); s.429 Crimes Act 1900 (ACT); and s.718 of the Canadian Criminal Code. Clause 126 of the Criminal Justice Bill 2002 (UK), if enacted, will state the purposes of sentencing.
32. In Veen -v- The Queen (No. 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said at 476:
“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions”.
33. In Attorney-General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) NSW CCA 515, Spigelman CJ (for the Court) said at paragraphs 57-60:
“57. Further, this Court did not receive submissions about the impact of s.3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the ‘purposes of sentencing’ which must now guide sentencing decisions constitute a change of pre-existing sentencing principles.
58. For example, ‘prior’ case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate ‘purpose’ and one concerned with protection of the community ‘from the offender’.
59. It may also be arguable that s.3A(e) – making the offender ‘accountable’ – introduces a new element into the sentencing task. The same may be true of the reference to ‘harm’ to ‘the community’ in s.3A(g).
60. In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature”.
34. Reference to protection of the community from the offender has appeared in several statutes:
(a) repealed s.21A(2)(g) CSP Act required a sentencing court to take into account ‘the need to protect the community from the offender’;
(b) section 7(1)(g) Sentencing Act 2002 (NZ) includes amongst the purposes of sentencing – ‘to protect the community from the offender’;
(c) section 9(1)(e) Penalties and Sentences Act 1992 (Qld) provides that a purpose of sentencing is ‘to protect the Queensland community from the offender’;
(d) section 429(e) Crimes Act 1900 (ACT) provides that a purpose of sentencing is ‘to protect the community from the offender’.
35. In Report 79 (1996), Sentencing, the NSW Law Reform Commission observed at paragraph 14.12 that the rationales for punishment included ‘incapacitation – which involves preventing a person from committing further offences during the period of incarceration, with community protection as the justification’. It was observed that ‘incapacitation should be distinguished from preventive detention’. Incapacitation has been referred to as one of the traditional objectives of sentencing: R -v- Stafford (1997) 97 A Crim R 85 at 88; R -v- Skipper (1992) 64 A Crim R 260 at 267; R -v- Stewart (1994) 72 A Crim R 17 at 30.
36. It is submitted that s.3A(c) CSP Act does not alter the common law. The cases (R -v- Cuthbert (1967) 86 WN (Part I) 272 at 274; R -v- Rushby (1977) 1 NSWLR 594 at 597-8; R -v- Hayes (1984) 1 NSWLR 740 at 744;Veen (No. 2) at 473) suggest that protection of the community may be served by specific and general deterrence, rehabilitation and incapacitation, all of which may be observed in s.3A.
37. Insofar as the NSW Court of Criminal Appeal, in Attorney-General’s Application No. 2 of 2002, raised questions concerning s.3A(e) and (g) CSP Act, it is noteworthy that s.7(1)(a) Sentencing Act 2002 (NZ) includes amongst the purposes of sentencing ‘to hold the offender accountable for harm done to the victim and the community by the offending’ and s.7(1)(b) of the Act states as a purpose ‘to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm’. The Court of Appeal of New Zealand has observed that s.7 ‘conveniently lists purposes of sentencing which were recognised by the common law’: R -v- Cassidy(2002) NZ CA 245 at paragraph 10.
38. Section 718(f) Canadian Criminal Code lists amongst the purposes of sentencing ‘to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community’.
39. When the matter is fully argued before the Court of Criminal Appeal, it may be that the Court will take the view that the language of s.3A does not involve any significant alteration of the common law purposes of sentencing. Rather, s.3A uses contemporary language to describe those purposes. Whether the Court of Criminal Appeal takes such a view is, of course, a matter for future resolution.
39A. It should be observed that s.5(1) CSP Act remains in the statute:
“5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”.
This reflects the common law principle that imprisonment is a sentence of last resort: R -v- James (1985) 14 A Crim R 364; R -v- O’Connor (1986) 23 A Crim R 50.
Aggravating, Mitigating and Other Factors in Sentencing
40. Section 21A(1) provides for a series of aggravating, mitigating and other factors to be taken into account in ‘determining an appropriate sentence’. Section 21A(2) provides a list of aggravating factors and s.21A(3) provides a list of mitigating factors to be taken into account by a Court in determining a sentence. This statutory list alters repealed s.21A, in particular by identifying specific factors as either aggravating or mitigating.
41. The use of a statutory reference to, or list of, aggravating and mitigating factors has occurred in other jurisdictions: ss.7 and 8 Sentencing Act 1995 (WA); s.718.2(a) Canadian Criminal Code; s.9 Sentencing Act 2002 (NZ).
42. A problem that has been identified with listing aggravating and mitigating factors in statutory form is that a relevant matter may be omitted from the list. While ss.21A(2) and 21A(3) are themselves detailed lists, the general matters that may be taken into account under the closing words in s.21A(1) serve to overcome such a potential problem. Those words appear broad enough to accommodate matters which a sentencing court was required or permitted to take into account under statute or common law prior to the commencement of the 2002 Act. Loukas argues (see paragraph 3 above, at 51) that, if there was uncertainty in the meaning and operation of s.21A with respect to the continuing operation of common law principles, a beneficial construction ought be given to these provisions: Piper -v- Corrective Services Commission (1986) 6 NSWLR 352 at 361. This is a reasonable view.
42A. Section 21A(1) emphasises, in its closing words, that existing statutory and common law factors may still be taken into account in determining sentence. Section 21A(2) and (3) do not constitute an exhaustive list of factors which may aggravate or mitigate sentence in a particular case. Not all factors will invariably and consistently operate as either aggravating or mitigating factors. Whether they will so operate will depend upon the circumstances of the case. In this regard, the Attorney-General, in the second reading speech (see paragraph 43 below), made particular reference to youth, mental disability and cultural background. It is clearly intended that such factors remain available to be taken into account, but how they will operate will depend upon the particular case. The common law principles as contained in cases such as R -v- AEM (Snr), KEM and MM (2002) NSW CCA 58 at [97] (youth), R -v- Ceissman (2001) 119 A Crim R 535; (2001) NSW CCA 73 at [29]-[33] (cultural background) and R -v- Engert (1995) 84 A Crim R 67 at 71; R -v- Wright (1997) 93 A Crim R 48 at 50-51 and R -v- Mitchell (1999) 108 A Crim R 85 at 96 [51] (mental disability) remain available to be applied. Likewise, the principles of parity and totality continue to apply. Statutory provisions such as s.6 Children (Criminal Proceedings) Act 1987 (especially s.6(b), (c), (d) and (e)) continue to apply to sentencing proceedings by operation of the closing words in s.21A(1).
43. In the second reading speech, the Attorney-General, Mr Debus, said (Legislative Assembly, Hansard, 23 October 2002):
“The Bill also recasts existing s.21A of the principal Act with a new section that sets out clearly identified and well-recognised aggravating and mitigating factors to be taken into account by sentencing courts in determining the appropriate sentence for an offence, if those circumstances are relevant and known to the court.
The court is also required to take into account any other objective or subjective factor that affects the relative seriousness of the offence. The requirement in proposed s.21A for a court to take into account aggravating and mitigating factors and other matters applies in sentencing for all offences, not just to offences that are subject to a standard non-parole period under proposed Division 1A, Part 4, of the principal Act. The identification of aggravating and mitigating factors in proposed ss 21A(2) and (3) restate the application of such factors to the sentencing exercise as they presently apply at common law. This is made clear by proposed ss.21A(1), which provides that the Court is to take into account the aggravating and mitigating factors referred to in ss.(2) and (3) of s.21A ‘which are relevant and known to the Court’. For example, the aggravating factor under proposed ss.21A(2)(d) that ‘the offender has a record of previous convictions’ is to be taken into account if that factor is relevant to the sentencing exercise.
In the case of Veen (No. 2) in the High Court, the majority stated how the antecedent criminal history of an offender can be relevant to sentencing. The majority stated that such a history can be relevant when it illuminates the moral culpability of the offender in the instant case or shows a dangerous propensity or a need to impose condign punishment to deter the offender and other offenders from committing similar offences. Proposed s.21A(4) provides that a sentencing court is not to have regard to any aggravating or mitigating factor specified in the section if it would be contrary to any Act or rule of law to do so. This provision makes it clear, for example, that a rule of law such as that expressed in The Queen -v- de Simoni (1981) 147 CLR 383 is not affected. In the case of de Simoni, the High Court held that a sentencing court may not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence for which the offender was not charged. The de Simoni principle is further preserved by the operation of the concluding words of proposed s.21A(2).
Proposed s.21A(5) makes it clear that the fact that a specified aggravating or mitigating factor is relevant and known to the court does not require the court to automatically increase or reduce the sentence. Not all subjective factors present in a particular case will automatically result in the reduction or increase of a sentence. For example, the courts have consistently held that issues of youth, mental disability or cultural background will not in every case lead to a reduction of a sentence by way of mitigation.
It is a well-accepted principle of sentencing that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation. However, as the Court of Criminal Appeal recently reaffirmed in R -v- AEM (Snr), KEM and MM (2002) NSW CCA 58, there is a point at which the seriousness of the crime committed by a youth is of such a nature, is so great, that the principle must, in the public interest, give way.
As the High Court state in the case of Veen (No. 2), the various purposes of punishment are guideposts to the appropriate sentence. These guideposts sometimes point in different directions. For example, the existence of a causal relationship between the commission of an offence and an offender’s mental disability does not automatically produce the result that the offender will receive a lesser sentence. The presence of a mental disability in an offender may, in a particular case, be given little weight because of the overriding need to protect the community. This principle has been affirmed in a series of decisions of the Court of Criminal Appeal in New South Wales in R -v- Engert (1995) 84 A Crim R 67, R -v- Wright (1997) 93 A Crim R 48 and R -v- Mitchell (1999) 108 A Crim R 85″.
44. In Attorney-General’s Application under s.37 Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) NSW CCA 515, Spigelman CJ said at paragraph 55-56:
“55. Many of the listed aggravating and mitigating factors [in s.21A] reflect the common law. Nevertheless, some are expressed in ways which differ from that contained in any judgment. Furthermore, they differ from the list of considerations identified in the former s.21A which was based in large measure on s.16A of the Commonwealth Crimes Act. That section included matters covered in the new s.3A as well as many of the matters referred to in s.21A.
56. The list of aggravating factors is stated in a form which has not hitherto been required to be taken into account by sentencing judges.
…”
45. The new s.21A applies to the determination of a sentence after 1 February 2003 for an offence, whenever committed, unless before that date, a Court has convicted the person being sentenced to the offence or a Court has accepted a plea of guilty to the offence and the plea has not been withdrawn: clause 45(2), Schedule 2, CSP Act. Section 21A applies to all offences in all courts. It is not confined to offences contained within the standard non-parole period scheme.
46. The concluding words of s.21A(2) provide that a Court is not to have additional regard to any aggravating factor in sentencing if the factor is an element of an offence. For example, where an element of the offence is that it was committed in company (eg s.61J(2)(c) Crimes Act, s.97 Crimes Act 1900), that element is integral to the offence itself and it is impermissible to have additional or cumulative regard to it, as a further aggravating factor, under s.21A(2)(e).
Standard Non-parole Period Offences
47. Division 1A of Part 4 of the Act (ss.54A-54D) provides for a new system of standard non-parole sentencing for designated serious offences. The offences falling within this scheme are contained in a table following s.54D of the Act. For ease of reference, that table is reproduced as Appendix A to this Paper. In addition to the listing of the offences and standard non-parole periods, Appendix A also states the maximum penalty for each offence. The periods fixed as standard non-parole periods have been criticised: Warner, ‘The Role of Guideline Judgements in the Law and Order Debate in Australia’, (2003) 27 Crim LJ 8 at 14.
47A. It is the case that the periods fixed as standard non-parole periods are significantly higher than the median non-parole periods recorded in JIRS statistics for the relevant offences. It should be kept in mind, however, that the JIRS statistics reflect a median non-parole period where a complete sentencing discretion has been exercised, taking into account all relevant objective and subjective factors. The standard non-parole period is a figure reflecting the ‘middle of the range of objective seriousness’ only, without taking into account any other factors relevant to sentence. It is, in effect, a starting point in the sentencing exercise relating to objective seriousness only. Further, the median non-parole period statistics relate, of course, to the particular cases which fell for sentence in the relevant period. It does not necessarily follow that the JIRS median non-parole period represents the median for that offence generally. Care needs to be taken in relying upon a generalised comparison between the standard non-parole periods and the JIRS median non-parole period statistics. That said, it is clear that the standard non-parole periods contained in the 2002 Act are substantial.
48. Division 1A of Part 4 applies only to sentencing for standard non-parole period offences committed on or after 1 February 2003: cl. 45(1), schedule 2, CSP Act.
49. Division 1A of Part 4 of the Act does not apply to sentencing of an offender:
(a) to imprisonment for life or for any other indeterminate period: s.54D(1)(a);
(b) to detention under the Mental Health (Criminal Procedure) Act 1990: s.54D(1)(b);
(c) if the offence for which the offender is sentenced is dealt with summarily: s.54D(2).
50. Section 106 CSP Act requires a review of the standard non-parole period provisions in Division 1A of Part 4 to determine the effect of those provisions. The review is to be undertaken as soon as possible after the period of two years from the commencement of the provisions (s.106(3)) with a report to be tabled in each House of Parliament within 12 months thereafter (s.106(4)).
What is the standard non-parole period?
51. In the second reading speech, the Attorney-General said (Legislative Assembly, Hansard, 23 October 2002):
“The standard non-parole periods set out in the table to the Bill have been set taking into account the seriousness of the offence, the maximum penalty for the offence and the current sentencing trends for the offence as shown by sentencing statistics compiled by the Judicial Commission of New South Wales. The community expectation that an appropriate penalty will be imposed having regard to the objective seriousness of the offence has also been taken into account in setting standard non-parole periods. The Bill provides in s.54A(2) that the standard non-parole period for an offence represents the non-parole period for an offence in the middle of the range of objective seriousness for such an offence. The standard non-parole period provides a reference point or benchmark within the sentencing spectrum for offences that are above or below the middle of the range of objective seriousness for such an offence.
The concept of a sentencing spectrum is well known to sentencing judges and criminal law practitioners. The first important point of reference, which must be considered in the sentencing exercise is the maximum penalty for an offence. The maximum penalty is said to be reserved for the ‘worst type of case falling within the relevant prohibition’: R -v- Tait and Bartley (1979) 46 FLR 386 at 398. However, as the High Court observed in Veen (No. 2) at 478, this does not mean that ‘a lesser penalty must be imposed if it be possible to envisage a worse case …’. At the other end of the sentencing spectrum lie cases which might be described as the least serious or trivial.
The new sentencing scheme proposed in the Bill introduces a further important reference point, being a point in the middle of the range of objective seriousness for the particular offence. The identification of a further reference point within the sentencing spectrum will provide further guidance and structure to the exercise of the sentencing discretion. Every sentencing exercise necessarily involves the identification by the court of where the offence lies in the spectrum of objective seriousness. In Ibbs -v- The Queen (1987) 163 CLR 447, the High Court referred at 451-2 to the need for a sentencing judge to identify where in the spectrum of objective seriousness an offence lies. Chief Justice Spigelman recently restated this principle in Thorneloe -v- Filipowski (2001) 52 NSWLR 60 at 69. The Chief Justice referred again to the principle in Whyte at 276-7 [152] when his Honour stated:

“However, in this State the principle of proportionality identified in Veen -v- The Queen (1979) 143 CLR 458 esp at 490; Veen -v- The Queen (No. 2) (1988) 164 CLR 465 esp at 472-3 and 476 has long been held to permit, indeed to require, that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender”.”

52. The reference to a ‘sentencing spectrum’ in the second reading speech invites reference to the role of the maximum penalty for an offence. Section 21 CSP Act provides for the general power of courts to reduce a penalty below the statutory maximum. In R -v- Oliver (1980) 7 A Crim R 174, Street CJ said at 177:
“The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum”.
53. In R -v- Hayes (1984) 1 NSWLR 740 at 743, Street CJ compared the statutory maximum penalties for certain offences within the Crimes Act and observed that the Act ‘is notoriously inconsistent in the relativities of the various statutory maxima’.
54. When Parliament increases the maximum penalty for an offence it has been said that the courts should accept the level of community concern so manifested by Parliament and give effect to it by an increase in sentences imposed for the offence: R -v- Slattery (1996) 90 A Crim R 519 at 524; R -v- Jurisic (1998) 45 NSWLR 209 at 227. It might be said that the enactment of standard non-parole periods involves a similar legislative signal achieved in a different way.
55. The maximum penalty is said to be reserved for the ‘worst type of case falling within the relevant prohibition’: R -v- Tait and Bartley (1979) 46 FLR 386 at 398; R -v- Fernando (1999) NSW CCA 66 at paragraph 343. This does not mean that ‘a lesser penalty must be imposed if it be possible to envisage worse case’: Veen -v- The Queen (No. 2) (1988) 164 CLR 465 at 478. In applying this principle, a court must have regard to ‘the gravity of the offence viewed objectively’: R -v- Camilleri (unreported, NSW CCA 8 February 1990) referred to in Fernando at [344].
56. At what could be said to be the other extreme of the sentencing spectrum (the most lenient penalty), a sentencing court may consider, in the exercise of its discretion, the making of an order, without proceeding to conviction, dismissing the charge or conditionally discharging the offender under s.10 CSP Act. This is more theoretical than real in the case of serious indictable offences, although the application of s.10 has been considered in the context of an offence under s.33B Crimes Act 1900: R -v- Paris (2001) NSW CCA 83; cf R -v- Piccin (No. 2) (2001) NSW CCA 323. Before applying s.10, the court must have regard to the factors set out in s.10(3), in particular s.10(3)(b), ‘the trivial nature of the offence’. In identifying ‘the trivial nature of the offence’, it was held by Brennan J in Walden -v- Hensler (1987) 163 CLR 561 at 577 (with respect to the Queensland equivalent to s.10) that:
“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed”.
It is necessary for a court to have regard to the objective seriousness of the offence for the purpose of determining whether to impose a s.10 Order.
57. The vast majority of cases are neither the ‘worst case’ nor a ‘trivial case’ but rather lie somewhere between these two poles. There is a sentencing spectrum or continuum between the maximum penalty and the most lenient penalty. In most cases, a sentencing court is thus faced with the task of establishing a notional point or band somewhere on this scale: Fox and Freiberg, ‘Sentencing – State and Federal Law in Victoria’, second edition, 1999, paragraph 3.506. This will require compliance with the principle in Hoare -v- The Queen (1989) 167 CLR 348 at 354:
“Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”.
In Whyte, Spigelman CJ said at 277 [156]:
“The reasoning in Hoare appears to me to necessarily involve separate consideration of the sentence appropriate to the objective circumstances of the offence”.
Section 44 CSP Act
58. Section 44(1), as substituted by the 2002 Act, requires the sentencing court to first set a non-parole period for the sentence and then to set the balance of the term of the sentence. Section 44(2) provides that the balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are ‘special circumstances’ for it being more.
59. Section 44(1) involves a return to the requirement under s.5 of the repealed Sentencing Act 1989 to first impose a non-parole period. In the second reading speech, the Attorney-General said:
“The replacement of the existing section [44] is a necessary consequence of the introduction of the scheme of standard non-parole sentencing”.
60. Section 44, as enacted in 2002, applies with respect to sentencing for all offences committed on or after 1 February 2003: cl. 45(1), schedule 2, CSP Act. Section 44 applies to all sentencing determinations where a sentence of imprisonment is imposed, whether or not the offence comes within the standard non-parole period scheme.
61. Loukas (paragraph 3, at 52) has raised the question whether s.44(2) may allow the effective reduction of a non-parole period for a standard non-parole period sentence where ‘special circumstances’ are found. It is submitted that the better view is that a finding of ‘special circumstances’ may see such a reduction. Section 54B(3) provides that the reasons for which a court may set a shorter or longer non-parole period ‘are only those referred to in s.21A’. Section 21A(1)(c) enables matters to be taken into account that are required or permitted to be taken into account under any Act or rule of law. Section 44(2) enables a court to take into account the existence of ‘special circumstances’ to vary the statutory relationship between the non-parole period and the balance of the term.
Section 54B CSP Act
62. When a court imposes a sentence of imprisonment for a standard non-parole period offence, s.54B(2) CSP Act provides that the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. The reasons for which the court may set a non-parole period that is longer or shorter are only those referred to in s.21A: s.54B(3). Where the court increases or reduces the standard non-parole period, the court must make a record of its reasons for doing so and must identify in the reasons each factor that was taken into account: s.54B(4). With respect to s.54B, the Attorney-General said in the second reading speech (Legislative Assembly, Hansard, 23 October 2002):
“Under the Bill, the sentencing process remains one of synthesis of all the relevant factors in the circumstances of the case. The requirement for a court to identify each factor that it takes into account does not require the court to assign a numerical value to such a factor. That is, proposed s.54B does not require a court to adopt a mathematical or multi-staged approach to sentencing”.
62A. Section 54B(2) has a prescriptive element. When determining the sentence of imprisonment (if one is to be imposed) for a standard non-parole period offence, ‘the court is to set the standard non-parole period … as the non-parole period … unless the court determines that there are reasons’ for setting a shorter or longer non-parole period. But it is clear that the standard non-parole period is part of the picture only – it reflects the ‘middle of the range of objective seriousness’ for the offence. It is a starting point. The court must determine where the offence lies in the range of objective seriousness and take into account the wide range of subjective and other factors, both statutory and common law, which are available in s.21A. The process remains, in the words of the Attorney-General, one of ‘synthesis of all the relevant factors in the circumstances of the case’.
62B. The court may depart from the standard non-parole period if it determines that there are reasons for doing so. There is no mandatory minimum sentence. Nor is there a statutory test which must be satisfied before the court may reduce the period. There is no equivalent to the South African ‘substantial and compelling circumstances’ test (paragraph 21 above), the New Zealand ‘manifestly unjust’ test for aggravated murder (paragraph 25 above) or the United Kingdom domestic burglary test – whether it would be ‘unjust’ in all the circumstances to impose the minimum custodial term (paragraph 20A above). There is no ‘special circumstances’ test as in s.44(2) CSP Act (paragraph 5A above). What is required by s.54B(2) is that the court determine that there are reasons for departing from the standard non-parole period. A discretionary determination is required, involving the synthesis of a wide range of factors available under s.21A.
Instinctive synthesis or two-tiered approach to sentencing
63. In Whyte, Spigelman CJ at 276-278 [147]-[167] considered the ‘instinctive synthesis’ and two-tiered approaches to sentencing in light of the decision in Wong -v- The Queen (2001) 207 CLR 584. His Honour observed at 278 [160]:
“There is much to be said for the proposition that the sequence in which objective circumstances and subjective considerations are taken into account should not matter, as long as all relevant considerations are taken into account”.
In R -v- McGourty (2002) NSW CCA 335 at [45], Wood CJ at CL observed that where a two-tiered approach is used, with the advantage it has of focusing upon a starting point sentence which would reflect the objective seriousness of the offence and adjusting for the subjective circumstances, it is critical that a final sentence be reviewed to ensure that, as a whole, it is an appropriate sentence.
64. It has been observed that a purely instinctive synthesis, single-tiered approach to sentencing will be increasingly difficult to reconcile with the requirements of the standard non-parole period legislation enacted in NSW: Traynor and Potas, ‘Sentencing Methodology: Two-tiered or Instinctive Synthesis’, Sentencing Trends and Issues, No. 25, Judicial Commission of NSW, December 2002, page 16. Given that the standard non-parole period is a statutory reference point relating to the objective seriousness of the offence only, a sentencing court, in practice may start with an assessment of the objective seriousness of the offence before taking into account subjective factors and forming a concluded view, applying ss.21A and 44 CSP Act, as to the appropriate non-parole period and balance of the sentence term.
How might the standard non-parole period provisions operate in practice?
65. In approaching this question, it is necessary to observe that the standard non-parole period sentencing model is new. It is appropriate to bear in mind the caveat noted, in a different context, by Badgery-Parker J in R -v- Moffitt (1990) 20 NSWLR 114 at 132 C:
“However, it is inevitable that in the application to diverse factual situations of an innovative statute such as the Sentencing Act, the full range of problems which it presents may emerge but slowly; and, as fresh cases present different problems of application of the new law, broader principles expressed in earlier cases may need revision in the light of newly perceived circumstances”.
66. When a person stands for sentence for a standard non-parole period offence, the following approach may be appropriate:
(a) the court would first consider where the offence lies within the range of objective seriousness for that particular offence – the Crown and defence counsel ought be in a position to make submissions to the court by reference to the facts of the case to assist the determination of this question;
(b) without committing to a particular position, the presiding judge may see fit to indicate a provisional view on this aspect during the course of submissions;
(c) in assessing the objective seriousness of the offence, it is likely that some of the aggravating factors set out in s.21A(2), and a lesser number of the mitigating factors set out in s.21A(3) (those dealing with objective seriousness only), will be taken into account – this is inevitable given the factors which may throw light upon the objective seriousness of the offence;
(d) a determination of the objective seriousness of the offence may lead to a provisional reduction or increase in the standard non-parole period which the court has in mind, or, depending upon the offence, allow the court to consider a non-custodial sentence (s.54C) before bringing to bear other factors relevant to sentence under s.21A;
(e) a sentencing judge would seek to avoid any double counting of factors in determining sentence, especially aggravating factors referred to in s.21A;
(f) the court may then determine the mitigating factors to be taken into account and the weight to be attached to them – ss.21A(1)(b) and 21A(3);
(g) the court may have regard to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law (closing words in s.21A(1)) – see paragraphs 42, 42A and 61 above;
(h) having taken into account the synthesis of factors, to be considered under s.21A, the court determines the type of sentence to be imposed, custodial or non-custodial;
(i) if a non-custodial sentence is to be imposed, reasons must be given setting out the factors taken into account to reach this result: s.54C(1);
(j) if a sentence of imprisonment is to be imposed, the court pronounces sentence as required by s.44(1) by first setting the non-parole period, then the additional balance of the term having determined whether ‘special circumstances’ exist under s.44(2) – the approach outlined in R -v- Moffitt (1990) 20 NSWLR 114 at 117G-118G, 121E-122C, 134E-135D and R -v- GDR (1994) 35 NSWLR 376 at 381-2 may still provide general guidance in this respect;
(k) if the non-parole period is increased or decreased from the standard non-parole period, the court must identify each of the factors taken into account: s.54B(4).
Reasons
67. Section 54B(4) requires a court to make a record of its reasons for increasing or reducing the standard non-parole period. Section 54C(1) requires a court imposing a non-custodial sentence for a standard non-parole period offence to record its reasons for doing so, including identification in the record of each mitigating factor taken into account.
68. Quite apart from provisions of this type, there is a common law duty to give reasons when passing sentence. In R -v- Hoadley (NSW CCA, 14 September 1990, BC 9002004 at [3]), it was said that the sentencing judge should summarise precisely and carefully the facts giving rise to the offences for which sentences are imposed, then set out findings in relation to all matters taken into account in mitigation or aggravation of sentence as well as reasoning which leads to the sentence imposed.
Existing guideline judgements
69. Offences for which guideline judgments have been promulgated by the Court of Criminal Appeal (armed robbery, dangerous driving causing death/grievous bodily harm and break enter and steal under s.112(1) Crimes Act 1900) are not included in the Table to Division 1A of Part 4 of the Act. In the second reading speech, the Attorney-General said “it is proposed that the guideline judgments already promulgated by the Court of Criminal Appeal should continue to be used by the courts when sentencing for these offences”.
Future guideline judgments
70. Scope remains for guideline judgments to be promulgated for offences not included in the standard non-parole period sentencing scheme.
71. Applications for guideline judgments might also be made, inter alia, to identify typical cases and their place in the ‘range of objective seriousness’ for standard non-parole offences. Such guideline judgments may throw light upon the meaning of this term, by reference to particular factual scenarios, in a manner which is not achievable in a statute. The NSW Sentencing Council might advise the Minister in this area.
72. No doubt other aspects of the standard non-parole period sentencing scheme will be subjected to appellate scrutiny, perhaps by way of guideline judgments.
Offences capable of summary disposal
73. A number of standard non-parole period offences may be dealt with summarily in the Local Court: s.20, Schedule 1, Tables 1 and 2, Criminal Procedure Act 1986. These are offences under s.60(2) Crimes Act 1900, s.154C Crimes Act 1900, s.203E Crimes Act 1900 and s.7 Firearms Act 1996. The shortest standard non-parole period is three years, being one year more than the jurisdictional limit of the Local Court: s.27(2) Criminal Procedure Act 1986.
74. In determining whether the prosecution should elect that such an offence be dealt with on indictment, it will be necessary to consider where the offence lies in ‘the range of objective seriousness’. The Director of Public Prosecutions has foreshadowed that guidelines will need to be devised to assist in this process.
New South Wales Sentencing Council
75. Section 100I(1) CSP Act constitutes the NSW Sentencing Council. Section 100I(2) provides for a Council comprising ten members to be drawn from specified fields and backgrounds.
76. The inaugural members of the NSW Sentencing Council are:
Hon AR Abadee RFD QC – Chair
Mrs Jennifer Fullford – Community Representative
Ms Martha Jabour – Community Representative (Homicide Victims Support Group)
Mr NR Cowdrey QC – Director of Public Prosecutions
Mr Peter Zahra SC – Senior Public Defender
Hon JP Slattery AO QC – NSW Bar Association
Commander John Laycock – NSW Police
Prof Larissa Behrendt – Aboriginal Justice Representative (Jumbunna Indigenous House of Learning)
Mr Howard W Brown – Community Representative (Victims of Crime Assistance League, NSW Victims Advisory Board)
Mr Ken Marslew AM – Community Representative (Enough is Enough)
77. The functions of the NSW Sentencing Council contained in s.100J(1) include:
(a) advising and consulting with the Minister in relation to offences suitable for standard non-parole periods and their proposed length;
(b) advising and consulting with the Minister in relation to offences suitable for guideline judgments and the submissions to be made by the Minister on an application for a guideline judgment;
(c) monitoring, and annual reporting to the Minister, on sentencing trends and practices, including the operation of standard non-parole periods and guideline judgments;
(d) at the request of the Minister, preparation of research papers or reports on particular subjects in connection with sentencing.
78. The Attorney-General, in the second reading speech, said (Legislative Council, Hansard, 23 October 2002):
“The Government is confident that this new Sentencing Council will provide an invaluable opportunity for the wider community to make a major contribution to the development of sentencing law and practice in New South Wales. It is not proposed at this time to include ‘attempt’ offences, other than ‘attempt murder’ offences, within the standard non-parole sentencing scheme. However, I propose to refer the question of whether ‘attempt’ offences should be included in the scheme for the Sentencing Council for its consideration when it is constituted”.
79. In the United Kingdom, the Sentencing Advisory Panel undertakes research and provides advice which is taken into account by the Court of Appeal in promulgating guideline judgments. Reports prepared by the Sentencing Advisory Panel have touched upon domestic burglary offences, rape offences, possession of offensive weapons and the offence of causing death by dangerous driving. The Court of Appeal (Criminal Division) has given guideline judgments, inter alia, in R -v- Celaire and Poulton (2002) EWCA Crim 2487 (possession of offensive weapons); R -v- McInerney and Keating (2002) EWCA Crim 3003 (domestic burglary) and R -v- Millberry and Ors (2002) EWCA Crim 2891 (rape).
79A. The Criminal Justice Bill 2002 (UK), if enacted, will establish a Sentencing Guidelines Council (cl.151) comprised of judicial officers and chaired by the Lord Chief Justice. That Council would be able to frame ‘sentencing guidelines’ (cl.153). It is noteworthy that cl.153(7) of the Bill provides that sentencing guidelines ‘in respect of an offence or category of offences must include criteria for determining the seriousness of the offence or offences’. The power to frame sentencing guidelines would pass, under the Bill, from the courts to the Sentencing Guidelines Council comprised of judicial officers. Courts would be under a duty to have regard to the guidelines in passing sentence: cl.155.
79B. The Sentencing Advisory Panel would continue to play an advisory role to the Sentencing Guidelines Council with respect to sentencing guidelines: cl.152, 154.
80. As suggested above (paragraph 71), it may be that the NSW Sentencing Council will propose to the Minister guideline judgment applications in areas touching upon the standard non-parole period sentencing scheme, including identification of typical cases to assist courts in the consistent determination of offences by reference to a ‘range of objective seriousness’.