Sentencing Bench Book Update 29 published

Release 29 (December 2014)

Release 29 contains the following amendments:

Setting terms of imprisonment

The text at [7-505] has been amended to incorporate the Crimes Legislation Amendment Act 2014 which amended s 53A to provide that the court must make a written record of the fact that an aggregate is being imposed and the sentences it would have imposed had a separate sentence been imposed. Khawaja v R [2014] NSWCCA 80 at [18] and R v Lolesio [2014] NSWCCA 219 at [87]–[91] have been added to the discussion of the judicial obligation under s 53A(2)(b) to assess the criminality for each offence. A discount for a guilty plea must be applied to each indicative sentence and not to a hypothetical aggregate: SHR v R [2014] NSWCCA 94 at [41], [43]. The text at [7-510] has been amended to include Briouzguine v R [2014] NSWCCA 264 at [67]. The need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances, but it must be justified by the special requirements of the case.

New text on the forward dating of sentences of imprisonment has been inserted at [7-547]. A direction under s 47(2)(b) to forward date may not be made in relation to a sentence of imprisonment imposed on an offender who is serving another term of full-time imprisonment if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. Thompson-Davis v R [2013] NSWCCA 75 at [52] is included in this discussion. New text on information about the release date has been added at [7-550]. Farkas v R [2014] NSWCCA 141 has been included where there was a division of opinion as to the appropriate eligibility date of parole. In R v BA [2014] NSWCCA 148 it was held it was not inconsistent with the Crimes (Sentencing Procedure) Act 1999 to order a person’s release on the last day of the non-parole period. Technical difficulties in entering the terms of the order into the court’s computerised record system can be avoided by making an order directing “that the offender be released on parole at the end of the non-parole period” rather than specifying a date.

Standard non-parole period offences — Pt 4 Div 1A 

This chapter has been substantially rewritten to incorporate Special Bulletin 5 which explained the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013. The aspects of Muldrock v The Queen(2011) 244 CLR 120 which remain relevant are articulated at [7-895]. Paragraph [7-910]contains a discussion of what facts might be included in the text in s 54A(2) “only the objective factors affecting the relative seriousness of that offence”? The discussion addresses mental condition, provocation and other additional factors.

A new paragraph concerning the consideration of standard non-parole periods in sentencing has been inserted at [7-920]. The repeal of s 54B(2) and the phrase “is to set” evinces an intention that a standard non-parole period is not to have determinative significance in the sentencing exercise. Under the new s 54B(2), it is “a matter to be taken into account by a court in determining the appropriate sentence”. The standard non-parole period is to take its place as a legislative guidepost. The discussion covers the issues of standard non-parole periods and the notion of moral culpability, findings about objective factors and relative seriousness and, at [7-925], findings as to where an offence fits relative to the middle of the range. A revised [7-955] discusses Muldrock appeals including applications for leave to appeal out of time and appeals under Pt 7 Crimes (Appeal and Review) Act 2001.


The text at [70-125] and [70-135] incorporates recent sentence appeals by the Crown and defendants from the Local to the Supreme Court. The revised text articulates the scope of these appeals including the decision of Roads and Maritime Services v Porret [2014] NSWCA 30 at [33].