Sentencing Bench Book Update 32 published

Update 32 (October 2015)

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness In [1-010Reasons for decision, a sentencing judgment should refer to the essential facts and provide some assessment of the serious of the offence: Gal v R [2015] NSWCCA 242 at [37]. New text at [1-045Excessive intervention by the court include the following statements extracted from Ellis v R [2015] NSWCCA 262 at [65]–[72]:

  • it is not the function of the court to perform an inquisitorial role where there is an unsatisfactory statement of facts;
  • a court cannot insist in a drug case that an offender identify the co-offender(s); and
  • a miscarriage of justice will occur where intervention prevents a party from presenting its case.

Fact finding at sentence In [1-420Disputed factual issues, the following propositions were extracted from Filippou v The Queen (2015) 89 ALJR 750; [2015] HCA 29 at [70]:

  • in some cases it is not possible to ascertain everything that is relevant to the offending or the issue of moral culpability;
  • if that occurs the court proceeds on what the Crown and the offender have proved to the requisite standard; and
  • the court is not bound to sentence according to a view of the facts most favourable to the offender.

The text at [1-480Application of the Evidence Act 1995 to sentencing was amended to include Lam v R [2015] NSWCCA 143, where it was held, at [58], that it was open to a judge to reject an expert opinion where the opinion was wholly based on a version of facts favourable to offender.

Setting terms of imprisonment The text at [7-505Aggregate sentences and [7-507Settled propositions concerning s 53A has been amended to incorporate RL v R [2015] NSWCCA 106 at [63] where the Court of Criminal Appeal in re-sentencing “adopted an indicative sentence which did not involve a fulltime custodial penalty” contrary to proposition 9 in JM v R [2014] NSWCCA 297 at [39]. The text at [7-507] has also been amended to include McIntosh v R [2015] NSWCCA 184 where it has been held that where a court indicates a sentence for an offence that is not subject to a standard non-parole period, it is permissible to indicate a fixed term (or mandatory period of custody).

Standard non-parole period offences — Pt 4 Div 1A The Tables in [8-000] Appendix A: Pt 4 Div 1A and [8-100] Appendix B: Legislative amendments relevant to the Pt 4 Div 1A have been amended to incorporate the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015, which applies to offences committed on or after 21 August 2015. Several firearm offences were assigned a standard non-parole period and the standard non-parole period was increased for a number of other offences.

Objective factors The [10-022Use of information about sentences in other cases was amended to include the findings that cases decided in the past do not define the permissible range for an offence and that the concept of an “available range” emanating from sentence appeals is merely a reference to the last limb of House v The King (1936) 55 CLR 499 at 505: Barbaro v The Queen (2014) 88 ALJR 372 at [28] and Robertson v R [2015] NSWCCA 251 at [21]. The [10-024Use of sentencing statistics — Hili v The Queen has been revised to include Skocic v R [2014] NSWCCA 225 at [19] where the court summarised the law in relation to the use of statistics at sentence following Barbaro v The Queen. A new subheading and text Aggregate sentences and JIRS statistics has been added and includes a discussion of Knight v R [2015] NSWCCA 222 where it was held that it was an inherent flaw to use JIRS statistics for a principal offence to assert an aggregate non-parole period and that the aggregate term of sentence was excessive: Knight v R at [88]. Selecting the “multiple offences” variable is of no real utility because it does not limit the database to multiple instances of the same offence: Knight v R at [7]. The statistics do not capture such factors as the broad range of weight and purity of the drug involved and the role of the offender: R v Chidiac [2015] NSWCCA 241 at [40].

Subjective matters taken into account In [10-410Good character, cases have been incorporated concerning the special rule for child sexual offences under s 21A(5A) that good character cannot be relied upon in stipulated circumstances. The judge had erred in R v Stoupe [2015] NSWCCA 175 at [86] by treating a respondent’s prior good character as a mitigating factor when it assisted in the commission of the offences. In AH v R [2015] NSWCCA 51 at [25], it was held that although the offender’s relationship with the victim’s mother created a trusting environment in which the offences could be committed, the offender’s good character could not be said to have assisted him in the commission of the offences.

Section 21A factors “in addition to” any Act or rule of law The text at [11-290Section 21A(3)(i) — remorse shown by the offender has been revised to include Mun v R [2015] NSWCCA 234 at [34]–[41]. An offender is not required to give evidence to demonstrate remorse. Relying upon hearsay statements to show remorse will affect the weight of the evidence. It is a practice that is not to be encouraged.

Power to reduce penalties for assistance to authorities Reference to CMB v Attorney General for NSW (2015) 89 ALJR 407 at [78] has been added to [12-220“Unreasonably disproportionate” penalty — s 23(3). The appellate task is to determine whether it was open to the sentencing judge to decide whether the sentence actually imposed is unreasonably disproportionate.

Children (Criminal Proceedings) Act 1987 In [15-020HearingsSiddiqi v R [2015] NSWCCA 169 has been added to text under the subheading Admissibility of evidence of prior offences. Inadmissible evidence of criminal history was erroneously considered in sentencing and the offender was denied leniency that might have otherwise been expected.

Sentencing Commonwealth offenders In [16-010General sentencing principles applicable, under the subheading Plea of guilty: s 16A(2)(g), reference has been included to the obiter dictum in DPP (Cth) v Gow [2015] NSWCCA 208 at [26]–[28], [72] to the effect that Cameron v The Queen (2002) 209 CLR 339 has been misapplied in NSW. Cameron v The Queen did not limit the impact of a federal offender’s plea of guilty to an assessment of the extent to which it demonstrated a willingness to facilitate the course of justice.

Manslaughter and infanticide The discussion of excessive self-defence at [40-010Categories of manslaughter has been amended to include Smith v R [2015] NSWCCA 193 at [45], [56], [59]. The response of an offender “in the circumstances as he or she perceives them” requires a sentencing judge to make a finding as to what the offender perceived the circumstances to be, and to evaluate the degree to which the conduct departed from what would have been a reasonable response to those circumstances as perceived.

Firearms and prohibited weapons The chapter has been updated to include amendments by the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015.