Sentencing Bench Book Update 33 published

Update 33, December 2015

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

A new chapter, Domestic violence offences, has been added at [63-500]ff. It collects the leading sentencing cases on the topic and makes cross-references to specific sections including offences where the issue is addressed.

Procedural fairness In [1-040] Published in oral form under the subheadingLater increasing a proposed sentence, reference is made to Toole v R [2014] NSWCCA 318 where the court held that the judge was entitled to impose partially cumulative sentences despite the Crown’s written submission which accepted that concurrent sentences could be imposed.

Fact finding at sentence In [1-460] Agreed statement of facts, reference is made to CL v R [2014] NSWCCA 196 where the offender unsuccessfully challenged the agreed statement of facts to which his legal representatives did not object at first instance.

Intensive correction orders (ICOs) The text at [3-605] Inherently lenient or a substantial punishment? was amended to include R v Cahill [2015] NSWCCA 53. Notwithstanding that an ICO is substantial punishment, it is important not to lose sight of the need for immediate incarceration in cases of serious offending.R v Porte [2015] NSWCCA 174 has been added for the proposition that it is not appropriate to impose ICOs for child pornography offences of substantial objective seriousness. In the text at [3-620] Power to make ICO subject to Pt 5, R v West[2014] NSWCCA 250 has been added for the proposition that a court should not manipulate pre-sentence custody for the purpose of bringing a sentence within the jurisdictional ceiling for the imposition of an ICO.

Fines The text at [6-160] Fines for Commonwealth offences has been amended to update the current value of a penalty unit. The penalty unit amount was increased from $170 to $180 following the commencement of the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth).

Setting terms of imprisonment The text at [7-507] Settled propositions concerning s 53A has been amended to incorporate reference to R v Cahill [2015] NSWCCA 53, Miller v R [2015] NSWCCA 86 and Nguyen v R [2015] NSWCCA 209 as examples of the types of error that can result from non-compliance with s 53A. Reference was also made to commentary in (2015) 22(8) CrimLN 127 at [3572] concerning the approach taken by Basten JA in McIntosh v R [2015] NSWCCA 184.

Standard non-parole period offences — Pt 4 Div 1A In the text at [7-920] Consideration of the standard non-parole period in sentencing, Beale v R [2015] NSWCCA 120 was added for the proposition that an assessment of moral culpability, as distinct from criminal responsibility, in a joint criminal enterprise case cannot be undertaken in circumstances where the evidence does not differentiate between co-offenders. In [7-955] What of cases decided before Muldrock v The Queen?, Davis v R [2015] NSWCCA 90 was added for the proposition that the Crown ought to give careful consideration to the position it adopts when leave to appeal and extension of time is sought on the basis of an alleged “Muldrock error”. It is not to be lightly concluded that a sentencing judge, during the relevant period between R v Way (2004) 60 NSWLR 168 andMuldrock v The Queen (2011) 244 CLR 120, departed from the principles inR v Way. McDonald v R [2015] NSWCCA 80 was also added. The court rejected an argument that the judge had committed a Muldrock error in a case where the offender had pleaded guilty and the snpp was used as a yardstick.

Objective factors The text at [10-022] Use of information about sentences in other cases was revised to include the list of propositions set out by the plurality in the High Court case of The Queen v Pham [2015] HCA 39. The text in [10-024] Use of sentencing statistics — Hili v The Queen has been revised to incorporate the observations in The Queen v Pham in relation to the use that can be made of statistics and comparable cases.

Parity In [10-800] Introduction, Baquiran v R [2014] NSWCCA 221 was added for the proposition that a sentencing judge is not bound by findings of fact made by another judge who has sentenced a co-offender in different sentencing proceedings. Gaggioli v R [2014] NSWCCA 246 was added at [10-830] Co-offenders convicted of different charges for the proposition that there could be no justifiable sense of grievance caused by the different approach taken by the prosecution to charging the two co-offenders.

Section 21A factors “in addition to” any Act or rule of law In [11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person, the case of Aktar v R [2015] NSWCCA 123 has been added where the court affirmed RA Hulme J’s judgment in Melbom v R [2013] NSWCCA 210 but declined to decide the issue of whether a person who is a guest in a house but asked to leave falls within s 21A(2)(eb).

Guilty plea to be taken into account Reference to Atkinson v R [2014] NSWCCA 262 has been added to [11-514] The R v Borkowski principles. As to principle 9 in R v Borkowski (2009) 195 A Crim R 1, where the delay in the guilty plea is caused by the offender’s legal representative and is not the fault of the offender, the utilitarian value of the plea is not undermined.

Sentencing Commonwealth offenders In [16-002] Relevance of decisions of other State and Territory courts, under the subheading Achieving consistency in sentencing, reference has been made to The Queen v Pham [2015] HCA 39. It is implicit in Pt IB Crimes Act 1914 (Cth) that the court must have regard to sentences imposed in other States and Territories, in determining whether a sentence is manifestly excessive. Reference is made at [16-010] General sentencing principles applicable to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) (which relevantly commenced on 27 November 2015). It amended s 16A(2) Crimes Act 1914 to explicitly include general deterrence as a sentencing consideration and extend a court’s power to reduce a sentence for undertaking to assist authorities to any form of sentencing order and the DPP’s right to appeal for failure to fulfil the undertaking. The amending Act also removed the option of a recognizance release order where a sentence exceeds three years. Further, under the subheading Probable effect of sentence on offender’s family or dependents: s 16A(2)(p), the text has been amended to include Elshani v R [2015] NSWCCA 254, which confirmed the principle in R v Zerafa (2013) 235 A Crim R 265 that only exceptional hardship to an offender’s family can be taken into account under s 16A(2)(p).

Break and enter offences The text in [17-070] Application of s 21A to break and enter offences under the subheading Offence was committed in the victim’s home as an aggravating feature has been amended to include a reference to R v Bennett [2014] NSWCCA 197.

Sexual offences against children The text at [17-541] Child abuse/pornography offences under the subheading Mixture of State and Commonwealth offences has been revised to include reference to R v Porte [2015] NSWCCA 174 at [57], [58]. Increases to maximum penalties reflect the view of the State and Federal Parliaments of the serious criminality involved in child pornography offences: R v Porte at [57], [58]. In R v Porte, the court referred with approval to the principles set out in Minehan v R [2010] NSWCCA 140 and added three further considerations:

  • the absence of an intention to sell or distribute child abuse material does not mitigate the penalty for a possession offence,
  • the possession of child abuse material is not a victimless crime and general deterrence is of particular significance, and
  • evidence of rehabilitation, while important may have reduced significance.

The use of scales, such as the CETS (Child Exploitation Tracking System) scale, to categorise the material is a helpful way to assist a sentencing court in assessing the objective seriousness of the offence: R v Porte at [75]. It is of further assistance to provide random sample evidence of the material to the court so that it has before it something more than a formulaic classification which may not communicate the true nature of the material: R v Porte at [77], [114].

Drug Misuse and Trafficking Act 1985 (NSW) offences In [19-835] Full-time custody unless exceptional circumstances, reference is made to a number of NSWCCA cases, including Polley v R [2015] NSWCCA 247, which provide guidance as to what may constitute exceptional circumstances. R v Cahill [2015] NSWCCA 53 at [8] has also been added to the text. Where a judge forms a view that exceptional circumstances exist, it is imperative that appropriate findings of fact are made in relation to the issue.

Robbery The text in [20-230] Robbery in circumstances of aggravation: s 95 has been amended to incorporate reference to the cases of Kukovec v R [2014] NSWCCA 308 and McDonald v R [2015] NSWCCA 280. In McDonald v R, it was held that the court was entitled to take into account actual use of violence as an aggravating factor under s 21A(2)(b) where the offender had been convicted of aggravated robbery and the circumstance of aggravation was the deprivation of liberty. In Kukovec v R, the judge was held to err by taking into account the aggravating factor of “in company” under s 21A(2)(e) where being in company was an element of the offence (aiding and abetting an aggravated robbery).

Sexual assault In [20-760] Other aggravating circumstances a new subheadingRisk of pregnancy has been inserted with a reference to the case of KAB v R [2015] NSWCCA 55. There was no denial of procedural fairness for the judge to take into account that there was a high risk of pregnancy when the agreed facts included that the offender had penile/vaginal intercourse with the victim and ejaculated into her vagina where neither party raised the issue at the sentencing hearing notwithstanding that the offender had a vasectomy.

Murder In [30-100] Attempted murder under the subheading Mitigating factors, a reference is made to Davis v R [2015] NSWCCA 90. A pre-existing heart condition, which may have contributed to the death of the victim, was not a mitigating factor.

Manslaughter and infanticide In [40-010] Categories of manslaughter under the subheading Substantial impairment, reference is made to Catley v R [2014] NSWCCA 249. An offender’s mental condition (in this case psychosis) did not play a great part in the commission of the offence and, to the extent that it did, the concomitant reduction in moral culpability had already been taken into account because he had been found guilty of manslaughter rather than murder.

Firearms and prohibited weapons The amendments made by the Firearms and Weapons Prohibition Legislation Amendment Act 2015 (commenced on assent on 24 November 2015) to, inter alia, the Firearms Act 1996 and the Weapons Prohibition Act 1998 have been incorporated at [60-030] Unauthorised possession or use: ss 7(1), 7A(1) and 36(1) and [60-055] Other miscellaneous offences. It increased maximum penalties for multiple firearms offences from 10 to 14 years imprisonment and expanded the offence of defacing or altering firearms. It also created new offences of possessing digital blueprints for firearm or prohibited weapon manufacture. The text at [60-050] Section 51D: possession of more than three firearms has been updated to include references to R v Lachlan [2015] NSWCCA 178. Factors that may render an offence under s 51D(2) serious include that the firearms are in working order and are not stored securely, are loaded or in close proximity to ammunition.

Damage by fire and related offences A new section [63-012] Section 197: dishonestly destroy or damage property and the De Simoni principle is inserted to incorporate the case of Ruge and Cormack v R [2015] NSWCCA 153. InRuge and Cormack v R, the judge breached the De Simoni principle by taking into account a circumstance of aggravation (that Ruge wanted to commit an insurance job) for which the offender (Cormack) was not charged.

Money laundering The text in [65-215] The application of the De Simoni principle to the statutory scheme has been amended to include Shi v R [2014] NSWCCA 276. It is a breach of the De Simoni principle to take into account for an offence of money laundering contrary to s 400.9 Criminal Code 1995 (Cth) (which only requires that it may be reasonable to suspect that the money or property is the proceeds of crime) that the offender knew the money was the proceeds of crime.

Appeals In [70-030] The ordinary precondition of establishing error under the subheading Errors of fact and fact finding on appeal, it was held that it is incumbent on an applicant in a severity appeal to show that a factual finding was not open to the judge: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [26], [32]. In Clarke v R [2015] NSWCCA 232 at [34], Basten JA disapproved of R v O’Donoghue and opined that it was enough if the judge had made a mistake with respect to a factual finding that was material to the sentence. Button J reviewed the authorities in Turnbull and concluded, however, that the orthodox test of requiring an applicant to demonstrate that the factual finding was not open should remain: Turnbull at [32]. In [70-040] Section 6(3) — some other sentence warranted in law, any comparison of the proposed re-sentence with the original sentence is only made for the purposes of checking that the sentence arrived at by the appellate court does not exceed the original sentence: Thammavongsa v R [2015] NSWCCA 107 at [5]–[6]. The practice of the Crown relying in an appeal on the bare submission that “no other sentence is warranted in law” ought to cease: Thammavongsa v R at [3], [16]. In [70-060] Additional, fresh and new evidence under the subheading Medical evidence cases, Cornwell v R [2015] NSWCCA 269 and Turkmani v R [2014] NSWCCA 186 were added. In Turkmani v R, the court at [66] identified three categories of cases where fresh evidence is sought to be adduced in relation to the health of an offender.