Sentencing Bench Book Update 46 published

Sentencing guidelines has been updated to include reference to Moodie v R [2020] NSWCCA 160 at [13-610] The statutory scheme, to confirm that guideline judgments have statutory force and sentencing judges are obliged to take them into account, and at [13-630] Use of guideline judgments as a “check” or “sounding board”, to note that if formal reference to a guideline judgment is not done, whether or not it was in fact taken into account, will be assessed by comparing factors identified in the guideline with the sentence remarks.

Sentencing Commonwealth offenders has been revised and updated to reflect recent amendments to the Crimes Act 1914 and relevant caselaw. At [16-010] General sentencing principles applicable, in Taking other offences into account: ss 16A(2)(b) and 16BA, Kabir v R [2020] NSWCCA 139 and Purves v R [2019] NSWCCA 227, which concern the need for a sentencing judge to make the various statutory inquiries associated with taking the additional offences into account, and what amounts to consent, have been added. Commentary at [16-010] regarding Personal circumstances of any victim of the offence: s 16A(2)(d), has been updated to note that when sentencing for certain Commonwealth child sex offences, ss 272.30, 471.29A and 474.29AA of the Criminal Code (Cth) operate in addition to s 16A and require the court to take into account the victim’s age and maturity if relevant to do so. The commentary at The degree to which contrition is shown: s 16A(2)(f) has been revised to include reference to Betka v R [2020] NSWCCA 191 which discussed the extent to which a guilty plea may inform whether an offender has demonstrated contrition. The commentary at Plea of guilty: s 16A(2)(g) has been re-written following the amendment of s 16A(2)(g) with effect from 20 July 2020, which now requires a sentencing court to take into account the utilitarian value of a guilty plea. That discussion includes reference to Bae v R [2020] NSWCCA 35 and Small v R [2020] NSWCCA 216. Commentary has been added regarding new s 16A(2)(ma) which applies to federal offenders charged with, or convicted of, an offence from 20 July 2020 and requires consideration of whether the person’s standing in the community was used to aid the commission of the offence. At [16-020] Non-custodial sentencing options, the commentary under the headings Recognizance release order/suspended sentence and Failure to comply with condition of discharge or conditional release: s 20A has been updated. References to Watson v R [2020] NSWCCA 215 and Kannis v R [2020] NSWCCA 79 have been added at [16-035] Sentencing for multiple offences. Both address the power to impose an aggregate sentence for Commonwealth offences. Note: the commentary in this chapter concerning the procedure for revocation of parole has been removed and is currently being revised as a result of the most recent amendments to the Crimes Act 1914. It will be replaced shortly.

Dangerous driving and navigation has been substantially revised and updated. R v Whyte (2002) 55 NSWLR 252 and Moodie v R [2020] NSWCCA 160, which emphasise the statutory force of sentencing guidelines and the requirement to take them into account, because of Pt 3 Div 4 Crimes (Sentencing Procedure) Act 1999, have been added at [18-300] Statutory history. Moodie v R has also been added at [18-320] Guideline judgment. Formal reference to the guideline is not necessarily required but sentence remarks should advert to the presence or absence of the factors identified in the guideline relevant to assessing moral culpability and objective seriousness. References to Rummukainen v R [2020] NSWCCA 187; R v Shashati [2018] NSWCCA 167 and R v Manok [2017] NSWCCA 232 have been added at [18-330] The concepts of moral culpability and abandonment of responsibility. Each addresses the fact the entirety of the surrounding circumstances of a particular offence is relevant to assessing an offender’s moral culpability. Rummukainen v R has also been added at [18-334] Prior record and the guideline as an example of how an offender’s prior record may be taken into account in a limited way as context. R v Shashati has been added at [18-336] Length of the journey. Rummukainen v R has been added at [18-340] General deterrence. In that case, the court concluded evidence of alcohol consumption is relevant, even if the Crown cannot prove the offender was above the legal limit. Reference to Conte v R [2018] NSWCCA 209 has been added at [18-360] Grievous bodily harm and at [18-380] Mitigating factors. R v Wright [2013] NSWCCA 82 and Conte v R have been added as examples of serious cases of aggravated dangerous driving causing death at [18-400] Totality.

Sexual assault has been updated to remove [20-605] Brief legislative history, listing significant reforms to sexual assault laws over the past 30 years. This can be now found at [1-025] in the Sexual Assault Trials Handbook.