Sentencing Bench Book Update 47 published

Intensive correction orders (ICOs) has been updated at [3-610] Power to make ICO subject to Pt 5 to add the discussion in R v Fangaloka [2019] NSWCCA 173 and Wany v DPP [2020] NSWCA 318 of the circumstances when a court should consider whether a particular sentence of imprisonment should be served by way of an ICO. The commentary in [3-632] Community safety is paramount consideration has been substantially revised and re-written following Wany v DPP. Commentary concerning whether an ICO may be made for sentences of 6 months or less is now in a separate paragraph at [3-634].

Setting terms of imprisonment has been revised and updated. The commentary at [7-505] Aggregate sentences has been re-written and reference to the following cases added: PG v R [2017] NSWCCA 179, JM v R [2014] NSWCCA 297, R v Rae [2013] NSWCCA 9 and Truong v R [2013] NSWCCA 36. Burgess v R [2019] NSWCCA 13, which reiterates that an aggregate sentence must reflect the totality of the offending has also been added. At [7-507] Settled propositions concerning s 53A the following cases, which elaborate on certain propositions concerning s 53A enumerated in JM v R , have been added: Aryal v R [2021] NSWCCA 2; Vaughan v R [2020] NSWCCA 3; Ibbotson (a pseudonym) v R [2020] NSWCCA 92; Kliendienst v R [2020] NSWCCA 98; Burgess v R [2019] NSWCCA 13; PW v R [2019] NSWCCA 298; Tuite v R [2018] NSWCCA 175; PG v R [2017] NSWCCA 179, TL v R [2017] NSWCCA 308 and ZA v R [2017] NSWCCA 132. At [7-510] Special circumstances under ss 44(2) or 44(2B)Huang v R [2019] NSWCCA 144, Hardey v R [2019] NSWCCA 310 and Rizk v R [2020] NSWCCA 291, which address the need for reasons, regardless of whether a finding of special circumstances is made, have been added. At [7-514] What constitutes special circumstances? the observation by RA Hulme J in Singh v R [2020] NSWCCA 353 that the rationale for finding special circumstances identified in Simpson v R does not apply to aggregate sentences has been added. Lonsdale v R [2020] NSWCCA 267; Rizk v R [2020] NSWCCA 291, Zreika v R [2020] NSWCCA 345 and GP v R [2017] NSWCCA 200 have been added at [7-516] Giving effect to finding of special circumstances. Each addresses the need to consider the requirements of s 44(2) in different situations including where a sentence is accumulated on an existing sentence. Woods v R [2020] NSWCCA 219, which concerns focusing on the actual periods of custody involved, not just percentage proportions, has also been added. The commentary on Indicative sentences: fixed term or term of sentence? at [7-520] Court may decline to set non-parole period was moved from [7-507] and has also been revised. Reference to Waterstone v R [2020] NSWCCA 117 was added.

Parity has been revised and updated to include a Summary of relevant considerations at [10-800]. At [10-801], reference to the following cases, which address aspects of the rationale for co-offenders being sentenced by the same judge, have been added: Usher v R [2016] NSWCCA 276; PG v R [2017] NSWCCA 179; Piao v R [2019] NSWCCA 154; Adams v R [2018] NSWCCA 139; R v Lembke [2020] NSWCCA 293 and Tran v R (Cth) [2020] NSWCCA 310. At [10-805] A justifiable sense of grievanceHiron v R [2018] NSWCCA 10, which states that the test of unjustified disparity is objective, has been added. Turnbull v The Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 and Dayment v R [2018] NSWCCA 132 have been added at [10-810] Co-offenders convicted of different chargesBridge v R [2020] NSWCCA 233 has also been added. It concerns applying the parity principle where co-offenders are charged with different numbers of offences and where an aggregate sentence has been imposed on one co-offender but not another. At [10-830] Parity and totalityKelly v R [2017] NSWCCA 256 has been added. This concerns how the parity principle applies when one offender receives the benefit of the totality principle because of committing multiple offences while another is only sentenced for the common offenceDaw v R [2017] NSWCCA 327, Lloyd v R [2017] NSWCCA 303 and Borg v R [2019] NSWCCA 129 have been added at [10-840] Severity appeals and parity. Each discuss aspects of the test for establishing disparity on appeal. At [10-850] Crown appeals and parity, the cases of R v Gu [2006] NSWCCA 104; R v Weismantel [2016] NSWCCA 204 and R v Lembke [2020] NSWCCA 293, which state that the Crown cannot generally rely on the parity principle in an inadequacy appeal, have been added.

Guilty plea to be taken into account has been updated at [11-520] in relation to The R v Borkowski principles with the addition of Bao v R [2016] NSWCCA 16 in relation to principle 6. A new section on Aggregate sentences has also been added, discussing Elsaj v R [2017] NSWCCA 124; PG v R [2017] NSWCCA 179; Berryman v R [2017] NSWCCA 297 and Davies v R [2019] NSWCCA 45.

The commentary at [11-910] Power to reduce penalties for pre-trial disclosure has been rewritten to refer to Droudis v R [2020] NSWCCA 322 and Droudis v R (No 16) [2017] NSWSC 20. These address the approach a sentencing court should take to s 22A Crimes (Sentencing Procedure) Act 1999 when determining the extent to which an offender’s sentence may be reduced as a result of actions taken during proceedings to facilitate the administration of justice. Such matters are taken into account instinctively and as part of the offender’s subjective case.

Power to reduce penalties for assistance to authorities has been updated at [12-230] under the headings Level of discount and The SZ v R line of authority: the combined discount to include reference to Buckley v R [2021] NSWCCA 6, which considers the requirement in s 23(3) Crimes (Sentencing Procedure) Act 1999 to ensure any sentence not be disproportionate to the nature and circumstances of the offence.

Court to take other matters into account (including pre-sentence custody) at [12-500] has been extensively revised and updated. See in particular the commentary concerning: the practice of backdating sentences; the need to give reasons for failing to backdate a sentence and the method for crediting time spent in custody. Reference to Reddy v R [2018] NSWCCA 212 has been added at [12-530] Quasi-custody bail conditions — residential programs regarding reducing or backdating sentences to take account of time spent in a residential program. Hoskins v R [2016] NSWCCA 157; Frlanov v R [2018] NSWCCA 267 and Banat v R [2020] NSWCCA 321 have been added to the commentary under Other onerous bail conditions. In each case the CCA reiterated that while such conditions may be taken into account, there is no obligation to do so. Bland v R [2014] NSWCCA 82, where the CCA held that restrictive accommodation requirements will not necessarily amount to a form of quasi-custody has been added. Reference to Banat v R (where a curfew and electronic monitoring were appropriately taken into account) and Frlanov v R (which concerned reporting conditions that were not particularly onerous) has also been added.

Victims and victim impact statements has been updated at [12-820] The statutory scheme for victim impact statementsDefinitions and applications to add reference to s 27(4A), which was inserted into the Act by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020. Kabir v R [2020] NSWCCA 139, which confirmed that the term “victim” in s 16A(2)(ea) Crimes Act 1914 (Cth) should be construed broadly and may include a person recruited and manipulated by an offender to commit an offence has been added to [12-870] Federal offences.

Children (Criminal Proceedings) Act 1987 has been extensively revised and updated from [15-000]ff. Dungay v R [2020] NSWCCA 209 has been added under Admissibility of evidence of prior offences at [15-020] where evidence of the offender’s criminal history as a child, which would have otherwise been excluded by s 15(1) of the Children’s (Criminal Proceedings) Act 1987 was tendered to demonstrate his disadvantaged childhood. Reference to CO v DPP [2020] NSWSC 1123, which concerned a failure to obtain a background report as required by s 25 Children (Criminal Proceedings) Act 1987 has been added at [15-080] Background reports. Commentary has been updated at [15-110] Application of the Crimes (Sentencing Procedure) Act 1999 as a result of recent amendments made by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 with the insertion of a new s 27(4A). The reference to the Criminal Records Regulation at Convictions which are not capable of being spent in [15-130] The Criminal Records Act 1991 and the Children (Criminal Proceedings) Act 1987 has been updated.

Murder has been extensively revised and updated. The cases of Nguyen v R [2007] NSWCCA 363 and Park v R [2019] NSWCCA 105 have been added at [30-010] Relative seriousness of the categories of murder. When assessing the objective seriousness, the existence of particular features is not determinative of where a particular murder offence might sit. It was concluded in Park v R that there was no reliable relationship between an assessment of any particular degree of objective seriousness and the sentence imposed. At [30-030] Life sentences under s 61, Crimes (Sentencing Procedure) Act, the case of R v Warwick (No 94) [2020] NSWSC 1168, where life sentences were imposed for three murder offences involving judicial officers and others associated with Family Court proceedings in which he was involved during the 1980s, has been added. At [30-040] Aggravating factors and cases that attract the maximum, the case of TL v R [2020] NSWCCA 265, where the court found it was not an error to take into account evidence of previous (uncharged) assaults into account as a factor increasing the objective seriousness of the offence, has been added. Substantial harm has been updated to include reference to Sheiles v R [2018] NSWCCA 285. At [30-047] Murders committed in a domestic violence contextGoodbun v R [2020] NSWCCA 77 has been added as an example of a case involving offending correctly found to be at the “very top of the notional range”. R v Amati [2019] NSWCCA 193 has been added at [30-100] Attempted murder. That case involved three offences against s 27 Crimes Act 1900 committed on a single night. A Crown appeal against sentence was upheld and the seriousness of such offences was emphasised. Vaughan v R [2020] NSWCCA 3 has been added as an example of a s 27 offence that was also a serious domestic violence offence.

Manslaughter and infanticide has been updated at [40-000] IntroductionSheiles v R [2018] NSWCCA 285 considers where the offence of manslaughter involves either an intention to kill or an intention to cause grievous bodily harm, the degree of harm the offender knows will be caused by the offence may be highly relevant to their moral culpability. Lees v R [2019] NSWCCA 65 has been added at [40-030] Motor vehicle manslaughter as a serious example of such an offence.