Sentencing Bench Book Update 48 published

Obligations of the parties has been updated at [1-200] The prosecutor to add Strbak v The Queen [2020] HCA 10, where the High Court concluded a guilty plea does not relieve the Crown of its obligation to prove its case on sentence without assistance from the offender. [1-‍205] Professional Rules and DPP Guidelines has been updated after the Office of the Director of Public Prosecutions re-issued its Prosecution Guidelines in March 2021. The Guideline on sentence is now Chapter 2.4 and Chapter 13 (referred to at Duty of disclosure) addresses prosecutorial disclosure obligations. References to the Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 87, 91 and Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 29.5, 29.8 have replaced outdated references. [1-‍220] Duty of legal practitioners to correct error by sentencing judge has been updated to add a reference to Kandemir v R [2018] NSWCCA 154, which is another example of a case emphasising the obligations of legal practitioners to correct misstatements by judges during sentence proceedings.

Purposes of sentencing has been reviewed and outdated material removed. [2-240] To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b) includes reference to Weribone v R [2018] NSWCCA 172. Dungay v R [2020] NSWCCA 209 has been added to the examples where general or specific deterrence may be impacted by other principles such as community protection. R v Dong [2021] NSWCCA 82 has been added at [2-250] To protect the community from the offender: s 3A(c). That case considered situations where it may be necessary to expressly and separately consider the need for a sentence to reflect community protection. The Terrorism (High Risk Offenders) Act 2017 has been added to the examples of statutory exceptions to the principle prohibiting preventative detention in NSW. Reference to Minister for Home Affairs v Benbrika [2021] HCA 4, where the High Court considered the continuing detention order scheme for Commonwealth terrorism offenders in Div 105A Criminal Code (Cth) has been added.

Setting terms of imprisonment has been updated at [7-505] Aggregate sentences to add Aryal v R [2021] NSWCCA 2 which emphasises that aggregate sentences must reflect the totality of the offending behaviour. Discussion of Aryal v R and Noonan v R [2021] NSWCCA 35 has been added to [7-507] Settled propositions concerning s 53A under Application of Pearce v The Queen and the totality principle (propositions 1, 4 and 6).

Subjective matters taken into account (cf s 21A(1)). The commentary at [10-570] Deportation has been rewritten. Important recent cases added are: R v Calica [2021] NTSCFC 2, a five-judge Bench decision of the Northern Territory Supreme Court which considered the diverging State and Territory approaches to deportation as a mitigating factor on sentence; Kroni v R [2021] SASCFC 15; Kristensen v R [2018] NSWCCA 189; and Hanna v Environment Protection Authority [2019] NSWCCA 299.

Victims and victim impact statements has been generally revised. [12-830] Evidentiary status and use of victim impact statements at sentence and [12-832] Victim impact statements and harm caused by sexual assault have been amended to include Culbert v R [2021] NSWCCA 38, which considered the ways a victim impact statement may be used to assess whether substantial harm was caused by an offence. References to ss 30L(1) and 30L(5) Crimes (Sentencing Procedure) Act 1999 in [12-839] Victim impact statements when offenders are forensic patients have been updated following amendment by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The amount of the victims support levy has been updated in [12-867] Victims support levies for the 2020–2021 financial year.

[13-100] Taking further offences into account (Form 1 offences) has been extensively revised and rewritten.

Murder. Commentary on what are described as “mercy killings” has been added to [30-010] Relative seriousness of the categories of murder[30-105] Conceal corpse has also been added.

Manslaughter and infanticide[40-010] Categories of ManslaughterSubstantial impairment and [40-070] Infanticide have been revised to update the references to ss 22A and 23A(8) Crimes Act 1900 following their amendment by the Mental Health and Cognitive Impairment Forensic Provisions Act which commenced on 27 March 2021.

Domestic violence offences has been revised and parts of the commentary reorganised. Observations by Wilson J in Yaman v R [2021] NSWCCA 239 explaining the rationale for the importance of general and specific deterrence in a domestic violence context have been added to [63-500] Introduction and [63-510] Sentencing approach to domestic violence[63-505] Statutory framework has been revised and updated to include reference to ss 39(1A), 39(2A)–(2C) and 39(2D) Crimes (Domestic and Personal Violence) Act 2007 which concern the period of an ADVO for adult offenders sentenced to full time imprisonment and the date an ADVO comes into force.