Sentencing Bench Book Update 50 published

Update 50, March 2022

Community-based orders generally has been revised at [3-510Requirements for assessment reports to include RC v R [2020] NSWCCA 76 where the court concluded that although an assessment report is not required before imposing, for example, a community correction order (CCO), it is important to obtain one because it informs consideration of not only the appropriate sentence options but the availability of particular conditions.

Community correction orders (CCOs) has been updated at [4-410The legislative requirements to add R v AR [2022] NSWCCA 5 which confirms that a conviction must be recorded before a CCO can be made, including when a child is being dealt with for a “serious children’s indictable offence”. [4-420Procedures for making a CCO now includes RC v R [2020] NSWCCA 76. This reiterates the importance of obtaining an assessment report before imposing a CCO, and confirms that one is required if community service work is being considered as a condition.

Objective factors (cf s 21A(1)) has been revised at [10-000Maximum penalty under the subheading Maximum penalties and the jurisdiction of the Local Court to add Park v The Queen [2021] HCA 37. This restates the rule in R v Doan (2000) 50 NSWLR 115 and confirms that when sentencing an offender for an indictable offence which is being dealt with summarily, the maximum penalty, not the lower jurisdictional limit, is the starting point for determining the appropriate sentence. The jurisdictional limit is applied after that.

Guilty plea [11-515Guilty plea discounts for offences dealt with on indictment under the subheading Discounts when plea offer to different offences refused when made has been revised to include Black v R [2022] NSWCCA 17 where the meaning of the phrase “the offence the subject of the proceedings” in ss 25E(1)(b) and 25E(2)(b) Crimes (Sentencing Procedure) Act 1999 was considered. In context, that phrase refers to the principal offence the subject of the proceedings, not multiple offences that might be the subject of the proceedings. Any other construction produces unfairness to the offender.

Taking further offences into account (Form 1 offences) has been updated at [13-200The statutory requirementsR v JH [2021] NSWCCA 299 has been added as an example of a case where error was established because an offence with a maximum penalty of life imprisonment was placed on a Form 1. Dale v R [2021] NSWCCA 320 and Pham v R [2021] NSWCCA 234 have also been added under the subheading The procedure the court must follow — s 33 to illustrate the potential issues if the requirement to ask the offender if they want further offences to be taken into account is not complied with.

Dangerous driving, and navigation. The commentary at [18-300Statutory history has been revised. [18-310The statutory scheme for dangerous driving offences has been rewritten and now provides a table of the offences, includes the offence of failing to stop and assist after a vehicle impact in s 52AB Crimes Act 1900, and commentary about the offences enacted by the Crimes Legislation Amendment (Loss of Foetus) Act 2021 when the relevant dangerous driving offence causes the loss of a foetus of a pregnant woman. These offences apply to offences committed on, or after, 29 March 2022. At [18-320Guideline judgment, commentary under the new subheading Impact of changes in sentencing practice since guideline has been added, including reference to Stanton v R [2021] NSWCCA 123. Changes in sentencing practice since the guideline judgment R v Whyte (2002) 55 NSWLR 252 was decided should be taken into account when applying the guideline. [18-332Momentary inattention or misjudgment has been revised to include R v Balla [2021] NSWCCA 325, an example of a non-custodial sentence for an offence against s 52A involving momentary inattention, and Elphick v R [2021] NSWCCA 167 an example of a case where the relevant conduct did not constitute “momentary inattention. Elphick v R has also been added to [18-340General deterrence. The text at [18-350Motor vehicle manslaughter has been rewritten. Crowley v R [2021] NSWCCA 45 has been added. In some of these cases, the requirements of both gross criminal negligence and unlawful and dangerous act manslaughter will be satisfied: Crowley v R at [18]. DPP v Abdulrahman [2021] NSWCCA 114; Smith v R [2020] NSWCCA 181, Day v R [2014] NSWCCA 333, Spark v R [2012] NSWCCA 140 and Bombardieri v R [2010] NSWCCA 161 have been added as examples of sentencing in motor vehicle manslaughter cases. [18-380Mitigating factors under the subheading Youth has been rewritten. Byrne v R [2021] NSWCCA 185, which reiterates the significance of general deterrence when offences of this kind are committed by young people has been added. In Byrne v R both drivers, youths engaging in a street race, were on provisional licences which was found to exacerbate their culpability and made deterrence particularly important. Hoskins v R [2020] NSWCCA 18 has been added at [18-410Licence disqualification. The extension of the disqualification period is subject to any order of the court sentencing an offender: Hoskins v R at [23]; s 206A(5) Road Transport Act 2013. A new section at [18-415Failure to stop and assist has been added and includes Hoskins v R and Geagea v R [2020] NSWCCA 350 which outline the approach to sentencing for these offences. Consequential changes, as a result of the Crimes Legislation Amendment (Loss of Foetus) Act 2021, have been made at [18-420Dangerous navigation.

In Murder [30-030Life sentences under the subheading Life sentences under s 61, Crimes (Sentencing Procedure) Act 1999, the commentary has been rewritten. Outdated cases have been removed. Rogerson v R [2021] NSWCCA 160 and CC v R [2021] NSWCCA 71 have been added. These cases outline the approach to take when considering the requirements of ss 61(1) and 21(1) Crimes (Sentencing Procedure) Act 1999 and whether or not a life sentence should be imposed. Commentary has been revised at [30-040Aggravating factors and cases that attract the maximum to include, from Rogerson v R, that the categories of murder warranting a life sentence are not closed and the conclusion a life sentence should be imposed is a severe one. Under the subheading Other factors Rogerson v R has been added to the list of cases which identify factors in murder cases which might aggravate the offence and indicate it attracts the maximum penalty.

Commonwealth drug offences. At [65-100Criminal Code offences the commentary has been revised to summarise the current statutory framework. The text under the subheading Different offences and Di Simoni in [65-130Objective factors relevant to all Commonwealth drug offences has been rewritten and El Jamal v R [2021] NSWCCA 105 has been added. That case discusses the extent to which a sentencing judge can take into account facts relating to an importation when an offender is charged with possession. In El Jamal v R, the CCA found the sentencing judge erred by frequently referring to “the importation offence” and placing importance on findings of the offender’s role in the uncharged importation when sentencing for the possession offence. ZZ v R [2019] NSWCCA 286 has been added at [65-140Subjective factors as a recent example of a case where the applicant’s assistance to the authorities was found to be of much greater value than was thought at the time of sentence.