Sentencing Bench Book Update 57

Update 57, March 2024

Update 57 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Coercive control

The Domestic violence offences chapter has been amended as follows:

  • [63-505] Statutory framework to add commentary on the offence of abusive behaviour toward intimate partners (Crimes Act 1900, s 54D(1) as inserted by Crimes Legislation Amendment (Coercive Control) Act 2022, commencing between 1 February and 1 July 2024) at [63-540], to add the definition of “domestic violence offence” in s 11 Crimes (Domestic and Personal Violence) Act 2007, and to add reference to s 6A Crimes Act regarding “domestic abuse” as inserted by the Crimes Legislation Amendment (Coercive Control) Act 2022, which commenced on 1 February 2024.

Other revisions

The following additional chapters have been revised:

Fact finding at sentence

  • [1-470] Factual disputes following a committal for sentence to update the reference to s 102(1) Criminal Procedure Act 1986 as amended by the Crime and Criminal Procedure Legislation Amendment Act 2024, which clarifies that the District Court or the Supreme Court may sentence or otherwise deal with a person who pleads guilty during committal proceedings on the basis of a court attendance notice, indictment or charge certificate.

Intensive correction orders (ICOs) (alternative to full-time imprisonment)

  • [3-620] Restrictions on power to make ICO and [3-630] ICO is a form of imprisonment to add reference to DG v R (No 1) [2023] NSWCCA 320 where it was held a court cannot manipulate pre-sentence custody to bring a sentence within the jurisdictional ceiling for the imposition of an ICO.

Fines

  • The chapter at [6-100]ff has been revised and updated in relation to the fine enforcement procedure under Pt 4 of the Fines Act 1996, and fines for Commonwealth offences.

Objective factors at common law

  • [10-024] Use of sentencing statistics to add reference to Alenezi v R [2023] NSWCCA 283 regarding the use of sentencing statistics.

Subjective matters at common law

  • [10-470] Deprived background to add reference to Baines v R [2023] NSWCCA 302 in which the principles in Bugmy v The Queen (2013) 249 CLR 571 were applied.
  • [10-485] Drug addiction to add reference to R v Boyd [2022] NSWCCA 120 regarding the relevance of an offender’s drug addiction.

Guilty pleas

  • [11-515] Guilty plea discounts for offences dealt with on indictment to add reference to Stubbings v R [2023] NSWCCA 69 regarding the evaluative assessment as to whether a plea of guilty was entered as soon as practicable after the offender was found fit.

Court to take other matters into account (including pre-sentence custody)

  • [12-500] Counting pre-sentence custody to add reference to Mattiussi v R [2023] NSWCCA 289 regarding provision of pre-sentence custody information to the court.
  • [12-510] What time should be counted? to add reference to Kljaic v R [2023] NSWCCA 225 regarding time spent in custody in relation to another matter for which the offender is acquitted, and Marai v R [2023] NSWCCA 224 regarding immigration detention.

Correction and adjustment of sentences

  • The chapter at [13-900]ff has been revised.

Sexual assault

  • [20-775] Factors which are not mitigating at sentence to add a cross reference to Subjective matters at common law at [10-480] regarding intoxication as a factor in sentencing.

Assault, wounding and related offences

  • [50-090] Use weapon/threaten injury to resist lawful apprehension: s 33B to add reference to Courtney v R [2022] NSWCCA 223 regarding general sentencing principles where the offender uses an offensive weapon to prevent lawful apprehension.
  • [50-150] Intoxication to clarify commentary.

Money laundering

  • [65-250] Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to update commentary regarding the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.