There is no death penalty in New South Wales, or indeed in the rest of Australia, although there continues to be considerable support for this option. In this regard, fortunately, there has been a break with American practice.

The option of periodic detention has been replaced with the intensive correction order.

The lack of availability of the otherwise appropriate penalty does not mean that you then select the next most lenient penalty; rather, the most appropriate penalty of those available should be imposed: Tsokos (1995) PD [240].

The court may find a person guilty but dismiss the charge, with or without a condition that the person enter into a conditional release order of up to 2 years or enters into an intervention program: s. 10 Crimes Sentencing Procedure Act. This provision was once fondly known as s. 556A Crimes Act. A community service order cannot be combined with a dismissal or conditional discharge: s. 93(3) Crimes Sentencing Procedure Act.

In determining whether or not to make an order under s. 10, the court is required to have regard to:

Where there is a conditional discharge under s. 10, the term of the conditional release order must be specified in the order and is for a maximum of 2 years (s. 95). It is to commence on the day the order is made (s. 96).

The equivalent Commonwealth provision is s. 19B Crimes Act. Under that provision if the court is satisfied having regard to

that it is inexpedient to inflict any punishment, or other than nominal punishment, can dismiss the charge, with or without conditions including a bond of up to 3 years.

In working out the fines, it is important to bear in mind that the term 'penalty unit' is currently defined as being $110: s. 17 Crimes (Sentencing Procedure) Act.

A court imposing a fine is obliged to take into account the means of the offender: s. 6 Fines Act, s. 16C Commonwealth Crimes Act. A court should not impose a fine which a person cannot pay: Rahme (1989) 43 A Crim R 81. The amount of the fine is relevant to the sentence imposed: Tapper (1992) 64 A Crim R 201.

Instead of imposing a sentence of imprisonment or a fine, a court may make a conditional release order (formerly called a good behaviour bond), with or without a conviction (s. 9 Crimes (Sentencing Procedure) Act).

When deciding whether or not to make a conditional release order with a conviction, the court must have regard to the same factors as when considering whether or not to make a conditional release order without a conviction under s. 10, that is (s. 9 (2)):

All conditional release orders are subject to the standard conditions (s. 97 Crimes (Sentencing Procedure) Act). The standard conditions are that the offender must not commit any offence, and that the offender must appear before the court if called upon to do so at any time during the term of the conditional release order : s. 98 Crimes (Sentencing Procedure) Act.

The court may at the time of sentence, or subsequently on the application of a community corrections officer or a juvenile justice officer or the offender, impose an additional condition or vary or revoke an additional condition (s. 99 Crimes (Sentencing Procedure) Act). The additional conditions are:

The conditions of a bond must be certain and not be unduly harsh, unreasonable, or needlessly onerous. Thus a condition of a bond that an Aboriginal man whose family lived in Wilcannia, not enter Wilcannia, without permission from the sentencing judge, was overturned by the NSW CCA: Bugmy [2004] NSWCCA 258.

A court may defer passing sentence for a period of up to 12 months from the date of conviction to allow the offender to be assessed for rehabilitation, or to demonstrate that rehabilitation has taken place, to assess the offender's capacity and prospects for participation in an intervention program, to permit the offender to participate in an intervention program program,or for any other purpose: s. 11 Crimes (Sentencing Procedure) Act, s. 33(1) (c2) Children (Criminal Proceedings) Act. This corresponds to what used to be referred to as a 'Griffiths remand': Griffiths v The Queen (1977) 137 CLR 293. It can only be granted when the offender is on bail or bail has been dispensed with: s. 11 (1A) Crimes (Sentencing Procedure) Act.

The statutory 'Griffiths remand' is not restricted to cases where a non-custodial sentence is contemplated (which was the position at common law); it can be ordered in a case where a remand would be of assistance to the court in determining the non-parole period: Trindall (2002) 133 A Crim R 119, Williams [2004] NSWCCA 64. It should not be granted in a case where there are unresolved disputes of fact as to the objective seriousness of the offence: Palu (2002) 134 A Crim R 174 at para [38].

In the Children's Court, if the child is under 16, the maximum community corrections order is 100 hours. If the child is 16 or over, the maximum community service order is 250 hours, depending on the maximum penalty for the offence: s. 13 Children (Community Service Orders) Act.

Where an application is made to revoke a community service order, the court can revoke the community service order and deal with the matter as if a community service order had not been imposed: s. 115 (3) Crimes (Administration of Sentences) Act. There is no presumption that failure to perform a community service order leads to a prison sentence, nor any mathematical formula to convert unperformed community service orders into prison sentences: Bonsu v Regina [2009] NSWCCA 316 esp at para [14].

Where a court determines that a full-time custodial sentence needs to be imposed, there should be a 3 stage process: Douar [2005] NSWCCA 455 at paras [69] to [72].

Secondly, if a court determines that a sentence of imprisonment must be imposed, the court must first determine the term of the sentence. That determination should be made without regard to the manner in which the sentence is to be served: Zamagias [2002] NSWCCA 17 at para [26].

Thirdly, the court must then consider whether any of the alternatives to full time imprisonment are available, namely, an intensive correction order.

As from 24 September 2018 there are no more home detention orders. A breach of an existing home detention order is to be treated as a breach of an intensive correction order: see clause 7, Schedule 2, Crimes Sentencing Procedure Act.

If there is a breach of the bond, the court must make a determination about whether to revoke the suspension of the sentence. The court can only not revoke the bond if the court is satisfied that the breach was trivial in nature, or that there are good reasons excusing the offender's breach of the bond: s. 98(3) Crimes (Sentencing Procedure) Act (as it was before suspended sentences were abolished). The subjective circumstances of the offender generally have been held to be irrelevant unless they relate to the failure to comply with the bond: DPP v Cooke (2007) 168 A Crim R 379.

If the suspension of the sentence is revoked, the court must determine whether the sentence is to be served by way of full-time imprisonment, home detention or intensive correction order: s. 99(1)(c) Crimes (Sentencing Procedure) Act (as it was before suspended sentences were abolished). The sentence commences when the suspended sentence is revoked: Regina v Graham (2004) 62 NSWLR 252. As a result of amendments to s. 99, the judge dealing with the breach can fix a non-parole period, because Part 4 of the Act applies (s. 99(1) (c)). This overcomes the previous absurd situation where a judge dealing with a breach of a suspended sentence could not fix a non-parole period unless the judge imposing the suspended sentence had done so: see Wise [2006] NSWCCA 264. In determining the non-parole period, the judge can take into account anything the offender has done in compliance with the bond (such as attending rehabilitation). That this is so is clear is because s. 99(1) (c) says that s. 24 applies to the setting of the non-parole period.

Because of an amendment to the definition of 'sentence' in s. 3 of the Crimes (Appeal and Review) Act to include a decision to revoke a suspended sentence, and any subsequent order, there can be an appeal to the District Court against a decision to revoke a suspended sentence, and any resulting sentence. This amendment overcomes the difficulties caused by the decision of Barrett [2006] NSWCCA 210, which held that there was no such power under the earlier form of the legislation.

Where a court has determined to sentence a person for a total sentence of no more than 2 years, the court may order that the person serves the sentence by way of intensive correction order: s. 7 Crimes (Sentencing Procedure) Act. The judge must undertake a two stage process, firstly determining the total sentence (including the non-parole period and additional term), and then determining if the sentence should be served by way of intensive correction order: Wegener [1999] NSWCCA 405. In the court determines to sentence the offender to an intensive correction order, the Court is not to impose a non-parole period: s. 7(2) Crimes (Sentencing Procedure) Act.

Intensive correction orders cannot be made for sentences for murder, manslaughter, a prescribed sexual assault offence, breach of a serious crime prevention order, breach of a public safety order, an offence involving the discharge of a firearm, or attempt, conspiracy or incitement to do any of these acts: s. 67 Crimes (Sentencing Procedure) Act.

In determining whether or not to make an intensive correction order, community safety must be the paramount consideration. The court is to assess whether making an intensive correction or serving the sentence by way of full-time detention is more likely to address the offender's risk of re-offending (s. 66 Crimes (Sentencing Procedure) Act). A failure to refer to consideration of the safety of the community in determining whether or not to make an intensive correction order is an appealable error: Blanch v Regina [2019] NSWCCA 304 esp at paras [60] to [62].

In the second reading speech for the legislation which introduced the intensive order, the Attorney-General, Mark Speakman MP, said (Hansard 11/10/2017, p. 3):

Two different interpretations of the effect of s. 66 Crimes (Sentencing Procedure) Act have been handed down by the CCA. The first of these was handed down on 22 August 2019. In Regina v Fangaloka [2019] NSWCCA 173, Basten JA (with whom Price and Johnson JJ agreed) suggested that it meant that an intensive correction order could only be made if there sentencing judge assessed that such an order was more likely to address the offender's risk of reoffending than full time imprisonment (at para [63]).

However, on 29 August 2019 a judgement in Casella v Regina [2019] NSWCCA 201 was handed down. In that case Beech-Jones J (with whom Bathurst CJ and N Adams J agreed) said that it is not necessary for a sentencing judge to affirmatively find that an ICO will more likely address the risk of the offender reoffending (at para [108]).

It was held in Regina v Boughen and Cameron [2012] NSWCCA 17 that intensive correction orders are intended for offenders requiring rehabilitation, not offenders unlikely to ever re-offend. However a 5 judge bench of the CCA has decided that there is no such limitation on intensive correction orders and that in particular they can be imposed on white collar criminals: Regina v Pogson, Lapham and Martin [2012] NSWCCA 225.

Generally, the court must not make an intensive correction order unless it has obtained an assessment report: s. 17D (1) Crimes (Sentencing Procedure) Act. However, the court does not need to obtain a report if it is satisfied that there is sufficient information already to justify making an ICO (s. 7D (1A) Crimes (Sentencing Procedure) Act. In determining whether or not to make any intensive correction order, the court is to take into account any assessment report or evidence from a community corrections officer, although the court is not bound by the assessment report (s. 69 Crimes (Sentencing Procedure) Act).

Where multiple offences are dealt with by way of intensive correction orders, the total or aggregate sentence must not exceed 3 years: s. 68 Crimes (Sentencing Procedure) Act. A submission that where an aggregate sentence is to be imposed, and there is an indicative sentence of more than 2 years for one count, an intensive correction order cannot be made, was rejected by the Court of Criminal Appeal: Regina v Pullen [2018] NSWCCA 264 at paras [83] to [83].

An intensive corrections order commences on the day that it is made, unless it is imposed consecutively or partly concurrently and partly consecutively on another intensive correction order: s. 71 Crimes (Sentencing Procedure) Act.

The standard conditions for an intensive correction order are conditions that the offender must not commit any offences, and must submit to supervision by a community corrections officer: s. 73 Crimes (Sentencing Procedure) Act. In addition the court must impose at least one of the following additional conditions:

The court may impose additional conditions but not conditions insistent with the standard conditions and any of the available additional conditions (s. 73B Crimes (Sentencing Procedure) Act).

Before a home detention condition or a community service work condition is imposed, the court must first obtain an assesment from a community corrections officer indicating that the offender is suitable for these options: s. 17D (2) and (4), s. 73A (3) Crimes (Sentencing Procedure) Act.

can seek a referral to the Drug Court: s. 5 Drug Court Act. On referral the person will be sent to a detox unit at the MRRC for assessment. If admitted to the program there will be a 12 month period of residential or non-residential treatment by abstinence or methadone/Naltrexone.

Where the allegaton is that an offence occurred sometime during a particular period, and during that time the maximum penalty was increased, and the prosecution cannot prove whether the offence occurred before or after the increase in the maximum penalty, the offender is to be sentenced according to the lower maximum penalty: Regina v MAJW (2007) 171 A Crim R 407. See also MJ v Regina [2013] NSWCCA 250.

Where an offender is sentenced in the Local Court either for a summary matter or for an indictable matter dealt with summarily, the maximum penalty which the Local Court can impose is 2 years (s. 267 and s. 268 Criminal Procedure Act).

The 2 year limit is a jurisdictional one only, and the maximum penalty for the offence remains that set out for the substantive offence, so that the argument that a sentence of 2 years in the Local Court is reserved for the worst class of case was rejected in Regina v Doan (2000) 50 NSWLR 115. Similarly, the 2 year jurisdictional limit does not not prohibit a 'starting point' before the discount for a plea, if the ultimate sentence is 2 years or less: Park v Regina [2020] NSWCCA 90 esp at paras [30] and [202].

A Local Court generally may not impose a sentence cumulatively on an existing sentence if the entire sentence would end up being longer than 5 years. There is an exception for assaulting prison officers or escape lawful custody where the existing sentence was imposed by a court other than the Local Court: s. 58 Crimes (Sentencing Procedure) Act. There is also an exception for offences of introducing or supplying drugs or syringes into a place of detention, or possessing a mobile phone or an offensive weapon or instrucment in a place of detention.This rule also does not apply to imposing a sentence in the Local Court which is consecutive on a sentence imposed in the District or Supreme Court (s. 58 Crimes (Sentencing Procedure) Act).

A sentence can be back-dated to a date before the date of sentencing, but can only commence on a day after sentence if it is to accumulated on an existing sentence: ( s. 47 Crimes (Sentencing Procedure) Act). Where a sentence is cumulated upon another sentence, and the first sentence has a non-parole period set, the second sentence commences at the end of the non-parole period, not the additional term: s. 55 Crimes (Sentencing Procedure) Act. A sentence cannot be imposed cumulatively upon the end of an additional term (parole period) not yet served: Killick (2002) 127 A Crim R 273, Arnold (1993) 65 A Crim R 337. It should not be imposed cumulatively on the end of the parole period where parole has not been revoked: Aiken v Regina [2011] NSWCCA 208.

Where a person is solely in custody in relation to the matters for which he is being sentenced, it is desirable that the sentence (McHugh (1985) 1 NSWLR 588) and the non-parole period (Micallef (1990) 50 A Crim R 465) be back-dated to the date when he went into custody. Where an accused has been in custody for a matter later dealt with on a Form One, the pre-sentence custody should be taken into account: Regina v Sultana [2007] NSWCCA 107.

The sentence should also take into account broken periods of pre-sentence custody referable only to the offence, even if this means back dating the sentence to a date before the prisoner went into custody: Howard [2001] NSWCCA 309. Indeed, the preferable course may be to back date the sentence even to a date when the offender was not in custody: Newman and Simpson (2004) 145 A Crim R 361, Regina v Wiggins [2010] NSWCCA 30. However, it is not obligatory for a sentencing judge to backdate the sentence to take into account pre-sentence custody as long as it is clear that the broken period of pre-sentence custody is taken into account: Starmer [2008] NSWCCA 27. A suspended sentence cannot be backdated although pre-sentence custody can be taken into account: Pulitano v Regina [2010] NSWCCA 45.The court is not required to take into account periods of pre-sentence custody not referrable to the offences for which the offender is to be sentenced, even if the offender was not convicted for the offences referrable to that period in custody: Hampton v Regina [2014] NSWCCA 131 (a decision of a 5 judge bench of the CCA), however see Hamilton v Regina [2016] NSWCCA 59 esp at para [16].

Where there is a broken period of pre-sentence custody taken into account, the non-parole period should be determined before the broken period of pre-sentence custody is taken into account, so that both the head sentence and the non-parole period are reduced to take into account pre-sentence custody: Purdie [2005] NSWCCA 15. Prior custody without conviction can't be taken into account on other matters: Chung (1994) PD [120].

Where an offender commits another offence while on parole, and as a result is breached and is serving the balance of parole when sentenced for the second offence, the sentencing judge has a discretion whether to date the second sentence from the date of sentencing, or the date the offender went into custody, or a date in between: Regina v Callaghan (2006) 160 A Crim R 145, Regina v Holloway [2016] NSWCCA 166 esp at para [32]. The discretion is more likely to be exercised in favour of commencing on the date of sentencing if the offence was committed a short period of the offender being released on parole, and where the parole period is short: Callaghan. However the second sentence cannot be commenced at a date later than the date of sentencing: s. 55 Crimes (Sentencing Procedure) Act.

For most offences the court may set a non-parole period, or may decline to do so. However, a non-parole period must be set when the offence is one for which there is a standard non-parole period: s. 45 Crimes (Sentencing Procedure) Act, SGJ v Regina; KU v Regina [2008] NSWCCA 258. Where a court is sentencing an offender for an offence committed after 1 February 2003, the court must fix a non-parole period, and then fix the balance of the term, which is not to exceed one third of the total sentence unless there are special circumstances s. 44 Crimes (Sentencing Procedure) Act. The two steps do not have to be taken sequentially; they can be determined simultaneously: Way (2004) 60 NSWLR 168 at [112], Anjoul v Regina [2014] NSWCCA 234 esp at para [38].

Where a sentencing judge erroneously imposes a fixed term for an offence with a standard non-parole period, and the Court of Criminal Appeal comes to resentencing, the Court has discretion whether to treat the fixed term as representing the head sentence or the non-parole period: Alvi v Regina [2014] NSWCCA 191.

Despite the fact that the non-parole period is to be set first, the finding of special circumstances can be taken into account in setting the non-parole period, so that the effect of a finding of special circumstances is to reduce the non-parole period: Tuncbilek [2004] NSWCCA 139 at para [52]. The finding of special circumstances should not be used to lengthen the head sentence beyond what is otherwise appropriate: Kentwell v Regina (No. 2) [2015] NSWCCA 96 esp at para [34]. All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight: Bugmy v The Queen (1990) 169 CLR 525 at 513.

In determining the non-parole period, regard must be had to the rehabilitative prospects of the prisoner: Lian (1990) 47 A Crim R 444. The earliest release date is the end of the non-parole period: s. 44 Crimes (Sentencing Procedure) Act.

Where the sentence is of 3 years or less in total, the court must make an order directing the offender's release at the end of the non-parole period: s. 50(1) Crimes Sentencing Procedure Act. Where the sentence imposed is more than 3 years, the prisoner becomes eligible to apply for parole at the end of the non-parole period. Where the sentence is more than 3 years, the judge does not have a power to make a parole order (including conditions on parole: Regina v Muldrock [2010] NSWCCA 106 esp at para [21]. It appears that an there is court ordered parole on all sentences of 3 years or less, even if the sentence is imposed on another sentence so the overall sentence is more than 3 years: Cross v Regina (no. 2) [2012] NSWCCA 234 esp at paras [4] and [5].

A non-parole period cannot be set for a life sentence under state legislation: Harris (2000) 50 NSWLR 409. A non-parole period cannot be set for a sentence less than 6 months: s. 46 Crimes (Sentencing Procedure) Act.

The objective seriousness of the offence must be considered both in relation to the total sentence and the non-parole period: McDonald (1998) 5 Crim LN [920].

It is not necessarily fatal for the non-parole period to be more than 3/4 of the sentence but it will usually be 3/4 of the total sentence: GDR (1994) 75 A Crim R 319. Where a sentencing judge imposes a non-parole period of more than 3/4 of the head sentence, either in an individual or (it would seem) an overall sentence, error may be established on an appeal if no reasons are given : Dunn v Regina [2007] NSWCCA 312, Wakefield v Regina [2010] NSWCCA 12 esp at para [26], Etchell v Regina [2010] NSWCCA 262 esp at para [32]. It should be noted that the appeal was allowed in Wakefield where the overall non-parole period was 80% of the overall head sentence (Wakefield at para [26]). Similarly when a non-parole period which was 82% of the head sentence was imposed, with no explanation, the CCA found error: Briggs v Regina [2010] NSWCCA 250 esp at para [29]. In Maglis v Regina [2010] NSWCCA 247 a judge imposed cumulative sentences resulting in an overall sentence with a non-parole period of 80% of the total, without explanation, and error was found. However if the judge gives reasons for the longer than usual non-period, no error will be established: Regina v Russell [2010] NSWCCA 248, AB v Regina [2014] NSWCCA 31. However, if no reasons are given, it may demonstrate error: Regina v Nightingale [2005] NSWCCA 147 esp at paras [41] to [46].

Where the sentencing judge finds special circumstances but imposes an overall sentence where the overall non-parole period is only slightly less than 75% of the head sentence, error may have been established: Dawson [2013] NSWCCA 61 esp at paras [45] to [49], El-Ahmad v Regina [2015] NSWCCA 65 esp at para [50], MD v Regina [2015] NSWCCA 37.

At one stage it was held that if the judge does not explain why he or she has not varied the proportion despite apparent existence of special circumstances, the CCA may conclude that no consideration was given to this problem: Bo Too (1992) PD [243], Tyronney (1993) PD [155], Brindley (1993) 66 A Crim R 204 at 207, Stead (1994) PD [63]. However it now appears that it will be sufficient if the judge simply expresses the view that no special circumstances exist: Simpson (2000-2001) 53 NSWLR 704 esp at 722.

Where a judge determines to impose a fixed term (that is, not to set a non-parole period), the judge must give reasons for doing so: s. 45(2) Crimes (Sentencing Procedure) Act. In the case of Waterstone v Regina [2020] NSWCCA 117 there were mixed views as to whether a fixed term should be equated with a head sentence with no non-parole period, or as a non-parole period with no parole period.

Standard non-parole periods were introduced in February 2003. For a number of offences a 'standard non-parole period' was introduced. The standard non-parole period represents 'the non-parole period for an offence ... taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness' (s. 54A (2)). The legislation originally stated that a court 'is to set the standard non-parole period unless the court determines that are reasons for setting a non-parole period that is shorter or longer than the standard non-parole period'. Subsequently, in response to the cases referred to below, this was amended to require the standard non-parole period to be taken into account in determining the appropriate sentence to be imposed': s. 54B (2) Crimes (Sentencing Procedure) Act.

Regina v Way decided that in sentencing for a standard non-parole offence, the sentencing judge needed to first determine what is an abstract offence of the midrange of seriousness (see paras [74] to [76]), and then determine where the offence for which the offender was being sentence lay in relation to this hypothetical offence. In cases decided after Regina v Way the Court went as far as saying that it was necessary for the sentencing judge to specify the degree to which the offence fell above or below the mid range of objective seriousness. As a result of Muldrock, this is no longer necessary: Beveridge v Regina [2011] NSWCCA 249 esp at para [18]. This is also made clear by the amended s. 54B (6) of the Crimes (Sentencing Procedure) Act which states that a sentencing judge is not requiring to identify the extent to which the seriousness of the offence for which the offender is to be sentenced offence differs from that of an offence to which the standard non-parole period is referrable. However, it is not an error for a sentencing judge to make an assessment of the objective gravity of an offence prior to sentencing: Ramea v Regina [2013] NSWCCA 310 esp at para [25].

The High Court in Muldrock v The Queen (at para [28]) rejected the idea that sentencing judges were required to hypothesise an abstract offence, or to compare the objective seriousness of the offence for which the offender is being sentenced with this abstract offence. The Court of Criminal Appeal has accepted that the decision of the High Court in Muldrock has 'weakened the link between the standard non-parole period and the sentence imposed in a particular case' and 'diminished the role to be accorded to the standard non-parole period': see Regina v Koloamatangi [2011] NSWCCA 288 at paras [18] and [19]. In Regina v Koloamatangi the Court of Criminal Appeal said that it was not clear if the court was required to, or permitted to, or prohibited from classifying the offence as being in the low, middle or high range of objective seriousness (at para [19], see also Butler v Regina [2012] NSWCCA 23 esp at para [23], Regina v Martin [2013] NSWCCA 24 at para [38]). Probably the better view is that the court is not required to, but may, so classify the offence for which the offender is to be sentenced. The CCA has said that it is still necessary for the sentencing judge to consider the objective gravity of the offence, and the moral culpability of the offender, but commented that the High Court has left 'somewhat opaque' the meaning of the term 'objective seriousness': Zreika v Regina [2012] NSWCCA 44 at para [47].

It has been held that after Muldrock v The Queen it is still permissible to refer to the standard non-parole period as a guideline or yardstick to which regard should be had: Butler v Regina [2012] NSWCCA 23 at para [24], and Regina v Koloamatangi [2011] NSWCCA 288 at para [21]. However, there will be error where the sentencing judge 'tethered himself to the standard non-parole period as a mandatory starting point, and, failing to identify reasons for moving away from it, remained too close to the post': PK v Regina [2012] NSWCCA 263 at para [52].

In Regina v Way the NSW CCA said that matters personal to the offender such as motivation and mental illness or intellectual disability could be taken into account in assessing the objective gravity of the offence (see esp para [86]). This approach appears to have been rejected in Muldrock v The Queen, see esp para [27]. There have been conflicting views about this: see the discussion in Yang v Regina [2012] NSWCCA 49 esp at paras [29] to [37]. The better view appears to be that where matters personal to the defendant are causally related to the commission of the offence (for example, the offender's mental state at the time of the offence (as in McLaren v Regina [2012] NSWCCA 284 esp at para [29] and Subramaniam v Regina [2013] NSWCCA 159 esp at paras [56] to [58]), provocation (as in Regina v Williams [2012] NSWCCA 172 esp at para [42]), or mental illness, at the time of the offence) those factors can be taken into account in the assessment of the objective gravity of the offence, but not otherwise: see Tepania v Regina [2018] NSWCCA 247 esp at para [111]. Objective seriousness does not take into account an offender's prior criminal record: McCabe v Regina [2016] NSWCCA 7 esp at para [15].

Where there is a standard non-parole period for an offence, the judge must give reasons if a non-custodial sentence is to be imposed: s. 54C Crimes (Sentencing Procedure) Act.

If special circumstances are found, as to the proportion between the non-parole period and the additional term, this has to be taken into account in setting the non-parole period, rather than simply leading to an increase in the additional term: Perez [2004] NSWCCA 218 at paras [24] to [26]. In other words, a finding of special circumstances should not normally lead to the imposition of a longer total sentence, but should lead to a shorter non-parole period and a longer parole period. That is because of the primacy of the head sentence in the sentencing process: Dolman v Regina [2010] NSWCCA 137 esp at paras [16] to [17].

It is an error to take into account the standard non-parole period for offences committed before 1 February 2003: Ohar (2004) 59 NSWLR 596, Wilkinson [2004] NSWCCA 468 at para [26]. It is not clear if the standard non-parole period applies to offences of aiding and abetting offences which have a standard non-parole period: SAT v Regina [2009] NSWCCA 172. The standard non-parole period does not apply to offences of attempting to commit a standard non-parole period offence (DAC v Regina [2006] NSWCCA 265) or conspiring to commit such an offence: Diesing v Regina [2007] NSWCCA 326.

Where an offence does not carry a standard non-parole period it is unnecessary and 'likely to lead to confusion and misinterpretation' to make detailed findings about whether the offence falls to be assessed compared to the midrange of objective seriousness: Georgopolous [2010] NSWCCA 246 esp at para [30], Dagdanasar v Regina [2010] NSWCCA 310 esp at para [26]. However it was held in Kertai v Regina [2013] NSWCCA 252 that a finding of where the objective gravity of the offence fell in relation to the mid range of objective gravity was not necessarily an error (see esp paras [25] to [26]).

Section 54B(5) Crimes (Sentencing Procedure) Act states that failure to comply with the provision does not invalidate the sentence. However s. 101A states that failure to comply with a provision of the act can be taken into account by an appeal court. The combined effect of these provisions is that the validity of a sentence where s. 54B was not complied with is protected until it is before the Court of Criminal Appeal, at which stage it can take it into account as an error of law: Tuncbilek [2004] NSWCCA 139.

Special Circumstances.
Special circumstances has been interpreted very widely in Moffitt (1990) 20 NSWLR 114. It is not sufficient to merely apply an arbitrary formula. Special circumstances may include:

The CCA has said that it is doubtful that the fact that a person will be serving his or her first prison sentence for that reason alone justifies a finding of special circumstances: Regina v Clarke [2009] NSWCCA 49 esp at para [12], Collier v Regina [2012] NSWCCA 213. There has recently been a considerable tightening up in what the CCA is prepared to recognize as special circumstances.

Where there are a number of sentences imposed, and the overall sentence produces a non-parole period which is more than 75% of the head sentence, if no reasons are given, error may have been established: Flynn v Regina [2010] NSWCCA 171 esp at para [44]. This will especially be the case if the judge finds special circumstances : Maglis v Regina [2010] NSWCCA 247. In Barret v Regina [2011] NSWCCA 211 where the sentencing judge found no special circumstances but imposed an overall non-parole period which was 83% of the head sentence the CCA found that there was error. In Mattar v Regina [2012] NSWCCA 98 where the judge imposed cumulative sentences producing an overall head sentence with an overall non-parole period of 90% of the head sentence, error was established (see esp. para [25]).

In Lewis (1998) 100 A Crim R 361 the CCA said what was needed was something that meant a longer period of parole was needed (such as rehabilitation) or imprisonment would be especially harsh such as protection. The CCA has pointed out that it will be a rare case in which there is no fact which could not as a matter of law constitute special circumstances: Regina v Simpson (2001) 53 NSWLR 704 esp at para [73].

It is permissible for a judge to find that factors which could constitute special circumstances have already been taken into account in setting the head sentence, and thus not find special circumstances: PW v Regina [2019] NSWCCA 298 esp at para [33].

'Special circumstances' are not limited to the question of whether or not the offender needs an extended period of supervision. The primary question should be the length of the minimum period of incarceration: Simpson (2000-2001) 53 NSWLR 704.

The fact that the offences were committed whilst the offender was on bail is irrelevant to the existance of special circumstances: Bellchambers v Regina [2011] NSWCCA 131.

Once a finding of special circumstances has been made, the sentencing judge has a discretion as to the ratio between the non-parole period which the CCA will not readily interfere with: Chen v Regina [2011] NSWCCA 85 especially at [47] to [50], Kwon v Regina [2011] NSWCCA 58 esp at para [44]. However, if the sentencing judge only makes a reduction of the non-parole period in the order of a few weeks, it has been held that the reduction makes a mockery of the finding of special circumstances: El-Hamad v Regina [2015] NSWCCA 65 esp at para [50]. In AM v Regina [2020] NSWCCA 101, the sentencing judge found special circumstances, but only reduced the ratio between the non-parole period and the head sentence to 73% without explanation. An appeal on this ground was allowed

Where an offender is to be sentenced in a trial after a retrial has been ordered, ordinarily the offender should not receive a higher sentence at the retrial than he received in the first trial: Regina v Gilmore (1979) 1 A Crim R 416. See also Giotas v Regina [2008] NSWCCA 287.

Concurrent sentences run at the same time as each other, cumulative sentences run one after another. A sentence may be partly concurrent and partly cumulative.

If the offences have features in common, (Hammoud (2002) 118 A Crim R 66 esp at para [7]), or if they are substantially contemporaneous and connected (Myers [2002] NSWCCA 162, Ruane (1979) 1 A Crim R 284), this may point towards concurrence of sentences. Concurrent sentences can be applied to some extent if all the offences arose 'in the course of one episode': Gorman (2002) A Crim R 326. Where wholly concurrent sentences are imposed for distinct and separate crimes, the explanation for the concurrence must be compelling: Regina v Booth [2014] NSWCCA 156 esp at para [36].

Where there are different offences at different times against different victims, it will be an error to impose wholly concurrent sentences: VAA [2006] NSWCCA 44. It will rarely be appropriate to impose wholly concurrent sentences where there are more than one victim: Regina v Price [2004] NSWCCA 186 at para [49], Gommeson [2014] NSWCCA 159 esp at para [100].

It has been said that the critical issue is whether the sentence for one offence can comprehend and reflect the criminality of the other. If it can, the sentences ought to be concurrent; if not they should be cumulative: Cahyadi (2007) 168 A Crim R 41 esp at [27]. There may well be cases where different judges could take different views about concurrent or cumulative sentences in a particular case and neither could be said to be wrong: (Hammoud (2002) 118 A Crim R 66 esp at para [7]).

It is an error for a sentencing judge to determine the overall sentence, and then to determine the sentences for individual counts: Finnigan v Regina [2013] NSWCCA 177 esp at para [33].

The fact that an offence has a Form One matter taken into account is not relevant to whether or not an offence should be concurrent or cumulative: Sparos v Regina [2013] NSWCCA 223 esp at para [7])

Where an offender is already serving a very lengthy sentence, it may be that there is little or no room for a further sentence to be imposed: Regina v MMK (2006) 164 A Crim R 481 esp at para [14]. The severity of a sentence increases at a greater rate than any increase in the length of the sentence, and courts need to consider that a very long sentence may be a crushing sentence in that it will leave the offender with a sense of hopelessness and destroys any expectation of a useful life after release: Regina v MAK and MSK (2006) 167 A Crim R 159 esp at paras [15] to [17]. See also Regina v WC [2008] NSWCCA 268.

In Regina v XX [2009] NSWCCA 115 the CCA set out the following summary of the principles relating to concurrent or cumulative sentences (at para [52]):

In Dunn (supra), the respondent to the Crown appeal had entered a guilty plea to an offence under s.51A of the Crimes Act 1900 of breaking and entering the dwelling house of a female, being armed with an offensive weapon, namely a knife with which he wounded the victim by inflicting three shallow lacerations to her neck. He also pleaded guilty to the offence of assaulting a male thereby occasioning actual bodily harm, that crime also occurring in the female’s home when the male victim attempted to protect her from the respondent.

On the appeal, the Crown submitted that the sentences should have been partially accumulated. Adams J (with whom Ipp JA and Sully J agreed) stated at [50] that there should have been some accumulation in the sentences to reflect the fact that the respondent had persisted in his violence when the male victim attempted, justifiably and lawfully, to restrain him:-

A sentence can be wholly or partly cumulative with another sentence. If the judge does not specify, the sentence is concurrent: s. 55 Criminal Procedure Act. If a sentence is imposed wholly cumulatively upon another sentence, and there is a non-parole period for the first sentence, the second sentence commences at the end of the non-parole period for the first sentence, not the end of the additional term: s. 55 Criminal Procedure Act, Killick (2002) 127 A Crim R 273.

Where the offender is already serving an additional term at the time of sentencing because his parole has been revoked, the judge has a discretion whether to commence the sentence at the end of the non-parole period or at the end of the additional term: Callaghan (2006) 160 A Crim R 145, Regina v Gray [2018] NSWCCA 241.

Section 53A Crimes (Sentencing Procedure) Act permits a sentencing judge to impose an aggregate sentence for multiple offences, but the sentencing judge is required to indicate the sentence which would have been imposed for each offence. See also Regina v Brown [2012] NSWCCA 199. The judge is not required to specify individual commencement dates for the indicative sentences (Cullen v Regina [2014] NSWCCA 162 esp at para [26]) or the extent of accumulation or concurrency between indicative sentences for individual offences ( McIntosh v Regina [2015] NSWCCA 184 esp at paras [136] to [137]). In McIntosh v Regina [2015] NSWCCA 184 Basten JA (with whom Wilson J agreed, Hidden J dissenting on this point) said that the indicative sentence should be the non-parole period (Basten JA at para [139], Hidden J at [173], Wilson J at [176]). Subsequently a differently constituted bench of the CCA has held unanimously that the indicative sentences should be the head sentences for the offences, not the non-parole periods: Dimian v Regina [2016] NSWCCA 223 esp at para [49].There is a requirement to specify an indicative non-parole period when the relevant offence has a standard non-parole period: s. 54B (4) Crimes (Sentencing Procedure) Act.

Precisely the same effective sentence should be imposed for an individual offence whether or not it is an indicative sentence in an aggregate sentence: Taitoko v Regina [2020] NSWCCA 43 at esp at para [130]. The fact that offences are separated in time and nature does not mean that an aggregate sentence should not be imposed: Taitoko at para [129].

In aggregate sentences, considerations of concurrency and accumulation do not apply at all, however principles of totality do apply: see TB v Regina [2020] NSWCCA 108 esp at paras [158] and [159].

It has been held to be an error to impose an aggregate sentence for unconnected offences where the overall sentence is the same as the sentence indicated for an individual offence: Regina v Rae [2013] NSWCCA 9 esp at para [45]. Related summary offences included on a certificate under s. 166 Criminal Procedure Act can be dealt with in an aggregate sentence: Regina v Price [2016] NSWCCA 50 esp at para [76].

In an appeal against an aggregate sentence, it is not enough to demonstrate that an individual indicative sentence is manifestly excessive or inadequate, unless it can also be demonstrated that the overall sentence is either manifestly excessive or inadequate: JM v Regina [2014] NSWCCA 297.

Commonwealth Sentencing: Generally

Where the total sentence is 6 months or less the court is not obliged to make a recognizance order. Where the total federal sentences are 3 years or less a recognizance release order must be fixed: s. 19AC. Otherwise a non-parole period must be fixed.

The non-parole period for Commonwealth offences is generally under 75% of the total: Von Giese (1994) PD [279], Beeforth (1996) PD [23], Stitt (1998) 5 Crim LN [908] In Bernier (1998) 102 A Crim R 44 the CCA said the range for NPPs was 60-66.6% (see also Regina v Jones and Hili [2010] NSWCCA 108). In Paull (1990) 20 NSWLR 427 at 435 and Acosta [1999] NSWCCA 334 it was held that a non-parole period set at 75% of the total sentence should be reserved for the worst class of case. However, note the strange decisions of Bick [2006] NSWCCA 408 and Aboud v Regina [2017] NSWCCA 140. The High Court has said that it is an error to regard the range of 60 to 66% as a 'norm' or a 'starting point': Hili and Jones v The Queen (2010) 242 CLR 520, [2010] HCA 45 esp at paras [36] and [44].

The non-parole period should represent the court's view of the minimum time the offender should spend in custody for the offence: Power v The Queen (1974) 131 CLR 623 esp at 628. In Regina v Phelps and Zalapa [2018] NSWCCA 191 the court rejected an appeal ground by the Crown complaining that a judge had imposed only a 50% non-parole period without explanation (at para [64]).

When considering comparable cases for a Commonwealth offence, the comparable cases should not be restricted to the state where the sentence is proceeding, but all jurisdictions in Australia: The Queen v Pham [2015] HCA 39 esp at para [27].

For certain Commonwealth offences (notably terrorism offences) there is a minimum non-parole period of 75% of the head sentences: 19AG Crimes Act.

As from 16 January 2003, s. 16G and 19AG have been abolished. These provisions provided that in states like where NSW where remissions have been abolished, the court must take that fact into account. That normally meant that the head sentence be reduced by 1/3: El Kaharni. There was a requirement that there at least be a reference to s. 16G in the Remarks on Sentence: Lopez [1999] NSWCCA 245. It was not necessary to specifically quantify the amount of the discount under s. 16G: Halls (2002) 127 A Crim R 209. It has been held that section 16G does not apply where the sentence imposed is one of life imprisonment: Vanit (1997) 190 CLR 378, (1998) 72 ALJR 1.

The effect of the abolition of s. 16G is not that the existing tariff be increased by 50%, but the abolition of s. 16G has to be taken into account when considering the range of sentences imposed before the abolition of s. 16G: Regina v Studenikin (2004) 60 NSWLR 1. 'It would be crude and unfair to increase previous levels of sentence by 50% to take into account the abolition of ss 16G and 19AG': per Smart AJ in Dujeu (2004) 146 A Crim R 121 at para [43]. However in Kevenaar (2004) 148 A Crim R 155 at para [48] Hulme J was clearly of the view that the effect of the abolition of s. 16G is that the pattern of sentences should be regarded as having been increased by 50%. In Rivadavia (2004) 61 NSWLR 63 Wood CJ at CL said that the view of Smart J was to be preferred. See also Bezan (2004) 147 A Crim R 430 .

Sentences Under 6 Months.
No minimum or additional terms are set for a sentence of 6 months or less: s. 46 Crimes (Sentencing Procedure) Act. If a sentence of less than 6 months is imposed the court must indicate and give reasons for its decision including reasons for deciding that no sentence other than imprisonment is appropriate: s. 5 Crimes (Sentencing Procedure) Act.

Conversations in Chambers.
The practice of discussing a case with a judge in chambers has been disapproved: Foster (1992) 59 A Crim R 28.

Pre Sentence Reports
Adjournments for PSRs, particularly after trials, should only be where there is a legitimate advantage for the sentencing process: Majors (1991) 54 A Crim R 334. A pre sentence report can only be taken into account in sentencing if it is tendered in evidence in open court: Otway [2005] NSWCCA 352 esp at para [13].

It is suggested that a client in sentence proceedings always be given the opportunity to read the pre-sentence report: see Brown v Regina [2018] NSWCCA 257 esp at para [45]

Victim Impact Statements
Victim Impact Statements are admissible: s. 28 Crimes (Sentencing Procedure) Act. The court must not consider a victim impact statement by a family victim unless it considers it appropriate to do so: s. 28 Crimes (Sentencing Procedure) Act. If admitted the statements must relate only to matters pleaded to: Bakewell (1996) PD [258].

It was held that victim impact statements are irrelevant in murder cases because the effect on persons other than the deceased is irrelevant to sentencing: Previtera (1997) 94 A Crim R 76, Bollen (1998) 99 A Crim R 510. See P Berman 'The Role of Victims in Sentence Proceedings', (1997) 4 Crim LN [733]. In Berg [2004] NSWCCA 300 at para [43] Spigelman CJ (with whom Wood CJ at CL agreed) said that Previtera may need to be reconsidered in an appropriate case. Section 28 (4) Crimes (Sentencing Procedure) Act now states that a victim impact statement may on the application of the prosecutor and with the leave of the court be taken into account in determining the harm caused by the victim's death to the victim's immediate family.

It has been said that substantial weight cannot be given to victim impact statements in sentencing offenders because they are unsworn: Slack [2004] NSWCCA 128. However, in Aguirre v Regina [2010] NSWCCA 115 esp at para [77] it was held that an unsworn victim impact statement could be relied upon in order to find an aggravating feature of the offence. On the other hand, in EG v Regina [2015] NSWCCA 21 (esp at para [36]) and in Tuala v Regina [2015] NSWCCA 8 (esp at paras [80]-[81]) it was held that it was an error to find that there was harm to the victim well beyong what might be reasonable expected on the basis of a victim impact statement especially when it is unsupported by sworn evidence. On the current state of the authorities, it is probably good practice when a victim impact statement is tendered not to object to the tender but to point out that the victim impact is unsworn and not subject to cross-examination.

If the sentencing judge gives too much weight to the victim impact statement, error may be established on appeal: RP v Regina [2013] NSWCCA 192 esp at paras [25] to [30].

Material in a victim impact statement should be disclosed to the defence prior to the trial if they contained material which was sufficiently solid to cause reasonable prosecutors to think that cross-examination based on the information might elicit answers materially affecting the credibility of the witness: Lewis-Hamilton (1997) 92 A Crim R 532 (Vic CCA).

Where there is a factual dispute and the offender does not give evidence, the judge should not draw an inference from the failure to give evidence against the offender except in exceptional circumstances: Strbak v The Queen [2020] HCA 10 esp at para [13]

Where there is a plea of guilty and a factual dispute in which the offender is unsuccesful, the discount for the utilitarian value of the plea may be reduced: Regina v AB [2011] NSWCCA 229 esp at para [32].

At least in proceedings in the District and Supreme Courts, the offender should be advised that he has the right to give evidence, and should be advised of that right: Mendoza (Brown) v Regina [2018] NSWCCA 257 esp at para [42].

If the evidence of the offender is not challenged by the prosecution in cross-examination, and is not inherently implausible, the sentencing judge is not entitled to reject it without at least giving proper notice to the offender: O'Neil-Shaw v Regina [2010] NSWCCA 42 esp at paras [26] to [27].

The High Court has recently held that the Crown is not required or permitted to make submissions about what is the appropriate range of sentences: Barbaro v The Queen [2014] HCA 2, esp at paras [3] to [8]. Arguably, this applies only to submissions about the length of sentences, not the type of sentence. See also Tatur v Regina [2020] NSWCCA 255.

In an earlier case, it was held that if a judge makes an error about what the Crown has said is the appropriate range of sentences error may have been established: Maldonado v Regina [2009] NSWCCA 189.

The primary purpose of remarks on sentence is to explain to the offender the reasons for that sentence, and to record those reasons. The recitation of authority is a secondary contribution to those purposes. The issue is whether or not the judge took into account the relevant considerations: Regina v Bell [2005] NSWCCA 81 esp at para [12].

The Court of Criminal Appeal has been reluctant to supplement the remarks on sentence with remarks made by a judge during submissions: Regina v Rossi-Murray [2009] NSWCCA 177 esp at para [43]. Remarks on sentence should be given orally rather than in writing and should be formulated so that they can be understood by the offender. Reference to authority should be kept to a minimum: Curtis [2007] NSWCCA 11 esp at paras [4] to [5].

Judges are obliged to give reasons for the sentences they impose, and to give those reasons contemporaneously with handing down the sentence, although it may be permissible to deliver the reasons for sentence on the day after orders are made: see CJP, CAD and MES [2003] NSWCCA 187, especially at paras [69] to [70].

The Children's Court has no jurisdiction in relation to 'serious children's indictable offences'. These offences are defined as homicide, offences carrying 25 years imprisonment, the most serious sexual assault offences (s. 61J and 61K), or firearms offences carrying more than 20 years imprisonment (s. 3 Children (Criminal Proceedings) Act). In sentencing an offender who is a child, s. 6 Children (Criminal Proceedings) Act applies, which requires the court to take into account the following:

In relation to other indictable offences, where a court other than a Children's Court is sentencing a child, the court has a discretion whether to deal with the child under the pursuant to the Children (Criminal Proceedings) Act or 'according to law'. In exercising this discretion, the court should take into account the nature of the indictable offence, the age and maturity of the offender, and the record of the offender: s. 18 Children (Criminal Proceedings) Act.

It has also been held that relevant for the sentencing judge to take into account whether the child should serve a sentence in a detention centre plus a parole period, or whether it was appropriate for any reason for the child to serve the sentence in prison rather than a detention centre: WKR (1993) 32 NSWLR 447 esp at 451. However the opposite view was expressed in TG v Regina [2010] NSWCCA 28 esp at para [25].

If an offence is committed while an offender is a child, and the offender is sentenced before the child reaches the age of 21, a court is not to impose a control order or a sentence of imprisonment unless a background report has been prepared, given to the parties, and tendered: s. 25 Children (Criminal Proceedings) Act. This provision is mandatory: Hoang [2003] NSWCCA 237.

If a child is to be sentenced to imprisonment, the court may direct that the sentence of imprisonment be served in a detention centre. However a person is not eligible to serve a sentence in a detention centre after the person has turned 21 unless the sentence or its non-parole period will expire within 6 months of the 21st birthday. For offenders being sentenced for serious indictable offences, the relevant birthday is the 18th birthday and special circumstances must be established: s. 19 Children (Criminal Proceedings) Act. It appears that it is an error to take into account this provision in determining the sentence to be imposed: JM v Regina [2012] NSWCCA 83 esp at para [22].

If a court imposes a sentence which is contrary to law, or failed to impose a sentence which is required by law, the sentencing proceedings may be re-opened either on its own initiative or on the application of one of the parties to the proceedings: s. 43 Crimes (Sentencing Procedure) Act. It appears that this statutory power remains even after the sentence has been 'perfected' (finalised in a formal sense, see below): Rickard v Regina [2007] NSWCCA 332. There is also an inherent power to correct legal error in a sentence until the sentence has been perfected: Regina v Elliot (2006) 68 NSWLR 1, 164 A Crim R 208.

Section 43 applies to cases where the sentence imposed is in some way 'contrary to law', such as in cases where the sentence exceeds the maximum penalty, or where the penalty is in excess of the power of the sentencing court because some precondition (such as an aggravating factor or the existance of prior convictions) has not been met. It does not apply to cases where the sentence was reached by way of erroneous reasoning or factual error: Achurch v the Queen [2014] HCA 10. On an application under s. 43, new subjective material will not be admitted: Bungie and Bungie v Regina [2015] NSWCCA 9 esp at para [41].

Under rule 53.12 of the District Court Rules, a sentence is perfected when there an entry made on the indictment or court file signed by the judge, or entered on the appropriate computer record, so there now appears to be little scope for this avenue of relief.

The 'objective factors' are generally regarded as being the acts of the accused constituting the offence and the state of mind of the accused which accompanied those acts. The 'subjective factors' are factors not directly related to the facts of the case but personal to the offender: in particular age, criminal history, psychological and psychiatric history.

One of the main purposes of punishment is to protect the public. A court (it is said) is weakly merciful if it does not impose a sentence commensurate with the objective seriousness of the crime. The subjective circumstances are important but are necessarily subordinate: Radich [1954] NZLR 86, approved in Rushby [1977] 1 NSWLR 594. This also applies to Commonwealth matters: El Kahari (1990) 51 A Crim R 123.

In Regina v Dodd (1991) 57 A Crim R 349 at where this Court said that ‘there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case’ (at 354). There is an important qualification to this statement by Beazley JA in Bombadieri v Regina (2010) 203 A Crim R 89, [2010] NSWCCA 161, where her Honour referred to this statement and observed 'The converse is also true. Focus on the objective seriousness of the offence without proper regard to the other factors that may be taken into account, including in the sentencing process, may also lead to error' (at para [4]).

An assessment of the objective gravity of an offence has always been an essential of the sentencing process: Khoury v Regina (2011) 209 A Crim R 509 esp at para [71]. However it is not necessary for the judge to indicate where the offence falls in a scale of low, midrange, or high criminality; what is required is a for the judge to 'fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed': Muldrock v The Queen (2011) 244 CLR 120 at para [29], see also McDowall v Regina [2019] NSWCCA 29 at para [36].

The judge is not required to assign mathematical values to significant matters, or classify the objective seriousness of the offending. However, the judge is required to 'identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed': Muldrock at para [29]. It is not necessary for the judge to indicate where the offence falls within that range, or by reference to mathematical terminology: see PK v Regina [2012] NSWCCA 263 at paras [24] to [27], RC v Regina; Regina v RC [2020] NSWCCA 76 at para [243].

Where an offender is being sentenced for multiple offences, theren must be an assessment of the objective ravity of each offence, rather than a global assessment of the total offences: see Regina v Reyes [2005] NSWCCA 218 at para [43], and Fisher v Regina [2008] NSWCCA 103 esp at para [54].

In assessing the weight to be given to the need for a sentence to protect society, a sentencing judge should not take into account continuing detention orders and continuing supervision orders (Alou v Regina [2019] NSWCCA 231 at paras [148] to [150].

Different views have been expressed about the significance of what the particular offender did in a joint enterprise. In Regina v Hoschke [2001] NSWCCA 317 Carruthers JA said that in a joint enterprise armed robbery it was inappropriate to attempt with any precision the role which each offender played (at para [18]). However in Regina v JW [2010] NSWCCA 49 Spigelman CJ said that it was always relevant to refer to the particular conduct of each participant to identify the level of culpability for which each offender is to be sentenced (at para [161]). Recently it was said that while each of the offenders is legally responsible for what all acts carried out in furtherance of the enterprise, it is necessary to refer to the particular conduct of each participant to identify the individual culpability: KR v Regina [2012] NSWCCA 32 esp at paras [18] to [19].

Section 21A Crimes (Sentencing Procedure) Act sets out aggravating factors for offences. In sentencing an offender the court must take into account such of the following factors which are relevant and known to the court (this list is not an exclusive list: Daetz (2003) 139 A Crim R 398). These factors are relevant to both the head sentence and the non-parole period.

The aggravating factors are only be taken into account if according to the ordinary principles of sentencing, they would aggravate the offence: Gore and Hunter v Regina [2010] NSWCCA 330 esp at paras [30] and [102].

Where a judge intends to treat a matter as an aggravating factor which has not been raised by the partioes, the judge should raise the matter with he parties before sentence: Chong v Regina [2020] NSWCCA 235 esp at para [20].

Reference by a sentencing judge to the aggravating factors generically (as in 'I take into account the relevant aggravating and mitigating factors under s. 21A') without specifiying which factors are applicable may be an error of law: Matu v Regina [2019] NSWCCA 23.

Errors made by a sentencing judge in taking into account as aggravating factors under s. 21A matters which should not be taken into account as aggravating factors are not mere technical errors: Aslett [2006] NSWCCA 49 at para [127].

The court is not to treat a factor as an aggravating feature if it is an element of the offence: s. 21A (2). This is an extremely important point often overlooked by sentencing judges. Under the sub-headings for various aggravating factors, examples will be given of cases where sentencing judges have ignored this prohibition. Cases where elements of the offence have wrongly been treated as aggravating factors will be considered under the headings for the various aggravating factors. Some general comments are made here.

If a sentencing judge simply refers to the presence of an aggravating factor which is an element of the offence, without explaining how the aggravating factor is taken into account, error is likely to have been established: Dougan (2006) 160 A Crim R 135 at paras [30] to [31]. However the extent to which a factor (which is an element of the offence) is present may be treated as an aggravating factor. Thus in the case of dangerous driving occasioning death, the degree to which the offender's blood alcohol level was over the legal limit can be taken into account as a mitigating factor: see Berg [2004] NSWCCA 300 at para [25]. Similarly it will not be an error in a robbery in company case to take into account as an aggravating factor the fact that the offender had a large number of overbearing and powerful companions: Way (2004) 60 NSWLR 168 at para [107].

It was held in a case of break and enter in circumstances of special aggravation, namely, reckless wounding case in circumstances of special aggravation (namely wounding), it was argued that the wounding could not be an aggravating feature because this was an element of the offence. This argument was rejected, but it is very difficult to understand why: Firbank v Regina [2011] NSWCCA 171 esp at paras [51] to [53].

Where a judge is sentencing an offender for a number of matters, and he/she refers to aggravating features generally which are elements of some of the offences (such as using weapons when there is an armed robbery count), error is established: Street [2005] NSWCCA 139 at paras [32] to [34].

If an aggravating factor applies to some of the offences for which an offender is being sentenced, but not all of them, the sentencing judge must indicate which of the offences are ones in which the aggravating factors are taken into account: Tadrosse (2005) 65 NSWLR 740 at para [22].

Where a judge takes into account 'vigilantism' or 'quasi-vigilantism' as an aggravating factor in a detain for advantage offence, error is established: Sorensen v Regina [2016] NSWCCA 54 esp at para [128].

A sentencing judge should not treat the simple fact of actual or threatened use of violence as an aggravating factor for an offence where the actual or threatened use of violence is an element of the offence, such as in robbery offences (for threatened use of violence): Ibrahimi [2005] NSWCCA 153 at paras [16] to [18], Mohamadin [2004] NSWCCA 401 at para [16]. Actual violence is not an element of robbery and as a result it is not an error to take this into account as an aggravating factor: Hamze [2006] NSWCCA 36.

Similarly, for an offence of malicious wounding with intent, it is an error to treat as an aggravating factor the simple fact that the offence involved actual violence: Cramp [2004] NSWCCA 264 at paras [20], [53]- [58].

Similarly, when the offence charged is malicious wounding with intent to do grievous bodily harm, it is an error to treat as an aggravating factor the simple fact that there has been actual use of violence: King (2004) 150 A Crim R 409 at para [94].

The 'actual or threatened use of violence' should not be treated as an aggravating factor in a manslaughter case where the Crown is relying on unlawful and dangerous act as the basis of liability: Wilson (2005) 62 NSWLR 346 at para [43].

For 'violence' to be an aggravating factor there must be violence towards a person, not just property: Makrynikos [2006] NSWCCA 170 esp at para [72].

A sentencing judge should not treat the simple fact of the actual or threatened use of a weapon as an aggravating factor for an offence where the actual or threatened use of a weapon is an element of the offence, such as armed robbery: Mohamadin [2004] NSWCCA 401 at para [16], Hernando [2005] NSWCCA 59 at paras [16] to [19], and House [2005] NSWCCA 88 at para [11].

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

Although 'a record of previous convictions' is included in the list of 'aggravating factors', it has been held that it is an error to treat a prior criminal record as a factor which aggravates the offence. At common law, the question of how the prior criminal record of an offender could be used by a sentencing judge was considered by the High Court in Veen v The Queen (no. 2) (1988) 164 CLR 465. The effect of this decision was summarised in Shankley [2003] NSWCCA 253 (per Howie J, at para [31]):

The principles in Veen (No. 2) may apply to a record of past offences, but not where multiple offences are bing dealt with at the same time: RO v Regina [2019] NSWCCA 183 at para [64].

It has been held that the effect of Veen (no. 2) is that the objective circumstances set the upper boundary of a proportionate sentence for an offence, which circumstances do not include prior convictions. However the criminal record of the offender is relevant to where within the boundaries set by the objective circumstances the sentence for the offender should fall: Regina v Darrell Terry McNaughton (2006) 66 NSWLR 566 esp at para [24] and [26]. Objective seriousness does not take into account an offender's prior criminal record: McCabe v Regina [2016] NSWCCA 7 esp at para [15], Kelly v Regina [2017] NSWCCA 82 esp at para [58].

A section 10 discharge is not to be treated as a previous conviction: Price [2005] NSWCCA 285 at paras [35] to [36].

Where a person has been found guilty as a child of an offence, but no conviction has been recorded, and commits another offence, but has not committed another offence within 2 years before proceedings commenced for the subsequent offence, the earlier finding of guilt (with no conviction) is inadmissible in any sentencing proceedings for the later offence: s. 15 Children (Criminal Proceedings) Act, Siddiqui v Regina [2015] NSWCCA 169 esp at para [63], D v Regina [2020] NSWCCA 209 esp at paras [88] to [95].

A sentencing judge should not take into account the simple fact that an offence was committed in company as an aggravating factor if it is an element of the offence that the offence was committed in company. For example, in a case of robbery in company, it will be an error to treat as an error the fact that an offence was committed in company as an aggravating factor for the offence of robbery in company: Mohamadin [2004] NSWCCA 401 at para [16], Davis [2004] NSWCCA 310 at paras [15] to [19], DBN [2005] NSWCCA 435 at para [26], Hamze [2006] NSWCCA 36 esp at para [37]. Similarly, where an offender is being sentenced for aiding and abetting in an aggravated robbery, it is an error to take into account the fact that the offence was committed in company as an aggravating factor: Kukovec v Regina [2014] NSWCCA 308.

The expession 'in company' in this provision has the same meaning as in common law, where it is used for example in 'robbery in company'. Relevant issues are whether or not the presence of the other person had a potential effect on the victim, by way of intimidation (for example), whether the presence of another person had the effect of offering suppport or encouragement to the offender, or whether a common purpose could be established: White v Regina [2016] NSWCCA 190 esp at paras [3] -[4], and [94].

It is also an error to take into account the fact that an offence was committed in company when that fact added no significant culpability to the offence: Gore and Hunter v Regina [2010] NSWCCA 330 esp at paras [30] and [101] to [102]. Being 'in company' is only an aggravating factor when the presence of more than one person with the offender is to convey a threat of violence by the combined presence of more than one person: Pehar v Regina [2020] NSWCCA 118.

(ea) the offence was committed in the presence of a child under 18 years of age

This provision is principally aimed at the effect the commission of an offence, particularly an offence of violence, might have on the emotional well-being of a child: Gore and Hunter v Regina [2010] NSWCCA 330 esp at para [104].

(eb) the offence was committed in the home of the victim or any other person

Previously it had been held that this aggravating factor does not apply if the offence was committed in the victim's home if the offender also resides there: EK v Regina [2010] NSWCCA 199, (2010) 79 NSWLR 740, esp at para [79]. It did not apply where the offender is not an intruder in the house, but it lawfully in the house, for example, a baby-sitter: Ingham v Regina [2011] NSWCCA 88 esp at paras [7] and [112]. However it has now recently been held that where both the accused and the victim are living in the home where the offence is committed, the aggravating factor applies: Jonson v Regina [2016] NSWCCA 286 esp at para [50].

By majority, the NSW CCA held that the fact that a break and enter was committed in the home of the victim was an aggravating factor: Regina v Bennett [2014] NSWCCA 197 (per Simpson and Harrison JJ, Hall dissenting).

Where the victim initiates the situation leading to the offence taking place (for example, in a case of excessive self-defence) the fact that the offence occurs in the victim's home may not be an aggravating factor: Patel v Regina [2019] NSWCCA 170.

It has been suggested that gratuitous cruelty is not involved in offences where awareness of the mere possibility of injury is involved as distinct from offences involving deliberate, calculated torture or where the type or degree of harm is part of the offender's desire to degrade or humiliate the victim: Smith [2005] NSWCCA 286 at para [37]. The expression 'gratuitous cruelty' suggests that the infliction of pain is an end in itself: McCullough v Regina [2009] NSWCCA 94. Possessing child pornography where the images involve cruelty does not mean that the offence is an offence of gratuitous cruelty: Saddler v Regina [2009] NSWCCA 83.

(g) 'the injury, emotional harm, loss or damage caused by the offence was substantial'

A sentencing judge should not take into account the simple fact of the injury of the victim as an aggravating factor if it is an element of the offence. In a manslaughter case, the sentencing judge should not treat the death of the victim or grievous bodily harm as an aggravating factor: Williams [2005] NSWCCA 99 at paras [34] to [38], Tzanis [2005] NSWCCA 274 at paras [9] to [18]. The same applies in cases of occasioning actual bodily harm: Murphy [2005] NSWCCA 182 at paras [23] to [24]. The same applies in cases of dangerous driving occasioning death (Vale [2004] NSWCCA 469 at para [33], Berg [2004] NSWCCA 300 at para [30]).

Where the deceased in a case of aggravated dangerous driving occasioning death is pregnant, the death of the foetus is not an aggravating feature because the law regards the foetus as part of the mother: Regina v Hughes (2008) 185 A Crim R 155.

Where the only evidence of substantial harm is a victim impact statement, or the victim's credibility is in question, considerable caution must be exercised before using the VIS to establish substantial harm: Regina v Tuala [2015] NSWCCA 8 esp at para [81]. However where the facts of the offence clearly imply that the victim would have suffered substantial emotional harm, a circumstance of aggravation can be found even if there is no VIS or specific evidence to that effect: WAP v Regina [2017] NSWCCA 212 esp at para [85].

For 'substantial emotional harm' to be taken into account as an aggravating factor, there must be evidence that the there was an emotional response significantly more deleterious than that which any ordinary person would have when subjected to this offence: Youkhana [2004] NSWCCA 412 esp at para [26], Solomon (2005) 153 A Crim R 32 at para [19], Moore [2005] NSWCCA 407 at paras [28] to [30].

(h) 'the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)'

Being motivated by racial hatred does not include a stereotyped belief that certain ethnic groups might have more money at home to steal: Aslett [2006] NSWCCA 49 at paras [123] to [124].

A sentencing judge should not take into account the simple fact of an offence having been committed without regard to public safety if that disregard for public safety is an element of the offence, for example in dangerous driving occasioning death: McMillan [2005] NSWCCA 28 esp at paras [38] to [39], but note Ancuta [2005] NSWCCA 275 at para [12].

There have been conflicting decisions on the question of whether, where a drug dealer selling drugs to an undercover police officer, the offence is aggravated by acting without regard to public safety. In Way (2004) 60 NSWLR 168 at para [172] the NSW CCA said it could be an aggravating factor, but in Ancuta [2005] NSWCCA 275 it said the opposite (at para [11]).

Where the only person whose safety is endangered is the actual victim of the offence, 'acting without regard to the public safety' should not be treated as an aggravating offence: Chisari [2006] NSWCCA 19 esp at para [28].

(j) the offence was committed whilst the offender was on conditional liberty

Being on conditional liberty (generally being on bail, on parole, or while subject to a good behaviour bond) when an offence is committed does not affect the objective gravity of the offence, but can be taken into account as an aggravating factor in sentencing: Simkhada v Regina [2010] NSWCCA 284 at [25], Turnbull v Regina [2019] NSWCCA 97 at paras [17] to [18], Field v Regina [2020] NSWCCA 105 esp at para [85].

A offender being on 'conditional liberty' has been held to include an offender serving a community service order (Cicekdag (2004) 150 A Crim R 299 at para [53]).

It has been held that an offender is on conditional liberty when he is at large after his parole has been revoked and commits an offence: Turnbull v Regina [2019] NSWCCA 97 esp at para [22].

(k) the offender abused a position of trust or authority in relation to the victim

It has been held that this aggravating factor does not apply when a virtual stranger to the victim does not commit an offence in earlier encounters with the victim: MMK [2005] NSWCCA 369 at paras [98] to [103]. For the aggravating factor to apply there must be a relationship of trust between the victim and the offender, not simply that the victim trusted the offender: Suleman v Regina [2009] NSWCCA 70, Cowling v Regina [2015] NSWCCA 213 esp at para [10].

Where an offender is convicted of sexual assault of a child under his authority, it is an error to 'abuse of a position of trust or authority' as an aggravating factor is the same feature(s) is relied on for both the element of the offence and the aggravating factor: Beavis v Regina [2018] NSWCCA 248 esp at para [255].

Section 21A(2) makes it an aggravating factor if the victim was vulnerable, 'for example because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller, or service station attendant)'.

A sentencing judge should not treat the simple fact that the victim was vulnerable as an aggravating factor if that vulnerability is an element of the offence. Thus the offender has been convicted of the offence of sexually assaulting a person with an intellectual disability, the judge will be in error if he treats the disability of the victim as a further aggravating factor: Wickham [2004] NSWCCA 193 esp at paras [22] and [32]. Although the bare fact of vulnerability should not be taken into account as an aggravating factor if it is an element of the offence (Boulad [2005] NSWCCA 289, RJA v Regina (2008) 185 A Crim R 178), the extent of the vulnerability (for example how much the victim of a child sexual assault was under the age of consent) can be: Pearson [2005] NSWCCA 116 at paras [23] to [37], JTAC [2005] NSWCCA 345 esp at para [9].

The 'vulnerability' of victims refers to the vulnerability of particular victims, as by age or occupation, not the vulnerability of all members of the community to people like false pretenders: Tadrosse (2005) 65 NSWLR 740 at para [26]. In a case of a person drug dealing, it is an error to treat as an aggravating factor that potentially some of the buyers may have been vulnerable, because that is true of every offence of supply heroin: Ancuta [2005] NSWCCA 275 at paras [13] to [14]. Hotel security guards have been held to be 'vulnerable persons' (!): Longworth v Regina [2017] NSWCCA 119.

It was held that it was an error to treat the 'vulnerability' of the victim in a manslaughter case simply because she was not, like the offender, a powerful man with violent tendencies: Williams [2005] NSWCCA 99 at paras [40] to [41], Betts v Regina [2015] NSWCCA 39 esp at para [29]. Similarly it is an error to treat a victim as 'vulnerable' because he was unarmed: Regina v Nowak (2008) 183 A Crim R 526. It has been held that where taxi driver sexually assaults a drunken passenger that the vulnerability of the victim is an aggravating factor: Ali v Regina [2010] NSWCCA 35 .

It has been held that the fact that the complainant in a domestic violence case (in this case involving a stabbing) of an Aboriginal woman was not aggravated by her vulnerability in the absence of specific evidence of such vulnerability: Drew v Regina [2016] NSWCCA 310 esp at para [4].

Similarly it does not apply where charges are being taken into account on a Form One, because that involves double counting: Hamze [2006] NSWCCA 36 at paras [48] to [49].

The fact there was 'a level of planning' in the commission of an offence does not necessarily mean that this aggravating factor applies: Fahs [2007] NSWCCA 26 at para [21]. The aggravating factor may arise even if there was only one offender: Hewitt [2007] NSWCCA 353 where cases on this aggravating factor are summarised at para [25]. The level of planning must exceed that which would ordinarily be expected in an offence of that kind: Knight v Regina [2010] NSWCCA 51. Downloading large amounts of pornography from the internet does not mean that the offence was part of a planned or organized criminal activity: Saddler v Regina [2009] NSWCCA 83.

Some of these mitigating factors have in effect been discussed under the complementary aggravating factors: whether or not the injury to the victim was substantial (see ss. 21A (2) (g), 21A (3) (a)), and whether or not the offence was part of a planned or arganised criminal activity (s. 21A (2) (n), s. 21A (3) (b)),

The mitigating factors not related directly to the facts of the offence are for the most part considered below under the heading 'Subjective Factors'.

Where there is evidence of duress of the offender falling a short of a defence, duress may be a mitigating factor even in Commonwealth matters. Relevant factors are the form and duration of the criminal conduct, the nature of the threats made, and the opportunities the offender had to report the matter to the authorities: Tiknius v Regina [2011] NSWCCA 215 esp at para [49].

Where there is evidence that the offender is unlikely to re-offend, this should be specifically considered by the sentencing judge: Zuffo v Regina [2017] NSWCCA 187 esp at para [56].

Where an offender has good prospects of rehabilitation this should always be referred to in submissions. Where a sentencing judge fails to refer to the issue of prospects of rehabilitation, although submissions have been made on that issue, error may be established on appeal: Masters v Regina [2019] NSWCCA 233 at para [31].

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

A contrary view was taken in Le v Regina [2019] NSWCCA 181. A critical factor may be whether there was any information already known to the police.

See 'Assistance to the police', below.

Preventative Detention.
It is not permissible to impose a sentence beyond what is appropriate merely to protect society, but protection of society is a matter which can be taken into account in determining the appropriate sentence: Veen v The Queen (no. 2) (1988) 164 CLR 465 at 473.

The role of the sentencing judge is to determine the facts of the matter for himself/herself, not to try to determine the basis on which the jury reached their decision, but the judge's findings of fact must be consistent with the jury's verdict: Isaacs (1997) 41 NSWLR 374 at 377-8, Cheung v The Queen (2001) 209 CLR 1 at [14].

The Facts and De Simoni
A plea of guilty is to the essential elements of the offence only: Medcraft (1992) 60 A Crim R 181. Aggravating circumstances may not be taken into account when they amount to commission of a more serious offence of which the accused has not been convicted: The Queen v De Simoni (1981) 147 CLR 383, 5 A Crim R 329, Chow (1992) 63 A Crim R 316.

Thus the principles in De Simoni do not apply when the aggravating circumstance is maliciously inflicting grievous bodily harm, when malicious wounding is charged, because the two offences carry the same maximum penalty (Bourke v Regina [2010] NSWCCA 22 esp at para [48]). Similarly, the De Simoni principles do not prevent evidence of the use of a knife being taken into account where the charge is robbery in company, or the fact that the robbery is in company where the offence is armed robbery, because each of those charges has the same maximum penalty (and is in fact part of the same offence) under s. 97 Crimes Act): Regina v Fangaloka [2019] NSWCCA 173.

An offender will normally be bound by 'agreed facts' if his counsel consents to their tender as agreed facts: CL v Regina [2014] NSWCCA 196 esp at para [46].

An agreement between the Crown and the representatives of the offender about the appropriate non-parole period does not bind the sentencing judge although it is a relevant consideration: Ahmad v Regina [2006] NSWCCA 177 esp at para [23]. In FV [2006] NSWCCA 237 it was argued that where there are 'agreed facts', neither party can tender material contradicting those agreed facts, because of s. 191 Evidence Act. This argument was rejected because unless the court so orders, the Evidence Act does not apply in sentencing proceedings: s. 4(2) Evidence Act.

The High Court has recommended that if there is an agreement between the parties as to the basis of a plea, that agreement should be reduced to writing to avoid the risk of misunderstandings occurring: GAS and SJK v The Queen (2004) 217 CLR 198 at paras [42] to [44].

If the judge intends to sentence the accused on a different basis to that expressed in the agreed facts, the accused should be given an opportunity to withdraw his plea: Chow v DPP (1992) 28 NSWLR 593.

If an accused in a joint trial pleads on the basis of agreed facts, and later evidence is called in the trial against his former co-accused outside those facts, this later material cannot be used by the judge in sentencing the accused who pleaded: Perrin [2006] NSWCCA 64. Similarly, in sentence proceedings the evidence of a co-offender on sentence cannot be used against an offender unless that offender was present when the co-offender gave evidence and had the opportunity to cross-examine the co-offender: Le v Regina [2007] NSWCCA 330.

Aggravating and Mitigating Factors.

Proof of aggravating factors is beyond reasonable doubt, proof of mitigating factors is on the balance of probabilities: Amiouni (6/3/90 u/r), Traiconi (1990) 49 A Crim R 417, O'Neill (1979) 2 NSWLR 582, Martin [1981] 1 NSWLR 640, Storey (1996) 89 A Crim R 519 (Vic CCA ), Anderson v The Queen (1993) 177 CLR 520, 67 A Crim R 582 and Olbrich v The Queen (1999) 199 CLR 270, 73 ALJR 1550. Where the Crown has not proved an aggravating factor beyond reasonable doubt, and the offender has not proved an alternative favourable version on the balance of probabilities, the judge may proceed on the basis that it is not known which version is correct: Filippou v The Queen [2015] HCA 29 esp at para [69].

In Victoria it was held that an example of an aggravating factor is the risk that the accused will re-offend: Pickard (Victorian CCA 28/9/98, (1998) 5 Crim LN [927]). However it has been suggested in NSW that it is not necessary for the prosecution to prove the risk of reoffending even on the balance of probabilities: McNamara [2004] NSWCCA 42 esp at para [28].

Proof in Sentencing.
At common law, in sentence proceedings the rules of evidence applied: Traiconi (1990) 49 A Crim R 417. In particular the depositions were inadmissible unless consented to: Chow (1992) 63 A Crim R 316. However, under s. 4(2) Evidence Act, the law of evidence only applies in sentence proceedings if the court so directs. Such a direction must be given if a party to the proceedings requests and if in the courts opinion the fact is or will be significant in determining the sentence: s. 4(3). This unfortunate change to the common law leaves a real question about what rules do apply when a direction is not made (that is, does the common law of evidence apply, or are there no rules at all ?) It has been held that if no direction is made, the common law rules of evidence apply if there is a dispute: Bourchas (2002) 133 A Crim R 413 esp at para [61], Farkas v Regina [2014] NSWCCA 141 esp at paras [14] and [89] to [90].

Where the offender tenders documentary evidence which is not objected to and not subject to cross-examination, a judge should not reject that evidence without giving notice to the party tendering it: O'Neil-Shaw v Regina [2010] NSWCCA 42 esp at paras [26] to [27].

Where the offender gives evidence which is not challenged in cross-examination by the judge or the Crown, the judge should not reject it: Heath v Regina [2016] NSWCCA 24 esp at para [50].

Convictions must be proved by admission or by a certificate under s. 178 of the Evidence Act: Postiglione (1992) 57 A Crim R 301.

Expert Witnesses.

Statements of the offender in pre-sentence reports and reports of psychologists and psychiatrists are admissible as evidence of the truth of those statements, but technically have limited weight if the offender is not called: Quatami [2001] NSWCCA 353, and Palu (2002) 134 A Crim R 174 at para [40]. By no means by reference to these cases, is it suggested that there is anything wrong with relying on what the offender has said to various experts, in a case where calling the offender would expose him to questions in cross-examination which he could not satisfactorily answer.

If the Crown does not object to hearsay documents tendered by the offender setting out important material (such as the offender's account of the offence, or contrition), and the Crown does not either object to that material or submit that the material should be given limited weight, it may not be open to the Crown on appeal to complain that too much weight was given to that material: Elfar [2003] NSWCCA 358 at paras [26] to [29]. The evidence of a criminologist is probably inadmissible in sentence proceedings: Moore (1998) 5 Crim LN [852].

The opinions of psychiatrists should not be discounted or given less weight on the basis of matters not put to them in cross-examination: Devaney [2012] NSWCCA 285.

Sentencing statistics may be useful in determining whether a sentence is manifestly excessive or manifestly inadequate, but less so if there is only a small sample, or if individual instances of the offence vary greatly, as in manslaughter: Bloomfield (1998) 101 A Crim R 404. Spigelman CJ (with whom the other judges of the Court of Criminal Appeal agreed) reviewed the cases about Judicial Commission statistics and concluded that:

Thus statistics for offences such as armed robbery may be 'indeed useful' because the sample of offenders is large: see McCarthy v Regina [2011] NSWCCA 64 esp at para [42].

In Regina v McIvor [2010] NSWCCA 7 Howie J said that even though he thought that the range of sentences for offences for multiple armed robberies was inadequate, the offender was entitled to be sentenced in accordance with the actual range of sentences being imposed (at para [17]). These remarks were approved in Moore v Regina [2010] NSWCCA 188 at para [48], but see Hampton v Regina [2010] NSWCCA 278 (per Hulme J).

The presentation of numerical tables and graphs of comparative sentences in sentencing appeals was said to be of limited use in Hili and Jones v The Queen (2010) 242 CLR 520 esp at para [48] and The Queen v Pham [2015] HCA 39 esp at para [46]. In Regina v Skocic [2014] NSWCCA 225 (esp at para [19]) the CCA refused leave to appeal in a case where the applicant relied on statistics and no more. The use of sentencing statistics in sentencing appeals was also criticised in Hooker v Regina [2019] NSWCCA 283 esp at para [34]. However in some situations the Court of Criminal Appeal has found that a single comparable case can be strong guide as to the approprate range: Behman v Regina [2014] NSWCCA 239 esp at para [22], but the opposite view was taken in RCW v Reguna (No. 2) [2014] NSWCCA 19.

Maximum Penalties.
Sentences that approach the maximum should only be imposed when the offence comes close to the worst of its type: Ibbs v The Queen (1987) 163 CLR 447, 27 A Crim R 465, Saffron (no. 3) (1988) 39 A Crim R 123. Recently, the High Court has said that judges should avoid using the phrase 'worst category of case', but refer to whether or not the case was so grave as to warrant the maximum penalty: The Queen v Kilic [2016] HCA 48 esp at para [20]. Failure of the sentencing judge to refer to the maximum penalty is not of itself an error of law: Moon (2000) 117 A Crim R 497. If the sentencing judge incorrectly states the maximum penalty, that is an appellable error, but it may not necessarily lead to the sentence being reduced: Smith v Regina [2007] NSWCCA 138.

Totality.
Where a single judge sentences a prisoner on a number of matters, at the end the judge should look at the total to ensure that the result is appropriate. The sentence may be adjusted down by making the sentences wholly or partly concurrent or by lowering individual sentences: Mill v The Queen (1988) 166 CLR 59, 36 A Crim R 468 at 470, Todd [1982] 2 NSWLR 517, Holder & Johnson [1983] 3 NSWLR 245. The High Court in Pearce v The Queen (1998) 194 CLR 610, 72 ALJR 1416 did not change the law to prohibit lowering individual sentences as a means of achieving totality: Johnson v The Queen (2004) ALJR 616.

The principle of totality applies even if the crimes are not all for connected and contemporaneous offences: Close (1993) 65 A Crim R 55 at 59. If the offences all arise out of the same enterprise, as a matter of practice the sentences will normally be concurrent: Wilkins (1988) 38 A Crim R 445 at 449. See also Wu v Regina [2011] NSWCCA 102.

Parity will apply to assist even the first offender to be sentenced: Jones (1993) 67 ALJR 376. Parity applies even if the more culpable co-accused gets a longer sentence (Bridges (1996) PD [20]). The principle applies even if different sentences are required because of differences in culpability or the prisoners' different circumstances: Postiglione v The Queen (1997) 189 CLR 295, (1997) 71 ALJR 875.

The principles of parity will rarely apply to a case to assist an adult sentenced in an adult court seeking to argue parity with a child being dealt with in the Children's Court, even if the child is charged with a more serious offence. However, in Ruttley v Regina [2010] NSWCCA 118 the CCA said that although it will be a rare case where an adult offender can rely on parity where the co-offender is a child, the adult may be able to call in aid the principle of 'proportionality' (esp at para [58]).

Where an offender is sentenced in the District Court, and co-offenders are sentenced in the Local Court, the principles of parity still apply: Greaves v Regina [2020] NSWCCA 140 esp at paras [66] to [67].

Where some co-offenders have been sentenced on an incorrect factual basis and receive lesser sentences, that will not assist offenders sentenced on a correct factual basis to succeed on an appeal based on parity: Truong Nguyen and Nguyen v Regina [2013] NSWCCA 36. A judge sentencing an offender is not bound by the factual findings of another judge sentencing a co-offender: Baquiran v Regina [2014] NSWCCA 221 esp at para [27].

The Crown should supply the remarks of the judge sentencing of the co-accused to the accused: Brindley (1993) 66 A Crim R 204, Shortland v Regina [2013] NSWCCA 4 esp at para [110].

The principle of parity is not a principle that can be used by the Crown to argue, either at first instance or on appeal, that the offender must receive a higher sentence because of the sentence imposed on his co-offenders (Moore and Wiebe NSWCCA 11/8/1992, Radloff (1996) 88 A Crim R 26 at 31-2), Delaney v Regina [2013] NSWCCA 150 esp at paras [68] to [69].

The principles of parity apply where some or all of the sentences beng compared were indicative sentences in aggregate sentences imposed on different offenders: Bridge v Regina [2020] NSWCCA 233 esp at para [46].

Very Old Matters.
Generally the age of a matter will only mitigate if it is not the prisoner's fault: Todd (1982) 2 NSWLR 517, (1993) 66 A Crim R 37. The age of the matter will mitigate where the only reason for the delay is the prisoner's plea of not guilty: Fahda [1999] NSWCCA 267. However, it appears that delay will not mitigate where the cause of the delay is the offender's failure to volunteer his guilt, as in a case where there is a cold DNA match long after the event: see Kay [2004] NSWCCA 130. Similarly delay in historical sexual assault matters where the victims were children will not mitigate the offence: Hornhardt v Regina [2017] NSWCCA 186, esp at para [53]. Similarly delay will be less significant when it is caused by the offender, for example, when he absconds on bail: Walker v Regina [2016] NSWCCA 213.

The common law position was that if the patterns of sentencing were different at the time the offences were committed, the offender should as far as possible be sentenced in accordance with the patterns of sentencing prevalent at the time: MJR (2002) 54 NSWLR 368. (There is an important exception to this in relation to historic child sexual assault matters, as to which see the next paragraph). Where the offences pre-date the Sentencing Act (1989), the sentences should reflect the fact that at that time, non-parole periods were closer to 50% of the head sentence, rather than the 'statutory norm' of 75%: Magnuson v Regina [2013] NSWCCA 50 esp at para [145]. In Denham v Regina [2016] NSWCCA 309 the CCA accepted that where offences were committed between 1968 and 1986 the Court should take into account the then practice of imposing a non-parole period which was 35% to 50% of the head sentence: Denham v Regina [2016] NSWCCA 309.

However for child sexual assault matters, offenders must now be sentenced in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence: s. 25AA Crimes (Sentencing Procedure) Act. This provision applies to resentencing in the Court of Criminal Appeal: Corliss v Regina [2020] NSWCCA 65 esp at para [92].

Offences which have been abolished
The fact that an offence has been abolished prior to sentence is relevant to the sentencing process but it will not necessarily lead to no penalty being imposed: Orkopoulos v Regina [2009] NSWCCA 213.

Offences on Bail and Parole.
Commission of offences on bail and on parole is an aggravating factor, which will ordinarily lead to accumulation: Readman (1990) 47 A Crim R 181, Richards (1981) 2 NSWLR 464, Gale (1993) PD [245]. It has been held that committing an offence while subject to a community service order is committing an offence whilst on conditional liberty: Cicekdag (2004) 150 A Crim R 299.

Where an offence is in breach or both a bail condition and an AVO, both breaches aggravate the offence: Archer v Regina [2017] NSWCCA 151 esp at para [89].

Breach of Bond.
The act causing the breach is not to be regarded as a separate offence: Oldfield (1993) PD [407].

Where the District Court confirms a Local Court bond after an appeal from the Local Court, it does not acquire the jurisdiction to deal with a breach of the bond in the District Court: Yates v Commissioner of Corrective Services [2014] NSWSC 653.

Pleas of Guilty in state matters.

A plea entitles the accused to a discount, both because it is evidence of contrition and because of its utilitarian value in saving of court time: Bennetts (1993) PD [322], Siganto v The Queen (1998) 194 CLR 656, 73 ALJR 162, (1998) 105 A Crim R 184. In Regina v Thomson & Houlton (2000) 49 NSWLR 383, a guideline judgment on pleas of guilty, the NSW CCA suggested a discount in the range of 10% to 25% for the bare utilitarian value of the plea (that is, before genuine contrition is taken into account). The extent of the discount will depend on the time when the plea is entered- obviously the discount is less for a plea at the last possible moment, but there is still some discount. The complexity of the matter is also relevant.

Although if there is an overwhelming Crown case the plea of guilty may be little evidence of contrition, there may be evidence of contrition independent of the plea of guilty: Starface (1997) 96 A Crim R 452. The fact that the accused has confessed to a crime may not reduce the value of the plea as evidence of contrition, but increase it: Hasan [2005] NSWCCA 21 at para [22].

The discount for a plea should come off the head sentence, not the non-parole period: Tidona [2005] NSWCCA 410 at para [35].

Where there is a plea of guilty in the Local Court, or an offer of a plea which was not accepted until later, the Court should apply a discount of 25% for the utilitarian value of the plea: s. 25D (2) Crimes (Sentencing Procedure Act. This discount should also apply to a plea to a charge added after committal where the offer to plea is made as soon as practicable after the fresh charge is added: s. 25D (3) Crimes (Sentencing Procedure Act.

A plea of guilty can be said to have been entered at the first reasonable opportunity if the offender pleads guilty to something different to what is charged, apparently even if the difference could be regarded as only a matter of particulars (for example, where the defendant has been charged with possession of the wrong drug: Cameron v The Queen (2002) 209 CLR 339 at [23] to [25]). See also Gorman [2002] NSWCCA 516 at para [64].

In Haines v Regina [2016] NSWCCA 90 it was held that a judge was in error in not giving the full 25% discount for a plea where shortly before trial a psychiatrist changed his mind as to the availability of a defence of mental illness: Haines v Regina [2016] NSWCCA 90 esp at para [30].

Where there is a plea of guilty, or an offer of a plea which was later accepted, after committal, but at least 14 days before the first day of trial, of 10% if there was a plea of guilty: s. 25D (2) Crimes (Sentencing Procedure Act.

Where there is a dispute about the facts which has to be resolved by the sentencing judge, if it is resolved against the offender, the sentencing judge is entitled to reduce the discount for the plea of guilty: Donaczy v Regina [2010] NSWCCA 143, Regina v AB [2011] NSWCCA 229 esp at paras [27], [33]. Where an accused has absconded for a long period after being charged the discount can be reduced: Samuel v Regina [2017] NSWCCA 239.

Where the offender pleads guilty to a number of different counts, but at different times, the judge should not 'average' a discount for different offences: Bao v Regina [2016] NSWCCA 16 esp at para [44].

However, in Regina v Xiao [2018] NSWCCA 4 a 5 judge bench of the NSW CCA in a unanimous judgment overruled this line of authority, and held that in sentencing for Commonwealth matters, a judge was entitled to give a discount for the utilitarian value of the plea, and that judges should be encouraged to specify the amount of the discount, although failure to do so would not of itself constitute error (at paras [278] to [280]). See also Huang v Regina [2018] NSWCCA 70 esp at para [9], and Kristensen v Regina [2018] NSWCCA 189 esp at para [19].

In Jinde Huang (aka Wei Liu) v Regina [2018] NSWCCA 70 Bathurst CJ summarised these principles in relation to taking into account the utilitarian value of a pleaof guilty this way (at para [9]):

The strength of the prosecution case, and the extent to which the plea represents the offender's willingness to facilitate the course of justice, are relevant to the question of the offender's subjective contrition, but not to the utilitarian value of the plea: Beka, Ghazaoui and Hawchar v Regina [2020] NSWCCA 191 esp at para [62].

It is an error to specify a range of discount rather than a particular discount: Huang at para [9].

Where a sentencing judge does not consider the utilitarian value of the plea, error has been established, even if the sentence was imposed before the decision in Xiao: Fung v Regina [2018] NSWCCA 216 esp at paras [40] to [42].

If the discount is expressed to be simply for the plea of guilty, rather than the utilitarian value of the plea, error is establsihed, even if the amount of the discount was correct: Hong v Regina [2020] NSWCCA 225, esp at paras [6] and [12].

Where a person who is charged with murder offers to plead to manslaughter, this fact is a mitigating factor if the person is eventually found guilty of manslaughter: Oinonen [1999] NSWCCA 310. The offender should be sentenced as if he had pleaded guilty to manslaughter, even if he did not plead guilty to manslaughter in front of the jury: Cardoso (2003) 137 A Crim R 535, and Magro v Regina [2020] NSWCCA 25.

It seems that if shortly before trial, the Crown offers to accept a plea of guilty to a lesser charge for the first time (such as manslaughter in a murder trial), and this offer is accepted, the full utilitarian discount of 25% would only rarely be available: Ahmad [2006] NSWCCA 177 at paras [17] to [18].

Confession of Unknown Offences

Where the accused confesses to an otherwise unknown offence, there should be greater leniency: Ellis (1986) 6 NSWLR 603 at 604. The discount would also seem to apply where an accused confesses to a known crime where there is no evidence to link the accused with the crime: Herbert v Regina [2015] NSWCCA 172 esp at para [46]. It has been held that the amount of the 'Ellis' discount should be quantified in Panetta v Regina [2016] NSWCCA 85 esp at para [34], and Regina v AA [2017] NSWCCA 84 but for a contrary view see AG v Regina [2016] NSWCCA 102 esp at para [72].

If there is evidence of remorse (or contrition), the offender may be entitled to a discount on sentence in addition to the discount for the utilitarian value of the plea: s. 21A (3) (i). The strength of the Crown case is a factor which can be used to reduce the discount for a plea of guilty (this is not the situation for the utilitarian value of the plea- see 'Pleas of Guilty' above). As a result of amendments to the Crimes (Sentencing Procedure) Act, for contrition to be taken into account as a mitigating factor, it is necessary for the offender to establish that:

It has been held that it is not necessary for the offender to give evidence of remorse: Butters v Regina [2010] NSWCCA 1 at para [16]. Even if there is evidence of remorse, the sentencing judge is not obliged to accept it: Windle v Regina [2011] NSWCCA 277 esp at para [41]. This is especially where the only evidence of contrition comes from statements of the offender in reports where the offender does not give evidence: see for example Imbornone v Regina [2017] NSWCCA 144 esp at para [57]. However, where the offender an affidavit of the offender expressing contrition has been tendered without objection, and the offender not been required to be available for cross-examination, it is an error for a judge to find that there is no evidence of contrition: Van Zwam v Regina [2017] NSWCCA 127 esp at [6] and [113].

A plea of guilty should be taken into account in considering the extent of the offender's contrition: Hoskins v Regina [2020] NSWCCA 18 esp at para [8].

It is an error to treat a failure to identify co-offenders as indicative of an absence of remorse: Pham v Regina [2010] NSWCCA 208 esp at para [27].

A lesser penalty may be imposed if the offender supplies information to the police about the offence he is being sentenced for or any other offence: s. 23 Crimes (Sentencing Procedure) Act. One of the relevant considerations in determining the extent (if any) of the discount for assistance is the 'significance and usefulness' of the assistance (s. 23 (2) (b)). Because of the wording of s. 23 Crimes (Sentencing Procedure) Act, assistance offered to police which is not used does not entitle the accused to a discount: Regina v Yenice (1994) 72 A Crim R 234. It was held in a case where assistance was of very limited value that a quantified discount for assistance was not mandatory: Williamson [2015] NSWCCA 250 esp at para [67].

Co-operation with the authorities is also a mitigating factor in sentencing for Commonwealth offences (s. 16A (2) (h) Commonwealth Crimes Act). In Commonwealth sentecning, for co-operation to factor as a mitigating factor, itis not necessary to show that the assistance was useful for there to be a discount, although the usefullness of the information is relevant to the extent of the discount: Weber v Regina [2020] NSWCCA 103 esp at para [67].

A reduction of up to a half for the combined effect of a plea of guilty and assistance may not be inappropriate: Cartwright (1989) 17 NSWLR 243, Ellis (1986) 6 NSWLR 603, Salameh (1991) 55 A Crim R 389, Many (1990) 51 A Crim R 54, s. 23 Crimes (Sentencing Procedure) Act. In Pang (1999) 105 A Crim R 474 at 477 the CCA noted that the discount given ranged between 20% and 50% for drug couriers (see also Sukkar (2006) 172 A Crim R 151 ). The 'normal discount' has been referred to as being between 30% and 50% in Stelfox (2002) 133 A Crim R 288. It has been held that a discount of over 50% should be exceptional (Buddin J at para [53]) or that a discount of more than 60% will rarely produce a sentence which is not manifestly inadequate (Howie J at para [11]): SZ v Regina (2007) 168 A Crim R 249 .

Where there is assistance but no plea, it does not follow that the discount for assistance alone cannot exceed 25%. In Z v Regina [2014] NSWCCA 323 the CCA by majority gave a discount of 40% for assistance alone.

It is permissible to take assistance into account both in relation to determining the length of the sentence and the question of whether or not the sentence is to be suspended: Regina v Farrawell-Smith [2010] NSWCCA 144.

It seems that a sentencing judge will be in error to give the full discount for a plea of guilty and then give an additional 50% discount for assistance to police: Sharma [2002] NSWCCA 142.

The prisoner should give evidence about his intention to give evidence against the co-accused: Yenice (1994) 72 A Crim R 234. Not being completely truthful with the police may disentitle the accused to a discount: Downey (1997) 97 A Crim R 41. Where an induced statement of the offender is tendered in order to indicate the level of assistance which the offender is giving, it should not be used in order to increase the objective gravity of the offence committed by the offender: Regina v Gil Raz (NSW CCA 17/12/1992 unreported) and Regina v Bourchas (2002) 133 A Crim R 413 but see Regina v Potter (1994) 72 A Crim R 108. The approach taken in Regina v Gil Raz and Regina v Bourchas is to be preferred.

Where evidence is sought to be tendered from the authorities to indicate the value of the assistance to the authorities, the evidence should not be admitted unless the offender and his legal representatives have had access to it: HT v The Queen [2019] HCA 40 esp at paras [22], [27]and [57].

Where there is a discount for a plea, as well as a discount for assistance, the second discount comes off the already discounted figure. Thus if there is a 20% discount for the plea, and a 50% discount for assistance, the total discount is 60%: NP [2003] NSWCCA 195. However it has been suggested that in most cases it will not be appropriate to separately give a discount for the plea and for assistance: El Hani [2004] NSWCCA 162 esp at para [65].

Where there is assistance and the offender is being sentenced for a number of counts, the discount should apply to all counts: Isaac v Regina [2012] NSWCCA 195.

The discount for assistance is discretionary and in an appeal it is not enough to say that another judge might have given a different discount: Hraiki v Regina [2019] NSWCCA 140 esp at para [16].

Pleading not guilty does not act as an aggravating factor: Siganto v The Queen (1998) 194 CLR 656, 73 ALJR 162, (1998) 105 A Crim R 184, Baumer (1989) 40 A Crim R 74, Meurant (1992) PD [407]. The defence conduct of the trial cannot be an aggravating factor: White (1996) PD [244], Siganto. In particular, the fact that the accused made a false claim of innocence is not an aggravating factor: Kumar v Regina [2011] NSWCCA 139 esp at para [22] to [23]. In particular the distress of the victim in having to give evidence is not an aggravating factor: Chami [2005] NSWCCA 299 esp at para [59].

Older authorities suggested that the fact that a matter being dealt with in the District Court could have been dealt with in the Local Court is relevant to sentencing, although the sentencing judge is not obliged to sentence the appellant on the basis that that was the maximum available sentence. Failure to refer to the fact that a magistrate could have dealt with the matter may justify leave to appeal against sentence: Crombie [1999] NSWCCA 297.

Later authorities have been less enthusiastic about this ground of appeal. It was held in Palmer [2005] NSWCCA 349 (esp at para [15]) that failure to refer to the possibility of summary disposal will not always be indicative of error, particularly if the sentence is not manifestly excessive. In Zreika v Regina [2012] NSWCCA 44 (at para [83]) McClellan CJ at CL said that possibility of summary disposal would only be a relevant factor in ' a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which ought otherwise have been prosecuted in the Local Court.' See also Regina v Van Ryan [2016] NSWCCA 1, and Baines v Regina [2016] NSWCCA 132.

It is not a mitigating factor that a matter could have been dealt with in the Children's Court: DR v Regina [2017] NSWCCA 37.

Entrapment can be a mitigating factor if there is a real possibility that the offence would not have been committed if the police had not in some way facilitated it: Taouk (1993) 65 A Crim R 387 at 403, Mandica (1980) 4 A Crim R 34 at 41, (1993) 67 ALJ 722 at 741. It will normally be necessary for the defendant to give evidence: Chan [1999] NSW CCA 103.

The court can take into account matters placed on a Form 1 when sentencing for 'the principal offence': s. 32 Crimes (Sentencing Procedure) Act. The 'principal offence' should be clearly stated on the Form One, and the matters on the Form One are to be taken into account only in the sentence for that offence: see Tomich (2002) 127 A Crim R 234.

When taking offences into account on a Form One, the court is required to ask the offender:

Putting matters on a Form One does not increase the objective seriousness of the offence on the indictment: RO v Regina [2019] NSWCCA 183 esp at paras [55] and [56].

There was a conflict in the authorities as to whether putting matters on a Form One led to a lesser penalty, or only affected the potential maximum penalty. The latter view was taken in Vougdis (1989) 41 A Crim R 125, Dawson [2000] NSWCCA 39, but see Lemene (2001) 118 A Crim R 131, and Harris (2001) 125 A Crim R 27. This conflict in the authorities was resolved in Attorney General's Application No 1 of 2002 [2002] NSWCCA 518, (2002) 56 NSWLR 146. It was held that the offender is not punished for the matters on the Form One, the effect of putting matters on the Form One was that the offences were given a 'significantly lower salience in the sentencing process' (at para [66]). However, where there are matters on a Form One, the court can give more weight to personal deterrence and retribution (at para [42]). It is now very clear that it is not an error to increase the otherwise appropriate sentence by reason of of offences on a Form One: Abbas and Ors v Regina [2013] NSWCCA 115 at para [22], and Regina v Grover [2013] NSWCCA 149 esp at paras [57] to [59].

Where there is a late plea for matters to be taken into account on a Form One, that does not affect the discount to be given for the utilitarian value of an early plea on the matters for which the offender is actually being sentenced: Gordon v Regina [2018] NSWCCA 54 esp at para [96].

It is not necessary to specify the amount by which a sentence has been increased by reason of the matters on the Form One: Sydney [2004] NSWCCA 63. It is an error for a judge to specify the sentence for the principal offence, and then add a extra period for the matter(s) on the Form One: Huang v Regina [2019] NSWCCA 144 esp at para [44].

In a charge of conspiring to do an act in preparation for a terrorist act, in Khalid v Regina [2020] NSWCCA 73 Bathurst CJ (with whom Bell P and Harrison J agreed) said (at para [80]):

The merits of the particular terrorist organisation are irrelevant in sentencing for the offence of being a member of a proscribed terrorist organisation: Regina v Lelikan [2019] NSWCCA 316 esp at para [122].

Murder.

The maximum penalty for murder is life imprisonment: s. 19A Crimes Act. Where the victim is a police officer and murder was committed while the victim was acting in the course of his duty, or in retaliation for his so acting, and the accused knew or ought to have known he was a police officer, there is a mandatory sentence of life imprisonment: s. 19B Crimes Act.

Where a child under the age of 16 commits a murder and is still under the age of 18 when sentenced, and the court is of the opinion that it cannot satisfactorily assess whether the offender is likely to re-offend, or the prospects of rehabilitation, the court may impose a 'provisional sentence': s. 60B Crimes (Sentencing Procedure) Act. The court is to conduct a progress review when it considers appropriate but at least once every 2 years: s. 60E Crimes (Sentencing Procedure) Act. The court may impose a final sentence, the non-parole period of which is not to exceed the non-parole period of the provisional sentence: s. 60G Crimes (Sentencing Procedure) Act. The final sentence must be imposed before the expiration of the 'iniyial custody period', which is the shorter of 5 years after the provisional sentence was imposed, or a year before the non-parole period of the provisional sentence expires : s. 60 H Crimes (Sentencing Procedure) Act.

The range minimum term for a husband killing a wife is 11-16 years with an average of 14 years: Nixon (1996) PD [108]. A man who set fire to his wife, killing her, was sentenced on appeal to a minimum term of 16 years: Everett (1996) PD [167]. In Toki [2003] NSWCCA 125 it was said that a head sentence of more than 20 years was unusual in a 'relationship' murder that was not premeditated.

In child killing cases, uncharged acts of violence by the offender on the child in the period leading up to the killing are relevant to the objective gravity of the LN v Regina [2020] NSWCCA 131.

The fact that the accused has dismembered the deceased after death is a relevant aggravating factor to sentencing for murder: Richardson v Regina [2013] NSWCCA 218 esp at paras [81] to [84].

Generally where there is no evidence of an intention to inflict GBH the objective gravity is less than the standard non-paole period but that is not always so: Tran v Regina [2011] NSWCCA 116.

It is not the case that an additional term of life will only be imposed in a most serious case of murder: Spinks (1997) Crim LN [749].

Sentences of life imprisonment should be reserved for the worst category of case: s. 61(1) Crimes Sentencing Procedure Act (which basically restates the common law: Harris (2000) 50 NSWLR 409). Section 61 states that a life sentence should be imposed if level of culpability in the commission of the offence is so extreme that the community interest in:

can only be met by the imposition of that sentence. A summary of the decisions about the effect of s. 61 can be found in Regina v Knight [2006] NSWCCA 292 at para [23]. Life sentences have been imposed in cases where (please note some of the cases fall in more than one category):

Where the objective gravity of the murder would not merit a life sentence, the existance of a criminal record (even for another murder) does not entitle the judge to impose a life sentence: Aslett [2006] NSWCCA 360 esp at [47] to [50]. However, this is not the case where a number of murders are committed as part of the one course of conduct: Adanguidi (2006) 167 A Crim R 295 esp at para [32].

In Johnson [2014] NSWSC 1254 at para [13] Hamill J set out a non-exhaustive list of relevant factors in assessing the objective gravity of an offence of accessory after the fact to murder:

In Farroukh (1996) PD [291] an accessory after the fact to murder (silence and washing blood from clothes) had her sentence increased from 6 months to 18 months. For a useful case on accessory after the fact to murder, see Dileski (2002) 132 A Crim R 345, a case where a person who pleaded guilty and assisted the authorities was sentenced to 2 years with a non-parole period of 12 months. Assisting in the disposal of a body after a murder is regarded as placing the offence at the more serious end of the spectrum: TT v Regina [2014] NSWCCA 206 esp at para [12].

It has been said that manslaughter is 'almost unique in its protean character as an offence', ranging from a joke gone wrong to something just short of murder: per Spigelman CJ in Regina v Forbes (2005) 160 A Crim R 1 at para [133]. Only in rare cases will a sentence other than a full-time custodial sentence be the appropriate sentence for manslaughter: Regina v Carroll [2008] NSWCCA 218. In relation to manslaughter by way of 'unlawful and dangerous act,' a total sentence of 10 years was described by the NSW CCA as being 'at the top of the range of sentences for this offence': Bryant [1999] NSWCCA 181.

There is a useful summary of manslaughter cases in Regina v Forbes [2005] NSWCCA 377 where it is noted that the 'upper end' for head sentences for manslaughter is about 10 to 12 years (at para [191]).

In Alexander (1995) 78 A Crim R 141 Hunt J said that the 3 particular matters which have to be taken into account in provocation cases are:

For a case containing a review of unlawful and dangerous act manslaughters, many involving a single punch, see KT v Regina [2008] NSWCCA 51 esp at para [36].

Recently there has been a sharp upward movement in sentences for 'one punch manslaughters':

'Momentary inattention' has been defined widely to include driving which is not driving with a selfish disregard to the safety of others, or recklessly, or under the influence of drugs or alcohol: Pyritz (NSW CCA 23/11/98). Not all cases can be categorized as either cases of abandonment of responsibility or momentary inattention; those are two extremes on a continuum of culpability (Khatter [2000] NSWCCA 32, Foster [2001] NSWCCA 215). A more lenient approach was taken in Mansour [1999] NSWCCA 180.

Where the offender's moral culpability is high, and where there is a plea of guilty, a full-time custodial sentence of less than 3 years (in the case of death) and 2 years (in the case of GBH) would not generally be appropriate: Whyte (2002) 55 NSWLR 252, modifying Jurisic (1998) 101 A Crim R 259, (1998) 45 NSWLR 209. It is an error to treat these sentences as a applying to the a case where the moral culpability is not high, that is, where there were at least one but usually more aggravating factors: Hedges v Regina [2011] NSWCCA 263 esp at para [64].

Being a disqualified driver and on bail for other offences is irrelevant to the question of 'abandonment of responsibility': Rosenthal v Regina [2008] NSWCCA 149.

There is a useful summary of sentences for reasonably bad culpable drivings in Vukic [2003] NSWCCA 13 and also in Vale [2004] NSWCCA 469. In that case a sentence of 10 years with a NPP of 6.5 years (at the time the highest sentence for a single count of culpable driving) was reduced to 9 years with a NPP of 5 years 9 months. There is a summary of very bad culpable driving cases in Bombadieri [2010] NSWCCA 161.

The youth of the accused will not necessarily lead to the general deterrence having less weight for this offence: Slattery (1996) 90 A Crim R 519, MacIntyre (1988) 38 A Crim R 135 at 139.

The Court of Criminal Appeal has also said that where an offender is an older person (say in his 60s) with a good driving record that should be taken into account in his favour: see Preston v Regina [2011] NSWCCA 25 esp at paras [44] to [45] and

There is a collection of case tables for the offence of dangerous driving occasioning death or grievous bodily harm at the Public Defenders' website.

The NSW Court of Criminal Appeal has declined to hand down a guideline judgment about the offence of assault police, but has stressed that the offence is a serious one requiring a significant degree of deterrence: Attorney General's Application No 2 of 2002 (2002) 137 A Crim R 196.

Butters [2010] NSWCCA 1- loss of eye- 4 years with 3 years NPP Maliciously inflict grievous bodily harm with intent

In sentencing for riot, the actual role played by each accused is relevant, not simply what all of the rioters did: Maher (2005) 154 A Crim R 457 .

Indecent assault.
It is overstating the case to say that with indecent assault a gaol term is inevitable unless there are special circumstances: O'Sullivan (20/10/89 u/r), Baxter (1994) PD [227]. It is unnecessary to accumulate when all matters arise from the same incident: Pollock (1993) 67 A Crim R 166.

Aggravated indecent assault has a standard non-parole period of 5 years. Cases after the introduction of the standard non-parole period

It has been held that the following matters are relevant to the determination of an appropriate sentence for the possession of child pornography (in Regina v Gent (2005) 162 A Crim R 29 at para 99):

See also Saddler v Regina [2009] NSWCCA 83 which held that the possession of large amounts of graphic child pornography (including images involving cruelty) did not attract the aggravating factors of gratuitous cruelty or that the offence was part of a planned or organized criminal activity. In Minehan v Regina [2010] NSWCCA 140 the CCA set out the following non-exhaustive list of factors to consider for sentencing for possession of child pornography (at para [94]):

It has been held that unless exceptional circumstances exist, a sentence of immediate imprisonment is warranted for an offence of child pornography: Regina v De Leeuw [2015] NSWCCA 183 esp at para [72].

The fact that the complainant in a sexual assault was married or in a relationship with the offender is not a mitigating factor: SC v Regina [2019] NSWCCA 25 esp at paras [100] to [101].

Where the motivation for the penetration is not sexual gratification, the objective gravity is not reduced: Regina v Toohey [2019] NSWCCA 182.

Although absence of consent is not an element of sexual intercourse with a child, the presence or absence of consent is relevant: Dawkins v Regina [2018] NSWCCA 278 esp at para [34].

The High Court has said in Dinsdale v The Queen (2000) 202 CLR 321, (2000) 175 ALR 351, [2000] 115 A Crim R 558 that although ordinarily or commonly calling for a full-time custodial sentence, there is no invariable rule (see especially Gleeson and Hayne JJ at para [18] and Kirby J at para [68]). It is significant that there is no reference to the need to show that there are 'special circumstances'. A majority of the NSW Court of Criminal Appeal has held that there is no canon of law which mandates that digital penetration is less serious than penile penetration: Regina v Hibberd [2009] NSWCCA 20. It is difficult to reconcile this decision with the decision of the High Court in Ibbs v The Queen (1987) 163 CLR 447. In other decisions the Court of Criminal Appeal has said that generally penile intercourse is more serious than digital: see MH v Regina [2011] NSWCCA 230 esp at paras [36] to [39].

Slack [2004] NSWCCA 128- digital penetration with a girl 11 to 12 on a single night- 2 years head sentence (1years NPP)

MJR (2002) 54 NSWLR 368 - digital penetration of 2 daughters over 7 years- 6 years 6 months, 5 years NPP .

The fact that sexual assault charges are 'representative charges' of a broader pattern of sexual assault is not an aggravating factor, but it entitles the court not to extend the leniency which would apply to an isolated incident: Holyoak (1995) 82 A Crim R 502, Reiner (1974) 8 SASR 102, Regina v JCW (2000) 112 A Crim R 466, and AK v Regina [2016] NSWCCA 238 esp at paras [67] and [68]. This approach has not been followed in Victoria (see for example Regina v CJK [2009] VSCA 58 esp at para [59] to [60]). Basten JA expressed doubt about the approach in Giles v DPP [2009] NSWCCA 308, but the other judges in that case either did not agree (RS Hulme J) or thought the matter should be considered only after full argument (Johnson J). It is likely that this matter will need to be decided finally in the High Court.

Prior good character is of little weight in cases of sexual assault on children: Levi (1997) 4 Crim LN [697].

Cases where there is a standard non-parole period: MLP (2006) 164 A Crim R 93 - single count, 9 year old complainant, sentence after trial- 16 years (11 years NPP)

Some useful cases of specially aggravated detain for advantage where the victim has been detained for hours and assaulted:

The fact that the offender broke and entered with intent to steal, rather than commit an offence such as sexual assault or violence, is relevant to an assessment of the objective gravity of the offence: Cohen v Regina [2011] NSWCCA 165 esp at para [43].

Being in company as a circumstance of aggravation for break enter and steal may be a circumstance of aggravation of a relatively low order in the hierachy of aggravating circumstances: Cohen v Regina [2011] NSWCCA 165 esp at para [44].

The overall scope and purpose of the car rebirthing, the share of the profits, and the time over which the activities were conducted, are relevant to sentencing for car rebirthing: see Regina v Tannous, Fahda and Dib [2012] NSWCCA 243 esp at para [40].

Armed Robbery.

In a guideline judgment, the NSW CCA has held that in a category of cases of armed robbery where there are the following factors:

The guideline judgment is for a late plea where there would only be a 10% discount for the plea: Hemsley [2004] NSWCCA 228 at para [30]. It was held that non-custodial sentences were only appropriate in 'most exceptional circumstances': Valenti (1989) 46 A Crim R 23, Henry at para 113. However the CCA from time to time has interpreted 'most exceptional circumstances' extremely widely (see for example Blackman and Walters [2001] NSWCCA 121).

There is no standard non-parole period for armed robbery. It may be an error for the sentencing judge to globally assess a number of counts of armed robbery with notional mid-range offence rather than comparing each offence with the paradigm offence described in Henry: Regina v Kelly [2010] NSWCCA 259.

Robberies can be regarded in escalating seriousness with the carrying of a firearm, the firearm being loaded, the weapon being fired, and the weapon being aimed at someone while fired: Readman (1990) 47 A Crim R 185.

Regrettably it has been held that the guideline judgment for armed robbery, Henry (1999) 46 NSWLR 346, 106 A Crim R 149 (discussed immediately above) also applies to robbery in company: Murchie (1999) 108 A Crim R 482 and Greigs (2000) 111 A Crim R 233. However in Frahm v Regina [2009] NSWCCA 249 the Court said that the absence of a weapon such as a knife or a gun menat that the guideline judgment was less significant and discussed other cases to the same effect (esp at paras [14] to [17]). In Smith [2004] NSWCCA 95 it was held that the guideline had no application to the offence of demand money with menaces.

It has been also held that the guideline applies to assault in company with intent to rob: Stanley [2003] NSWCCA 233.

It has been held that it is 'slightly' overstating the case to say that there must be a custodial sentence for robbery except in exceptional circumstances, although generally a custodial sentence will be appropriate: Fraser [1999] NSWCCA 212.

In sentencing for selling firearms it is permissible to take into account the fact that the offender must have known that the weapons would be used in an illegal activity: KC v Regina [2009] NSWCCA 110.

Escape.
The head sentence for an unremarkable escape was held to be 2 years in Regina v Thompson (NSW CCA u/r 21/5/86) and Stuart (1990) 47 A Crim R 293, but see Sinnett (1996) PD [134] and Steff (1997) 96 A Crim R 1. Later cases have said that the 2 year period is no a minumum and sentences as low as 6 months have been upheld: see Regina v Robinson [2000] NSWCCA 182 esp at para [29] and Regina v Horne [2004] NSWCCA 8 esp at para [37]. An appeal against a sentence of 2 years with a non-parole period of 18 months for an 'unremarkable escape' was rejected in Mihail v Regina [2010] NSWCCA 104. The sentence must be cumulative: s. 57 Crimes (Sentencing Procedure) Act.

There are tables of cases for this offence available on the Public Defenders' website.

Embezzlement and Breaches of Trust.
Normally a breach of trust involving money will result in a gaol sentence, but each case must be considered individually: Chaloner (1990) 49 A Crim R 370, Gillan (1991) 54 A Crim R 475 With such offences there is often a large gap between minimum term and additional term: Corbett (1991) 52 A Crim R 112. Repayment of the monies stolen from the prisoner's own funds at personal hardship can be exceptional circumstances leading to a reduced prison term: O'Keefe (1992) 60 A Crim R 201.

Social Security Fraud.
Social security fraud requires gaol unless there are very special circumstances: Purdon (NSW CCA u/r 27/3/97). Such circumstances include where there are immediate admissions, repayments are made for a substantial period, and the prosecution is delayed: Winchester (1992) 58 A Crim R 345, Blair (20/11/87 u/r).

Concurrent sentences may not always be appropriate for supply drugs and proceeds of crime offences, but may be appropriate if it isw clear that the money was the proceeds of the particular supply: Connell v Regina [2019] NSWCCA 70 esp at para [45].

Motor Vehicle Fraud.
Range of sentences between bond and 1 year: Hajjo (1992) PD [352].

Drug Trafficking: the suggested rule that there be a full-time custodial sentence in the absence of exceptional circumstances

Older decisions have said that only in exceptional circumstances will a non-custodial sentence be appropriate for drug traffickers, even if not for profit: Regina v Clark (NSW CCA u/r 15/3/1990). However this only applies to trafficking in the sense of more than one occasion: Bardo (14/7/92 u/r), Youssef v Regina [2014] NSWCCA 285 esp at para [28].

The rule was restated as requiring full-time gaol if there is drug trafficking 'in any substantial degree': Day (1998) 100 A Crim R 275. Rothman J said in Regina v Gip (2006) 161 A Crim R 173 that the sort of facts which might lead to a finding that a full time custodal sentence must be imposed would be an agreement to supply on another occasion, participation in a process which envisages supply on more than one occasion, or participation in a syndicate at para [43]. It was held that it is an error for a judge to to state that a full-time custodial sentence must be imposed for the supply of drugs (without a finding that the offender was involved in the supply of drugs to a substantial degree) unless there are exceptional circumstances: Scott v Regina [2010] NSWCCA 103 esp at para [30].

More recently the Court of Criminal Appeal has doubted whether the suggested that the suggested principle that in drug trafficking cases a non-custodial sentence is only appropriate in exceptional cases was ever good law: Robertson v Regina [2017] NSWCCA 205 esp at para [101]. However, it was likely that a sentence of imprisonment ought to be imposed unless there is some unusual circumstance (Robertson at para [105]).

In Regina v Parente [2017] NSWCCA 284 a 5 judge bench of the Court of Criminal Appeal held that the 'principle' that drug trafficking 'in any substantial degree' should normally lead to a full-time custodial sentence in the absence of exceptional circumstances should no longer be applied (esp at para [106]).

Where the 'supply' is in fact a rip off and there was never intention to actually supply drugs, the principles applicable to drug dealers do not apply: Kalpaxis (2001) 122 A Crim R 320 (but compare Yaghi (2002) 133 A Crim R 490). The criminality involved is 'somewhat less' than in cases where there was a genuine plan to supply drugs: Khoury v Regina [2020] NSWCCA 190 esp at paras [67] to [68].

There have been conflicting decisions about whether it is relevant that the drugs are sold to undercover police officers, and the drugs are not disseminated into the community. The better view would seem to be that this is relevant as a mitigating factor: Regina v DW [2012] NSWCCA 66 esp at para [117]. A different view was taken in Cam Huynh Giang v Regina [2017] NSWCCA 25.

The purity and quantity of the drugs are important factors in determining the objective gravity of the drug offences: Chong v Regina [2017] NSWCCA 185 at para [20]. The fact that state drug offences refer to the 'admixture' or impure weight of the drug, the pure weight of the drug supplied is relevant to sentencing: El Kheir v Regina [2019] NSWCCA 288 esp at para [40].

A judge is not entitled to conclude that the purity of the drug supplied is in excess of normal street purity in the absence of evidence about what normal street purity is: Farkas [2014] NSWCCA 141, esp. at para [15] to [16].

The question of whether the supply was a single occasion or part of a history of supply, and of whether producing cannabis or supplying had a commercial purpose, are matters where the onus of proof is on the Crown to prove beyond a reasonable doubt. The question of whether the accused is a drug addict is a matter of mitigation where the onus of proof is on the balance of probabilities: Olbrich (1999) 199 CLR 270, 73 ALJR 1550. Rehabilitative factors may suffice: Hall (11/6/91, u/r).

Where an offender is a 'runner' or a street level supplier, the fact that he/she works for a sophisticated organisation is noit an aggravated factor: Kay v Regina [2019] NSWCCA 275 esp at para [25].

Where more than one type of drug is supplied, it is not necessary for the sentences to be wholly or nearly wholly accumulated: Robinson v Regina [2012] NSWCCA 26.

This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.

The Court of Criminal Appeal has described a head sentence of 12 years for supplying the large commercial quantity of heroin as being 'at the top of the range': Yaghi (2002) 133 A Crim R 490 at para [53].

There are tables of cases for this offence available on the Public Defenders' website.

A sentencing guideline has been handed down for import heroin and import cocaine: Regina v Wong and Leung (1999) 48 NSWLR 340, 108 A Crim R 531, based partly on El Karhani (1990) 51 A Crim R 123. It appears that the tariff takes into account the discount which formerly from section 16G Commonwealth Crimes Act (the discount for the fact that NSW has no remissions, but which has been repealed): Irusta (2000) 117 A Crim R 6.

The tariff sets out head (total) sentences for couriers and people low in the organisation as follows:

This guideline was criticised by the High Court in Wong and Leung v The Queen (2001) 207 CLR 584, partly because too much emphasis was given to the weight of the drug involved (see esp. paras [72] to [73]). Despite this fact, and the abolition of s. 16G of the Commonwealth Crimes Act (relating to giving a discount to take into account the repeal of remissions), the ranges suggested in Regina v Wong and Leung (1999) 48 NSWLR 340 remain a useful sounding board, and there should not be a mathematical increase in the ranges by 50%, although the abolition of s. 16G must be born in mind in having regard to those ranges: Rivadavia (2004) 61 NSWLR, 63, 149 A Crim R 1 esp at [84]. Differently constituted benches of the CCA have suggested that the guideline judgment is no longer a useful guide: Youssef v Regina [2011] NSWCCA 104.

Where a sentencing judge departs from the guideline judgment, the reasons for the departure should be 'articulated with some precision' and justified by reference to the subjective facts: Ceissman (2001) 119 A Crim R 535. A majority of the NSWCCA in DPP v De La Rosa [2010] NSWCCA 194 reconsidered cases of importation in the wake of the abolition of s. 16G and came up with the following analysis. In relation to the importation of the commercial quantity of narcotics, the following ranges of sentences were observed (this is very much in summary form):

(1) importation in the tens or hundreds of kilograms, value in the millions of dollars, no assistance, principal or part of the organising committee: head sentence in range 25 years to life, NPP in range 8.5 to 30 years;

(2) as in (1) but upper management role and plea of guilty: head sentences in the range 18 to 24.5 years, NPP in range of 10 to 16 years

(3) quantity of drugs below 7 kg, mid-range role, discount for assistance,: head sentences in the range 8-15 years, NPP in range 4 to 11 years

(4) lower role, often good character and no prior convictions: head sentence range 6.25 years to 8 years, NPP from 3 to 4.5 years.

The accused's position in the drug hierarchy is always relevant: Raz (NSW CCA u/r 17/12/92). If there is no evidence of whether or not the prisoner is a 'mere courier' or not the judge is not obliged to sentence him on the basis that he is a 'mere courier': The Queen v Olbrich (1999) 199 CLR 270.

Cocaine is no longer to be regarded as less serious than heroin: Ferrer-Esis (1991) 55 A Crim R 231, Gibson (1991) 56 A Crim R 1, Pereira (1992) 66 ALJR 791. A guideline judgment has been handed down for importing cocaine and heroin: Regina v Wong and Leung (1999) 48 NSWLR 340, 108 A Crim R 531.The tariff it established is set out in the paragraph immediately above under Import Heroin.

Where there is a single instance of supplying a small amount of cocaine, it is not correct to say that there must be a custodial sentence in the absence of exceptional circumstances: Depalo [2003] NSWCCA 80.

Recent sentences for cocaine:

For large scale imports of cannabis (5k plus) average sentences are 4 years for guilty pleas and 5 years for not guilty: Van de Heuval (1992) 63 A Crim R 75.
Recent cases:

It is not true to say that there must be a custodial sentence for cultivation: Moy (1995) PD [270].

There are tables of cases for this offence available on the Public Defenders' website.

Controlled Deliveries.
Where there is a controlled delivery of a small amount, but evidence of an intention to have a larger amount, you are sentenced as for the larger amount: Laurentiu (1992) 63 A Crim R 402, Mai and Tran (1992) 60 A Crim R 49. However the maximum sentence is limited by the amount of the actual drug: Laurentiu.

Having a long record does not act as an aggravating factor of the objective gravity of the offence but can lead to refusing to mitigate: Baumer (1989) 40 A Crim R 74. Having a record does not allow the court to impose a sentence which is disproportionate to the gravity of the offence, but having a record may mean that retribution, deterrence and protection of society may indicate that a more serious sentence is warranted: Johnson [2004] NSWCCA 76. This continues to be the case for offences to which s. 21A Crimes Sentencing Procedure Act applies: Johnson [2004] NSWCCA 76.

It is incorrect to say that that the record aggravates the offence: Blair (2005) 152 A Crim R 462. It is necessary for the judge to refer to the way in which the offender's criminal history is taken into account, rather than simply referring to s. 21A(2)(d): Walker [2005] NSWCCA 109 at para [32].

Where an offender has been found guilty of an offence in the Children's Court, but no conviction has been recorded, and the offender is being sentenced for an offence, but did not commit another offence within 2 years of the offence in the Children's Court, evidence of the earlier finding of guilt is inadmissible: s. 15 Children (Criminal Proceedings) Act. See also Siddiqui v Regina [2015] NSWCCA 169 esp at para [63].

Good Character.

The fact that an offender does not have a record of previous convictions is a mitigating factor (s. 21A (3) (e) Crimes (Sentencing Procedure) Act). The accused's prior good character is a mitigating factor (s. 21A (3) (f) Crimes (Sentencing Procedure) Act). Prior good character is not a mitigating factor in sentencing for child sexual assault offences where the court is satisfied that was of assistance to the offender in committing the offences: s. 21A (5A).

It is an error to treat the offences for which the offender is being sentenced as resulting in the offender not being to have any benefit from no prior convictions and prior good character: Lozanovski [2006] NSWCCA 143 esp at paras [10] to [12]. Prior good character is less relevant in offences which involve a breach of trust: Ryan (1998) 5 Crim LN [829]. These include corruption offences: Regina v Obeid (No. 12) [2016] NSWCCA 1815 esp at para [94]. Previous good character always entitles an offender to some leniency: Ryan v the Queen (2001) 206 CLR 267.

Evidence of good character has less weight in drug offences (Regina v Leroy [1984] 2 NSWLR 441 at 446-7) but this principle has less application in cases of domestic supply where there is no evidence that the person was chosen because of good character (that is, cases other than drug imporrtations): Chong v Regina [2017] NSWCCA 185 esp at para [28].

The Court of Criminal Appeal has said that there is no principle that good character has less weight in firearms offences (Regina v Athos [2013] NSWCCA 205 esp at para [44], but there is authority that it has less weight in the following offences (Regina v Athos [2013] NSWCCA 205 at para [36]:

Children.
In sentencing children general deterrence and personal punishment must give way to rehabilitation: Smith (1964) Crim LR 70, Ford (unreported 22/3/88 ), GDP (1991) 53 A Crim 112, XYJ (1992) PD [133], and KT v Regina [2008] NSWCCA 51 esp at paras [22] to [25]. The principle applies less strongly when the offender is close to 18 years old: Tran [1999] NSWCCA 109. This applies less strongly where offences are those usually committed by adults: Pham and Ly (1991) 55 Crim R 128. In KT v Regina [2008] NSWCCA 51 McClellan CJ at CL said important factors in determining whether a young offender had engaged in 'adult behaviour' were whether weapons were used, whether there was planning or premeditation, whether the offender had an extensive criminal history, and the nature and circumstances of the offence (at para [25]). The principles may continue to have effect even after an offender has turned 18: Regina v BP [2010] NSWCCA 159 at para [5].

There is authority for the proposition that advanced age is a relevant factor on sentencing, because imprisonment will bear more heavily on an older offender, and there is a risk that he will never walk free: Holyoak (1995) 82 A Crim R 502 at 507-8.

Basten JA expressed the view that these factors were not relevant to sentencing without reference to any authority in Cameron v Regina [2017] NSWCCA 229 at paras [12] to [15].

In Regina v Jackson [2020] NSWCCA 230 Rothman J said that the advanced age of an offender may be relevan to sentencing in a number of ways, including that it may render imprisonment more onerous, and it may be relevant to give the offender an opportunity for rehabilitation in the community after he is released from prison (at paras [74] to [75]). In Scott v Regina [2020] NSWCCA 81 Hamill J said that 'An offender's advanced age and ill-health are always relevant to the length of a custodial sentence'' (at para [167]).

Effect on Family.
The effect of a sentence on the accused's family ('third parties') is only mitigation in 'truly exceptional' circumstances: Day (1998) 100 A Crim R 275, Wayne (1992) 62 A Crim R 1, Edwards (1996) 90 A Crim R 510. However recently it has been held that although exceptional circumstances are required before the effect on an offender's family will be taken into account as a specific matter leading to a substantial reduction or elimination of imprisonment, a sentencing judge can take into account the effect of imprisonment on the offender's family as part of the general mix of subjective matters: Girard [2004] NSWCCA 170 and Regina v Nguyen (2006) 166 A Crim R 124 especially at paras [27] to [29]. This is also the case in Commonwealth offences, particularly because of s. 16A (2) (p) of the Commonwealth Crimes Act : see DPP v Pratten (No. 2) [2017] NSWCCA 42 esp at paras [55] to [57] and Kaveh v The Queen [2017] NSWCCA 52 esp at para [6].

Pregnancy and Children.

Pregnancy is a significantly mitigating factor: Ihn (1994) PD [117]. A custodial sentence on a woman with children will bear more heavily: Leonard (1996) PD [208]. The relevance of the fact that an offender is the mother of a young child is undoubted: HJ v Regina [2014] NSWCCA 21 esp at para [66].

Cross Roads.
Even with an older person who has a long record, the sentencing judge may take the view that the person is at the cross-roads and that leniency at that point may lead to reform: Osenkowski (1982) 5 A Crim R 394.

Aboriginality.
The same sentencing principles apply to Aboriginals as to other members of the community, but Aboriginality is a relevant factor: Fernando (1992) 76 A Crim R 58. In that case Wood J said that:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing courts should ignore those facts which exist only by reason of membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the use of alcohol by members of the Aboriginal society or their resort to violence when heavily effected by it, the courts must be very careful in the pursuit of their sentencing policies to not deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or a mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, whilst it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

See also Bugmy v The Queen (2013) 249 CLR 571 esp at paras [37] to [40]. This case is also authority for the proposition that the Fernando principles do not diminish over time (at para [42]).

The principles in Fernando apply even if the prisoner has a long record: Cook [1999] NSWCCA 234, Peterson [2000] NSWCCA 47.

The fact that the offender is an Aboriginal of itself is not a mitigating factor without evidence that the offender was affected by the social and economic problems of Aboriginal communities: Pitt [2001] NSWCCA 156, Newman and Simpson (2004) 145 A Crim R 361, Egan v Regina [2018] NSWCCA 235.

The principles in Fernando may be restricted to Aboriginals in a remote or rural setting: Ceissman (2001) 119 A Crim R 535, [2001] NSWCCA 73. The principles may have little effect in the case of Aboriginals not from an isolated rural background, and not alcohol related background: Morgan (2003) 57 NSWLR 533 (this case quotes the Fernando principles in full). However in Kennedy v Regina [2010] NSWCCA 260 the court rejected an argument that Fernando principles did not apply to an offender because he did not come 'a remote part of the community' (at para [57]) and in particular paragraph (E) quoted above may apply to non-Aboriginal offenders (at para [53]).

A sentencing judge does not have a 'discretion' whether or not to apply the principles in Bugmy: see Regina v Irwin [2019] NSWCCA 133 esp at paras [1] to [4].

Intellectual disability and the Mentally Ill.

General deterrence cannot be justified with Doffenders with an intellectual disability: Kilmartin (1989) 41 A Crim R 22. General and specific deterrence play little role in sentencing the mentally ill: Anderson [1981] VR 155, (1980) 2 A Crim R 379, Roadley (1990) 51 A Crim R 336, Letteri (1992) PD [74], Scognamiglio (1991) 56 A Crim R 81, Champion (1992) 64 A Crim R 244, B (1993) 68 A Crim R 545.

It is not always necessary to establish a link between the mental illness and the crime: Engert (1996) 84 A Crim R 67, Benitez (2006) 160 A Crim R 166.

Mental illness as a mitigating factor is not limited to the mitigating factor s. 23A (3) (j) of the Crime (Sentencing Procedure) Act, which says that mitigating factors include that 'the offender was not fully aware of the consequences of his or her actions because of the offender's age or disability': see Regina v Watts [2010] NSWCCA 315 esp at para [24].

Sperling J. summarised the significance of mental illness in sentencing this way in Regina v Hemsley [2004] NSWCCA 228 at paras [33] to [36]:

33 Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

36 A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].

More recently, McClellan CJ at CL summarised the principles this way in DPP (Cth) v De La Rosa [2010] NSWCCA 194 (at para [177]):

177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ at [23] - [24].

It is suggested that wherever mental illness is relied upon as a mitigating factor, it should be submitted that the mental illness reduces moral culpability. Where a submission has been made that the defendant's mental illness reduces his moral culpability, if that submission is not either accepted or rejected in the remarks on sentence, on appeal error may be established (see Masters v Regina [2019] NSWCCA 233 esp at para [26]). See also Isbitzki v Regina [2019] NSWCCA 247 esp at para [43].

The same principles don't apply to psychopaths (Steele (1994) PD [221]) or where loss of control caused by drinking to excess: Powell (1993) PD [137]. Where a mentally ill offender has not been taking medication prescribed to treat his mental illness, less weight can be given to mental illness as a mitigating factor: Regina v Clay [2007] NSWCCA 106 esp at para [26]. The fact that an offender has a mental illness does not necessarily mean that a custodial sentence will be more onerous (Catley v Regina [2014] NSWCCA 249 esp at para [58]).

Alcohol.
At common law the position was that alcohol may aggravate (eg reckless) or mitigate (eg out of character) the offence: Coleman (1990) 47 A Crim R 306. See also SK v Regina [2009] NSWCCA 21. In ZZ v Regina [2013] NSWCCA 83 it was said that the fact that the offender was intoxicated will only rarely mitigate the offence, especially in matters of violence (esp at para [110]).

By statute 'self-induced intoxication' is no longer a mitigating factor: s. 21A (5A) Crimes (Sentencing Procedure) Act.

Drugs.

The fact that the prisoner was addicted to drugs and was committing crime to feed his habit is not a mitigating factor of itself, but it may be relevant to the objective criminality (impulsivity, absence of aggravating factor like greed as motive, effect on judgment) or the subjective circumstances (rehabilitation, where addiction not a choice, or prisoner at the 'cross-roads' (Henry (1999) 46 NSWLR 346, 106 A Crim R 149). Cases where the addiction was not a matter of choice include cases where the offender becomes addicted to prescription medication (see Turner v Regina [2011] NSWCCA 189) and cases where the offender becomes addicted to drugs because of an injury (see Jodeh v Regina [2011] NSWCCA 194).

Gambling addiction

Having a gambling addiction will exceptionally only be a mitigating factor in a fraud case: Regina v Molesworth [1999] NSWCCA 43 esp at para [24], Assi [2006] NSWCCA 257, Ourdi v Regina [2009] NSWCCA 46, and Johnston v Regina [2017] NSWCCA 53 esp at paras [36], [40] to [41].

Health and AIDS.
If health problems (such as AIDS) make imprisonment more burdensome, or risks having a grave effect on the prisoner's health, that is a special circumstance and can effect the length of imprisonment. In Smith (1987) 27 A Crim R 315 King CJ said (at 317):

“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”

The proposition that ill health mitigates punishment only in cases where imprisonment will be a greater burden or where there is a serious risk of it having a gravely adverse effect on the offender's health has been followed in many cases: Sellen (1991) 57 A Crim R 313, Eliasen (1991) 53 A Crim R 391 (Vic), Bailey (1988) 35 A Crim R 458, Leighton v Regina [2010] NSWCCA 280 at para [35].

Fatal illness is a special circumstance: Vento (1993) PD [345], Doyle (1992) PD [228], Giardini (1993) PD [140].

Time in Protection.
A generous discount should be given for serving a sentence in protection: Cartwright (1989) 17 NSWLR 243 at 255-6, Hrastovicak (CCA 15/3/90), Burchell (1987) 34 A Crim R 148 at 151. It is important to attempt to call evidence of the likely practical effect of the offender serving his sentence in protection: Totten [2003] NSWCCA 207, C v Regina [2013] NSWCCA 81.

Other Punishment.
'Extra-curial punishment' is a matter the court could take into account: Allpass (1993) 72 A Crim R 561, Daetz [2003] NSWCCA 216. This includes a case where the accused is shot in the course of being arrested: Regina v Webb (2008) 149 A Crim R 167. However it does not include the offender being assaulted in gaol, when the assault is unrelated to the offence: Silvano v Regina (2008) 184 A Crim R 593. That is the case even where the injuries are self-inflicted, for example, where the offender sustains injuries because equipment used in an amphetamine 'cook' explodes: Alameddine [2006] NSWCCA 317 esp at paras [23] to [24]. This does not apply to deliberate self injury: Christodoulou v Regina [2008] NSWCCA 102.

Time in Rehab in 'quasi-custody'
In Eastway (CCA 19/5/92 u/r) the CCA approved the sentencing judge giving the prisoner credit for 50% of the period he spent in residential rehabilitation for drug abuse. See also Psaroudis (1996) PD [356], Campbell [1999] NSWCCA 76, Brown v Regina [2013] NSWCCA 44 esp at paras [21] to [27]. A discretionary range of 50 to 75% has been allowed for time in residential rehabilitation: Small v Regina [2018] NSWCCA 290 at para [38].

If it is found that the judge has not taken into account time spent in residential rehabilitation, error has been established: Sullivan [2002] NSWCCA 31, Delaney (2003) 59 NSWLR 1, Renshaw v Regina [2012] NSWCCA 91 esp at paras [28] to [29], and Small v Regina [2018] NSWCCA 290 esp at para [35]. Even if attendance at residential rehabilitation is voluntary, and not court-ordered, it should be taken into account: Reddy v Regina [2018] NSWCCA 212 esp at para [33]. Similarly time spent in a drug court program can be take into account: Bushara [2006] NSWCCA 8.

Generally this time should be taken into account by backdating the starting date of the sentence: Gardiner v Regina [2018] NSWCCA 27. However, it is not mandatory to do so, nor is it necessary for the judge to specify the discount to be allowed for 'quasi-custody': Small v Regina [2018] NSWCCA 290 at [39]. Time in residential rehabilitation which the offender has not yet undertaken should not be taken into account: Williams v Regina [2013] NSWCCA 15.

Time spent on Bail

The time that an offender has spent on bail should be taken into account on sentence especially if the bail conditions were onerous: Fowler (2003) 151 A Crim R 166.

Likelihood of Deportation.
It has been held that deportation was an irrelevant consideration in sentencing: Pham [2005] NSWCCA 94 at para [13], Kristensen v Regina [2018] NSWCCA 189. The fact that foreign nationals can't go through classification in prison is of little weight: Kogelbauer (1993) 65 A Crim R 357, but see Schaal (1993) PD [45].

The likelihood of deportation is not a proper basis to refuse to nominate a period of parole: The Queen v Shrestha (1991) 173 CLR 48, 54 A Crim R 217, He v Regina [2016] NSWCCA 223 esp at para [23].

Financial Hardship.
Financial hardship the direct result of pleading guilty is relevant to sentence: T (1989) 47 A Crim R 29.

Employment.
Courts should be slow to imprison a young person in employment: Hassan (1996) PD [301].

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