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Court of Criminal Appeal Sentencing Law Update 2007

 

Chrissa Loukas,
Barrister, Public Defender
January 2008
The author thanks Prita Supomo & Jennifer Wheeler, Legal Research Officers, Public Defenders' Chambers, for their invaluable assistance in preparing this paper.
 

INTRODUCTION

Sentencing law becomes evermore complex every year. 2007 was no exception to this trend. Section 21A of the Crimes (Sentencing Procedure) Act 1999 continues to be a fertile area for appellate intervention as does the application of the statutory non-parole period.

1.Indigenous Offenders

In Andrews [2007] NSWCCA 68 the court reminded sentencing judges that the principles in Fernando (1992) 76 A Crim R 58 do not justify unwarranted leniency when sentencing indigenous offenders. McClellan CJ at CL (with whom Sully and Howie JJ agreed) said:

[20] The applicant submitted that being an Aboriginal, the decision in Fernando obliges the Court to take a more lenient approach to the applicant's sentence, including a generous exercise of the discretion to find special circumstances.
[21] In my opinion this submission misunderstands Fernando, which was decided by Wood CJ at CL As his Honour said in the later decision in Ceissman (2001) 119 A Crim R 535, Fernando 'is not to be regarded as a decision justifying special leniency merely because of the aboriginality of the offender'[31]. Sentencing principles are non-discriminatory and are to be applied to all offenders irrespective of their particular racial or ethnic group: see Simpson J in Hickey (NSW CCA 27.9.1994). When one or more of the factors identified in Fernando are present they may indicate circumstances of particular disadvantage to an offender, and accordingly be relevant to the sentencing process. However, a sentence which is appropriate having regard to all of the circumstances of the case must still be imposed.
[22] In Fernando Wood CJ at CL emphasised that the offender had come from a deprived background, living for a considerable time on an isolated mission property. This matter was not only relevant in understanding, with a number of other matters, how he came to commit the offence, it was also relevant to the severity for that offender of his incarceration in a conventional prison. This feature is not present in the background of the present offender. It is true that the history of alcohol abuse and the fact that the offence was committed when the offender was intoxicated was a feature of the offending in Fernando, as it was of the present case. However, regrettably, alcohol abuse is a factor in many violent crimes, whatever the racial background of the offender.


 

2. Ellis Discount

In Valentine [2007] NSWCCA 23 and Lewins [2007] NSWCCA 189 the court considered the entitlement to a discount for voluntary disclosure of guilt (the Ellis discount: (1986) 6 NSWLR 603) and the relevance of the imminence of discovery to the level of the discount given. In Valentine [2007] NSW CCA 23 Price J (McClellan CJ at CL and Simpson J agreeing) said:

[35] The imminence of discovery does not disentitle the applicant to some degree of leniency for the voluntary disclosure of his offending behaviour to the victims of his crimes and to police in accordance with the principles in Ellis (1986) 6 NSWLR 603 at 604. The degree of that leniency will vary according to the likelihood that the offences would have been discovered by the authorities and the likelihood that the offences could have been proven beyond reasonable doubt in a Court without disclosure: see Ryan (2001) 206 CLR 267 per McHugh J at 272, Bell [2005] NSWCCA 81 per Grove J at [12]. The significance of the disclosure depends on the facts and circumstances of the case: Ryan (supra) per McHugh J at 273.
[36] The facts of this case are different from that in Ellis where voluntary disclosure was made by the offender of his involvement in armed robberies of which the police had no knowledge. Here the offences were likely to have been detected shortly after the applicant's disclosure and could have readily been proven beyond reasonable doubt without his confession. In these circumstances a significant added element of leniency is not warranted.


In Lewins [2007] NSWCCA 189 Howie J (with whom Basten JA and Grove J agreed) said:

[18] Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender.

3. Criminal History (see also s.21A(2)(d) Crimes (Sentencing Procedure) Act1999 'Record of Prior Convictions').

A 'record of prior convictions' is included in the list of aggravating factors in s.21A Crimes (Sentencing Procedure) Act1999. It is, however, an error to treat a prior criminal record as a factor that 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 (No 2) (1988) 164 CLR 465. The principle still applies under s21A(4) Crimes (Sentencing Procedure) Act1999. The effect of Veen (No 2) is that the objective circumstances set the upper boundary of a proportionate sentence and this does not include the record. The record of the offender is relevant to where within the boundaries set by the objective circumstances the sentence should fall taking into account retribution, deterrence and the protection of society.

Record of Prior Convictions and s.10 Crimes (Sentencing Procedure) Act1999
In Frigiani [2007] NSWCCA 81 the offender stabbed his wife while on a bond given under s.10 Crimes (Sentencing Procedure) Act1999 for assaulting his wife. Howie J (with whom Simpson and Barr JJ agreed) said:

[23] It can be seen immediately from this quote that her Honour was concerned with the application of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and whether the existence of an offence which was dealt with pursuant to s 10 can be treated as an aggravating factor under that provision. Neither this passage nor the reasons of her Honour elsewhere in the judgment gives the slightest support for the submission that a court is prohibited from taking into account prior conduct that has been dealt with under s 10.
[24] It is clear that the prior matter was relevant in two ways. Firstly it was an aggravating factor because the offence for which the applicant was being sentenced was committed in breach of a good behaviour bond. That is an aggravating factor listed in s 21A(2)(j) regardless of the conduct in respect of which the bond was imposed. However, it is generally considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced. The second paragraph of his Honour's remarks quoted above reflects this fact.
[25] Secondly, the fact that the applicant had assaulted his wife was relevant to show that the offence for which he was being sentenced was not an aberration. For this purpose it was enough that the applicant had been found guilty of that conduct even though no conviction had been recorded against him.


In Salvaggio [2007] NSWCCA 136 the Court found the sentencing judge erred in taking into account charges dismissed under the Mental Health (Criminal Procedure) Act 1990 . As the charges were never proven they should not have been taken into account. His Honour erred in holding that there were convictions.

4.Delay

In Nahle [2007] NSWCCA 40 the Court considered the balancing act required when sentencing an offender after a long delay. In this case the offender had undertaken extensive rehabilitation during the long delay caused by his absconding from Australia. Howie J (McClellan CJ at CL and Sully JJ agreeing) said:

[24] An important consideration in sentencing the respondent was clearly the fact that he had absented himself for over 6 years before returning to Australia to face these charges. Such a situation leads to the difficulty that, on the one hand, the court was to sentence the respondent as he stood before it, a rehabilitated man, but, on the other hand, the court could not grant the respondent the full benefit of the advantages he had gained by absconding on bail. The court could not allow the public in general to understand that an offender can put himself in a more favourable position by breaching his bail than would have been the position had he complied with his bail undertaking and stood for sentence nearer the commission of the offence.
[25] In such a situation as confronted the Judge, there are conflicting public policy considerations that can only be resolved on a case by case basis. But generally the balance must come down heavily in favour of the protection of the criminal justice system from manipulation by an offender such as the respondent. This is particularly so where the offence involves personal violence against an individual in the community who has a real interest in the matter being dealt with to completion as quickly as possible. In the present case the effects of the offence upon the victim of the kidnapping were aggravated by the respondent fleeing the jurisdiction and her being required to give evidence of the offence so many years after its commission. This is not to suggest that the respondent is to be punished for absconding on bail. There is an offence under the Bail Act with which the respondent could have been charged for failing to appear: see s 51. But he cannot receive the full measure of any advantages he may have gained by failing to comply with his bail undertakings.

5. Mental Illness

The Victorian case of Verdins [2007] VSCA 102; (2007) 169 A Crim R 581 contains a helpful review of the sentencing principles applicable to persons suffering from a mental illness, and has been subsequently referred to with approval by Basten JA in Suttle [2007] NSWCCA 264 and Courtney [2007] NSWCCA 195. Verdins provides the following summary:

[32] Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.40
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

6. Old Sexual Offences

AJB [2007] NSWCCA 51; (2007) 169 A Crim R 31 involved five counts of indecent assault of a child between 1979 and 1982. The applicant had been sentenced to 4 years with a non-parole period of 3 years. Howie J (Adams and Price JJ agreeing) made the following points:
(1) There was no error in imposing a full-time custodial sentence. Where an offender is sentenced long after offences were committed, the sentencing judge ought to consider the sentencing practice that applied at the date of offending: MJR (2002) 54 NSWLR 368. Howie J said, at [14], that although there was no statement of principle in 1982 that mandated a full-time custodial sentence for indecent assaults against children, it would be 'pure conjecture' to submit that had the applicant faced the District Court in 1982 he would 'have stood a reasonable chance of obtaining a sentence of something less than full-time imprisonment'.
(2) At [31] - [33]: The existence of remissions at the time of the offences was not a mitigating factor. It is not appropriate that this Court try to replicate the sentencing and executive practices of 1982: Moon (2000) 117 A Crim R 497.
(3) The Court should apply the (more favourable) statutory ratio that applied generally at the time of the offence. It can do so on the basis that special circumstances under s 44 of the Crimes (Sentencing Procedure) Act1999 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole period in 1982 (which did not require a finding of special circumstances to avoid a statutory relationship between the non-parole period and the balance of term): at [37]. Howie J found that in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of sentence: at [39]. The applicant was re-sentenced to a non-parole period of 18 months with a balance of term of 18 months.

The finding of special circumstances on this basis was again applied in MJL [2007] NSWCCA 261.

In Nelson [2007] NSWCCA 221 Latham J (with whom Tobias JA and Mathews AJ agreed) reiterated the importance of taking into account the maximum penalty of the offence and the nature of the conduct proscribed by the offence. In this case the offender was sentenced for indecent assault on a female, under the now repealed s.76 Crimes Act 1900. The sentencing judge sentenced the offender on the basis that the offences, which included 'non-consensual touching of the breasts and external genitalia of a female over the age of 16 years' fell in the mid-range of seriousness. In making such a finding the sentencing judge had failed to take into account the wide range of sexual misconduct covered by s.76 at the time of the offences. Latham J said:

[17] In the absence of evidence of the sentencing practices prevailing in 1972 for offences under s 76, his Honour was to be guided by the maximum penalty, as an expression of the legislature's view of the gravity of such offences at that time, and by the nature of the conduct proscribed by the offence: Moon (2000) 117 A Crim R 497 at 511; MJR (2002) 54 NSWLR 368; AJB [2007] NSWCCA 51. His Honour did not have regard to the latter consideration, namely, that offences under s 76 in 1972 were not confined to non-consensual touching of the breasts and external genitalia of a female over the age of 16 years. There was no extended definition of 'sexual intercourse' that allowed for acts such as fellatio, cunnilingus or anal intercourse to be charged as 'rape'. Sexual assaults other than penile/vaginal intercourse came under the umbrella of 'indecent assault'. A very broad range of very serious conduct by male offenders against female victims could not be prosecuted under any other provision of the Crimes Act 1900 as it then stood.
[18] When account is taken of this factor, it cannot be correct to describe the applicant's offence as one falling within the mid-range of objective gravity for offences under s 76. It must, in my view, be seen as falling within the lower end of the range of offences covered by that provision, although it nonetheless merited a custodial sentence because of the circumstances under which it was committed.

7. Armed Robbery

Legge [2007] NSWCCA 244 concerned the guideline judgment in Henry (1999) 106 A Crim R 149 and its misapplication by the sentencing judge in indicating that 'exceptional circumstances' must be demonstrated before departing from the guideline. Simpson J (with whom Spigelman CJ and Harrison J agreed) said:

[44] It is one thing to say that "exceptional circumstances" need to be demonstrated before it would be appropriate to impose any sentence other than a custodial sentence in respect of a particular offence, in this case, an offence against s 97. It is another thing altogether to say that exceptional circumstances must be demonstrated before a sentence of less than the guideline promulgated in Henry may be imposed in respect of such an offence. The former proposition is supported by authority. The latter is not, and is wrong.


In additional comments, Spigelman CJ said:

[59] The manner in which his Honour appears to have applied the guideline would, if it were valid, constitute an impermissible confinement of the exercise of the sentencing discretion. His Honour appears to have proceeded on that basis. The authorities in this Court make it quite clear that a guideline is not a tramline.

8. Retrial

In Tarrant [2007] NSWCCA 124 the Court found there was no error in imposing a greater sentence after retrial where the second sentencing judge made significantly different findings of fact relating to the criminality of the offenders.

9.Children

In DB [2007] NSWCCA 27; (2007) 167 A Crim R 393 the Court emphasised the need to consider relevant principles applicable to the sentencing of juvenile offenders, particularly their immaturity and vulnerability and the importance of rehabilitation. Latham J said:

[61] As was noted by Hulme J. in DM [2005] NSWCCA 181, this Court in Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 pointed out that the principle underpinning the practice of imposing lesser sentences on youthful offenders than those imposed on adults who commit similar crimes lies in the recognition of the immaturity of youth. The fact that the applicant may have been a willing participant does not dispose of the need to have regard to the extent to which his relative immaturity made him vulnerable to the influence of an older family member, particularly one upon whom he was dependent for food and shelter.
[62] Similarly, the general principle that greater weight may be given to a juvenile's prospects of rehabilitation, at the expense of general deterrence, was not discussed in the course of the remarks on sentence. Thus, it remains unclear whether his Honour accepted the principle in making "due allowance" for rehabilitation, or whether his Honour determined that the general principle did not apply in the particular circumstances of the case.


In KT [2007] NSWSC 83 Appealed to the CCA but on another point; decision reserved. Johnson J considered whether to order a prisoner to remain in juvenile detention under s.19(3) Children (Criminal Proceedings) Act1987:

[128] ... I accept that the Offender would be vulnerable in the adult prison system. Despite his physical size, he is not a threat to any person at the detention centre, staff or inmates. As Whealy J found in VDN, I am satisfied that the Offender's rehabilitation will be substantially enhanced by his continued detention in a juvenile detention centre. It is in the particular need of the Offender to maintain relationships with staff and others involved in his rehabilitation in the juvenile detention centre, that special circumstances may be found in this case: MB [2006] NSWSC 1164 at [36]. The assessment of Mr Champion concerning his intellectual ability is pertinent to this as well: DAC [2006] NSWCCA 265 at [23]. Accordingly, for the purposes of s 19(3) Children (Criminal Proceedings) Act 1987, I find that there are special circumstances justifying the detention of the Offender in a detention centre.

10. Guilty Plea

Quantifying the discount
The relationship between sentencing and guilty pleas has been considered in several cases. In Darrigo [2007] NSWCCA 9 and Lawler (2007) 169 A Crim R 415 the Court reminded sentencing judges of the importance, where possible, of quantifying the discount given for the guilty plea. In Darrigo Price J (Hodgson JA and Howie JJ agreeing) said:

[18] This Court continues to encourage sentencing judges to make the process of giving credit for pleas of guilty transparent: Thomson and Houlton (2000) 49 NSWLR 383 at [162], Lynn [2004] NSWCCA 222 at [14], Sutton [2004] NSWCCA 225 [at 16] and [17]. ...
[19] The failure of the Judge in the present case to quantify the discount does not by itself constitute an error: Simpson [2001] NSWCCA 534 at [82 and 83]. His Honour made allowance for the plea and I am not persuaded that he did not give appropriate weight to it.

In Lawler Price J again said:

[33] ... With respect to his Honour, whilst he was not obliged to specify the percentage of the discount, this Court continues to encourage sentencing Judges to make the process of giving credit for pleas of guilty transparent.

No entitlement to a particular discount

The Court has made clear there is no entitlement to any particular discount within the 10-25% range set by Thomson & Houlton (2000) 49 NSWLR 383. In Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41 Howie J said:

[35] In so far as there was any criticism of the percentage discount awarded, the short answer is that the applicant has no entitlement to any particular discount: Scott [2003] NSWCCA 286; Heikkinen [2006] NSWCCA 50.


At the same time the discretion to set a discount must be exercised in a judicial manner, with proper regard to the guideline judgement, as Howie J (Simpson and Hislop JJ agreeing) explained in McKibben [2007] NSWCCA 89:

[23] True it is that an offender has no right to any particular discount. It is also trite that the quantum of discount is a matter of discretion. But there is clearly an expectation, intentionally engendered in an offender by the guideline judgment, that an early plea especially in a complex matter would usually result in a discount of about 25 per cent. There is no reason apparent and certainly none given for why the discount in this case was significantly reduced from that which might have been expected. The discretion has to be exercised in a judicial fashion, and there is nothing in his Honour's answer that indicates this was the case. There is nothing to which the Crown could point that justified a reduction in the discount that would normally follow pleas of guilty in the Local Court saving the State from at least two trials.

Commonwealth offences

Several cases have considered the application of the guilty plea discount to Commonwealth offences. Under Cameron (2002) 209 CLR 339 the discount must be based not on the utilitarian value of the plea but upon the willingness of the offender to facilitate the course of justice. In Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41 Howie J suggested the two expressions refer to the same thing:

[34] ... But it is clear that her Honour was taking into account the plea of guilty in respect of all offences, and this is made obvious by the use of the words 'a willingness to facilitate the course of justice' which is the way the utilitarian value of a plea of guilty in Commonwealth matters was expressed by some members of the Court in Cameron see per Gaudron, Gummow and Callinan JJ at [13]-[15].


One clear difference in assessing the value of the discount is in the relevance of the strength of the Crown case. Unlike State offences, the strength of the Crown case can be relevant to the willingness of an offender to facilitate justice. In Tyler; Chalmers [2007] NSWCCA 247 Simpson J said:

[114] Taylor DCJ was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron. This specifically excludes reference to the utilitarian value of the plea. Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable. Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty.


In relation to the requirement of judges to quantify the discount Simpson J (Spigelman CJ and Harrison J agreeing) said in Tyler; Chalmers [2007] NSWCCA 247:

[114] ... Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty.

Howie J, however, suggested in Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41:

[34] For my part I do not understand why it should be thought appropriate to nominate a discount in respect of State offence but not for Commonwealth matters. I cannot see the logic in such approach and I do not believe that it is warranted by anything said in the High Court in Cameron (2002) 209 CLR 339. Markarian (2005) 79 ALJR 1048, which concerned sentencing for Commonwealth offences, makes it quite clear that it is legitimate for a sentencing judge to indicate a percentage discount for a plea of guilty or assistance to authorities, see per Gleeson CJ, Gummow, Hayne and Callinan JJ at [24].


Following earlier cases the Court seems happy to follow the range promulgated in Thomson for guilty pleas. In Morgan [2007] NSW CCA 8 Buddin J (Beazley JA and Hislop J agreeing) said:

[21] ... Although the range of discount for the utilitarian aspect of the plea of guilty identified in Thomson & Houlton (2000) 49 NSWLR 383 was expressly confined to State offences, this Court has held that it is 'a reasonable range to adopt' in the sentencing of Commonwealth offenders: see Bugeja [2001] NSWCCA 196; Simon (2003) 142 A Crim R 166. ...

Discount for Contrition

In Stricke [2007] NSWCCA 179 the discount by the sentencing judge for the plea of guilty included an allowance for contrition. The court reiterated that a mathematical discount for remorse should be avoided, applying MAK & MSK (2006) 167 A Crim R 159. In that case it was said that the usual practice is to specify a discount for only the utilitarian value of the plea and then to take remorse into account as a mitigating factor under s.21A(3) of the Crimes (Sentencing Procedure) Act1999. To do otherwise is likely to result in a sentence that is unduly lenient by reason of double counting: at [42]-[44].

11.Section 21ACrimes (Sentencing Procedure) Act1999

Section 21A Crimes (Sentencing Procedure) Act1999 ( Appendix A) sets out the aggravating and mitigating factors which a sentencer is take into account in determining the appropriate sentence. This is an area that has given rise to a plethora of appeals, in particular, in relation to aggravating factors.

General
In DBW [2007] NSW CCA 236 it was said that sentencers ought to specify the s 21A matters taken into account. In that case the sentencing judge had said "I am mindful of the provisions of s21A and have taken them into account." Spigelman CJ (Simpson and Harrison JJ agreeing) said:

[33] The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account. However, a general reference of the character made by his Honour to the effect that he had generally taken into account s21A may indicate no more than that he had considered the whole list of aggravating and mitigating factors but had given weight to those identified in his remarks on sentence. ...
[36] The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account'.


Aggravating Factors
Section 21A(2) Crimes (Sentencing Procedure) Act1999 lists aggravating factors to be considered, in addition to any other matters required or permitted to be taken into account. Section 21A(2) provides that '[t]he court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.' To do so is double counting and amounts to sentencing error: see Dougan [2006] NSWCCA 455. The section has been the source of a number of appeals. Howie J remarked in Elyard [2006] NSWCCA 43 at [39] '[O]ne has only to look back over sentence appeals determined by this court over the last two years to see the impact that this section has had upon the work of this court'.

Cases involving s.21A(2) include:

s.21A(2)(e) In Company
In Stevens [2007] NSW CCA 152, an affray case, it was an error to have found as an aggravating factor that the offence was committed 'in company'.

s.21A(2)(f) Use of Gratuitous Cruelty
In Curtis [2007] NSW CCA 11 the stabbing of a police dog would not qualify as 'gratuitous cruelty' in the circumstances of the case. In Stevens [2007] NSW CCA 152 it was an error to find an attack upon the victims' pet dogs constituted 'gratuitous cruelty' where no offence relating to the attack had been charged.

s.21A(2)(g) - Substantial Harm to Victim
In Wilmot [2007] NSWCCA 30 (2007) 169 A Crim R 280, the Court considered two issues. An uncontested Victim Impact Statement constituted sufficient evidence to establish 'substantial emotional harm'. However, it was double counting where 'substantial emotional harm' was taken into account as an aggravating factor for the offence of aggravated kidnapping under s.90A.

s.21A(2)(h) - Motivated by Hatred / Prejudice
In Dunn [2007] NSW CCA 312 the applicant committed offences of arson against the victim who he believed to be a paedophile. There was no error in referring to 21A(2)(h) as an aggravating factor.

s.21A(2)(i) Disregard for Public Safety
In Ward [2007] NSWCCA 22; (2007) 168 A Crim R 545, a supply drug case, the applicant appealed on the ground that the sentencing judge had erred in regarding as an aggravating feature under s.21A(2)(i) that the offences were committed without regard to public safety.

There have been apparently conflicting decisions on this issue. In Way (2004) 60 NSWLR 168 it was not an error to regard as an aggravating circumstance that a drug supply to an undercover operative was committed without regard for public safety. The Court said:

[172] We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake.


However, in Ancuta [2005] NSWCCA 275 Brownie AJA, without being referred to Way, warned against the automatic application of s.21A(2)(i) for supply drug offences.

[11] ... It might be said that the offence of supplying heroin, and related offences such as being deemed to supply heroin, all carry with them the concept that the supply of heroin is likely to endanger the public safety, in the sense that the end users are exposed to various dangers, and that because those with a heroin habit are likely to commit crimes to fund their habit, other members of the public will be exposed to various dangers. However, s 21A(2) is directed to a different question, namely whether there is some aggravating factor to be taken into account when imposing a sentence for a particular offence. It might be said that every supplier or deemed supplier of heroin has failed to have regard for public safety, but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor, as described in s 21A(2)(i).


In Ward [2007] NSWCCA 22; (2007) 168 A Crim R 545 Adams J reviewed the authorities in great detail. His Honour found that disregard for public safety is part of the objective seriousness of the offence of supply prohibited drug: at [19]. His Honour referred to Elyard [2006] NSWCCA 43; (2006) 45 MVR 402 per Basten JA at [15] that the "failure to have regard for public safety is an inherent characteristic of the offence of deemed supply of heroin and is reflected in the maximum penalty". Adams J took the view that this factor can be taken into account as either part of the general assessment of objective seriousness or specifically as an aggravating feature under s 21A(2), providing it is not double counted: at [19]. His Honour continued:

[20] In the present case, it is undeniable that the applicant sought to obtain the drugs for on-sale and hence he committed the offences intending in due course to endanger the public: to use the language of Way, this was his "motivational understanding". The question is (vide Way at [106]-[107]) whether the scale of drug dealing actually involved significantly increased the objective seriousness and moral culpability of this offending over and above that integral to the offences charged. Or, to use the language (quoted above) of Basten JA in Elyard, is there "some aspect of the specific conduct in question which goes beyond the objective element or underlying policy" of the offence so that "the aggravating factor" is engaged? In my view, in this case this question is answered by reference to the quantities of drugs involved (an inherent factor) and the extent of the planning or organisation involved (an aggravating factor under s 21A(2)(n)). Once these factors are taken into account, no additional significance should be given to the fact that the offences were committed without regard for public safety. This factor is either no more than an inherent feature of the offences themselves or adds nothing to the additional criminality of the other aggravating factors. ......
[22] It seems to me that the real issue is whether the applicant's disregard for public safety was so inextricably involved with the quantities sought to be obtained and the planning entailed that its separate identification as an aggravating feature led the learning sentencing judge to double count or showed that the applicant was being punished for crimes with which he had not been charged. .....

On this basis, Adams J concluded that the sentencing judge did err in double counting the aggravating feature of disregarding the public safety. Adams J nevertheless dismissed this ground of appeal. The appeal was upheld on another ground, involving special circumstances, Howie and Price JJ agreeing. Howie J made further comments in regard to s.21A(2)(i) (with which Price J agreed):

[28] As to the first ground of appeal the difficulty is that R v Way (2004) 60 NSWLR 168 at [172] is authority for the proposition that on a charge of supplying drugs an aggravating factor may be that the offence was committed without regard for public safety. The relevant passage is quoted in the judgment of Adams J. The Court was responding to a submission that such an aggravating factor was not present because the applicant was selling to an undercover operative. The Court was not called upon to consider the question that arose in later cases: whether acting without regard for public safety was an inherent characteristic of some offences of supply and, therefore, ought not be considered as a separate matter of aggravation. As Elyard v The Queen (2006) 45 MVR 402 recognised, this was a gloss on the limitation contained in s 21A(2) that "the court is not to have additional regard to such aggravating factor in sentencing if it is an element of the offence".
[29] In the present case it appears that the sentencing judge simply referred to the factor of aggravation contained in s 21A(2) almost automatically without any real consideration of what it meant or how it applied in the particular case before him. In some cases it will be unnecessary to explain why a particular aggravating feature is found to be present, but in cases where the aggravating factor is an element of the offence or may be thought to be an inherent characteristic of offences of the kind for which sentence is being passed the judge should explain why the factor is present in the particular case before the court.

An attempt to reconcile the decisions would involve the following propositions:
1.Way (2004) 60 NSWLR 168 is authority for the proposition that in a charge of supplying drugs an aggravating factor may be that the offence was committed without regard for public safety.
2. The Court in Way was not called upon to reconcile the question that arose in later cases: whether acting without regard for public safety was an inherent characteristic of some offences of supply and therefore ought not be considered as a separate matter of aggravation: Ward [2007] NSWCCA 22 per Howie J, Price J agreeing, at [28]-[30].
3. The Court was responding in Way to a submission that such an aggravating factor was not present because the applicant was selling to an undercover operative: Ward [2007] NSWCCA 22 per Howie J, Price J agreeing, at [28]-[30].
4. It might be said that every supplier or deemed supplier of heroin has failed to have regard for public safety but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor as described in s.21A (2)(i): Ancuta [2005] NSWCCA 275 per Brownie AJA, Buddin and Latham JJ agreeing.
5. Failure to have regard for public safety is an inherent characteristic of the offence of supply and is reflected in the maximum penalty: Elyard [2006] NSWCCA 43; (2006) 45 MVR 402 per Basten JA in at [15].
6. The question is therefore whether the scale of drug dealing actually involved significantly increased the objective seriousness and moral culpability over and above that integral to the offences or there is some aspect of the specific conduct in question which goes beyond the objective element or underlying policy of the offence so that 'the aggravating factor' is engaged?: Ward [2007] NSWCCA 22 per Adams J at [20].

s.21A(2)(j) Breach of Conditional Liberty
In Wallace [2007] NSW CCA 63 the fact that the offence was committed in breach of parole constituted an aggravating factor even when the earlier offence was of a different nature. In Wilmot [2007] NSW CCA 278 the offence was aggravated by the fact that it was committed in breach of an apprehended violence order in respect of the same victim.

s.21A(2)(k) Breach of Trust
In Liao [2007] NSW CCA 132 the court considered whether there was a breach of trust where a lodger robbed his landlady within her own home. McClellan CJ at CL (with whom Hulme and Hoeben JJ agreed) said:

[14] The applicant submitted that this finding by his Honour was not correct and that the offence should be likened to the robbery of a shopkeeper or taxi driver where there is some form of professional relationship rather than one of trust. It was submitted that a relationship of this type falls outside that contemplated by s 21A(2)(k). It is not necessary to resolve this submission.
[15] The relationship between landlady and lodger is not the same as that between a child and a guardian or similar relationships. However, the landlady provided accommodation for the applicant within her own home, allowing him access to her. The applicant abused this relationship when, under pretence, he enticed her into his room.
[16] In my opinion whether or not his Honour had in mind s 21A when considering the elements provided in the guideline in Henry knew it was a relevant factor that the opportunity for the applicant to commit this offence was provided by the fact that he was a lodger in the victim's premises.

In Thorne [2007] NSW CCA 10 the offender was sentenced for sexual offences against his estranged wife in her own home. The court found the sentencing judge erred in finding breach of trust as an aggravating factor. Howie J (with whom Sully and Hall JJ agreed) said:

[84] ... Of course the offences occurred in the complainant's own home, but that was of less significance in this case because the appellant was living there. The Judge found that this gave rise to a breach of trust because the appellant had been given a key to the premises to look after the children. With respect that misrepresents the situation and I doubt that this was an aggravating feature within the terms of s 21A(2)(l). ...


s.21A(2)(l) -Vulnerable Victim
In Morris [2007] NSW CCA 127 the offender was sentenced for an assault on an intoxicated stranger who was in the process of dry retching into a garden area of a private residence. The Court found that while a victim is generally not vulnerable just because they are unarmed or unsuspecting, in this case vulnerability could have been caused by fact that the victim was obviously unwell.

In Stevens [2007] NSW CCA 152 there was no error in finding that victims living on an isolated property were 'vulnerable'.

s.21A(2)(m) - Multiple Acts / Victims
In Smith [2007] NSW CCA 138 the Court considered the application of this sub-section to the offence of ongoing supply of prohibited drugs under s.25A Drug Misuse and Trafficking Act1985. James J (with whom Campbell JA and Smart AJ agreed) said:

[40] ... it remains open to a judge sentencing for an offence under s 25A to take into account as a matter aggravating the offence the number of occasions on which the offender supplied a prohibited drug, if the number of occasions significantly exceeds three occasions. In the present case, there were about a dozen supplies of amphetamine within the 30 day period.


s.21A(2)(n) - Planned Offence
In Legge [2007] NSW CCA 244 it was an error to find the offence was 'planned' where the applicant had not been involved in its planning. Simpson J (with whom Spigelman CJ and Harrison agreed) said:

[34] No doubt the offence was planned; but, on the applicant's evidence, he was not involved in the planning and was not responsible for it. That evidence was not rejected. S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation.


Several cases have considered the degree or level of planning required in order to amount to 'planning' as an aggravating factor. In Fahs [2007] NSW CCA 26, a drug matter, Howie J (with whom Simpson and Buddin JJ agreed) said:

[21] The aggravating factor under s 21A(2)(n) is that 'the offence was part of a planned or organised criminal activity'. The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a 'level of planning in the offences' as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision.
[22] Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is 'part of a planned or organized criminal activity' in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order.


In Reaburn [2007] NSW CCA 60; (2007) 169 A Crim R 337, a case involving sexual offences, the following reasoning was applied (per Hoeben J, with Sully and Bell JJ agreeing):

[42] It was submitted on behalf of the applicant that to the extent that there was any planning in the offence it was not the sort of planning which was envisaged by subsection 21A(2)(n) of the Act. It was accepted by the applicant that he intended to do what he did and had formed that intention for at least some period prior to his so doing. On the evidence that period was likely to have been relatively short and depended upon his girlfriend having left the flat. It was submitted that the offence was therefore essentially opportunistic rather than being 'part of a planned or organised criminal activity'.
[43] This question was considered in Fahs [2007] NSWCCA 26. The Court there held that the finding that there was 'a level of planning in the offences' was not sufficient to justify the finding of the aggravating factor in s21A(2)(n).
...
[44] Following that line of reasoning the relatively low level of planning involved in these offences would not meet the description of being 'part of a planned or organised criminal activity' Accordingly his Honour erred in taking into account s21A(2)(n) as an aggravating factor in respect of these offences.


In Rich [2007] NSW CCA 193 the Court considered the relevance of limited planning to a series of break and enter offences. Giles JA (with whom James and Hislop JJ agreed) said:

[19] What the judge here meant by planning and organisation, and then in his reference to s 21A(2)(n), was that there was a degree of planning and organisation in the times of breaking into the homes, not inherent in the break enter and steal offences, and in stealing property easily disposed of, again not inherent in those offences. The times of breaking into the houses was not explained. Sometimes the hours in the facts sheets extended beyond daylight, but in all cases the homes were unattended and it was probably the latter. The degree of planning and organisation might be thought small, hence the appellation 'such as it was'. That it was not a factor of great moment was again recognised when noting that the applicant had left her fingerprints behind.
[20] The applicant submitted that it was a feature so commonly found in break enter and steal offences that it could not be regarded as a matter of aggravation, and contrasted the planning and organisation with that in, for example, Danaca [2005] NSWCCA 45 (using 'specialist break and enter tools') and Lay [2006] NSWCCA 45 (using oxy-acetylene equipment, grinders and gloves). The applicant submitted also that the planning and organisation could not be a factor material to the obtaining benefit by deception offence, but reading the remarks on sentence as a whole the judge did not so regard it.
[21] Being a common feature went to the significance of the factor, not whether it could be taken into account. In my opinion, it was open to the judge to take planning and organisation, to the extent he found it, into account as an aggravating factor within s 21A(2)(n), albeit one of little significance. He plainly did not think it of significance, and there is no reason to think that he gave it greater significance than was appropriate.

12. Drug Offences - Custodial Sentence for Trafficking Offences

In F [2007] NSW CCA 20 the Court confirmed, after a lengthy consideration of the authorities, the principle that custodial sentences should be imposed for trafficking offences in all but exceptional circumstances: see Clark (NSW CCA, unreported, 15.3.1990).

13.Standard Non-Parole Period

Where listed offences are committed after 1 February 2003 and the offence is in the mid-range of seriousness, the standard non-parole period (SNPP) is required to be set unless the court determines that there are reasons for not setting the standard non-parole period: s.54B Crimes (Sentencing Procedure) Act1999 ( Appendix B). Factors in s.21A Crimes (Sentencing Procedure) Act1999 and the common law are relevant to this exercise. These factors are not a 'narrow list of considerations': Way (2004) 60 NSWLR 168 at [56] - [57].

The application of the SNPP remains problematic as evidenced by the number of appeal cases requiring consideration of the section.

Factors Relevant to the Assessment of the Objective Seriousness of the Offence
In Kafovalu [2007] NSW CCA 141 the Court found the sentencing judge erred in using the breach of parole as an aggravating factor in assessing the objective seriousness of the offence.

In Ma and Pham [2007] NSW CCA 240 at [57] the Court found the sentencing judge had erroneously focussed upon the drug operation as a whole and failed to consider individual offenders, their roles, motivations, actions and mens rea.

Importance of Giving Reasons for Assessment of Objective Seriousness of Offence
In Thorne [2007] NSW CCA 10 and Marshall [2007] NSW CCA 24 the Court reminded sentencing judges of the importance of giving reasons for findings as to the objective seriousness of an offence. Although the appeal court would not normally interfere with a judge's findings, it is more likely to do so where there has been no reference to a critical piece of evidence, or where there are inadequate reasons.

In Thorne Howie J (with whom Sully and Hall JJ agreed) said:

[83] As I have indicated there is no analysis at all undertaken by the sentencing judge of what an offence of mid-range seriousness would entail in such a situation where there are a range of aggravating factors that may or may not be present and may differ in degrees of seriousness. It is not an easy task to consider what might represent an offence of mid-range seriousness in such a situation but that is what is required. It is not good enough, in my opinion, in such a case simply to make the bald statement that the offence is within the mid-range of seriousness without explaining how that assessment has been made or to describe them as 'terrible crimes'. It is unfortunate that sentencing has been so complicated by the standard non-parole provisions but that is a result of the legislation and the courts cannot avoid it. Although an assessment of the seriousness of an offence is a finding of fact and one with which the court will not normally interfere, when the finding is made apparently without any regard to a critical piece of evidence, it cannot withstand scrutiny.


In Knight [2007] NSW CCA 283 Howie J (McClellan CJ at CL and Hidden J agreeing) said:

[46] The Judge failed to give adequate reasons for departing from the standard non-parole period notwithstanding the requirements of s 54B(4). It is necessary to remind sentencing judges once again that the section requires the court to 'identify in the record of its reasons each factor that it took into account'(my underlining). This Court has repeatedly noted that it is insufficient compliance with the section merely to state that the offender has pleaded guilty: Mills (2005) 154 A Crim R 230; Zegura [2006] NSWCCA 230. ...


Imprecise assessment of objective seriousness
In Knight [2007] NSW CCA 283 the sentencing judge erred in assessing the objective seriousness of the offence as 'at least in the mid range of seriousness.'  Howie J (with whom McClellan CJ at CL and Hidden J agreed) said:

[39] ... Although such an assessment cannot be made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding.


Use of Standard Non-Parole Period as Benchmark where does not Otherwise Apply
The SNPP continues to be relevant although it does not apply. In Darrigo [2007] NSW CCA 9 Howie J said:

[56] A plea of guilty might in itself be a reason for departure from the standard non-parole period. Where a Court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, bench mark, sounding board or guide post: AJP (2004) 150 A Crim R 575, MLP [at 32].


In JRD [2007] NSW CCA 55 Howie J (McClellan CJ at CL and Bell J agreeing) found:

[41] A non-parole period of 18 months as against a standard non-parole period of 10 years was on its face manifestly inadequate. The Judge did not attempt to apply the authorities of this Court as to how to approach the task of sentencing after a plea of guilty in respect of a standard non-parole period case. This Court has stated on numerous occasions that a judge is not to ignore the standard non-parole provisions just because the offender pleaded guilty, but is to give reasons in accordance with s 54B(3) for departing from the standard non-parole period. This is not to suggest that the standard non-parole period or anything like it was appropriate in the respondent's case, but there was no attempt to assess the respondent's criminality with that benchmark in mind.


In Frigiani [2007] NSW CCA 81 (Howie J, with whom Simpson and Barr JJ agreed) the sentencing judge was praised for

[17] ... exposing his reasons for departing from the standard non-parole period. It has been made clear in a number of decisions of this Court that, notwithstanding that an offender has pleaded guilty, the court is still required to 'identify...each factor that it took into account' in increasing or decreasing the standard non-parole period: see s 54B(3) and Zegura [2006] NSWCCA 230.


In Knight [2007] NSW 283 Howie J said:

[47] ... the Judge failed to give sufficient weight to the standard non-parole period even though it provided only a guidepost or indicator of the appropriate sentence. Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation. When the objective criminality is above midrange then, of course, the maximum penalty prescribed for the offence becomes of more significance.


Mathematical Approach
The Court once again condemned a mathematical approach when considering standard non-periods. In Maxwell [2007] NSW CCA 304 Howie J (Handley AJA and Price JJ agreeing) said:

[21] But the major difficulty with the passage is the manner in which the Judge applied the standard non-parole period. It has been stated on more than one occasion in this Court that it is not appropriate to use the standard non-parole period as a starting point to which discounts are added or from which they are subtracted: see Mulato [2006] NSWCCA 282
...
[25] In the present case the Judge determined what the head sentence referable to the standard non-parole period would be, deducted from it a period representing the degree to which the offence was lower than midrange and from that result deducted the discount for the plea of guilty. By approaching the sentencing exercise in this way he misused the standard non-parole period and his discretion miscarried.


Difficulties of Applying SNPP
The Court referred to the inadequacy of the SNPP for offences under s.33 Crimes Act1900 (malicious wound or inflict gbh with intent). In XY [2007] NSW CCA 72 McClellan CJ at CL remarked:

[56] There are difficulties in sentencing an offender for a breach of s 33 of the Crimes Act. Although the maximum penalty is 25 years the legislature has provided a standard non-parole period of 7 years. Accordingly, for an offence falling below the mid range, a period of incarceration of less than 7 years will be appropriate. ...


In Mitchell and Gallagher [2007] NSW CCA 296 it was suggested that the maximum penalty may be more significant for a s.33 offence which falls well above the mid-range. Howie J (with whom Giles JA and Fullerton J agreed) said:

[36] This case brings into sharp focus the difficulty of applying the standard non-parole provisions in a case where the standard non-parole period specified for a particular offence does not represent a non-parole period that would normally be appropriate for an offence falling within the midpoint of the prescribed statutory maximum. ...
[37] Where a particular case falls well above the mid-range of offending, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty in determining the appropriate sentence. This must be so otherwise an offence falling within the worst category of case, and so notionally attracting the maximum penalty, would be drawn away from that point by the standard non-parole period and a court could never impose the maximum penalty. This does not mean that the standard non-parole period loses all relevance and it may still have work to do as a guide to determining the non-parole period. So, for example, with an offence of objective seriousness well above mid-range it may be unlikely that, even after a discount for the plea of guilty, or a consideration of the subjective circumstances of the offender or a finding of special circumstances the result would be a non-parole of, or below, the standard non-parole period prescribed.


A similar concern was raised in Marshall [2007] NSW CCA 24 in relation to the offence of aggravated break and enter under s.112(2) Crimes Act1900. Not only is the SNPP of 5 years one-quarter of the maximum penalty of 20 years, the diverse range of offending covered by the offence makes it difficult to make the required assessment of a mid range offence. In Marshall Howie J said:

[34] ... it is not an easy task to make sense of, and apply, the standard non-parole period provisions in relation to s 112(2) offences. Firstly, the standard non-parole period is 5 years as against a head sentence of 20 years. One would expect as a matter of logic and the application of ordinary sentencing principles that, if an offence was hypothetically of the mid-range of seriousness, it would carry a sentence of half the maximum penalty, that is a total term of ten years and, according to the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period of seven and a half years. What then is to be made of the fact that the standard non-parole period is only 5 years? Does this disclose the intention of Parliament that the courts should take a more benign view of an offence under s 112(2) than the maximum penalty would seem to suggest? How does a court determine the sentence where the seriousness of the offence is somewhere above the mid-range of seriousness but below the most serious category of an offence under the section: by having more regard to the standard non-parole period or to the maximum penalty?


In Henry [2007] NSW CCA 90 the court pointed out that the offence of aggravated armed robbery under s.98 Crimes Act1900 has a SNPP of 7 years and a maximum penalty of 25 years.

14.Pre-sentence Custody

A sentence can be backdated to a date before the day of sentencing, but can only commence on a day after sentence if it is accumulated on an existing sentence: s 47 Crimes (Sentencing Procedure) Act1999. Where a person is solely in custody in relation to the matters for which he is being sentenced it is appropriate that the sentence be backdated to the date the prisoner came into custody. Similarly, where there are broken periods of pre-sentence custody referable to the offence the sentence should be backdated even if it entails backdating to a date not in custody: Howard [2001] NSWCCA 309.

Pre-Sentence Custody Referable to Scheduled Offence
In Sultana [2007] NSW CCA 107 Hidden J (McClellan CJ at CL and Rothman JA agreeing), considered whether a sentence should take into account pre- sentence custody referable only to offences taken into account on sentence:

[15] Of course, whether to backdate a sentence for any reason is a matter within the discretion of the sentencing judge, although it is a discretion for which there is ample guidance in the authorities. It seems to me that the terms of ss24(a) and 47(3) of the Crimes (Sentencing Procedure) Act are capable of embracing pre-sentence custody referable to Form 1 matters, but I do not find it necessary to decide that question. The fact is that Form 1 matters normally have an impact, sometimes a substantial impact, on the sentence passed for the principal offence. Justice demands that pre-sentence custody exclusively referable to such offences should normally be taken into account and, consistently with authority, it is preferable that that be done by backdating the sentence for the principal offence.


Where Pre-Sentence Related Also to Parole
In Pekbilimli [2007] NSWCCA 101 the Court found no error in the refusal of the sentencing judge to backdate the sentence to take into account pre-sentence custody related to both the offence and revoked parole.

[21] In Callaghan [2006] NSWCCA 58 this Court per Simpson J (James and Hall JJ agreeing), held a sentencing judge has a discretion to backdate to some point (not necessarily to the date of revocation of the parole) even where the period in custody is not wholly the result of the offence for which the applicant is being sentenced.
[22] Such a discretion is a wide one. In Markarian (2005) 215 ALR 213 at [27] the High Court confirmed:
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
[23] The subject offence was a significant one. It was committed in circumstances where imprisonment for previous similar offences had had no effect, where the offence was committed in breach of parole and where it was, as his Honour observed, an offence which was both serious and odious. To back date the subject sentence from the date of its imposition would, depending on the extent of the backdate, have resulted in the non-parole period of the subject sentence being entirely, or almost entirely, subsumed by the balance of the parole sentence. This, in all probability, would result in the applicant receiving no actual punishment for the subject offence.
[24] In the circumstances the sentencing Judge chose not to backdate the sentence. In my opinion this course was open to him in the proper exercise of his sentencing discretion. In my opinion no error by the sentencing judge has been demonstrated and this ground of appeal fails.

15. Commonwealth Offences

Repeal of s.16G
From 16 January 2003 s.16G Crimes Act1914(Cth) was repealed. The provision provided that in States (for example NSW) where remissions have been abolished that fact would have to be taken into account on sentence.

In Korgbara [2007] NSW CCA 84; (2007) A Crim R 568 counsel argued that the delay between the applicant's arrest and trial resulted in significant prejudice as the repeal of s.16G resulted in a higher sentence than would have been imposed had his trial been heard before s.16G's repeal. Counsel relied on Radenkovic (1990) 170 CLR 623; 51 A Crim R 451 being authority for the principle that the principles and policy that existed at the time of the offence should be applied at the time of sentencing. McColl JA (James J agreeing, Grove J not deciding) considered the authorities and concluded that NSW courts do not have the power to continue to apply the discount authorised by s.16G whether directly, or by analogy with Radenkovic. Her Honour said:

[101] The effect of the repeal of s 16G was considered by this Court in R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1.
[102] Studenikin ... was arrested in June 2002 and .. sentenced after s 16G had been repealed. The trial judge sentenced on the basis that although the sentencing proceedings began before the repeal of s 16G, she was required to sentence the offender without regard to the sentencing practice which operated prior to its repeal.
[103] Howie J (with whose reasons Grove J and Newman AJ agreed) held that following the repeal of s 16G courts in New South Wales did not have power to continue to apply the discount s 16G had authorised.
[104] Studenikin was followed in R v Dujeu [2004] NSWCCA 237; (2004) 146 A Crim R 121 (at [43]), another case of an offence committed before s 16G was repealed, but in respect of which the plea of guilty and the sentence occurred after its repeal.
[105] It was also followed in R v Rivadavia where Wood CJ at CL (with whom Adams J and Smart A-J agreed) distinguished Radenkovic and applied Studenikin, saying:
"[71] While in each of the three cases before the Court, the offence had been committed before the date of the repeal of s 16G, the pleas were not entered until after that date, so that the decisions in R v Speer [2004] NSWCCA 118 and R v Schofield (2003) 138 A Crim R 19, as well as that in Radenkovic v The Queen (1990) 170 CLR 623 were distinguishable. They were decisions where, in the exercise of the court's general sentencing discretion, it was held that, as a matter of fairness, sentences should be imposed that were no more harsh than those that would have been passed had the section still been in force.
[72] It is implicit in these decisions, and it was accepted in R v Studenikin (2004) 60 NSWLR 1 and in R v Kevenaar [2004] NSWCCA 210, that the repeal of s 16G, at least in cases where there was a plea or conviction recorded after 16 January 2003, will normally lead to the imposition of a heavier sentence than that discernible in the pre-repeal pattern of sentencing." ....
[107] The position was considered most recently in Clarkson [2007] NSWCCA 70 at [265] where Howie J (with whom Beazley JA and Sully J agreed) described the effect of the line of authority to which I have referred as being that 'there is no longer any reduction of sentences because of the absence of remissions but that sentences to be imposed after the repeal of s 16G were not to increase automatically by a third'. His Honour rejected a submission that the sentencing judge ought to have taken a different approach because the offences occurred before s 16G was repealed.
[108] This line of authorities demonstrates that it is not open to the Court to consider applying an approach analogous to Radenkovic. ...


Appropriate Non-parole Period Where Mixture of State and Commonwealth Offences
In Cahyadi [2007] NSW CCA 1; (2007) 168 A Crim R 41 Howie J found that where there is a mixture of state and Commonwealth offences, and the most serious offences are the Commonwealth offences, the non-parole period should have been set at the Commonwealth ratio of 60-66%, not the more severe state ratio of 75%. His Honour commented:

[38] .... It seems to me that the Judge was endeavouring to structure the sentences to accord with the State provisions rather than those of the Commonwealth. Yet as has been noted the most serious offence was a Commonwealth crime and the activity was generally in contravention of Commonwealth law. It was only incidental that the applicant also offended against State laws. It seems to me in such a situation to be unfair to sentence by complying with the more severe State regime under s 44 [ Crimes (Sentencing Procedure) Act1999 (NSW)] where the statutory ratio is 75 per cent, rather than by adopting the practice for determining the non-parole period for Commonwealth offences, where the ratio is 60 to 66 per cent.

16. Application of Pearce v The Queen (1998) 194 CLR 610

In Qing An [2007] NSW CCA 53, where the appellant was sentenced for a number of offences committed over a period of time, the sentencing judge erred in automatically imposing heavier sentences for those offences committed later in time without considering the nature and seriousness of the individual offences. Beazley JA (Hislop J agreeing) said:

[78] [The sentencing judge] appears to have considered that he was required to allocate increased penalties in respect of those offences occurring later in time. I do not consider there is any such principle, although there may be circumstances where such an approach is warranted, provided that in doing so the principles stated in Pearce are not overlooked.
[79] Here his Honour imposed an escalating scale in respect of the sentences on a basis that appears only to have had regard to the dates upon which the sentences were committed rather than to the seriousness of the individual offences. This resulted in a significant disparity between the first sentence imposed of six years and the last of nine years when there were very little differences in the offences. That disparity has resulted in sentences which, in circumstances where the offences were of similar objective seriousness, cannot be reconciled merely by reference to accelerating criminality and indicates error. The error could be characterised as a failure to correctly apply Pearce or alternatively that the escalating sentences imposed resulted in the overall effective sentence being manifestly excessive.

17. Concurrent and Cumulative Sentences

A sentence can be concurrent or wholly or partly consecutive with another sentence. If the sentencing judge does not specify this the sentence is concurrent: s.55 Criminal Procedure Act1986.

Multiple offences
In JRD [2007] NSWCCA 55 the offender was sentenced for a number of unrelated offences. The sentencing judge erred in considering "... each of the offences separately, as if each represented a completely independent sentencing exercise": at [26]. Howie J (with whom McClellan CJ at CL and Bell J agreed) said:

[27] In my opinion this was an erroneous way of carrying out the task of sentencing the respondent. I do not believe that, in a case where the one offender is being sentenced for a number of offences, it can ever be appropriate to determine the sentence for each offence as if it were the only matter before the court. True it is that the court must decide the appropriate sentence for each offence independently and that the sentence for one offence cannot be increased simply because there happens to be other offences committed by the offender for which he or she is to be sentenced. But it does not follow that it is irrelevant to the determination of the sentence for one offence that the offender is before the court for sentence on other offences. ......
[29] But it is obviously relevant that the offender is before the court for sentence for more than one offence when the penalty for any individual offence is being determined. Clearly it may be a fact or circumstances relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated "fall from grace" or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time. ...
[33] So when a court is sentencing for multiple offences and before it imposes the sentence for any one offence, it will have considered the outcome for all offences. It will have done so for at least two reasons: firstly, in order to ensure that the court imposes sentences that fall within statutory limitations, that are consistent with sentencing principles and that do not conflict with one another. Secondly it will ensure that the overall sentence imposed reflects the overall criminality of the offences before the court.


Whether Sentences be Imposed Concurrently or Consecutively
In considering the appropriateness of imposing either concurrent or consecutive sentences Howie J in Cahyadi [2007] NSW CCA 1; (2007) 168 A Crim R 41 said:

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.


Cahyadi has been cited with approval in Nguyen v R [2007] NSWCCA 14 and Vaovasa [2007] NSWCCA 253.

Single episode of criminality and concurrent sentences
In Vaovasa [2007] NSWCCA 253 the judge erred in imposing concurrent sentences for three robbery offences committed against three victims within a short period of time. The Court observed that it is 'clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved': at [15]. The Court cited with approval Howie J in Cahyadi (above), and said:

[16] This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative. In R v Weldon and Carberry (2002) 136 A Crim R 55 at [48] Ipp JA stated that there is no inflexible rule that concurrent sentences should be imposed for multiple offences arising out of the one criminal enterprise. There are a number of cases that indicate that the fact that there are a number of victims will generally require an increase in the otherwise appropriate sentence where one victim only was involved: R v Wilson [2005] NSWCCA 219; R v KM [2004] NSWCCA 65.

In Nguyen [2007] NSWCCA 14 it was an error to impose concurrent sentences for armed robbery and aggravated sexual intercourse, offences which occurred during a home invasion. The Court cited with approval Cahyadi per Howie J at [27] (above) and said:

[12] It seems obvious that from a number of matters that have been before this Court recently, ... there is an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences for offences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v MMK [2006] NSWCCA 272.


The appropriateness of concurrent sentences in relation to multiple offences of break, enter and steal was specifically considered in Harris [2007] NSWCCA 130 where the Court concluded at [45] that totality will rarely, if ever, justify wholly concurrent sentences for a series of break and enter offences. The Court pointed out that such offences typically involve a different victim or group of victims, a separate exercise of an offender's will and each its own separate criminality. Aside from cases where there is a significant difference in the nature of the offences, an offender's criminality is greater by reason of committing three offences rather than one or two. Thus 'some accumulation of sentences is almost always required': at [38]-[39].

[40] An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer that if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur.


Harris was applied in Merrin [2007] NSW CCA 255 where Howie J pointed out at [36] that 'there is nothing revolutionary in Harris'- it is but an example of the appropriate exercise of the sentencing discretion in relation to multiple offending, having regard to the principle of totality and the proper punishment of repeat offenders.

18.Multiple Discounts

In SZ [2007] NSWCCA 19; (2007) 168 A Crim R 249 the Court examined the permissible extent of a combined discount for assistance to authorities and plea of guilty. The applicant received a sentence for drug matters that was discounted by 25% for his pleas of guilty and by a further 50% for assistance to the authorities. The court considered the total amount of the combined discount (62.5%) in assessing whether the sentence was excessive. Buddin J (with whom Simpson and Howie JJ agreed) cited those authorities confirming that sentencers give a single, combined discount for both a plea of guilty and assistance: El Hani [2004] NSWCCA 162 at [69]; Thomas and Houlton (2000) 49 NSWLR 383 at [160(ii)]; Gallagher (1991) 23 NSWLR 220. However, in accordance with s.23(3) Crimes (Sentencing Procedure) Act1999, it is critical that when a lesser penalty is imposed on the basis of assistance to authorities it must not be unreasonably disproportionate to the nature and the circumstances of the offence: at [49]. In light of the authorities and s.23(3), a combined discount exceeding 50% should be reserved for exceptional cases only: at [53].

Howie J (in additional comments, Simpson J agreeing) said that a combined discount for pleas of guilty and assistance should not normally exceed 50%: at [3]. An overall discount of more than 60% will rarely result in a sentence that is not manifestly inadequate: at [11].

19.Parity

If the disparity is such as to leave one co-offender with a 'legitimate sense of grievance' an appeal court may intervene: Lowe (1984) 184 CLR 606.

In Spinks [2007] NSW CCA 52 the appellant sought to argue for parity on the basis the co-accused had received the benefit of more favourable plea bargain by delaying his guilty plea. The Court declined to find disparity in the sentences. Bell J (Sully and Hoeben JJ agreeing) said:

[31] Simpson J's reservations (in Formosa [2005] NSWCCA 363) about the extension of the parity principle to offenders who are charged with different offences as the result of the prosecutorial decision-making (and who are thus not co-offenders) are apt to the circumstances of the present case. The prosecution elected to accept Lea-Caton's plea of guilty to two counts and to allow him to admit his guilt pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999 in relation to the remaining offences with which he had been charged. This resulted in Lea-Caton's conviction for a lesser number of offences. The Court does not know the reasons that led the prosecution to take the course that it did with respect to these two offenders. It may be that the Crown did not have sufficient evidence to support the conviction of Lea-Caton for each of the offences with which he had been charged. The assumption that underlay the submissions advanced on the applicant's behalf, that Lea-Caton had secured an advantageous charge bargain by delaying his pleas of guilty may, or may not be, correct. The Court is not to know.

20. Periodic Detention

In Reed [2007] NSW CCA 4 Howie J referred to the principles to be applied when considering a sentence of periodic detention.

[20] Clear guidance to the approach to be taken to the imposition of a custodial sentence to be served by way of periodic detention is provided by this Court in Douar 159 A Crim R 154 per Johnson J at [69-73] which identifies a three stage process.
[21] The sentencing Judge is to first consider whether there are any alternatives to the imposition of a term of imprisonment, if not, then to determine an appropriate period of imprisonment and then to consider whether any available alternative to full time custody should be utilised.
...
[25] The inappropriateness of compensating for the leniency which is involved in periodic detention by extending the term of imprisonment to be served in this way has been emphasised by this Court: Stephen [2003] NSWCCA 377 [at 23], Wegener [1999] NSWCCA 405 [at 22].
[26] As Johnson J said in Douar [supra] [at 71]:
'The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at [30]; Zamagias at [26]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at [22]; Zamagias at [26]'.

21. Relevance of Likely Refusal of Future Parole

In Wray [2007] NSW CCA 162 the appellant sought to have the fact that he was unlikely to be granted parole taken into account as a mitigating factor. The appellant argued that he would not be accepted into any sexual assault treatment programs while in custody as he continued to deny his guilt, but that completion of the programs was required before he could be released to parole. In dismissing the appeal, Hislop J (McClellan CJ at CL agreeing, Hulme J agreeing in part), referred to Reyes [2005] NSWCCA 218 where the Court had refused to regard such a situation as one to be taken into account as a mitigating factor in the determination of sentence. Hislop J said:

[66] The submission made on this ground of appeal by the applicant is indistinguishable from the submission with which the court in Reyes was concerned. It has not been demonstrated that this Court should depart from the conclusion reached in Reyes. As a matter of comity that decision should be followed.


Hulme J, however, suggested:

[8] The portion of a sentence spent in actual custody is undoubtedly harsher than time spent on parole. Given that other factors bearing on the harshness on a sentence are taken into account in the determination of its length, there is much to be said for the view that, if the evidence justifies the conclusion that a particular prisoner will not be granted parole (or granted it for a significantly shorter period than envisaged by the sentence), that fact should be taken into account.

22. Special Circumstances

The issue of special circumstances continues to raise issues on appeal. In Baroudi [2007] NSW CCA 48 the Court confirmed the principle against double counting. Price J (Sully and Howie JJ agreeing) said:

[57] The Judge, furthermore, considered the added severity of the sentence to be served in protective custody together with the 'prisoner's rehabilitation' were special circumstances to enable him to vary the statutory ratio (ROS at p 7). The added term of the total effective sentence equates to 50 per cent of the non-parole period.
[58] The need to serve the sentence on protection was a circumstance taken into account by the Judge in favour of the applicant in the determination of the discount for assistance and in the finding of special circumstances. His Honour in twice taking into account this circumstance was 'double counting'.
[59] Spigelman CJ said in Regina v Fidow [2004] NSWCCA 172 at [18]:
"Double counting's for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided...... Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur."
See also R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [67], R v Lee [2000] NSWCCA 392, R v "S" (2000) 111 ACrimR 225, R v Capar (2002) 136 A Crim R 564.

In Saad [2007] NSW CCA 98 the Court warned about the necessity of giving reasons where a finding of special circumstances is made but no variation is made to the sentence. Hoeben J (McClellan CJ at CL and Hulme J agreeing) said:

[35] A similar situation was considered by the Court in Heron [2006] NSWCCA 215 where I said:
[31] Just because a finding of special circumstances is made, does not mean that a judge must vary the statutory ratio. Where a finding of special circumstances is made, however, it seems to me that the sentencing judge ought give some reasons why the statutory ratio is not being varied despite such a finding. The variation here was so small as to not amount to an allowance for special circumstances and no reasons were given by his Honour for adopting that approach.
[32] It seems to me that the sentence as ultimately fashioned, did not adequately reflect the finding of special circumstances made by his Honour and which was certainly warranted. There does seem to have been some error in his Honour's mathematics in his final formulation of the sentence'.
[36] Given the rather problematic basis for the finding of special circumstances, I can well understand why his Honour would decline to make any adjustment to the s44 statutory ratio between the non-parole period and the balance of term. Nevertheless, as explained in Heron, if his Honour proposed to follow that course, he should have given reasons why the statutory ratio was not being varied. I am of the opinion that error has been established in that regard.

23. Breach of s.12 Suspended Sentence Bond

Section 12 of the Crimes (Sentencing Procedure) Act1999 provides that a court that imposes a sentence of imprisonment for a term of less than 2 years may suspend the sentence on condition the offender enters into a good behaviour bond.

In DPP v Cooke [2007] NSWCA 2; (2007) 168 A Crim R 379 the Court of Appeal outlined the principles applicable when determining whether to revoke a suspended sentence given under s.12. The offender had received suspended sentences under s.12. He then committed a further offence (malicious wounding) for which he was given a further suspended sentence. The sentencing judge took no action on the breach of the earlier five bonds. The DPP appealed. Section 98(3) Crimes (Sentencing Procedure) Act1999 provides that a court must revoke a bond given under s.12 unless it is satisfied that (a) the offender's failure to comply with the bond was trivial or (b) there are good reasons for excusing the offender's failure to comply. In allowing the appeal, Howie JA (with whom Sully JA and Price JA agreed) said that the focus must be on the conduct which breaches the bond:

[14] A question then arises as to the extent of the power conferred on a court under s 98(3)(b) to excuse a breach of a bond entered into pursuant to s 12. It should be noted at the outset that what the court is required to consider is whether there are good reasons to excuse the failure to comply with the conditions of the bond in circumstances where that failure is not trivial in nature. The focus must principally be upon the behaviour giving rise to the failure to comply with the conditions of the bond and whether that behaviour should be excused. [emphasis added] ...


'Good reasons' may include extenuating circumstances explaining the behaviour giving rise to the breach:

[16] Clearly if there are extenuating circumstances of sufficient importance to explain the behaviour giving rise to the breach, the court can exercise its jurisdiction to take no action on the breach. So, for example, if the breach is the failure to report to a probation officer there might be good reasons to excuse that failure if the offender had some acute personal problem at the time such as illness or a death in the family. If the breach is a further offence, the failure to be of good behaviour might be excused because of extenuating circumstances leading to the offending behaviour. An example might be driving under the influence of alcohol in an emergency situation. In such a case the court is considering whether the conduct represents a contumelious act of defiance or disregard of the conditions of the bond entered into with the court.


The subjective circumstances of the offender are generally irrelevant to a determination under s.98(3). They are relevant to setting the non-parole period following revocation of the bond: [15], [34].

Howie J further said:

[25] Whatever else might be said about the reasons of the Judge in the present case, there appears to be no consideration at all of the policy behind suspended sentences. Nor is there any obvious appreciation of the intention of Parliament, that is made clear from the special provisions made for bonds under s 12 and the need for 'good reasons' to be found, that in the ordinary case a failure to comply with the conditions of the bond will result in its revocation.


The case was remitted to the District Court only to subsequently come before the Court of Criminal Appeal in Cooke [2007] NSW CCA 184. The sentencing judge had revoked the five earlier bonds and ordered that the sentence previously suspended be served by way of periodic detention. At the time the order for periodic detention was imposed the offender remained subject to the suspended sentence for the malicious wounding offence. The judge did not formally make an order revoking the earlier bond(s) (though it was accepted as a matter of practical reality this occurred: at [14]). The Court held this did not constitute an error invalidating subsequent orders. The Full Court (Tobias JA, Latham and Fullerton JJ in a joint judgment) said:

[18] A Court exercising the jurisdiction to call an offender before it for breach of a good behaviour bond as provided for in s 98(1) should, if it determines to revoke the bond under s 98(2)(c) or s 98(3), make that order before determining what, if any, further order will be made consequent upon the revocation and before considering what, if any, penalty will be imposed for the conduct giving rise to the breach. This has the virtue of making the exercise of discretion under s 99 a demarked and separate sentencing exercise, although we note that s 99(4) provides that this will be the effect of a sentence imposed under the section in any event. Sentencing for the breach first also allows for the principle of totality to operate in the event that both the breach and the conduct giving rise to it are punished by a term of imprisonment.
[19] We wish to make it clear however, that a failure to order revocation of a good behaviour bond does not constitute an error of the kind that would otherwise invalidate any orders made consequential upon revocation. ...

The sentencing judge had also misunderstood the Court of Appeal's judgment in DPP v Cooke [2007] NSWCA 2; (2007) 168 A Crim R 379 as meaning that revocation was mandated. Rather, it was necessary that the questions posed by s.98(3) be re-determined and then, if satisfied that revocation was mandated, undertake a sentencing exercise in accordance with ordinary principles: at [15]. The Court went on to find that the objective and subjective factors put forward, including the offender's lack of criminal history, did not amount to 'good reasons':

[24] We are not persuaded that either the objective or subjective matters so described constitute 'good reasons' however relevant they might be in sentencing for the malicious wounding. We have already referred to the objectively serious features of the malicious wounding offence. The subjective circumstances relied upon by the respondent do not inform the conduct in which he engaged, that is, they do not explain or shed light on the respondent's decision to join the assault upon the victim. They are irrelevant to the principal consideration under s 98(3)(b), namely, the conduct giving rise to the failure to comply with the conditions of the bonds.


Finally, the Crown argued that the suspended sentence (for the malicious wounding offence) should be disturbed due to s.12(2) Crimes (Sentencing Procedure)Act1999. Section 12(2) provides that an order under s.12 may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment. The Court said:

[32] We do not regard that section as having any application where, in the peculiar circumstances of this case, the order for periodic detention (a sentence which is a sentence of imprisonment albeit being served periodically) was passed after the order suspending the sentence for the malicious wounding and, accordingly, at a time when the respondent was not subject to a sentence of imprisonment although he was subject to a suspended sentence. The fact that he was subject to a suspended sentence is not caught by s 12(2) (see R v JRD [2007] NSWCCA 55).

24. Remarks During Course of Sentencing Proceedings

In Perrin [2006] NSW CCA 64 Smart AJ (with whom McClellan CJ at CL and Rothman J agreed) said:

[27] The Crown primarily relied upon the submission that the judge was well seized of the requirement to sentence the applicant only on the basis of the limited evidence tendered against him in the sentence proceedings. Unfortunately, in his remarks on sentence the judge did not do so. It is to those remarks that this Court must look. Those remarks cannot be qualified by earlier statements of intention as to what was intended to be done. This Court is always wary of attaching importance to remarks made by judges during discussions during sentence hearings. During those discussions ideas and tentative views are sometimes raised and then not maintained. Part of the purpose of the discussions is to correct misconceptions and errors. Of course, if the judge gives what amounts to a ruling or direction, or states that particular evidence is rejected or not required, the position may differ especially if it bears upon the course which the proceedings took.


In Pillay [2006] NSW CCA 402; (2006) 167 A Crim R 312 the Court did look to remarks made by the sentencing judge during the sentencing hearing to disprove the applicant's submission that due to the likelihood of the applicant's deportation and therefore the absence of the supervision of the New South Wales Probation and Parole Service, there was no basis warranting a finding of special circumstances: at [20]-[21].

In Quinlan [2007] NSW CCA 109 the applicant submitted that the sentencing judge erred with regard to the relationship between the length of the head sentence and non-parole period. The Court said:

[41] It is regrettable that his Honour did not incorporate into his Remarks on Sentence the exchange with counsel which followed the passing of the sentences and to which I referred. Nevertheless in the circumstances of this case it is appropriate to have regard to what was said by his Honour since it makes clear that his Honour was well aware of the principle of totality and of the effect of the sentences which he had passed, but was not prepared to make any alteration. In other words the comparatively short parole period did not occur as a result of some oversight by the sentencing judge, but was fully appreciated by him.


In Daniels [2007] NSWCCA 372 Grove J (Hulme and Simpson JJ agreeing) said:

[10] .... It is true that when there is an assertion of error what should primarily be looked at are the remarks of the sentencing judge, rather than exchanges during the course of the sentencing proceedings.
[11] In the appeal the Crown sought to draw attention to some of these exchanges and, in further response, counsel for the applicant took us to a number of decisions of this Court. In R v Pham [2005] NSWCCA 94 the then Chief Judge at Common Law, Wood J, said, amongst other things, in reference to such exchanges that "normally this Court will not find an error of principle from interchanges between the Bench and counsel."
[12] In R v Kain [2004] NSWCCA 143 Levine J said:
"Whether error was made is determined by considering the evidence and the remarks on sentence. There is little practical utility in considering the to-ing and fro-ing between the Bench and counsel during the course of submissions on sentence".
[13] And finally, we were referred to the decision in R v A [2004] NSWCCA 292 where again Wood J said: "Transparency in sentencing is necessary" and added: "It would not be safe to assume that some observations passed by a judge during submissions necessarily represents a considered or final view". None of these cases, of course, say that such exchanges can never be looked at or never be useful.
[14] In this case, in the absence of any elaboration, it is significant to note that there was an express exchange at some length between his Honour and counsel in which he made it clear that he regarded the existence of the record as limiting the leniency which might be extended to the applicant. Approached in that way he breached no principle of sentencing practice: Veen v The Queen (No 2) (1988) 164 CLR 465; R v McNaughton [2006] 66 NSWLR 566.
[15] This ground of appeal is not made out.

In summary, it appears that the Court in the normal course will confine itself to the remarks on sentence but exceptions have emerged.

25.  s.6(3)Criminal Appeal Act1912 and Post-Sentence Conduct

The CCA is still, almost a hundred years after the Criminal Appeal Act1912 was introduced, wrestling with the way the section is to be applied and its ambiguous wording.

Section 6(3) of the Criminal Appeal Act1912 provides:

"s.6(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal."


In Baxter [2007] NSWCCA 237, where sentencing error had been established, the Court had to consider whether evidence of post-sentence conduct is admissible when determining whether 'some other sentence ... is warranted in law and should have been passed' pursuant to s.6(3) Criminal Appeal Act1912. Following Douar [2005] NSWCCA 455; (2005) 159 A Crim R 154, the Court (Kirby J, with whom Spigelman CJ and Latham J agreed) held that such evidence is admissible. In Douar Johnson J (McClellan CJ at CL and Adams J agreeing) said:

[114] In the present case, error has been demonstrated on the part of the learned sentencing judge. This Court is empowered to pass another sentence if it is of the opinion that such other sentence is warranted in law and should have been passed.
...
[117] In Simpson, Spigelman CJ at [75]-[78] referred to Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558 where the Western Australian equivalent of s 6(3) was considered (a provision which Spigelman CJ described as being, relevantly, in the same terms as s 6(3)). In Dinsdale at [3]-[6], Gleeson CJ and Hayne J referred to the principles in House v The King as having direct application to the formation of the statutory (s 6(3)) opinion. Likewise, Gaudron and Gummow JJ at [21] and Kirby J at [58] referred to the principles in House v The King. It is not said in Dinsdale that, in a case where patent error is established, there is a cumulative requirement for the appellant to demonstrate that the sentence was manifestly excessive before the Court will proceed to resentence. The statutory test in s 6(3) is not equated with the test of manifest excess even where patent error has been demonstrated. Nor is it said that the Court is to be confined to the evidence before the original sentencing court in applying the s 6(3) test where patent error has been established.
...
[119] The strongest argument in favour of the narrow approach advanced by the Crown is the statutory construction argument based upon the use of the past-tense phrase "should have been passed" in s 6(3). Section 6(3) is curiously worded. The section mixes the present and past tenses. The section does not use consistently the past tense -- "was warranted in law and should have been passed" nor the present tense -- "is warranted in law and should be passed". A mixture of tenses is used.
[120] There is an ambiguity in this aspect of the section. Where competing constructions are available, a construction that would promote the purpose or object underlying the provision ought be preferred: s 33 Interpretation Act 1987 NSW. The purpose of s 6(3) should be understood against the background of statements of principle concerning the function of a Court of Criminal Appeal on a sentence appeal in cases such as House v The King, AB v The Queen and Dinsdale v The Queen
[121] The ambiguity appears in a section providing for appeals in the criminal context. There is an established practice of this Court whereby the Court receives evidence of post-sentence conduct which will be taken into account, if patent error or manifest excess is demonstrated, for the purpose of determining whether a different sentence should be substituted for the purpose of s 6(3) of the Act. This is a powerful factor which supports the Applicant's submission concerning use of evidence of post-sentence conduct, and which promotes the clear, consistent and effective administration of the criminal appellate jurisdiction under s 6(3) of the Criminal Appeal Act.


In Baxter [2007] NSWCCA 237 Spigelman CJ said:

[6] The only support for the Crown's contention in Douar, and in this Court, that additional evidence, including evidence of post-sentence conduct, is not admissible for purposes of formulating the opinion required by s6(3) is the admixture of the present and past tenses in that subsection: i.e. the contrast between " is warranted in law", on the one hand, and "should have been passed", on the other hand.
[7] In Douar at [119]-[121] Johnson J resolved this tension by stating that the text was ambiguous and the ambiguity should be resolved in favour of the practice of the Court to receive evidence of post-sentence conduct. In my opinion, his Honour's conclusion is correct.
[8] The dominant and active verbs in s6(3) are both in the present tense, i.e. if the Court of Criminal Appeal " is of opinion" and "some other sentence ... is warranted in law". The employment of the past tense in the phrase "should have been passed" is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence.
[9] This interpretation is consistent with the reference in s6(3) to s5(1). That section permits an appeal "against the sentence passed on the person's conviction". The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s6(3) should not be understood as saying "should have been passed by the sentencing judge". It should be understood as an institutional reference, i.e. "should have been passed by the Court".

Kirby J held that Douar should be followed: at [62]. Latham J expressly agreed with the remarks of Spigelman CJ: at [82].

Donnelly* in his paper* Hugh Donnelly, Director, Research & Sentencing, Judicial Commission of NSW
H Donnelly, Sentence Appeals in NSW: Success Rates and Recent Law, February 2008, Sentencing Conference, National Judicial College of Australia poses the question: Is it a pre-condition for intervention by a court of criminal appeal in a sentence appeal that the sentence is shown to be manifestly inadequate or manifestly excessive? Donnelly indicates that the answer is not as straightforward as it appears. Baxter [2007] NSWCCA 237, however, makes it clear that in cases involving patent error it is not a pre-condition to the formation of the opinion in s.6(3) for the Court to determine whether the sentence is 'outside the appropriate range': at [16]. The appellate practice suggested in Johnson [2005] NSWCCA 186 at [29] of considering whether the sentence imposed is outside the range unaffected by the error was expressly disapproved by the Court in Baxter [2007] NSWCCA 237 at [16]. This is not a precondition to the formation of the opinion referred to in s. 6(3) of the Criminal Appeal Act. This much at least is relatively straightforward.

The correct approach appears to be:
. error is established
. s.6(3) requires the Court to consider the re-exercise of the sentencing discretion
. in forming the opinion under s.6(3) the Court can take into account post-sentence conduct of the applicant once error established
. identification of error does not create an entitlement of the part of an applicant to a new sentence
. an error must be a material error. An error is a material error if it has the capacity to infect the exercise of sentencing discretion: Baxter [2007] NSW 237 at [60].

CONCLUSION
Undoubtedly 2008 will bring evermore complexity to sentencing law. We have much to look forward to particularly in relation to the recent amendments to s.21A Crimes (Sentencing Procedure) Act1999.

---------------------

APPENDIX A
Section 21A Crimes (Sentencing Procedure) Act 1999


21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(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),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(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),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) 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, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23);

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(6) In this section:
serious personal violence offence means a personal violence offence (within the meaning of section 562A of the Crimes Act 1900) that is punishable by imprisonment for life or for a term of 5 years or more.

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APPENDIX B
Section 54 Crimes (Sentencing Procedure) Act 1999

     
54A What is the standard non-parole period?
   
(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

     
54B Sentencing procedure
  
(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5) The failure of a court to comply with this section does not invalidate the sentence.

           
54C Court to give reasons if non-custodial sentence imposed
   
(1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.

(2) The failure of a court to comply with this section does not invalidate the sentence.

(3) In this section: non-custodial sentence means a sentence referred to in Division 3 of Part 2 or a fine.


54D Exclusions from Division


(1) This Division does not apply to the sentencing of an offender:

(a) to imprisonment for life or for any other indeterminate period, or
(b) to detention under the Mental Health (Criminal Procedure) Act 1990.

(2) This Division does not apply if the offence for which the offender is sentenced is dealt with summarily.

Table Standard Non-Parole Periods

Item NoOffenceStandard non-parole period
1A Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work 25 years
1B Murder—where the victim was a child under 18 years of age 25 years
1 Murder—in other cases 20 years
2 Section 26 of the Crimes Act 1900 (conspiracy to murder) 10 years
3 Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder) 10 years
4 Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest) 7 years
4A Section 35 (1) of the Crimes Act 1900 (reckless causing of grievous bodily harm in company) 5 years
4B Section 35 (2) of the Crimes Act 1900 (reckless causing of grievous bodily harm) 4 years
4C Section 35 (3) of the Crimes Act 1900 (reckless wounding in company) 4 years
4D Section 35 (4) of the Crimes Act 1900 (reckless wounding) 3 years
5 Section 60 (2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm) 3 years
6 Section 60 (3) of the Crimes Act 1900 (wounding or inflicting grievous bodily harm on police officer) 5 years
7 Section 61I of the Crimes Act 1900 (sexual assault) 7 years
8 Section 61J of the Crimes Act 1900 (aggravated sexual assault) 10 years
9 Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) 15 years
9A Section 61M (1) of the Crimes Act 1900 (aggravated indecent assault) 5 years
9B Section 61M (2) of the Crimes Act 1900 (aggravated indecent assault—child under 10) 8 years
10 Section 66A of the Crimes Act 1900 (sexual intercourse—child under 10) 15 years
11 Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding) 7 years
12 Section 112 (2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation) 5 years
13 Section 112 (3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation) 7 years
14 Section 154C (1) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board) 3 years
15 Section 154C (2) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation) 5 years
15A Section 154G of the Crimes Act 1900 (organised car or boat rebirthing activities) 4 years
15B Section 203E of the Crimes Act 1900 (bushfires) 5 years
15C Section 23 (2) of the Drug Misuse and Trafficking Act 1985 (cultivation, supply or possession of prohibited plants), being an offence that involves not less than the large commercial quantity (if any) specified for the prohibited plant concerned under that Act 10 years
16 Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that:

(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug

10 years
17 Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that:

(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug

15 years
18 Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that:

(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug

10 years
19 Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that:

(a) does not relate to cannabis leaf, and
(b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug

15 years
20 Section 7 of the Firearms Act 1996 (unauthorised possession or use of firearms) 3 years
21 Section 51 (1A) or (2A) of the Firearms Act 1996 (unauthorised sale of prohibited firearm or pistol) 10 years
22 Section 51B of the Firearms Act 1996 (unauthorised sale of firearms on an ongoing basis) 10 years
23 Section 51D (2) of the Firearms Act 1996 (unauthorised possession of more than 3 firearms any one of which is a prohibited firearm or pistol) 10 years
24 Section 7 of the Weapons Prohibition Act 1998 (unauthorised possession or use of prohibited weapon) - where the offence is prosecuted on indictment 3 years