Legal Research > Papers by Public Defenders

Court of Criminal Appeal Update : Review of 2009

 

Chrissa Loukas,
Barrister, Public Defender
March 2010

Chrissa Loukas thanks Ms Prita Supomo and Ms Jennifer Wheeler, Research Lawyers, Public Defenders Chambers, for their invaluable assistance in the preparation of this Paper.

Contents
Sentence Appeal cases

1. Standard Non-Parole Periods
2. Aggravating Factors
3. Mitigating Factors
4. Deferral of Sentencing for Rehabilitation
5. Mental Illness and Fitness to Plead
6. Joint Criminal Enterprise
7. Guilty Plea
8. Concurrent and Cumulative Sentences
9. Parity
10. De Simoni Principle
11. Other Sentence Cases
12. High Court


Conviction Appeal cases

1. Accused's Right to Silence: Sanchez [2009] NSWCCA 171
2. Putting Defence Case to Jury: El Jalkh [2009] NSWCCA 139
3. In-Court Identification and Failure to Discharge Jury: Aslett [2009] NSWCCA 188

Annexures / Appendix

A. ss54A-D Crimes (Sentencing Procedure) Act 1999
B. s 21A Crimes (Sentencing Procedure) Act 1999
C. High Court Cases
D. Legislation
E. Other Cases of Interest: DC, SC, CCA
F. R v JW [2010] NSW CCA 49, 22.3.2010


INTRODUCTION
This paper reviews some of the significant Court of Criminal Appeal sentencing and conviction appeal decisions through 2009. Not surprisingly section 21A of the Crimes (Sentencing Procedure) Act 1999 along with standard non-parole periods continue to be a fertile ground for appellate intervention. Continuing the general trend downward since 2005 the success rate for appeals against sentence by the offender continued to fall.

SENTENCE APPEAL CASES
1. Standard Non-Parole Periods
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 SNPP: s.54B Crimes (Sentencing Procedure) Act1999(Appendix A). Factors in s.21A Crimes (Sentencing Procedure) Act 1999 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.

Approach to determining sentence for SNPP offence
In SKA [2009] NSWCCA 186 the Court set out the correct approach to determining a sentence for an offence carrying a SNPP. Per Simpson J (McClellan CJ at CL and James J agreeing):
'[133] In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, this Court analysed Division 1A in considerable depth. Inter alia, it held that, in sentencing for offences to which Div 1A applies, it is necessary, firstly, to determine what is a notional offence in the mid-range of objective seriousness, and, secondly, to evaluate the objective seriousness of the offence in question relative to that notional offence. The Court pointed out that, while prior to the introduction of Div 1A, a routine part of the sentencing exercise was the evaluation of objective seriousness of the offence under consideration, it had not previously been necessary to approach that exercise with the same degree of analysis as is required by Div 1A; it was not necessary clearly to separate circumstances or features that were relevant to the objective gravity of the offence as distinct from the personal circumstances or features of the offender; and judges had gone about the task in a largely intuitive fashion.
[134] Post Pt 4 Div 1A, however, it is necessary for sentencing judges to take a more clinical approach. It is necessary, in every case, to evaluate the objective seriousness of the offence in question alongside and against the yardstick of a notional offence of its kind that falls into the mid-range of objective seriousness ( Way [76]). Accordingly, in Way, analysis of the meaning of "objective seriousness" was undertaken. Factors relevant to the assessment are:
. the actus reus
. the consequences of the conduct
. factors that might properly be said to have impinged upon the mens rea of the offender
. the mental state of the offender at the time of the commission of the offence (eg intention as distinct from recklessness)
. mental illness or intellectual disability where causally related to the commission of the offence.
[135] The Court drew a distinction between circumstances of the offence (of which those listed above are examples, or perhaps even a catalogue), which go to the evaluation of objective seriousness, and circumstances of the offender (eg youth, prior sexual abuse) that might explain or influence the conduct or otherwise impinge upon moral culpability, but are not relevant to that evaluation.
[136] The sentencing exercise under Pt 4 Div 1A involves sequential steps:


(i) the construction of a notional offence in the mid-range of objective seriousness;
(ii) by reference to those circumstances of the offence under consideration that denote objective seriousness (as distinct from circumstances personal to the offender), evaluation of the relative objective seriousness of that offence;
(iii) (a) where the offence is judged to be of mid-range seriousness, determination whether (having regard only to the s 21A catalogues) there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period;
(b) where the offence is judged to be of objective seriousness of greater or less than mid-range gravity, selection of a sentence in accordance with s 44(2), having regard always to the standard non-parole period as a guide or reference point'.


The statement by Simpson J in (iii)(a) above should be read subject to Way (2004) 60 NSWLR 168 at [56] - [57] as including the common law:

'[56] In this regard, it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). [57] Furthermore, s 21A(1) preserves the entire body of such principles. They fall within the scope of "matters" which are "required or permitted to be taken into account under any ... rule of law". The judicially developed body of sentencing principles constitute "law" for the purposes of this clause and also for purposes of s 21A(4). When Parliament referred, in s 54B(1), s 21A as identifying the matters for which a non-parole period that is shorter or longer than a standard non-parole period may be set, it was not referring to a narrow list of considerations. '



Reasons for departure from SNPP must be clearly stated
In El-Chammas [2009] NSWCCA 154 the Court said that the reasons for departing from the SNPP should be stated with some specificity. Per Buddin J (Giles JA and Howie J agreeing):
'[25] Due allowance must of course be made for the fact that the remarks on sentence were made ex-tempore during the course of what was no doubt a very busy list. Nevertheless it does not appear to me that the sentencing judge has sufficiently complied with the statutory requirement to state his reasons for departing from the standard non-parole period. Those reasons need to be stated with some specificity and the greater the departure from the standard non-parole period, the more compelling the reasons need to be. .........'.

Whether necessary to consider the 'putative mid range offence and contrast with the present offence'- Extent of reasons in assessing objective seriousness of offence
In KAF [2009] NSWCCA 184 the sentencing judge found the sexual assault offences were within the mid-range of objective seriousness and explained her reasons for not imposing the SNPP. The applicant submitted that the judge erred because she did not "postulate what the putative mid point offence was in relation to these offences". The Court discussed the extent of the reasons required when assessing objective seriousness. Per McClellan CJ at CL J (Spigelman CJ and Johnson J agreeing):
'[18] .......... Emphasis was placed on the reasons of the court in R v Way (2004) 60 NSWLR 168 at [72] where it was said:

"It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified."


See also Vu v R [2006] NSWCCA 188 at [29], [30], [31].
...................................
[20] Although a sentencing judge must by his or her reasons disclose that the objective seriousness of the instant offence has been determined after consideration of the range of objective seriousness which the offence contemplates, elaborate reasoning is not required in many cases. Apart from the passage emphasised by the applicant this Court emphasised in Way that the process must be approached intuitively and is "based upon the general experience of the courts in sentencing for the particular offence" (at [74]-[75]). The court said that the process of reasoning would: "depend upon a combination of sentencing experience, which is based upon the range of incidents which go to make up cases of the relevant kind that come before the courts, combined with an understanding of the facts which are necessary elements of the offence, as well as those that are concerned with its consequences and the reason for its commission (at [79])."
[21] The court confirmed that the task required of the sentencing judge would not differ to any material extent from that which had always been necessary in evaluating the objective seriousness of an offence. The assessment of where an offence falls in the range of objective seriousness "involves a subjective judgment, based on experience, as well as information, which cannot be precisely and comprehensively articulated" R v JCE [2000] NSWCCA 498 at [19]; (2000) 120 A Crim R 18 at [19]. A sentencing judge is not expected to write an essay in jurisprudence when delivering remarks on sentence R v Duffy [1999] NSWCCA 321 (at [11]).


The Court said at [22] that it was open to the sentencing judge to find the offence within mid-range having identified the critical matters of the age of the victim, that she was under the applicant's authority, the limited degree of penetration and there being no evidence of physical injury. Although the judge's reasons were not elaborate the nature of the statutory offences and the circumstances of the particular offences did not require any greater consideration of these issues.

In Cheh [2009] NSWCCA 134, a Crown appeal, the Crown argued that the sentencing judge's remarks were inadequate. Although the appeal was dismissed, McClellan CJ at CL (James and Adams JJ agreeing) agreed stating:
'[22] As I have indicated there are multiple problems with these remarks. Her Honour in considering the objective seriousness of the offence did not apparently have regard to the principles discussed by this Court in R v Way (2004) 60 NSWLR 168. It would be unnecessarily repetitive for me to incorporate into these reasons the description in Way of the sentencing task required to be undertaken by a judge who must consider a standard non-parole period. They were carefully considered by the joint judgment of the court which must be continually borne in mind by sentencing judges: (see also Simpson J in R v AJP [2004] NSWCCA 434; 150 A Crim R 575). Although her Honour described the offence as "falling somewhere in the mid-range of objective seriousness and perhaps slightly below the mid-range of objective seriousness" her Honour did not explain, in any satisfactory way, her reasons for this conclusion. The conclusion itself was inadequate; the offence was either within the mid-range or it was not and her Honour should have turned her mind to this question with precision. I have previously commented on these problems in R v Knight; R v Bivanua NSWCCA (2007) 283 see [4]; 176 A Crim R 338; and the discussion by Howie J at [39]. The lack of attention given to the task which the sentencing judge was required to undertake compared with the emphasis her Honour gave to subjective matters suggest that an error may have occurred'.


No error where NPP equivalent to SNPP imposed
In Leslie [2009] NSWCCA 203 the offender was sentenced for an offence of aggravated break, enter and steal under s 112(2) Crimes Act, which carries a maximum penalty of 20 years and a SNPP of 5 years. He received a sentence of 10 years with a NPP of 5 years. The CCA rejected the submission that the sentencing judge erred in assessing the objective seriousness of the offence and in imposing a NPP equivalent to the SNPP where the offender had pleaded guilty. Per Hoeben J (McClellan CJ at CL and Howie J agreeing):
'[44] This Court will not normally interfere with a sentencing judge's findings in respect of the objective seriousness of an offence: Mulato v Regina [2006] NSWCCA 282. In that case Spigelman CJ said:

"[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open ..."

[45] The applicant submitted that the imposition of what was in effect the standard non-parole period for this offence was inappropriate in all the circumstances. He submitted that having pleaded guilty the standard non-parole period became at most a guidepost or benchmark in determining the appropriate sentence and should not have been the starting point. He submitted that his Honour had fallen into error because he failed to have sufficient regard to the 15 percent discount for the plea of guilty, the finding of special circumstances and the applicant's objective circumstances and explanation for his drug abuse.
[46] This submission should not be accepted. This Court has on many occasions stressed the need for sentencing judges to not merely pay lip service to the existence of standard non-parole periods, but to genuinely give them force and effect as guideposts or benchmarks in determining appropriate sentences.

[47] Standard non-parole periods are to be imposed, absent other considerations, in relation to offences at the midrange level of seriousness. Once one accepts that it was open to his Honour to assess the level of seriousness of this offence at above the midrange of seriousness, no criticism can be made of him fixing a non-parole period which was the same as the standard specified by statute. His Honour was doing exactly that which was mandated by R v Way, i.e. using the standard non-parole period as a guidepost or benchmark. R v Way makes it clear that such an approach is to be followed even where a plea of guilty has been entered'.

Error to take into account same matters in departing from SNPP and in finding special circumstances
In Quin [2009] NSWCCA 16 the sentencing judge erred in that the same matters which were into account in departing from the standard non-parole period were then taken into account as special circumstances in further reducing the non-parole period: at [41]. This amounted to 'double counting'Price J (Tobias JA and James J agreeing) said:
'[35] In R v Fidow Spigelman CJ said at [18]:

"In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision's to be that the statutory proportion of one-third be "less". '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. (see Simpson at [47]). 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."

[36] Whilst it is true that what was said by the Chief Justice in Fidow at [18] cautioned against the double counting of matters already taken into account in reducing the head sentence and then in the finding of special circumstances to vary the statutory proportion of the non-parole period, sentencing Judges, in my view, should also take care to ensure against double counting when a matter is taken into account in departing from the standard non-parole period and then as a special circumstance justifying a variation in the statutory proportion between the non-parole period and balance of the term of the sentence thereby further reducing the mandatory period of imprisonment. Section 44(1) of the Crimes (Sentencing Procedure) Act provides that the balance of the term of the sentence should not exceed one-third of the non-parole period unless there are special circumstances, in which case reasons must be given: s 44(2).
[37] This Court said in R v Way (2004) 60 NSWLR 168 at [110]:

"While many of the factors which qualify as special circumstances will be taken into account as factors specifically listed in s 21A in determining the appropriate non-parole period, it does not necessarily follow that its work is fully done at that stage, although caution will need to be exercised so as to avoid inappropriate double counting." (underlining added).

[38] The Court explained in Way at [112] that while there are separate considerations involved for s 44(2) of the Crimes (Sentencing Procedure) Act and for reasons for not imposing the standard non-parole period, the relevant steps can be taken simultaneously. By avoiding a two stage process, the risk of double counting is reduced'.

Absence of aggravating factor does not convert into mitigating factor
In Luizos [2009] NSWCCA 71 the offender was sentenced for soliciting to murder her ex-husband. The judge found the offence low in objective seriousness because his Honour was not satisfied beyond reasonable doubt that the offender had committed the offence to gain custody of her children. However, the Court said it was an error to convert the absence of a finding of motive as an aggravating factor into a mitigating factor. Further, the judge had failed to properly assess the objective seriousness of the offence. Per Howie J (McClellan CJ at Cl and Grove J agreeing):

'[91] In considering this issue his Honour appears to have fallen into the error of converting the absence of a finding of an aggravating factor into a mitigating factor. For example, his Honour was not satisfied that the motive was to "derail or pervert" the pending Family Court proceedings. But this finding did not mitigate the offence because had the offence been so motivated this would have been a seriously aggravating factor and would have resulted in the offence being in the most serious category. Unless his Honour concluded that there was a motive that could truly be characterised as mitigating, the offence remained a very serious one; it simply was not as serious as it might have been had a motive been found that could be characterised as aggravating. '
.......................
Howie J at [97] then referred to the authorities which set out how a sentencer should approach a consideration of the SNPP ( MLP (2006) 164 A Crim R 93 at [33]; Mencarious [2008] NSWCCA 237) and continued:
[99] Nowhere in the sentencing remarks did the Judge attempt to determine the objective seriousness of the particular offence committed by the appellant in the way described in this passage. Although he listed the aggravating and mitigating factors under s 21A in one paragraph of his remarks, it was not in the context of assessing the objective seriousness of the offence as against an offence in the mid-range of seriousness. In any event one of those factors, that is the appellant's prospects of reoffending, was not a matter relevant to a determination of the objective seriousness of the offence. The fact that an offender has no prior record, another factor mentioned by his Honour, does not of itself impact upon an assessment of the objective seriousness of the offence. Without determining the relevant factors, considering how they operated in the particular case and deciding what weight they were to be given in assessing the objective seriousness of the offence, his Honour could never properly determine whether the standard non-parole period should be imposed or whether there were reasons to depart from it.
[100] This was a fundamental error in the approach taken by his Honour and clearly caused his discretion to miscarry. It explains why the sentence falls so far short of the standard non-parole period and the objective seriousness of the offence. As indicated above, putting aside the question of motive, the appellant's culpability was great and the objective seriousness of the offence was high. It was significantly above mid-range of seriousness having regard to the appellant's conduct and the consequences of the offence. It remained so even accepting that the appellant's motive was a desire to remain with her children. That was not, in my opinion, a motive that was capable of mitigating the seriousness of the offence.
................
[102] An offence is not mitigated by the fact that no comprehensible motive can be shown. Motive is like any other aspect of the circumstances surrounding the commission of an offence. The Crown is only required to prove the elements of the crime charged. If the Crown wishes to rely upon motive as an aggravating feature, the Crown must prove it beyond reasonable doubt. If the accused contends that the motive is a mitigating factor, the accused is required to prove it on the balance of probabilities. If the court cannot determine what motivated the offender, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing.
...........................
[107] Because the Judge failed to determine the objective seriousness of the offence as he was required to do in order to consider where it stood against a mid-range offence and because he erroneously used motive as a mitigating factor to depart from the standard non-parole period, his discretion miscarried. I have already stated my opinion that the offence was above mid-range in objective seriousness even if I accept that her motive was not an aggravating factor'.

Maximum penalty remains relevant despite SNPP
In Terkmani [2009] NSWCCA 142 the Court said that the maximum penalty remains a relevant consideration despite the presence of a SNPP:
'[17] His Honour correctly identified the standard non-parole period as being 5 years and said (ROS at 1): The main issue that I need to resolve in sentencing Mr Terkmani is whether or not I apply the standard non-parole period.
[18] It seems that the Judge's concentration on the standard non-parole period diverted his attention away from the maximum penalty. Sentencing Judges should bear in mind that consideration of the correct maximum penalty is not made irrelevant by the presence of a standard non-parole period and is fundamental to a determination of the appropriate sentence to be imposed: Regina v Shankley [2003] NSWCCA 253. The standard non-parole period is but one aspect of a sentence: MLP v R [2006] NSWCCA 271. The maximum penalty serves as a yardstick or a basis of comparison between the case before the Court and the worst possible case: Markarian v R (2005) 79 ALJR 1048 at [31]'. SNPP applies to 'Knowingly taking part in' manufacture of large commercial quantity of drugs
In Hosseini [2009] NSWCCA 52 the Court held that the SNPP provisions apply to the offence of 'Knowingly taking part in' manufacture of large commercial quantity of drugs (s 24(2) Drug Misuse & Trafficking Act 1985). The SNPP Table refers to s 24(2) but reference in brackets is made only to ' manufacture or production' of drugs with no reference to ' knowingly take part in.'Price J (Hodgson JA and James J agreeing) held the words within the brackets in the Table items do not identify or limit in any way the offence to which the SNPP applies. The offence to which the SNPP applies is identified by the section of the statute which is found opposite the SNPP in the particular Table item'.: at [48].

Whether SNPP applies to offences of aiding and abetting
In SAT [2009] NSWCCA 172 the Court said that it remains to be authoritatively determined whether the SNPP applies to offences for aiding and abetting. The offender was charged with aiding and abetting an offence under s 66A Crimes Act (sexual intercourse with child under 10) to which a SNPP of 15 years applies. The Court held there was no reason to depart from the approach taken in DJB v R, R v DJB [2007] NSWCCA 209 and Merrin [2007] NSWCCA 255. Those cases involved aiding and abetting offences and the SNPP was found to apply. Per Buddin J (Grove and Howie JJ agreeing):
'[55] It is pertinent to observe that in neither DJB nor Merrin was any issue raised as to whether the standard non-parole period provisions did in fact apply and presumably in those circumstances there was no occasion for the court to consider the question of principle which presently arises.
[56] The principles which are to be applied in cases of ancillary or accessorial liability are not without their difficulties. The High Court provided a comprehensive analysis of them in Osland v The Queen (1998) 197 CLR 316 especially per McHugh J at 341-351. That analysis includes a discussion of the concept of joint criminal enterprise and common purpose. The factual scenario which arose in GAS & SJK (supra) provides one such illustration of the difficulties which can arise. There two offenders broke into the victim's premises. During the course of the incident the victim was killed. As the Crown was unable to prove to the requisite standard which of the offenders was responsible for the death, each offender was treated as an aider and abettor and not as the principal in the first degree. See also Mohan v The Queen [1967] AC 187. None of those complexities were addressed in the supplementary written submissions. Accordingly, in my view, the issue which has been raised remains to be authoritatively determined. That said, I see no reason for present purposes at least, to depart from the approach taken in DGB (supra) and Merrin (supra)'.

(The Court noted at [51] that SNPPs do not apply to offences of attempting to commit substantive offences other than offences of attempted murder: DAC [2006] NSWCCA 265; or to conspiracy offences: Diesing & Ors [2007] NSWCCA 326).

s 66A Sexual intercourse with child under 10 - Absence of force or threats not irrelevant to assessment of objective gravity
In SKA [2009] NSWCCA 186 the Court said that the absence of force of threats is not irrelevant to an assessment of the objective gravity of an offence under s 66A Crimes Act, but is relevant in a limited way.

The respondent was convicted of counts under s 66A and s 66C (constituted by acts of digital penetration). The sentencing judge found the offences to be less than mid-range in objective seriousness due to, amongst other things, '... the absence of force or violence in committing the offences, and the absence of any threat, or admonition to silence on the part of the complainant': at [179]. The Court rejected the Crown's submission that the absence of force or threats is irrelevant to the assessment of objective gravity. Per Simpson J (McClellan CJ at CL, James J agreeing):
'[185] Contrary to the submissions of the Crown, the absence of force or violence, threats or importuning the complainant to silence are not, in my opinion, irrelevant to the assessment of objective gravity. But they are relevant in a limited way, and caution needs to be exercised to ensure that they are not taken into account in an impermissible way. They are principally relevant to the determination of what constitutes a notional offence in the mid-range of objective gravity. It is true that offences against s 66A are frequently accompanied by one or more of those circumstances - threats, violence, force or importuning the victim to silence. If they are absent, that may well and legitimately signal that the offence under consideration falls short of that degree of objective gravity. Accordingly, I would reject the Crown's submission that these considerations were irrelevant to that evaluation.
..................
[188] Courts dealing with offences against s 66A are familiar with the very wide, and sometimes brutal, means by which the offence may be committed. It is, as the sentencing judge recognised, often accompanied by threats, force, violence, entreaties or admonitions to secrecy. These factors, where present, are relevant to the assessment of objective gravity (as escalating that gravity); where absent, they are equally relevant to the assessment of objective gravity (as diminishing that gravity)'.

The Court found that it was open to the judge to find the offences were less than mid-range. However, in respect of the s 66A count there was failure to have proper regard to the applicable SNPP and the Crown appeal was allowed on this ground: [192].

However, the absence of struggle or resistance by a child victim cannot mitigate an offence. In Woods [2009] NSWCCA 55 the judge found offences under s 66A (constituted by fellatio with young boys) were not within the mid-range of objective seriousness as there was no suggestion of force, threats, pain, discomfort or apparent unwillingness. The Court (Giles JA, Latham J and Mathews JA) said:
'[53] ...... The structure of the offences, and the legislative policies underpinning them, assume that young children are not capable, by and large, of understanding the significance of sexual activity (hence the absence of informed consent) or of asserting their will over that of an adult. How then, can the fact that a victim co-operates with an offender be relevant to an assessment of the objective gravity of an offence of this type? That is not to say that evidence of a victim's resistance and/or an offender's efforts to restrain a victim are not relevant to an assessment of objective gravity for offences of this type. Such a circumstance would aggravate a child sexual assault offence. But the absence of struggle or resistance (that is, the child's co-operation) cannot, in our view, mitigate such an offence'.

Failure to give reasons for non-custodial sentence where SNPP applies
In Thawer [2009] NSWCCA 158 the sentencing judge erred in failing to give reasons for imposing a non-custodial sentence where a SNPP applies: s 54C Crimes (Sentencing Procedure) Act 1999. The respondent pleaded guilty to recklessly causing GBH (s 35(2) Crimes Act) to which a SNPP of 4 years applies. The respondent, who suffered schizophrenia, stabbed a friend after an argument. The respondent was sentenced to imprisonment for 16 months, wholly suspended (s 12 Crimes (Sentencing Procedure) Act 1999). Allowing the Crown appeal, Howie J (Giles JA and Latham J agreeing) said:
'[38] ..... ... 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.

A suspended sentence is referred to in Division 3 of Part 2 of the Act.

[39] In my opinion a court does not comply with the provision simply by giving reasons for sentence. If that were the case, the section would be otiose because there is a common law requirement that a court give reasons for imposing a sentence at the time the sentence is pronounced. In my view the section requires that a court explain why it is that, despite the fact that the offence falls within the provisions dealing with the standard non-parole period, a sentence without a non-parole period is being imposed. Of course, as the section states, the failure to comply with it does not invalidate the sentence. But had her Honour endeavoured to comply with the section, it might have brought to her attention the inappropriateness of the course she was adopting having regard to the fact that the offence was one to which the standard non-parole provisions applied and to her finding that the offence was within the midrange of seriousness'.

s 112(3) Specially aggravated breaking and entering and committing a serious indictable offence
In Smith [2009] NSWCCA 17 the Court found the offence ought to have been assessed as much below the middle range, not mid-range or lower mid-range. The applicant pleaded guilty to specially aggravated breaking and entering and committing a serious indictable offence, being malicious wounding (s 112(3) Crimes Act). The applicant, who had a developmental disability and was known to the victim, entered the victim's home and stabbed her with a knitting needle. The offence was unpremeditated, the weapon was at the house and the injuries were minor. The applicant was sentenced to 6 years imprisonment with a non-parole period of 3 years and 3 months. James J (McClellan CJ at CL and Adams J agreeing) said:
'[25] ...... the court should find that his Honour erred in his assessment of the level of objective seriousness of the offence. In my opinion, the objective seriousness of the offence was below, and much below, the middle of the range of objective seriousness for offences under s 112(3).
[26] Earlier in this judgment I quoted a part of his Honour's remarks on sentence, in which his Honour listed some of the matters mitigating the objective seriousness of the applicant's offence, including that the applicant was known to the persons in the house, there was no secret or forceful entry by the applicant into the house, there was no bringing of any weapon into the house, the weapon used by the applicant was a knitting needle which the applicant opportunistically took up while he was in the house and the physical injuries sustained by the victim, although distressing to her, were very minor, only barely amounting to a wounding. The offence was clearly quite unpremeditated. The applicant's developmental disability and low level of intellectual functioning mitigated the objective seriousness of the offence, because these factors were causally related to the commission of the offence (see R v Way (2004) 60 NSWLR 168 at 186-187) (86))'.

The Court allowed the appeal and imposed a new sentence of 5 years with a non-parole period of 2 years and 6 months.

In Micklesson [2009] NSWCCA 61 the 'serious indictable offence' being 'assault occasioning actual bodily harm' precluded the offence from being assessed towards the top of the range: at [18]. The offender, aged 18 with no prior criminal record, entered a unit with three co-offenders and assaulted one of the occupants. A co-offender fired his shotgun three times. The sentencing judge found the offence was planned and committed in company, the shotgun loaded, there were a number of victims, multiple criminal acts, and people resided in the premises. The judge concluded the offence was "well above the mid-range'and imposed a sentence of 9 years imprisonment with a non-parole period of 6 years. Dismissing the applicant's appeal, Howie J (Beazley JA and Blanch J agreeing) said:

'[18] The only matter that kept this offence from being towards the top of the range on an assessment of the objective criminality of cases coming within the section was the fact that the "serious indictable offence" alleged was an assault occasioning actual bodily harm. That is an offence that carries a maximum penalty of imprisonment for 5 years and is at the lowest range of offences that could fall within the scope of "serious indictable offence" for the purposes of s 112(3). The relevance of the nature of the offence which was to be committed after breaking and entering the premises was considered by Simpson J in R v Huynh [2005] NSWCCA 220. That was an offence contrary to s 112(2) and the serious indictable offence was larceny, which also carries a maximum penalty of 5 years imprisonment. Her Honour held that the fact that the offence was one that just fell within the scope of a "serious indictable offence" did not prevent a particular instance of the offence from falling within the mid-range of seriousness even though there could be more serious examples of offences falling within the scope of that section. As her Honour noted, the sentencing court looks at all the surrounding circumstances when assessing the degree of objective seriousness.
[19] Because the offence was so serious less regard could be had to the applicant's age, his lack of relevant criminal record and his prospects of rehabilitation. The sentence imposed by his Honour was a heavy one but it cannot be said that it fell outside of his discretion'.

Effect of increase in SNPP on sentence
In GSH [2009] NSWCCA 214 the respondent was convicted at trial of three counts of aggravated indecent assault under s.61M(2). At the time of sentence, on 19 September 2009, the Crown indicated the standard non-parole period was 5 years and the respondent was sentenced on this basis. In fact the standard non-parole period had been increased to 8 years on 1 January 2008. The Crown appealed against the sentence on the grounds that the judge had erred in the application of the standard non-parole period and that the sentence was manifestly inadequate. The respondent invited the Court to exercise its discretion not to intervene on the basis that the Crown had led the sentencing judge into error and that the trial had been originally listed to commence in the November before the change had come into effect and been delayed through no fault of his own. The court allowed the appeal and declined to exercise its discretion:
[61] I am mindful of the principles relating to Crown appeals that operate to constrain the Court's intervention. There is theoretical scope for the application of the discretion not to intervene, particularly where the conduct of the Crown has contributed to the identified errors. I would reject the argument that the discretion is engaged by some unexplained delay in the commencement of the respondent's trial. There is no evidence before the Court of an earlier trial date that was vacated on the application of the prosecution. The evidence, such as it is, establishes that the Crown and the respondent took advantage of an opportunity to resolve a dispute about the admissibility of potentially prejudicial evidence, in advance of the trial date. In the result, I have come to the view that the aggregate sentence in particular falls so far short of reflecting the respondent's criminality that the discretion ought not be exercised. Accordingly, I would allow the Crown appeal and proceed to re-sentence.
A special leave application to appeal to the High Court was refused on Friday, 12 March 2010.

2. Aggravating Factors
2.1 s 21ACrimes (Sentencing Procedure) Act1999
Section 21A Crimes (Sentencing Procedure) Act1999 ( Appendix B) sets out aggravating and mitigating factors that a sentencer is to take into account in determining the appropriate sentence. This is an area that has given rise to a plethora of appeals in relation to aggravating factors and double counting and continues to do so.

s. 21A(2)(f) - gratuitous cruelty
In McCullough [2009] NSWCCA 94, a malicious wounding case, the sentencing judge erred in applying a dictionary definition of 'gratuitous cruelty'to the facts and thereby finding the offence aggravated by s 21(A)(2)(f): [29]. Howie J said that if the definitions applied by the judge were correct, the aggravating factor would be present in any offence that is committed without justification and causes the victim great pain: [28]-[29]. Howie J (McClellan CJ at CL and Simpson JJ agreeing) discussed what constitutes 'gratuitous violence':
'[30] Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain.
[31] There may be cases of malicious wounding where the factor is present because of the nature or purpose of the wounding, for example where it involved a type of torture. In TMTW v R [2008] NSWCCA 50 the applicant inflicted pain on the victim by the use of a pair of pliers applied to the victim's penis and scrotum. It was held that the judge was correct to find that offence was committed with gratuitous violence. In R v Olsen [2005] NSWCCA 243 gratuitous cruelty was found by reason of the infliction of a very large number of injuries to a very young child. But there was nothing in the present case that gave rise to this factor of aggravation in the nature of the attack upon the victim'.

In Saddler [2009] NSWCCA 83, involving possess child pornography, it was an error to find the offence aggravated by gratuitous cruelty where there was no evidence the offender engaged in any activity that contributed to the creation of the images. Buddin J (Grove and Price JJ agreeing) said at [43] the cases support the conclusion that some activity on the part of the offender is required: King (2004) 150 A Crim R 409; Hoerler (2004) 147 A Crim R 520.

s. 21A(2)(i) - disregard public safety
In Hei Hei [2009] NSWCCA 87 the appellant pleaded guilty to aggravated dangerous driving cause death; the aggravation being intoxication. The Court said that 'disregard for public safety' can sometimes be taken into account in aggravation for an offence under s 52A(2). However, the sentencing judge considered 'disregard for public safety' as an aggravating factor on the basis of the appellant's intoxication. There was no evidence to support this and it amounted to double counting: at [19]-[21] referring to R v Way (2004) 60 NSWLR 168; R v McMillan [2005] NSWCCA 28; Elyard v R [2006] NSWCCA 43. Per Rothman J (McClellan CJ at CL and Buddin J agreeing):
'[19] In some circumstances, there can be aggravation as a result of the disregard of public safety in an offence of this kind. If the sentencing judge were in a position to be able to determine that there were sources of aggravation, beyond the factors inherent in the charge, then s 21A(2)(i) would operate as a statutory embodiment or source of aggravation. His Honour made clear, however, that there was no evidence sufficient to make findings of fact beyond reasonable doubt that the offender was driving at excessive speed or in some manner dangerous to the other road users, other than the factor of aggravation associated with his alcohol consumption, which is the element of the offence in question.
...................
[21] Given the inability of his Honour to find any other factor, which is conduct in disregard of public safety, the comment (at page 11 of the Remarks on Sentence) that s 21A(2)(i) "is a matter ... to be taken into account" was to "double count" the effect of the aggravation giving rise to this offence'.

In MP [2009] NSWCCA 87 the appellant was charged with conspiracy to sell firearms. The Court said there was no error in finding 'disregard public safety' as an aggravating factor. Firearms 'once placed in circulation, can continue to constitute a risk to police officers and members of the public for many years into the future': at [36]. Further, it was correct to find also that the longevity of the risk and the number of weapons (over 740) placed into circulation overwhelmingly established that the risk to the public "exceeds the norm": at [37].

s. 21A(2)(ib) - offence involved a grave risk of death
Section 21A(2)(ib) is one of the new aggravating factors which commenced on 1 January 2008. In Sproates [2009] NSWCCA 29 an offence of maliciously inflict grievous bodily harm with intent was aggravated by involving a grave risk of death:
[52] His Honour found that the offence had been aggravated by the fact that a gun had been used (s 21A(2)(c)). He also found it involved a grave risk of death (s 21A(2)(ib)).
The offender had fired three gunshots in the victim's direction. One bullet had struck the victim in the abdomen and left him with serious injuries.

s. 21A(2)(k) - breach of trust
In Suleman [2009] NSWCCA 70 it was an error to find a 'breach of trust' on the basis of the appellant's 'particular relationship in the Assyrian community'and because some of the offences were 'committed on commercially naive people.'Howie J (McClellan CJ at CL and Hislop agreeing) said that a position of trust exists where there is a special relationship between the offender and victim that transcends the usual duty of care arising between persons in the community in their everyday contact or business. The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship: [22]-[24]. Per Howie J:
'[25] But the common law does not recognise, for the purposes of sentencing, that a position of trust arises simply because the two persons are involved in a commercial relationship. There must be some peculiar aspect of the relationship that imposed a position of trust on one or both of the participants. Such relationships were considered in R v Martin [2005] NSWCCA 190 at [40] and included a real estate agent fraudulently omitting to account to a client and dishonesty offences by a solicitor in carrying out his duties.
[26] It has been made perfectly clear both by the wording of s 21A(2) and decided cases that the section was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: R v Wickham [2004] NSWCCA 193; R v Johnson [2005] NSWCCA 186. The common law would not have identified the fact that the applicant was considered to be a successful businessman within the Assyrian community as imposing a position of trust upon him in relation to any person in that community with whom he dealt. Neither does s 21A(2)(k). ...
[27] The Crown before this Court made the submission that the formal investment agreements themselves imposed upon the applicant a position of trust in relation to the investors because by entering those agreements they trusted in his honesty. That submission should be rejected and would impose a position of trust on almost every person entering into a commercial agreement. Nor does a position of trust arise simply because one of the persons to the agreement is commercially naive'.


s. 21A(2)(m) - multiple series of criminal acts
In Ourdi [2009] NSWCCA 46 it was an error to find a series of break and enter offences, each involving separate victims, aggravated by s 21A(2)(m). Kirby J (Grove and Blanch JJ agreeing) referred to Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 where it was said that s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct.

In Cicciarello NSWCCA 272 the applicant was sentenced for 'supply not less than a commercial quantity of methylamphetamine' to which a SNPP of 10 years applies. The Court held that where a series of criminal acts lead to the more serious criminal charge being laid, it is double counting to then find the offence aggravated by s 21A(2)(m). Per the Court:
'[19] Ground 3 concerned the way the sentencing judge took into account as an aggravating factor the fact that there was a series of criminal acts: the Crimes Sentencing Procedure Act (1999) (NSW), s 21A(2)(m). The difficulty with this is that those multiple criminal acts were the foundation for the more serious offence with which he was charged, namely supply of not less than a commercial quantity of the drug for which a maximum penalty of 20 years imprisonment was provided. They were not strictly elements of the offence charged, as for example they would have been in an offence of on-going supply under the Drug Misuse and Trafficking Act, s 25A. In such a case, the Crimes(Sentencing Procedure) Act, s 21A would expressly prohibit a sentencing court from having additional regard to such matters as an aggravating factor. The risk of double counting in the assessment of objective seriousness in that case would thereby be avoided. Here, when the series of criminal acts leads to the more serious criminal charge being properly laid against the applicant, the prohibition against double counting is undermined if the same series of criminal acts is taken into account as an additional aggravating factor, in turn leading to an erroneous characterisation of the offence as one of mid-range seriousness. The above is consistent with Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 at 747 [29]'.

s. 21A(2)(n) - planned or organised criminal activity
In SS; JC [2009] NSWCCA [114], a robbery matter, the Court noted that there were different views on whether the offender had to have been involved in the planning of an offence for it to constitute a 'planned' activity. It was unnecessary to determine the issue in this case. Per Price J (Tobias JA and James J agreeing):
'[96] The offence was undoubtedly planned by Byrne. The Crown, however, concedes that the evidence of the degree of planning of the robbery was not so much greater than that inherent in such an offence as to warrant the finding of an aggravating circumstance and error has been established.
[97] During submissions, the Crown referred to a present lack of clarity as to whether planning under s 21A(2)(n) applies only where the offender has been involved in the planning of the offence, or whether it is sufficient where the offence itself was planned, to take planning into account as an aggravating factor. This Court, it was suggested, has adopted two different approaches to this issue which are as follows:

Simpson J in Legge v R [2007] NSWCCA 244 (with whom Spigelman CJ and Harrison J agreed) said at [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."
In DPP v Cornwall [2007] NSWCCA 359 Latham J (with whom Basten JA and Rothman J agreed) said at [56]:
"The respondent's claim that he was not involved to any extent in the planning of the offence is of limited relevance. Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning."

[98] Given the Crown's concession, it is unnecessary for present purposes to attempt to resolve the apparent difference in these statements'.

In Bowden [2009] NSWCCA 45 the offender was sentenced on a number of supply prohibited drug offences. The sentencing judge found the offences aggravated under s 21A(2)(n). The applicant submitted "the level of planning involved was no more than that which amounted to an inherent characteristic in the offence of ongoing drug supply: Elyard [2006] NSWCCA 43": at [69]. Hall J (Beazley JA and Kirby J agreeing) upheld this ground of appeal:
'[72] I do not consider that the evidence in the present case enabled the sentencing judge to evaluate the planning involved in the offences as exceeding that which was inherent in the offence. In that respect, the observations of Simpson J in Yildiz (supra), in my view, apply in this case:-

"39. As in Elyard , there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind - that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply. I therefore conclude that what was said was an error ..."



In Saddler [2009] NSWCCA 83, possess child pornography, it was an error to find that the offence was a planned activity. Per Buddin J (Grove and Price JJ agreeing):
'[32] .... Since the applicant had amassed a very large quantity of child pornography it followed, the respondent submitted, that the applicant must have spent a considerable amount of time in doing so. Furthermore, it was pointed out that the applicant utilised not only the Internet but two external hard drives as well as a laptop and CDs in order to store the material. .... However, neither of those factors in my view could properly be regarded, on the facts of the present case, as constituting "planned or organised activity" as that expression would normally be understood. .... nothing is known of the circumstances in which the material was stored, for what purpose it was stored, or for how long it was stored. That is not to say of course that these factors were not important considerations to be taken into account in an assessment of the applicant's objective criminality'.

In 'Sentencing Update' in the Judicial Officers' Bulletin (Feb 2010 Vol 22 No 1) Justice Howie refers to the cases of Legge [2007] NSWCCA 244 and Cornwall [2007] NSWCCA 359 and the apparent inconsistency of these two decisions on the relevance of the role of the offender in a planned offence.

s. 21A(2)(o) - financial reward
In Bowden [2009] NSWCCA 45 it was an in error to find that an offence of 'Supply prohibited drugs on ongoing basis' (s.25A Drug Misuse and Trafficking Act1985) was aggravated by the fact the offence was committed for financial gain. This factor was an element of the offence. Section 25A reads, 'A person who, on 3 or more separate occasions ... , supplies a prohibited drug ... for financial or material reward is guilty of an offence'.

2.2 Other aggravating factors

Error in finding drug supply committed for financial reward
In Cicciarello NSWCCA 272 the applicant was sentenced for 'supply not less than a commercial quantity of methylamphetamine' to which a SNPP of 10 years applies. The evidence showed that the applicant had supplied drugs to support his own addiction. The Court held the judge erred in finding the applicant supplied for financial reward and characterising the offence as being mid range objective seriousness. Per the Court:
'[17] Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. In our view, that latter conclusion must clearly have been affected by the finding of financial gain because no other basis in the facts could found such a conclusion.
[18] In our view, there was an error of the sentencing judge in this regard. This error led to his Honour characterising the objective criminality of the offence as more serious than it was. It was not within the mid-range of objective seriousness. It was lower than that, in particular given that it was to feed his habit. A less severe sentence was warranted in law.....'.

'Conditional liberty'does not include an outstanding warrant for breach of parole
In Morrison NSWCCA 211 the offender was released to parole. Unbeknown to the offender parole was revoked and a warrant issued for his arrest. The offence was committed after parole would have expired. It was an error to find an offence aggravated by the fact that the applicant was on conditional liberty where 'a warrant was in existence for his arrest for a breach of parole.'The CCA held that having such a warrant outstanding does not amount to conditional liberty: at [43]-[45]. Breach of parole may be relevant, however, in other ways such as in assessing rehabilitation and personal deterrence: [45].

3. Mitigating Factors
3.1 s.21ACrimes (Sentencing Procedure) Act1999

s. 21A(3)(i) - Remorse: It is inappropriate to quantify a discount for remorse
In Kite [2009] NSWCCA 12 the sentencing judge stated that the 25% discount was for both utilitarian value and remorse. The Court reiterated that it is an error to quantify a discount for remorse. Blanch J (Grove and Kirby JJ agreeing) said:
'[10] ..... In my view it would have been appropriate to give to the applicant some benefit in the overall sentencing process for the fact that he understood how serious his conduct was and that he was remorseful for it. It is not appropriate to express that as a percentage or to engage in a mathematical exercise but it is a factor to be taken into account in arriving at an appropriate sentence, see R v Gallagher (1991) 23 NSWLR 220 and R v Saleib [2005] NSWCCA 85.
[11] Remorse has always been a factor taken into account in mitigation. How that is done is now regulated by s21A(3)(i) of the Crimes (Sentencing Procedure) Act, 1999, which states that it has to be regarded as a mitigating factor:

"... 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)."

Those provisos were clearly met in this case not only from the evidence of the applicant but also from the report of Mr Taylor and the pre-sentence report.
[12] In R v MAK and R v MSK (2006) 167 A Crim R 159 the Court made it plain that since the introduction of s21A the preferable course is not to quantify a discount for remorse and it has been pointed that the simplest way to proceed in sentencing is to arrive at a discount for the utilitarian value of the plea of guilty whether in specific terms or not and then proceed to review what Gleeson CJ in R v Gallagher (supra at 228) called the "complex of inter-related considerations" which could in appropriate cases include remorse. Because s21A makes specific provision for remorse to be considered as a separate mitigating factor, to include it as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting'.

[See Fullerton J in Butters [2010] NSWCCA 1 on the question of the difference between providing evidence and giving evidence].

The Court held that there should be some amelioration of the penalties imposed both to reflect the offender's remorse and his prospects of rehabilitation: at [17]. The Court allowed the applicant's appeal and imposed a new (lesser) sentence.

In Morrison [2009] NSWCCA 211 the Court said that remorse can be demonstrated in varying degrees. It was not an error to find the applicant was remorseful but limited in that the applicant had not informed the authorities where he had disposed of stolen goods. Per R A Hulme J (McClellan CJ at CL and Grove J agreeing):
'[27] In my view the remarks of the judge set out above at [15] should be understood as a statement to the effect that remorse is a matter that can be demonstrated in varying degrees and that in this case there was remorse but it was not as complete as it possibly could be. The judge was simply saying that whilst he was making a finding in the applicant's favour on the question of remorse, it was possible for it to have been demonstrated to a greater degree. He was making a finding in the applicant's favour. It was not an adverse finding and certainly not a finding of the presence of an aggravating factor as asserted.
[28] Counsel for the applicant only referred to paragraph [29] of the judgment of Hoeben J in Baleisuva but what appears in the following paragraph is important. In the passage I have emphasised his Honour indicated that the failure to provide information to the police was, in the circumstances of that case, relevant to the issue of contrition. The error identified was in basing a finding of lack of contrition, in part, upon the failure to provide such information when asked in open court. Incidentally, I do not accept the submission of the Crown that the error identified can be characterised as one of "double counting". The real point of distinction between that case and this is that in Baleisuva the judge made a finding of "lack of contrition" whereas here the finding was positively to the contrary.
...................
[30] Remorse shown by an offender for an offence, where established, is one of the mitigating factors listed in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 that a court is required by s 21A(1) to take into account. It may be established upon proof on the balance of probabilities of the two matters specified in s 21A(3)(i):

(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).

[31] Accordingly, an offender is entitled to a finding in his or her favour of remorse upon proof of both of those matters. The absence of the additional matters mentioned in the passage quoted above at [25] from the judgment of Dowd J in Proud does not disentitle an offender to this mitigating factor. However, in my opinion, where those additional matters are established an offender, generally speaking, would be entitled to expect that the weight to be attributed to the mitigating factor will be greater. Such an offender, again generally speaking, would also expect weight to be given to the additional mitigating factor of having assisted law enforcement authorities (s 21A(3)(m) and s 23) and, if that is so, a sentencing judge would undoubtedly need to exercise caution in not double counting the significance of the issue.
[32] Nothing I have said should be taken as meaning that an offender who establishes both of the matters in s 21A(3)(i) but does not provide information to law enforcement authorities should have the mitigating value of remorse reduced. I am simply making the point, as I believe the judge in this case was making, that remorse can have even greater value if matters over and above those in s 21A(3)(i) are established'.

3.2 Other Mitigating Factors
Drug addiction at young age
In SS & JC [2009] NSWCCA 114 the Court reiterated that drug addiction at a young age can constitute a mitigating factor.
'[101] The Crown concedes that the Judge erred when he said (ROS at 8): 'The consumption of alcohol or drugs is not an excuse for this behaviour, nor should it be an excuse for this kind of behaviour'.
[102] The Judge was stating the general rule that the fact of drug addiction is not a mitigating factor : Henry (1999) 46 NSWLR 346. The occurrence of a drug addiction at a very young age has, however, been recognised as an exception to the general rule: Henry per Wood CJ at CL at [273]. As was said by Hulme J in Todorovic [2008] NSWCCA 49 at [58]:

'In Henry (1999) NSWLR 346 this Court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example, where the addiction was the result of youth ..'.

[103] JC told his Honour during his testimony that he commenced smoking cannabis on a daily basis when he was 11 years old. .... prohibited drugs which included methylamphetamine, 'LSD' and cannabis when he was 16 years old. This evidence was not rejected by his Honour. In these circumstances JC's drug addiction could be regarded as a matter of mitigation'.

Gambling addiction
In Ourdi [2009] NSWCCA 46 the Court confirmed that there can be exceptions to the general principle that a gambling addiction is not a mitigating factor. However, this case did not fall within those exceptions. Per Kirby J (Grove and Blanch JJ agreeing):
'[40] More recently in Anna Le v Regina [2006] NSWCCA 136, Latham J (McColl JA agreeing) said this in the context of the importation of heroin:

"[32] ... Whether that explanation be the offender's vulnerability arising out of a drug addiction, or a gambling addiction, it generally does not warrant the extension of leniency. ... "

[41] In Assi v Regina (supra) Howie J (the other members of the Court agreeing) expressed the principle in these terms:

"[27] ... Although his gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future, it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological: R v Molesworth [1999] NSWCCA 43. ... "

[42] So there is a rule (where addiction does not operate to mitigate the offence) and there are rare exceptions. Wood CJ at CL provided insight into the exceptions in R v Henry (supra), when he said this in the context of drug addiction:

"[273] In my view the relevant principles are as follows:
(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);
(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; ... "

..................
[45] Mr Ourdi's gambling does not, in my view, come within the exception. He withdrew funds from his bank account. He then lost those funds gambling. At some later point he went out and committed crimes to obtain money. His crimes were not impulsive. On the contrary, they involved careful observation and planning. They were executed skilfully, with a clear head, as he scaled a 22 storey tower block'.

Intoxication
In SK NSWCCA 21, involving maliciously inflict grievous bodily harm with intent, the Court considered the relevance of intoxication on sentence. SK had consumed alcohol and was highly intoxicated when she pushed the victim onto railway tracks. Blanch J (Grove and Kirby JJ agreeing) held in this case the sentencing judge did not err in finding that the intoxication did not materially mitigate the offence. 'The relevance of intoxication is a question of fact and degree in each case': at [9].
'[6] The first ground of appeal argued is that the sentencing judge erred in assessing the significance of the applicant's intoxication. .....The submission is made that this assessment is an error because the fact of the intoxication may be taken into account to mitigate objective criminality and indicate that the conduct was impulsive and unplanned and reference is made to Waters v R [2007] NSWCCA 219 and R v Mitchell [2007] NSWCCA 296.
[7] Intoxication may sometimes assist in assessing the degree of deliberation involved in the offence: see R v Coleman (1990) 47 A Crim R 306 at 327. It may also be something which is treated as an equivocal factor which simply explains the context of the crime: see R v Fletcher-Jones (1994) 75 A Crim R 381. It is also something which can be taken into account in assessing the objective seriousness of a standard non-parole period and R v Fryar [2008] NSWCCA 171 is a case where it was suggested the intoxication had been given too much emphasis in assessing the criminality at a lower level: see also R v Mitchell [2007] NSWCCA 296. It should also be noted the applicant knew she had a problem with self-control when intoxicated and she had previously taken steps to correct this.
.................
[9] I believe the sentencing judge's analysis of the material was both careful and accurate. The evidence indicated that in spite of the intoxication the actions of the applicant were quite deliberate, she was seen to be walking normally on CCTV footage before the push and she ran down the platform afterwards. She made a phone call on her mobile phone while sitting on the platform and she rang the police at The Rocks Police Station after the event. She was able to give an account of what occurred to a witness at the scene and to the police when they arrived. As the cases make clear, the relevance of intoxication is a question of fact and degree in each case. In this case the seriousness of the offence clearly called for a sentence such as that imposed in spite of the intoxication and the other subjective material.
[10] In this case it is clear the judge did give some weight to the applicant's intoxication but he said it did not materially mitigate the offence. How much weight was given to this factor is not quantified but one way to determine if any error exists is to assess the matter myself giving due regard to the fact the applicant was intoxicated and that she more readily gave way to an impulse. Having done that I do not believe any lesser sentence would be justified and accordingly I don't believe any error exists'.

Onerous bail conditions
In Jajou & Ors [2009] NSWCCA 167, involving armed robbery, the sentencing judge erred in treating the offenders' bail conditions over 11 months, including daily reporting and non-association with one another, as a mitigating factor. However, bail conditions may be a mitigating factor in very limited circumstances. Per Harrison J (Campbell JA and Latham J agreeing):
'[47] Ordinary sentencing principles would not justify reduction of an otherwise appropriate penalty because the offenders were on bail for 11 months and subject to the conditions mentioned. The Crown referred to the remarks of Latham J in Dieguez v R [2008] NSWCCA 147 at [21]-[22] as follows:

"[21] A further feature of the applicant's subjective case that was not taken into account by the judge, in the sense that it did not feature in the course of his remarks on sentence, was the fact that the applicant had been on bail for a period of 11 months, during which time he was subject to a residential condition and daily reporting conditions. The applicant relies upon the decisions of this Court in R v Keyte CCA 26 March 1986 and R v Rajapaski [2001] NSWCCA 126 to support the proposition that a state of conditional liberty, involving constraints to the applicant's freedom of movement, should result in some mitigation of penalty.
[22] It is important to place the comments in Keyte and Rajapaski in context. In Keyte there was a two and a half year delay between the applicant's arrest and sentence. In Rajapaski there was almost a four year delay between the applicant's arrest and sentence. By way of contrast, the passage of 11 months between the date of arrest (but for five days) and the jury's verdict of guilty represents a relatively speedy resolution of the applicant's fate. In my view, the applicant was not entitled to any mitigation of an otherwise appropriate penalty because of his bail conditions."

[48] I do not consider that the respondent's bail conditions are relevant to an inquiry concerning the application of the Henry guidelines at all. They are certainly not referred to in the judgment. The conditions upon or under which offenders are released on bail are many and varied and the extent to which any standard or usual range of conditions could be assembled as normal or not onerous would be limited. In one sense, except in the case of the most extremely onerous conditions, such as those involving house arrest or de facto home detention, or the continuance of the onerous bail conditions for an unusually long time, there is little that attracts favourable consideration to the grant of bail as a factor warranting amelioration of an otherwise appropriate penalty. There is every reason to give credit for time served on remand but that is not in any way comparable with conditional liberty'.


Ill health and prior good character
In Pfeiffer [2009] NSWCCA 145 the offender, aged 65, was sentenced for a fraud offence. He had a criminal record containing minor offences committed some 30 years ago. The sentencing judge failed to give proper weight to the offender's ill health which should have led to a reduction in the total sentence. It was also an error to find the offence 'cannot be characterised as being out of character'on the basis it was committed on a number of occasions over a lengthy period of time - the offence for which an offender is sentenced is not relevant to an assessment of prior good character. Allowing the appeal, per McClellan CJ at CL (Simpson and Buddin JJ agreeing):
'[15] The difficulties which a prisoner will face due to his health are relevant to both the total sentence and the period of full time custody which a court will impose. Where the health problems of an individual offender are such that his or her life in prison will be more burdensome than for a healthy person it may be appropriate to reflect these considerations in a reduced sentence. See R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362.
[16] In the present case although his Honour indicated that he would have regard to the applicant's health when considering the period of full time custody it is not apparent that he had regard to these matters when considering the term of the total sentence. Some of the applicant's problems require constant supervision and in some cases at the time of sentencing surgical intervention was probably necessary. These problems should have been reflected not only in a reduction in his period of full time custody but also in the length of his overall sentence.
[17] Apart from the health issues there is a difficulty with the approach the sentencing judge took to the applicant's character and criminal history. The applicant does have a record of previous offences in respect of which his Honour concluded that they "should be given little if no weight". To my mind that finding was correct. However, notwithstanding that finding his Honour concluded that the offence "cannot be characterised as being out of character." The basis for this finding was the fact that the offence to which the applicant pleaded guilty was committed over a period of time and involved a number of occasions on which the applicant obtained money from the Elliotts. His Honour said of these matters:

"The offence before me cannot be characterised as being out of character. This is because it can hardly be said that the commission of this offence by the offender over a lengthy period of time involving the repeated obtaining of monies from the Elliotts was an aberration. Further, it cannot be said that this offence was out of character as he committed a further similar offence on 13 March 2004 being the charge on the section 16AB document."

[18] The applicant submitted, in my opinion correctly, that if his Honour concluded that the prior offences were stale and of no consequence then the appropriate conclusion was that the applicant was otherwise a person of good character. The applicant emphasised that in Ryan v The Queen (2001) 206 CLR 267 the High Court indicated that previous good character is a relevant mitigating factor in sentencing. When seeking to identify whether an offender is otherwise of good character the offence for which he or she is being sentenced is irrelevant (see McHugh J at 279)'.

Nature of drug (precursor) is not a mitigating factor on sentence
In Pham [2009] NSWCCA 25 the appellant was found guilty of supply pseudoephedrine, a precursor able to be used for the manufacture of methylamphetamine. The Court rejected the appellant's submission that the nature of the drug can be a mitigating factor on sentence. The appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: at [21] citing Nai Poon (2003) 56 NSWLR 284; Dang [2005] NSWCCA 430; Adams [2008] HCA 15, 82 ALJR 718. Per Latham J (Giles JA and Mathews AJ agreeing):
'[23] The Act recognises that there is difference in the criminality involved in supplying pseudoephedrine when compared with, say, methylamphetamine in the different quantities prescribed for the two drugs. So the commercial quantity in relation to the former is 1.25 kilograms whereas for the latter it is 0.25 kilograms. Similarly the comparable amounts for the large commercial quantity of both drugs is 5 kilograms and 0.5 kilograms. The fact that there is another scheme dealing with the possession or sale of precursors seems to me to be irrelevant especially when the offence involves drugs in the quantity that was being supplied in the present case, some 60 times the large commercial quantity prescribed for the drug.
[24] Further, I have difficulty in appreciating any significant difference in culpability, either legal or moral, between the person supplying a precursor and the person using that drug to manufacture another more harmful drug. In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 this Court stated:

[166] Nor are we persuaded that the fact that the drug was methylamphetamine, rather than cocaine or heroin, makes any substantial difference in this case. Amphetamines in all their forms regrettably comprise an easily available and widely used illegal substance. A good deal of criminal behaviour, of an organised kind, is attached to their manufacture and distribution'.



Old age

In Kidd [2009] NSWCCA 229 the appellant was aged 71 at sentence and would not be eligible for parole until he was 84. The Court dismissed the appeal. This case is a useful restatement of the principles to be applied when sentencing an aged offender.


[44] Ground 3 contended that her Honour erred in failing to make any or sufficient allowance for old age. Her Honour had observed that the applicant was born on 16 June 1933 and was at the time of sentence, aged seventy-one years. Later in her remarks (ROS 19) she returned to this:
As I have already said, the prisoner is now aged 71. He will inevitably be some years older before the non-parole period for the sentences to be imposed upon him has expired. As I have indicated, the conditions under which he will be serving his imprisonment are a matter to be taken into account.
[45] The written submissions on behalf of the Crown note that the applicant will be eighty four years of age when eligible for consideration of parole.
[46] In R v Holyoak [1995] 82 A Crim R 502 the offender, a former supervisor at a Dr Barnardos Home, was convicted on two charges of indecent assault of a child under his care together with a number of other charges taken into account under what was then Form 2 procedure. Holyoak was aged seventy five at the time of sentence. The intervention of this court occurred because an incident had been taken into account which was outside the period covered by the charges, however, in relation to the issue of age Allen J (Handley JA concurring, Hulme J stating that he was 'not disposed to give the applicant's age the same weight as I perceive Allen J is inclined to give') said at 507:

It is argued, however, that his Honour fell into error in a number of respects. The first is that, it is said, he failed to give sufficient weight to the applicant's age. His counsel points out that the sentence imposed as a minimum term is such that the possibility of the applicant dying during the minimum term, despite his present state of health, is quite real. So it is. It is not to be contemplated that his Honour would not have realised that. Particular complaint is made that all that his Honour said, apart from the reference to his age to which I have already referred, was: 'Age is not a licence to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years. 'I find no fault with that observation. Indeed it would seem to be taken directly from the judgment of Badgery-Parker J in DCM (unreported, Court of Criminal Appeal, NSW, 26 October 1993) with whose reasons for judgment Kirby ACJ agreed.

[47] Useful reference may also be had to the Sentencing Manual published by the Judicial Commission (I. Potas, 2001) and, although specifically dealing with reduced life expectancy because of illness rather than age, it was observed that (at 284):

A substantial possibility, or even a probability, that a prisoner will not survive the non-parole period is a relevant consideration, but it is but one subjective matter to be taken into account. Other relevant matters are the responsibility of the prison authorities to provide medical treatment, the Royal Prerogative of Mercy and the powers of the Offenders' Review Board (Parole Board), under s 160 of the Crimes (Administration of Sentencing) Act 1999, to grant parole where a prisoner is dying or because of 'exceptional extenuating circumstances', including humanitarian grounds: Jones (1993) 70 A Crim R 449 per Carruthers J, citing Giardini (Sandro) (unreported, NSW CCA, 25 February 1993) per Gleeson CJ.

[48] I would understand her Honour's remarks above quoted in which she expressly took into account 'the conditions under which he will be serving his imprisonment'to include among the matters she was taking into account, the immediately preceding statement concerning the advance of the applicant's years. This is further confirmed when she continued:

He does not have, so far as I am informed, any health problems of such gravity that they cannot be properly cared for within the prison system. Whilst matters of his age and health are relevant, they do not lead to a sentence being imposed which does not adequately reflect the gravity of the offences which were committed.

[49] Inevitably, when imprisonment is to be imposed on an offender who will be of advanced years before eligible for parole pursuant to sentence, a balance must be struck between the most frequently applied of established sentencing principles requiring denunciation, deterrence an punishment and the less commonly encountered but appropriate amelioration for considerations of health and age. It is clear from the remarks of her Honour just quoted that her assessment was made with attention to such a balance. Her approach was in accord with appropriate principle'.


4. Deferral of Sentencing for Rehabilitation: s11 Crimes (Sentencing Procedure Act) 1999
In Pulliene [2009] NSW CCA 47, a Crown appeal, the respondent pleaded guilty to armed robbery (s 97(1) Crimes Act). The respondent, who suffered from an intellectual disability and a history of drug abuse, was aged 19 at the time of the offence and 20 at sentence. Her criminal history was made up of Children's Court offences and her upbringing was dysfunctional. The sentencing judge made an order pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 and released the respondent on conditional bail. His Honour further directed that a telephone conference be scheduled to obtain an update on the respondent's progress. A date was set to resume the sentence proceedings, however this appeal was heard prior to those proceedings.

The CCA dismissed the Crown appeal. The respondent was 'at the crossroads'and this was clearly a case where it was open to make such an order: at [27]. Per Hidden J (McClellan CJ at CL and Fullerton J agreeing):
'[23] In the event of the appeal succeeding, the Crown prosecutor did not ask this Court to re-sentence the respondent. The orders sought were that the s11 order be quashed, that the matter be remitted to the sentencing judge so that the sentence proceedings could be resolved as soon as practicable, and that the grant of bail be revoked.
[24] Put shortly, the Crown's position was that a s11 order was uncalled for because, as it was put in written submissions, on 15 April "there was sufficient evidence then before the Court to permit appropriate findings to be made of the relevant objective and subjective circumstances." The Crown prosecutor referred to R v Trindall [2002] NSWCCA 364, 133 A Crim R 119, in which Smart AJ, delivering the leading judgment, observed at [64] that an order under s11 "is likely to arise for consideration in a relatively small number of cases," and that "such a remand should not be granted unless there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to jail or in fixing the length of the sentence or the non-parole period."
[25] The approach to a s11 order was also considered by Howie J, again delivering the leading judgment, in R v Palu [2002] NSWCCA 381, 134 A Crim R 174. After referring to Trindall, his Honour said:

[29] As Smart AJ identified, the discretion conferred upon a sentencing judge by s 11 can be a valuable sentencing tool when used in an appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community. But the section can only be utilized in a principled way and upon proper material placed before the court otherwise it becomes an instrument of injustice, either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet legitimate expectations of the community as to the punishment to be imposed upon the offender.
[30] The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. ...Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. ...

[26] It was also the Crown's position that the effect of the s11 adjournment was merely to stave off the inevitable, that is, the imposition of a custodial sentence. Reference was made to the familiar guideline for sentence for armed robbery to be found in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [161] ff. In oral argument, the Crown prosecutor put as a "primary submission" that a full time custodial sentence was required. However, he acknowledged that alternatives to full time custody could not be ruled out because of the features of the present case which distinguished it from the typical case considered in Henry. Quite apart from the respondent's early plea of guilty, her difficult background and her tentative steps towards rehabilitation, her intellectual disability was capable of invoking the approach to the sentence of people suffering mental illness or disability explained in cases such as R v Engert (1995) 84 A Crim R 67 and R v Israil [2002] NSWCCA 255.
[27] In my view, this was clearly a case where it was open to the sentencing judge to take the course he did. From the material before his Honour it was apparent that he was dealing with a young woman from a troubled background who had shown signs of rehabilitation but whose prospects of it, at that stage, were far from predictable. To use a hackneyed expression, she could fairly be seen to be "at the crossroads."
[28] It was appropriate that her capacity for reform be tested over a reasonably lengthy period before the sentence for her crime was determined, and the delay that this involved was in the interests of justice. Particularly was this so because, in the unusual circumstances of her case, a full time custodial case might not have been inevitable. In Legge v R [2007] NSWCCA 244, a case in which this Court reduced a custodial sentence for armed robbery to a level significantly below the Henry guideline so as to enable the offender's immediate release, Spigelman CJ reminded us at [59] that "a guideline is not a tramline."
[29] Accordingly, no error having been shown in his Honour's approach, the Crown appeal could not succeed'.

The Court also dismissed a similar Crown appeal in Brown [2009] NSW CCA 6.

5. Mental Illness
In Withers [2009] NSW CCA 133 the Court commented that mental illness need not be confined to the assessment of the non-parole period and may be relevant to the assessment of the total sentence. The offender was sentenced to full-time imprisonment for robbery in company. The Court accepted that the custodial experience for the appellant would weigh more heavily upon him due to his mental illness: at [34] applying Hemsley [2004] NSWCCA 228. In allowing the offender's appeal, R A Hulme J (Grove and Buddin JJ agreeing) observed:
'[36] The sentencing judge took the applicant's mental illness and need for rehabilitation in respect of his drug issues into account in reducing the proportion of the sentence represented by the non-parole period. In my view, the applicant's mental illness was relevant generally, and should not have been confined to a consideration of the length of the non-parole period. Parole for the applicant is a matter for the Parole Authority to determine and it cannot be assumed that he will be released immediately upon the expiration of the non-parole period. The conditions of the applicant's custodial experience potentially transcend the non-parole period and, theoretically at least, may have a bearing on the whole sentence.
[37] The Court was not referred to any authority that indicated that the mental illness of an offender, relevant in the way it is in this case, should be confined to the assessment of the non-parole period. Indeed, there is authority to the contrary that in an appropriate case it may be relevant to the assessment of the total sentence as well as the non-parole period: see the discussion in the judgments of Grove J in Regina v Szabo [2003] NSWCCA 341 at [14] - [16] and of Hulme J in Fisher v R [2008] NSWCCA 103 at [38] - [39]'.


In TC [2009] NSW CCA 296 the sentencing judge failed to have regard to the applicant's psychological or psychiatric condition in assessing the applicant's subjective circumstances at the time of offending. It was an error to limit consideration to the causal question as to whether there was a link between the applicant's dysfunctional condition and the offence. Per Hall J (McClellan CJ at CL and Buddin J):
'[65] The sentencing judge, after noting the evidence on the above matters, limited his consideration to the causal question as to whether there was a link between the applicant's dysfunctional condition and the offence. He did not, however, proceed to address the nature and significance of his psychological condition otherwise as a relevant subjective circumstance to be assessed in determining sentence. As the judgment of the Court of Criminal Appeal in Regina v Way (2004) 60 NSWLR 168 at [86] indicates, his Honour was required to do so.
...................
[68] The sentencing judge, as has previously been noted, accepted the applicant's history and his psychological deficits as recorded in the various reports. Psychological conditions, eg, depression, have been accepted as a form of mental disorder that may, depending upon the evidence, be taken into account in sentencing for an offence, even though such conditions have not been found to be causative of the offending. The relevant principles and approach were referred to by Simpson J in Regina v Benetiz [2006] NSWCCA 21 at [36] to [38] as follows:-

"36 As to the second passage, his Honour's expressed understanding does not accurately reflect the law. For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggests that it is not necessary that it be a cause of the crime. I refer to the decision of this Court in R v Fahda [1999] NSWCCA 267 at [40] - [48]. There reference was made to a number of authorities of which the following are, on this issue, relevant. In R v Letteri (unreported, NSWCCA, 18 March 1992), Badgery-Parker J said:
'In each of those cases [which he had, in the preceding paragraph, cited], it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle .' (emphasis added)
37 In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said:
'In truth, however, ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case . For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system .' (emphasis added)
38 A mental disorder such as the applicant's depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case. Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender's culpability and to the level to which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence: see also R v Scognamiglio (1991) 56 A Crim R 81; Letteri ; R v Champion (1992) 64 A Crim R 244; R v Wright (1997) 93 A Crim R 48."

[69] It is clear that the applicant had a multiplicity of psychological disorders (including hyperactive - impulsive disorder) associated with an assessed low average intelligence, a history of aggressive, and at times, self-harming behaviour and, as an inter-related factor, his substance abuse problem. I also note Mr Carroll's report dated 19 October 2007 recorded Dr Nunn's opinion that scores obtained on testing the applicant could "cloud" a diagnosis of anxiety disorder in favour of ADHD.
[70] I am of the opinion that the sentencing judge was in error in confining consideration of the evidence bearing upon the applicant's psychological condition to the question as to whether it was causative or linked to the offending behaviour. The applicant did have psychological or psychiatric problems and, on the authorities, his Honour was required to have regard to them in evaluating the subjective circumstances of the applicant at the time of offending. ...'.

6. Joint Criminal Enterprise
In Wright [2009] NSW CCA 3, a Crown appeal, the respondent, sentenced for malicious wounding with intent (s 33 Crimes Act), had joined a group of men in assaulting the victim. The Crown submitted the sentencing judge erred in assessing the offence as being in the middle range. Rejecting this submission, the Court held that as that the sentencing judge had sentenced on the basis that the respondent had from the beginning joined a joint criminal enterprise 'to assault'the victim and not to cause grievous bodily harm, this militated against finding error: [24], [26]. Regard could also be had to the extent of the offender's role in the assault and the fact that a number of acts against the victim were perpetrated by others: [31]. Per James J (McClellan CJ at CL and Adams J agreeing)
'[26] The absence of a clear finding by her Honour that the joint criminal enterprise was from the beginning a joint criminal enterprise to cause grievous bodily harm militates against this Court holding that her Honour erred in not assessing the level of objective seriousness of the respondent's offending as being above the middle of the range.
[27] As I have already noted, the Crown placed considerable reliance on the conduct of other persons in carrying out the joint criminal enterprise, such as the actions of other persons in knocking the victim to the ground and stomping on and kicking the victim's head forcefully several times.
[28] If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90.
[29] However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23).
............
[31] In the present case, I consider that in assessing the objective seriousness of the respondent's offending some regard, even if limited, could properly be had to the facts that a number of the acts of violence perpetrated on the victim had been done by persons other than the respondent. This conclusion militates against this Court holding that the sentencing judge erred in not assessing the level of objective seriousness of the respondent's offending as being above the middle of the range'.

7. Guilty Plea
Discount for utilitarian value of guilty plea
In Borkowski [2009] NSWCCA 102 the Court (Howie J, McClellan CJ at CL and Simpson J agreeing) held that, in the usual case, the discount for the utilitarian value of a guilty plea at arraignment should not be more than 15%: [36]. The maximum discount for utilitarian value of the guilty plea will only be given where the accused pleads guilty in the Local Court, although there may be exceptional cases for awarding the maximum discount for a guilty plea entered in the District Court. Howie J set out the 12 "principles of general application" in relation to the discount for a guilty plea at [32]:
"1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson [ and Houlton (2000) 49 NSWLR 383] at [154]; Forbes [2005] NSWCCA 377 at [116].
2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].
3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.
4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.
5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the 'Ellis discount'; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.
6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.
7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.
8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.
9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.
10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129.
11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.
12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise. The last of these principles is derived from the present judgment and is included for completeness."
But since the Crown erroneously conceded at sentence that the discount should be 20-22.5%, the Court should not interfere with the sentence on this basis: [36]'.

In Thawer [2009] NSWCCA 158 Howie J said at [46] that the decision in Borkowski does not prevent a judge awarding a discount of 20% in an appropriate case even when the plea is delayed until the offender appears in the District Court.

Discount where offender does not plead guilty at earliest opportunity but offers plea following negotiations with prosecution
In Tazelaar [2009] NSWCCA 119 the prosecution declined the applicant's offer in the Local Court to plead guilty to fewer offences. However, in the District Court, the prosecution accepted pleas to less offences than the applicant had previously offered to plead. The sentencing judge did not indicate whether the sentences were reduced due to the guilty pleas. McClellan CJ at CL (Buddin and Rothman JJ agreeing) found that a discount of 15% should have been given: at [34]. Per McClellan CJ at CL:
'[24] This Court has had occasion in recent years to comment upon the provision of a discount to an offender who does not plead guilty at the first available opportunity but enters upon negotiations designed to secure a more favourable position after which a plea is entered. In R v Stambolis [2006] NSWCCA 56 Howie J commented at [11]:

"Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity."

See also R v SY [2003] NSWCCA 291 at [85-86].

[25] In R v Dib [2003] NSWCCA 117 Hodgson JA at [5] said:

"If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount."

[26] In his remarks on sentence the sentencing judge correctly identified that the plea in the present case was delayed and only entered after the date listed for the hearing of the applicant's trial. His Honour acknowledged that there were negotiations taking place and said that it was "to the credit of the offender that he made admissions with regard to the receiving offences." Beyond these observations his Honour made no reference to whether or not any discount should be extended to the applicant for the utilitarian benefit of his plea.
[27] Although this Court has encouraged sentencing judges to identify the discount which has been determined there is no error if this practice is not followed: R v Thomson; R v Houlton [2000] NSWCCA 309 [71]-[72]. However, where the issue is identified but the remarks give no indication that the ultimate sentence reflects the plea the sentences imposed may require careful scrutiny to ensure that the matter has not been overlooked.
............................................
[34] ....... the sentence for count 2 was excessive. Although this is not apparent from his Honour's remarks the explanation for the excess is likely to be that the judge has overlooked the necessity to provide an effective discount for the plea of guilty. Having regard to the applicant's offer to plead at an early date, but recognising that because of the negotiations those pleas were not entered until the date fixed for trial, that discount should be in the order of 15%. .....'.

Sentencing judge should explicitly state that guilty plea was taken into account
In Devine NSWCCA 261 the Court said that failure to explicitly state that a guilty plea has been taken into account may be taken as an indication that the plea was not given sufficient weight at sentence: R v Thomson & Houlton (2000) 49 NSWLR 383.

'[20] The Crown relied upon the observations of Spigelman CJ in R v Lawrence [2005] NSWCCA 91 at [13]-[15] in support of the submission that in this case, as in Lawrence, it should be inferred that his Honour in fact applied the appropriate discount when imposing sentence, but had simply overlooked saying so:

[13] The Applicant submits that the sentencing Judge fell into error in failing to give proper weight to the plea of guilty and in failing to make plain the fact that, and the extent to which, the Applicant's sentence was reduced for the plea. The Crown contends that his Honour did take into account the plea and it puts forward a plausible computation that the final head sentence of 27 months happens to constitute a 25% discount from the sentence of 36 months. Although this is a plausible, indeed likely, reconstruction, it would have been easy for his Honour to say so.
[14] Goldring DCJ is an experienced District Court Judge. He cannot be unaware of the line of authority on this matter, particularly Thomson and Houlton, as affirmed in R v Sharma(2002) 54 NSWLR 300. The guideline established in Thomson at 160 encouraged, but did not require, the sentencing judge to quantify any discount. It did, however, indicate that judges should explicitly state that the plea of guilty has been taken into account and added "failure to do so will generally be taken to indicate that the plea was not given weight" (at 416 [160]).
[15] This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal.

............................
[23] Despite the obvious attraction of the Crown's analysis I am not persuaded that the approach in Lawrence can be safely applied in this case. For my part, I would be cautious about its application other than in those relatively rare cases where it can be safely inferred that a sentencing judge has forgotten to state expressly that a discount for the plea of guilty has been applied and its quantification. This is consistent with the approach of Hidden J in Morris, Morris and Snelson v R [2008] NSWCCA 182 at [21]-[23]. I am not satisfied that this is such a case. Although the Crown's analysis is mathematically plausible, I do not consider it likely that his Honour commenced with a sentence of 2 years and 8 months (or 32 months) before application of the discount, although it may theoretically have been open for him to have done so. .........................................
[24] In the result, taking into account the tenor of the sentencing proceedings as a whole, and his Honour's remarks on sentence in particular, I am left with the distinct impression that he overlooked the need to factor into the sentence a 25 per cent discount for the plea of guilty. I am satisfied the error contended for in the first ground of appeal has been made out'.

Fit to Plead
In a Supreme Court decision of Zeilaa NSWSC Howie J granted a 25% discount for a plea entered as soon as the offender had been found fit to plead. In this case there was no real question the offender would plead guilty once found he was fit to plead: at [18]-[19].
'[18] A plea of guilty at arraignment will not normally result in the maximum discount for the utilitarian value of the plea: R v Borkowski [2009] NSWCCA 102. The Court of Criminal Appeal has expressed the view that a delay in the plea will usually impact upon its utilitarian value whatever the reason for the delay: Tazelaar v R [2009] NSWCCA 119. But the amount to be awarded by way of discount is discretionary and it is accepted that there can be unusual situations where fairness may impact upon the determination of the appropriate discount. The Crown conceded that this was an exceptional case where the discount should be at the maximum level. This seems to me to be a case where there has been a significant utilitarian benefit from the plea that was first foreshadowed in September of last year. I am satisfied that the plea came at the first reasonable opportunity. This would not itself justify the maximum discount where there had been significant delay before the plea has been forthcoming: R v Dib [2003] NSWCCA 117.
[19] In this case there was never a real question about the offender pleading guilty to some offence in relation to the death of his wife, provided that he was capable of making that plea. Early in the proceedings the defence identified that the only real issue was whether the defence of substantial impairment could succeed. There was no question that the offender's responsibility was impaired. The only issue would have been the extent of that impairment and a trial on that matter, if necessary, would have been very brief. The only reason why that issue could not proceed or why the plea could not be made and accepted by the Crown was the question of the offender's fitness. In these unusual and exceptional circumstances, and despite the delay of the plea until more than 12 month's after the offence, I am prepared, to give the offender the benefit of a discount of 25 per cent'.

8. Concurrent and cumulative sentences

In XX [2009] NSWCCA 115 the Court outlines the general principles regarding cumulative or concurrent sentences. The offender was sentenced in respect of two offences of supply prohibited drug (respectively, methylamphetamine and MDMA), two offences of possess firearm and a number of offences taken into account on a Form 1. Each of the offences resulted from the one search of the offender's premises. Allowing the Crown appeal, the Court held that the sentencing judge erred in imposing concurrent sentences and that a degree of partial accumulation was required. Per Hall J (Tobias JA and Kirby J agreeing)
'[52] There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-
(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing.
(2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that "this is not an inflexible rule" and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct".
(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12].
(4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253.
(5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27].
(6) If not, the sentence should be at least partially 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: Cayhadi (supra) per Howie J at [27].
(7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.
(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at [38] that "... to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims ..." .....................................

(9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13].
(10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of "deemed" supply: Luu v Regina [2008] NSWCCA 285 at [32].
(11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:-
"... The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed." ( Cahaydi (supra) at [26])'


[53] The observations in the above paragraphs are of particular relevance to the present appeal. The gun and firearm offences, in particular, should be considered in light of the facts in Luu (supra). ......
................
[56] On appeal, this Court (Giles JA, Latham J and Mathews AJ) rejected the submission that such was the connection between the offences that greater concurrency was called for. After citing dicta of Howie J in Cahyadi (supra) at [27], the Court stated:-

"32. Possession of the two different kinds of drugs giving rise to the 'deemed supply's offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant's drug dealing. Nor is the criminality in the possession of the pistols, and two pistols one of which was a prohibited pistol involves greater criminality than one, to any substantial degree reflected in the sentences for the drug offences. The drug dealing could be carried on without firearms; that the applicant had them in his possession in connection with his drug dealing was significant additional criminality, and there was no double counting. The Firearms Act gives effect to the significant legislative policy of strict control upon the possession of firearms, and offences against it inimical to that policy called for substantial recognition in their own right: see R v Cromarty [2004] NSWCCA 54; R v Tolley [2004] NSWCCA 165." (emphasis added)

[57] I consider these observations to be relevant to the issues arising in this Crown appeal. They support the proposition that the actual supplies of the prohibited drugs constituting Counts 1 and 2 required a degree of accumulation and also indicate the need for a partial accumulation of Count 4 on the sentence in respect of Count 3'.

9. Parity

Where 'co-offenders'convicted of different offences
In Camm [2009] NSWCCA 141 the Court considered the appellant's submission that the parity principle can apply notwithstanding that two offenders are charged with completely different offences. The appellant was sentenced for an offence carrying a heavier maximum penalty than that faced by his cooffenders. Dismissing this ground of appeal, James J (Spigelman CJ and Simpson J agreeing) said:
'[76] This Court has been reluctant to apply principles of parity and proportionality in sentencing, where the offender and the comparative co-offender have been charged with different offences, particularly where, as here, the co-offender has been charged with a less serious offence carrying a lower maximum penalty.
[77] In R v Formosa [2005] NSWCCA 363 Simpson J, with the concurrence of the other members of the Court, after referring to the earlier decision of the Court in R v Kerr [2003] NSWCCA 234, in which Miles AJ had given the leading judgment and in which it was suggested that the doctrine of parity could be applied notwithstanding that the two offenders were charged with different offences, said at (44):-

"I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle."

[78] In Yin v R [2007] NSWCCA 350 at (24) Barr J said:-

"Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty."

[79] In Pham v R [2009] NSWCCA 25 Latham J, who gave the leading judgment, after a discussion of cases in which the offender and an alleged comparative co-offender had been charged with different offences or a different number of offences said:-

"[36] In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor's actions were completely justified?
[37] If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor's actions and not the sentences imposed by the court."


In JOD [2009] NSWCCA 205 the Court considered whether parity extended to offenders involved in a drug syndicate but who were not in fact co-offenders in the sense that they were not charged with involvement in the same incident or the same offences. The Court concluded that by reason of the way the matter had been approached by both parties at sentence, the sentences imposed on the other offenders were to be taken into consideration although not on a strict application of the parity principle. Ultimately, the Court found the sentences imposed on the offender and co-offender were not disproportionate and dismissed the appeal: at [80]-[81]. After referring to Pham [2009] NSWCCA 25 and other authorities, Hall J (Giles JA and R A Hulme J agreeing) stated:
'[70] The applicant also relied upon the decision in Mitchell (supra). There, the applicant and another related offender, Parker, purchased illegal drugs individually but with the purpose of attending the same party in Queensland to distribute the drugs. The two men were not co-offenders in the Lowe sense, however, Blanch J said at [10]:-

" Although not a case of discrepancy in sentencing of co-offenders, this is a case of markedly different sentences imposed on two men who were living in the same house, who were each engaged in the same activity for the same purpose on the same day."

[71] Blanch J identified a number of measures directed toward achieving consistency in sentencing, including the use of sentencing statistics, guideline judgments and the practice of quoting like cases (at [12]). His Honour found that in order to ensure a sense of consistency in sentencing, the respective sentences ought to be examined. A comparison of the offences committed by each offender indicated to his Honour that there should be no significant difference in the sentence imposed'.

The Court in JOD concluded that by reason of the way the matter had been approached by both parties at sentence, the sentences imposed on the other offenders were to be taken into consideration but not on a strict application of the parity principle. The sentences imposed on the offender and co-offender were not disproportionate and the Court dismissed the appeal: at [80]-[81].

Parity does not inform a sentencing judge's assessment as to objective seriousness.
In Xue [2009] NSWCCA 227 the appellant was sentenced for supply large quantity of drugs. A man G, to whom the appellant had supplied drugs, was also charged with supplying drugs of a lesser amount. G's offences had been assessed as 'slightly below the mid-range of objective gravity': see Gao & Lim NSWCCA 343. The sentencing judge considered the appellant was higher in the drug hierarchy than G and found his offences to be in the middle of the range. The appellant argued disparity on the basis that it was an error to make this assessment due to the more lenient assessment made by G's sentencing judge. Dismissing the appeal, Hoeben J (Tobias JA and McCallum J agreeing) held that parity does not inform a sentencing judge's findings as to objective seriousness:

'[40] The applicant submitted that his Honour erred in characterising the applicant's behaviour as falling within the mid-range of objective seriousness because that was not how Berman DCJ had characterised the objective seriousness of the offending of either Lim or Gao. The applicant noted that the Court of Criminal Appeal had found that the assessment of Berman DCJ in that regard was within a range open to him. The applicant therefore sought to invoke the principle of parity to substantiate the submission.
[41] The submission is misconceived. Implicit in the submission is the proposition that parity informs a sentencing judge's findings as to objective seriousness. That is not the law and is simply incorrect. Principles of parity come into play, if they are relevant, at the time when a sentencing judge is formulating the sentence well after an assessment of objective seriousness has been made.
[42] The considerations to be taken into account by a sentencing judge when assessing the objective seriousness of an offence have been referred to on many occasions by this Court and parity has never been a matter which informs that assessment.
[43] A useful description of the correct approach is that by Spigelman CJ in Mulato v R [2006] NSWCCA 282:
37
Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open ...
[44] This ground of appeal has not been made out'.

Where two judges draw differing conclusions from the same facts.
In Truong [2009] NSWCCA 122 at [35] the Court said that where a more severe sentence is imposed on an offender in respect of whom the assessment of criminal responsibility is correct, the fact that a cooffender was sentenced according to a different view of the facts by another judge does not give rise to a parity issue even if the view of the facts are not warranted.

'[35] The question of parity falls to be considered, therefore, upon the basis that the differences found by Sides DCJ were not found by Boulton ADCJ, though they were dealing with substantially the same material so far as the objective circumstances were concerned. On the face of it, it is difficult to see how, where one judge finds facts differently to another judge, there is a legitimate grievance in respect of the more lenient sentence passed on the co-offender. Certainly it is a reproach to the administration of criminal justice when, on substantially the same facts, two judges reach quite different conclusions as to matters of crucial importance - here, the relative objective criminality of the co-offenders. This is especially so where there is no adequate explanation for the differing conclusions and one of those conclusions appears to be mistaken. But it seems to me that, whilst this criticism of the administration of justice is just, the grievance as to different sentences is quite different. In short, where a markedly more severe sentence is passed on an offender in respect of whose criminal responsibility the assessment is correct, the mere fact that the co-offender was sentenced on a different view of the facts does not give rise to a parity problem, even if that view of the facts be unjustified. (In Postiglione v The Queen (1997) 189 CLR 295 at 314, McHugh briefly discussed the significance of differing but appropriate findings on the question of comparative criminality between co-offenders.)'

Co-offender convicted of different offences in another State
In Shen [2009] NSWCCA 251 the applicant successfully argued inadequate allowance had been made for 'relative parity'where his cooffender (who was part of the same international drug syndicate) was sentenced for different offences in a different State. In the NSW District Court, the applicant was sentenced to 13 years with a NPP of 9 years for 'Trafficking a commercial quantity of MDMA' ( Criminal Code (Cth)) and 'Supply large commercial quantity of MDMA' ( Drug Misuse and Trafficking Act (NSW)) . In the Queensland Supreme Court, a cooffender R, who was part of the same international drug syndicate, was sentenced on four counts of importing a commercial quantity of a border controlled drug ( Criminal Code (Cth)). One count involved the same MDMA subject of the applicant's offences. R was sentenced to concurrent terms of 12 years imprisonment with a non-parole period of 8 years on each count.

In the circumstances of the case, the CCA allowed the appeal and re-sentenced the applicant to 11 years 6 months imprisonment with a NPP of 7 years 6 months. Fullerton J (with whom Hodgson JA and Howie J agreed) referred to Pham and Kerr, above, and continued:
'[32] While it is true that the Commonwealth prosecuting authority in the present case laid different charges against Reed and the applicant (in part, it would seem, as a result of the fact that Reed was arrested in Queensland and the applicant in New South Wales) and that this had the effect of invoking different statutory sentencing regimes and different approaches of principle to the question of accumulation, the same statutory maximum of life imprisonment applied to all offences. In addition, it is important to emphasise that despite the differences in the objective criminality of the applicant and Reed the dominant offending of both was contrary to the Commonwealth Criminal Code, albeit that Reed was charged with importing the border controlled drug that the applicant was charged with trafficking there was a marked overlap and interconnection between their offending. In the particular circumstances of this case, to point to the different charges and the different State sentencing regimes as justifying the disproportion between the applicant's sentence and Reed's sentence understates the importance of the overriding principle of equal justice and its legitimate operation in this case.
[33] Despite his Honour having said that he would 'bear in mind'the sentences imposed on Reed, I am satisfied that a greater allowance ought to have been made for relative parity in sentencing the applicant particularly since it was not suggested to his Honour (and not submitted to this Court) that the sentences imposed on Reed were manifestly inadequate, despite the fact that the sentences are markedly out of step with sentences imposed in this state for importing commercial quantities of a border controlled drug (see R v To [2007] NSWCCA 200; 172 A Crim R 121 where Hulme and Hall JJ reviewed a number of recent sentences where commercial quantities of MDMA were imported and where significantly longer sentences were imposed). In circumstances where the Crown on the appeal does not advance a submission that the individual sentences imposed on Reed were manifestly inadequate, or that the overall sentence was extremely lenient given his repeated and serious offending over an extended period, it is not for this Court, of its own volition, to make such a finding and to refuse to intervene for that reason'.


Juvenile co-offender
In Sheather [2009] NSWCCA 173 the Court allowed the applicant's appeal on the basis that the sentence imposed was disproportionate to that imposed on his juvenile cooffender. The applicant, aged 19, pleaded guilty to aggravated robbery and was sentenced to 3 years with a NPP of 1 year 4 months. His juvenile cooffender received a sentence of 9 months wholly suspended. Per McClellan CJ at CL (Grove and Buddin JJ agreeing):
'[25] It is important to appreciate, as this Court said in TJ V R [2009] NSWCCA 99, that the co-offenders were sentenced as juveniles whereas the applicant was 18 years of age at the time of the offending. Because the sentencing regime for juveniles is different to that for adults a direct comparison between BW's sentence and that of the applicant was not appropriate. However, notwithstanding those differences it is necessary to ensure that the sentence imposed on the adult offender is in all the circumstances proportionate to that imposed on the juvenile: R v Colgan [1999] NSWCCA 292 per Spigelman CJ at [13]'.

The Court considered that the fact that the applicant had good rehabilitation prospects, had given himself up to authorities and gave evidence against one of his cooffenders needed to be considered in structuring an appropriate sentence: at [27]. McClellan CJ at CL continued:
'[28] The effective sentence imposed on BW was significantly less than that which was imposed on the applicant. Although for reasons I have indicated a direct comparison was inappropriate, I am satisfied that the applicant is legitimately entitled to consider that his sentence was out of proportion to that imposed on BW. BW's sentence of nine months was wholly suspended whereas the applicant received a minimum period of full time custody of 16 months. Although the applicant probably had a greater role in initiating the offence, ..... his part in the crime was no greater than BW, ..... By giving himself up and assisting the police he has demonstrated genuine remorse and has given every indication that he will avoid offending in the future. Although a term of full time imprisonment was appropriate the length of the applicant's sentence was required to be proportionate to that of the co-offenders. To my mind the sentence imposed on the applicant was excessive to the extent that this Court should intervene'.

The Court imposed a new sentence of 12 months imprisonment with a NPP of 12 months.

10. De Simoni Principle
Malicious wounding s 35; Malicious wounding with intent s 33 - Breach of De Simoni principle to take into account grievous bodily harm
In McCullogh [2009] NSWCCA 94 the appellant was charged with malicious wounding under s 35(1)(a), and not infliction of grievous bodily harm under s 35(1)(b). In assessing the objective seriousness of the offence, the sentencing judge properly took into account that the victim suffered a bitten finger and minor head wounds. However, it was a breach of the principle in De Simoni (1981) 147 CLR 383 to take into account a wrist fracture (being an injury that constituted 'grievous bodily harm'): at [41]. (The Court noted these provisions have now been replaced by a new s 35 which retains two distinct offences of wounding and grievous bodily harm: at [40]).

In Wilkins [2009] NSWCCA 222 the appellant was charged with malicious wounding with intent under s 33, not malicious infliction of grievous bodily harm with intent. Applying McCullogh, above, the Court found that the sentencing judge was in error to take into account facial injuries suffered by the victim: at [35].

Assault police officer s 58 - Error to take into account injury suffered by victim
In McIntyre [2009] NSWCCA 305 the appellant was charged with assault occasioning actual bodily harm under s 59 and assault police officer under s 58. The appellant had punched the police officer after being arrested for the assault offence. The Court found that the sentencing judge had breached the De Simoni principle in finding that the police officer had suffered 'some injury'as injury is not an element of the offence of the crime of 'assault': at [42]-[43], [49].
'[42] It is not an element of the crime of assault that injury be caused to the victim. Any touching of another person, however slight, may amount to a physical assault. It has been said that the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: Secretary, Department of Health and Community Services v JWB and SMB(Marion's Case) [1991]-[1992] 175 CLR 218 at 233, 265-266; Collins v Wilcock [1984] 1 WLR 1172 at 1177.
[43] If actual bodily harm was occasioned by an assault, then the offender is liable to conviction and sentence for a more serious offence where the occasioning of actual bodily harm is an element of the offence. In the case of a police officer victim, this offence arises under s.60(2). In the case of a victim who was not a police officer, the relevant offence is one under s.59 of the Act.
.....................................
[49] If the Crown had determined to prosecute the Applicant for an offence under s.58 (or s.60(1)), and not an offence under s.60(2), then the statement of facts ought not to have referred to injury in the form of bruising which had resulted from the assault upon the police officer. Once such material was inserted in the agreed statement of facts, there was a prospect that the sentencing Judge would not only refer to it, but take it into account in assessing the objective seriousness of the offence for which the Applicant stood to be sentenced. This prospect became a reality in this case. Her Honour had regard to "the injury" when assessing the objective seriousness of the s.58 offence'.

11. Other sentence cases

Extra curial punishment
In Clinton [2009] NSWCCA 276 the Court considered whether the appellant was entitled to have extra curial punishment taken into account. During a break and enter, the appellant was struck on the head by the victim and suffered lacerations. The Court found there was no entitlement to have the extra curial punishment taken into account and that it was a matter for the sentencing judge to determine what weight to give to the appellant's injuries:
'[31] This Court has held that extra-curial punishment is a matter that can be taken into account in determining the appropriate sentence to be imposed upon an offender. It can be in the form of retribution meted out by members of the public or injuries suffered by the offender as a result of the commission of the offence: see Silvano v R [2008] NSWCCA 118; 184 A Crim R 593. The issue was most recently considered by this Court in Whybrow v R [2008] NSWCCA 270 where it was held that "multiple serious injuries" suffered by the applicant were relevant to an assessment of the sentence to be imposed upon him for three offences of dangerous driving causing death or grievous bodily harm arising from the motor vehicle accident in which he suffered the injuries.
[32] However, when the injuries are inflicted by the victim against whom the offence is being committed, the court is entitled to take into account whether the act that caused the injuries was an unreasonable reaction by the victim to the acts of the offender and the degree of the injury inflicted: Sharpe v R [2006] NSWCCA 255 at [61] to [67], see also Alameddine v R [2006] NSWCCA 317. Another relevant factor may be the seriousness of the offending when compared with the punishment inflicted: see the discussion in R v Davidson ex parte A-G (Qld) [2009] QCA 283.
..................................
[34] It was submitted that the applicant "was entitled to have regard paid to [extra-curial punishment] (given that he clearly suffered significant injuries which required surgery and bled very heavily from the wounds at the scene)". I do not accept that submission. The applicant had no such entitlement and it was a matter for the judge to determine the weight to be given, if any, to the injuries the applicant suffered. On the material before the Judge they were relatively minor and the actions taken by the victim could not in any way be said to be disproportionate to the threat posed by the applicant to the victim's property or his person. In any event, I would have come to the same conclusion as his Honour. Material placed before this Court does not indicate that his Honour misunderstood the nature of the injury'.

Consideration of offender having been in protective custody
In Clinton [2009] NSWCCA 276 the Court said that the fact that the offender had spent 6 months in protective custody did not mean a mathematical formula applied to the sentence to be imposed. Per Howie J (Allsop and Hislop JJ agreeing):
'[18] It was submitted that for a period of 15 months the applicant had been in a "very harsh and rigorous regime" and that the sentencing judge should have given to that period "the equivalence of at least 20 months or more ordinary prison time". It was suggested that there were authorities supporting that approach. One authority was said to be R v Howard [2001] NSWCCA 209 at [18]. The paragraph cited is as follows:

18 It is the fact, as Kirby J pointed out in AB (1999) 73 ALJR 1385 at 1408, that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. It is also the fact that such form of detention can deny to a prisoner the full opportunities for programs and courses available to mainstream prisoners. Additionally, any prisoner with a history of being on protection, particularly one who has killed or abused a child, is potentially a marked man for whom the risk of reprisal is high. Had his Honour ignored those circumstances then error would have been demonstrated. However, it was a matter expressly acknowledged and said to have been taken into account. The submission advanced in this regard to the effect that "given the length of the head sentence, it would seem that his Honour gave inadequate weight to it", needs to be examined in the light of what is an appropriate sentence for an offence of manslaughter of this kind.

[19] There is nothing in that statement or in the decision generally that suggests that a judge should apply a mathematical formula to determine the effect of a period on protection. The Court simply decided that the judge said he was taking the offender's period on protection into account and it could not be said from the sentence imposed that he had given insufficient weight to that factor.
........
[24] In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was there taken to the relevance of the fact that a person was in protective custody. The change to the approach previously taken was as a result of information provided to the Court that revealed that protection did not necessarily result in harsher prison conditions. The change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92.
[25] For my part I do not believe that it is appropriate for a court to adopt a mathematical formula to convert time spent in protection to an equivalent period spent in the general prison population. There are too many variables and there is not always a significant difference between being on protection and being part of the normal prison population. There may well be benefits derived from being on protection that offset some of the deprivations'.

Good prospects of rehabilitation can exist where offender maintains innocence
In Alseedi [2009] NSWCCA 185 the offender, convicted at trial of various sexual assault offences, maintained his innocence at sentence. The sentencing judge said that the 'most obvious impediment'to making a finding of good prospects of rehabilitation was that the offender continued to maintain his innocence. Allowing the appeal, the Court found that maintaining one's innocence is not necessarily inconsistent with the unlikelihood that he would re-offend. Per Giles JA (Hidden and McCallum JJ):
'[65] At this point in his remarks his Honour did not acknowledge the matters favouring unlikelihood that the appellant would re-offend to which he had earlier referred. His only stated reason for declining to find good prospects of rehabilitation was that the appellant continued to maintain his innocence. That is by far from necessarily inconsistent with unlikelihood that he would re-offend; there can be rehabilitation without confession, and offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt. I consider that his Honour gave that matter undue weight without proper regard to the otherwise favourable matters'.

First term of imprisonment is not necessarily a special circumstance
In Clarke [2009] NSWCCA 49 the Court found that the fact that an offender may be receiving a sentence of imprisonment for the first time did not necessarily amount to special circumstances. Per McClellan CJ at CL (James and Adams JJ agreeing):
'[12] As I have indicated his Honour's finding of special circumstances was based on the fact that the applicant would be serving a prison sentence for the first time. Reservations have been expressed in this Court as to whether the fact that a person will be in custody for the first time is capable of constituting special circumstances R v Kama (2000) 110 A Crim R 47 (per Spigelman CJ at [10]); R v Kaliti [2001] NSWCCA 268. I have similar reservations. There will be many persons facing a court for sentence who will receive a custodial term for the first time. No doubt where appropriate that fact will be reflected in the sentence which is imposed. But whether for that reason alone a finding of special circumstances is appropriate is doubtful. Most people who have been incarcerated for any period will need assistance in re-establishing themselves in the community and it may be that a repeat offender is in greater need than some one incarcerated for the first time'.

Seriousness of digital penetration
In Hibberd [2009] NSWCCA 20 the Court considered the seriousness of digital penetration. Price J said that although digital penetration has been generally considered less serious than penile penetration, this is not always so. In the circumstances of this case, the sentencing judge had not given due consideration to the use of violence:
'[56] Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation..." See Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced intercourse is an important factor it is not to be regarded as the sole consideration.
........
[66] The focus of his Honour's consideration was plainly upon the form of forced intercourse. The violence, however, which had accompanied the commission of this offence on a heavily pregnant woman was not to be overlooked. The respondent had ignored her entreaties to stop and resisted her attempts to remove his fingers from her vagina. The offending conduct was not of short duration. When she tried to scream her head was shoved into the pillow and she was told to shut up. ..... In my respectful opinion his Honour failed to give sufficient weight to the extent of the violence used in the commission of the offence. This offence involved the forcible insertion of at least three fingers into the vagina of a woman who was eight months pregnant and was accompanied by the violence ... . I consider the offence to be within the middle range of objective seriousness and that his Honour erred in finding otherwise.

Tobias JA (otherwise concurring with Price J) took the view that the law should change:

"[21] ...the time has come for this Court to depart from any prima facie assumption, let alone general proposition, that digital sexual intercourse is to be regarded as generally less serious than penile sexual intercourse...[T]he objective seriousness of the offence is wholly dependent on the facts and circumstances of the particular case..."

James J, agreeing with Price J, reserved his position on whether the Court should depart from statements in previous cases that generally an act of digital penetration is likely to be less serious than penile penetration: at [27].

Totality to be considered before deciding whether sentence to be suspended
In Burnard [2009] NSWCCA 5, involving multiple fraud offences, the Court said that the sentencing judge ought to have considered questions of totality before determining whether the sentence ought to be suspended. Per James J (Tobias JA and Price J agreeing):
'[111] ..... the sentencing judge, as a judge sentencing an offender for multiple offences, was required to give consideration to questions of totality and to what extent the sentences for different offences should be made concurrent or cumulative, before making any decision to suspend the execution of any of the sentences. Such a consideration would necessarily involve a determination of what would be appropriate sentences for all of the offences, before determining whether any of the sentences should be suspended.
[112] Such a consideration would be required, in order to determine whether, having regard to the restrictions in s 12 of the Crimes (Sentencing Procedure) Act on the making of orders suspending the execution of sentences of imprisonment, it would even be open to suspend the execution of a particular sentence and in order to ensure that the sentences for the individual offences would be consistent with each other. Very importantly, such a consideration would be necessary in order to give effect to the sentencing principle of totality, "that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct" (see R v Weldon [2002] 136 A Crim R 55 per Ipp JA at 62 (46)).
[113] As was stated by Howie J in JRD at par 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."

[114] In the present case I consider that the sentencing judge's remarks on sentence indicate that his Honour decided to suspend each of the sentences for imprisonment he would impose, before considering the questions of totality and the extent to which the sentences for the different offences should be made concurrent or cumulative. His Honour then gave only limited effect to the principle of totality by imposing a number of fines in addition to the sentences of imprisonment for 12 months. The shift in his Honour's remarks from holding that a period of 12 months imprisonment which was suspended would be justified, having regard to the nine charges, to holding that sentences of imprisonment of 12 months should be imposed on four only of the charges and that fines should be imposed on the other five charges indicates that his Honour had not properly considered the question of totality before deciding that sentences of imprisonment should be suspended.
[115] A consequence of the sentencing judge's failure to apply properly the principle of totality was that four fully concurrent suspended sentences of the same length were imposed, even though the sentences were for four different offences by the respondent involving four different victims, and the aggregate sentence for these four offences did not reflect the total criminality in the four offences'.

'Tinkering'
In Hillier [2009] NSWCCA 312 Basten JA commented on whether the principle against 'tinkering's should be applied to a sentence appeal by an offender given that it acts against the interests of liberty of the offender. In this case, reducing a sentence by six months was said not to be characterised as 'tinkering's: [48]-[49]. Per Basten JA (Johnson J agreeing):

'[48] Part of the discourse in this area of jurisprudence involves "strong resistance ... against appellate 'tinkering's with sentences": see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] (Kirby J). However, that language has usually been adopted in cases which, like Dinsdale itself, involved appeals by the Director of Public Prosecutions against the inadequacy of a sentence: see, eg, R v Burke [2000] NSWCCA 450 at [27]; Regina v Smith [2001] NSWCCA 152 at [41]; R v Ceissman [2004] NSWCCA 466 at [8]; R v Matthews [2007] NSWCCA 294 at [49]; R v Tortell [2007] NSWCCA 313 at [52]; R v Vera [2008] NSWCCA 33 at [26]; R v AD [2008] NSWCCA 289 at [78]. On occasion, that language has also been adopted in relation to a challenge by an offender seeking to reduce his or her sentence: see, eg, Jones v Regina [2006] NSWCCA 385 at [25]. Whether it is appropriate in such cases may be doubted and should at least be justified, acting as it does, against the interests of liberty of the offender. Jones itself involved a rejection of the alleged specific errors and a final consideration of whether the period of mandatory custody was manifestly excessive because it was an unduly high proportion of the sentence: at [11]. Where a variation (in that case one month) could be described as "tinkering", it might equally be said that it was not clearly outside a permissible range, in circumstances where no other error had been demonstrated. Alternatively, the result might be achieved by the application of s 6(3) of the Criminal Appeal Act.
[49] In any event, the reduction of a sentence by six months cannot appropriately be characterised as "mere tinkering", were that test otherwise appropriate. Once that intervention is deemed appropriate, it is necessary to specify a non-parole period in accordance with s 44.


12. High Court
In Carroll [2009] HCA 13 the High Court upheld the applicant's appeal holding that the NSW CCA erred in finding the sentence imposed for manslaughter was manifestly inadequate: Carroll [2008] NSWCCA 218.

In the CCA, the Crown did not allege any specific error of principle or law, arguing only that the case fell within the last category of error identified in House v The King [1936] HCA 40; (1936) 55 CLR 499, namely, sentence "unreasonable and plainly unjust." The High Court held that it was open to the CCA to make its own assessment as to the objective seriousness of the offence. However, as the Crown had challenged the sentence only on the basis it was 'plainly unjust'(or manifestly inadequate) it was not open to the CCA to evaluate the adequacy of the sentence by discarding reference to why the Appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause severe injury or the possibility of death: at [24].

The Court (Gummow, Hayne, Crennan, Keifel and Bell JJ in a joint judgment) said:
'[17] McClellan CJ at CL, speaking for the majority of the Court of Criminal Appeal, concluded that the offence was serious and could not justify the description of falling towards the bottom of the range of objective seriousness. That conclusion was expressed against a characterisation of the facts that differed in important respects from that of the primary judge. In particular, McClellan CJ at CL described the facts in the following terms:

"Although her Honour found that the deceased made a threat to get a gun, this was an idle boast which could not have justified a violent response from the respondent. Mr Criniti was apparently intoxicated and there was no suggestion that the [present appellant] was under any immediate threat. Perhaps a dismissive word in response to Mr Criniti was justified but not a violent and aggressive act with, on any view, potentially serious physical consequences. Although a head butt delivered to another's face may not be expected to lead to death, severe injury was clearly foreseeable and death at least a possibility."

[18] Two features of that description are to be noted. First, while it is undeniably true that nothing the victim had said or done "justified a violent response" the appellant had never suggested that what he had done was justified. The primary judge had not held to the contrary. Rather, the primary judge had taken account of the fact that the appellant had reacted (wrongly and violently, but spontaneously) to what she had described as "some provocation" from the victim.
[19] In recording the arguments advanced to the Court of Criminal Appeal on behalf of the present appellant, McClellan CJ at CL noted that emphasis was given to the prosecution's concession at first instance that the appellant had "acted in response to the deceased's provocative act in threatening to get a gun and kill the 'whole family's". But although the prosecution's concession about why the appellant had acted as he had was thus noted, describing the deceased's words as "an idle boast" which perhaps justified "a dismissive word in response" focused attention upon the objective characterisation of the events to the exclusion of the primary judge's finding about what had led the appellant to act as he had. The objective characterisation of the events was never in issue; the subjective reason the appellant reacted to those events as he did was not irrelevant.
[20] The second point to notice about the Chief Judge's characterisation of the matter is his encapsulation of why, in the circumstances of this case, the offence of manslaughter was established. He said that although a head-butt delivered to another's face may not be expected to lead to death "severe injury was clearly foreseeable and death at least a possibility".

[21] By his plea of guilty the appellant acknowledged that his head-butting the victim was an unlawful and dangerous act that carried with it an appreciable risk of serious injury. He did not admit (and the trial judge did not find) that " severe injury was clearly foreseeable" or that "death [was] at least a possibility.
...................
[24] In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. Both these steps being erroneous, the majority of the Court of Criminal Appeal erred in reasoning to the conclusion that the sentence passed was manifestly inadequate. ...........
.......


 



CONVICTION APPEAL CASES

Accused's right to silence
In Sanchez [2009] NSWCCA 171 the Court held that directions by the trial judge infringed the appellant's right to silence: Petty v The Queen (1991) 173 CLR 95. The appellant was convicted of a drug importation offence. The appellant claimed at trial that he did not know what was in his bags as he had not packed one of them and was carrying the other bag for somebody else. He had not told this to police and Customs officers at the airport. The judge directed the jury that 'why he would not have raised that matter then and there, on the Crown case is simply incredible': at [39]. The Court held this was a misdirection (but refused leave to allow this ground under rule 4 Criminal Appeal Rules, and dismissed the appeal). Per Campbell JA (Latham and Harrison JJ agreeing):

'[70] When the two paragraphs are taken together the jury could very well take from them that the Crown was suggesting that the failure of the Appellant to tell the Customs officers or the Federal agents the story that he had told in evidence was a reason why his account of how he came to be in possession of the two bags should not be accepted. Even though the judge was purporting to summarise the Crown submission (albeit inaccurately, as the Crown had said nothing about the failure of the Appellant to tell the substance of his defence to "Agent Santamaria", or "the federal agents") the judge said nothing about that being an illegitimate way for the jury to reason. In my view that is a clear contravention of the Appellant's right of silence, as expounded by the High Court majority in Petty, and as illustrated by the decision in Glennon. '

The Court also said that a direction on the right of silence should be given at the time such evidence is adduced. The judge should direct the jury that they are not to draw an adverse inference. Although there is no rule that the warning must be repeated in the summing-up it may be desirable and prudent to do so: at [58]. Per Campbell JA:
'Timing of Direction on Right of Silence

[56] In R v Reeves, Hunt CJ at CL (with whom Mahoney JA and Badgery-Parker J agreed), said (at 115E) that where:
"... evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given - as soon as the evidence is given and, if necessary, again in the summing up - to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty: R v Astill (Court of Criminal Appeal, 17 July 1992, unreported) at 9."
[57] In R v Matthews (NSWCCA, 28 May 1996, unreported) Badgery-Parker J (with whom Cole JA and Sperling J agreed) at 3 gave a slightly different emphasis:
"It is preferable, as was pointed out in Astill, that such a direction be given at the time when the evidence is first adduced, but in any event should ordinarily be given in the course of the summing up."
[58] On both formulations, at the time evidence is given that an accused has exercised a right of silence, a judge should give a direction to the jury that they are not to draw an adverse inference from the accused having done so. On both formulations, there is no rule to the effect that that warning must be repeated in the summing up. It may well often be desirable, and prudent to do so, but whether failure to do so involves appellable error will depend on the circumstances of the individual case. '


Section 89 Evidence Act did not arise in this case as there was no failure or refusal by the appellant to answer questions or respond to representations put or made by an investigating official. The Court considered that s 89 was narrower in scope than the common law concerning the right of silence: at [71].

Putting the Defence Case to the Jury
In El Jalkh [2009] NSWCCA 139 the appellant submitted that the trial judge failed to properly put the defence case to the jury. The appellant was convicted of conspiracy to import drugs. Allowing the appeal and ordering a new trial, per James J (Spigelman CJ at CL and Simpson J agreeing):

'[146] The functions to be performed by a trial judge in summing-up to a jury were discussed by Wood CJ at CL in R v Meher [2004] NSWCCA 355. His Honour said, with the concurrence of the other members of the Court:-

"[76] It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v R (1971) 124 CLR 107.
[77] There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v R (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence.
.......................
[82] It is essential, if a summing up is to be fair and balanced, that the defence case be put to the jury.
[83] In Regina v Schmahl [1965] VR 745, Winneke CJ (with whom Scholl and Pape JJ agreed) said, in this respect (at 748):
... Failure adequately to put the defence is, of course, a well-recognized ground of appeal. See the case of R v Wilson (1913) 9 Cr App R 124. In a case like this where the evidence was lengthy, and by no means easy to unravel, and where it related to a conversation which had taken place so long before, the interests of justice required that the defence of the applicant should be clearly and fully presented to the jury. Failure to make such a presentation where it relates to an important part of the defence makes it dangerous, in my view, to allow the verdict to stand. In such circumstances, the recent decision of the High Court in Raspor v R (1958) 99 CLR 346; [1958] ALR 1062, shows, if authority for such a proposition be needed, that it is not only the function but the duty of this Court to hold that a miscarriage of justice has occurred. In such a case it is not possible to save the verdict by the application of the proviso to s 568(1) of the Crimes Act 1958 ...
[84] In Regina v Tomazos NSWCCA 6 August 1971 this Court approved the passage quoted above. Isaacs J added:
In the result the conclusion appears to me to be inevitable that not only has there been a miscarriage of justice but a substantial miscarriage. The Appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.
It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, "Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more". The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused.

[85] Similarly in R v Malone NSWCCA 20 April 1994 Blanch J (with whom Grove and Studdert JJ agreed) said:
What is of paramount significance in assessing a summing-up is to determine whether the defence has been fairly put thus allowing a jury properly to consider the issues raised on the accused's behalf. If a jury is not given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice. Another way this can occur is illustrated in Van Leeuwen v The Queen (1981) 55 ALJR 726 where Gibbs CJ at page 728 said:
A trial judge is not bound in his summing up to comment on all of the evidence or to refer to all of the contentions on which the accused has relied. The adequacy of a summing up in its references to questions of fact must depend upon the circumstances of the particular case. In the present case the learned trial judge not only failed to indicate to the jury the significance of the important piece of evidence but by stating that he did not follow the argument of counsel might have been through by the jury to be depreciating its importance."

[147] It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel.

James J considered that the trial judge put the defence case to the jury in a limited way and failed to refer to any specific parts of the oral evidence or of recorded conversations, including making references to the evidence so that the jury could properly understand the defence case: at [148]-[149]. Even though defence counsel finished his closing address on the day the judge summed-up, the judge was required to put the principal arguments for the accused: at [149]. The judge was not relieved of the requirement of putting these matters to the jury just because they had been put by defence counsel or because they seemed obvious or difficult to accept: at [150] - [154].

In-court identification and failure to discharge jury

In Aslett [2009] NSWCCA 188 the appellant was charged with robbery and kidnapping offences. The only issue at trial was identity. A security officer saw the alleged offender but could not identify him from a police photo array. While giving evidence at trial, the security officer unexpectedly identified the applicant sitting in the dock. The trial judge refused to discharge the jury. The Court held that the in-court identification changed a circumstantial case into one suggesting the appellant's direct involvement. The evidence was inadmissible and highly prejudicial. Allowing the appeal and ordering a new trial, Kirby J (Allsop and Johnson JJ agreeing) said:

' [52] In-court identification has been recognised as presenting danger in an acute form. In Davies & Cody v The King [1937] 57 CLR 170, the Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) said this: (at 182)
"Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question."(emphasis added)
..............
[55] The security guard did not know the appellant. He was not identifying someone with whom he was familiar. He had been shown an array of photographs by the police some time before he gave evidence, which included a photograph of Mr Aslett. There existed, in these circumstances, the danger described as "the displacement effect". In Alexander v The Queen, Stephen J said this: (at 409)
"... there is the 'displacement' effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness' part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."
[56] The trial Judge, in determining that the matter should proceed, did not advert to these issues or recognise the prejudice associated with them. If the trial were to proceed, it was important that the jury be immediately told that the in-court identification was of no value on the identification issue (as the witness must inevitably point out the person who is on trial), that being a direction suggested by the bench book. It was also important that such a direction should be repeated and emphasised in the summing up. However, no such directions were given. [57] I believe that the jury should have been discharged. I would find error. The evidence was inadmissible. It had little probative value. It was highly prejudicial. It went to the heart of the matter in contest, namely the identity of Mr Aslett. The evidence changed the entire complexion of the case from a circumstantial case to a case with direct evidence of Mr Aslett's involvement. There was, I believe, the risk of a substantial miscarriage of justice unless the jury was discharged. '

CONCLUSION
In last year's paper I made the following point:
The Judicial Commission Court of Criminal Appeal statistics for 2008 have not as yet been finalised. What can be observed from the statistics that are available is that successful severity appeals reached a high point of 45.2% in 2004. There has been a steady decline to 39.2% in 2007. Conversely, successful Crown appeals reached a low point of 49.2% in 2003 and there has been an increase to 61.4% in 2007. It remains to be seen whether the 2008 and 2009 statistics continue these trends.

The official statistics for 2008 and 2009 were still not available at the time of the writing of this paper, however analysis of the raw figures for these years has been undertaken by the Public Defenders' Researchers and added to the JIRS table as set out below.

What can be seen is that since 2005 defence severity appeals have decreased in raw numbers from 317 to 225. Depressingly for the defence the percentage success rate has decreased from 44.2% to 34.7%.

Additionally, we are still awaiting the judgment of the Court of Criminal Appeal on the question of the application of the NSW State Government's 2009 double jeopardy legislation in relation to Crown appeals.

STOP PRESS : Since the delivery of this paper on 20 March 2010, the judgment of JW [2010] NSWCCA 49 has been handed down on 22 March 2010. For a summary of its effect, see Annexure F.


Severity Appeals *

Year
Number of Appeals
Appeals Allowed
Percentage
2000
312
127
40.7
2001
342
138
40.4
2002
331
148
44.7
2003
271
109
40.2
2004
281
127
45.2
2005
317
140
44.2
2006
257
105
40.9
2007
240
94
39.2
2008 **
214
83
38.8
2009 **
225
78
34.7
Total
2792
1152
41.26


Crown Appeals *

Year
Number of Appeals
Appeals Allowed
Percentage
2000
84
42
50.0
2001
55
34
61.8
2002
80
49
61.3
2003
65
32
49.2
2004
101
52
51.5
2005
56
34
60.7
2006
76
47
61.8
2007
58
35
61.4
2008 **
60
31
51.7
2009 **
45
29
64.4
Total
677
382
56.4


Notes
* Figures for 2000-2007 from JIRS: http://sis.judcom.nsw.gov.au/benchbks/sentencing/appeals.html
** Figures for 2008 and 2009 calculated from Caselaw website.

11 case numbers missing from 2008 and 15 case numbers missing from 2009
Where multiple applicants / respondents in one case each person has been counted as an appeal

Appendix A

ss 54A-D 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 (Forensic Provisions) Act 1990.
(2) This Division does not apply if the offence for which the offender is sentenced is dealt with summarily.
(3) This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed.


Table Standard non-parole periods

Item No Offence Standard non-parole period
1A Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement 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) 8 years
10 Section 66A (1) or (2) 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

Appendix B

s 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, council law enforcement 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.
(5A) Special rules for child sexual offences
In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.
(6) In this section:
child sexual offence means:
(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or
(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.
serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.
 
 
 

Appendix C - High Court cases


Carroll [2009] HCA 13 (21.4.2009) - Sentencing / Crown Appeal
(Appeal from NSW CCA)
Appellant sentenced in District Court for Manslaughter - Sentenced to Periodic Detention 3 years.
Crown appeal to NSW CCA allowed - Sentenced to full-time custody 3 years NPP 18 months.
The High Court held that the majority in the NSW CCA erred:

(i) in assessing the adequacy of sentence on the premise that the Appellant should not have been provoked by the deceased - the sentencing judge had found there was 'some provocation' by the deceased and the Crown had not challenged this finding.
(ii) in finding that 'severe injury was clearly foreseeable and death at least a possibility.'- the Appellant's guilty plea acknowledged only that his act was an unlawful and dangerous act that carried with it an appreciable risk of serious injury.


Edwards [2009] HCA 20 (21.5.2009) - Permanent Stay of Proceedings
(Appeal from Tasmania)
Test for permanent stay on basis of lost evidence and delay
Judge wrongly formulated test from Walton v Gardiner (1993) 177 CLR 378 as

but whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness

Correct test

whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process.

Loss of evidence not necessarily sufficient to justify stay
Not shown in circumstances of case that any prejudice arising by reason of the delay cannot be addressed by direction

Jones [2009] HCA 17 (29.4.2009) - Admissibility of Propensity Evidence of Co-accused
(Appeal from QLD)
Joint trial for murder
Admissibility of propensity of violence of one offender led in case for co-offender considered but not decided - in this case Trial Judge was only ever asked to rule on the admissibility of cross-examining the police officer as to the alleged evidence of violence - such evidence was inadmissible due to hearsay. No request was made at trial to admit any other evidence. The question of whether more detailed evidence of the bad character of the co-accused could have been admitted was not raised by the facts of the case and remains undecided.

Kennan [2009] HCA 1 (2.2.2009) - Common Purpose
(Appeal from QLD)
Common purpose trial - party to plan to do harm to victim - Victim shot in back by co-accused - No evidence gun discussed as part of plan

Criminal Code Qld Section 8
When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

The test for whether the offence is a probable consequence of the common purpose under section 8 is objective not subjective.
The key to ascertaining whether the offence was a probable consequence of the common purpose is the level of harm intended by the common purpose not the intended method. At [119]-[124]
Question of whether shooting meant co-accused misunderstood or acted outside common purpose a separate question that was correctly and independently put to jury for consideration. At [136]

Relevant Common Law Principles

Test at common law for extended common purpose is subjective one

Johns (1980) 143 CLR 108 [per Mason, Murphy and Wilson JJ at p.130-1]


In our opinion these decisions support the conclusion reached by Street CJ, namely, "that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention--an act contemplated as a possible incident of the originally planned particular venture".  Such an act is one which falls within the parties' own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.


McAuliffe (1995) 183 CLR 108 at p.113


... each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose. (reference removed)


Gillard (2003) 202 ALR 202 at [112].


[112] As McAuliffe reveals the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe 'the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind'To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that 'a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it'The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight. (references removed)


 

Where an agreement encompassed the infliction of serious bodily harm it is not necessary for prosecution to show that the accessory foresaw the particular manner in which the harm was to be inflicted, nor the weapon used.

Suteski (2002) 137 A Crim R 371

[145] There was no requirement that the Crown show that there was agreement as to the particular manner in which grievous bodily harm was to be occasioned, or as to the particular weapon which was to be used; nor was it necessary for the Crown, in the alternative way in which it put its case, to show that the appellant contemplated as a possibility the particular way in which Mr Peich was to be harmed, or that any particular weapon was to be used, for that purpose.
[146] What was required was that the infliction, in some way, of grievous bodily harm, came within the scope of the joint enterprise to injure the victim, or was contemplated as a possibility in its implementation.

[147] In my view, the directions sufficiently and correctly instructed the jury as to the offence of murder constituted by joint enterprise, and extended joint enterprise (common purpose) respectively.




PNJ [2009] HCA 6 (10.2.2009) - Double Punishment
(Appeal from SA)
Applicant convicted and sentenced for offence of wounding with intent to cause GBH - Victim subsequently died - Applicant now charged with murder.
Issue of abuse of process and double punishment
Appeal dismissed
It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court's processes for an illegitimate or collateral purpose;
(b) the use of the court's procedures would be unjustifiably oppressive to a party; or
(c) the use of the court's procedures would bring the administration of justice into disrepute.


Taiapa [2009] HCA 53 (16.12.2009) - Duress / Compulsion
(Appeal from Queensland)
Defence of duress / compulsion
Drug dealer claimed to have acted under duress having considered but rejected option of reporting threat to police
Trial judge erred in finding defence required those making threats to be in a position to execute the threats at the time of the offence 'sufficient that the compulsion operating on the mind of the accused is a present threat of future harm
Although failure to take opportunity to report to police not necessarily fatal in this case failed to establish reasonable belief there was no other option.
Burden of Proof

[5] While it is conventional to describe s 31(1)(d) as providing the defence of compulsion, it is well-settled that if there is some evidence capable of raising the issue, the legal or persuasive burden is on the Crown to exclude the proposition that the accused was acting under compulsion beyond reasonable doubt - that is, exclude any reasonable possibility that the proposition is true. In deciding whether the evidence sufficiently raises the issue to leave compulsion to the jury, it is necessary for the trial judge to be mindful of the onus of proof. The question is whether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under compulsion. It was not disputed that the onus on that question - an evidential burden - is on the accused. It is the accused who must tender evidence, or point to prosecution evidence, to that effect.


 


Appendix D - Legislation



1. Evidence Amendment Act 2007
Commenced 1.1.2009
13 Competence: lack of capacity
A court is no longer required to be satisfied that the witness 'understands the difference between the truth and a lie'All that is necessary is that the requirements of s 13(1) in relation to general competence are satisfied and 'the court has told the person' the following
(5) (a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

41 Improper questions
This provision has been made mandatory and the categories of improper questions have been expanded.

59 The hearsay rule—exclusion of hearsay evidence
Prior to the amendments to evidence of a previous representation made by a person was only classified as hearsay if the person making the representation intended to assert a fact that was implied in the representation. Now the question is whether 'it can reasonably be supposed that' the person intended to assert that fact. Under (2A) the court may have regard to the circumstances in which the representation was made in considering whether it is hearsay.

60 Exception: evidence relevant for a non-hearsay purpose
Amended in response to Lee (1998) 195 CLR 594 to confirm section applies to second-hand hearsay.
The section, however, does not apply to evidence of an admission.

65 Exception: criminal proceedings if maker not available
The exception allowing statements made against interest is amended to require the statement also be made in circumstances that make it likely that the representation is reliable.

66 Exception: criminal proceedings if maker available
In response to Graham (1998) 195 CLR 606, s 66(2A) has been introduced to make clear 'freshness'is not be confined to a time period - the court must take into account all matters that it considers relevant including the nature of the event concerned and the age and health of the person.

79 Exception: opinions based on specialised knowledge
Opinion evidence of child development and child behaviour will not be excluded by the opinion rule in s 76.

85 Criminal proceedings: reliability of admissions by defendants
89 Evidence of silence
In response to the narrow interpretation of 'official questioning' in Kelly (2004) 218 ALR 216, these provisions now apply where an admission was 'made ... to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence'

101A Credibility evidence
Introduced in response to High Court in Adam (2001) 207 CLR 96 to include evidence that is also relevant for some other purpose for which it is not admissible

103 Exception: cross-examination as to credibility
Test of 'substantial probative value' is replaced by a test of 'could substantially affect the assessment of the credibility of the witness'.

106 Exception: rebutting denials by other evidence
Amended to allow evidence to rebut non-admissions as well as denials of a witness with the leave of the court. Leave is not required to adduce specified categories of credibility evidence.

108A Admissibility of evidence of credibility of person who has made a previous representation
108B Further protections: previous representations of an accused who is not a witness
Applies to a person who is not a witness but made out of court statement - evidence must substantially affect assessment of person's credibility. Further restrictions placed on evidence where person making out of court statement is accused who is not a witness.

108C Exception: evidence of persons with specialised knowledge
New exception to the credibility rule which provides that, if a person has specialised knowledge based on the person's training, study or experience, the credibility rule does not apply to evidence given by the person where the evidence is an opinion of that person that is wholly or substantially based on that knowledge and could substantially affect the assessment of the credibility of a witness. It is made clear this applies to evidence about child development and behaviour.

128 Privilege in respect of self-incrimination in other proceedings
Protection certificate extends to any proceeding before any person or body 'authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence'The protection remains even if the granting of the certificate was in error.

165 Unreliable evidence
Amended to ensure warning as to evidence based on age of child witness can only be given under s.165A.

165A Warnings in relation to children's evidence
Contains warning as to possible unreliability of a child - cannot warn jury of possible unreliability of a child based solely upon age of child.

165B Delay in prosecution
The warning can only be given where the court 'is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay'Mere existence delay is not sufficient. Court cannot 'that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay'.

192A Advance rulings and findings
In response to TKWJ (2002) 212 CLR 124 the court is now permitted to give advance rulings and findings in relation to evidence

2. Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Act2009
Commenced 29.5.2009
Introduced a scheme for covert search warrants into LEPRA. Although there has been quite a bit of text change to Part 5 of the Act, including the provisions relating to ordinary warrants, there has been little effective change to the scheme for the issue and use of ordinary search warrants. Applies to list of serious offences. Allows search of premises without knowledge of occupier, entry of adjoining premises without knowledge of occupier of adjoining premises, impersonation of another person to execute warrant and anything else that is reasonable for purpose of concealing execution of warrant. Delay in service of occupiers notice for up to 6 months - extensions up to 3 years allowed in exceptional circumstances.

3. Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Commenced 24.9.09.
The Act amends the Crimes (Appeal and Review) Act 2001 in two ways:
(1) abolishing the principle of double jeopardy in relation to Crown appeals: s 68A (applies to Crown appeals commenced bit not determined at 24.9.2009)

Section 68A Crimes (Appeal and Review Act 2001 provides:


' 68A Double jeopardy not to be taken into account in prosecution appeals against sentence
(1) An appeal court must not:
(a) dismiss a prosecution appeal against sentence, or
(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate.
Because of any element of double jeopardy involved in the respondent being sentenced again.
(2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal'.


(2) allowing the further retrial of a person following an acquittal in circumstances where the retrial was tainted: s 105(1A).


4. Crimes (Criminal Organisations Control) Act 2009
Commenced on 3.4.09.
The Act "...provides for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members."
Declared organisations
The Commissioner of Police may apply to an eligible judge for a declaration that an organisation is a declared organisation: s 6(1). A declaration can be made where the judge is satisfied that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and that the organisation represents a serious risk to public safety and order: s 9(1). The rules of evidence do not apply, and the judge is not required to provide reasons for a declaration other than to a person conducting a review of the Act under s 39: s 13.
Interim Control Orders and Control Orders
The Act allows the Supreme Court, on application by the Commissioner of Police, to make an interim control order relating to one or more persons pending the hearing and final determination of an application for a control order: s 14(1).
The Supreme Court may make a control order in relation to a person subject to an interim control order if satisfied that the person is a member of a particular declared organisation and that sufficient grounds exist for making the order: s 19(1).
Offence of association between members of declared organisations subject to interim control order or control order
It is an offence for a controlled member of a declared organisation to associate with another controlled member of the declared organisation: s 26(1). The maximum penalty is 2 years for a first offence, or 5 years for a second or subsequent offence. The prosecution does not need to prove that the association was for any particular purpose or that it would have led to the commission of an offence: s 26(6).

Further amendments made to this Act:
Criminal Organisations Legislation Amendment Act 2009 (commenced generally on 19.5.09)
. Makes it an offence for a controlled member of a declared organisation to recruit another person to become a member of the organisation.
. Section 30A seeks to curtail criminal involvement in high-risk industries by enabling authorities that regulate certain industries to be provided with information by the Commissioner of Police about declared organisations and members.
. Makes provision for criminal organisation search warrants under LEPRA.

Courts and Crimes Legislation Amendment Act 2009 (commenced on 3.11.09)
Amendments intended to assist police law enforcement:
. Where police reasonably suspect that a person is one upon whom notice of an interim control order must be served they can require disclosure of their identity and request that person remain at a particular place as is reasonably necessary to serve the notice: s 16(6), (7).
. A court can make a control order against a former member of a declared organisation with an on-going involvement with the organisation: s 19(1)(a).
. It is an offence for a controlled member of a declared organisation to associate with another controlled member of the declared organisation on 3 or more occasions at any time within 3 months. The maximum penalty is 3 years imprisonment: s26(1A)
. If police have reasonable cause to suspect that a person is a controlled member of a declared organisation and associating with another controlled member of the declared organisation they may request the person disclose their identity: s26(7A).
. It is an offence for a person to refuse or fail to comply with a request to disclose their identity: s35A.

5. Crimes (Sentencing Procedure) Amendment (Council Law Enforcement Officers) Act2009
Commenced 9.6.09
Amends s.21A(2)(a) Crimes (Sentencing Procedure) Act to include 'council law enforcement officers' to list of class of victims aggravating offence.
Amends standard non-parole period table to include 'council law enforcement officers' as murder with a SNPP of 25y.

6. Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008
Commenced 1.1.2009
Amends Crimes (Sentencing Procedure) Act
Applies to all VIS received after commencement of the amendments.
Amendments include
. Definition in s 26 of personal harm extended to include 'psychological or psychiatric harm'.
. Extends availability of VIS to cases involving prescribed sexual offences and witnesses to such offences who suffer personal harm as a direct result of the offence.
. Amendments to s.30 permit photographs, drawings or other images to be included in VIS.
. Amendments to section 30(2) and s.30A(1) make it clear a parent or some other person having parental responsibility may act on behalf of a child victim.
. Under subsection 30A (3) and (4) victim entitled to read out the statement in accordance with closed-circuit television arrangements in proceedings in which victim permitted to use such procedures

7. Crimes Amendment (Sexual Offences) Act 2008
Commenced 1.1.2009
Crimes Act
Section 61J Aggravated sexual assault
Insert as aggravating factors
(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
Section 61M Aggravated indecent assault
Subsection (2) amended to increase age of victim from 'under the age of ten years' to 'under the age of 16 years'.
Section 61O Aggravated act of indecency
Subsection (2A) added - aggravated offence to commit offence on victim under 16 years knowing offence being filmed for child pornography.
Section 66A Sexual Intercourse Child Under 10
(1) Child under 10
Maximum penalty: imprisonment for 25 years.
(2) Child under 10—aggravated offence
Maximum penalty: imprisonment for life.
Section 66C Sexual intercourse—child between 10 and 16
(h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
Section 66EB Procuring or grooming child under 16 for unlawful sexual activity
Offence of meeting child following grooming inserted.
Section 80D Causing sexual servitude
Penalty increased from 19 years to 20 years
80G Incitement to commit sexual offence
New offence inserted
Section 91E Obtaining benefit from child prostitution
Increase punishment to 14 years if offence involves child under age of 14 years
Section 91H Production, dissemination or possession of child pornography
Possession of child pornography with production and dissemination with consequent increase of max penalty from 5y to 10y
Division 15B Voyeurism and related offences
Introduction of new offences

Crimes (Sentencing Procedure) Act1999
Section 21A Aggravating, mitigating and other factors in sentencing
(5A) Special rules for child sexual offences
Good character or lack of previous convictions not to be taken into account for child sexual assault offences if court satisfied factor was of assistance to offender in offence.
24A Mandatory requirements for supervision of sex offenders to be disregarded in sentencing
Court not to take into account on sentence fact that the offender:
(a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or
(b) has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004 or the Crimes (Serious Sex Offenders) Act 2006.
Section 54D Exclusions from Division
SNPP provisions do not apply where offender under 18 years at time of offence

8. Criminal Legislation Amendment Act 2009
Commenced 19.5.2009
. Amended ss.66A and 66C to add as circumstance of aggravation:
Alleged offender breaks and enters into any dwelling house other building with the intention of committing the offence or any other serious offence
. Creates new offence of attempt to commit an offence under ss 13(1) and 14(1) of the Crimes (Domestic and Personal Violence) Act 2007; being offences of stalking or intimidating another person and knowingly contravening a prohibition or restriction specified in an apprehended violence order. The same penalty applies as if the person had actually committed the offence.

9. Mental Health Legislation Amendment (Forensic Provisions) Act 2008
Commenced 1.3.2009
Mental Health (Criminal Procedure) Act1990 renamed Mental Health (Forensic Provisions) Act1990

Summary of Major Changes
. Major amendment involves replacing Part Five Forensic Patients with new Part Five
to establish the following categories:
forensic patients - the following person detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions
Person found by court unfit to be tried
Person found by tribunal to be probably become fit to be tried within twelve months and remanded by the Court to a mental health facility or some other facility
Person subject to limiting term
Person found not guilty by reason of mental illness and detained
Person found mentally ill on appeal
correctional patients - persons, other than a forensic or involuntary patient, who has been transferred from a correctional centre to a mental health facility while serving a sentence of imprisonment or while on remand
. to confer on the Mental Health Review Tribunal, instead of the Minister for Health, the power to order the release of forensic patients from mental health facilities, the power to grant leave to such patients and the power to make orders as to the care, treatment and detention of such patients
. to establish the Forensic Division of the Tribunal to exercise those functions
. to provide for appeals from decisions of the Tribunal in exercising those functions,
. to clarify the responsibility for arrangements for care, treatment, security and release of patients transferred from correctional centres to mental health facilities (correctional patients) and forensic patients held in correctional centres,
. to set out conditions that may be imposed on an order for release and matters that must be considered by the Tribunal in making decisions,
. to require the Tribunal, when making decisions about all patients, to consider whether care arrangements that may be alternatives to involuntary care are consistent with safe and effective care,
. to make various amendments relating to community treatment orders

See John Fenely ' Applying the Amended Mental Health Legislation Amendment (Forensic Provisions) Act 1990 and Rethinking the Defence of Mental Illness'- available on www.publicdefenders.nsw.gov.au

10. Courts and Crimes Legislation Amendment Act 2009
Commenced generally 3.11.09.
Bail Act1978
A new ss 22A(1) and (1A) revised the test to be applied by a court in determining whether to hear a further bail application. The grounds for further bail applications are that:
. a person with no legal representation at the previous application now has legal representation;
information relevant to the grant of bail is presented that was not presented at the previous application; or
circumstances relevant to the grant of bail have changed since the previous application was made.
. The amendment seeks to ensure that any relevant facts or circumstances not brought to the attention of the court previously are grounds for a further bail application.
. A lawyer may now refuse to make a further application for bail if there are no grounds for a further application: s22A(5).

11. Courts and Other Legislation Amendment Act 2009
Commenced on 19.6.09.
Children (Criminal Proceedings) Act 1987
A court can make limited 'non-association orders'which prohibit an offender from associating with a specified person "except at the times or in such circumstances (if any) as are specified". A court can also make place restriction orders to prohibit an offender from frequenting or visiting a specified place "except at the times or in such circumstances (if any) as are specified": amended s 33D
Crimes (Sentencing Procedure) Act 1999
Section 17A provided for the making of non-association and place restriction orders to be imposed on offender sentenced for offences carrying a maximum of 6 months imprisonment or more. Section 17A was amended to enable a court to make limited non-association orders prohibiting an offender from associating with a specified person "except at the times or in such circumstances (if any) are specified" and to make a limited place restriction order prohibiting an offender from frequenting or visiting a place "except at the times or in such circumstances (if any) as are specified".
Section 100A prevents a non-association order from imposing certain restrictions on an offender associating with the offender's close family, and prevents a place restriction order from imposing certain restrictions on the places the offender may visit. Section 100A was amended as follows:
A member of the offender's close family can be specified in a non-association order if "exceptional circumstances" exist because there is reasonable cause to believe, if the offender associates with that person, there is a risk that the offender could further offend,
"close family" persons included persons who are part of the extended family or kin of an offender who is an Aboriginal person or Torres Strait Islander.

12. Children (Criminal Proceedings) Amendment (Youth Conduct Orders) Act2008
Commenced on 1 July 2009.
Creates a new diversionary scheme in the Children's Court.
The objects of Part 4A 'Youth Conduct Orders'are:
(a) to establish a scheme for dealing with children who cannot be dealt with appropriately under the diversionary scheme created by the Young Offenders Act 1997
(b) to address the underlying causes of anti-social behaviour by such children by means of youth conduct orders that operate to prohibit or restrict negative behaviour and to promote socially acceptable behaviour through participation in anti-social behaviour programs,
(c) to provide for a coordinated multi-agency approach to the administration of the scheme.
Currently the scheme applies to persons who reside in, or habitually visit, the area of Campbelltown, Mount Druitt, New England.
An interim youth conduct order must not exceed 2 months, and a final youth conduct order must not exceed 12 months: s48L(1).
Interim and final youth conduct orders may include "conduct restriction provisions" and "positive conduct provisions": ss48J(2), K(2). Positive conduct provisions require a child to engage in conduct aimed at addressing the underlying causes of the child's underlying behaviour: s 48C(1)(a). This can include (but is not restricted to) attending a course of study or training; meeting with health and other professionals; and participating in recreational activity.
Conduct restriction provisions include not associating with specified persons; frequenting specific places or types of places; and staying out late.
While a youth conduct order is in effect, and where there has not yet been a plea of guilty or a finding of guilt, the Children's Court is not required to make a finding as to guilt. If the child has pleaded guilty, the Children's Court is not required to decide what penalty is to be imposed: s48L(7)(a), (b).
If an order is revoked because of non-compliance, the court may make findings as to guilt, and deal with the child under the principal Act. If the court is satisfied that a child has complied with an order, it may dismiss the charges or deal with the child under the principal Act having regard to the fact of compliance: s48R.

Appendix E - Other Cases of Interest
General Law

Substantial Impairment - s.23A(3) Crimes Act
Zaro [2009] NSW CCA 219
Rejected argument that provision requiring self-intoxication to be disregarded does not apply if it triggers pre-existing impairment

Official Questioning - s 281 Criminal Procedure Act
NAA [2009] NSWSC 851, Howie J, 26.8.2009
Stand off with police outside house for several hours while armed with knife - made several admissions both spontaneously and in response to questioning - no caution given - conversation recorded in notebook by one police officer and partially and poorly recorded by audio
whether 'questioning in connection with investigation of the commission or possible commission of an offence' - intention or purpose of police officer was to disarm accused and protect person in vicinity - not an interrogation but a negotiation - section does not apply to circumstances of standoff - at [79] subjective purpose of police officer not decisive but relevant]
police officer involved in negotiation could not record conversation - difficult and possibly dangerous to record conversation in circumstances - reasonable excuse
during subsequent ERISP conversation not put to accused after he obtained legal advice and declined to discuss matter - no error
No breach of s.90 Evidence Act

Evidence Act s.78 Lay Opinions
Partington [2009] NSW CCA 232
Victim killed in struggle in stairwell of flats - female heard struggle through door in one of the flats - gave evidence noise sounded like 'someone's head was being pushed up against the door' - whether evidence inadmissible as opinion evidence
Held: (per McClellan CJ at CL, RA Hulme J agreeing) - evidence inadmissible - opinion evidence did not satisfy requirements of (b) - door deprived witness of capacity to perceive what was happening on the other side of the door - opinion not relevant to understanding her perception of events as she heard them from inside - consideration of cases dealing with application of (b)
(per Grove J) - agreed with McClellan's application of (b) - not convinced evidence was opinion as opposed to a description

Search Warrants under LEPRA
Mazjb v Kepreokis [2009] NSWSC 314, Hall J, 24.4.2009 at [60]
Regulations require warrant to 'specify relevant offence' - whether reference to offences under section 25 and section 10 of Drug Misuse and Trafficking Act sufficient - whether warrant should have provided more detail about actual alleged offences
Principles considered
Having regard to the LEPR Act, the short description of the offences, together with the references to the relevant provisions of the Drug Misuse and Trafficking Act, particulars furnished satisfied the statutory requirement to ' specify relevant offences', and were free of any ambiguity or uncertainty.

Manslaughter by Omission - Failure to Obtain Medical Treatment
Burns NSWDC 10.8.2009 per Woods DCJ at [31]
[31] ... If a person voluntarily invites or permits potential recipients to attend his or her home for the purpose of a prohibited drug supply transaction where the drugs are to be consumed on the premises, and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself toward the drug recipient without being grossly or criminally neglectful

Manslaughter by Criminal Negligence - Reasonable Person Test
Sam (No.17) [2009] NSWSC 803, Johnson J, 13.8.2009 at [14], [22], [24]

Homicide - Causation
PL [2009] NSW CCA 256. For offences of murder and manslaughter Crown does not need to establish particular act of accused that caused death/

Attempt Possess Border Controlled Drug
Onuorah [2009] NSW CCA 238
The question on appeal was whether an attempt to possess an unlawfully imported substance could be established where the substance possessed was not unlawfully imported. This was considered at both common law and under the Code provisions.
This involved a reconsideration of past cases such as Barbouttis (1995) 37 NSWLR 256, Mai (1992) 26 NSWLR 371 and Britten v Alpogut [1987] VR 929 and the court sat a five judge bench.
The court confirmed the decision of Mai, finding that actual importation of the drug is not necessary to establish an attempt.

Definition of Child Pornography
DPP v Annetts [2009] NSW CCA 86, 31.3.2009 at [10]-[12]
The court considered whether the motivation of the person taking the film and/or the method in which film was made was relevant to question of whether film depicts child in 'sexual context'. The film in question contained images of young boys secretly filmed undressing in swimming pool change rooms with a concentration on the genitalia.
The Court concluded the question is an objective one answered by considering the content of the material - circumstances and motivation for recording not relevant

Act of Indecency
DPP v Eades [2009] NSWSC CCA 1352, James J
* incite act of indecency - asked 13y complainant to send nude photo of herself by mobile phone - followed exchange of text messages with sexual overtones - photos sent - photo did not disclose clear sexual component - magistrate erred in finding he could not take into account surrounding circumstances when considering whether sending of photo an act of indecency - followed McIntosh NSW CCA 26.9.1994 - permissible to take into account surrounding circumstances including age differences, intent or purpose of accused and sexual inferences from text messages
* incite act of indecency 'towards' - does not need to be done in the presence, either physical or audible, of person inciting
* applied Chonka [2000] NSW CCA 466 at [75] per Smart AJ - relevant act is act incited not the act actually done, although in this case the acts done was identical to the act incited
* Approved Annetts at [14] - no error in finding a nude photo of a 13y girl taken by herself and sent to 18y accused had no clear sexual component - sexual context had to be determined by the photo itself.

Longman
TJ [2009] NSW CCA 257 McCallum J, Hidden J agreeing
Concluded the direction must be framed as a warning but did not to include the term 'warning'. 'I therefore caution you' could be sufficient as a warning in the circumstances of the case.

Different Pathways to Determining Lack of Consent
Bochkov [2009] NSWCCA 166 at [86]-[87]
Crown case based absence of consent on either proof the complainant did not in fact consent, or that she consented under a mistaken belief as to the identity of the other person - Court concluded on appeal that the Crown did not have to rely upon one or the other basis and the jury did not have to be unanimous as to the basis for lack of consent:

Inconsistent verdicts - Difference Between Inconsistent Verdicts and Insufficiency of Evidence
TK [2009] NSW CCA 151, Simpson J (Latham J agreeing) at [127]-[135]

The question of unreasonable verdicts based on insufficiency of evidence is different to (although overlapping with) the question of inconsistent verdicts.
Jovanovski [2009] NSW CCA 284 per Basten JA at [23], Johnson J agreeing

Sentencing Cases
Delay
Wilkinson (No.5) [2009] NSWSC 432, Johnson J, 22.5.2009 at [84]
No mitigation where principal reason for delay is offender's deception

Extra Curial Punishment
Einfeld [2009] NSWSC 119, James J, 20.3.2009
Effect of intense media scrutiny and public opprobrium a matter to be taken into account

Old Offences
GRD [2009] NSW CCA 149 at [20]
Requirement to sentence according to sentencing patterns at the time includes setting of appropriate non-parole period. Non-parole periods under Parole of Prisoners Act 1966 usually in the order of between one third and one half of the head sentence.
Orkopoulos [2009] NSW CCA 213, 25.8.2009 at [94]-[103]
Sentencing for Old Offences Subsequently Repealed - In some circumstances nominal penalty only may be required - in this case offences significantly before repeal of section (which effectively lowered the age of consent for homosexual intercourse) - general and specific deterrence for specific offence no longer relevant but considerations of punishment, retribution and the deterring of other persons from committing criminal offences of a similar character -remain - modest reduction only

Post Offence Conduct as Aggravating Factor
Wilkinson (No.5) [2009] NSWSC 432, Johnson J, 22.5.2009 at [61]-[62]
Murder - care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself - the dumping of a body by a murderer constitutes an aggravating circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse - however Offender's false statements to police and others concerning the whereabouts of the body cannot, in my view, be taken into account in an assessment of the objective seriousness of the murder itself, nor can his failure to reveal the true whereabouts of the body

Schedule
Eedens [2009] NSW CCA 254
Inappropriate to place sexual offences against different complainants on schedule when being sentenced for sexual assault on third complainant - also generally inappropriate to matter with SNPP on schedule

Fact finding
Duffy [2009] NSW CCA 304 at [21]
Adverse fact alleged by Crown on sentence must be proved by admissible evidence

Representative Charges
CJK [2009] VSCA 58 at [58]-[62]
Giles v DPP [2009] NSW CCA 308, 18.12.2009

No Barrier to Making NPP a Higher Proportion Than Normal of Total Term
Ghamraoui [2009] NSW CCA 11 at [28]
No error in making NPP 81% of total sentence but sentencing judge should at least indicate this is what is intended

Submissions
Maldonado [2009] NSWCCA 189
Error established where judge made an error about what the Crown said is the appropriate range of sentence.

Rossi-Murray [2009] NSWCCA 177
The CCA has shown reluctance to take into account remarks made by a judge during submissions by counsel as being incorporated by implication into the sentencing remarks: at [43].

Conditional Liberty s 21A(2)(j)
Sivell [2009] NSWCCA 286
Where the applicant was subject to an interim prohibition order at time of offence, the offence was properly held to be aggravated by s 21A(20(j) in that it was committed whilst on conditional liberty.


Appendix F


JW [2010] NSW CCA 49, 22.3.2010

Facts
15y sentenced for two counts under s.98
Received suspended sentence and community service
Involved in robbery of two men outside train station and on street within short space of time
Each complainant threatened with knife and cut on fingers
Appeal
Crown appeal against inadequacy of sentence
Result
Appeal allowed and sentence increased
Issue
Whether grounds of appeal should be included in the Crown notice of appeal or whether it is sufficient to include grounds in written submissions.
A formal document identifying the grounds of an appeal should be brought into existence in a Crown appeal: at [30]
There was no argument that the respondent had suffered procedural unfairness in circumstances of case.
Failure to include such grounds in the Notice of Appeal does not invalidate the appeal: at [31], [33]
Leave granted to amend the Notice of Appeal to include the grounds of appeal granted

Scope of the s.68A removal of the principle of double jeopardy.
[141] The following propositions emerge from the above analysis:
(i) The words 'double jeopardy'in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.
(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.
(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.
(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.
(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise

It was accepted by both the Crown and the AG that double jeopardy refers only to the distress and anxiety caused by the prospect of an increased sentence: at [49], [51]
The discretion of the Court to decline to intervene on the basis of other considerations remains. Such considerations may include inappropriate or unfair conduct of the Crown or delay. This is part of the inherent supervisory role of the court to prevent unfairness or abuse of process: at [85]-[95]

Crown proposal that once error is found the Court must determined the appropriate sentence
Rejected by the court at [142]-[145]

'[146] As I have indicated above, there is a long line of authority which distinguishes, on a Crown appeal, between the discretion to intervene and the sentence to be imposed. That distinction remains after the enactment of s 68A. There are circumstances in which the discretion will be exercised without the appellate court determining what an appropriate sentence should be'.


Whether Crown appeal should be allowed.
Spigelman CJ concluded, Allsop P agreeing, the suspended sentence for the first offence was within range but the community service order for the second offence was inadequate. The Court should intervene to order the second sentence be increased to a suspended sentence, partially concurrent with the first sentence.
MacClellan CJ at CL, Howie and Johnson JJ found both sentences inadequate but accepted the ultimate result. Interestingly these judges accepted a sentence that would not have been possible at first instance, and accepted it on the basis of events that had occurred subsequent to the original sentence being imposed, an example of the discretion still held by the court to impose a lesser sentence than what should have been imposed at first instance.

'[209] We agree with the final outcome of the appeal only after considerable hesitation. Of course the sentence now proposed could not have been possible at first instance. In effect it results in cumulative suspended sentences. But because the respondent can avoid serving a custodial sentence by complying with the terms of the bonds imposed both by this Court and by the sentencing judge, such a result would have been manifestly inadequate had it been imposed at first instance. However, as the Chief Justice has identified, this Court retains the discretion in relation to its response to a Crown appeal by the words in s 5D of the Criminal Appeal Act 1912. We agree with all the Chief Justice has written about the effect of s 68A of the Crimes (Appeal and Review) Act 2001.
[210] In our opinion the sentence that the Chief Justice proposes can only be justified in light of the events that have occurred since the original sentences were imposed. In particular the period of 7 months that has transpired since North DCJ sentenced the respondent is a considerable period of time in the life of a juvenile who was aged 15 years at the time of the offences. In the meantime he has been carrying out his Community Service once it was brought to the attention of those responsible for its supervision that it should not have been suspended as a result of the Crown bringing an appeal to this Court. He had at the time of the writing of the most recent Juvenile Justice report, which is dated 28 January of this year, completed 25 hours of Community Service. We presume he has completed more hours since then. The latest report shows that the respondent has been complying with his supervision and attempting to address issues in his life. The report indicates that the respondent would 'benefit from continuing to develop greater insight into this offence and strategies to reduce the likelihood of re-offending in the future'He should now be given that opportunity by the Court exercising its discretion and imposing a lesser sentence than was warranted at first instance'.