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Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

 

This paper was written by Chrissa Loukas
Public Defender
July 2003


 

'The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country’
Winston Churchill, during a debate in the (UK) House of Commons in 1910

The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act commenced on 1 February 2003.

In his second reading speech, the Attorney General stated that “the scheme being introduced by the Government today provides further guidance and structure to judicial discretion,” Second Reading Speech, Legislative Assembly, 23.10.02, Hansard. not mandatory sentencing.

The Act establishes a new sentencing scheme in the new Division 1A, Part 4, of the Crimes (Sentencing Procedure) Act 1999.

Section 3A - Purposes of Sentencing
The Bill inserts a new section 3A into the Act, which sets out the purposes for which a court may impose a sentence on an offender. These purposes are stated to be:

· to ensure that the offender is adequately punished for the offence
· to prevent crime by deterring the offender and other persons from committing similar offences
· to protect the community from the offender
· to promote the rehabilitation of the offender
· to make the offender accountable for his or her actions
· to denounce the conduct of the offender
· to recognise the harm done to the victim of the crime and the community.

In Attorney-General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515. Spigelman CJ (for the Court) said at paragraphs 57-60:

“57. Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the ‘purposes of sentencing” which must now guide sentencing decisions constitute a change of pre-existing sentencing principles.

58. For example, ‘prior’ case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate ‘purpose’ and one concerned with protection of the community ‘from the offender’.

59. It may also be arguable that s3A(e) - making the offender ‘accountable’ - introduces a new element into the sentencing task. The same may be true of the reference to ‘harm’ to ‘the community’ in s3A(g).

60. In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature”.

Aggravating, Mitigating and other Factors in Sentencing
The existing section 21A is replaced by a new section 21A. The new section 21A sets out specific aggravating and mitigating factors, to be taken into account by sentencing courts in determining the appropriate sentence for an offence. The court is also required to take into account any other objective or subjective factor that affects the seriousness of the offence: section 21A(1)(c).

Some commentators have raised a question as to whether the words “seriousness of the offence” may encourage a narrow construction. Such a construction would exclude for example such matters as possible effects of sentence on family and hardship of custody, matters that do not go to the “seriousness of the offence,” but to the proper sentencing of the offender.

The new section 21A(1) provides that the sentencing court may take into account any other matters that it is required or permitted to take into account under any Act or rule of law.

It appears that if the new section 21A is given a broad interpretation, it imports no change to the common law.

Of course, where there is uncertainty in the meaning and operation of a statutory provision which affects a person’s liberty, one would argue that it is appropriate to adopt the construction of that provision which enhances the liberty of the subject Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352..

The recent case of R v Yeoman (2003) NSWSC 194 makes it clear that section 21A(2) and (3) do not constitute an exhaustive list of factors which may aggravate or mitigate sentence in a particular case.

The new section 21A(4) provides that a sentencing court is not to have regard to any aggravating or mitigating factor specified in the section if it would be contrary to any Act or rule of law to do so. This provision makes it clear, for example, that a rule of law such as that expressed in The Queen v De Simoni (1981) 147 CLR 383. is not affected. In De Simoni the High Court held that a sentencing court may not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence for which the offender was not charged. The De Simoni principle is further preserved by the operation of the concluding words of proposed new section 21A(2). Second Reading Speech, Legislative Assembly, 23.10.02, Hansard.

The requirement under new section 21A for a court to take into account the aggravating and mitigating factors and other matters, applies in sentencing for all offences - not just to offences that are subject to a standard non-parole period.

Setting Non-Parole Period and Balance of Term of Sentence
The existing section 44 is replaced with a new section. The new section requires the sentencing court to set a non-parole period for the sentence before setting the balance of the term of the sentence. This is known to criminal law practitioners as “bottom up” sentencing. Prior to amendment, section 44 required the court to set the total sentence and then fix the non-parole period - i.e. “top down” sentencing. Under the new section 44 the non-parole period is fixed first. The balance of the term of the sentence must not exceed one third of the non-parole period unless the court decides there are “special circumstances for it being more”. The new section 44 seeks to maintain the existing presumptive ratio between non-parole period and parole period.

The return to “bottom up” sentencing suggests that appellate guidance will have to be reconfigured across a wide range of sentences. Sentencing law is now already more than sufficiently complex and it is likely that transition between the two sentencing regimes will be accompanied by some confusion and errors.

By way of background, section 5 of the now repealed Sentencing Act 1989 was replaced by the Crimes (Sentencing Procedure) Act 1999. The 1999 Act, in essence, reversed the way in which sentences were formulated with the requirement that the maximum term be set first. From the Second Reading Speech relating to the introduction of the Act in 1999:

“The Sentencing Act 1989 tried in section 5(1) to change the way sentences of imprisonment were imposed by the courts. In theory, a court was required first to set a minimum term which must be served and then to add a period during which the prisoner could be released on parole. In practice, things were not quite so simple. The two-stage sentencing process has been described by the present Chief Justice of New South Wales as “quite artificial”. The Law Reform Commission was similarly critical, noting:

The mere statement of a minimum term and additional term cannot effectively convey all the purposes of punishment. It is only once a head sentence has been set that the court can determine the minimum term, that is, the period which the offender must, in justice, serve in gaol (pages 179-180).

Clause 44 implements this part of the Law Reform Commission’s recommendation”.

The Act reverts to the “quite artificial” manner of fixing sentences with the new section 44

A regime of “bottom up” sentencing existed between 1989 and 1999 in relation to section 5, Sentencing Act 1989 (Act now repealed). See R v Hampton. (1998) 44 NSWLR 729 see also R v GDR (1994) 35 NSWLR 376. The 1999 regime Section 44 Crimes (Sentencing Procedure) Act 1999 prior to this amendment. was reviewed by the Court of Criminal Appeal in R v Carrion (2000) 49 NSWLR 149. and R v Simpson (2001) 53 NSWLR 704.. The new provision is different again from both the 1989 “bottom up” and 1999 “top down“ provisions, although it does revert to “bottom up”.

At present, when sentence is fixed, the non-parole period may be reduced because of special circumstances. Some commentators have indicated that ‘special circumstances’ may no longer be capable of reducing the non-parole period under the new section 44. This must await appellate clarification.

An arguable interpretation in relation to “special circumstances” is that the reasoning in Hampton if applied to the new provisions may result in an interpretation leading to either an increase in total sentence or a reduction in the non-parole period. Again, whether that is correct is a matter that must await appellate clarification. Absent a broad interpretation, the effect of the wording of the new section 44(2) may be that a finding of “special circumstances” can only increase the total sentence.

It must be said, however, that It is difficult to imagine the Court of Criminal Appeal adopting an interpretation whereby the existence of “special circumstances” would result in a longer overall sentence than if those circumstances did not exist at all.

It is to be borne in mind that several of the factors sustained by authority as representing special circumstances are of a nature inherently beneficial to the offender. Factors such as youth, first time in prison and enhanced capacity for rehabilitation, may well represent an argument for a longer period on parole but should not, indeed, have not previously been the basis for arriving at an overall sentence otherwise disproportionate to the offence, its circumstances and that of the offender.

In Simpson, Spigelman CJ said:
“The words “special circumstances”…are words of indeterminate reference and will always take their colour from their surroundings. [T]he non-parole period is to be determined by what the sentencing judge concludes that all the circumstances of the case, including the need for rehabilitation, indicate ought [to] be the minimum period of actual incarceration”. at [59] p 717

Peter Johnson SC in a paper for the Judicial Commission of New South Wales has submitted that the better view is that:

“A finding of ‘special circumstances’ may see such a reduction. section 54B(3) provides that the reasons for which a court may set a shorter or longer non-parole period ‘are only those referred to in s21A’. Section 21A(1)(c) enables matters to be taken into account that are required or permitted to be taken into account under any Act or rule of law. Section 44(2) enables a court to take into account the existence of ‘special circumstances’ to vary the statutory relationship between the non-parole period and the balance of the term” Peter Johnson SC, Reforms to NSW Sentencing Law - The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, Paper for the Judicial Commission of NSW, 12 March 2003.

Standard Non-Parole Periods
A new Division 1A (sections 54A - 54D) is inserted into Part 4 of the Act. The new Division provides for standard non-parole periods for a number of serious offences listed in a table. The table of minimum non-parole periods represents substantial increases to the existing mean for each offence.

Standard Non-Parole Periods and the Middle Range
The new section 54A provides that the standard non-parole period for an offence is the non-parole period set out opposite the offence in the table. The offences specified in that table include murder, wounding with intent to do bodily harm or resist arrest, certain assault offences involving injury to police officers, certain sexual assault offences, sexual intercourse with a child under 10 years of age, robbery with arms and wounding, certain break and enter offences, car-jacking, certain offences involving commercial quantities of prohibited drugs and unauthorised possession or use of firearms.

The Bill provides in new section 54A(2) that the standard non-parole period for an offence represents the non-parole period for an offence in the middle of the range of objective seriousness for such an offence. The standard non-parole period provides a reference point or benchmark within the sentencing spectrum for offences that are above or below the middle of the range of objective seriousness for such an offence. Second Reading Speech, Legislative Assembly, 23.10.02, Hansard.

The Section, however, gives no guidance to the judiciary as to the ascertaining of the middle range of offences.

In the Second Reading speech the Attorney General referred, in this context, to a sentencing spectrum being well known to sentencing judges and criminal law practitioners. He further clarified the matter by referring to one end of the spectrum being the “worst type of case falling within the relevant prohibition” R v Tait and Bartley (1979) 46 FLR 386. and the High Court’s observations in Veen No 2 Veen v The Queen (No 2) 164 CLR 465. that this does not mean that “a lesser penalty must be imposed if it be possible to envisage a worse case...”. The Attorney General then stated that “at the other end of the sentencing spectrum lie cases which might be described as the least serious or trivial Second Reading Speech, Legislative Assembly, 23.10.02, Hansard.

The Attorney General referred to Ibbs v The Queen (1987) 163 CLR 447 at pp 451 and 452., Thorneloe v Filipowski (2001) 52 NSWLR 60 at page 69., R v White [2000] NSWCCA 343. and R v Moon [2000] NSWCCA 534., as “to the need for a sentencing judge to identify where in the spectrum of objective seriousness an offence lies” Second Reading Speech, Legislative Assembly, 23.10.02, Hansard..

It has been said that:
“The concept of an offence displaying criminality in the middle of the range of objective seriousness for a particular type of offence is not unknown to sentencing judges. In R v Perese, [2001] NSW CCA 478.McClellan J noted, without criticism, that the sentencing judge described the offences as displaying” criminality in the mid range of seriousness for these types of offences”. M Marien, Standard Non-Parole Sentencing, Judicial Officers Bulletin, Vol 14, number 11 p87

Nevertheless, the fact remains that the setting of a specific middle range in this manner is hitherto unknown and unexplored in the Criminal Law in Australia.

One question raised by some commentators is to what extent new section 21A(2) factors (aggravating factors) operate in the assessment of the standard minimum - i.e. are some incorporated or presumed to exist?

Standard Non-Parole Periods Unless Reasons
The new section 54B provides that a court sentencing an offender to imprisonment for an offence set out in the Table is to set the standard non-parole period as the non-parole period for that 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. The reasons for which the court may increase or reduce the non-parole period are only matters referred to in proposed section 21A: new section 54B(3).

The New South Wales Bar Association stated in its submission to the Attorney General on the consultation draft that in relation to new section 54B(2), whilst it provides that the sentencing court need not set ‘the standard non-parole period as the non-parole period for the offence’ where ‘the court determines that there are reasons for increasing or reducing the standard non-parole period’, it cannot be safely concluded that this gives an unfettered discretion to the sentencing court. Rather, section 54B(2) is likely to be interpreted as a statutory presumption which significantly fetters the sentencing court’s discretion.

The new section 54B(2) is worded in a slightly different way from the consultation draft, nevertheless the possibility of a “statutory fetter” interpretation remains valid.

A separate problem raised in relation to the new section 54B(3) is that it appears to limit the “reasons” to be taken into account in varying the standard non-parole period to “only those referred to in section 21A”. The question asked by some commentators in this regard is whether these “reasons” are limited to the specified aggravating and mitigating circumstances or extend to the factors referred to in new section 21A(1). There was a proposed amendment in the Legislative Council to remove the words ‘are only’ and insert ‘include’ which failed. ‘Are only’ remains in the Act. Nevertheless a broad interpretation of section 21A would overcome this potential problem.

New Section 54B(4) Record of Reasons
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.

It is the observation of many commentators that the requirement for reasons to be given when making such determinations is hardly a novel concept in the Criminal Law.

In the Second Reading Speech, the Attorney General observed that the sentencing process remains one of synthesis of all the relevant factors in the circumstances of the case and that the requirement for a court to identify each factor that it takes into account does not require the court to assign a numerical value to such a factor, “that is, proposed section 54B does not require a court to adopt a mathematical or multi-staged approach to sentencing Second Reading Speech, Legislative Assembly, 23.10.02, Hansard.

The failure of a court to comply with this section does not invalidate the sentence: new section 54B(5).

New Section 54C Record of Reasons/Non Custodial Sentence
The new section 54C requires a court that imposes a non-custodial sentence for an offence set out in the Table to 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: section 54C(1). The failure of a court to comply with this section does not invalidate the sentence: section 54C(2).

Exclusions New Section 54D
Standard non-parole periods do not apply to:
· imprisonment for life.
· detention under the Mental Health (Criminal Procedure) Act 1990.
· offences for which the offender is sentenced is dealt with summarily See also R v Doan (2000) 50 NSWLR 115.

New South Wales Sentencing Council
The Sentencing Council is to have the following functions:
(a) advising and consulting with the Minister in relation to offences suitable for standard non-parole periods and their proposed length,

(b) advising and consulting with the Minister in relation to offences suitable for guideline judgments and the submissions to be made by the Minister on an application for a guideline judgment,

(c) monitoring and reporting annually to the Minister on, sentencing trends and practices, including the operation of standard non-parole periods and guideline judgments,

(d) at the request of the Minister, preparing research papers or reports on particular subjects in connection with sentencing.

The Sentencing Council consists of 10 members appointed by the Minister, of whom:

(a) one is to be a retired judicial officer, and

(b) one is to have expertise or experience in law enforcement, and

(c) three are to have expertise or experience in criminal law or sentencing (including one person who has expertise or experience in the area of prosecution and one person who has expertise or experience in the area of defence) and

(d) one is to be a person who has expertise or experience in Aboriginal justice matters, and

(e) four are to be persons representing the general community, of whom two are to have expertise or experience in matters associated with victims of crime.

The members of the New South Wales Sentencing Council have been appointed:

· The Hon AR Abadee RFD QC - Chair
· Mrs Jennifer Fullford - Community Representative
· Ms Martha Jabour - Community Representative (Homicide Victims Support Group).
· Mr NR Cowdrey QC - Director of Public Prosecutions
· Mr Peter Zahra SC - Senior Public Defender
· The Hon JP Slattery AO QC - NSW Bar Association
· Commander John Laycock - NSW Police
· Prof Larissa Behrendt - Aboriginal Justice Representative (Jumbunna Indigenous House of Learning)
· Mr Howard W Brown - Community Representative (Victims of Crime Assistance League, NSW Victims Advisory Board)
· Mr Ken Marslew AM - Community Representative (Enough is Enough).

Review
New section 106 requires the Attorney General to review the amendments relating to standard non-parole periods “as soon as possible after the period of 2 years from the commencement”: Section 106(3). A report on the outcome of the review is to be tabled in Parliament within 12 months after the end of the period of 2 years: section 106(4).

Effect of failure to Comply with Act
New section 101A provides that a failure to comply with a provision of the principal Act may be considered by an appeal court in any appeal against sentence even if the Act declares that the failure to comply does not invalidate the sentence. The proposed section ensures that the courts are not relieved of the obligation to comply with the Act with respect to standard non-parole periods or other matters, but protects the validity of any sentence until such time as the matter is considered by an appeal court.


Guideline Judgments
In the Second Reading Speech, the Attorney General said that “it is proposed that the guideline judgments already promulgated by the Court of Criminal Appeal should continue to be used by the courts when sentencing for these offences. Guideline Judgments will also continue to play an important role with respect to offences that are not part of the standard non-parole period scheme” Second Reading Speech, Legislative Assembly, 23.10.02, Hansard..

Guideline Judgments have been delivered in respect of the following offences:
· Dangerous driving causing death or grievous bodily harm: R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343 (challenges to the constitutional validity of guideline were rejected in Whyte.

· Armed Robbery: R v Henry (1999) 46 NSWLR 346.

· Break, Enter and Steal: Attorney General’s Application (No 1) R v Ponfield (1999) 48 NSWLR 327.

· Guilty Pleas: R v Thomson [2000] 48 NSWLR 383, R v Sharma [2002] 54 NSWLR 300 (Sharma is the reconsideration of Thomson in the light of reservations expressed by the High Court in relation to Guideline Judgments in Wong v The Queen (2001) 207 CLR 584.

· In relation to taking matters into account on a Form 1 when sentencing:

Attorney-General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. (The Court declined to adopt a quantifiable further penalty approach to the process of taking matters into account.)

· There was a refusal to grant an application for a guideline judgment regarding the offence of assaulting police: Attorney-General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSW CCA 515.

Consequential Amendment re Application
The standard non-parole period amendments will not apply to offences committed before the commencement of the amendment.

The effect of the savings and transitional provisions is that the standard non-parole period sentencing scheme and the new section 44 apply only to sentencing for offences committed after the commencement of the Act [1 February 2003].

The new section 3A (purposes of sentencing) and new section 21A (aggravating and mitigating factors) apply to sentencing for an offence whenever committed except where the sentencing proceedings relate to a conviction or a plea of guilty was entered and not withdrawn before the Act commenced. In other words, the new section 21A applies to the determination of a sentence after 1 February 2003 for an offence, whenever committed, unless before that date, a court has convicted the person being sentenced to the offence or a court has accepted a plea of guilty to the offence and the plea has not been withdrawn: clause 45(2), Schedule 2, of the Act. Section 21A applies to all offences in all courts. It is not confined to offences contained within the standard non-parole period scheme.

Andrew Haesler, New Criminal Legislation 2003, has indicated in his paper that it would appear the following approach to the standard minimums has support in the authorities:-

1. The court may use a staged approach to assist in reaching an appropriate sentence. This approach is in fact mandated by the legislation (section 54A). It may be desirable in the interests of transparency and openness (per Kirby J in Wong).

2. Such a sequential process of reasoning is far from uncommon (particularly in Commonwealth matters, see Bourchas [2002] NSWCCA 373 at [120] and Dursim [2000] 111 A Crim R 460). A better approach is that advocated by the Chief Justice in Whyte at [160]. Sequence does not matter “as long as all relevant considerations are taken into account”.

3. The approach, however, should not be strictly mathematical. (See Gallagher, (1991) 23 NSWLR 220.. Any sentence however calculated, must when the final result is determined, yield to the production of a sentence that reflects the criminality involved in the offence (see Power v The Queen (1974) 131 CLR 623 at 628). (ie both the objective and subjective features involved in the offence).

4. As the standard minimum non-parole period represents an offence in the middle range of objective seriousness, variation from that starting point must follow if in fact the offence is not, by reference to it’s objective gravity, in the middle of the range (see Veen No 2 and Whyte).

5. In order for the sentence to be proportionate, an assessment of objective gravity must consider some if not all of the aggravating factors in section 21A(2). It is not strictly double counting if those factors also bring the sentence up above the standard minimum, or because they are less than that calling for the middle of the range sentence, bring it below it.

6. Subjective features in section 21A(3) must operate to reduce the standard minimum non-parole period or that calculated after aggravating features are taken into account.

7. Common law factors (section 21A(1) (c) and other rules of law (section 21A(4)) are not excluded in these calculations. All, must be taken into account when assessing what is meant by ‘taken into account’. See Weininger (2003) 196 ALR 451.

8. The non-parole period, being the minimum period the offender must spend in custody (s44(1), must reflect the criminality involved in the offence (see McDonald CCA NSW, 12 Oct 1998, unreported and Power at 629).

9. The court must then consider whether there is anything about the case that warrants a non-parole period longer than the statutory 1/3 provided for in s44(2). Any calculation of sentence and any finding of “special circumstances” need not be unduly restricted Simpson ((2001) 53 NSWLR 702).

10. Overall, it is expected that the court must then, as part of an intuitive process “synthesis all the relevant factors in the circumstances of the case” (AG Second Reading Speech). In the end, the synthesised or intuitive sentence and non-parole period must still reflect both the objective and subjective features of the case (see Bugmy v The Queen (1990) 169 CLR 525 at 531 and Whyte at [152].

Conclusion
Both the Bar Association and the Public Defenders have stated that the policy behind standard minimum sentences represents an unwarranted departure from fundamental concepts of judicial discretion. Independence of the judiciary has long been reflected in the dispassionate exercise of discretion, including that employed in sentencing, governed by the application of legal principles. Concerns have also been expressed that the legislation seeks to accommodate, rather than address, prevalent misconceptions as to the effectiveness and propriety of long-standing judicial practice in the area of sentencing.

The Chief Justice of NSW The Honourable JJ Spigelman AC, stated in January 2002:

“The sentencing of convicted criminals is one of the most important tasks performed by the judiciary. Sentencing engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The public attitude to the way judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.

I am concerned that this confidence, and public respect for the judiciary, is diminished by reason of ignorance about what judges actually do in terms of the sentences that are imposed. Plainly there are occasions when a particular sentence attracts criticism and that criticism is reasonably based. What concerns me is that such cases appear to be widely regarded as typical, when they are not.

The Chief Justice of Australia, the Honourable A M Gleeson, has recently summarised the result of public opinion polls about sentencing not just in Australia but also in the United Kingdom and North America:


“...when people are asked whether they think the sentences imposed by judges are too lenient, or too severe, or just about right, most say that the sentences are too lenient. However, when they are then given the facts of individual cases, and asked what sentences they themselves would have imposed, a majority come up with sentences that are more lenient than sentences that were actually imposed by judges. The same results have shown up in similar surveys in other countries. When people are questioned in more depth, and are made to think more closely about an issue, their responses change”. Chief Justice Spigelman’s Law Term Address, 30 January 2002. See also, The Honourable AM Gleeson AC, Chief Justice of Australia, “Valuing Courts”, Judicial Officers’ Bulletin, Volume 13 Number 7, August 2001.

The Public Defenders’ submission to the Attorney General opposed the Bill and commended to the Government continued support of the present and effective modes of judicial supervision through the Court of Criminal Appeal and the guideline judgments. The alternative approach represented by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 unavoidably represents a concession to the most insupportable misconceptions as to the reality of the justice system. There is unarguably some disquiet in the community as to the integrity of sentencing processes and principles, often fanned by flawed media analysis disregarding or misrepresenting sound legal principles. An appropriate response is one of education and exposure of the truth of accountable sentencing discretion, as opposed to the prevailing myths of irresponsible sentencing caprice on the part of the courts. This is no easy task.

Neither the Act nor the Opposition’s much more draconian mandatory proposal is the answer. That being said, the Act is now law and we as lawyers must now practice in the brave new world of standard minimums.


Chrissa Loukas
Barrister
Public Defender
Judicial Member Administration Decisions Tribunal (NSW)
July 2003


Table---Standard non-parole periods

1A Murder---where the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation 25 years

(life)

1 Murder---in other cases 20 years (life)
2 Section 26 of the Crimes Act 1900 (conspiracy to murder) 10 years (25y)
3 Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder) 10 years (25y)
4 Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest) 7 years (25y)
5 Section 60 (2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm) 3 years (7y)
6 Section 60 (3) of the Crimes Act 1900 (wounding or inflicting grievous bodily harm on police officer) 5 years (12y)
7 Section 61I of the Crimes Act 1900 (sexual assault) 7 years (14y)
8 Section 61J of the Crimes Act 1900 (aggravated sexual assault) 10 years (20y)
9 Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company) 15 years (life)
9A Section 61M (1) of the Crimes Act 1900 (aggravated indecent assault) 5 years (7y)
9B Section 61M (2) of the Crimes Act 1900 (aggravated indecent assault---child under 10) 5 years (10y)
10 Section 66A of the Crimes Act 1900 (sexual intercourse---child under 10) 15 years (25y)
11 Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding) 7 years (25y)
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 (20y)
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 (25y)
14 Section 154C (1) of the Crimes Act 1900 (car-jacking) 3 years (10y)
15 Section 154C (2) of the Crimes Act 1900 (car-jacking in circumstances of aggravation) 5 years (14y)
15A Section 203E of the Crimes Act 1900 (bushfires) 5 years (14y)
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 (20y)
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 (life)
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 (20y)
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 (life)
20 Section 7 of the Firearms Act 1996 (unauthorised possession or use of firearms) 3 years (14y or 5y)

21A. Aggravating, mitigating and other factors in sentencing

(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation,

(b) the offence involved the actual or threatened use of violence,

(c) the offence involved the actual or threatened use of a weapon,

(d) the offender has a record of previous convictions,

(e) the offence was committed in company,

(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.

(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, 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.

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 offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,

(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.