Public Defenders

Sentencing Issues 2003

A paper by Andrew Haesler
Barrister and Public Defender
June 2003


Let us reflect for a moment on the impact of what Justice McHugh has called out the “persistently punitive attitude of the community toward criminals” Ryan v The Queen (2001) 200 CLR 267 at [46].

In 1989 there were 4,800 people in full time custody in New South Wales. In June 2001 it was 7,750. In February this year the numbers topped 8,000, nearly 2,000 of who were on remand.

More go through the system each year. In the 12 months to 30 June 2001 there were actually 8,646 people sentenced to prison by NSW adult courts. Of this total 5,578 (60%) received sentences of six months or less (BOCSAR Contemporary Issues No 73 September 2002). If United Kingdom studies are applicable here, over 60% will be convicted of another offence within two years. (See “A New Approach to sentencing”- Lord Woolf Judicial Officers Bulletin Vol 15 no3 April 2003). NSW imprisons about -172 people per 100,000 adults, Victoria - 85 per 100,000 in the Northern Territory a staggering- 458 per 100,000. It costs over $180 per day to keep a prisoner in maximum security.

In late 2002 the New South Wales Parliament Select Committee on the Increase in Prison Population recommended that prison sentences of six months or less be abolished. It has been estimated by the Bureau of Crime Statistics that such a measure would reduce the New South Wales prison population by about 10% and save between $33 million and $47 million per year in the recurrent costs of housing prisoners. A significant proportion of those who would be saved a gaol term would be Aboriginal and Torres Strait Islanders (20%) and women (10%).

Those figures do not count those serving periodic detention, home detention and community service orders.

There are in New South Wales enlightened provisions such as s5 Crimes (Sentencing Procedure Act) 1999:

“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”

This provision gives legislative effect to the long recognised principle that imprisonment should be a matter of “last resort”. Where reasonable alternatives are available they should be used. R v O’Connor (1986) 23 A Crim R 50 at 53. At times it appears to be a principle more ignored than implemented. Perhaps we are simply reverting to type, after all prisons were in New South Wales’s “first industry.”

Despite the occasional calls to stop the law and order auction, recent comments by both the Premier and Leader of the Opposition in relation to bail laws show it is not likely to end. The Premier in fact recorded in his diaries a confession of a genuine fear that “crime” would be his downfall (SMH 2 May 2003). Given that we cannot expect the easing of tabloid pressure on the government and opposition - the auction will continue. This will at least ensure more work for criminal lawyers! Other members of the public can take comfort from the words of the former Police Minister Mr Costa during the recent election “if you’ve done nothing wrong, you have nothing to fear” (SMH 7 March 2003 p 6).

There are some signs of hope, the Attorney General’s Department Crime Prevention Division is committed in providing programs designed to reduce crime in our community. Alternative strategies under the rubric of “restorative justice” are being put in place. These include - Circle Sentencing programs for Aboriginal communities, Young Offender programs, Drug Courts, Early Reference into Treatment programs (MERIT) and a focus on rehabilitation the Corrections Department now renamed “Justice”.

In the United Kingdom in response to significant increases in prison numbers, sentencing guideline judgements have held that for white collar crimes and first offence burglary, gaol should be a matter of last resort (R v Kefford [2002] EWCA 519 and R v McInerney & Keating [2003] EWCA 3003). Lord Woolf the Lord Chief Justice of England and Wales has made a strong plea for common sense and a responsible approach to sentencing. (See his article in Volume 15 Judicial Officers Bulletin No. 3 April 2003). He there quotes with approval the leading criminologist Sir Leon Radzinowicz:

“No meaningful advance in penal matters can be achieved in contemporary democratic society so long as it remains a topic of political controversy instead of a matter of national concern.”

If only our own senior Judges were as incisive and concerned.

Having got my little diatribe out of the way lets talk about the here and now. What I propose to do in this talk is take you to some of the recent key legislative changes to sentencing law in NSW. Most are contained in the Crimes (Sentencing Procedure Act) 1999, as amended. Of particular importance are the new s3A – Principles of Sentencing, the new s21A - Aggravating and Mitigating matters and the new Part 4 Division 1A - the Standard Non-Parole Period.

There have also been small but significant changes, including sentencing for periodic detention and the repeal of s16G of the Commonwealth Crimes Act 1914. I will then look at some of the what has happened with guideline judgments before concluding with a reviews of significant decisions of the High Court of Australia - Weininger v The Queen (2003) 77 ALJR 872 and Pearce v The Queen (1998) 194 CLR 610.

A comprehensive review of the post 1999 legislation can be found in my paper, presented to an earlier College Criminal Law Day, The Crimes (Sentencing Procedure) Act- 2 Years on and an earlier version of this paper Be Afraid Be Very Afraid – both together with a paper by Chrissa Loukas are available on the Public Defenders' website.  In my later paper I referred to the enterprise of reviewing recent legislative change by reference to Josef Conrad’s novel Heart of Darkness. Let the journey begin!

Section 3A Purposes of sentencing

The section applies to all offences whenever committed except where the sentencing proceedings relate to a conviction of plea of guilty that was entered and not withdrawn before the 1 February 2003 (Schedule 2, Part 7 Crimes (Sentencing Procedure) Act 1999).

“The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community. “

One of those who advised on the drafting, Peter Johnson SC, has said the new section 3A does not alter the common law (Johnson SC, Reforms to Sentencing Law, March 2003 available from the Judicial Commission of NSW). In obiter remarks in Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 at [58] –[60] the Chief Justice was not so blasé. He noted that both 3A (c) (e) and (g) were worded quite differently to their the common law equivalents and add “new elements” to the sentencing task:

“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 the protection of the community ‘from the offender.’” at [58].

The Canadian Supreme Court in R v Gladue [1999] 1 SCR 88, made some interesting and pertinent observations on the purposes of sentencing particularly rehabilitation and on notions of restorative justice.

Periodic Detention:
The Crimes Legislation Amendment (Periodic And Home Detention) Act 2002 snuck through most commentators guard. A new s 65A has been added to the Crimes (Sentencing Procedure) Act 1999. If a person has at any time served more than six months imprisonment for a prior offence at any time or any place he or she cannot get periodic detention!

Non-Association Orders
As of 22 July 2002 a court sentencing for an offence carrying a maximum term of 6 months or more may in addition to any other punishment make an order prohibiting the person from associating with nominated others or banning them from visiting a certain place or district (s17A Crimes (Sentencing Procedure) Act 1999 and part 8A of the Act). They cannot be made if only s10 or s 11 orders are made. They must be for a specified term. They cannot ban you from association with close relatives (s100A)). Breach can result in imprisonment (s100E).

The measures reintroduce the discredited consorting laws most of which (but not all as s546A Crimes Act shows) were repealed decades ago.

Standard Minimum Terms:
According to a study by the NSW Judicial Commission sentencing guidelines in armed robbery matters have been a success, as they have, “reduced systematic excessive leniency and inconsistency in sentencing practice” (The Impact of R v Henry, Judicial Commission: Sentencing Trends No 26, February 2003). While I take issue with the assumption that pre Henry leniency was “excessive” it is clear from the study that guidelines have seen significant increases in both the number of offenders subject to full time imprisonment and in the length of those sentences.

The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 now provides for standard non-parole periods for a number of select and generally, but not exclusively, serious offences. See Table attached. Not all of theses offences need be dealt with on Indictment. The standard minimum applies only if they are. The section along with the new s44(3) applies to all offences committed on or after the 1 February 2003

The standard non-parole period represents “an offence in the middle range of objective seriousness” (s54A). What does this mean?

In particular, is the middle range assessed by reference to some or all of the aggravating circumstances noted in s21A(2)?

You cannot ‘double count’ if the aggravating factor is an element of the offence (s21A(2)). Similarly, it would seem obvious, that if circumstances of aggravation are taken into account in fixing the middle of the range they should not then be taken into account again when it comes to increasing the sentence beyond the standard minimum.

What is middle range of ‘objective seriousness’? Is it synonymous with the middle range of criminality? A notion commonly used by the courts e.g. R v Perese [2001] NSWCCA 478 at [68]. It cannot and demonstrably does not, simply mean the mid point on the JIRS statistics, either mean or median as these sentences were calculated taking into account all relevant factors.

Section 21A (see below) states that in determining an appropriate penalty the court is to take into account mitigating and aggravating factor and any other relevant circumstances. If the maximum is reserved for the worst type of aggravated offence (Veen v The Queen No2 (1988) 164 CLR 456 and R v Whyte (2002) 55 NSWLR 252 at [152]) then to reach an objectively determined middle it would seem one must take into account some aggravating circumstances in order to put it in the middle range. This can best be illustrated by comparing the standard minimums for homicide and homicide of an official – items 1A and 1 on the Table to the Act attached.

The notion of a sentencing range or spectrum is often used by appellate courts if not often defined. Judges must “intuit” the:The range of sentences appropriate for the particular offence (see Justice McHugh in Everett v The Queen (1994) 181 CLR 295 at 306). In doing so it is necessary they consider objective seriousness. As Spigelman CJ noted in Whyte:

“However, in this State the principle of proportionality identified in Veen v The Queen (1978-1979) 143 CLR 458 esp at 490; Veen v The Queen [No 2] esp at 472-3, 476 has long been held to permit, indeed to require, that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.” At [152].

More recently, the NSW CCA has taken range to mean anything a from a section 10 bond to the maximum penalty available (see Moon (2000) 117 A Crim R 497). In one extreme and hopefully isolated case, the Court calculated the range by reference to only the maximum penalty (see Markarian [2003] NSWCCCA 8 now subject to an application for special leave to appeal the High Court).

In Ibbs v The Queen (1987) 163 CLR 447 the High Court put the question as:

Where does this offence lie on the spectrum of objective seriousness?”

That calculation is usually made taking into account all the objective features of the case. Adjustments are then made for subjective features. This flows from the well recognised principle that the sentence must be proportionate to the objective gravity of the offence (see Veen No 2 and Whyte).

If the offence falls within the Table the court must start by fixing the standard minimum sentence (s54A(1)). The court must then by reference to s21A only (s54A(2)), then assess where the offence and the offender rests in comparison to a middle range matter and adjust accordingly.

If the Court makes this assessment on the basis that a middle range matter does not have any of the aggravating features in s21A(2) then the increase could be significant.

It would seem inimicable to basic notions of fairness that the Court could count a factor twice. To separate out and allow discrete amounts for different “discounts” has been described as artificial and illogical (see Barr J in R v “X” [2003] NSWCCA 56 at [24] citing R v Gallagher (1991) 23 NSWLR 220 and Wong). The same reasoning would apply to any attempt to separate discrete “aggravating” factors.

The question of whether NSW is to adopt a tiered or instinctive or intuitive approach to sentencing has yet to be fully resolved. For the moment the instinctive model is the law but this is subject to the important qualification that legislative changes, such as this one, can require mathematical interventions. For example, in Whyte, the discount for a guilty plea was held to be valid. (See also the article Sentencing Methodology in Sentencing Trends No 25 December 2002 put out by the NSW Judicial Commission).

For the moment it would appear the following approach to the standard minimums has support.

  1. The court may use a staged approach to assist in reaching an appropriate sentence. This approach is in fact mandated by the legislation (S54A). 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 R v Bourchas [2002] NSWCCA 373 at [120] and R v 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, McHugh and Hayne JJ in AB v The Queen (1999) 198 CLR 111 and “X” at [50]). Any sentence however calculated must, when the final result is determined, yield to the production of a sentence that reflects the criminality ( i.e. both the objective and subjective features) involved in the offence (see Power v The Queen (1974) 131 CLR 623 at 628).
    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 s21A(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 s21A(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 (s21A(1)(c)) and other rules of law (s21A(4)) are not excluded in these calculations. Both must be taken into account. See R v Yeomans [2003] NSWCCA 194 When assessing what is meant by ‘taken into account’ Weininger is now a very important case. See below.
    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 628).
    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 s 44(2). (See below). Such a finding being “matters that are required or permitted to be taken into account by the court under any Act...” (s21A(1)) would justify variation from the standard minimum (see Johnson’s Paper at [61]. Any calculation of sentence and any finding of “special circumstances” need not be unduly restricted (R v 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 Hansard Legislative Assembly 23/10/2002 and Weininger). 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] cited above).

For an alternative check list see Peter Johnson’s Paper at [66].

When all is said and done you wouldn’t be a judge for quids! What we must do is stop Judges saying: “It’s all too much, I’ll go to the standard minimum, the aggravate up and mitigate down which leave me back at the standard non parole period. Then I’ll just need to add 1/3 to get the total sentence”.

We must continue to encourage courts to retain an appropriate proportion between the offender and the offence (see Spigelman CJ in Whyte at [152] and Veen No2).
The key to any defence submission must be to convince the Court to depart from the standard minimum for reasons set out in s21A (which includes common law factors s21A(1)). Once that is done the Court is ‘free’ in a sense to give an appropriately proportionate sentence.

The effect, as we have seen however with sentencing guidelines, will be a significant increase in the length of sentences imposed for offences on the “standard minimum” Table. If there is to be a proper proportion between sentences imposed for Table matters and those of similar criminality but which are not on the list, those later sentences must rise.

The existence of a standard minimum does not prevent in an appropriate case, a non custodial sentence or less than full time imprisonment (s54A(c)). However application of due proportion principles and parity principles may. The CCA particularly in its guideline judgements, has stressed the need for consistency in sentencing. (See Spigelman CJ in R v Henry (1999) 46 NSWLR 346 at 353: “If justice is not consistent it is nothing”.) Offences of like criminality committed by offenders with similar features should attract (within an appropriate range) similar sentences.

It is interesting that the CCA in setting guideline sentences adopted a different approach than the new provisions. In cases such as Henry, Whyte and Ponfield [1999] NSWCCA 435 the Court set out a series of typical features, both objective and subjective, as the basis for its guidance as to the range of head sentences sought appropriate.

A Sentencing Council was also established (Part 8B Crimes (Sentencing Procedure) Act) to recommend, among other things, new offences for the Table and matters suitable for Guideline Judgments.

Special Circumstances:
The optimists amongst us have presumed that, although worded differently, the new section (which applies only to offences committed after February 1 2003) merely reverts to the regime that operated under the Sentencing Act 1989 (see Howie & Johnson, Criminal Practice and Procedure NSW at 98,701). The pessimists fear that we now have a third regime imposed upon us. A regime that, in effect, operates to ensure that the only person asking for extended parole and “special circumstances” will be prosecutors. For the moment I’m with the optimists.

Despite the slightly different wording between the old pre 1999 - s5(3) and the new s44(2), the new provision comes in a context of a clear policy direction that sentencing under the new provisions are to remain intuitive and not part of a staged process. The only change, it is said, is that a “bottom up” approach (previously described as “quite artificial” by the Attorney and the Chief Justice) must be adopted.

It would appear that it is intended that we will revert to the pre 1999 view of special circumstances.(This is also the view of Peter Johnson and the present Director of the Criminal Law Review Division, Mark Marien Paper; Standard Non- Parole Periods, delivered to the Public Defender’s Conference May 2003). That is: that in the assessment of overall sentence, a longer parole period can either increase the total sentence or reduce the non parole period (see R v Hampton (1998) 44 NSWLR 729 & R v GDR (1994) 35 NSWLR 376).

In addition, it has recently been held that the assessment of whether there are special circumstances need not be unduly restricted (see Simpson).

Guideline Judgments
The guidance given by these decisions has been preserved despite the introduction of standard minimum non-parole periods. See Clause 46 of Schedule 2 Crimes (Sentencing Procedure) Act 1999 and Hansard 23/10/2002 p 5,815.

Two recent Guideline applications are of particular importance. In Attorney General’s Application No 2 of 2002 [2002] NSWCCA 515 the Court rejected an application. Saying in effect, that there was no demonstrated need for a guideline for. assault police matters.

In Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 the Court had to consider the approach to sentencing where matters are to be taken into account in Part 3 of Division 3 Crimes (Sentencing Procedure) Act 1999 NSW) –known as the Form 1. The rationale for the Form 1 procedure was summarised by Justice Simpson in R v Lemene (2001) 118 A Crim R 131 at [7].

“The procedure so afforded is not a procedure whereby an offender can admit to the commission of offences, and wipe the slate clean without incurring any additional penalty. Nor is it a procedure, which necessarily results in only a small penalty additional to that which would otherwise have been imposed in relation to the principal offence. In saying this, I recognise that an offender who adopts the procedure is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted. If that were not so, the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts. For it to be attractive to an offender, it must afford some benefit to him or her also.”

When taking into account additional charges on a Form 1 a judge cannot in any sense impose a sentence for those offences. It is simply wrong, as some judges have done, to determine the sentence for each individual offence both on the Indictment and on the Form 1 and then adjust for “totality”. Similarly, it is wrong to calculate an amount that would be imposed if the Form 1 matter had been on Indictment and include it in a general equation.

The Chief Justice made it plain in Attorney General’s Application No 1 of 2002 that an offender can only be sentenced for the offences of which he or she has been convicted. The statutory scheme in Part 3 of Division 3 of the Crimes (Sentencing Procedure) Act 1999 NSW does not empower a judge to pass sentence for anything other than the principle offence.

The Form 1 is relevant to any assessment or synthesis of general principles relating to the sentencing of an offender particularly when the Court considers the need for personal deterrence and retribution and perhaps prospects for rehabilitation.

The proper approach is to now to formulate a sentence for the principal offence and then if required increase it to take account the additional matters revealed by the Form 1, so far as they relate to matters such as general and personal deterrence.

This is in accord with the often-quoted principles noted in Veen v The Queen (No2), where antecedent history was similarly seen as a guide post to an appropriate sentence.

It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

As with antecedent history a Court must still be careful when taking into account maters on the Form 1 as these matters:

“cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.” At 477.

The overriding principle is, although the Form I matters can be taken into account, you cannot be punished for an offence for which you have not been convicted.

Fact Finding on Sentence: Weininger v The Queen
When assessing the facts to be ‘taken into account’ on sentence the general rule is that a sentencing judge:

"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities." R v Storey [1998] 1VR 359 at 369.

This rule was qualified in Olbrich v The Queen (1999) 199 CLR 270 where it was held that where the facts could not be determined the judge was not obliged to sentence the offender on the most favourable view of the facts. The rule has been further modified by Weininger v The Queen (2003) 77 ALJR 872 where the majority joint judgement of Gleeson CJ, McHugh, Gummow and Hayne JJ (Kirby J dissented) noted:

“[T]here is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter, which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple”(at [22]).

In Weininger the majority was concerned with what could be “proved” by an absence of convictions on a person’s criminal record. This alone did not allow the sentencing judge to draw the conclusion Mr Weininger was of prior good character. The sentencing Judge was entitled to be “not persuaded”. This was quite different than saying an aggravating feature had been proved beyond reasonable doubt. A judge is entitled to be so unpersuaded and not regard the matter as operating in favour or against the offender (at [29]).

Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.” (At [32])

Weininger was a case concerning S 16A of the Commonwealth Crimes Act. It now has added importance now that NSW has adopted similar approach to 16A in s21A Crimes (Sentencing Procedure) Act 1999. Mark Marian in his Paper suggest that formal proof of matters is not required before they can be taken into account as s21A factors on sentencing. This may be so where maters are not controversial, however Weininger did not overrule Storey. Thus if a mater is to aggravate a sentence it must still be proved beyond reasonable doubt.

Weininger is also important for a brief intuitive summary of what is means to impose a sentence:

“It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money” at [25].

Concurrent Sentences: Applying Pearce v The Queen
The decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 has proved to be a fertile field for appellate lawyers. Neither Pearce nor subsequent decisions of the CCA seem to have considered s55(1) of the Crimes (Sentencing Procedure) Act 1999 which says that sentences are presumed to be concurrent unless otherwise noted. As it stands Pearce requires the imposition of a sentence appropriate to each individual charge to which a person pleads guilty.

“To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (McHugh, Hayne and Callinan JJ at [45].

This means unfortunately, that a judge sentencing a single offender in respect of multiple counts may frequently become involved in a somewhat complex exercise in partial accumulation. Post Pearce it is no longer open for a sentencing judge to select the term of imprisonment appropriate to punish the offender for the overall criminality, and impose a sentence of that length in relation to each count. Each count must be considered individually.

In R v Musso [2002] NSWCCA 487 for example the trial judges failed to mention Pearce. He then made some of the sentences wholly concurrent. This the CCA characterised as his Honour not imposing any practical penalty those offences. This then allowed the CCA to intervene and increase those sentences and thus Mr Musso’s overall term in prison. The error did Mr Musso no favours.

As Sully J noted at [31] Pearce is:

not optional sentencing advice; it is imperative and authoritative direction from the High Court to sentencing Judges”.

Applying Pearce is not difficult. A judge when sentencing an offender for more than one offence must:

First, fix an appropriate sentence for each offence.
Secondly, consider whether the offences require cumulation or concurrence, (For example are they part of the one incident or discrete and separate offences). And,
Finally, balance the overall sentence by considering “totality” of the sentences as accumulated. (That is; impose a sentence proportionate to the overall criminality of the offender).

Repeal of Section 16 G Crimes Act 1914 (Commonwealth):
Section s 16G of the Crimes Act 1914 was designed to ensure that a court imposing federal sentences which were to be served in a prison of a State or Territory where sentences were not subject to remissions, had to take that fact into account in determining the length of the sentence and adjust the sentence accordingly. A rule of thumb developed that Commonwealth sentences should be reduced by 1/3 of that which would otherwise be appropriate (see R v Paull (1990) 49 A Crim R 142).

The rigidity of the initial formulation in Paull was moderated in El Karhani (1990) 51 A Crim R 123. There it was held, no precise formulae need be applied to satisfy s16G. A stage was later reached where the DPP successfully argued that a failure to give a 1/3 adjustment was not an error. The 1/3 reduction was held neither to be “invariable” or “inevitable (see R v Budiman (1998) 102 A Crim R 411 at 415). Nevertheless, Courts were required to, and did, make due allowance for the requirements of the section. A failure to take the section into account at all was an error (see R v O’Connor [2002] NSWCCA 156).

The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other Measures) Act 2002 Comm. contained a little gem. In schedule 3 clause 1 “Other Measures”, appear the words: “ Crimes Act 1914 section 16G - repeal the section”.

It was explained to Parliament that the section was no longer necessary as remissions had been abolished in most states and territories. Nothing else was said. There are no transitional provisions. The repeal applies to all Commonwealth sentences delivered after the 16 January 2003 including those delivered even though a guilty plea was entered before 16 January an after appeal (but see R v Shofield [2003] NSWCCA 3 where the CCA on a Crown appeal allowed the 16G reduction despite the repeal).

Does this mean all Commonwealth sentences must go up by 1/3? I think and hope not. I have successfully argued (DPP v Chew; McGuire ADCJ 27 February 2003) that:

  1. The abolition cannot have been intended to have that impact.
    2. It was only required of a court that they make an adjustment.
    3. In the light of the now established tariffs for such offences to “mathematically” increase them in the absence of legislative direction would be an error.
    4. Rather, the court must sentence as if the section did not exist by reference to the objective facts and matters to be taken into account in by reference to s16A.
    5. To do otherwise would be to engage in the frowned upon mechanism of engaging in mathematically calculated sentences, when by the removal of the section, such a requirement is no longer necessary.
    6. Section 16G never requires there be a reduction in sentence below that which was other wise thought adequate and appropriate.
    7. There is no evidence that the existing range of sentences is other than appropriate to met the objective seriousness of the offence.
    8. There is thus, no sensible reason to give a Commonwealth offender a longer sentence than the minimum required by the circumstances of the offence.

That being said, and despite support for my view from the Editors of the Criminal Law Journal ((2002) Crim LJ 61), I sense that some Judges are itching to say that, where a tariff had developed for Commonwealth sentences, some upward adjustment of that tariff (of about 1/3) is necessary to take account of the repeal.

Good luck. Remember “if you’ve done nothing wrong, you have nothing to fear”.

Andrew Haesler
Carl Shannon Chambers
The Public Defenders

Table---Standard non-parole periods
Item No Offence Standard non-parole period (maximum)
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.