Public Defenders

Sentencing in Serious Criminal Matters


Punishment v Rehabilitation

This paper, by Eric Wilson, Public Defender, was given in a slightly shorter form at the Bar Association CLE in Orange on 13 February 2010

Two pronouncements by Supreme Court Justices illustrate important aspects of the sentencing process. They may provide some food for thought for practitioners who practice in crime, and those who watch, enviously, from the sidelines.

Howie J in SZ v Regina [2007] NSWCCA 19, (2007) 168 A Crim R 249, at [5] relevantly stated:

'....the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must 'accord with the general morale sense of the community': R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large'.

Hunt J when imposing a sentence in 1991 for an offence of wound with intent to inflict GBH, said in part, in the case of Muir, (NSWSC 3.4.1991), set out below:

'The prisoner has no relevant previous convictions. He is, in effect, at the turning point of his life, and in my view the community, if fairly apprised of all the facts, would accept that the prisoner should be given the chance to work his way through to a better future, rather than that he should be flung onto the human scrapheap of society by an uncaring criminal justice system, simply as a warning and an example to others.


I have been a practitioner for over 30 years, both as a solicitor with the Western Aboriginal Legal Service Ltd and the Macquarie Legal Centre and both as a barrister in private practice and a Public Defender located in Dubbo. I have been an Acting and Permanent Public Defender since January 1998. Except for one year at the Macquarie Legal Centre in 1980, I have practiced in the Central and Far Western areas of N.S.W. in legally aided criminal cases.

During the late 1970's and the decade of the 1980's I appeared in Courts of Petty Sessions and Local Courts on a daily basis in a sausage machine atmosphere, where short oral pleas of two to five minutes were required to get through the work. At the beginning dictating such pleas to a depositions clerk was tedious, although never without interest before some Magistrates. This process was accelerated with the introduction of sound recording. My first experience of this took place in Broken Hill in February 1979.

Sentencing practice was not regulated by legislation in the extensive manner it now is and the common law (see R v O'Neill [1979] 2 NSWLR 582) was a grounding source of practice, procedure and argument. The Crimes Act as set out in Watson and Purnell's practice was the source of many of the relevant provisions with notations to aid the practitioner. (s439 on pleas of guilty from 1990, s440 general 5 year penalty provision, s440A power to fine in indictable offences, s441A commencement of sentence, s442 power to impose a lessor sentence, s442B assistance to the authorities (from 1992), s 443 additional sentence, s444 limits on accumulation or concurrency, s554 & s 558 bonds and s 556A dismissals, section 476 & later sections 495 & 496 in relation to summary disposal, attempts s344A and accessories s345). This text contained in addition, notes on sentencing for common law offences such as false imprisonment; escape, attempting to pervert the course of justice, affray, riot etc.

It is instructive to note that Section 443 of the Crimes Act allowed the imposition of extra imprisonment in cases where the offender had previously been convicted on indictment and the Judge felt that the Maximum penalty was insufficient: R v McIvor (1933) 50 WN (NSW) 57. In relation to felonies there were two categories of offender; those with one such conviction who could be sentenced to at least 2 and no more than 10 years and those with two such convictions where an extra 3 years and up to 14 years could be imposed. This section was repealed only in 1999 effective in April 2000. I do not recall any of my clients being subjected to it.

The Habitual Criminal's Act of 1957 repealed the Habitual Criminal's Act of 1905. The note in Watson & Purnell in 1994, stated that 1957 version of this legislation, was introduced to provide a scheme of determinate rather than indeterminate sentencing, as had been the case in the previous version. Where an offender (previously referred to as 'the prisoner' until recently) who was above 25 years old and had been convicted on indictment, had twice previously been convicted of indictable offences not dealt with summarily, the Judge (and Magistrate in accordance with parallel provisions) could then pronounce the offender to be an habitual criminal. The Judge (or Magistrate) had to be satisfied that it was expedient, taking into account the offender's reformation or the need to prevent crime, that the offender should be detained in prison for a substantial period of time. The 'prisoner' had to have served two periods of separate custody & not just convictions on separate counts served concurrently or cumulatively in the one sentence period. A sentence in addition to that to be passed for the matter before the Court could then be passed. The sentence in addition to that passed had to be at least five years and no more than fourteen years.

It is clear that this concept of determinate sentencing has been a part of sentencing theory and practice for a long time & in combination with sections 443 & 444 of the Crimes Act provided scope for the imposition of 'tough' sentences. They provided a legislative basis for using the prior record of an offender to impose a greater sentence than called for by the offence itself. Offences of being a suspicious person and consorting were a part of the old Summary Offences Act repealed in February 1979. They relied also on the existence, to some extent, of prior records. In recent times the Crimes (Serious Sex Offenders) Act 2006 allows detention and/or supervision orders to be made against serious sex offenders at the conclusion of the sentences imposed upon them. Legislation has been introduced in the recent past in Parliament in individual cases to deny them release at the conclusion of their sentences.


Lawyers, who work with time constraints, often work mechanically, dealing with the nuts and bolts legal aspects of their cases, without time to reflect upon the human factor in their work. Little thought may given by a busy practitioner, to the way in which the Criminal Justice system, in it's push for case disposal, impacts upon the lives of the people caught up in it, their clients and their families and those affected by the commission of offences. Less still do lawyers, who appear in criminal cases, take time to assess whether or not their stressful work impacts upon their own well being particularly their mental health. Can it be said that all cases are just another case, to be professionally handled and forgotten?

In an article entitled, ' Theatre of Broken Dreams', Sydney Morning Herald court reporter Kim Arlington on the 15 th of January 2010 drew upon her own experience of the courts and that of fellow and former court reporters to make some pertinent points in relation to the court process. She observed that, 'Matters of life and death, fortunes and futures are decided in courtrooms every day. 'Another former reporter stated to her, that it was daily drama, which was real and potentially very emotional. 'The people involved often had their lives turned upside down, whether as families of victims or families of perpetrators.'  Ms Arlington made an insightful & relevant observation in her article when she said,

'There's no doubt that things can get grim in the courtroom; the bleakest side of society is frequently on display. But there are also times when the finest of human qualities- wisdom, compassion, a commitment to justice shine through'.


During the 1970's & 1980's when I was appearing as a solicitor in District or Supreme Court sentence matters the procedure was relatively simple. A police officer would go into the witness box and read a set of facts and the antecedents he or she had prepared, relating to the 'prisoner'.  A full brief would often be tendered. Usually you would call your client (I did others might not), or a character witness or a family member, hand up references (and relevant cases), address the Judge and then hope for the best. The sentence would often then be imposed immediately or within a few days. Reports were obtained from the Probation & Parole Service & Psychiatrists & Psychologists would often be retained.

Sentencing change started to proceed apace in the early 1980's with serial changes to the sexual assault provisions as from 1981, which has continued to the present time. There have been numerous changes to the maximum penalties in the sexual assault sections since their introduction in 1981, 1985 and the amendments in 1991. Practitioners have a responsibility to check the date of each offence charged against their client. The client needs to be advised and the court must be made aware of the applicable maximum penalty. You should not rely on the DPP or the Crown, helpful as they often are, to be accurate about this. You have the same responsibility. Case law from the period is also helpful if you can obtain it.

The difficulty these changes have created in sentencing in sexual assault matters is illustrated in the number of Court of Criminal Appeal decisions, which deal with old sexual assault matters (See R v MJR (2002) 130 A Crim R 481, Featherstone v R [2008] NSWCCA 71, (2008) 183 A Crim R 540; Bradbery v Regina [2008] NSWCCA 93). In these cases the old maximum penalties and sentencing regimes, including the type of non-parole period imposed at the time (one third to a half), have sometimes not been properly applied on sentence. The problems are compounded when an offender has a mixture of recent and very old sexual assaults on children with a number of complainants, some included on the indictment and some on a Form 1. See for example CPW v R [2009] NSWCCA 105 and G A T v R [2007] NSWCCA 208.

The changes can be illustrated in a practical reference. I appeared in a matter of Regina v Rodney Stewart Burke (Unrep. NSWSC 23 August 1983) before Slattery J at Broken Hill in August 1983. He had pleaded guilty in the Court of Petty Sessions and was committed for sentence. He was charged under section 61D(1) with sexual intercourse without consent of a child under 16 and the maximum penalty was 10 years. Justice Slattery placed him on a deferred sentence under section 558 for a period of three years.

The reasons for the non-custodial sentence were; that he was a 19-year-old Aboriginal man with a deprived background (properly proved in evidence), who had been assaulted by community members immediately after the offence and had his jaw broken, he had spent 3 months in custody for the first time and had a supportive family with some prospects of rehabilitation.

The equivalent offence would now be laid under section 61J (1) with a maximum penalty of 20 years & a standard non-parole period (SNPP) of 10 years. The offence, however which would normally now be charged in these circumstances, would be that under section 66A (where the child is under 10 and with no element of consent required). Here there is a maximum penalty of 25 years and a SNPP of 15 years. The likely penalty on a plea in similar circumstances could be very high and might be as much as 12 years NPP 9 years. ( MLP's case, see below)

Changes to Sentencing Legislation

Enormous change has taken place in the field of sentencing in criminal cases in the 20 or so years between 1987 and now. Greg Smith SC. MLA, commented upon this recently in Bar News Summer 2009/2010, in an opinion article entitled; Hard line fine for dangerous criminals, but what about the rest? He notes that the introduction of many forms of aggravated offences such as break & enter type matters (eg. see s 105 A of the Crimes Act), all forms of sexual assault, and in relation to matters of violence and assaults on police officers have continued unabated. New firearms and drug penalties have been introduced. Guideline Judgements in driving matters ( Jurisic & Whyte), break enter and steal ( Ponfield), PCA ([2004] NSWCCA 303, 147 A Crim R 546), armed robbery ( Henry) and in relation to Form 1 matters ([2002] NSWCCA 518, (2002) 56 NSWLR 146, 137 A Crim R 180), have come into consideration since 1998.

The Probation & Parole Act 1983 (NSW) was amended by the Probation & Parole (Serious Offences) Act 1987. The introduction of section 20A in that legislation required non-parole periods for serious offences to be at least three quarters of the head sentence or sentences. Section 21(3) allowed a finding of special circumstances to be made to vary this ratio. The fettering of the trial judge's discretion, for the first time as seen in these provisions, continued in 1989, per Wood CJ at CL in R v Moffitt (1990) 49 A Crim R 20 at p25, with the introduction of the Sentencing Act 1989 (NSW) which repealed the Probation & Parole Act 1983 and introduced the concept of Truth in Sentencing.

In September 1989 I recall that the imprisoned population in NSW was about four thousand eight hundred people. Twenty years later in September 2009 it was over ten thousand with a large proportion of these being persons of Aboriginal descent (21-22%). What role has this legislation played in producing this abysmal situation? Wood CJ at CL explained the function of Section 5(2) of the Sentencing Act 1989 in Moffitt's case at p 25. The rule imposed in sentencing was that the additional term (as it became known for a period) should be no more than one-third of the minimum term (as the non-parole period was then called) unless the court found that special circumstances exist. The minimum term had to be set first. Gone were remissions for good behaviour whilst in custody, (one quarter and one third for the first sentence), and the practice on sentence that non-parole periods would be between one third and one half of head sentences: CPW v R [2009] NSWCCA 105 [69]. For example Justice Wood imposed a sentence of 9 * years NPP 4 * years on my client for offences under section 61 B and other offences of the most serious nature in 1986.

Section 5 was replaced by section 44 of the Crimes (Sentencing Procedure) Act 1999, which required the total sentence to be set first followed by the non-parole period. Special circumstances continued to be in place. The Court of Criminal Appeal in NSW was besieged with appeals in relation to special circumstances from 1990 onwards and had to sit as a bench of five judges in R v Simpson [2001] NSWCCA 543; 53 NSWLR 704, to try and settle what special circumstances and the discretion of the sentencing Judge really meant. Cases on the statutory ratio (75%) continued and still do. In CPW v R [2009] NSWCCA 105 a ratio of 93% was achieved at first instance as a result of the process of accumulation.

Immense change came over the sentencing landscape and the width of the sentencing discretion with the introduction of two pieces of legislation. These were the Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002, which introduced section 21A and then the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, which introduced sections 54A to 54D and the table of standard non-parole periods (SNPP), on the 1 st of February 2003. Section 3A of this latter legislation introduced seven purposes of sentencing set out in legislation, and reproduced below, for the first time. The Law Reform Commission Report 79 on Sentencing was the supposed base for the consolidation of sentencing introduced with the Crimes (Sentencing Procedure) Act 1999. The legislation was not intended by the commissioners to constrain the sentencing judicial discretion: Nicholas Cowdery QC DPP NSW; Recent Developments in Sentencing Legislation pp3-4. That approach was blunted according to Cowdery QC, by the introduction of these two pieces of legislation.

The introduction of mandatory sentencing in relation to offences listed in the table under section 54D was also accompanied by amendments to section 21A to introduce aggravating, mitigating and other factors to be taken into account in determining the appropriate sentence. Section 44 was amended so that the non-parole period had to be imposed first, followed by the balance of term, but the ratio between these terms of 3:1 was maintained in the absence of special circumstances. R v Musgrove [2007] NSWCCA 21,167 A Crim R 424 (examined below) is a case, which contains an historical overview of the sequence of legislative provisions concerning the ratio between NPP and head sentence. In it Simpson J provided some guidance to Judicial Officers following a number of cases arising out of the erroneous pronouncement of sentence: P [2004] NSWCCA 218., Tobar (2004) 150 A Crim R 104 , Simon [2005] NSWCCA 123 , Itaoui [2005] NSW CCA 415, 158 A Crim R 233.

The standard non-parole period listed in the tables under section 54D is to be imposed for an offence in the middle range of objective seriousness where there has not been a plea of guilty. In the case of G A T v R [2007] NSWCCA 208, Adams J commented [22] that it was not easy to hypothesise an offence within the middle of the range of objective seriousness, especially where the objective features can vary markedly, as with indecent assault. The court is able to determine not to impose the SNPP for reasons that are found only under section 21A: Section 54B(3). As might be expected there has been an explosion of case law about every subsection of section 21A and also section 54D with SNPP cases. There has also been the addition of new subsections S21A (2) (ca), (cb), (ea), (eb), (ia), (ib) between 2006 & 2009. Judge Debbie Payne of the District Court has constructed a table of the sections and related cases. The Public Defenders have resources on these cases. All this makes life very difficult for the practitioner in the proper carrying out of their duty in a sentence matter.

The Role of the Practitioner

Sentencing in all criminal matters requires practitioners to display those fine qualities mentioned above by Ms Arlington. Wisdom might come to the fore where the practitioner knows the law and is able to decide which way is the best way to present their client's case. Compassion & empathy are qualities, which might assist lawyers in being able to relate to, communicate with & understand who the client is and what their life has been. A commitment to justice in each case is a first principle requirement for lawyers appearing in criminal cases.

The notes under tab 5- Sentencing in the Butterworth's practice volume 1, refer to the Role of Counsel. A number of points, with references to the appropriate authority are made there:

It is the primary duty of all practitioners to assist the court

A practitioner should not mislead the court although there is no duty to disclose material detrimental to the offender including their record, (unless the court asks if the record is correct)

Barristers under Bar Rule 17B & Solicitors under Rule 23 must advise a client who is charged with a criminal offence 'about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty), if the client pleads guilty or authorises some other steps towards reducing the issues, time, cost or distress involved in the proceedings'.

There is no single correct sentence nor are sentences worked out by computer or mathematical formula. Within the width of the sentencing discretion of a judicial officer, the practitioner has a duty to the client to properly present and argue the full extent of their client's case. A combination of legal & psychosocial factors, especially where ill health, or a mental disorder is evident, could arise during the course of the sentencing process. Note the use of the terminology, 'psycho-social', by Fullerton J in R v PGM [2008] NSWCCA 172 at [45]. Lawyers must develop the personal skills to be able to relate to and engage with their client, no matter who they are, so that they can present their client to the court as more than just an 'offender'.

The art of persuasion directed at extending the width of the discretion on sentence of judicial officers is still alive in courtrooms. If a practitioner can cause a judicial officer to make a decision like that of the former Chief Judge at Common law retired Justice David Hunt in the case of Peter Muir (Unreported NSW SC 3 April 1991) at pp 10-11 then that practitioner, in my view, has done an inspirational job in representing their client. Hunt J said at p10,

The prisoner is obviously enough a person with far above average prospects of rehabilitation. He spent a month in gaol at Grafton before being released on bail, and (again as may be expected) he received no assistance at all there for his problems. I am satisfied on the evidence that, to return the prisoner to custody, will put in substantial jeopardy all the good, which has been done so far.
Anyone with the slightest knowledge and understanding of the treatment of offenders says that gaol should be the last resort, not the first.

His honour further said at p11,

The prisoner has no relevant previous convictions. He is, in effect, at the turning point of his life, and in my view the community, if fairly apprised of all the facts, would accept that the prisoner should be given the chance to work his way through to a better future, rather than that he should be flung onto the human scrapheap of society by an uncaring criminal justice system, simply as a warning and an example to others.
I have no doubt that the decision to defer passing sentence will be criticized by those who have set themselves up as professional critics of the courts and who, either in deliberate ignorance of the facts of the case or in deliberate disregard of those facts, seems intent to destroy any chance of rehabilitation of offenders, by demanding incarceration in conditions which inevitably crush any hope for the future.

An Approach to Sentencing

Between August 1991 and October 2003, I was able to operate as a barrister from a little upstairs room in Dubbo using a typewriter and without a computer. I did not make submissions in writing in sentence matters unless they were in the Supreme Court. In that period of time, I concluded sentence matters at a rate of just fewer than 23 per year. In the six years since 2004 I have completed sentence matters at a rate of just over 18 per year.

From 2004, when I obtained a work computer, I have attempted to prepare written submissions. This helps me to prepare the issues and to know my client's case. When I call my client I am confident that I will ask about the relevant matters and get them into evidence and before the Court. It is not enough to just rely upon the hearsay material set out in reports to prove the background, contrition, prospects of rehabilitation, mental state at the time of the offence, aspects of custody etc, as aspects of mitigation as these must be proved on the balance of probabilities. The recent addition to section 21A (3) (i) requiring demonstrated remorse does no more than restate the common law. It will be hard to prove this without calling your client.

In R v Paliwala (2005) 153 A Crim R 451 at 460 Howie J held that material in reports has less weight without sworn evidence.

See also

R v Qutami (2001) 127 A Crim R 369
R v Palu (2002) 134 A Crim R 174 at [40]
R v McGourty [2002] NSWCCA 335
R v Schofield (2003) 138 A Crim R 19
R v Elfar [2003] NSWCCA 358
Munro v Regina [2006] NSWCCA 350

Sentencing proceedings are often conducted with a considerable degree of informality and matters are taken into account, which have not been proved by any evidence but which are not disputed: Weininger v The Queen (2003) 77 ALJR 872 [21] per Gleeson CJ, McHugh, Gummow & Hayne; see also R v Olbrich (1999) 199 CLR 270 also in (1999) 108 A Crim R 464.

Section 4 of the Evidence Act 1995 is a much overlooked section. It applies the provisions of the Evidence Act to sentencing only if the court so directs. In disputed fact hearings, under section 4(3), the court must make such a direction if a party applies and the court is of the view that the proceedings involves proof of that fact and that fact is, or will be, relevant to determining the sentence to be imposed. The tendency & coincidence rules under the Evidence Act do not apply to sentencing proceedings (s 94(2)) unless an order is made. Where a party objects to the tender of evidence on sentence a direction might be made: R v Bourchas [2002] NSWCCA 373


I have developed a format outline, which I use as a template for written submissions on sentence. The outline has been modified and produced below as the core of this paper. The method I use consists of extracts or summaries from cases interspersed with some commentary to amplify the headings in the body of the written submissions. This paper is meant to serve as a practical collection of resources and is not written as a paper in the purely academic sense. The paper does not claim to be up to date and many recent cases are not yet included in those collected here.


I always provide a summary of the case within my written submissions at the front of the document. Where there are Agreed Facts I usually have an electronic copy and paste them in. Where the Crown tenders the brief and there are no facts, my summary of the case, at times, has been relied upon as a form of short facts.

It is a helpful process when first receiving and reading a brief to do your own case statement of what the case is about. If you do it in the correct objective language you will find that a grateful Crown or DPP solicitor who has not had time to knock out a set of facts might adopt your summary. This also allows you to summarise into the facts material (with appropriate references to the source) in the brief, which assists your client. The Judge will take away your written submissions if the decision is reserved and will re-read your summary when preparing judgement.


Common Law.

The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve- the protection of society, personal and public deterrence, retribution and reform- even though those purposes overlap and sometimes conflict: Veen (No2) (1988) 164 CLR 465 AT 476; 33 A Crim R 230 at 237-238. It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place:Dodd (1991) 57 A Crim R 349 at 354. Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed: R v Gordon (1994) 71 A Crim R 459 at 468; italics introduced when cited in Regina v Cage [2006] NSWCCA 304 at [17].

Further in Gordon's case Hunt CJ at CL said at p 469, in a passage recently cited in R v Quin [2009] NSWCCA 16 at [45] by Price J:

'What all those principles make clear is that rehabilitation (or reform) - the hope that the offender will be released back into the community a better person than when he or she left it - is only one of the purposes of punishment and that, even when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public'.


Under Section 3A of the Crimes (Sentencing Procedure) Act 1999 there are 7 purposes identified in relation to sentencing.

a) Punishment
b) Prevention
c) Protection
d) Rehabilitation
e) Accountability
f) Denunciation
g) Recognition of harm to the victim(s).

The CCA has explained in the Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303, 147 A Crim R 546, 61 NSWLR 305 or 'The Drink Driving Guideline', that the section provides,

'The framework upon which a court determines the sentence to be imposed upon a particular offender for any offence. The Act provides the sentencing practice, principles and penalty options that operate in all courts exercising State jurisdiction. The sentencing principles and practices derived from the common law also apply. They have been preserved by the provisions of the Act'.

Section 5 of the Crimes (Sentencing Procedure) Act 1999 provides that; 'A Court must not sentence an offender to imprisonment unless it is satisfied that, having considered all possible alternatives, that no penalty other than imprisonment is appropriate'. In Blundell v R [2008] NSWCCA 92, 70 NSWLR 660 at [28] Simpson J found that the Sentencing Judge did not refer to section 5 and thereby misdirected himself. A community service order (CSO) was imposed in lieu of imprisonment.


I usually include at this point a statement of what I understand the law to be in relation to the type of offence before the court. This means that I save my summaries from previous occasions and amend and expand them if I come across new cases or changes to legislation.


The Maximum Penalty

The significance of the maximum penalty for an offence was discussed in Markarian v The Queen (2005) 79 ALJR 1048 at [30] and [31]. In the case of Phillip Smith v R [2007] NSWCCA 138. James J with whom Campbell JA and Smart J agreed set out these paragraphs at [36]. Paragraph 31 of the Judgement in Markarian's case is of relevance here:

'It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick..'.

See also Howie J in Regina v Zamagias [2002] NSWCCA 17 at [9] and at [11] where he refers to H (1980) 3 A Crim R 53 at 65 and Oliver (1980) 7 A Crime R 174 at 177.

It may surprise practitioners in the criminal law that maximum penalties are occasionally actually reduced. This has happened in Social Security fraud cases. In the case of R v Ronen, Ronen and Ronen [2006] NSWCCA 123, 161 A Crim R 300, Howie J supported by Spigelman CJ and Kirby J said at [74] that the sentencing judge in the case was correct to take the lowering of the maximum penalty into account when proceeding to sentence. This had the effect of reducing the impact of the maximum penalty. I note that Ronen's case was referred to as stating the law in this situation in the later case of Bick v Regina (Commonwealth) [2006] NSWCCA 408 at [8]. See also Markarian v R [2005] HCA 25; (2005) 215 ALR 213, (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [30], and per McHugh at [80]

Judicial Discretion on Sentencing

The discretion allowed to a sentencing judge at first instance is extremely wide. In Markarian v R [2005] HCA 25; (2005) 215 ALR 213, (2005) 228 CLR 357; Gleeson CJ, Gummow Hayne and Callinan JJ at [27] said in part:

Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

This passage was cited in full in R v Zegura [2006] NSWCCA 230 at [44]. See also R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [58]

In the well known case of R v Lattouf (Unrep. CCA NSW) 12 December 1996 Mahoney ACJ said at p 4:

'It is ....necessary that the law allow to a sentencing Judge a discretion to determine the sentence appropriate for the particular offence, for the particular offender, and for the circumstances of the particular case. General sentencing principles must be established, so that the community may know the sentences which will be imposed and so that sentencing Judges will know the kind and order of sentence which it is appropriate that they impose. But of course principles are necessarily framed in general terms. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason, it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge.

Mahoney ACJ then recognised that the nature of the interests involved in the sentencing process include deterrence and went on to set out other interests and objectives. (p. 4). Parts of this passage were referred to by Spigelman CJ in R v Henry (1999) 46 NSWLR 346, (1999) 106 A Crim R 149, at [11]

Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. ...if justice is not individual it is nothing......
But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal, becoming such, that sentencing process is inconsistent with the public interest.
It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person.

Finally in Weininger v The Queen (2003) 212 CLR 629 the High Court noted that:

[I]t is important to avoid introducing 'excessive subtlety and refinement' to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can, be fitted into one or other 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 units of punishment usually expressed in time or money. (Per Gleeson CJ, McHugh, Gummow and Hayne JJ at [24])

The Principle of Proportionality

The Court of Criminal Appeal in R v Bilal Skaf [2005] NSWCCA 297 said at [116-117] that a basic objective of any sentencing exercise is that the sentence imposed should be reasonably proportionate to the offence committed and its attendant circumstances. The Court cited Veen No 2: 'The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.

See also the case of R v MMK [2006] NSWCCA 272, 164 A Crim R 481, which cites the passage from Markarian as quoted above at [19] and refers to proportionality at [11]. The case also cites Holder's case, referred to below, at [12] as to totality. The decision in R v Way(2004) 60 NSWLR 168 [92-99] emphasises the requirement for sentencing Judges to observe the dichotomy between the matters relevant to the offence and those, which relate to the offender. This is especially so when considering the commission of offences whilst on conditional liberty and where, as occurred in MMK's case, there is a prior record for similar offences: Way [94].

It was said in R v McNaughton [2006] NSWCCA 242, 163 A Crim R 381, 66 NSWLR 566 at [15],-[24]: 'The principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions' See also Darrigo v Regina [2007] NSWCCA 9 at [32]-[34] which reaffirms what was said in McNaughton.

Fact Finding

R v Palu (2002) 134 A Crim R 174 at [21] per Howie J is authority for the proposition that where an agreed statement of facts is tendered which ,'is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise it's discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement'.

The principles in relation to fact finding are conveniently set out in the manslaughter case of R v Isaacs (1997) 90 A. Crim. R. 587 at pp 591-592. That case dealt with fact-finding following a trial. The Judge must determine the facts relevant to sentencing from the trial material and further material tendered on sentence. The facts adopted by the Judge must be established beyond reasonable doubt. Whilst the Judge does not take a view of the evidence most favourable to an offender, reasonable doubt must be decided in the offender's favour. Read R v O'Neill [1979] 2 N.S.W.L.R. 582 as a starting point on this topic.

Further assistance is found in the case of R v Olbrich 108 (1999) A. Crim. R. 464 at [24] - [28] where the High Court affirmed this proposition. Facts adverse to the offender must be proved beyond reasonable doubt, but those taken into account in favour of an offender must be established on the balance of probabilities. See also Weininger v R (2003) 77 ALJR 872 at 876 [18-19]

There are as many styles of decision-making and sentence delivery as there are judges. Whilst a sentencing Judge is not required to write an essay on sentence, it is submitted that there is a requirement that the facts be stated and then a reasoning process be engaged in to determine what conclusions those facts might lead to in relation to the objective seriousness of the offence thereby allowing a process of review to occur: RNM v Regina [2006] NSWCCA 375 [24] referring to R v Duffy [1999] NSW CCA 321 at [11]; R v J.R.D. [2007] NSWCCA 55 at [37] per Howie J.


The Crimes (Sentencing Procedure) Act 1999 section 21A matters are set out below. There are now many cases on the individual features of this section. Notes from some of them are set out below. See also the early case of R v Wickham [2004] NSWCCA 193 and note that the case pointedly said in relation to section 21A(4), which requires the court not to have regard to any aggravating or mitigating factor on sentencing if it would be contrary to any Act or rule of law to do so, that it was the intention of Parliament to replicate the common law. The effect of this provision, 'is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy'.

In Wickham the observation was made at [24] in relation to prior criminal records under s 21A(2)(d) that this could not be a circumstance of aggravation because this was contrary to the common law, a finding made in R v Johnson [2004] NSWCCA 76. Discussion was also held at [26] about the inclusion of elements of aggravation of offences into section 21A as aggravating features something which section 21A(4) will limit under R v De Simoni (1981) 147 CLR 383. The case re-affirmed that the onus is on the prosecution to prove matters of aggravation beyond reasonable doubt and on the offender to proved matters of mitigation on the balance of probabilities: at [27].

In R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [104], The CCA discussed the approach to section 21A in sentencing. In referring to s 21A(1)(c) and other wording the Court said, ' that the factors listed in s 21A(2) or (3) were not intended to operate as an exhaustive list or an exclusive code'. ... ' existing statutory and common law factors may still be taken into account in determining sentence even though they are not listed in s 21A(2) or (3)'.

The Court said in R v Ancuta [2005] NSWCCA 275 in relation to an offence of supply prohibited drug, that s 21A (2) is directed to the question whether there is some aggravating factor to be taken into account when imposing a sentence for a particular offence. In that case the elements of planning, vulnerable victims, danger to public safety were all part of the elements of the charge of supply. See also Ward v R [2007] NSWCCA 22, 168 A Crim R 545 at [19], [22], [23] which emphasised that there should not be double counting. An aggravating feature (such as danger to public safety) should not be double counted as an aggravating feature when it is already an element of the offence. See also R v Wickham at [22]

Note R v Solomon [2005] NSWCCA 158, 153 A Crim R 32 at [18]-[21] in relation to armed robbery offences where substantial emotional harm is expected to occur as a part of the offence.

Further in Cunningham [2006] NSWCCA 176 [53] Bell J, Simpson and Grove JJ agreeing noted that no evidence had been led touching on the emotional or psychological harm to any of the complainants. The Court presumes that victims of sexual assault will be likely to suffer psychological injury and emotional harm as the result of the assault. As the Court explained in R v Solomon [2005] NSWCCA 158, 153 A Crim R 32, because the Court makes such an assumption, without evidence, it would be unfair to take the psychological injury or emotional harm into account as an aggravating factor under s21A (2)(g) in the absence of evidence that in the particular case it exceeded that which is presumed.

1. Aggravating Features Section 21A (2)
a) Status of victim see section which relates to their role or occupation such as police, health worker, judicial officer, emergency service etc.
b) There was actual violence.
c) A weapon was used
It is an aggravating feature in wounding & wound with intent matters that a knife was used: Regina v Deng, (2007) 176 A Crim R 1 at [7], [2007] NSWCCA 216 applying R v Dickinson [2004] NSWCCA 457 at [23]. This is also the case where a bottle is used: Nowak v R [2008] NSWCCA 89, 183 A Crim R 526.
ca) The offence involved the threat of or use of explosives, chemical or biological weapons.
cb) The offence involved the offender causing the victim to take, inhale or to be affected by a narcotic drug, alcohol or other intoxicating substance.
d) The offender has a previous record. This cannot be an aggravating feature.
See the cases of
R v Wickham [2004] NSWCCA 193
R v Johnson [2004] NSWCCA 76
R v Dodd [2004] NSWCCA 374
R v Blair [2005] NSWCCA 78, 152 A Crim R 462 at [53]: use of record and the effect of section 21A(4) which is overlooked, but which imports the requirement not to aggravate a case where it is against a rule of law to do so.
Tidona v R [2005] NSWCCA 410 at [44]: the record is not an aggravating feature following Blair]  use of prior record as an 'aggravating factor' s 21A(2)(d) is limited to the common law principles on prior record in Veen v The Queen (No 2) (1988) 164 CLR 465
R v McNaughton (2006)163 A Crim R 381 [2006] NSWCCA 242, 66 NSWLR 566
Darrigo v Regina [2007] NSWCCA 9 at [32]
e) The offence was committed in company.
ea) The offence was committed in the presence of a child
eb) The offence was committed in the home of the victim or any other person
f) There was gratuitous cruelty
g) There was physical or emotional harm occasioned.
h) The offence was racially motivated.
i) There was a danger to public safety.
ia) There was a risk to National Security
ib) There was a grave risk of death
j) The offender was subject to any conditional liberty
k) The offender was in a position of authority
l) The victim was a vulnerable person
m) There was more than one victim or a series of criminal acts
n) It was planned or organised.
In Bowden v Regina [2009] NSWCCA 45 at [68]-[74] a case involving an ongoing drug supply the judge found this section applied but the CCA observed that this was an error where the planning was not such that it exceeded that which is inherent in the commission of the offence. The cases are collected here.
o) The offence was committed for financial gain

2. Mitigating Features under Section 21A (3)
a) The injury, loss, damage or emotional harm suffered was not substantial.
R v Deng (2007) 176 A Crim R 1 at [58]-[61]: Victim impact statements which are unsworn, untested, and not impartial cannot be given substantial weight in the fact finding exercise where the matter of aggravation must be proved beyond reasonable doubt; following R v Slack [2004] NSWCCA 128 at [62] per Sperling J.
b) The offence was not part of a planned or organised criminal activity.
c) There was provocation
d) There was legal duress
e) The offender has no prior record.
f) The offender is of good character.
g) The offender is unlikely to re-offend.
h) The offender has good prospects of rehabilitation supported by his prior history, his work ethic, his family support and the nature of, and reason for, the offence.
i) The offender has shown remorse- but only if (i) there is evidence of an acceptance of responsibility by the offender & (ii) the offender has acknowledged any injury loss or damage caused or made reparations or both.
j) The offender was not fully aware of the consequences of his actions because of the offender's age or disability (eg the depression he was suffering), which affected his judgement so much, that he lost control of his proper reasoning processes. See R v Way at [86]; cited in R v AJP [2004] NSWCCA 434, (2004) 150 A Crim R 575 at [13]
k) There was a plea of guilty: see section 22.
l) Degree of pre-trial disclosure under section 22A.
m) The offender assisted the police: see s 23.

The term 'Objective Seriousness' now applies to SNPP cases and the correct term to use in cases where there is no SNPP is 'Seriousness of the Offence'. This means that the question of where the offence lies in relation to midrange etc does not have to be determined as such in non-SNPP cases but the sentencing Judge is required to determine the objective and subjective factors of the case, determine the seriousness of the penalty from that and decide the type and term of punishment: Sivell Andrew John v R [2009] NSWCCA 286 per McClellan CJ at CL at [5], Fullerton J at [32]. The maximum penalty, the features of the offence & the circumstances of its commission are relevant to this assessment on a 'broad gradient of seriousness'.



R v Way (2004) 60 NSWLR 168, [2004] NSWCCA 131
R v Wickham [2004] NSWCCA 193
R v Hopkins [2004] NSWCCA 105
R v Street [2005] NSWCCA 139: Specific attention should be given to each matter under the section to ensure that double counting of features which are elements of the offences or part of guideline judgements ( Henry) does not occur. Also in R v Murphy [2005] NSWCCA 182

It is submitted that the following principles apply to these matters.

a) Sections of the Crimes Sentencing Procedure Act which must be considered during sentence are sections 3A, 21A, 22, 22A and 23. Way at paras [42]-[44]
b) Then section 44 must be looked to for special circumstances par 46
c) The discretion in sentence still remains: Second Reading Speech as cited in Way at [49]. Decision in Way at [55]
d) Section 21A specifically preserves principles of sentencing: Way at [55]-[57], but these factors are not an exhaustive code: s 21A(1)(c), Way at [103] and the usual relevant subjective factors also apply: at [104].
e) A plea will attract the appropriate level of discount: Way at [68]-[71]
f) It is the intuitive assessment of the facts, which will allow experienced Judges to determine what constitutes an offence in the middle of the range or indeed where the offence falls on the scale of seriousness: Way at [72]- [83]
g) The dichotomy between objective matters relevant to the offence and subjective matters relevant to the offender which go to the punishment of that offender but which do not form part of the assessment as to the objective seriousness of the offence itself must be considered: Way at [90]-[99]

In R v AJP (2004) 150 A Crim R 575; Simpson J, supported by Adams J and Howie J, stated that a number of propositions emerge from Way and subsequent cases in relation to Standard Non-Parole Periods cases. Those principles might be applied in cases with no standard non-parole period as follows:

i. The sentencing Judge by assessing the objective gravity of a matter applies the experience of the Courts to intuitively determine what the midrange of offending is for any charge; [74]-[77]
ii. The factors affecting the objective gravity of an offence include the actus reus, the consequences and the factors relating to mens rea such as motivation, mental state of illness or any related disability. The offender's subjective features do not affect this evaluation; [85]-[86] (See also Regina v Deng [2007] NSWCCA 216 at [68] where James J cited this passage.)
iii. A conclusion that an offence is 'common' or 'typical' does not mean the offence falls within the middle of the range of objective seriousness: [101]
iv. The fact that an offence of a particular kind occurs frequently does not mean that the particular offence under consideration is objectively serious; [101]-[102]

Simpson J said at [14] nothing in the Legislation requires a court, which finds that an offence is within the middle of the range to fix the SNPP. Possible reasons for departing from the SNPP are extensive, as s21A makes clear. This assertion while being made in the context of a SNPP case underlines the width that section 21A leaves to a Judge's discretion on sentence.



R v Way (2004) 60 NSWLR 168, [2004] NSWCCA 131
R v Johnson [2004] NSWCCA 140
R v Tuncbilek [2004] NSWCCA 139
R v Dodd [2004] NSWCCA 374: on plea SNPP is a reference point
R v Winn [2007] NSWCCA 44: SJ did not follow the requirements of Way's case at [117]-[124]. The CCA departed from the SNPP and gave reasons at [41].

Principles to Apply

As a result of R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168, it is submitted that the following principles apply to these matters.

a) Sections 54A and 54B of the Crimes (Sentencing Procedure) Act 1999 must be considered in conjunction with sections 3A, 21A, 22, 22A and 23: Way at [42]-[44]
b) Then section 44 must be looked to for special circumstances: Way at [46]
c) The discretion in sentence still remains: Second Reading Speech as cited in Way at [49]. The decision in Way affirmed that settled principles of sentencing practice and the discretion, which is essential to any system calling for individualised justice are not departed from as a result of SNPP's:Way at [55] The Court may depart from the fixed period, but must give reasons for so doing (s.54B(4), Way at [49]. It is not enough to merely pay lip service to the section. Adequate reasons, which identify the factors relied upon for departing from the SNPP, the weight to be accorded to them and their role in determining the structure of the sentence must be provided as required by s 54B(4 ): R v Zegura [2006] NSWCCA 230 at [46].
d) Section 21A specifically preserves principles of sentencing, ( Way at [55]-[57]), but these factors are not an exhaustive code, (s21A (1)(c), Way at [103]) and the usual relevant subjective factors also apply ( Way at [104]).
e) The new penalties do not fetter a sentencing judge from looking to and applying a range of circumstances that would justify a departure from the standard non-parole period: Way at [58]-[59], [66]
f) The section applies to middle-range cases where the offender was convicted after trial: Way at [68]
g) A plea will attract the appropriate level of discount Way [68]-[71]
h) It is the intuitive assessment of the facts, which will allow experienced Judges to determine what constitutes an offence in the middle of the range: Way at [72]- [83]
i) The dichotomy between objective matters relevant to the offence and subjective matters relevant to the offender which go to the punishment of that offender but which do not form part of the assessment as to the objective seriousness of the offence itself must be considered: Way at [86]-[99]. See also R v Lindstrom [2008] NSWCCA 160 at [47] point 5 (Crown appeal on inadequacy in a solicit to murder case.)
j) At [117]-[124] the approach suggested to Judicial Officers to s 54B is summarised.
k) It is not correct to commence the assessment of the seriousness of a standard non-parole period offence by starting at the specified period and then to increase or lower it depending upon objective and subjective matters: Way at [131]

On a plea of guilty the SNPP is a reference point: R v Dodd [2004] NSWCCA 374

In R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575, a sexual assault case; Simpson J, supported by Adams J and Howie J, stated at [13] that the following propositions (summarised) emerge from Way and subsequent cases in relation to Standard Non-Parole Periods:

i. The SNPP need not be set if the offence does not fall in the middle of the range of objective seriousness for offences of that kind; [67]
ii. The SNPP period applies to a conviction following a trial and need not apply to a plea of guilty; [68]
iii. The sentencing Judge by assessing the objective gravity of a matter applies the experience of the Courts to intuitively determine what the midrange of offending is for any charge; [74]-[77]
iv. The factors affecting the objective gravity of an offence include the actus reus, the consequences and the factors relating to mens rea such as motivation, mental state or mental illness or any related disability. The offender's subjective features do not affect this evaluation; [85]-[86]: See also Regina v Deng, (2007) 176 A Crim R 1 at [66]-[69], where the principles are set out and the background to the offence was said to be relevant to determining the objective seriousness of the offence as this went to motivation.
v. A conclusion that an offence is 'common' or 'typical' does not mean the offence falls within the middle of the range of objective seriousness: [101]
vi. The fact that an offence of a particular kind occurs frequently does not mean that the particular offence under consideration is objectively serious; [101]-[102]
vii. The SNPP is a reference or guidepost in sentencing even though the SNPP is to be departed from. [122]

Simpson J said at [14] nothing in the Legislation requires a court, which finds that an offence is within the middle of the range, to fix the SNPP. Possible reasons for departing from the SNPP are extensive, as s21A makes clear.

See the following cases:

Vu v R [2006] NSWCCA 188 where Hall J sets out the collected principles at [27]-[35]
R v Tory and Tory [2006] NSWCCA 18 ( aggravated break and enter and commit AOABH)
Regina v Deng [2007] NSWCCA 216 (wound with intent to inflict GBH)

In the standard non- parole murder cases of R v CB & IM [2006] NSWSC 261 at [116] Buddin J sets out the points from Pellew's case in his Judgement on sentence as the principles to be applied.

In MLP v Regina [2006] NSWCCA 271, 164 A Crim R 93, at [32] Kirby J sets out Simpson J's points as a helpful distillation of the principles emerging from Way's case.

Versluys v R [2008] NSWCCA 76: [44] is a murder case where McClellan CJ at CL extracts the same points.

In R v Burgess [2006] NSWCCA 319 the Court examined the relevance of the SNPP after a plea of guilty. There was a failure to identify the level of offending, a failure to give reasons for departing from SNPP and the sentence was inadequate. The case involved the supply of commercial quantity of methylamphetamine. A sentence of 4 yrs NPP of 3 yrs increased to 8 yrs NPP of 5 * yrs.

Mullato v Regina [2006] NSWCCA 282 is a case where Spigelman CJ referred with approval to Simpson J in AJP and her point (iii) at [30] that determining whether an offence lies objectively in the middle range of objective seriousness differs little from the requirement to determine the objective seriousness.

More recently in SKA v R; R v SKA [2009] NSWCCA 186 at [129]-[136] Simpson J explained the correct approach to SNPP matters by again referring to Way's case at [76], [133] & [134]. Her honour emphasised the distinction between the objective seriousness of the offences and the circumstances of the offender at [135].

She explained the sequential steps involved in sentencing for SNPP matters at [136] as follows:

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;
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 a reference point. iii. Four Issues to Address Where a Sentence of Imprisonment is Necessary

In MLP v Regina [2006] NSWCCA 271; 164 A Crim R 93, Kirby J (Grove J & Hislop J agreeing) at [33] stated that there are four issues, which a Judge must address at some point before imposing a custodial sentence. These need not be addressed in any particular order (at [34]), but the Judge should reach a provisional sentence and then stand back and review it using the SNPP for assistance (at [35]), before arriving at the final sentence.

i. What is the appropriate term of imprisonment having regard to the offence and the circumstances of the offender? Assistance may be found in the maximum penalty, the statistics and similar cases.
ii. Is the offence in the mid range of objective seriousness? Objective (including the offenders state of mind), but not subjective s21A matters are relevant and an intuitive analysis is undertaken: see Way at [74]-[77], AJP at [13] point iii, Chisari [2006] NSWCCA 19 at [32] (SNPP case following a trial).
iii. Are there subjective matters mentioned within s 21A as well as common law matters (eg. service of sentence on protection, youth, prospects rehabilitation etc) which provide reasons for departing from the SNPP.
iv. Do special circumstances exist? What adjustment to the total sentence or the NPP is required bearing in mind the minimum term which justice requires the offender to serve?

See Darrigo v Regina [2007] NSWCCA 9 at [54]-[56] and R v Barker [2009] NSWCCA 225 [42], which both set out these principles from MLP. See also Mencarious v R [2008] NSWCCA 237, 189 A Crim R 219, and Louizos v R [2009] NSWCCA 71 at [97] where these principles were approved. Studdert AJ in R v O'Connor [2008] NSWSC 1297, a murder case, extracted at length the principles of Simpson J in AJP as Kirby J had presented them in MLP noting the view of Kirby J at [40] that they were ' a helpful distillation of the principles in Way'. He also set out at [41] Kirby J's four questions in MLP and his direction to sentencing Judge's to apply Way at [124] by arriving at a provisional sentence and then stepping back to review it.


In written submissions it is of assistance to the court and to you, as the legal representative, to formulate and include the points in the case which might go to establishing the 'objective seriousness' or the 'seriousness of the offence', whether or not your case has a SNPP or not. I include an example of submissions made for one offender below.

Aggravated Break Enter and Steal

Submission: The submission made to the Court is that the circumstances of this case are below a middle range case. This is not a case where the SNPP should apply because of the plea of guilty and nature of the offence. In assisting the Court to determine the objective seriousness of the offending behaviour, the following points are submitted to be relevant;

a. The offence was not committed against the personal residence of the victim but a one-room weekender.
b. The victim was at not at the premises at the time: Morris, Morris & Snelson v R [2008] NSWCCA 182 at [8]-[9].
c. There was malicious damage to the window at the point of entry and of a cupboard occasioned in breaking it open to access some of the guns. It is a factor in determining a global assessment of the nature of the criminality.
d. The offence was an opportunistic enterprise, which arose while the two offenders were driving in an isolated mountain area.
e. The taking of firearms and ammunition is serious and the law views firearms offences seriously. The Firearms Act is designed to prevent and to regulate the dissemination of firearms into the community
f. The offenders did not dispose of any of the weapons and appeared to use them in an immature way to shoot at targets such as tree branches rather than animals.
g. The offence covers serious indictable offences with penalties ranging from 5 years to life imprisonment. Larceny is often at the lowest end of this scale: R v Huynh [2005] NSWCCA 220 at [27].
h. The fact that one of the firearms taken was the firearm, which was discharged resulting in a death is a serious aspect relevant to point e.


The sentencing process has always relied upon precedent and the range of penalty established in like cases to guide the sentencer into the applicable range of sentence for a given offence. Guideline judgements have added a requirement to this process because they have to be taken into account. The advent of statistics kept by the Judicial Commission since the early 1990's has provided an additional tool available to judicial officers and lawyers. Statistics have also generated decisions about their applicability and the extent to which they may be relied upon. I make the following points about this.

Pattern of Sentencing

In some cases there are dangers in examining the sentences imposed in cases of apparently similar offences and seeking to derive principles which might later be applied in other cases because they are looked at only quickly in a brief factual presentation and their facts will always be different: Dodge (1988) 34 A Crim R 325 at p 329 citing Barber (1976) 14 SASR 448. See also R v Hayes (1987) 29 A Crim R 452 at 463.

The ascertainment of the general pattern of sentences for the offences, which a court has under consideration, is an important aspect of the sentencing process: R v AEM, KEM, and MM [2002] NSWCCA 58 at [105]

The courts are required to dispense even-handed justice. R v AEM, KEM, and MM at [106]

The court system must maintain both internal consistency and external respect. R v AEM, KEM, and MM at [107]

The role played by the pattern of sentences informs the discretion which a judge must exercise in the individual case. R v AEM, KEM, and MM at [108]

The use of statistics is one tool which a court can use to assist it in its task of ascertaining the pattern of sentences

Statistics: Are of some value in determining the range of penalty and giving guidance, but they cannot determine the appropriate sentence in each case, and they do not reflect the individual factors which are important for each case. Care must be taken, and the courts should exercise some caution and use the statistics as a guide only, as in some cases the available range may sometimes not be accurately stated.

R v Morgan [2003] NSWCCA 230, 57 NSWLR 533
R v Pitt [2001] NSWCCA 156
R v Lao [2003] NSWCCA 315
R v Hoerler [2004] NSWCCA 184, at [35], (2004) 147 A Crim R 520
R v Way [2004] NSWCCA 131, 60 NSWLR 168 at [140]

In R v AEM, KEM, and MM [2002] NSWCCA 58 the court warned that

By their very nature statistics are a blunt tool and are least likely to be useful where the circumstances of the individual instances of the offence vary greatly such as in s 61J and manslaughter: at [113]
There is an inbuilt limitation in the statistics, which reinforces the need for the exercise of caution in their use. Only the principal offence for each finalised matter is retained for use in JIRS and this is the offence with the most severe penalty.
It was not the court's function to sentence at the median range of sentences, but to sentence the particular offender by the application of correct sentencing principles: at [116]
Often greater guidance can be obtained from a review of comparable cases: at [117]

See further R v Georgiou [2005] NSWCCA 237 at [25]-[28] per Hulme J



In R v Holder (1983) 3 NSWLR 245 at 260, Street CJ described the principle as follows:

'... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ..'.

To comply with requirements in R v Pearce (1998) 103 A Crim R 372, it is submitted that an appropriate sentence should be fixed for each offence without reference to the other matters then adjustments should be made to take into account the principles of totality and the need to achieve a proper outcome by a process of accumulation, partial accumulation or concurrence of sentences.

Killick (2002) 127 A Crim R 273
R v Morgan [2003] NSWCCA 230, 57 NSWLR 533
R v Pitt [2001] NSWCCA 156
R v VU [2003] NSWCCA 316
Johnson v R [2004] HCA 15, 205 ALR 346, 78 ALJR 616: follows the NSW cases on Pearce
R v AEM, KEM, and MM [2002] NSWCCA 58 at 70: the court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences
R v MMK [2006] NSWCCA 272, 164 A Crim R 481, which cites Markarian as quoted above, refers to proportionality at [11] and cites Holder at [12] as to totality.


Sheehan [No2] v R [2006] NSWCCA 332 involved the need to re-sentence after a successful appeal left only one count. The Court at [9] cited the High Court in R H McL v R (2000) 203 CLR 452 where three Judges quoted at [32] from Brennan J in Ryan v R (1982) 149 CLR 1 at pp22-23 as follows:

'When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted . If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the conduct of the same of similar character, rather than the several acts of omissions constituting the several offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and when custodial sentences are imposed by ordering that they be served either concurrently or cumulatively'.

Difficulty in the sentencing exercise can arise however in sentencing an offender who has been charged with multiple offences and in attempting to comply with the Pearce principle. Strict application of the principle may result in double punishment of the offender for similar or factually similar offences. For discussion about this see R v Itamua [2000] NSWCCA 502 per Smart AJ at [46] and R v Gorman [2002] NSWCCA 516, 137 A Crim R 326 per Sperling J at [49]. The approach to be used is the partial accumulation, as well as the accumulation, of blocks of concurrent sentences for similar matters upon other different types of matters. Some of the relevant cases are listed below.

Tomich (2002) 127 A Crim R 234
R v Carr (2002) 135 A Crim R 171 at [35]
Johnson v The Queen [2004] HCA 15, 205 ALR 346, 78 ALJR 616
R v Hammoud (2000) 118 A Crim R 66 at pp 67 & 76
In R v AEM, KEM, and MM [2002] NSWCCA 58 at [67] the Judge failed to consider the sentences individually and then apply the principles of totality, including as integral to that process, considering whether the sentences should be served concurrently or whether they should be accumulated in whole or in part.
R v Knight [2005] NSWCCA 253, 155 A Crim R 252 at [73]-[78]
R v Hamid (2007) 164 A Crim R 179 at [133]: domestic violence case with three victims, 9 counts and 13 Form 1 matters - the Judge failed to select individual penalties for the different victims with insufficient accumulation of sentences.

In Cahyadi v The Queen (2007) 168 A Crim R 41 Howie J said

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.[28] This issue was discussed in R v MMK [2006] NSWCCA 272 where the Court stated:-
One of the limiting principles that constrain a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616'.

The passage from Cahyadi was quoted in Dousha v R [2008] NSWCCA 263 at [53]. James J set it out in CPW v R [2009] NSWCCA 105 at [71] and added the passage from Holder's case set out above.

The Form 1

Attorney General's Application s37 Crimes (Sent Procedure) Act [2002] NSWCCA 518, (2002) 56 NSWLR 146, 137 A Crim R 180 at [42]-[44]: See the Headnote for a summary of the principles of sentencing taking into account other offences set out on Form1.

As a result of the case last mentioned above it is submitted that the following propositions apply:

The court is sentencing for a particular offence and as it does so it takes into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence.

The Court gives weight to personal deterrence to reflect the course of conduct involved

The Court takes into account the communities right to extract retribution for serious offences for which no punishment has been imposed.

The weight to be given to these two aspects is limited by the maximum penalty involved in the principle offence and the application of the principal of totality.

The Court will rarely ever quantify the weight given in the sentence to the Form 1 matters.

As long as the most serious offence, or in the case of similar offences, an appropriate range of offences is included in the indictment, there is no objection to the inclusion of some offences on a Form 1

R v Morgan (1993) 70 A Crim R 368 at 371-372
R v Bavadra (2000) 115 A Crim R 152 at [30]-[31]
R v Barton (2001) 121 A Crim R 185 at [35]
R v Harris (2001) 125 A Crim R 27 at [23]
R v Tomich (2002) 127 A Crim R 234
R v Morgan [2003] NSWCCA 230, 57 NSWLR 533
R v Baverstock [2003] NSWCCA 228

The procedure required must be followed in Court. The form must be signed by the offender and then handed up to the Judge. The judge must confirm in open court the offender admits his guilt to the specified charges and that the judge is asked to take those matters into account on sentence. The judge must nominate on which charge the Form 1 matters will be taken into account. For a case where this was not done see R v Wilkinson [2004] NSWCCA 468 at [28]-[30]


a) THE PLEA OF GUILTY What discount should apply?

Section 22(1) of the Crimes (Sentencing Procedure) Act requires the plea to be taken into account. This section is in substantially the same terms as section 439 of the Crimes Act, which it replaced.

In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

i. The Utilitarian Value of the Plea

The utilitarian value of the plea is determined by a consideration of the timing of the plea and the nature of the matter pleaded to. The significance of the timing of the plea was made clear in the five bench guideline judgement of R v Thomson, R v Houlton (2000) 49 NSWLR 383, (2000) 115 A Crim R 104 [151]-[155] per Spigelman CJ and Wood CJ at CL at [163]. The utilitarian value of the plea should be within the range of 10-25%. If a trial would have been lengthy and a number of complex aspects would have been at issue, then this would be relevant to the value of the plea: at [154], [156]. See also R v Gorman (2002) 137 A Crim R 326 at [62]-[67] per Sperling J. The fact that a trial is not a complex or lengthy matter does not devalue the discount applicable: R v Sutton [2004] NSWCCA 225 at [13]

In his Judgement in Thomson & Houlton Spigelman CJ cited at length the Judgement of Hunt CJ at CL in Winchester v The Queen (1992) 58 A Crim R 345 at 350. In Winchester Hunt CJ at CL distinguished between the relevant factors of contrition and those he referred to as purely utilitarian factors. The utilitarian factor referred to the cooperation in the saving of time and cost involved in a trial. It is a factor of mitigation in its own right, independent of contrition. The extent of the leniency afforded as a result of a plea on this basis was said to depend to a large degree upon 'just when the plea of guilty was entered or indicated (and thus the savings effected)'.

In R v SY, R v KS [2003] NSWCCA 291, in remarks supported by Whealy J, and Ipp JA, Howie J at [85]-[88] decided that a plea of guilty offered by SY to an armed robbery charge after he had been committed for trial was not made at the earliest opportunity. SY had waited until two more serious charges related to the robbery matter were reduced before pleading to all of them, when he could have pleaded to the armed robbery charge from the outset. Howie J pointed out at [86] that situations vary and the Judge should look at the situation realistically in determining the value of the plea. Howie J also referred to R v Dib [2003] NSWCCA 117, where it was said that the fact that the plea was offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given.

More recently in Sullivan & Skillin [2008] NSWCCA 296, where offences occurred between 2000 & 2003 and charging took place in May 2004, the committal for trial in April 2005 and a trial date fixed for July 2007, pleas entered following negotiations in July 2007 resulted in a 15% discount. An appeal on the grounds that 20% was appropriate failed and Howie J noted after referring to R v SY that the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial to enter into negotiations. An accused might wait, as a matter of tactics but in doing so will lose the utilitarian value of the early plea. An accused knows what they have done and can always volunteer this to clear the record and receive a discount under Ellis.

These observations prompt some reflection upon basic principles and the High Courts decision in Cameron v The Queen [2002] 209 CLR 339. The appellant had been caught in an airport with tablets. The original supply charge alleged that they were in fact Ecstasy. On analysis the drug was found to be speed. A letter offering to plead to the offence with the drug amended was sent and the plea was entered in the Local Court and the matter committed for sentence. The full discount under Western Australian law was not allowed on sentence and indeed he was allowed only 10%. In the WA CCA the appeal was dismissed as the appellant could have indicated a plea to the unamended charge and at that time stated the nature of the drug he did have. The High Court held that the WA CCA was in error in holding that the appellant could have pleaded guilty before the charge was amended to correctly state the substance, which he had in his possession. It was also in error in holding that there had been no saving in the Magistrate's court as a preliminary hearing had not been required.

The majority, Gaudron, Gummow & Callinan JJ held at [23] that it was not reasonable to expect the appellant to plead to an offence, which wrongly particularised the substance to which the charge related. More importantly at [24] the appellant should not have been expected to acquiesce in procedures, which might result in error in the court record or in his own criminal record. Kirby J in his own Judgement, concurring with the majority, stated at [77] that the criminal justice system is accusatorial and it is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge. The Majority and Kirby J approved and followed the Judgement of Ipp J in Atholwood v the Queen (1999) 109 A Crim R 465 at 468 in a passage set out in Cameron's case at [21]. The import of what was said is that, where an accused person who intends to plead guilty to a certain charge, maintains a plea of not guilty to all charges, some of which are ultimately dropped, it should not be assumed that the delay in pleading arises from absence of remorse or that in reasonable terms the plea of guilty was not at the earliest possible opportunity.

A final note from Cameron's case concerns the issue flagged by Howie J in R v SY & KS at [86] that when considering the timing of the plea, circumstances will vary and a Judge should look at the situation realistically in determining the value of the plea. Howie J had more to say on this issue in Borkowski [2009] NSWCCA 102, a case set out below. In Cameron, Kirby J gave some helpful consideration of what might be looked at in this respect. He said at [80]:

'There are many factors that can affect the fixing of that time when it is reasonable to expect that the accused person who intends to plead guilty will do so. They include any delay on the part of the prosecution in finalising its charges; any difficulties that arise in securing adequate instructions from the accused, especially if the accused is in custody; any limitations on the resources of Legal Aid and it lawyers representing the accused; and the absence of a clearly stated and consistently applied discount for a plea of guilty on the part of sentencing judges'.

Kirby J cited Thomson & Houlton at [19], [20] and [21] as a basis for his last made assertion. The survey set out there conducted in 1999 amongst NSW District Court practitioners, of whom I was one, gave five reasons for the delay in the entry of pleas at that time. These were the late decision by the Crown to accept a plea to a lesser count, being unable to discuss the matter with a Crown, being unable to obtain firm instructions, clients changing instructions just before trial and a lack of perceived benefit in entering an early plea.

Both the majority in Cameron's case at [13] and Kirby J at [65] and [67] note the right of an accused to go to trial and not be penalised for not pleading guilty. The majority view at [14] was that the way to reconcile this problem was to emphasise the utilitarian value of the plea 'in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing'.

It is important to note that the strength of the Crown case is not relevant to the utilitarian value of the plea, but relates to the level of contrition: R v Thomson, R v Houlton (2000) 49 NSWLR 383, (2000) 115 A Crim R 104 at [136]-[137] where Spigelman CJ followed Hunt CJ at CL in Winchester at p350. He said, 'A 'recognition of the inevitable' may qualify the extent of genuine contrition. It does not qualify the utilitarian value of the plea'. see also R v Sutton [2004] NSWCCA 225 at [12].

The case of R v Harmouche [2005] NSWCCA 398, (2005) 158 A Crim R 357 per Hulme J at [39]-[41] held the full discount does not apply in relation to a plea to a lesser charge made after negotiation following committal for trial.

In R v Hasan [2005] NSWCCA 21 the Applicant volunteered himself to police and then made admissions. The Judge said that the plea was limited by a strong Crown case, part of which included the applicant's admissions. It was held his admissions 'considerably enhanced' his pleas of guilty.

In Ahmad v Regina [2006] NSWCCA 177; the appellant was committed to stand trial for murder. He later pleaded guilty to manslaughter. This was not an early plea as he could have offered to plead to manslaughter early without prejudice to a murder trial at [17]-[20]. The full discount will apply where the offer was made and rejected: R v Dib [2003] NSWCCA 117, R v Nguyen [2005] NSWSC 600 at [52].

Darrigo v Regina [2007] NSWCCA 9 at [18] re-affirmed the policy of the CCA to encourage sentencing judges to make the process of giving credit for pleas of guilty transparent. This is best achieved by the judge specifying a notional starting point before specifying the discount or discounts allowed so that the offender can see that the discount has actually been taken into account in the sentence. In the recent case of R v Robert Borkowski [2009] NSWCCA 102 Howie J said;

[31] 'As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range'.

ii. Remorse and contrition.

Practitioners should note the recent addition to section 21A (3) (i) of the requirement to prove demonstrated remorse. If the 25% allocated to the utilitarian value of the plea represents the usual maximum discount, what is happening to those other factors of contrition and remorse and that of the saving of witnesses from the stress of having to give evidence? Practitioners are referred to the full passage of the Judgement of Street CJ in R v Holder (1983) 3 NSWLR 245 at 258 where he said in part,

'It is well established that contrition is in itself a factor weighed in the matter of sentence in favour of accused persons. This is particularly so where the contrition is manifested in a plea of guilty. It is impossible, however, to lay down arbitrary rules regarding the weight to be attributed in any given case to the factor of contrition manifested in a plea of guilty. In examining the extent to which a plea of guilty can take on the colour of contrition, much may depend upon the time and circumstances in which the plea was advanced'.

The usual utilitarian discount does not take into account this aspect of the value of the plea: Spigelman CJ at [162] of Thomson & Houlten. Spigelman CJ at [3] noted that the practice of the CCA was that a plea of guilty should attract a lower sentence for three reasons. These are the remorse & contrition manifested, the utilitarian value of the plea, and thirdly he refers to particular cases, especially sexual assault cases involving children, where there is a particular value in avoiding the need to call witnesses, particularly victims to give evidence.

A discount of up to 35% for all aspects is available in particular cases: At [162] The Chief Justice at [116]-[122] of Thomson & Houlten discussed these aspects. He referred at [118] to the diminution of sentence on the basis of contrition and not because of the plea of guilty itself. The issue was examined without a result in R v Scott [2003] NSWCCA 286 by Howie J. The plea was late and a discount of 25% was allowed for the plea and the remorse associated with it as well as the genuinely expressed expressions of contrition and remorse. The appeal was pursued on the basis that there should have been a discount greater than 25% as this only related to the utilitarian factor. The appeal was dismissed. The guideline judgement did not require a discount of 25% to be given for the utilitarian aspect alone at [28]. Here the plea was not made at the earliest time, as the appellant had pleaded guilty in the District Court and the offer to plead came 9 months after the commission of the offence. To get to 25% the other matters of contrition had been taken into account.

In R v M.A.K, R v M.S.K. [2006] NSWCCA 381, 167 A Crim R 159 the Court said at [42] 'Rarely, if ever, at the present time does a sentencing court give a rolled up discount for all aspects of the plea of guilty' At [43] they cited R v Salieb [2005] NSWCCA 85 for the proposition that Judges should indicate the discount for the utilitarian value but not for remorse & contrition as this aspect relates more to the subjective case and could be double counted.

The cases of Wilkinson [2004] NSWCCA 468 at [32], [33], [34] and Campbell [2001] NSWCCA 89 at [23] confirmed the importance of this factor on sentence re-affirming a long line of cases which include Holder and Johnston (1983) 13 NSWLR 245, 3 A Crim R 375 at p 387; R v Skinner (1993) 72 A Crim R 151 p 156 and R v Fisher (1989) 40 A Crim R 442 at 444. See Siganto (1998) 194 CLR 656; 105 A Crim R 184 at [22] and R v Thomson, R v Houlton (2000) 49 NSWLR 383, (2000) 115 A Crim R 104 at [3],[4], [14], [116] - [122] and [162].

Practitioners should be aware that they have an onus to establish the contrition and remorse of the offender. In R v Araya [2005] NSWCCA 283, 155 A Crim R 555, no evidence was given on sentence as to the offender's contrition and remorse. Statements in reports are not sufficient: R v Palu (2002) 134 A Crim R 174 followed.

In Thomson & Houlton at [116] Spigelman CJ noted in particular that 'genuine remorse' would indicate that personal deterrence might not need to be given the same weight and that it indicates the prospects of rehabilitation are good. In R v Newell [2004] NSWCCA 183 at [27] Howie J cites this passage from Thomson & Houlton.

I note the remarks on sentence of Judge Sides, in the Campbelltown District Court on the 18 th of December 2009, in the sentence of R v S P B, a child, for the offence of manslaughter to a 4-year section 9 bond. Leniency was extended based on the early plea and the fact that the young offender had established a compelling case of genuine remorse.

iii. The Ellis Discount

There sometimes should be a further discount on the basis of R v Ellis (1986) 6 NSWLR 603 at p 604 D

'When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it is unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.

The case of Campbell v Regina [2007] NSWCCA 137; was not an Ellis case. This was not a case where the offences, but for the offender's disclosures, would have remained undetected. In such a case Ellis was not applicable. Reference was made to R v Dodd (1991) 57 A Crim R 349 at 351 and Ryan v the Queen (2001) 206 CLR 267 at 272-3 per Mc Hugh J.
In Lewins v R [2007] NSWCCA 189; the Ellis discount was explained at [15] & [16] and guidance given as how it is to be applied at [17]. Certainly no separate quantified discount will be given where it applies and the application of the case will be a matter of degree at [18]. The factors involved overlap with other aspects of mitigation at [19].

b) Custody

Sentence should commence on the date the offender went to custody where the custody is referrable to the offence being dealt with.

For Commencement of sentence see

Killick (2001) 127 A Crim R 273
R v Newman, Simpson [2004] NSWCCA 102, 145 A Crim R 361 per Howie J
R v Youkhana [2005] NSWCCA 231
Bushara v The Queen NSWCCA 8
Deron v R [2006] NSWCCA 73 allowance may be made for pre-sentence custody by deduction from the sentence or by backdating it, so long as it is clear that it was taken into account; Crimes (Sentencing Procedure) Act 1999, ss 24, 47
R v McCabe [2006] NSWCCA 220, 164 A Crim R 344: taking into account pre-sentence custody �€” ordinarily the correct approach is to backdate the sentence rather than deduct the period from the sentence
Harrison v Regina [2006] NSWCCA 185 [63], follows Deeble (CCA unrep 19-9-1991); it is not enough to state a period of custody has been taken into account. The sentencing judge must show how it has been taken into account, preferably by backdating the sentence.

For commencement of sentence when balance of Parole is being served whilst waiting sentence see: Callaghan v R [2006] NSWCCA 58, 160 A Crim R 145: The matter is a discretionary one and the authorities are collected in this case.

c) Onerous Bail Conditions

The restriction of an offender's freedom on bail, although it is an alternative to full time custody, may operate as a curtailment of a normal life in a way that the Courts have indicated should be recognised on sentence: Bushara v R [2006] NSWCCA 8 at [27] per Howie J where he cites R v Fowler (2003) 151 A Crim R 166 at [242].

d) On Remand

In Mullato v Regina [2006] NSWCCA 282 Adams J was in the minority when he proposed a sentence of 7 years instead of 8 because of the effect of remand custody from 25 th of October 2003 to the 4 th of April 2005 (over 17 months). He said, at [71]

Remand prisoners are held in maximum security prisons and many of the programs available to sentenced prisoners are not available to them. He is presently in B classification, but this was not available to him whilst he was on remand. His progression to less rigorous classification was been significantly delayed. Where (there) is a lengthy period on remand, a mere calendar adjustment (as dating the sentence from the date of commencement of incarceration) will not fairly reflect the relative harshness of this form of imprisonment and some downward adjustment of the ultimate sentence is appropriate.

Spigelman CJ, supported by Simpson J; did not dispute this statement of the principle by Adams J. e) On Protection

Practitioners will often appear for offenders who are held in custody, or will be held in protection or strict or non-association protection. The nature of this custody and whether or not it will form a more arduous way of serving a sentence must be proved in evidence. This may require a letter from the Governor of the institution in which your client is being held, or material in a psychological assessment or PSR coupled with evidence from your client on sentence.

R v Miski [2002] NSWCCA 392
R v Wahabzadah (2001) NSWCCA 253: protection & first offender
R v MacDonnell (2002) NSWCCA 34, 128 A Crim R 44: the factor applies to length of whole sentence
R v Totten (2003) NSWCCA 207:relevance to Child sex offences.
R v Wong [2003] NSWCCA 261: credible evidence required to prove protection.
R v Mostyn [2004] NSWCCA 97 [179], 145 A Crim R 304
R v Way [2004] NSWCCA 131, 60 NSWLR 168 at [174]-[179]

In R v Durocher-Yvon (2003) NSWCCA 299 142 A Crim R 489, 58 NSWLR 581 the relevance of protective custody to sentencing was considered. A number of principles emerge:

The fact that an offender has to serve a sentence under more harsh or restrictive conditions is relevant to an assessment of the sentence as a whole rather than the length of the non-parole period. [20]
The factor of protection is relevant to special circumstances [19], but not always decisive of it and once this factor has been applied to reduce the whole sentence, it cannot be used to further to find special circumstances unless by itself or in combination with other factors the case calls for this [20]
Depending upon the type of charge and the reason for protection being asked for there are different forms of protection and difference conditions of its application [21]
Evidence should be presented, as to the type and circumstances of the protection and the effect it will have on the service of the sentence [21]-[23].
Sentencing courts will not automatically reduce an otherwise appropriate sentence on the basis that the sentence will be served on protection [23].

f) The Criminal Record

Whilst it is noted that section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 does state that an offender's record of prior convictions is to be taken into account as an aggravating feature, this is qualified by section 21A(4) which states that the Court is not to have regard to any aggravating feature if it would be contrary to any Act or rule of law to do so. The Court has stated that a record of previous convictions cannot be taken into account in an assessment of the objective seriousness of an offence. To do so would infringe the principle of proportionality. The only relevance of the record is whether it discloses that more weight is to be given to retribution, personal deterrence and the protection of the community than would be the case if that record did not exist : R v M.A.K, R v M.S.K. [2006] NSWCCA 381, 167 A Crim R 159 at [51]; R v McNaughton [2006] NSWCCA 242, 163 A Crim R 381, 66 NSWLR 566 at [24]-[25]; Darrigo v Regina [2007] NSWCCA 9 citing both cases at [32]

The Veen Principle: The following passage from Veen (No.2) (1998) 164 CLR 465 at 477 was quoted in the following cases: R v Bolter [2002] NSWCCA 435 at [38], R v Farrant [2005] NSWCCA 229 at [25] and R v Aboud [2005] NSWCCA 251 at [32] :

The antecedent criminal history of a criminal offender is a factor, which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty, which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Otterwell {1979} AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence, and protection of society may all indicate that a more severe penalty is warranted. 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.

See R v Way at [97] for the effect of the record, and the comments made in R v Aboud [2005] NSWCCA 251 at [31]-[34. In Aboud the following points were made;

It is impermissible to use the prior criminal history to increase the objective seriousness of the offence

It is permissible to use the prior criminal history to deny the leniency, which would be due to a first time offender because the conduct can be seen to be an aberration.

The distinction between these two situations is discussed in Veen v The Queen [No 2] (1998) 164 CLR 465 at 477.

[33] The degree to which the respondent in this matter has shown a total disregard to the sentences that have been imposed upon him for violent crime of a like kind and other violent crimes manifests a continuing attitude of disobedience of the law and total disregard for the well being of his partners. It is, in the circumstances of the respondent's history, an overwhelming view that the most severe penalty is warranted on account of retribution, deterrence, and protection of society and the moral culpability of the offender.

In my later years as a solicitor I would carry with me into the Local Court a little used High Court authority just in case a Magistrate was tempted to aggravate the facts of an offence beyond what they were, by reference to a defendant's record. In Baumer (1988) 35 A Crim R 340 at 345, the High Court pointed out in a joint judgement;

It would be clearly wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be 'kept away' for the protection of the public is open to misunderstanding. Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more. In applying a section like s 154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence.

g) Taking Subsequent Offending into Account

The relevant principle here is that offences committed after the offence for which an offender is yet to be sentenced, and for which the offender has already been sentenced, are relevant to the current sentencing exercise in that they may deprive the offender of any leniency to which they might otherwise have been entitled : R v M.A.K, R v M.S.K. [2006] NSWCCA 381, 167 A Crim R 159 at [59]

h) Circumstances of Aggravation

It is a circumstance of aggravation under s 21A (2) (m) of the Crimes Sentencing Procedure) Act that the offender was subject to any conditional liberty. This is also an aggravating feature at common law. The usual categories are that the offender was subject to a bond, on bail or on parole.

R v Gordon (1994) 71 A Crim R 459: on bail and on a recognisance.
R v Jones Unrep NSWCCA 30-6-1994 at p 9
R v Fernando [2002] NSWCCA 28 at [38]-[42]: Stanley Fernando (jnr) was on bail and on parole during the commission of a number of syringe robberies.
R v Knight [2005] NSWCCA 253, 155 A Crim R 252 at [102]-[104] 11. Suffers Mental Illness or Disorder or is Immature

The profile of those in custody includes young people, a significant number of persons with a diagnosable mental disorder and those with mood and personality disorders. The problems of youth or early drug use are often coupled with mental disorders and difficult personal backgrounds.

Mental Illness or Disorder

Principle: 'Whereas General Deterrence is a consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder..'.: R v Champion (1992) 64 A. Crim. R. 244 at p 254, citing Letteri's case. See also R v Engert (1995) 84 A. Crim. R. 67 at p71

When an offender who suffered from a mental disorder or abnormality is being sentenced, general deterrence is ordinarily a factor of less weight than usual because such an offender is not an appropriate medium for making an example to others. R v B (1993) 68 A. Crim. R. 547 at p 553;

See also:

R v Israil [2002] NSWCCA 255 at [21]-[26] especially [23]
R v Montesinos (2002) 135 A. Crim. R. 417 at [29]-[33] applying, Israil, Sivyer, Engert
R v Rodrigo Arriaza [2004] NSWCCA 4
R v Hopkins [2004] NSWCCA 105
R v Pearson [2004] NSWCCA 129: insufficient weight was give to the mental illness factor resulting in a significant reduction in penalty.
R v Krempin (2003) 142 A Crim R 56 at pp 64-66: use of prescribed medication led to the use of other drugs, depression & irrationality of thought.
R v Hemsley [2004] NSWCCA 228
R v Pitt [2005] NSWCCA 304 at [22]: relevant principles
R v Welling [2005] NSWCCA 318: applied Engert

With Drug And/or Alcohol Dependence

R v Alexander (2001) 118 A Crim R 350
R v Pavlov [2001] NSWCCA 13
R v Rodrigo Arriaza [2004] NSWCCA 4
R v Krempin (2003) 142 A Crim R 56 at pp 64-66

In John Roy Withers [2009] NSWCCA 133 at [31] the Court referred to R v Hemsley [2004] NSWCCA 228 where Sperling J said at [33] - [36]

[33] Mental illness may be relevant and was relevant in the present case in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
[36] A fourth, and countervailing, consideration may arise, namely, the level of danger, which the offender presents to the community. That may sound in special deterrence; Israil at [24].

These same principles were cited in full by Fullerton J in R v PGM [2008] NSWCCA 172, a child sexual assault case, at [47].


The younger the offender the greater the weight to be afforded to the element of youth: R v Hearne (2001) 124 A Crim R 451 at [27], R v AB [2005] NSWSC 521at [73] R v AO [2003] NSWCCA 43, 138 A Crim R 189 at [56]. This approach takes place for the same reasons that when courts are dealing with a person suffering from a significant intellectual disability the sentence imposed is often less than usually appropriate : R v Hearne at [26]

There are cases where a special allowance will have to be made for the offender's emotional immaturity: R v SDM [2001] NSWCCA 158, 51 NSWLR 530, 127 A Crim R 318, at [17], R v Kama (2000) 110 A Crim R 47 at [14 ]R v AO [2003] NSWCCA 43 at [62]. Where that immaturity is a significant contributing factor to an offence, then it may be fairly said that the criminality involved is less that it would be in the case of an adult of more mature years: R v Hearne at [25]; Braithwaite v Regina [2005] NSWCCA 451 at [24]

It is worth noting at this point while we are still with Hearne's case that at [43] the Court consisting of Powell JA, Hulme and Dowd JJ, referred to the length of sentence to be imposed of 21 years NPP 16 years upon a 19 year old young man as a result of the appeal. They made the often forgotten point that the effect of increasingly lengthy custodial sentences impacts exponentially in it's damaging effects on the offender. The decision of Hulme J in Spiteri [1999] NSWCCA 3 was referred to. They said,

'And to those who would suggest this sentence is too light, we invite attention to the following. While of course, no sentence this Court could impose could equal the harm the applicant did to Const Forsyth, for acts which might fairly be characterised as stupidity, albeit dangerous stupidity, the applicant will be incarcerated until he is, at least, almost 35. The impact of that incarceration will not cease immediately on his discharge and he will thus have very substantially lessened opportunities of a career, wife and children. That is no minor punishment and, as has been said before, the impact of a 10 year minimum term is substantially more than twice as severe as the of imprisonment for five years. Those remarks apply with more force when the sentence is of the length of that proposed here'.


The importance of not ignoring the need to consider a difficult background in relation to sentence has been re-emphasised in the case of R v Andrews [2005] NSWCCA 199 at [16]. The requirement to place suitable material in evidence before the court, was the subject of critical comment by Spigelman CJ in R v Fernando [2002] NSWCCA 28 at [53] to [69]. I appeared on sentence in that case. Appearing in the matter represented a challenge of a high order to try and get any evidence before the court. My past involvement as a Solicitor with the Western Aboriginal Legal Service and my continued representation of Aboriginal people before the courts meant that Stanley knew who I was. This history was crucial in his deciding that he would speak with me, and provide at least some instructions, particularly on the relevant aspects of his pre-teenage years. He declined to speak to a psychiatrist or a psychologist.

Spigelman CJ made some important points in the successful Crown appeal. I extract them below:

The respondent's decision to admit to all the offences as soon as he went into custody, about which he gave evidence, was an important first step towards rehabilitation and indicated an acceptance of responsibility [53]

There was no material before the Court as to the respondent's progress whilst on remand during the 6 months before he was sentenced. [54]

There was no PSR or any report from an expert such as a psychologist as is customary for the sentencing court [55]

There was no objective evidence before the court about his conduct in prison on remand and whether he might have pursued any courses pertinent to his prospects of rehabilitation [55]

There was no evidence of urine testing showing an ability on the part of a drug user to control his habit for a relevant period of time [56]

There was no evidence of the kind frequently adduced about drug and alcohol counselling. The Judge had to rely only on the 'self-serving' assertions by the Respondent in the witness box as to his intention. [56]

Even on appeal, despite an affidavit from the respondent, there was 'nothing in the nature of a detailed report from any carer or expert or prison authority as to his conduct in prison or other material that can assist the Court in determining his prospects of rehabilitation.'[60]

Fernando Cases

It is pertinent to consider R v Fernando (1992) 76 A Crim R 58 (Stanley Fernando Snr) and it's application on sentence where offenders of Aboriginal descent, and indeed non-Aboriginal people, are before the court. I note that at present there is a reference before the Sentencing Council in relation to the application of Fernando's case in sentence proceedings. The document prepared in relation to that reference attempts to collect the higher court cases on the subject.

Again via the vehicle of R v Fernando [2002] NSWCCA 28 Spigelman CJ made some pertinent observations of interest to practitioners. The points made by His honour are:

Even though the commission of serious offences by an offender with the respondent's record called for a substantial period of imprisonment in order to protect the community, such considerations of deterrence are 'properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime.'[64]

'Such considerations are present in the case before the Court. The Respondent has a person history of deprivation that is, regrettably, far too common amongst young people, particularly Aboriginal youth'[65].

'The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership or the particular offender or an ethnic or other group'.[66].

When principles of general application are taken into account, the process involves consideration all of the facts relevant to the circumstances of the offence and the offender. This includes facts, which may exist by reason of the person's membership of a particular group. [66]

The principle of equality before the law requires sentencing to occur without differentiation base upon racial or ethnic background. An offender is not entitled to any special leniency by reason of his or her Aboriginality. [67]

His honour referred to Fernando's case and four other related cases when he said, 'Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others.'[67]

He also observed that the circumstances of this case, where young people suffer deprivation in their person life and have succumbed to addiction to heroin via marijuana leading to serious offending to acquire funds to feed their habit are repeated across the entire community. [69]

See also

R v Russell (1995) 84 A Crim R 386
Stone (1995) 84 A Crim R 218
R v Powell [2000] NSWCCA 108 at [15] [17]: the Fernando background was established on the evidence and the Judge made no mention of the case nor the principles established there and in later cases. Nor did she mention the entrenched pattern of disadvantage and it's effects upon his upbringing. This was an error. The Court re-sentenced the applicant.
R v Ceissman (2001) 119 A Crim R 535
R v Darren Morgan [2003] NSWCCA 230, 57 NSWLR 533
R v Pitt [2001] NSWCCA 156:
R v Newman, Simpson [2004] NSWCCA 102; 145 A Crim R 361: in this case there was no evidence before the sentencing judge regarding the Aboriginality of the offenders
R v Steven Brian Williams (2004) 148 A Crim R 325 at p 333-334
R v Kelly [2005] NSWCCA 280, 155 A Crim R 499 at [16]-[20], [52]-[57]
R v Knight [2005] NSWCCA 241 at [78]-[81]: supportive family life and Fernando did not apply.
Munro v Regina [2006] NSWCCA 350
Waters v Regina [2007] NSWCCA 219: Fernando properly referred to and it was not restricted to offenders who came from isolated communities.



In his paper in the opinion section in the Bar News Greg Smith (op.cit.) noted that if the present rate of increase of the NSW prison population over the past 10 years continues a new 500 bed prison would need to be built every two years. Wellington Correctional Centre cost $125.5 million dollars. (I note that clients housed there, report a dearth of programs and those on remand cannot access relevant programs such as drug and alcohol counselling). Smith QC MLA predicted that:

This State cannot afford to keep incarcerating more people, and spending will have to shift to reducing incarceration rates. Non-custodial punishments will inevitably become more prevalent and far more work must be done on rehabilitation before, during and after incarceration.

In R v Quin [2009] NSWCCA 16, a case where the Crown was appealing against the inadequacy of the sentence imposed by McLoughlin DCJ, the Crown asserted as one of the errors in the approach of the sentencing Judge, that he gave undue emphasis to the offender's good prospects of rehabilitation. The Court found that this was indeed the case and the sentence was increased by 8 months to serve. Price J said in his decision:

[44] The prospects of rehabilitation have long been recognised as an important consideration in sentencing of offenders and the promotion of the rehabilitation of the offender is one of seven purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act. Important as the positive steps taken by the respondent towards his rehabilitation and his relatively young age were in the sentencing exercise , it was incumbent upon the sentencing Judge not to give undue weight to these considerations in the balancing process and to have proper regard to the serious objective circumstances of the respondent's offending and to all of the purposes of punishment in s 3A.
[45] In R v Gordon (1994) 71 A Crim R 459 Hunt CJ at CL said at 469 (with whom McInerney and Sully J J agreed):
'What all those principles make clear is that rehabilitation (or reform) - the hope that the offender will be released back into the community a better person than when he or she left it - is only one of the purposes of punishment and that, even when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public'.

In R v Fernando [2002] NSWCCA 28 at [53] Spigelman CJ referred to the decision of the offender to make full admissions as being of particular significance as it was strongly suggestive of decision that he wished to change his life. 'Such a realisation was the crucial first step in a process of rehabilitation. Nevertheless it was only indicative of the possibility of success. It was also a manifestation of 'his acceptance of responsibility', maintained in the plea'.

His Honour also said at [54], 'In the absence of a finding that the rehabilitation prospects were in fact high, the subjective case presented in the court was not of a character which could overwhelm the very serious objective features of the offences, either individually or collectively.

In Thomson & Houlton at [116] Spigelman CJ noted in particular that 'genuine remorse' would indicate that personal deterrence might not need to be given the same weight and that it indicates the prospects of rehabilitation are good. In R v Newell [2004] NSWCCA 183 at [27] Howie J cites this passage from Thomson & Houlton.

It would seem that if a greater emphasis in the criminal justice system were to be placed on keeping people out of the custodial system, thereby saving money and in doing so, switching the emphasis to rehabilitation, as called for by Greg Smith, that a change of the application of the width of the sentencing discretion will be called for.

An example of this type of thinking in practice in relation to a crown appeal is seen in the unreported decision of Terry John Hall (NSW CCA unrep) 11 June 1991. He was sentenced to a deferred sentence in relation to the cultivation of 46 cannabis plants and 32 seedlings and 500 grams of leaf on a Form 1. He had made full admissions and cooperated with the police by showing them his isolated plants.

Gleeson CJ noted, at p 8, that there had been a determined and successful rehabilitation. He said,

By the time the Judge dealt with the matter, nearly twenty months had elapsed. Matters had not remained as they were. Rehabilitation and a major change in the life of Mr Hall had taken place. It was difficult to turn back the clock. It may well be that if the Judge had dealt with the matter four to six months after the events had occurred, he would have imposed a custodial sentence. The lapse of time and what had taken place presented special problems for the Judge. The sentence imposed was a lenient one and I have given it anxious consideration. I have come to the view that having regard to the special features of this case it was one which was just within the sentencing discretion of the Judge and that, despite my reservations, it should not be disturbed. I am not persuaded the Judge was bound to impose a custodial sentence .

The former Chief Justice cited immediately after this finding the often-cited case of Osenkowski (1982) 5 A Crim R 394 where King CJ said in the South Australian CCA:

'It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of Judges. There must always be a place for the exercise of mercy where a Judge's sympathies are reasonable excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the Judge forms the view, almost intuitively in the case of experienced Judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience'.

Having set out this full citation in his decision, His honour then said at p9;

'Those principles are important in the present case and must apply even more strongly where there is tangible evidence of reform'.

This strong expression of principle by a former Chief Justice leads comfortably into the next related subtopic on an offender being 'at the cross-roads' of their life. It is worth noting that recently Simpson J made reference to Osenkowski's case as one that may have been subject to over-use in submissions to the NSW CCA, but that in relevant cases it still had a role to play.


Your client may literally be at the time in his or her life where the sentence imposed may be the last straw in their hope of change. I make some points about this below, which may assist practitioners to focus on this, as they think about the reality of the position their client actually faces. It may be your client is at the crossroads of their life. Judges have been known to impose a non-custodial sentence, a suspended sentence or periodic detention where it is available, or a 'short sharp shock' sentence, although this occurred more often in a by-gone era.

a) In Regina v Jaques (Unrep. NSW CCA) 14 December 1984 Roden J, with Cantor J and Priestly J agreeing, said at p 2:
'When a person such as this applicant, who in my view is not yet to be regarded as confirmed in criminal ways, reaches the stage at which the sentencing court feels that a custodial sentence is appropriate, that is generally in the hope that such sentence will have a deterrent effect. I believe that such effect can equally be achieved by a sentence of short duration, of the 'rap over the knuckles' type, such as one measured in months rather than years, or, if it is felt that some supervision after serving a period in custody is required, by imposing a longer sentence and associating with it a short non-parole or non-probation period'.
b) Your client may have never served a custodial sentence. This is a circumstance which may be relevant to the question of whether there are alternatives to a sentence of imprisonment as well as the length and structure of any sentence: R v Sarcasmo [2004] NSWCCA 277 at [23]

c) 'It must be remembered that the ultimate purpose of all punishment is the protections of society. It will often be in the best interests of society if emphasis is put on rehabilitation, particularly in cases where the offender can genuinely be said to be at the crossroads between a useless, drug-ridden and probably criminal existence and a relatively normal life in society, supported by a caring family': R v Molina (1984) 13 A Crim R 76 at 77.

d) The case of Peter Muir and the Judgement of Hunt J NSW SC 3 April 1991 is relevant here and contains some strong observations from an experienced Judge about sentencing. The case has some aspects, which assist here in all sentence matters. Reference is made to the comments of his Honour at pp 10-12. The concern that his progress in rehabilitation would be stopped if he went into custody was of importance here.


Delay in the finalisation of a matter is taken into account on sentence for a number of reasons:

The offender is left in suspense or an agony of mind over whether he will be charged,

The offender may be rehabilitated before sentence,

A sentence for a stale crime calls for a measure of understanding and flexibility of approach: R v Blanco (1999) 106 A Crim R 303 at p 306.

The delay may have a detrimental affect upon the offender: see R v Holyoak (1995) 82 A Crim R 502 at p508- 509.

At times delay can require what might otherwise be a quite undue degree of leniency being extended to the prisoner: R v Todd (1982) 2 NSWLR 517 per Street CJ

Where prosecuting authorities fail to act promptly when they have evidence of serious criminality, they must expect that circumstance to be taken into account on sentencing. R v Blanco (1999) 106 A Crim R 303 at p 306. See R v Fell [2004] NSWCCA 235 where a delay of 15 months occurred from the time the police were informed until they laid charges was said to be ridiculous. There a period of over two years elapsed from disclosure to sentence.

For a social security case see Micelli v R (1997) 94 A Crim R 327, a Victorian case where the issue of delay resulted in a reduction of sentence on appeal.


The case of R v Musgrove [2007] NSWCCA 21; 167 A Crim R 424, contains an historical overview of the sequence of legislative provisions concerning the ratio between NPP and head sentence. Simpson J was cited in Phan v R [2007] NSWCCA 42, 169 A Crim R 22 at [25] as follows:

'The principle purpose and effect (with an exception) of a finding of special circumstances is to give the offender the benefit of a shortened non-parole period, with a corresponding extension of the balance of term :R v Moffitt (1990) 20 NSWLR 114; R v Huynh [2005] NSWCCA 220; R v Musgrove [2007] NSWCCA 21'

It is submitted that a number of principles emerge from the decided cases:

a) Where the offence(s) took place after the 1st of February 2003 the amended section 44 of the Crimes (Sentencing Procedure) Act 1999 applies.
b) Section 44(1) requires the Court to first set the minimum period for which the offender must remain in custody.
c) Section 44(2) fixes a set formula, whereby the balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless special circumstances are found. This results in a division of the sentence into three quarters to serve and one quarter on parole: R v Musgrove [2007] NSWCCA 21, 167 A Crim R 424 at [41]
d) The approach to be taken as to what matters might fall within the scope of considerations relevant to the determination of special circumstances is not a restrictive one: R v Simpson (2001) 126 A. Crim. R. 525 at [69]
e) The determination of what may amount to special circumstances involves a decision of fact as to the identification of the relevant circumstances, followed by a judgement as to whether those circumstances, justify a lower proportionate relationship between the non-parole period and the head sentence: R v Simpson at [72].
f) It remains the position of the legislature, that absent special circumstances, an offender ought to spend three quarters of the sentence in custody. It is for that reason that courts are required to explain any departure from that statutory norm that reduces the proportion of the sentence to be served in custody, but are not required to explain the imposition of sentences that increase that proportion: R v Musgrove [2007] NSWCCA 21, 167 A Crim R 424 at [41]


In the decision of R v Chong [2003] NSWCCA 274 at [26], a case concerned with the old section 44, Greg James J succinctly put the principles involved:

'The particular circumstances of a case may mean that a longer non-parole period and thus a shorter parole period or vice versa may need to be imposed. It may be that because of the statutory proportion, the fixing of a head sentence in the absence of special circumstances will mean that the non-parole period is defined by statute. But once special circumstances are found, then it is for the trial judge consistent with the general principles and the exercise of a proper discretion to consider in the circumstances of the particular offender and the particular case what is, having regard to the importance of such matters as rehabilitation and objective seriousness, the minimum period of imprisonment an offender should serve for the particular crime ....'.

His Honour said at par 19 that the new section 44, 'requires the court first to set a non-parole period for the sentence and then refer to the balance of the term of the sentence'.

Reference might be had to R v Way [2004] NSWCCA 131, 60 NSWLR 168 at [108]-[113]: The cases of Moffitt (1990) 20 NSWLR 114 at [117-118], [121-122], [34-135] and R v GDR (1994) 35 NSWLR 376 at 381-2 will provide guidance. There was discussion in R v Styman [2005] NSWCCA 129 as to the relationship between the new s44 and the old s 5. The case of Itaoui v R [2005] NSWCCA 415; 158 A Crim R 233; compares the new section 44 to the old section 5 and the way the sentence is pronounced. See R v Chong [2003] NSWCCA 274 at [26].

In R v Musgrove [2007] NSWCCA 21 167 A Crim R 424 Simpson J said,

'[42] The apparent emphasis on the non-parole period, evident in the current version of s44, has potential to deflect attention from the total term of the sentence. But it is important that a sentencing judge maintains a clear focus upon the overall sentence the he or she is imposing: parole is not a right and is by no means automatic. An offender may well serve the whole of his sentence in custody. The total sentence is no less important than the non-parole period'.

Simpson J further said,

'[43] The introduction of the standard non-parole period legislation has cast even greater emphasis upon the non-parole period. It is almost inevitable that a judge sentencing under that legislation will begin the exercise with a consideration of the standard non-parole period. There is nothing erroneous about so doing. But, again attention needs also to remain focussed upon the ultimate total term. Particularly where special circumstances are found, to begin by determining the non-parole period has potential to distort the process by an extension of the balance of term rather than a reduction of the non-parole period.

In a clear statement of the problem, which arises if the non-parole period is set first followed by the head sentence and then special circumstances are found (or applied), Simpson J said;

[44] That the non-parole period is now, by s44 (1), required first to be set does not necessarily mean that it must be first determined: see Moffitt, p122, R v P [2004] NSWCCA 218; R v Tobar ([2004] NSWCCA 391; 150 A Crim R 104). Indeed, in the light of the discretion conferred by subs (2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine initially the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive of the error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits of the balance of the term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin the sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffitt and cases thereafter to be the correct course, to reduce the non-parole period.                

The Issue of Double Counting of Factors

In R v Way [2004] NSWCCA 131, 60 NSWLR 168 at [110], [178] & [185] it was held that double counting of factors already taken into account under s 21A should not occur so that a finding of special circumstances should not be made resulting in a lowering of the NPP for a factor such as protection if it has already been considered in arriving at the overall sentence and the imposition of the NPP as the first step.

In R v Fidow [2004] NSWCCA 172 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' to be that the statutory proportion of one-third be 'less' Double counting' 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'.

In R v Quin [2009] NSWCCA 16 at [36] the Court cited this passage from Fidow and went on to say, per Price J:

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)

End Note

The topic of sentencing in serious criminal matters can be approached from many points of view and with a wealth of case material and academic work available as a resource. I have attempted as a practitioner to set out the material, which has assisted me in court at different times. There will be many cases that I need to add to those mentioned here and attempts will be made to update this paper on the Public Defender's site, where the longer version of it will appear.

In view of the comments made by Mahoney J in Lattouf set out above about the public interest in the sentencing process and the need for the public to know what sentences will be imposed, coupled with the observations of Howie J in SZ that the sentence must 'accord with the general morale sense of the community', quoting from Rushby's case, the last word in this paper will go to Hunt CJ at CL in the decision of Regina v Lyniv Grace Gordon (Unrep. CCA NSW) 29 April 1994. He referred to the case of Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 278 and applied the test propounded there by Herron CJ. That test is applied by asking what would be the view of right minded persons of the particular case when presented with the facts as they are found to be.

Hunt CJ at CL said:

'But as I have said, the various purposes of punishment are to some extent conflicting in their nature. Different weight must be given to each in different cases. In the end the sentence must accord with the general moral sense of the community. It must be acceptable to right minded members of the community. Not to those members of the community who- through ignorance or even, unfortunately, sometimes through malice- seek to denounce the courts for not being harsh enough, but rather to those who take the trouble to consider the facts of the case as they have been accepted by the court and who have some understanding of the cost in human dignity and to the community of imposing sentences of ever increasing length by way of punishment'.

Eric Wilson
Public Defender
Updated on 18 February 2010, Revised 29 March 2010