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:

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:

BACKGROUND OBSERVATIONS

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.

INTRODUCTION

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,

SENTENCING IS IRREVOCABLY CHANGED

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:

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,

His honour further said at p11,

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

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

OUTLINE OF WRITTEN SUBMISSIONS

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.

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:

Statute

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

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,

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:

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:

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:

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]

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

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.

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'.

APPROACH TO SECTION 21A,

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

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:

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.

APPROACH TO SECTIONS 21A, 44, 54

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.

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:

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:

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:

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.

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;

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.

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

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

TOTALITY

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

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.

MULTIPLE OFFENCES

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:

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.

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

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:

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:

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

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]:

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;

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,

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.

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

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

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]

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.

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:

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] :

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;

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;

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.

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

See also:

With Drug And/or Alcohol Dependence

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]

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

Immaturity

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,

12. BACKGROUND

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:

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:

See also

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:

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:

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,

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:

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

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.

AT THE CROSS ROADS

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.

Delay

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

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:

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

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:

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,

Simpson J further said,

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;

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

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:

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