Update 60 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Intensive correction orders (ICOs) (alternative to full-time imprisonment)

Fines

Standard non-parole period offences — Pt 4 Div 1A

Objective factors at common law

Subjective matters

Section 21A factors “in addition to” any Act or rule of law

Court to take other matters into account (including pre-sentence custody)

Commonwealth child sex offences

Offences against justice/in public office

Update 59 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Subjective matters

Section 21A factors “in addition to” any Act or rule of law

Sentencing Commonwealth offenders

Break and enter offences

Sexual offences against children (NSW)

Commonwealth child sex offences

Fraud offences

Update 58 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Intensive correction orders (ICOs)

Objective factors at common law

Subjective matters

Section 21A factors “in addition to” any Act or rule of law

Court to take other factors into account (including pre-sentence custody)

Update 57 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Fact finding at sentence

Intensive correction orders (ICOs) (alternative to full-time imprisonment)

Fines

Objective factors at common law

Subjective matters at common law

Guilty pleas

Court to take other matters into account (including pre-sentence custody)

Correction and adjustment of sentences

Sexual assault

Assault, wounding and related offences

Domestic violence offences

Money laundering

Update 56 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Intensive correction orders (ICOs) (alternative to full-time imprisonment)

Suspended sentences

The chapter at [5-700]ff has been removed.

Setting terms of imprisonment

Standard non-parole period offences — Pt 4 Div 1A

Objective factors at common law

Subjective matters at common law

Parity

Children (Criminal Proceedings) Act 1987

Sentencing Commonwealth offenders

Fraud offences in NSW

Robbery

Commonwealth drug offences

Appeals

Update 55 amends the Bench Book to update and revise various chapters, and incorporate recent case law and legislative developments. The following chapters have been revised:

Purposes of sentencing

Conditional release orders (CROs)

Dismissal of charges and conditional discharge

Setting terms of imprisonment

Standard non-parole period offences — Pt 4 Div 1A

Objective and subjective factors at common law

Objective factors at common law

Subjective matters at common law

Parity

Power to reduce penalties for assistance to authorities

Children (Criminal Proceedings) Act 1987

Sexual offences against children

Dangerous driving and navigation

Detain for advantage/kidnapping

Sexual assault

Domestic violence offences

Update 54 amends the Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:

Intensive correction orders (ICOs) (alternative to full-time imprisonment)

Setting terms of imprisonment

Subjective matters taken into account (cf s 21A(1))

Sentencing Commonwealth offenders

Dangerous driving and navigation

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Update 53 amends the Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:

Objective factors (cf s 21A(1))

Guilty plea to be taken into account:

Sexual offences against children

Assault, wounding and related offences

Update 52 amends the Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:

Procedural fairness at:

Obligations of the parties at:

Subjective matters taken into account (cf s 21A(1)) at:

Section 21A factors “in addition to” any Act or rule of law at:

Power to reduce penalties for assistance to authorities at:

Sexual offences against children at:

Offences against justice/in public office at:

Murder at:

Assault, wounding and related offences at:

Appeals at:

Update 51 amends the Bench Book to incorporate recent case law and legislative developments. The following chapters have been revised:

Fact finding at sentence
This chapter has been revised at:

Setting terms of imprisonment
Commentary has been updated at [7-516] Giving effect to finding of special circumstances to add a reference to the case of Ozan v R [2021] NSWCCA 231.

Concurrent and consecutive sentences
This chapter has been revised at [8-220] Totality and sentences of imprisonment and [8-240] Sentences for offences involving assault by convicted inmate with the addition of the cases of Hraichie v R [2022] NSWCCA 155, concerning whether a particular sentence is a “crushing sentence” and the application of s 56 of the Crimes (Sentencing Procedure) Act 1999, and R v Perrin [2022] NSWCCA 170 concerning the operation of s 58 of the Crimes (Sentencing Procedure) Act.

Parity
This chapter has been revised at [10-840] Severity appeals and parity to add a reference to the case of Kadwell v R [2021] NSWCCA 42.

Guilty plea to be taken into account
This chapter has been revised at [11-515] Guilty plea discounts for offences dealt with on indictment to take into account Doyle v R [2022] NSWCCA 81 and Gurin v R [2022] NSWCCA 193 concerning mandatory discounts for the utilitarian value of a guilty plea.

Victims and victim impact statements
This chapter has been revised at [12-870] Federal offences to update a change in the section number of the federal provisions related to victims (s 16AAAA) in the Crimes Act 1914 (Cth).

Dangerous driving and navigation
This chapter has been revised at [18-350] Motor vehicle manslaughter to include Davidson v R [2022] NSWCCA 153, and at [18-410] Licence disqualification to include Pearce v R [2022] NSWCCA 68 which concerns licence disqualifications under ss 205 and 206B of the Road Transport Act 2013.

Murder
This chapter has been amended at [30-020] Standard non-parole periods to include reference to R v Hopkinson; R v Robertson [2022] NSWCCA 80 which considered the standard non-parole period in the case of child victims, and at [30-080] Accessories to include reference to Ah Keni v R [2021] NSWCCA 263 concerning accessories after the fact to murder. At [30-095] Cause loss of foetus (death of pregnant woman) commentary has been added on the offence of cause loss of foetus (death of pregnant woman) following the commencement of the Crimes Legislation Amendment (Loss of Foetus) Act 2021. The new provision s 54B applies to offences committed on/after 29 March 2022.

Manslaughter and infanticide
Commentary has been updated at [40-010] Categories of manslaughter in light of Newburn v R [2022] NSWCCA 139 which summarises principles of the offence of manslaughter, including the necessity to identify the circumstances as the offender perceived them at the time of the criminal conduct, and a reference to Davidson v R [2022] NSWCCA 153 has been added. Commentary has been added at [40-075] on the offence of cause loss of foetus (death of pregnant woman) following the commencement of the Crimes Legislation Amendment (Loss of Foetus) Act. The new provision s 54B applies to offences committed on/after 29 March 2022.

Firearms and prohibited weapons offences
This chapter has been substantially revised and rewritten. Commentary on definitions at [60-025] and remote-controlled possession and use of firearms at [60-055] Other miscellaneous offences has been added. The chapter has also been revised at:

Appeals ,
This chapter has been revised and rewritten, and outdated tables for sentence appeals removed. References to Criminal Appeal Rules have been updated to refer to the Supreme Court (Criminal Appeal) Rules 2021 (NSW) which commenced on 1 May 2021. The chapter has also been revised at:

Community-based orders generally has been revised at [3-510] Requirements for assessment reports to include RC v R [2020] NSWCCA 76 where the court concluded that although an assessment report is not required before imposing, for example, a community correction order (CCO), it is important to obtain one because it informs consideration of not only the appropriate sentence options but the availability of particular conditions.

Community correction orders (CCOs) has been updated at [4-410] The legislative requirements to add R v AR [2022] NSWCCA 5 which confirms that a conviction must be recorded before a CCO can be made, including when a child is being dealt with for a “serious children’s indictable offence”. [4-420] Procedures for making a CCO now includes RC v R [2020] NSWCCA 76. This reiterates the importance of obtaining an assessment report before imposing a CCO, and confirms that one is required if community service work is being considered as a condition.

Objective factors (cf s 21A(1)) has been revised at [10-000] Maximum penalty under the subheading Maximum penalties and the jurisdiction of the Local Court to add Park v The Queen [2021] HCA 37. This restates the rule in R v Doan (2000) 50 NSWLR 115 and confirms that when sentencing an offender for an indictable offence which is being dealt with summarily, the maximum penalty, not the lower jurisdictional limit, is the starting point for determining the appropriate sentence. The jurisdictional limit is applied after that.

Guilty plea [11-515] Guilty plea discounts for offences dealt with on indictment under the subheading Discounts when plea offer to different offences refused when made has been revised to include Black v R [2022] NSWCCA 17 where the meaning of the phrase “the offence the subject of the proceedings” in ss 25E(1)(b) and 25E(2)(b) Crimes (Sentencing Procedure) Act 1999 was considered. In context, that phrase refers to the principal offence the subject of the proceedings, not multiple offences that might be the subject of the proceedings. Any other construction produces unfairness to the offender.

Taking further offences into account (Form 1 offences) has been updated at [13-200] The statutory requirements. R v JH [2021] NSWCCA 299 has been added as an example of a case where error was established because an offence with a maximum penalty of life imprisonment was placed on a Form 1. Dale v R [2021] NSWCCA 320 and Pham v R [2021] NSWCCA 234 have also been added under the subheading The procedure the court must follow — s 33 to illustrate the potential issues if the requirement to ask the offender if they want further offences to be taken into account is not complied with.

Dangerous driving, and navigation. The commentary at [18-300] Statutory history has been revised. [18-310] The statutory scheme for dangerous driving offences has been rewritten and now provides a table of the offences, includes the offence of failing to stop and assist after a vehicle impact in s 52AB Crimes Act 1900, and commentary about the offences enacted by the Crimes Legislation Amendment (Loss of Foetus) Act 2021 when the relevant dangerous driving offence causes the loss of a foetus of a pregnant woman. These offences apply to offences committed on, or after, 29 March 2022. At [18-320] Guideline judgment, commentary under the new subheading Impact of changes in sentencing practice since guideline has been added, including reference to Stanton v R [2021] NSWCCA 123. Changes in sentencing practice since the guideline judgment R v Whyte (2002) 55 NSWLR 252 was decided should be taken into account when applying the guideline. [18-332] Momentary inattention or misjudgment has been revised to include R v Balla [2021] NSWCCA 325, an example of a non-custodial sentence for an offence against s 52A involving momentary inattention, and Elphick v R [2021] NSWCCA 167 an example of a case where the relevant conduct did not constitute “momentary inattention. Elphick v R has also been added to [18-340] General deterrence. The text at [18-350] Motor vehicle manslaughter has been rewritten. Crowley v R [2021] NSWCCA 45 has been added. In some of these cases, the requirements of both gross criminal negligence and unlawful and dangerous act manslaughter will be satisfied: Crowley v R at [18]. Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114; Smith v R [2020] NSWCCA 181, Day v R [2014] NSWCCA 333, Spark v R [2012] NSWCCA 140 and Bombardieri v R [2010] NSWCCA 161 have been added as examples of sentencing in motor vehicle manslaughter cases. [18-380] Mitigating factors under the subheading Youth has been rewritten. Byrne v R [2021] NSWCCA 185, which reiterates the significance of general deterrence when offences of this kind are committed by young people has been added. In Byrne v R both drivers, youths engaging in a street race, were on provisional licences which was found to exacerbate their culpability and made deterrence particularly important. Hoskins v R [2020] NSWCCA 18 has been added at [18-410] Licence disqualification. The extension of the disqualification period is subject to any order of the court sentencing an offender: Hoskins v R at [23]; s 206A(5) Road Transport Act 2013. A new section at [18-415] Failure to stop and assist has been added and includes Hoskins v R and Geagea v R [2020] NSWCCA 350 which outline the approach to sentencing for these offences. Consequential changes, as a result of the Crimes Legislation Amendment (Loss of Foetus) Act 2021, have been made at [18-420] Dangerous navigation.

Murder [30-030] Life sentences under the subheading Life sentences under s 61, Crimes (Sentencing Procedure) Act 1999 the commentary has been rewritten. Outdated cases have been removed. Rogerson v R [2021] NSWCCA 160 and CC v R [2021] NSWCCA 71 have been added. These cases outline the approach to take when considering the requirements of ss 61(1) and 21(1) Crimes (Sentencing Procedure) Act 1999 and whether or not a life sentence should be imposed. Commentary has been revised at [30-040] Aggravating factors and cases that attract the maximum to include, from Rogerson v R, that the categories of murder warranting a life sentence are not closed and the conclusion a life sentence should be imposed is a severe one. Under the subheading Other factors Rogerson v R has been added to the list of cases which identify factors in murder cases which might aggravate the offence and indicate it attracts the maximum penalty.

Commonwealth drug offences. At [65-100] Criminal Code offences the commentary has been revised to summarise the current statutory framework. The text under the subheading Different offences and Di Simoni in [65-130] Objective factors relevant to all Commonwealth drug offences has been rewritten and El Jamal v R [2021] NSWCCA 105 has been added. That case discusses the extent to which a sentencing judge can take into account facts relating to an importation when an offender is charged with possession. In El Jamal v R, the CCA found the sentencing judge erred by frequently referring to “the importation offence” and placing importance on findings of the offender’s role in the uncharged importation when sentencing for the possession offence. ZZ v R [2019] NSWCCA 286 has been added at [65-140] Subjective factors as a recent example of a case where the applicant’s assistance to the authorities was found to be of much greater value than was thought at the time of sentence.

Intensive correction orders (ICOs) (alternative to full-time imprisonment) has been revised at [3-630] ICO is a form of imprisonment to add Mandranis v R [2021] NSWCCA 97, which reiterates that making an ICO requires the sentencing judge to follow a three-stage process before directing the sentence can be served in that way. The chapter has also been updated to add references to Wany v DPP [2020] NSWCA 318 and Blanch v R [2019] NSWCCA 304, confirming that an obligation to consider making an ICO may be enlivened where a cogent argument is advanced for taking that course. The commentary at [3-632] Mandatory considerations when determining whether to impose ICO has been substantially revised following Mandranis v R which considered the correctness of what has been described as the restrictive interpretation of s 66(2) Crimes (Sentencing Procedure) Act 1999 and whether a sentencing court must positively conclude an ICO is more likely, than full-time custody, to address an offender’s risk of reoffending. Mourtada v R [2021] NSWCCA 211, where Basten JA made some observations concerning the controversy surrounding aspects of R v Fangaloka as it concerns s 66(2), has also been added. [3-660] Pronouncement of ICO by court, terms and commencement has been updated to add Mandranis v R and R v Edelbi [2021] NSWCCA 122. These state that the term of an ICO may be reduced to take account of pre-sentence custody as s 71 Crimes (Sentencing Procedure) Act requires an ICO to commence on the date it is made.

Guilty plea to be taken into account has been updated at [11-515] Guilty plea discounts for offences dealt with on indictment to add Ke v R [2021] NSWCCA 177 which considered the proper construction of s 25E(2)(a) Crimes (Sentencing Procedure) Act.

[12-500] Counting pre-sentence custody Reference to Mandranis v R and R v Edelbi, which endorse the approach of reducing an ICO to give effect to pre-sentence custody, has been added.

[17-410] Sentencing for historical child sexual offences replaces the previous [17-410] Sentencing for offences committed many years earlier in Sexual offences against children. The new commentary discusses the requirements of s 25AA Crimes (Sentencing Procedure) Act and the cases which have considered it.

Appeals at [70-130] Crown appeals on sentence to the District Court has been updated to include reference to DK v Director of Public Prosecutions [2021] NSWCA 134 which found that the prosecution, when it appeals a sentence, must establish error before the appeal can be upheld. [70-080] Matters influencing decision of DPP to appeal has been revised to refer to the recently revised and reissued NSW DPP Prosecution Guidelines and the references to the Cth DPP Prosecution Policy of the Commonwealth: guidelines for the making of decisions in the prosecution process) have also been updated.

Obligations of the parties has been updated at [1-200] The prosecutor to add Strbak v The Queen [2020] HCA 10, where the High Court concluded a guilty plea does not relieve the Crown of its obligation to prove its case on sentence without assistance from the offender. [1-205] Professional Rules and DPP Guidelines has been updated after the Office of the Director of Public Prosecutions re-issued its Prosecution Guidelines in March 2021. The Guideline on sentence is now Chapter 2.4 and Chapter 13 (referred to at Duty of disclosure) addresses prosecutorial disclosure obligations. References to the Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 87, 91 and Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 29.5, 29.8 have replaced outdated references. [1-220] Duty of legal practitioners to correct error by sentencing judge has been updated to add a reference to Kandemir v R [2018] NSWCCA 154, which is another example of a case emphasising the obligations of legal practitioners to correct misstatements by judges during sentence proceedings.

Purposes of sentencing has been reviewed and outdated material removed. [2-240] To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b) includes reference to Weribone v R [2018] NSWCCA 172. Dungay v R [2020] NSWCCA 209 has been added to the examples where general or specific deterrence may be impacted by other principles such as community protection. R v Dong [2021] NSWCCA 82 has been added at [2-250] To protect the community from the offender: s 3A(c). That case considered situations where it may be necessary to expressly and separately consider the need for a sentence to reflect community protection. The Terrorism (High Risk Offenders) Act 2017 has been added to the examples of statutory exceptions to the principle prohibiting preventative detention in NSW. Reference to Minister for Home Affairs v Benbrika [2021] HCA 4, where the High Court considered the continuing detention order scheme for Commonwealth terrorism offenders in Div 105A Criminal Code (Cth) has been added.

Setting terms of imprisonment has been updated at [7-505] Aggregate sentences to add Aryal v R [2021] NSWCCA 2 which emphasises that aggregate sentences must reflect the totality of the offending behaviour. Discussion of Aryal v R and Noonan v R [2021] NSWCCA 35 has been added to [7-507] Settled propositions concerning s 53A under Application of Pearce v The Queen and the totality principle (propositions 1, 4 and 6).

Subjective matters taken into account (cf s 21A(1)). The commentary at [10-570] Deportation has been rewritten. Important recent cases added are: R v Calica [2021] NTSCFC 2, a five-judge Bench decision of the Northern Territory Supreme Court which considered the diverging State and Territory approaches to deportation as a mitigating factor on sentence; Kroni v R [2021] SASCFC 15; Kristensen v R [2018] NSWCCA 189; and Hanna v Environment Protection Authority [2019] NSWCCA 299.

Victims and victim impact statements has been generally revised. [12-830] Evidentiary status and use of victim impact statements at sentence and [12-832] Victim impact statements and harm caused by sexual assault have been amended to include Culbert v R [2021] NSWCCA 38, which considered the ways a victim impact statement may be used to assess whether substantial harm was caused by an offence. References to ss 30L(1) and 30L(5) Crimes (Sentencing Procedure) Act 1999 in [12-839] Victim impact statements when offenders are forensic patients have been updated following amendment by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The amount of the victims support levy has been updated in [12-867] Victims support levies for the 2020–2021 financial year.

[13-100] Taking further offences into account (Form 1 offences) has been extensively revised and rewritten.

Murder. Commentary on what are described as “mercy killings” has been added to [30-010] Relative seriousness of the categories of murder. [30-105] Conceal corpse has also been added.

Manslaughter and infanticide. [40-010] Categories of Manslaughter, Substantial impairment and [40-070] Infanticide have been revised to update the references to ss 22A and 23A(8) Crimes Act 1900 following their amendment by the Mental Health and Cognitive Impairment Forensic Provisions Act which commenced on 27 March 2021.

Domestic violence offences has been revised and parts of the commentary reorganised. Observations by Wilson J in Yaman v R [2021] NSWCCA 239 explaining the rationale for the importance of general and specific deterrence in a domestic violence context have been added to [63-500] Introduction and [63-510] Sentencing approach to domestic violence. [63-505] Statutory framework has been revised and updated to include reference to ss 39(1A), 39(2A)–(2C) and 39(2D) Crimes (Domestic and Personal Violence) Act 2007 which concern the period of an ADVO for adult offenders sentenced to full time imprisonment and the date an ADVO comes into force.

Intensive correction orders (ICOs) has been updated at [3-610] Power to make ICO subject to Pt 5 to add the discussion in R v Fangaloka [2019] NSWCCA 173 and Wany v DPP [2020] NSWCA 318 of the circumstances when a court should consider whether a particular sentence of imprisonment should be served by way of an ICO. The commentary in [3-632] Community safety is paramount consideration has been substantially revised and re-written following Wany v DPP. Commentary concerning whether an ICO may be made for sentences of 6 months or less is now in a separate paragraph at [3-634].

Setting terms of imprisonment has been revised and updated. The commentary at [7-505] Aggregate sentences has been re-written and reference to the following cases added: PG v R [2017] NSWCCA 179, JM v R [2014] NSWCCA 297, R v Rae [2013] NSWCCA 9 and Truong v R [2013] NSWCCA 36. Burgess v R [2019] NSWCCA 13, which reiterates that an aggregate sentence must reflect the totality of the offending has also been added. At [7-507] Settled propositions concerning s 53A the following cases, which elaborate on certain propositions concerning s 53A enumerated in JM v R , have been added: Aryal v R [2021] NSWCCA 2; Vaughan v R [2020] NSWCCA 3; Ibbotson (a pseudonym) v R [2020] NSWCCA 92; Kliendienst v R [2020] NSWCCA 98; Burgess v R [2019] NSWCCA 13; PW v R [2019] NSWCCA 298; Tuite v R [2018] NSWCCA 175; PG v R [2017] NSWCCA 179, TL v R [2017] NSWCCA 308 and ZA v R [2017] NSWCCA 132. At [7-510] Special circumstances under ss 44(2) or 44(2B), Huang v R [2019] NSWCCA 144, Hardey v R [2019] NSWCCA 310 and Rizk v R [2020] NSWCCA 291, which address the need for reasons, regardless of whether a finding of special circumstances is made, have been added. At [7-514] What constitutes special circumstances? the observation by RA Hulme J in Singh v R [2020] NSWCCA 353 that the rationale for finding special circumstances identified in Simpson v R does not apply to aggregate sentences has been added. Lonsdale v R [2020] NSWCCA 267; Rizk v R [2020] NSWCCA 291, Zreika v R [2020] NSWCCA 345 and GP v R [2017] NSWCCA 200 have been added at [7-516] Giving effect to finding of special circumstances. Each address the need to consider the requirements of s 44(2) in different situations including where a sentence is accumulated on an existing sentence. Woods v R [2020] NSWCCA 219, which concerns focusing on the actual periods of custody involved, not just percentage proportions, has also been added. The commentary on Indicative sentences: fixed term or term of sentence? at [7-520] Court may decline to set non-parole period was moved from [7-507] and has also been revised. Reference to Waterstone v R [2020] NSWCCA 117 was added.

Parity has been revised and updated to include a Summary of relevant considerations at [10-800]. At [10-801], reference to the following cases, which address aspects of the rationale for co-offenders being sentenced by the same judge, have been added: Usher v R [2016] NSWCCA 276; PG v R [2017] NSWCCA 179; Piao v R [2019] NSWCCA 154; Adams v R [2018] NSWCCA 139; R v Lembke [2020] NSWCCA 293 and Tran v R (Cth) [2020] NSWCCA 310. At [10-805] A justifiable sense of grievance, Hiron v R [2018] NSWCCA 10, which states that the test of unjustified disparity is objective, has been added. Turnbull v The Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 and Dayment v R [2018] NSWCCA 132 have been added at [10-810] Co-offenders convicted of different charges. Bridge v R [2020] NSWCCA 233 has also been added. It concerns applying the parity principle where co-offenders are charged with different numbers of offences and where an aggregate sentence has been imposed on one co-offender but not another. At [10-830] Parity and totality, Kelly v R [2017] NSWCCA 256 has been added. This concerns how the parity principle applies when one offender receives the benefit of the totality principle because of committing multiple offences while another is only sentenced for the common offence. Daw v R [2017] NSWCCA 327, Lloyd v R [2017] NSWCCA 303 and Borg v R [2019] NSWCCA 129 have been added at [10-840] Severity appeals and parity. Each discuss aspects of the test for establishing disparity on appeal. At [10-850] Crown appeals and parity, the cases of R v Gu [2006] NSWCCA 104; R v Weismantel [2016] NSWCCA 204 and R v Lembke [2020] NSWCCA 293, which state that the Crown cannot generally rely on the parity principle in an inadequacy appeal, have been added.

Guilty plea to be taken into account has been updated at [11-520] in relation to The R v Borkowski principles with the addition of Bao v R [2016] NSWCCA 16 in relation to principle 6. A new section on Aggregate sentences has also been added, discussing Elsaj v R [2017] NSWCCA 124; PG v R [2017] NSWCCA 179; Berryman v R [2017] NSWCCA 297 and Davies v R [2019] NSWCCA 45.

The commentary at [11-910] Power to reduce penalties for pre-trial disclosure has been rewritten to refer to Droudis v R [2020] NSWCCA 322 and Droudis v R (No 16) [2017] NSWSC 20. These address the approach a sentencing court should take to s 22A Crimes (Sentencing Procedure) Act 1999 when determining the extent to which an offender’s sentence may be reduced as a result of actions taken during proceedings to facilitate the administration of justice. Such matters are taken into account instinctively and as part of the offender’s subjective case.

Power to reduce penalties for assistance to authorities has been updated at [12-230] under the headings Level of discount and The SZ v R line of authority: the combined discount to include reference to Buckley v R [2021] NSWCCA 6, which considers the requirement in s 23(3) Crimes (Sentencing Procedure) Act 1999 to ensure any sentence not be disproportionate to the nature and circumstances of the offence.

Court to take other matters into account (including pre-sentence custody) at [12-500] has been extensively revised and updated. See in particular the commentary concerning: the practice of backdating sentences; the need to give reasons for failing to backdate a sentence and the method for crediting time spent in custody. Reference to Reddy v R [2018] NSWCCA 212 has been added at [12-530] Quasi-custody bail conditions — residential programs regarding reducing or backdating sentences to take account of time spent in a residential program. Hoskins v R [2016] NSWCCA 157; Frlanov v R [2018] NSWCCA 267 and Banat v R [2020] NSWCCA 321 have been added to the commentary under Other onerous bail conditions. In each case the CCA reiterated that while such conditions may be taken into account, there is no obligation to do so. Bland v R [2014] NSWCCA 82, where the CCA held that restrictive accommodation requirements will not necessarily amount to a form of quasi-custody has been added. Reference to Banat v R (where a curfew and electronic monitoring were appropriately taken into account) and Frlanov v R (which concerned reporting conditions that were not particularly onerous) has also been added.

Victims and victim impact statements has been updated at [12-820] The statutory scheme for victim impact statements, Definitions and applications to add reference to s 27(4A), which was inserted into the Act by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020. Kabir v R [2020] NSWCCA 139, which confirmed that the term “victim” in s 16A(2)(ea) Crimes Act 1914 (Cth) should be construed broadly and may include a person recruited and manipulated by an offender to commit an offence has been added to [12-870] Federal offences.

Children (Criminal Proceedings) Act 1987 has been extensively revised and updated from [15-000]ff. Dungay v R [2020] NSWCCA 209 has been added under Admissibility of evidence of prior offences at [15-020] where evidence of the offender’s criminal history as a child, which would have otherwise been excluded by s 15(1) of the Children’s (Criminal Proceedings) Act 1987 was tendered to demonstrate his disadvantaged childhood. Reference to CO v DPP [2020] NSWSC 1123, which concerned a failure to obtain a background report as required by s 25 Children (Criminal Proceedings) Act 1987 has been added at [15-080] Background reports. Commentary has been updated at [15-110] Application of the Crimes (Sentencing Procedure) Act 1999 as a result of recent amendments made by the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 with the insertion of a new s 27(4A). The reference to the Criminal Records Regulation at Convictions which are not capable of being spent in [15-130] The Criminal Records Act 1991 and the Children (Criminal Proceedings) Act 1987 has been updated.

Murder has been extensively revised and updated. The cases of Nguyen v R [2007] NSWCCA 363 and Park v R [2019] NSWCCA 105 have been added at [30-010] Relative seriousness of the categories of murder. When assessing the objective seriousness, the existence of particular features is not determinative of where a particular murder offence might sit. It was concluded in Park v R that there was no reliable relationship between an assessment of any particular degree of objective seriousness and the sentence imposed. At [30-030] Life sentences under s 61, Crimes (Sentencing Procedure) Act, the case of R v Warwick (No 94) [2020] NSWSC 1168, where life sentences were imposed for three murder offences involving judicial officers and others associated with Family Court proceedings in which he was involved during the 1980s has been added. At [30-040] Aggravating factors and cases that attract the maximum, the case of TL v R [2020] NSWCCA 265, where the court found it was not an error to take into account evidence of previous (uncharged) assaults into account as a factor increasing the objective seriousness of the offence, has been added. Substantial harm has been updated to include reference to Sheiles v R [2018] NSWCCA 285. At [30-047] Murders committed in a domestic violence context, Goodbun v R [2020] NSWCCA 77 has been added as an example of a case involving offending correctly found to be at the “very top of the notional range”. R v Amati [2019] NSWCCA 193 has been added at [30-100] Attempted murder. That case involved three offences against s 27 Crimes Act 1900 committed on a single night. A Crown appeal against sentence was upheld and the seriousness of such offences was emphasised. Vaughan v R [2020] NSWCCA 3 has been added as an example of a s 27 offence that was also a serious domestic violence offence.

Manslaughter and infanticide has been updated at [40-000] Introduction. Sheiles v R [2018] NSWCCA 285 considers where the offence of manslaughter involves either an intention to kill or an intention to cause grievous bodily harm, the degree of harm the offender knows will be caused by the offence may be highly relevant to their moral culpability. Lees v R [2019] NSWCCA 65 has been added at [40-030] Motor vehicle manslaughter as a serious example of such an offence.

Intensive correction orders has been updated at [3-600] following the insertion of s 77A of the Bail Act 2013 which commenced on 19 March 2020. Blanch v R [2019] NSWCCA 304 has been added at [3-632] Community safety paramount consideration. RC v R; R v RC [2020] NSWCCA 76, which emphasises the importance of complying with the mandatory requirements of s 17D(4) of the Crimes (Sentencing Procedure) Act 1999, has been added at [3-635] ICO assessment reports.

Fines has been updated at [6-160] Fines for Commonwealth offences, to reflect the increase in the value of one penalty unit from $180 to $222 from 1 July 2020.

R v Doudar [2020] NSWSC 1262 has been added to [11-515] Guilty plea discounts for offences dealt with on indictment. R v Doudar considers the legislative intent behind s 25D(4) of the Crimes (Sentencing Procedure) Act and the meaning of the phrase “substantially the same” in that section and how it impacts the quantum of discount for a guilty plea to a charge that could have been negotiated at committal.

Ghalbouni v R [2020] NSWCCA 21 and Woodward v R [2017] NSWCCA 44 have been added to [13-100] Introduction of Taking further offences into account (Form 1 offences). Both address the need for compliance with the various statutory requirements associated with the Form 1 procedure. CH v R [2019] NSWCCA 68, which emphasises that the Form 1 procedure cannot be conflated with the procedures for back-up and related offences in ss 165–167 of the Criminal Procedure Act 1986, has been added at [13-200] Taking further offences into account.

Sentencing guidelines has been updated to include reference to Moodie v R [2020] NSWCCA 160 at [13-610] The statutory scheme, to confirm that guideline judgments have statutory force and sentencing judges are obliged to take them into account, and at [13-630] Use of guideline judgments as a “check” or “sounding board”, to note that while formal reference to a guideline judgment is not necessary, if this is not done, whether or not it was in fact taken into account, will be assessed by comparing factors identified in the guideline with the sentence remarks.

Sentencing Commonwealth offenders has been revised and updated to reflect recent amendments to the Crimes Act 1914 and relevant caselaw. At [16-010] General sentencing principles applicable, in Taking other offences into account: ss 16A(2)(b) and 16BA, Kabir v R [2020] NSWCCA 139 and Purves v R [2019] NSWCCA 227, which concern the need for a sentencing judge to make the various statutory inquiries associated with taking the additional offences into account, and what amounts to consent, have been added. Commentary at [16-010] regarding Personal circumstances of any victim of the offence: s 16A(2)(d), has been updated to note that when sentencing for certain Commonwealth child sex offences, ss 272.30, 471.29A and 474.29AA of the Criminal Code (Cth) operate in addition to s 16A and require the court to take into account the victim’s age and maturity if relevant to do so. The commentary at The degree to which contrition is shown: s 16A(2)(f) has been revised to include reference to Betka v R [2020] NSWCCA 191 which discussed the extent to which a guilty plea may inform whether an offender has demonstrated contrition. The commentary at Plea of guilty: s 16A(2)(g) has been re-written following the amendment of s 16A(2)(g) with effect from 20 July 2020, which now requires a sentencing court to take into account the utilitarian value of a guilty plea. That discussion includes reference to Bae v R [2020] NSWCCA 35 and Small v R [2020] NSWCCA 216. Commentary has been added regarding new s 16A(2)(ma) which applies to federal offenders charged with, or convicted of, an offence from 20 July 2020 and requires consideration of whether the person’s standing in the community was used to aid the commission of the offence. At [16-020] Non-custodial sentencing options, the commentary under the headings Recognizance release order/suspended sentence and Failure to comply with condition of discharge or conditional release: s 20A has been updated. References to Watson v R [2020] NSWCCA 215 and Kannis v R [2020] NSWCCA 79 have been added at [16-035] Sentencing for multiple offences. Both address the power to impose an aggregate sentence for Commonwealth offences. Note: the commentary in this chapter concerning the procedure for revocation of parole has been removed and is currently being revised as a result of the most recent amendments to the Crimes Act 1914. It will be replaced shortly.

Dangerous driving and navigation has been substantially revised and updated. R v Whyte (2002) 55 NSWLR 252 and Moodie v R [2020] NSWCCA 160, which emphasise the statutory force of sentencing guidelines and the requirement to take them into account, because of Pt 3 Div 4 Crimes (Sentencing Procedure) Act 1999, have been added at [18-300] Statutory history. Moodie v R has also been added at [18-320] Guideline judgment. Formal reference to the guideline is not necessarily required but sentence remarks should advert to the presence or absence of the factors identified in the guideline relevant to assessing moral culpability and objective seriousness. References to Rummukainen v R [2020] NSWCCA 187; R v Shashati [2018] NSWCCA 167 and R v Manok [2017] NSWCCA 232 have been added at [18-330] The concepts of moral culpability and abandonment of responsibility. Each addresses the fact the entirety of the surrounding circumstances of a particular offence is relevant to assessing an offender’s moral culpability. Rummukainen v R has also been added at [18-334] Prior record and the guideline as an example of how an offender’s prior record may be taken into account in a limited way as context. R v Shashati has been added at [18-336] Length of the journey. Rummukainen v R has been added at [18-340] General deterrence. In that case, the court concluded evidence of alcohol consumption is relevant, even if the Crown cannot prove the offender was above the legal limit. Reference to Conte v R [2018] NSWCCA 209 has been added at [18-360] Grievous bodily harm and at [18-380] Mitigating factors. R v Wright [2013] NSWCCA 82 and Conte v R have been added as examples of serious cases of aggravated dangerous driving causing death at [18-400] Totality.

Sexual assault has been updated to remove [20-605] Brief legislative history, listing significant reforms to sexual assault laws over the past 30 years. This can be now found at [1-025] in the Sexual Assault Trials Handbook.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness has been amended to include references to recent case law. HT v The Queen (2019) 93 ALJR 1307 has been added at [1-000] Proceedings in open court to clarify that courts have jurisdiction to modify the general rules of open justice and procedural fairness by tailoring non-publication orders to ensure an offender can test the accuracy of evidence and make submissions. Taylor v R [2018] NSWCCA 255 has been added at [1-010] Reasons for decision, noting that sentence remarks must be intelligible to lay people and that sentence judgments should not be constructed as a checklist. The court’s observation in Porter v R [2019] NSWCCA 117, that offenders and the community at large are entitled to know why and how a particular period of imprisonment has been assessed, has been included. Roylance v DPP [2019] NSWSC 933 has also been added, noting pressures on the Local Court does not obviate the need for giving reasons, even in ex-parte proceedings. At [1-040] Opportunity of addressing the court on issues, HT v The Queen, Anae v R [2018] NSWCCA 73, DL v The Queen (2018) 92 ALJR 764 and Purdie v R [2019] NSWCCA 22 have been added, emphasising the principles of impartiality and procedural fairness, and the opportunity to make submissions on relevant matters. Tarrant v R [2018] NSWCCA 21and Mansweto v R [2019] NSWCCA 232 have been included at [1-045] Excessive intervention by the court, highlighting circumstances where intervention by the court in proceedings is warranted and where it might result in a reasonable apprehension of bias.

Intensive correction orders (ICOs) has been updated with recent cases. [3-620] Restrictions on power to make ICO, has been revised to include Cross v R [2019] NSWCCA 280 which clarified that where a sentence for a single offence exceeds 2 years, and therefore an ICO can’t be imposed, there is no requirement for the court to consider s 66 of the Act. This case is also added at [3-632] Community safety paramount concern. The discussion in Karout v R [2019] NSWCCA 253, on the relationship between ss 66 and 3A has also been included.

Power to reduce penalties for assistance to authorities has been substantially revised and updated. Le v R [2019] NSWCCA 181 and Browning v R [2015] NSWCCA 147 have been added at [12-200] as examples to illustrate that not all information provided by an offender amounts to assistance within s 23. A new paragraph on Procedure has been added at [12-202] which summarises the approach to be taken when evidence of assistance is relied on in sentence proceedings. It includes Neil Harris (a pseudonym) v R [2019] NSWCCA 236 where the court observed the basis of tendering an affidavit of assistance should be agreed and clearly stated, and any restriction on its use identified. HT v The Queen (2019) 93 ALJR 1307, where the appellant was denied procedural fairness during the Crown appeal by not being provided with access to the affidavit of assistance has been included. Greentree v R [2018] NSWCCA 227 has been included for the proposition that it is not an error to refer to the “significance and the usefulness” of assistance without elaboration. Le v R [2019] NSWCCA 181 has also been added at [12-215] Broad scope of s 23(1) — “any other offence” where it was said that because a form of assistance is capable of falling within s 23(1) it does not necessarily warrant imposing a lesser sentence and at [12-218] Voluntary disclosure of unknown guilt, where the court concluded admissions concerning the period of time an offender was involved in offending did not amount to assistance within s 23(1) as otherwise unknown criminality was not disclosed. At [12-230] Application of discount, TL v R [2017] NSWCCA 308 has been added, which confirms that where an aggregate sentence is imposed the discount must be applied to each indicative sentence, not the aggregate sentence. At [12-240] Promised assistance, under the heading Appeals following a failure to provide promised assistance, R v Dimakos (a pseudonym) [2018] NSWCCA 78 (withdrawal of benefit where an offender has entered a bargain and fails to fulfil it); R v OE [2018] NSWCCA 83 and R v GD [2013] NSWCCA 212 (clarification of the power under s 5DA Criminal Appeal Act 1912 and the proper approach to reversing or adjusting a sentence to take account of a failure to adhere to an undertaking) have been added.

Sentencing Commonwealth offenders has been revised and updated. R v Nakash [2017] NSWCCA 196 and Rajabizadeh v R [2017] WASCA 133 have been added at [16-002] in Achieving consistency in sentencing to include a discussion of the issues associated with trying to equate certain Commonwealth offences with a State equivalent. At [16-010] Taking other offences into account: ss 16A(2)(b) and 16BA, the commentary has been updated to include Purves v R [2019] NSWCCA 227, which held the sentencing judge must make various statutory inquiries and obtain the necessary admissions and indication from the offender if they wish to have additional offences taken into account when passing sentence. Huang v R [2018] NSWCCA 57 has also been added where a five-judge bench unanimously held the principle in The Queen v De Simoni (1981) 147 CLR 383 is confined to offences for which an offender is sentenced, and does not extend to matters taken into account pursuant to s 16BA Crimes Act 1914 (Cth). R v MI [2018] NSWCCA 151 has been included in Failure to company with an undertaking, where the court found the offender’s partial assistance was worthless in a practical sense, there were no compelling countervailing factors and the entire discount for future assistance was removed. The commentary at [16-035] Sentencing for multiple offences has been updated to include Sheu v R [2018] NSWCCA 86, which clarifies that an aggregate sentence cannot be imposed for Commonwealth and State offences.

Detain for advantage/kidnapping has been substantially revised and updated to better reflect the current law in relation to the basis and aggravated forms of offences against s 86. Diaz v R [2018] NSWCCA 33, where it was held that a detention with no rational purpose is not necessarily less serious, has been added at [18-715] Factors relevant to the seriousness of an offence.

Assault, wounding and related offences has been substantially revised and updated. Now extraneous material has been removed. The cases of Swan v R [2016] NSWCCA 79 (grievous bodily harm), R v Hookey [2018] NSWCCA 147 and AM v R [2012] NSWCCA 203 (general sentencing principles) have been added. [50-040] Factors relevant to assessment of the objective gravity of a personal violence offence has been updated to include Waterfall v R [2019] NSWCCA 281 which held there is no rule or principle which mandates that the nature of the injuries sustained is the most important factor when determining the objective seriousness of an offence. At [50-080] Wound or inflict grievous bodily harm with intent to do grievous bodily harm or resist arrest: s 33, a reference to R v Hookey [2018] NSWCCA 147 has been added. The commentary at [50-100] Choking, suffocating and strangulation: s 37 has been rewritten. At [50-130] Particular types of personal violence, Waterfall v R [2019] NSWCCA 281 has been added under Prison officers. This case held that the vast power differential arising when a prison officer assaults an inmate is relevant to determining objective seriousness. A new paragraph titled Inmates has been added.

Domestic violence offences has been updated to include new cases. R v JD [2018] NSWCCA 233 has been added at [63-510] Sentencing approach to domestic violence, to include that serious domestic violence offences should attract appropriate sentences to maintain public confidence in the administration of justice. In Impact of AVO breaches in sentencing at [63-518], Turnbull v R [2019] NSWCCA 97, has been added to emphasise the need to show there will be a heavy price to pay for indulging in domestic violence particularly when court orders have been issued to prohibit such violence.

Commonwealth drug offences has also been updated with recent cases. Kuo v R [2018] NSWCCA 270 has been added at [65-130] under Distinguishing between “couriers” and “principals”. That case reinforces the principle in R v Olbrich (1999) 199 CLR 270 that it is more important to focus on what the offender did rather than attempting to characterise their relative role in a hierarchy. Klomfar v R [2019] NSWCCA 61, where the court found there is no inevitable correlation between an offender’s role and the severity of punishment they may receive, has also been added.

Appeals has been extensively revised and new cases added. At [70-030] under the heading Errors of fact and fact finding on appeal, the cases of Yin v R [2019] NSWCCA 217; Gibson v R [2019] NSWCCA 221 and TH v R [2019] NSWCCA 184 have been added. These cases do not support observations made in Hordern v R [2019] NSWCCA 138 that the long-standing approach in R v O’Donoghue (1988) 33 A Crim R 397, with respect to fact finding on appeal, should not be followed. At [70-040] The meaning of “sentence” in s 6(3), the text has been amended to include that, with respect to aggregate sentences imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, the preponderance of case law since JM v R (2014) 246 A Crim R 528 is that an appeal is against the aggregate sentence not the individual indicative sentences. At [70-060] in Evidence of facts that have arisen entirely after sentence, Agnew (a pseudonym) v R [2018] NSWCCA 128 has been added, where the court confirmed that a post-sentence reduction in a custodial sentence for assistance to authorities can be achieved by means of an appeal where no error or miscarriage has been found should not be encouraged. At [70-125] Appeals to the Supreme Court from the Local Court, Devitt v Ross [2018] NSWSC 1675 has been added, confirming the Supreme Court does not have jurisdiction to hear an appeal against a Local Court sentence if an appeal in the District Court has already been dismissed.

The commentary at [90-000]ff in relation to Mental Health (Forensic Provisions) Act 1990 has been revised to cross-reference to relevant sections of the Local Court Bench Book.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Penalties of imprisonment The text at [3-300] Imprisonment as a sanction of last resort has been updated to include Casella v R [2019] NSWCCA 201 at [63]–[65]. Failure to make clear that alternatives to full-time custody have been considered and rejected is not, of itself, erroneous, but might result in uncertainty about whether the s 5 threshold for a sentence of imprisonment was met. A similar reference has been added at [3-630] ICO is a form of imprisonment.

Intensive correction orders has been revised at [3-600]ff, to include R v Pullen [2018] NSWCCA 264, R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201. [3-630] ICO is a form of imprisonment now includes the discussion in R v Fangaloka at [60]-[61] of the implications arising from the third stage of the process engaged in when considering alternatives to full-time imprisonment (see R v Zamagias [2002] NSWCCA 17). Additional reference is made to R v Zamagias with respect to that third stage. The paragraph titled ICOs available for sentences of 6 months or less has been added. Inherently lenient or a substantial punishment? at [3-630] has been revised to include the discussion of the ICO statutory scheme in R v Pullen at [53]. In R v Pullen and subsequently in R v Fangaloka, the court observed that ICOs under the new scheme, while retaining the capacity to operate as substantial punishment, may also reflect a significant degree of leniency. The discussion in R v Fangaloka, at [57], concerning the effect of the competing purposes of punishment on whether a particular sentence should be served by way of an ICO has also been added. References in this section to cases which pre-date the current ICO scheme have been removed.

[3-632] Community safety is the paramount consideration A discussion of the approach to the construction of s 66 taken in R v Pullen, R v Fangaloka and Casella v R has been added. References to cases decided under the previous ICO scheme have been removed.

[3-640] ICO conditions Casella v R has been added as an example of a case where exceptional circumstances were established for the purposes of s 73A.

A Table of Cases, which is available online only, has been prepared and is now available including all cases to Update 44.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Setting terms of imprisonment has been amended to include references to recent caselaw. Sheu v R [2018] NSWCCA 86 is included in Settled propositions concerning s 53A at [7-507] to illustrate that an aggregate sentence cannot be imposed for a combination of Commonwealth and State offences. Sonter v R [2018] NSWCCA 228 is discussed in Special circumstances under ss 44(2) or 44(2B) at [7-510] where a judge did not err by failing to make specific reference to the requirements of s 44(2). By considering the reasons as a whole, no oversight was found. Thach v R [2018] NSWCCA 252 at [45]–[46] was inserted in What constitutes special circumstances at [7-514]. In that case, special circumstances may be found if the offender merely has prospects of rehabilitation that would be assisted by a longer parole period.

Appendix A: Pt 4 Div 1A Table — standard non-parole periods at [8-000] and Appendix B: Legislative amendments relevant to the Pt 4 Div 1A Table — standard non-parole periods at [8-100] have been amended to include amendments made by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, namely the addition of s 61KD(1) (aggravated sexual touching) and the repeal of s 61M(2) (aggravated indecent assault).

Concurrent and consecutive sentences has been amended to include recent caselaw and legislation. Yeung v R [2018] NSWCCA 52 is included at [8-220] under the heading of Multiple sentences of imprisonment to clarify that s 55 ensures that, if the issue is not specifically addressed, the default position is that sentences are to be served concurrently. A reference to s 25AA is included at [8-230], under the heading Sexual assault. The new provision provides that historical leniency with regard to questions of concurrence and cumulation do not apply to child sexual offences as the court is required to take into account sentencing patterns and practice at the time of sentencing. A new heading, Offences in contravention of apprehended domestic violence orders (ADVO) has been inserted at [8-230] and includes reference to Suksa-Ngacharoen v R [2018] NSWCCA 142, where a distinction is drawn between an offence committed in breach of an ADVO and an offence of breaching an ADVO.

Victims and victim impact statements has been revised extensively at [12-820]–[12-838] to include the new statutory scheme for victim impact statements inserted by the Crimes Legislation Amendment (Victims) Act 2018, which commenced on 27 May 2019. A new [12-839] has been added to discuss new provisions regarding victim impact statements when offenders are forensic patients. That the prior statutory scheme still applies to proceedings that had commenced before 27 May 2019 is reflected in the commentary. The Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Regulation 2019 also commenced on 27 May 2019, inserting cll 11A, 12C, 12D and 12E, which discuss victim impact statements in relation to forensic patients relevant to [12-839]. Amendments made by the Victims Rights and Support (Victims Support Levy) Amendment Notice 2019 for the 2019–2020 financial year have been incorporated at [12-867].

Murder has been revised to include three new paragraphs. Relevance of motive at [30-045] deals with the need to consider the factual circumstances when there is an absence of motive. Cases discussed include DL v R [2018] NSWCCA 302 where a 16-year old boy murdered a 15-year-old girl in a frenzied attack where there was no satisfactory explanation, motive or trigger for the offence. Murders committed in context of domestic violence at [30-047] include references to The Queen v Kilic (2016) 259 CLR 256, Quinn v R [2018] NSWCCA 297, Cherry v R [2017] NSWCCA 150 and Patsan v R [2018] NSWCCA 129 to illustrate that significant weight is given to general deterrence, denunciation and community protection when sentencing an offender who takes their partner’s life. Delay between murder offence and sentence at [30-048] discusses the importance of sentencing patterns that had existed when the offence was committed when there is a lengthy delay between the offending conduct and sentencing. Other cases have been inserted into the Murder chapter, including Charbaji v R [2019] NSWCCA 28 at [30-010] and [30-040], where the state of mind in which murder is committed is directly relevant to determining the objective seriousness of the crime. R v Baker [2019] NSWCCA 58 was included in Conspiracy/solicit to murder at [30-090], discussing the objective seriousness of an offence that involved the offender arranging the murder of his son and his son’s friend (both 14 years old) who were to be witnesses at his pending trial.

Commonwealth drug offences has been amended to reflect the replacement of the Criminal Code Regulations 2002 (Cth) with the Criminal Code Regulations 2019. In particular, reference to the lists of applicable trafficable, marketable and commercial quantities for border controlled or controlled drugs set out in Pt 3, Div 1 and Schs 1 and 2 is noted at [65-130].

Appeals has been amended to update Tables 1-4 in Overview of Court of Criminal Appeal sentence appeals 2001–2018 at  [70-010] to insert revised figures up to and including 2018. Further detailed information and figures have been included concerning inquiries into sentence under Pt 7 Crimes (Appeal and Review) Act 2001. These figures are not included in Tables 1 and 2 as they can lead to double counting.

Available sentencing options have significantly changed following the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 on 24 September 2018. As a result, there has been a major revision of the sections of the Sentencing Bench Book dealing with community-based sentencing options.

A new section “Custodial and non-custodial community based orders” has been created. That section includes:

The section dealing with home detention (previously at [4-000]) has been deleted.

Further consequential amendments were made to various other chapters, including:

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Deferral for rehabilitation or other purpose References to forum sentencing intervention programs have been deleted from Declaration and regulation of intervention programs at [5-440] and Restrictions on the power to make intervention program orders at [5-450] following the commencement on 29 June 2018 of the Criminal Procedure Amendment (Intervention Programs) Regulation 2018.

Setting terms of imprisonment The text in Special circumstances under ss 44(2) or 44(2B) at [7-510] has been updated to include Brennan v R [2018] NSWCCA 22, where the court considered the extent to which a sentencing judge should give reasons for imposing a non-parole period greater than 75%. Commencement of sentence at [7-540] has been updated to include Kaderavek v R [2018] NSWCCA 92 which considers the operation of s 47. Kaderavek v R has also been added to Forward dating sentences of imprisonment at [7-547] to confirm when a sentence commences if an offender is bail refused for the relevant offence and is also subject to a statutory parole order.

Concurrent and consecutive sentences In Applications of the totality principle at [8-210], R v JDX [2017] NSWCCA 9 and Johnson v R [2017] NSWCCA 278 have been added. In R v JDX, it was held that, where some concurrent sentences have been later quashed, a correction may be necessary so the sentence adequately reflects the criminality of the remaining offences standing alone. In these circumstances, the original sentence is based on the basis of a premise that no longer exists: Johnson v R at [161]–[163]. In Totality and sentences of imprisonment at [8-220], Stanton v R [2017] NSWCCA 250 has been added to clarify that an extremely lengthy sentence is not necessarily crushing if it reflects the offender’s total criminality.

Parity The chapter has been reorganised. Co-offenders convicted of different charges at [10-810] has been amended to add references to Dunn v R [2018] NSWCCA 108 and Miles v R [2017] NSWCCA 266. In Dunn v R, the court concluded the parity principle did not apply when an offender is sentenced for an offence and the co-offenders have the same offence taken into account on a Form 1. Miles v R discussed the importance of having regard to the differences between the objective and subjective features of the co-offender’s case which reasonably justified the sentence imposed. Wan v R [2017] NSWCCA 261, Cameron v R [2017] NSWCCA 229 and Miles v R have been added to Severity appeals and parity at [10-840]. These cases discuss the test for establishing disparity.

Section 21A factors “in addition to” any Act or rule of law The text in Limitations on the use of s 21A(2) factors at [11-040] has been amended to include Kassoua v R [2017] NSWCCA 307 where Basten JA identified the risk of double counting aggravating factors by reference to s 21A(2) subsections. Section 21A(2)(ea) (offence committed in child’s presence) at [11-101] has been amended to include McLaughlin v R [2013] NSWCCA 152, Lloyd v R [2017] NSWCCA 303 and Alesbhi v R [2018] NSWCCA 30. In Lloyd v R, the court said s 21A(2)(ea) can also apply in circumstances where the offender is a child. Section 21A(2)(ib) (offence involved grave risk of death) was added at [11-145]. Section 21A(2)(j) (offence committed while offender on conditional liberty) at [11-150] includes a reference to Archer v R [2017] NSWCCA 151. Section 21A(2)(l) (vulnerable victim) at [11-170] has been updated to include references to Longworth v R [2017] NSWCCA 119 and Katsis v R [2018] NSWCCA 9 where security guards and the elderly, respectively, fell within the class of vulnerable victims. Section 21A(2)(n) (offence part of planned or organised criminal activity) at [11-190], has been revised. The discussion of cases dealing with planning and organisation in the context of drug supply offences has been moved to Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890]. Section 21A(2)(o) (offence committed for financial gain) has been added at [11-192] and includes Clinton v R [2018] NSWCCA 66 where financial gain was not considered an aggravating factor in an ordinary case of fraud. With regard to s 21A(3)(i) at [11-290], Chahal v R [2017] NSWCCA 203 was added. Repayment of the proceeds of crime is not necessarily evidence of genuine remorse.

Guilty plea to be taken into account The chapter has been revised following the commencement, on 30 April 2018, of Pt 3, Div 1A, which was introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. There are now two guilty plea discount schemes under the Crimes (Sentencing Procedure) Act. The mandatory sentencing discount scheme under Pt 3, Div 1A applies to offences dealt with on indictment where the proceedings commenced on or after 30 April 2018. Section 22 now applies only to a sentence for an offence dealt with summarily or to a sentence for an offence dealt with on indictment to which Div 1A does not apply (s 22(5)). In Guilty plea discounts for offences dealt with summarily and exceptions to Pt 3 Div 1A at [11-520], in the discussion of The R v Borkowski principles, Samuel v R [2017] NSWCCA 239 has been added. Delay caused by an offender absconding will affect whether a guilty plea after arrest can be characterised as “early”. New text has been added at [11-525] regarding whether guilty plea discounts should be given for Form 1 offences.

Court to take other matters into account (including pre-sentence custody) The text in Quasi-custody bail conditions at [12-530] has been revised and includes Kelly v R [2018] NSWCCA 44, regarding whether bail conditions amount to quasi-custody and the extent to which a sentence should be adjusted. In Counting pre-sentence custody at [12-500], Rafaieh v R [2018] NSWCCA 72 has been added. The fact an offender is not entitled to be released from custody for one offence but was granted bail for another does not mean his or her bail status has altered in respect of the latter offence. Kaderavek v R [2018] NSWCCA 92 at [20] has also been added at [12-500] to confirm that it is preferable but not mandatory to backdate a sentence by a period equivalent to the pre-sentence custody.

Victims and victim impact statements The text in Victims support levies at [12-867] has been updated to include the latest figures for the 2018–19 financial year, reflecting a recent amendment to the Table in cl 2 of the Victims Rights and Support (Victims Support Levy) Notice 2013 by Amendment Notice 2018, which commenced on 22 June 2018.

Taking further offences into account (Form 1 offences) In Taking further offences into account at [13-200], text has been updated to include Gordon v R [2018] NSWCCA 54 where it was held there is no statutory or common law requirement to take into account a guilty plea for an offence taken into account on a Form 1.

Children (Criminal Proceedings) Act 1987 The chapter has been revised to include references to the Children (Criminal Proceedings) Regulation 2016. In Intervention orders at [15-120], a reference to JIRS Diversionary Programs, which contains a list of some programs available for children has been added.

Sentencing Commonwealth offenders A summary of the approach to be taken in Commonwealth matters when dealing with the utilitarian value of a guilty plea in Huang aka Liu v R [2018] NSWCCA 70 has been added to General sentencing principles applicable at [16-010]. Singh v R [2018] NSWCCA 60, which contains a discussion of the overlap between remorse, contrition and a guilty plea, has also been added. Reference to the CDPP’s recently published Sentencing of Federal Offenders in Australia — A Guide for Practitioners is noted at the front of the chapter.

Dangerous driving and navigation The text in Licence disqualification at [18-410] has been updated to include Gray v R [2018] NSWCCA 39 to clarify that if the sentence for a “major disqualification offence” (as defined in s 206A(1) Road Transport Act 2013) is part of an aggregate sentence, the disqualification period is extended by the length of the aggregate sentence.

Drug Misuse and Trafficking Act 1985 (NSW) offences The commentary in Supply and the imposition of full-time custody at [19-835] has been rewritten after a five-judge bench decision was delivered in Parente v R [2017] NSWCCA 284, which overturned the “principle” in R v  Clark (unrep, 15/3/90, NSWCCA) that drug trafficking to a substantial degree ordinarily required a sentence of full-time imprisonment unless there were exceptional circumstances. A sentencing court must approach sentencing for drug supply offences in accordance with ordinary sentencing principles rather than starting from the assumption that a sentence of full-time custody is required. Fato v R [2017] NSWCCA 190 has been added to Quantity and purity of drug in Other factors relevant to objective seriousness at [19-870]. The text in Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890] has been revised to include the cases discussing financial gain as an aggravating factor under s 21A(2)(o) that were previously at [11-190]. See, in particular, the reference to the discussion by Basten JA in Kassoua v R [2017] NSWCCA 307 concerning whether financial gain could be taken into account as a separate aggravating factor under s 21A(2)(o). Huang v R [2017] NSWCCA 312 has also been added.

Robbery The text has been updated to include revised cross references.

Sexual assault The text in Assessing objective gravity of sexual assault at [20-630] has been updated to include R v Hall [2017] NSWCCA 313. The context in which offending occurs was an important part of determining objective seriousness. R v Hall is also discussed in Mitigating circumstances at [20-770] and in Sentencing for offences committed many years earlier at [20-780], with regard to how a 23-year delay between the commission of an offence and the offender’s arrest does not necessarily lead to a more lenient sentence. At [20-630], in a new section on Age gap between offender and victim, R v Shortland [2018] NSWCCA 34 has been added to highlight that, in cases of non-consensual intercourse between adults, age difference is rarely likely to be relevant. A new section Consent must be addressed when in issue at [20-645] includes R v Alcazar [2017] NSWCCA 51 where, when consent is in issue at sentence, the basis upon which the issue was resolved should be explained or addressed. R v Shortland has been added to Utility of sentencing statistics at [20-790] as an example of an erroneous use of sentencing statistics.

Domestic violence offences Domestic violence orders made in one State or Territory are now recognised in all other Australian jurisdictions. Reference to the national recognition scheme has been added to Introduction at [63-500]. The effect of delay between domestic violence offences and the victim making a complaint was discussed in Hurst v R [2017] NSWCCA 114 and has been added to Sentencing approach to domestic violence at [63-510]. Cherry v R [2017] NSWCCA 150 has been added to Breaches of apprehended violence orders at [63-520].

Commonwealth drug offences In Objective factors relevant to all Commonwealth drug offences at [65-130], a new section on Importing more than one border controlled drug has been inserted, including MEG v R [2017] WASCA 161. The text in Achieving consistency at [65-150] has been updated to include R v Nakash [2017] NSWCCA 196 and Rajabizadeh v R [2017] WASCA 133 concerning issues associated with equating sentences for Commonwealth offences with similar State offences.

Appeals A new section Judge may furnish report on appeal at [70-115] has been added and includes Zhang v R [2018] NSWCCA 82 concerning the relevant and permissible functions of a report that judges may furnish under s 11 of the Criminal Appeal Act 1912.

Index and Table of Statutes have been updated online to include the amendments made in Update 41. It is anticipated the hard copy pages will be updated in a future report.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness At [1-010] Reasons for decision was updated to include R v Alcazar [2017] NSWCCA 51 which held that a sentencing judge is obliged to explain how disputed factual issues (in this case the issue of consent) have been resolved in the sentencing judgment. Warnings that courts must give for high risk offenders under the Crimes (High Risk Offenders) Act 2006 have been revised and commentary about warnings for terrorism-related offenders under the Terrorism (High Risk Offenders) Act 2017 has been added at the renamed [1-070] Warnings for high risk and terrorism-related offenders.

Obligation of parties A new [1-220] Duty of legal practitioners to correct error by sentencing judge has been added to address the situation where a judge misstates the maximum penalty while giving reasons before passing sentence. In Campbell v R [2018] NSWCCA 17 at [34], it was commented that legal practitioners have a duty to correct such an error immediately.

Setting terms of imprisonment At [7-505] Aggregate sentences, Hunt v R [2017] NSWCCA 305 is added to clarify that pronouncing the non-parole period before giving the total aggregate sentence is a technical error that does not invalidate the sentence. The text at [7-507] Settled propositions concerning s 53A has been amended to include TL v R [2017] NSWCCA 308, which states that discounts for assistance to authorities should be applied to indicative sentences, not the aggregate sentence. [7-570] Court not to make parole order and [7-580] No power to impose conditions on parole orders have been renamed and the text has been revised in light of the commencement of those parts of the Parole Legislation Amendment Act 2017 affecting a court’s previous power to make parole orders and impose conditions. Courts no longer have such a power.

Court to take other matters into account (including pre-sentence custody) An amendment to [12-500] Counting pre-sentence custody was made as a consequence of the repeal of ss 50 and 51 by the Parole Legislation Amendment Act 2017.

Sentencing Commonwealth offenders Text on whether s 16A(2)(g) Crimes Act 1914 (Cth) permits a utilitarian discount at [16-010] General sentencing principles applicable has been revised in light of a five-judge bench NSWCCA decision in Xiao v R [2018] NSWCCA 4. It is now accepted s 16A(2)(g) requires a court to take into account the utilitarian value of a guilty plea.

Break and enter offences In [17-070] Application of s 21A to break and enter offences, BB v R [2017] NSWCCA 189 at [38] was included for the proposition that taking into account, as an aggravating factor, the fact the offence occurred at the victim’s home does not amount to impermissible double-counting.

Dangerous driving and navigation In [18-336] General deterrence, R v Manok [2017] NSWCCA 232 was added to reiterate the importance of general deterrence in dangerous driving cases causing death.

Detain for advantage/kidnapping The court’s observations in Hurst v R [2017] NSWCCA 114 about factors relevant to the offence seriousness have been incorporated at [18-715] Factors relevant to the seriousness of an offence. The detention of the victim was categorised as very serious in circumstances where the offender derived pleasure from inflicting pain and humiliation, the victim genuinely feared for her life, and the offence was committed in a domestic violence context.

Manslaughter and infanticide At [40-040] Discount for rejected offer to plead guilty to manslaughter, Merrick v R [2017] NSWCCA 264 was discussed. A discount is only available where the offer fully discloses the circumstances and degree of culpability intended to be acknowledged by the plea.

Assault, wounding and related offences Text at [50-130] Particular types of personal violence has been revised to include The Queen v Kilic (2016) 259 CLR 256 where the High Court emphasised the importance of deterrence when sentencing for offences involving domestic violence. The discussion about the importance of deterrence in the domestic violence context in Cherry v R [2017] NSWCCA 150 and DPP v Darcy-Shillingsworth [2017] NSWCCA 224 has been added. The observations in Hurst v R [2017] NSWCCA 114 have been included that violent attacks on the victim, with the intent to humiliate and demean her, are the very worst aspects of domestic violence.

Money laundering The text at [65-205] Breadth of conduct caught and [65-210] Sentencing range has been amended to include discussion of Dickson v R [2016] NSWCCA 105, which was an example of serious money laundering.

Conspiracy A discussion of Dickson v R [2016] NSWCCA 105 was also inserted at [65-300] Introduction, [65-340] Yardstick principle — maximum penalty for substantive offence and [65-420] Commonwealth conspiracy offences. The sophistication, planning and complexity involved in the conspiracy to defraud justified the offence being categorised as in the “worst category”.

Appeals The severity appeals tables have been revised and updated with the 2016 figures at [70-010] Overview of Court of Criminal Appeal sentence appeals 2001–2016. In severity appeals to the District Court, Toth v DPP (NSW) [2017] NSWCA 344 illustrates how a failure to regard “natural limitations” of the District Court in a conviction appeal led to jurisdictional error.

Mental Health (Forensic Provisions) Act 1990 As a consequence of the Justice Legislation Amendment Act 2017, a magistrate in summary proceedings may divert a cognitively impaired defendant so that he or she is able to be assessed, treated or given support in relation to his or her cognitive impairment. The text in [90-050] Part 3 — Summary proceedings before a magistrate has been revised to reflect this amendment that updates old terminology and includes a definition of “cognitive impairment” that is found in s 32(6) Mental Health (Forensic Provisions) Act 1990. A relevant minor amendment by the Justice Legislation Amendment Act (No 2) 2017 has also been incorporated to clarify bail procedure when a person is assessed as not being mentally ill.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Fact finding at sentence A new [1-445] Exceptions to the approach in Cheung and Isaacs has been added to include a reference to Chiro v The Queen [2017] HCA 37 which held that Cheung v The Queen (2001) 209 CLR 1 and R v Isaacs (1997) 41 NSWLR 374 do not govern fact finding for offences of persistent sexual exploitation (see further below). Imbornone v R [2017] NSWCCA 144 at [17] has been added at [1-490] Untested self-serving statements. In that case, Wilson J set out a number of principles to be applied where a sentencing court is faced with an untested statement to a third party.

Setting terms of imprisonment [7-507] Settled propositions concerning s 53A has been amended to include the proposition that the enactment of the aggregate sentencing provision was not intended to effect a change in the substantive law: PG v R [2017] NSWCCA 179 at [90]. A court that imposes an aggregate sentence need only apply a discount, or discounts, to each indicative sentence which are then taken into account for the purpose of setting the aggregate sentence: PG v R at [71], [76].

Standard non-parole period offences — Pt 4 Div 1A [7-955] Use of cases decided before Muldrock v The Queen has been amended to include the cases of Toole v R (2014) 247 A Crim R 272, Wang v R [2017] NSWCCA 61 at [16] and Davis v R [2015] NSWCCA 90 at [32]–[33]. Cases decided before Muldrock v The Queen (2011) 244 CLR 120 should be approached with caution. It is presumed that most, if not all, pre-Muldrock, cases were influenced by the erroneous principles in R v Way (2004) 149 A Crim R 168. KB v R [2015] NSWCCA 220 was added where the sentencing judge had regard to two comparable CCA cases (at the time) which were subsequently reconsidered following Muldrock v The Queen. The CCA intervened and resentenced the applicant.

Concurrent and consecutive sentences [8-240] Sentences for offences involving assault by convicted inmate was revised to include R v Hoskins [2004] NSWCCA 236 and R v Jeremiah [2016] NSWCCA 241 concerning the requirement to give reasons in s 56(3) to set a partly consecutive sentence.

Subjective matters taken into account (cf s 21A(1)) [10-420] Contrition was amended to include Roff v R [2017] NSWCCA 208 at [25] where the judge erred by using the offender’s lack of remorse as a reason for fixing a longer non-parole period.

Section 21A factors “in addition to” any Act or rule of law [11-290] Section 21A(3)(i) — remorse shown by the offender has been amended to include Van Zwam v R [2017] NSWCCA 127, where the CCA held that a judge was not entitled to disregard altogether evidence of remorse contained in a sworn affidavit in circumstances where the Crown chose not to cross-examine the deponent. Imbornone v R [2017] NSWCCA 144 was added for the proposition that a judge was entitled to find that the applicant’s untested hearsay expressions did not prove on the balance of probabilities that he was remorseful.

Victims and victim impact statements The VIS reforms in the Justice Legislation Amendment Act 2017, which permits certain victims to have a support person and for proceedings to be heard in camera, have been included at [12-820] The statutory scheme for victim impact statements. [12-860] Compensation orders for victims has been renamed “Statutory scheme for directions to pay compensation” and Upadhyaya v R [2017] NSWCCA 162 has been added. A direction under s 97(1) is clearly in the nature of a claw-back or disgorgement of an offender’s “ill-gotten gains”, and therefore by definition does not operate in mitigation of sentence according to common law principle: Upadhyaya v R at [65]–[66].

Taking further offences into account (Form 1 offences) In [13-260] The statutory power to reject a Form 1 under s 33(2)(b), the cases of Croxon v R [2017] NSWCCA 213 and DG v R [2017] NSWCCA 139 were added as examples of the inappropriate use of the Form 1 procedure.

Sexual offences against children In [17-500] Persistent sexual abuse of child: s 66EA, under the sub-heading Fact finding following a guilty verdict, Chiro v The Queen [2017] HCA 37 at [52] was added for the proposition that where a jury returns a verdict of guilty of a charge of persistent sexual abuse and the judge does not, or cannot, get the jury to identify which of the alleged acts of sexual exploitation the jury had found to be proved, the offender has to be sentenced on the basis most favourable to the offender.

Drug Misuse and Trafficking Act 1985 (NSW) offences Drug rip-offs (a new sub-heading under [19-830] Supply) are regarded by the courts as objectively serious and remain subject to the penalties applicable to an offence contrary to s 25: R v Kijurina [2017] NSWCCA 117 at [99]. Chong v R [2017] NSWCCA 185 at [18], [106] has been added. The halving of the large commercial quantity of “ice” threshold indicates Parliament’s intention that those sentences (where the weight is between 500–999 grams) should increase.

In [19-835] Supply and the imposition of full-time custody, the “principle” that a sentence of full-time imprisonment must be imposed on an offender who is found to be engaged in substantial drug trafficking unless the court finds there are exceptional circumstances does not preclude consideration of s 5 and the imposition of an intensive correction order (ICO): Robertson v R [2017] NSWCCA 205 at [38]–[39]. In cases of drug supply, an ICO ought to be given full, fair and genuine consideration by the court: Robertson v R at [38].

The amendment by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015, halving the large commercial quantity threshold from 1kg to 500g, reflects Parliament’s intention that sentences imposed on persons supplying methylamphetamine should be increased: Chong v R [2017] NSWCCA 185 at [18], [106].

Offences against justice/in public office A new sub-heading Referrals by the Local Court to the Supreme Court and procedural fairness has been added at [20-155] Common law contempt of court. Before exercising its power of referral under s 24(4) Local Court Act 2007, the court must afford procedural fairness to a proposed contemnor: Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277; Prothonotary of the Supreme Court of NSW v Chan (No 23) [2017] NSWSC 535.

Domestic violence offences Cherry v R [2017] NSWCCA 150 has been added to [63-510] Sentencing approach to domestic violence. Domestic violence requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. A reference to the domestic violence case of DPP v Darcy-Shillingsworth [2017] NSWCCA 224 was also inserted. Drew v R [2016] NSWCCA 310 was added for the proposition that particular care is required when a court makes a finding concerning the vulnerability of the victim. It must avoid generalisations. A finding that the victim was vulnerable in the more general sense of being under an impaired ability to avoid physical conflict with the applicant, or defend herself, was well open on the evidence.

The Index and Table of Statutes have been updated online and minor amendments have been made to the following chapters as a result of the commencement on 1 September 2017 of a number of regulations, including the Crimes (Sentencing Procedure) Regulation 2017, Criminal Procedure Regulation 2017 and the Mental Health (Forensic Provisions) Regulation 2017:

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Section 9 good behaviour bonds In [4-770] Breach of bond has been rewritten to include DPP (NSW) v Jones [2017] NSWCCA 164 which held that the Local Court is a court of “like jurisdiction” for the purposes of dealing with a breach of a bond which was imposed in a sentence appeal in the District Court.

Suspended sentences The text at [5-780] Breaches, has been revised to include DPP (NSW) v Jones [2017] NSWCCA 164 and a cross reference to Breach of bond at [4-770].

Objective factors (cf s 21A(1)) A new paragraph at [10-025] Necessity to refer to “Explaining the statistics” document has been added in relation to the use of JIRS statistics as requested by RA Hulme J in Why v R [2017] NSWCCA 101 at [61]. A new paragraph [10-027] Recent changes to JIRS statistics notes the rationale for the removal of the variables “Multiple offences”, the median and 80% range from the statistics viewer for the higher courts. The cases of Knight v R [2015] NSWCCA 222 at [7], R v Wright [2017] NSWCCA 102 at [52] and Harper v R [2017] NSWCCA 159 at [34] support their removal.

Subjective matters taken into account (cf s 21A(1)) The following paragraphs have been amended:

Section 21A factors “in addition” to any Act or rule of law The text at [11-100] Section 21A(2)(e) — the offence was committed in company has been amended to include IS v R [2017] NSWCCA 116 at [50] where the court held there was no misapplication of s 21A(2)(e) nor White v R [2016] NSWCCA 190. At [11-160] Section 21A(2)(k) — abuse of a position of trust or authority, the case of Mol v R [2017] NSWCCA 76 has been included. Section 21A(2)(k) was not intended to extend the categories of what might constitute a breach of trust or authority at common law where the special relationship between an offender and a victim imposes mutual obligations not to act to the detriment of the other: Mol v R at [107]. Section 21A(2)(k) could be applied to an artist who sexually assaulted young women who were employed to pose nude for artistic purposes: Mol v R at [108]. A breach of trust is heightened when an offence is committed against a patient/client of a health practitioner: Jung v R [2017] NSWCCA 24 at [64]. At [11-190] Section 21A(2)(n) — the offence was part of a planned or organised criminal activity, the case of Wat v R [2017] NSWCCA 62 at [48] was added. It was permissible to apply s 21A(2)(n) in a case involving the supply of a large commercial quantity of ephedrine because the level of planning was well beyond that which might be expected in the lowest level of an offence of this type. At [11-240] Section 21A(3)(d) — the offender was acting under duress, the text was revised to include Giang v R [2017] NSWCCA 25. There was no error in the judge factoring duress into the sentencing exercise at both the objective and subjective stages in respect of the offences. There is nothing in any of this court’s relevant decisions since Muldrock v The Queen (2011) 244 CLR 120 which confines duress as a purely subjective factor and the court has continued to apply Tiknius v R (2011) 221 A Crim R 365 in relation to non-exculpatory duress to sentence: Giang v R at [33]. A new [11-355] Section 24C — disqualification of parliamentary pension has been added. When an offender is, or was, a Member of Parliament, the court must not take into account the offender’s loss of their entitlement to a parliamentary pension because of their conviction for the offence. Section 24C was first applied in R v Macdonald [2017] NSWSC 638.

Power to reduce penalties for assistance to authorities A new [12-215] Broad scope of s 23(1) — “any other offence” has been added. The court in R v XX [2017] NSWCCA 90 at [32]–[35] considered the broad scope of the text of s 23(1) and concluded it encompasses assistance not related to the offence before the court and need not be provided after an offender’s arrest. Assistance rendered for unrelated offences years prior qualified as “assistance” under s 23 but the court is then required to exercise discretion to give or refuse discount: R v XX at [32].

Children (Criminal Proceedings) Act 1987 A new [15-130] The Criminal Records Act 1991 and the Children (Criminal Proceedings) Act 1987 has been added to address the question: how does the Criminal Records Act 1991 apply to orders under s 33 Children (Criminal Proceedings) Act 1987? Suffice to state the text of the Criminal Records Act could be clearer on the subject. A Table has been also inserted.

Fraud offences in NSW The text at [20-010] The relevance of a gambling addiction has been substantially rewritten following Johnston v R [2017] NSWCCA 53. A gambling addiction is not of itself a mitigating circumstance. A gambling addiction cannot reduce an offender’s moral culpability where fraud is committed over an extended period: Johnston v R at [38]. The R v Henry (1999) 46 NSWLR 346 principles regarding robbery offences committed to feed a drug addiction also apply to fraud offences committed to feed a gambling addiction: Johnston v R at [41].

Offences against justice/in public office The text at [20-155] Common law contempt of court has been amended to include the proposition that the “companion principle” is a principle that only attaches to criminal proceedings rather than a criminal standard of proof. It has no application in contempt proceedings commenced within a civil jurisdiction: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375. Part 55, r 14 Supreme Court Rules 1970 confers a power on the Supreme Court to revisit and review a decision to imprison for contempt in light of changed circumstances. Compliance with court orders, an acknowledgement of the seriousness of the contempt and contrition justified orders of release: Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280. At [20-190] Common law offence of misconduct in public office, R v Obeid (No 12) [2016] NSWSC 1815 and R v Macdonald [2017] NSWSC 638 have been added to the discussion of objective seriousness.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

The following sections were revised to incorporate the High Court decision of The Queen v Kilic (2016) 91 ALJR 131, which held that courts should avoid using the expression “worst category” (as used in Ibbs v The Queen (1987) 163 CLR 447 at 451–452 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and should instead state whether an offence is so grave as to warrant maximum penalty: Mandatory life sentences under s 61 at [8-630] Comparison with common law cases that attract the maximum, Objective factors at [10-005] Cases that attract the maximum, and Murder at [30-040] Aggravating factors and cases that attract the maximum.

Consequential amendments were also made to the following chapters: Sexual offences against children, Detain for advantage/kidnapping, Drug Misuse and Trafficking Act 1985 (NSW) offences, Fraud offences in New South Wales, Robbery, Sexual assault, Murder, Manslaughter and infanticide, Assault, wounding and related offences, Firearms and prohibited weapons offences, Commonwealth drug offences and Money laundering.

Community service orders (CSOs) This section has been generally revised. At [4-440] Revocation and breach of CSO, DPP (NSW) v Caita-Mandra [2004] NSWSC 1127 and DPP v Brasher [2016] NSWSC 1707 have been added. The decision to revoke the CSO is distinct from the decision whether to make a consequential order and they should not be conflated. If the CSO is revoked, the court then determines, in the exercise of its discretion, whether to make a consequential order.

Mandatory life sentences under s 61 Text at [8-610] Application and [8-620] Extreme culpability has been amended to add Dean v R [2015] NSWCCA 307. It is not contrary to High Court authorities to apply a two-staged reasoning process under s 61. A murder committed by way of reckless indifference to human life can attract a life sentence under s 61.

Objective factors The text in [10-022] Use of information about sentences in other cases has been amended to include The Queen v Kilic (2016) 91 ALJR 131. The Court of Appeal (Vic) erred by attributing too much significance to sentences imposed in other cases and treating the sentences as defining a range. The cases used were disparate and the offences did not occur in a domestic context. The text in [10-024] Use of sentencing statistics has been amended to include SS v R [2016] NSWCCA 197 for the proposition that statistics do not provide any real assistance in determining whether a sentence is manifestly excessive in the absence of any detail concerning the circumstances of the particular cases in question.

Section 21A factors “in addition to” an Act or rule of law The text at [11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person has been amended to include the five-judge bench decisions of R v Lulham [2016] NSWCCA 287 and Jonson v R [2016] NSWCCA 286. The terms of s 21A(2)(eb) do not impose a pre-condition for its operation that the offender be an intruder into the victim’s home. A literal construction therefore includes the offender’s home.

Sexual assault The text at [20-604] Change in community attitude to sexual assault and harm has been amended to include the dictum in The Queen v Kilic (2016) 91 ALJR 131 at [21] that current sentencing practices in relation to sexual offences may be seen to depart from past practices by reason of changes in understanding of the long-term harm done to the victim.

Domestic violence offences The text at [63-510] Sentencing approach to domestic violence has been amended to include The Queen v Kilic (2016) 91 ALJR 131 at [21]. Current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations. The text at [63-520] Breaches of apprehended violence orders has been amended to include McIlwraith v R [2017] NSWCCA 17 at [39]–[42]. The offence of intimidation is one of “specific intent” and an accused’s intoxication can be taken into account for the purposes of liability. However, self–induced intoxication is not a matter in mitigation at sentence under s 21A(5AA).

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Obligations of the parties The text at [1-200] The prosecutor has been substantially revised to include a new subheading [1-203] Submissions as to the bounds of the range prohibited. The decision of Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113 is included. The decision explained Barbaro v The Queen (2014) 253 CLR 58 in particular that there is no room for the court to take account of the Crown’s opinion as to an appropriate length of sentence; to do so would create an unacceptable risk of breaking down the distinction that must exist between the court and the coercive power of the State which is exercised in the criminal jurisdiction: Commonwealth of Australia v Fair Work Building Industry Inspectorate at [56].

Intensive correction orders The text at [3-700] has been amended to include recent amendments to s 71 by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 which provide that an ICO may be ordered to commence on a date other than the one on which it is made if it is to be served consecutively, or partly consecutively, with some other sentence of imprisonment the subject of an ICO.

Setting terms of imprisonment The text at [7-500] has been revised to take in amendments to the Crimes (Sentencing Procedure) Act 1999 by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016.

Aggregate sentences Section 53B has been added which provides that the Local Court has a jurisdictional limit of 5 years for aggregate sentences. Dimian v R [2016] NSWCCA 223 has been added at [7-505] for the following propositions: (a) an aggregate sentence cannot exceed the sum of the indicative sentences; and (b) the only circumstance where an indicative sentence might be thought to equate with a non-parole period would be where the sentencing judge expressly states that the indicative sentence was to be treated as a fixed term.

Court not to set non-parole period for sentence of 6 months or less The text at [7-530] is amended to state that a court may decline to set a non-parole period (ie impose a fixed term) for an offence to which a standard non-parole period applies. The s 46(1) prohibition on the imposition of a non-parole period of 6 months or less does not apply if a court imposes an aggregate sentence of more than 6 months for multiple offences: new s 46(2).

Standard non-parole period offences has been amended at [7-980] to reflect amendments to s 45 which now permits fixed terms for standard non-parole period offences.

Sentencing Commonwealth offenders The test at [16-010] General sentencing principles applicable has been amended to include the Victorian decision of DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237 in relation to utilitarian discounts.

Fraud offences in New South Wales The text at [19-930] has been substantially revised.

Particular offences Section [65-300] Conspiracy has been added as a new offence. This section addresses the following sentencing issues in relation to conspiracy:

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Fines The text at [6-110] Availability, which addresses the means to pay principle for fines, has been revised.

Setting terms of imprisonment The text at [7-547] Forward dating sentences of imprisonment has been amended to include White v R [2016] NSWCCA 190. A court does not have power under s 47(5) to post-date the commencement of a sentence of imprisonment where the non-parole period for the first sentence has expired. This is so regardless of whether an offender is eligible to be released on parole in relation to an earlier offence or parole is revoked and the offender is returned to custody.

Objective factors The text at [10-010] Proportionality has been amended under the subheading “Objective seriousness findings” to include a reference to R v Campbell [2014] NSWCCA 102. Proper attention should be given to assessing the objective seriousness of an offence even though it is not necessary to compare it to a notional mid-range offence. The text at [10-022] Use of information about sentences in other cases has been amended to include R v Smith [2016] NSWCCA 75. Care is required in the use of comparable cases and statistics. Comparable cases should be viewed broadly as providing a measure of the types of sentences imposed in similar cases. The text at [10-080] Possibility of summary disposal has been substantially revised to include the cases of Baines v R [2016] NSWCCA 132 and SM v R [2016] NSWCCA 171. Both cases appear to have narrowed the principle that it can be a mitigating factor that the offence could have been disposed of in the Local Court. Baines v R doubted whether it was a rule of law and SM v R held that, in the event that the principle applies, the court can impose a sentence above the Local Court jurisdictional maximum regardless of the stance of the prosecutor.

Subjective matters taken into account (cf s 21A(1)) The text at [10-450] Health has been amended to include a new subheading “Foetal alcohol spectrum disorder (FASD)”. In LCM v State of Western Australia [2016] WASCA 164, the West Australian Court of Appeal considered the medical condition of FASD and cautioned that attention must be directed beyond generalisations to the precise diagnosis, nature and extent of the specific deficits and disabilities and how they bear upon considerations relevant to the sentence.

Section 21A factors “in addition” to any Act or rule of law The text at [11-100] Section 21A(2)(e) — the offence was committed in company has been amended. The words “in company” in s 21A(2)(e) have the same meaning as they have at common law and where the fact the offence was in company is an element of an aggravated offence: White v R [2016] NSWCCA 190. The text at [11-170] Section 21A(2)(l) — the victim was vulnerable has been amended. Section 21A(2)(l) is concerned with the weakness of a particular class of victim and not with the threat imposed by a class of offender: Sumpton v R [2016] NSWCCA 162. The engagement of s 21A(2)(l) does not require causal connection (in the case of murder) between vulnerability and death.

Guilty plea to be taken into account A new section [11-505] Setting aside a guilty plea has been added. The text at [11-514] The R v Borkowski principles has been amended to include Shine v R [2016] NSWCCA 149 and Lee v R [2016] NSWCCA 146. In Shine v R, the applicant should have been given a 25% discount where delay was attributable to the pending outcome of a psychiatric assessment. The failure to make any reference to the pleas and the discount constituted an error in Lee v R.

Court to take other matters into account (including pre-sentence custody) In [12-510] What time should be counted?, a new subheading “Immigration detention” has been added. In R v Parhizkar [2013] NSWSC 871, the court took the time spent in immigration detention into account in an unquantifiable way. In the ACT case of Islam v R [2014] ACTCA 2, the appellant was granted bail but was taken immediately into immigration detention. The sentence was backdated to take account of the detention.

Victims and victim impact statements The text at [12-838] Victim impact statements of family victims has been amended to include R v Halloun [2014] NSWSC 1707 and R v Turnbull (No 24) [2016] NSWSC 830. R v Halloun held that s 28(4) is an important mechanism for ensuring evidence of family victims is before the court. R v Turnbull (No 24) held the term “impact" should not be narrowly construed. It extends to the influence or effect of a death and can extend to devastation caused to the victim’s family and thought processes of victims which may include their strong feelings towards the perpetrator.

Dangerous driving and navigation The text in [18-320] Guideline judgment was amended to confirm that the guideline judgment of R v Whyte (2002) 55 NSWLR 252 remains a check or an indicator: Kerr v R [2016] NSWCCA 218. The offender’s speed may be taken into account as an aggravating factor where it is excessive in light of the surrounding circumstances. The text at [18-332] Momentary inattention or misjudgment was amended. Once it is concluded that an accident was not the result of momentary inattention, the distance during which the driver was inattentive to the road is a relevant and aggravating factor: Kerr v R. The text at [18-334] Prior record and the guideline has been amended to include Kerr v R. The determination of whether a criminal record is a matter of aggravation is largely a matter for the sentencing judge to determine.

Offences against justice/in public office (formerly Public justice offences) The chapter has been revised with the addition of new sections at [20-158] Disrespectful behaviour in court, [20-190] Common law offence of misconduct in public office and [20-195] Resisting/hindering/impersonating police.

Appeals The text at [70-040] Section 6(3) — some other sentence warranted in law has been amended to include Martin v R [2016] NSWCCA 104 where the court grappled with the consequence of the adoption in Kentwell v The Queen (2014) 252 CLR 601 of Spigelman CJ’s analysis in Baxter v R (2007) 173 A Crim R 284. The High Court said in Kentwell v The Queen at [42]: “not ... all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion”. The judge erred in failing to give effect to a finding of special circumstances and the NSWCCA sentencing discretion was exercised afresh and not limited to that error.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness In [1-010] Reasons for decision, a reference to R v Van Ryn [2016] NSWCCA 1 has been added. It is not sufficient for a judge to state the general sentencing principles without explaining how the principles are applied in the case: R v Van Ryn at [123].

Fact finding at sentence A reference to Nguyen v The Queen (2016) 90 ALJR 595 at [28]–[29], [60] has been added at [1-500] De Simoni principle. The De Simoni principle operates for the benefit of an offender. It has nothing to say about the impropriety of a judge taking into account the absence of a circumstance which, if present, would render the subject offence a different offence.

Home detention orders A reference to R v A2 (No 24) [2016] NSWSC 737 has been added at [4-030] Steps involved before ordering home detention. The court closely examined the steps and process when a court is considering home detention. The process is not complete until the ultimate discretion as to whether to order home detention is exercised. The Crown is entitled to make further submissions and adduce additional evidence even after a favourable assessment.

Setting terms of imprisonment A reference to R v Price [2016] NSWCCA 50 was added at [7-507] Settled propositions concerning s 53A. The judge did not err by including sentences for s 166 (Criminal Procedure Act 1986) offences in an aggregate sentence.

Standard non-parole period offences — Pt 4 Div 1A At [7-925] Findings as to where an offence fits relative to the middle of the range, a court is required to assess the objective seriousness of a standard non-parole period offence and the assessment remains a critical component of the sentencing process: R v Van Ryn [2016] NSWCCA 1 at [134] citing R v Campbell [2014] NSWCCA 102 at [27].

Subjective matters taken into account (cf s 21A(1)) The text at [10-470] Deprived background of an offender has been amended to include Ingrey v R [2016] NSWCCA 31. An offender’s disadvantaged background is a factor a court ought to consider; the High Court’s use of the word “may” in Bugmy v The Queen (2013) 249 CLR 571 does not suggest it is optional factor. It was a recognition that there may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect: Ingrey v R at [35]. Although the offender’s disadvantage was not a result of the upbringing by his mother and father, the social disadvantage he experienced growing up and living in his community in which “criminal activity was the norm and likely to distort [his] moral compass” should have been taken into account: Ingrey v R at [27]. In Tsiakas v R [2015] NSWCCA 187, the offender’s solicitor should have given consideration to obtaining relevant background reports but the failure to do so did not cause the sentencing proceedings to miscarry.

In [10-485] Drug addiction, the text under “Drug addiction at a very young age” has been rewritten and also includes Hayek v R [2016] NSWCCA 126. There is no principle of law that a drug addiction which commenced when an offender was young will always operate as a mitigating factor: Hayek v R at [77]. It may be a mitigating factor in the particular circumstances of an individual case, however, an addiction which commenced when the offender was 14 years of age because of peer pressure and in an attempt to “‘look cool’ to impress a girl” but which continued for three decades “did nothing to mitigate the applicant’s crime”: Hayek v R at [41], [80], [83].

In [10-520] Extra-curial punishment, the text under “Self-inflicted injuries” has been revised and also includes Betts v R [2015] NSWCCA 39. Injuries suffered by the offender, which were either self-inflicted or inflicted by the victim at the offender’s request, could not be characterised as extra-curial punishment.

Guilty plea to be taken into account The text in [11-514] The R v Borkowski principles has been amended to make clear that part of principle No 5 — that an Ellis [R v Ellis (1986) 6 NSWLR 603] discount is not to be quantified — no longer applies following Panetta v R [2016] NSWCCA 85. (See further below.)

Power to reduce penalties for assistance to authorities Text on voluntary disclosure of unknown guilt has been moved to [12-218] and references to Panetta v R [2016] NSWCCA 85 have been added. The requirements for discounts for assistance under s 23 extend to an Ellis discount and the judge erred by failing to comply with s 23(4). The court must state the nature and quantum of the discount.

Victims and victim impact statements In [12-832] Victim impact statements and harm caused by sexual assault, references to R v Nelson [2016] NSWCCA 130 and AC v R [2016] NSWCCA 107 have been included. A court should be prepared to have regard to a victim impact statement (VIS) either by confirming or contradicting the presumption of substantial harm which exists for child sexual abuse: R v Nelson at [21]. An unchallenged victim impact statement should have been accepted as confirming the presumption of harm: R v Nelson at [22]. Given a VIS is defined under s 26 as “a statement containing particulars of … any personal harm”, a judge made no error in declining to give weight to a VIS expressing support for applicant: AC v R. Nor was the statement capable of constituting evidence that the offence was mitigated under s 21A(3)(a) because “the injury, emotional harm, loss or damage caused by the offence was not substantial”. The statement cannot sensibly be understood as evidencing either maturity or forgiveness, given the victim was 12-years-old at the time and subjected to extraordinary abuse: AC v R at [55].

Taking further offences into account (Form 1 offences) The text in [13-220] Restrictions on Form 1 procedure has been amended to add R v Van Ryn [2016] NSWCCA 1. It was erroneous to describe the use of a Form 1 procedure as providing “considerable utility”: it involved double counting, a factor in the offender’s favour, since he had already obtained the advantage of a cap on the available sentence confined to the primary offence to which the Form 1 was attached: R v Van Ryn at [214]–[215].

Sentencing Commonwealth offenders In [16-010] General sentencing principles applicable, under “Plea of guilty: s 16A(2)(g)”, the ACTCCA case of R v Harrington [2016] ACTCA 10 has been added. In obiter remarks in DPP (Cth) v Gow [2015] NSWCCA 208, it was said that Cameron v The Queen (2002) 209 CLR 339 has been misapplied in NSW and has nothing to say about the operation of Commonwealth law. R v Harrington held DPP (Cth) v Gow was “clearly wrong” on this point.

In [16-070] Conditional release on parole or licence, the section has been updated to incorporate legislative amendments which abolished automatic release on parole for sentences exceeding 3 years and less than 10 years. Section 19AL(1) Crimes Act 1914 (Cth) provides the Attorney-General (Cth) must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole.

Sexual offences against children The text in [17-541] Child abuse/pornography offences was amended to include a references to Special Bulletin 11 — DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74. It deals with sentencing for the offence of accessing child pornography using a carriage service, contrary to s 474.19(1) of the Criminal Code (Cth) and explains the Victorian Court of Appeal decision of DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74 where the court declined to follow R v De Leeuw [2015] NSWCCA 183.

In [17-570] Mitigating factors, it was an error to describe s 66C offences as “consensual”: R v Nelson [2016] NSWCCA 130. Lack of consent is not an element of the offences of sexual intercourse with children aged 10–14 and 14–16 because the law deems persons of that age unable to give informed consent. Mere lack of opposition is irrelevant and not a mitigating factor: R v Nelson at [23].

Drug Misuse and Trafficking Act 1985 (NSW) offences The text in [19-835] Full-time custody unless exceptional circumstances has been revised to add Forti v R [2016] NSWCCA 127. What constitutes “substantial” involvement in drug supply and whether it can be characterised as trafficking are matters for evaluation in a specific case.

Appeals In [70-010] Overview of Court of Criminal Appeal sentence appeals 2001–2015, the tables have been updated to include appeal figures for 2015.

In [70-040] Section 6(3) — some other sentence warranted in law, a new subheading has been added — “Reception of evidence following a finding of error”. An explanation of Betts v The Queen (2016) 90 ALJR 758 has also been included. As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law under s 6(3) Criminal Appeal Act 1912 is made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation in the period since the sentencing hearing: Betts v The Queen at [2], [11]. For that purpose the offender cannot run a “new and different case”: Betts v The Queen at [2].

In [70-060] Additional, fresh and new evidence, references to Betts v The Queen and Wright v R [2016] NSWCCA 122 have been added. The CCA has flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice: Betts v The Queen at [2], [10]. Wright v R reviewed the principles applicable to the admission of fresh evidence after sentencing. In Wright v R, ill health and advanced age already had major influence on what was a lenient sentence. The appellate court exercised its discretion not to receive fresh evidence.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

A new chapter, Domestic violence offences, has been added at [63-500]ff. It collects the leading sentencing cases on the topic and makes cross-references to specific sections including offences where the issue is addressed.

Procedural fairness In [1-040] Published in oral form under the subheading Later increasing a proposed sentence, reference is made to Toole v R [2014] NSWCCA 318 where the court held that the judge was entitled to impose partially cumulative sentences despite the Crown’s written submission which accepted that concurrent sentences could be imposed.

Fact finding at sentence In [1-460] Agreed statement of facts, reference is made to CL v R [2014] NSWCCA 196 where the offender unsuccessfully challenged the agreed statement of facts to which his legal representatives did not object at first instance.

Intensive correction orders (ICOs) The text at [3-605] Inherently lenient or a substantial punishment? was amended to include R v Cahill [2015] NSWCCA 53. Notwithstanding that an ICO is substantial punishment, it is important not to lose sight of the need for immediate incarceration in cases of serious offending. R v Porte [2015] NSWCCA 174 has been added for the proposition that it is not appropriate to impose ICOs for child pornography offences of substantial objective seriousness. In the text at [3-620] Power to make ICO subject to Pt 5, R v West [2014] NSWCCA 250 has been added for the proposition that a court should not manipulate pre-sentence custody for the purpose of bringing a sentence within the jurisdictional ceiling for the imposition of an ICO.

Fines The text at [6-160] Fines for Commonwealth offences has been amended to update the current value of a penalty unit. The penalty unit amount was increased from $170 to $180 following the commencement of the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth).

Setting terms of imprisonment The text at [7-507] Settled propositions concerning s 53A has been amended to incorporate reference to R v Cahill [2015] NSWCCA 53, Miller v R [2015] NSWCCA 86 and Nguyen v R [2015] NSWCCA 209 as examples of the types of error that can result from non-compliance with s 53A. Reference was also made to commentary in (2015) 22(8) CrimLN 127 at [3572] concerning the approach taken by Basten JA in McIntosh v R [2015] NSWCCA 184.

Standard non-parole period offences — Pt 4 Div 1A In the text at [7-920] Consideration of the standard non-parole period in sentencing, Beale v R [2015] NSWCCA 120 was added for the proposition that an assessment of moral culpability, as distinct from criminal responsibility, in a joint criminal enterprise case cannot be undertaken in circumstances where the evidence does not differentiate between co-offenders. In [7-955] What of cases decided before Muldrock v The Queen?, Davis v R [2015] NSWCCA 90 was added for the proposition that the Crown ought to give careful consideration to the position it adopts when leave to appeal and extension of time is sought on the basis of an alleged “Muldrock error”. It is not to be lightly concluded that a sentencing judge, during the relevant period between R v Way (2004) 60 NSWLR 168 and Muldrock v The Queen (2011) 244 CLR 120, departed from the principles in R v Way. McDonald v R [2015] NSWCCA 80 was also added. The court rejected an argument that the judge had committed a Muldrock error in a case where the offender had pleaded guilty and the snpp was used as a yardstick.

Objective factors The text at [10-022] Use of information about sentences in other cases was revised to include the list of propositions set out by the plurality in the High Court case of The Queen v Pham [2015] HCA 39. The text in [10-024] Use of sentencing statistics — Hili v The Queen has been revised to incorporate the observations in The Queen v Pham in relation to the use that can be made of statistics and comparable cases.

Parity In [10-800] Introduction, Baquiran v R [2014] NSWCCA 221 was added for the proposition that a sentencing judge is not bound by findings of fact made by another judge who has sentenced a co-offender in different sentencing proceedings. Gaggioli v R [2014] NSWCCA 246 was added at [10-830] Co-offenders convicted of different charges for the proposition that there could be no justifiable sense of grievance caused by the different approach taken by the prosecution to charging the two co-offenders.

Section 21A factors “in addition to” any Act or rule of law In [11-105] Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person, the case of Aktar v R [2015] NSWCCA 123 has been added where the court affirmed RA Hulme J’s judgment in Melbom v R [2013] NSWCCA 210 but declined to decide the issue of whether a person who is a guest in a house but asked to leave falls within s 21A(2)(eb).

Guilty plea to be taken into account Reference to Atkinson v R [2014] NSWCCA 262 has been added to [11-514] The R v Borkowski principles. As to principle 9 in R v Borkowski (2009) 195 A Crim R 1, where the delay in the guilty plea is caused by the offender’s legal representative and is not the fault of the offender, the utilitarian value of the plea is not undermined.

Sentencing Commonwealth offenders In [16-002] Relevance of decisions of other State and Territory courts, under the subheading Achieving consistency in sentencing, reference has been made to The Queen v Pham [2015] HCA 39. It is implicit in Pt IB Crimes Act 1914 (Cth) that the court must have regard to sentences imposed in other States and Territories, in determining whether a sentence is manifestly excessive. Reference is made at [16-010] General sentencing principles applicable to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) (which relevantly commenced on 27 November 2015). It amended s 16A(2) Crimes Act 1914 to explicitly include general deterrence as a sentencing consideration and extend a court’s power to reduce a sentence for undertaking to assist authorities to any form of sentencing order and the DPP’s right to appeal for failure to fulfil the undertaking. The amending Act also removed the option of a recognizance release order where a sentence exceeds three years. Further, under the subheading Probable effect of sentence on offender’s family or dependents: s 16A(2)(p), the text has been amended to include Elshani v R [2015] NSWCCA 254, which confirmed the principle in R v Zerafa (2013) 235 A Crim R 265 that only exceptional hardship to an offender’s family can be taken into account under s 16A(2)(p).

Break and enter offences The text in [17-070] Application of s 21A to break and enter offences under the subheading Offence was committed in the victim’s home as an aggravating feature has been amended to include a reference to R v Bennett [2014] NSWCCA 197.

Sexual offences against children The text at [17-541] Child abuse/pornography offences under the subheading Mixture of State and Commonwealth offences has been revised to include reference to R v Porte [2015] NSWCCA 174 at [57], [58]. Increases to maximum penalties reflect the view of the State and Federal Parliaments of the serious criminality involved in child pornography offences: R v Porte at [57], [58]. In R v Porte, the court referred with approval to the principles set out in Minehan v R [2010] NSWCCA 140 and added three further considerations:

The use of scales, such as the CETS (Child Exploitation Tracking System) scale, to categorise the material is a helpful way to assist a sentencing court in assessing the objective seriousness of the offence: R v Porte at [75]. It is of further assistance to provide random sample evidence of the material to the court so that it has before it something more than a formulaic classification which may not communicate the true nature of the material: R v Porte at [77], [114].

Drug Misuse and Trafficking Act 1985 (NSW) offences In [19-835] Full-time custody unless exceptional circumstances, reference is made to a number of NSWCCA cases, including Polley v R [2015] NSWCCA 247, which provide guidance as to what may constitute exceptional circumstances. R v Cahill [2015] NSWCCA 53 at [8] has also been added to the text. Where a judge forms a view that exceptional circumstances exist, it is imperative that appropriate findings of fact are made in relation to the issue.

Robbery The text in [20-230] Robbery in circumstances of aggravation: s 95 has been amended to incorporate reference to the cases of Kukovec v R [2014] NSWCCA 308 and McDonald v R [2015] NSWCCA 280. In McDonald v R, it was held that the court was entitled to take into account actual use of violence as an aggravating factor under s 21A(2)(b) where the offender had been convicted of aggravated robbery and the circumstance of aggravation was the deprivation of liberty. In Kukovec v R, the judge was held to err by taking into account the aggravating factor of “in company” under s 21A(2)(e) where being in company was an element of the offence (aiding and abetting an aggravated robbery).

Sexual assault In [20-760] Other aggravating circumstances a new subheading Risk of pregnancy has been inserted with a reference to the case of KAB v R [2015] NSWCCA 55. There was no denial of procedural fairness for the judge to take into account that there was a high risk of pregnancy when the agreed facts included that the offender had penile/vaginal intercourse with the victim and ejaculated into her vagina where neither party raised the issue at the sentencing hearing notwithstanding that the offender had a vasectomy.

Murder In [30-100] Attempted murder under the subheading Mitigating factors, a reference is made to Davis v R [2015] NSWCCA 90. A pre-existing heart condition, which may have contributed to the death of the victim, was not a mitigating factor.

Manslaughter and infanticide In [40-010] Categories of manslaughter under the subheading Substantial impairment, reference is made to Catley v R [2014] NSWCCA 249. An offender’s mental condition (in this case psychosis) did not play a great part in the commission of the offence and, to the extent that it did, the concomitant reduction in moral culpability had already been taken into account because he had been found guilty of manslaughter rather than murder.

Firearms and prohibited weapons The amendments made by the Firearms and Weapons Prohibition Legislation Amendment Act 2015 (commenced on assent on 24 November 2015) to, inter alia, the Firearms Act 1996 and the Weapons Prohibition Act 1998 have been incorporated at [60-030] Unauthorised possession or use: ss 7(1), 7A(1) and 36(1) and [60-055] Other miscellaneous offences. It increased maximum penalties for multiple firearms offences from 10 to 14 years imprisonment and expanded the offence of defacing or altering firearms. It also created new offences of possessing digital blueprints for firearm or prohibited weapon manufacture. The text at [60-050] Section 51D: possession of more than three firearms has been updated to include references to R v Lachlan [2015] NSWCCA 178. Factors that may render an offence under s 51D(2) serious include that the firearms are in working order and are not stored securely, are loaded or in close proximity to ammunition.

Damage by fire and related offences A new section [63-012] Section 197: dishonestly destroy or damage property and the De Simoni principle is inserted to incorporate the case of Ruge and Cormack v R [2015] NSWCCA 153. In Ruge and Cormack v R, the judge breached the De Simoni principle by taking into account a circumstance of aggravation (that Ruge wanted to commit an insurance job) for which the offender (Cormack) was not charged.

Money laundering The text in [65-215] The application of the De Simoni principle to the statutory scheme has been amended to include Shi v R [2014] NSWCCA 276. It is a breach of the De Simoni principle to take into account for an offence of money laundering contrary to s 400.9 Criminal Code 1995 (Cth) (which only requires that it may be reasonable to suspect that the money or property is the proceeds of crime) that the offender knew the money was the proceeds of crime.

Appeals In [70-030] The ordinary precondition of establishing error under the subheading Errors of fact and fact finding on appeal, it was held that it is incumbent on an applicant in a severity appeal to show that a factual finding was not open to the judge: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [26], [32]. In Clarke v R [2015] NSWCCA 232 at [34], Basten JA disapproved of R v O’Donoghue and opined that it was enough if the judge had made a mistake with respect to a factual finding that was material to the sentence. Button J reviewed the authorities in Turnbull and concluded, however, that the orthodox test of requiring an applicant to demonstrate that the factual finding was not open should remain: Turnbull at [32]. In [70-040] Section 6(3) — some other sentence warranted in law, any comparison of the proposed re-sentence with the original sentence is only made for the purposes of checking that the sentence arrived at by the appellate court does not exceed the original sentence: Thammavongsa v R [2015] NSWCCA 107 at [5]–[6]. The practice of the Crown relying in an appeal on the bare submission that “no other sentence is warranted in law” ought to cease: Thammavongsa v R at [3], [16]. In [70-060] Additional, fresh and new evidence under the subheading Medical evidence cases, Cornwell v R [2015] NSWCCA 269 and Turkmani v R [2014] NSWCCA 186 were added. In Turkmani v R, the court at [66] identified three categories of cases where fresh evidence is sought to be adduced in relation to the health of an offender.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Procedural fairness In [1-010] Reasons for decision, a sentencing judgment should refer to the essential facts and provide some assessment of the serious of the offence: Gal v R [2015] NSWCCA 242 at [37]. New text at [1-045] Excessive intervention by the court include the following statements extracted from Ellis v R [2015] NSWCCA 262 at [65]–[72]:

Fact finding at sentence In [1-420] Disputed factual issues, the following propositions were extracted from Filippou v The Queen (2015) 89 ALJR 750; [2015] HCA 29 at [70]:

The text at [1-480] Application of the Evidence Act 1995 to sentencing was amended to include Lam v R [2015] NSWCCA 143, where it was held, at [58], that it was open to a judge to reject an expert opinion where the opinion was wholly based on a version of facts favourable to offender.

Setting terms of imprisonment The text at [7-505] Aggregate sentences and [7-507] Settled propositions concerning s 53A has been amended to incorporate RL v R [2015] NSWCCA 106 at [63] where the Court of Criminal Appeal in re-sentencing “adopted an indicative sentence which did not involve a fulltime custodial penalty” contrary to proposition 9 in JM v R [2014] NSWCCA 297 at [39]. The text at [7-507] has also been amended to include McIntosh v R [2015] NSWCCA 184 where it has been held that where a court indicates a sentence for an offence that is not subject to a standard non-parole period, it is permissible to indicate a fixed term (or mandatory period of custody).

Standard non-parole period offences — Pt 4 Div 1A The Tables in [8-000] Appendix A: Pt 4 Div 1A and [8-100] Appendix B: Legislative amendments relevant to the Pt 4 Div 1A have been amended to incorporate the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015, which applies to offences committed on or after 21 August 2015. Several firearm offences were assigned a standard non-parole period and the standard non-parole period was increased for a number of other offences.

Objective factors The [10-022] Use of information about sentences in other cases was amended to include the findings that cases decided in the past do not define the permissible range for an offence and that the concept of an “available range” emanating from sentence appeals is merely a reference to the last limb of House v The King (1936) 55 CLR 499 at 505: Barbaro v The Queen (2014) 88 ALJR 372 at [28] and Robertson v R [2015] NSWCCA 251 at [21]. The [10-024] Use of sentencing statistics — Hili v The Queen has been revised to include Skocic v R [2014] NSWCCA 225 at [19] where the court summarised the law in relation to the use of statistics at sentence following Barbaro v The Queen. A new subheading and text Aggregate sentences and JIRS statistics has been added and includes a discussion of Knight v R [2015] NSWCCA 222 where it was held that it was an inherent flaw to use JIRS statistics for a principal offence to assert an aggregate non-parole period and that the aggregate term of sentence was excessive: Knight v R at [88]. Selecting the “multiple offences” variable is of no real utility because it does not limit the database to multiple instances of the same offence: Knight v R at [7]. The statistics do not capture such factors as the broad range of weight and purity of the drug involved and the role of the offender: R v Chidiac [2015] NSWCCA 241 at [40].

Subjective matters taken into account In [10-410] Good character, cases have been incorporated concerning the special rule for child sexual offences under s 21A(5A) that good character cannot be relied upon in stipulated circumstances. The judge had erred in R v Stoupe [2015] NSWCCA 175 at [86] by treating a respondent’s prior good character as a mitigating factor when it assisted in the commission of the offences. In AH v R [2015] NSWCCA 51 at [25], it was held that although the offender’s relationship with the victim’s mother created a trusting environment in which the offences could be committed, the offender’s good character could not be said to have assisted him in the commission of the offences.

Section 21A factors “in addition to” any Act or rule of law The text at [11-290] Section 21A(3)(i) — remorse shown by the offender has been revised to include Mun v R [2015] NSWCCA 234 at [34]–[41]. An offender is not required to give evidence to demonstrate remorse. Relying upon hearsay statements to show remorse will affect the weight of the evidence. It is a practice that is not to be encouraged.

Power to reduce penalties for assistance to authorities Reference to CMB v Attorney General for NSW (2015) 89 ALJR 407 at [78] has been added to [12-220] “Unreasonably disproportionate” penalty — s 23(3). The appellate task is to determine whether it was open to the sentencing judge to decide whether the sentence actually imposed is unreasonably disproportionate.

Children (Criminal Proceedings) Act 1987 In [15-020] Hearings, Siddiqi v R [2015] NSWCCA 169 has been added to text under the subheading Admissibility of evidence of prior offences. Inadmissible evidence of criminal history was erroneously considered in sentencing and the offender was denied leniency that might have otherwise been expected.

Sentencing Commonwealth offenders In [16-010] General sentencing principles applicable, under the subheading Plea of guilty: s 16A(2)(g), reference has been included to the obiter dictum in DPP (Cth) v Gow [2015] NSWCCA 208 at [26]–[28], [72] to the effect that Cameron v The Queen (2002) 209 CLR 339 has been misapplied in NSW. Cameron v The Queen did not limit the impact of a federal offender’s plea of guilty to an assessment of the extent to which it demonstrated a willingness to facilitate the course of justice.

Manslaughter and infanticide The discussion of excessive self-defence at [40-010] Categories of manslaughter has been amended to include Smith v R [2015] NSWCCA 193 at [45], [56], [59]. The response of an offender “in the circumstances as he or she perceives them” requires a sentencing judge to make a finding as to what the offender perceived the circumstances to be, and to evaluate the degree to which the conduct departed from what would have been a reasonable response to those circumstances as perceived.

Firearms and prohibited weapons The chapter has been updated to include amendments by the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015.

Unless otherwise stated, section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Standard non-parole period offences — Pt 4 Div 1A The text at [7-895] includes a summary of the amendments made by the Crimes Legislation Amendment (Child Sex Offences) Act 2015. The Table in Appendix A: Pt 4 Div 1A Table at [8-000] has been amended to incorporate new offences with a standard non-parole period introduced by the amending Act. A new Appendix B: Legislative amendments relevant to the Pt 4 Div 1A Table has been inserted at [8-100], which sets out and describes all the legislative amendments relevant to the Table since 2003.

Objective factors The text at [10-020] Consistency, [10-022] Use of information about sentences in other cases, [10-024] Use of sentencing statistics — Hili v The Queen and [10-026] Enhancement of JIRS statistics following Hili v The Queen have been substantially rewritten to incorporate, inter alia, passages from the High Court cases of Barbaro v The Queen (2014) 242 CLR 520, Munda v Western Australia (2013) 249 CLR 600 and the CCA cases of RCW v R (No 2) [2014] NCWCCA 190 at [48], Atai v R [2014] NSWCCA 210 at [147], Skocic v R [2014] NSWCCA 225 at [19]–[20], Peiris v R [2014] NSWCCA 58 at [96] and Tweedie v R [2015] NSWCCA 71 at [45].

Subjective matters taken into account The text at [10-470] Deprived background of an offender has been amended to include Kentwell v R (No 2) [2015] NSWCCA 96 where the principle in Bugmy v The Queen (2013) 249 CLR 571 was applied where the offender had been removed from his family and adopted by a non-Aboriginal family. The text at [10-530] Delay has been rewritten to divide the text into the following discrete topics: Rehabilitation during a period of delay, Delay — state of uncertain suspense and Circumstances in which delay may not entitle an offender to leniency.

Victims and victim impact statements At [12-830], a new section — Cross-examination and victim impact statements — has been inserted. Although it is not envisaged that a victim would be cross-examined, the position may be different in relation to a “qualified person” under cl 8 Crimes (Sentencing Procedure) Regulation 2010: Muggleton v R [2015] NSWCCA 62 at [44]. At [12-870] Federal offences, B v R [2015] NSWCCA 103 has been added. There, the court held that there was no denial of natural justice where there was failure to permit cross-examination.

Sexual Offences against children at [17-420], [17-480], [17-490], [17-535], [17-540] and [17-541], and Sexual assault at [20-605] have been amended to incorporate the amendments made by the Crimes Legislation Amendment (Child Sex Offences) Act 2015, particularly in relation to the substitution of s 66A Crimes Act 1900 or to make clear that a standard non-parole period applies to various specific sexual assault offences referred to in Sch 2[2] of the amending Act.

Other Acts Text on the Mental Health (Forensic Provisions) Act 1990 has been revised. At [90-040] Limiting terms, general deterrence and denunciation under s 3A may be irrelevant when sentencing an offender suffering a mental condition: R v AB [2015] NSWCCA 57 at [41]. A new section — Extension and expiration of limiting terms — has been added to [90-040]. At [90-050] Part 3 — Summary proceedings before a magistrate, DPP v Soliman [2013] NSWSC 346 at [56]–[60] has been added. The court set out the reasons that should be given where an order under s 32 Mental Health (Forensic Provisions) Act is made.

Unless otherwise stated section numbers refer to the Crimes (Sentencing Procedure) Act 1999.

Appeals Updated figures showing the success rates for severity and Crown appeals for the years 2012, 2013 and 2014 have been added to Overview of Court of Criminal Appeal sentence appeals 2001–2014 at [70-010]. Equivalent figures have been added for standard non-parole period offence appeals within both severity and Crown appeals. The text in The ordinary precondition of establishing error at [70-030] has been amended to include Lay v R [2014] NSWCCA 310 at [52] and AB v R [2014] NSWCCA 339 at [44] concerning the circumstances in which the CCA will interfere with the findings of fact of the judge. The text in Purpose of Crown appeals at [70-090] has been amended to include the High Court decision of CMB v Attorney General for NSW (2015) 317 ALR 308. The court set out the two hurdles the Crown is required to surmount in an inadequacy of sentence appeal. The onus is on the Crown (once the discretion under s 5D Criminal Appeal Act 1912 to re-sentence is enlivened) to demonstrate to the court that it should exercise its discretion. Sabongi v R [2015] NSWCCA 25 has been added for the proposition that the CCA will be slow to interfere with the characterisation by a sentencing judge of the objective seriousness of the crime. The text in The residual discretion to intervene at [70-100] has been amended to include CMB v Attorney General for NSW particularly in relation to the conduct of the Crown at first instance in submitting that a non-custodial sentence should be imposed and/or leading the court into error.

Section 9 good behaviour bonds Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653 at [43] has been added to Breach of bond at [4-770]. Consent from an offender for the purposes of a court of superior jurisdiction dealing with a suspected breach of a s 9 bond must occur at the time when the offender is called upon to appear before the court rather than at the appearance.

Suspended sentences R v RM [2015] NSWCCA 4 at [53] has been added to Suspended sentences and multiple offences at [5-760]. A court which decides to impose a suspended sentence is prohibited from utilising the aggregate sentencing provisions in s 53A. R v Taane [2014] NSWCCA 330 at [39] was added to Timing of disposal of further or subsequent offences at [5-785]. In re-sentencing following a breach, the correct sequential approach is to first revoke the bond and then consider the appropriate sentence for the offence at the same time as considering what sentences should be imposed for any later offences. Lambert v R [2015] NSWCCA 22 at [46] has been added to Effect of revocation and commencement of the sentence at [5-790]. On revoking a bond, sentence proceedings can miscarry if the court fails to consider an intensive correction order or home detention (under s 99(2)) where they are realistic sentencing outcomes.

Setting terms of imprisonment The text in Settled propositions concerning s 53A at [7-507] and Appellate review of an aggregate sentence at [7-508] has been rewritten to include the extensive discussion and settled principles concerning aggregate sentencing of RA Hulme J in JM v R [2014] NSWCCA 297 at [39]ff. Sabongi v R [2015] NSWCCA 25 was added to Giving effect to finding of special circumstances at [7-516]. The sentencing judge failed to give effect to a finding of special circumstances on the overall or effective sentence.

Subjective matters taken into account The text in Drug addiction at [10-485] has been substantially revised. The decisions of Toole v  R [2014] NSWCCA 318 and Brown v R [2014] NSWCCA 335 have been added to the discussion of addiction attributable to some other event for which the offender was not primarily responsible.

Court to take other matters into account (including presentence custody) The text in Counting pre-sentence custody at [12-500] has been amended to include R v West [2014] NSWCCA 250 at [36] ff. It is an error for a court to unilaterally revoke bail for the purpose of having the period of pre-sentence custody later taken into account for an intensive correction order. The text in What time should be counted? at [12-510] has been amended to include Barnes v R [2014] NSWCCA 224 at [29]. A court has a discretion to impose a partly concurrent or wholly consecutive sentence upon a revoked parole period. The five-judge bench case of Hampton v R [2014] NSWCCA 131 at [27] has been included in the text at [12-510]. Time spent in custody in relation to offences for which an offender is discharged is not to be taken into account as a form of credit and there is nothing requiring a court to take custody for an unrelated offence into account under the Act.

Victims and victim impact statements The text in Evidentiary status and use of victim impact statements at sentence at [12-830] and Victim impact statements and harm caused by sexual assault at [12-832] has been amended to include the extensive discussion of Simpson J in R v Tuala [2015] NSWCCA 8 at [52]–[81] concerning the evidentiary status and use of victim impact statements. The text under the subheading Aggravating factors at [12-830] has been rewritten to incorporate the propositions as to when caution must be exercised before a victim impact statement can be used to establish an aggravating factor.

Taking further offences into account (Form 1 offences) The text in The statutory power to reject a Form 1 under s 33(2)(b) at [13-260] has been amended to include the discussion in Elias v The Queen (2013) 248 CLR 483 concerning the scope for judicial intervention and the separation of the Executive and judicial functions at sentence.

Correction and adjustment of sentences Bungie v R [2015] NSWCCA 9 at [40] has been added to Re-opening proceedings under s 43 at [13-910]. A reopening (to correct an error) does not permit an offender to seek a different outcome on new or different evidence.

Sentencing Commonwealth offenders The text in General sentencing principles applicable at [16-010], addressing s 16A(2)(f) Crimes Act 1914 (Cth) (contrition by taking action to make reparation) has been amended to include R v Host [2015] WASCA 23. Section 16A(2)(f) has to be read down to accommodate s 320 Proceeds of Crime Act 2002. The latter section provides that the fact pecuniary penalty order payments are made is an irrelevant consideration at sentence.

Setting terms of imprisonment The text at [7-505] has been amended to incorporate the Crimes Legislation Amendment Act 2014 which amended s 53A to provide that the court must make a written record of the fact that an aggregate is being imposed and the sentences it would have imposed had a separate sentence been imposed. Khawaja v R [2014] NSWCCA 80 at [18] and R v Lolesio [2014] NSWCCA 219 at [87]–[91] have been added to the discussion of the judicial obligation under s 53A(2)(b) to assess the criminality for each offence. A discount for a guilty plea must be applied to each indicative sentence and not to a hypothetical aggregate: SHR v R [2014] NSWCCA 94 at [41], [43]. The text at [7-510] has been amended to include Briouzguine v R [2014] NSWCCA 264 at [67]. The need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances, but it must be justified by the special requirements of the case.

New text on the forward dating of sentences of imprisonment has been inserted at [7-547]. A direction under s 47(2)(b) to forward date may not be made in relation to a sentence of imprisonment imposed on an offender who is serving another term of full-time imprisonment if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. Thompson-Davis v R [2013] NSWCCA 75 at [52] is included in this discussion. New text on information about the release date has been added at [7-550]. Farkas v R [2014] NSWCCA 141 has been included where there was a division of opinion as to the appropriate eligibility date of parole. In R v BA [2014] NSWCCA 148 it was held it was not inconsistent with the Crimes (Sentencing Procedure) Act 1999 to order a person’s release on the last day of the non-parole period. Technical difficulties in entering the terms of the order into the court’s computerised record system can be avoided by making an order directing “that the offender be released on parole at the end of the non-parole period” rather than specifying a date.

Standard non-parole period offences — Pt 4 Div 1A This chapter has been substantially rewritten to incorporate Special Bulletin 5 which explained the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013. The aspects of Muldrock v The Queen (2011) 244 CLR 120 which remain relevant are articulated at [7-895]. Paragraph [7-910] contains a discussion of what facts might be included in the text in s 54A(2) “only the objective factors affecting the relative seriousness of that offence”? The discussion addresses mental condition, provocation and other additional factors.

A new paragraph concerning the consideration of standard non-parole periods in sentencing has been inserted at [7-920]. The repeal of s 54B(2) and the phrase “is to set” evinces an intention that a standard non-parole period is not to have determinative significance in the sentencing exercise. Under the new s 54B(2), it is “a matter to be taken into account by a court in determining the appropriate sentence”. The standard non-parole period is to take its place as a legislative guidepost. The discussion covers the issues of standard non-parole periods and the notion of moral culpability, findings about objective factors and relative seriousness and, at [7-925], findings as to where an offence fits relative to the middle of the range. A revised [7-955] discusses Muldrock appeals including applications for leave to appeal out of time and appeals under Pt 7 Crimes (Appeal and Review) Act 2001.

Appeals The text at [70-125] and [70-135] incorporates recent sentence appeals by the Crown and defendants from the Local to the Supreme Court. The revised text articulates the scope of these appeals including the decision of Roads and Maritime Services v Porret [2014] NSWCA 30 at [33].

Appeals Kentwell v The Queen [2014] HCA 37 and O’Grady v The Queen [2014] HCA 38 have been added at [70-020]. An applicant for an extension of time to apply for leave to appeal against sentence is not required to demonstrate that substantial injustice was occasioned by the sentence. A court must consider what the interests of justice require. The merits of appeal and prospects of success are relevant to extension of time applications and should be addressed by reference to s 6(3). Kentwell v The Queen has been added at [70-040] to set out the statutory duty of the CCA in severity appeals under s 6(3) where error is established. The court must exercise its discretion afresh to determine a whether lesser sentence is warranted in law. Bugmy v The Queen (2013) 249 CLR 571 at [22], [53] has been added at [70-090]. Grounds of appeal which assert the judge attributed insufficient weight to a factor do not engage the kinds of specific errors referred to in House v The King (1936) 55 CLR 499. The CCA cannot substitute a sentence under s 5D Criminal Appeal Act 1912 unless it first makes a finding that the sentence imposed is below the range: Bugmy v The Queen at [24]. R v Reeves [2014] NSWCCA 154 has been added to the discussion of the residual discretion at [70-100].

Fines Although Jahandideh v R [2014] NSWCCA 178 concerned s 16C(1) Crimes Act 1914 (Cth) it has been added at [6-110] because it cites common law cases which are relevant to the means to pay principal under State law. An offender’s financial circumstances do not dictate the fine that is to be imposed. Consideration of the financial circumstances of an offender may increase, rather than decrease, a fine in order for it to be a deterrent.

Victims and victim impact statements The text at [12-820] has been amended and a new [12-838] has been inserted to incorporate Special Bulletin 7, which explains the effect of the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014.

Sentencing Commonwealth offenders The text at [16-002] addressing the relevance of decisions of other State and Territory courts has been amended to include Barbaro v The Queen (2014) 88 ALJR 372 at [40], on the issue of the proper and ordinary use of sentencing statistics. Jahandideh v R [2014] NSWCCA 178 (referred to above) has been added at [16-030]. Lam v The Queen [2014] WASCA 114 has been added at [16-050] to the discussion concerning the fixing of non-parole periods for Commonwealth offences.

Manslaughter R v Wood [2014] NSWCCA 184 has been added at [40-000] for the proposition that statistics for manslaughter are of limited assistance due to wide variation of offences. Grant v R [2014] NSWCCA 67 at [64]–[66] and R v Nguyen [2013] NSWCCA 195 have been added at [40-010] to the discussion of the mental ingredients of manslaughter by excessive self-defence.

Commonwealth drug offences The text has been revised with reference to recent Research Monograph 38, Sentencing Commonwealth drug offenders. The discussion at [65-150] on achieving consistency has been re-written.

Money laundering R v Ly [2014] NSWCCA 78, which sets out a list of specific principles, has been added at [65-200]ff.

Procedural fairness The text at [1-040] Opportunity of addressing the court on issues has been amended to include R v Wang [2013] NSWCCA 2 at [81] as to the approach taken by the Court of Criminal Appeal where the procedural breach is a failure by the judge to foreshadow the rejection of uncontested evidence.

Purposes of sentencing The text at [2-240] has been amended to include Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 30 ALR 186 at [66] in the discussion of deterrence. The High Court said “[g]eneral and specific deterrence must play a primary role in assessing the appropriate [civil] penalty in cases of calculated contravention of legislation for commercial profit”.

Deferral for rehabilitation or other purpose The chapter at [5-400]ff has been revised to include the amendments of s 11 by the Bail (Consequential Amendments) Act 2014 as a consequence of the commencement of the Bail Act 2013. The case of R v Farrell [2014] NSWCCA 30 at [51], [58] has also been added. There must be good reason for concluding that a s 11 adjournment is likely to assist the court in determining whether a custodial sentence should be imposed and, if so, in assessing the length of the sentence or non-parole period.

Setting terms of imprisonment The text at [7-505] Aggregate sentences has been amended to include AB v R [2014] NSWCCA 31 at [10] which held it is unnecessary to specify commencement dates for indicative sentences and it is an error for a court to indicate a fixed term sentence for a standard non-parole period offence. Special circumstances under ss 44(2) or 44(2B) at [7-510] has been revised and rewritten. The cases of CM v R [2013] NSWCCA 341 at [39] and AB v R have been added under the heading Giving effect to finding of special circumstances.

Objective factors The text at [10-000] Maximum penalty has been amended to include Elias v The Queen (2013) 248 CLR 483 at [27]–[28] for the propositions that giving careful attention to the maximum penalty does not mean that it will necessarily play a decisive role and, further, a maximum penalty should not constrain a court’s discretion with the result that it imposes an inappropriately severe sentence on an offender.

Section 21A factors “in addition to” any Act or rule of law In the text at [11-230], Pitt v R [2014] NSWCCA 70 at [57], [65] has been added to the commentary concerning s 21A(3)(c). The extreme provocation of the deceased and his brother towards the applicant was a basis for reducing the sentence on appeal.

Guilty plea to be taken into account In the text at [11-514] The R v Borkowski principles have been amended to include Milat v R [2014] NSWCCA 29 at [72], [75] [92]. A utilitarian discount was withheld on the basis of the extreme circumstances of the murder. The range of cases where no discount may be given extends to those where the sentence imposed is less than the statutory maximum. The case of R v El-Andouri [2004] NSWCCA 178 at [34], which purported to confine the circumstances in which a plea will not warrant any discount, has the potential to misrepresent what the Chief Justice actually said in the guideline judgment: Milat v R at [83].

Power to reduce penalties for assistance to authorities In the text at [12-215] Scope of s 23(1) including reporting sexual abuse has been amended to include Peiris v R [2014] NSWCCA 58 at [38]. Section 23(1) applies to assistance given by the offender for “the offence concerned or any other offence”. This broad wording will create “difficulties” and will require resolution: Peiris v R at [38]. The case of CM v R [2013] NSWCCA 341 at [45]–[48], which has been added at [12-230] Application of discount under the heading Method of calculation of discount — combined or separate?, held that ordinarily a court is required to apply a discount to each sentence. When there is a degree of accumulation of multiple sentences, it is necessary to ensure that any discount is not eroded by the process of accumulating sentences but it need not be reflected with mathematical precision in the effective term.

Victims and victim impact statements In the text at [12-830] Evidentiary status and use of victim impact statements at sentence has been amended to include R v Gavel [2014] NSWCCA 56 at [110] and R v CMB [2014] NSWCCA 5 at [92] where the court observed child sex offences have profound and deleterious effects upon victims for many years and the high maximum penalty and standard non-parole period for some sexual offences reflects the harm that is caused.

Correction and adjustment of sentences The text at [13-900] has been revised and rewritten. At common law a court may review, correct or alter its judgment any time until its orders have been perfected: Achurch v The Queen (2014) 88 ALJR 490 at [17]. The slip rule allows for a limited correction of an order after its final entry: Achurch v The Queen at [18]. The statutory power under s 43 to re-open a proceeding can be used to correct a penalty which exceeds the maximum penalty or one which is beyond the power of the court. Section 43 cannot be applied to any penalty where the court was influenced by an error of law or fact including computation errors or errors in relation to commencement dates. The latter errors have to be corrected using the courts’ inherent or implied power or under the slip rule.

Appeals A new [70-065] Miscarriage of justice arising from legal representation has been inserted and [70-060] Additional, fresh and new evidence has been amended to include Grant v R [2014] NSWCCA 67 at [55]. A miscarriage of justice occurred at sentence by the legal representative failing to explain to the client the various states of mind within the offence of manslaughter and then informing the court what he thought his client’s intention was without clear instructions: Grant v R at [71], [77].

Particular offences

In the Detain for advantage/kidnapping chapter, R v Ball [2013] NSWCCA 126 at [117] has been added to [18-715] Factors relevant to the seriousness of an offence under the heading Sentences other than full-time imprisonment generally not appropriate for the proposition an intensive correction order is not an appropriate form of punishment because it does not address the issue of general deterrence.

In the Sexual assault chapter, text at [20-775] Factors which are not mitigating at sentence under the heading The relevance of a prior relationship has been amended to include, inter alia, R v Cortese [2013] NSWCCA 148 at [55], NM v R [2012] NSWCCA 215 at [59] and Bellchambers v R [2011] NSWCCA 131 at [47]. A pre-existing relationship between an offender and a victim does not mitigate the criminality of the sexual assault. Cases where there is initial consent on the part of the victim have been contrasted to an assault committed by a stranger where there is no such potential.

Obligations of the parties The chapter on “The prosecutor” at [1-200] has been amended to include Barbaro v The Queen (2014) 88 ALJR 372 which sets out the role of the prosecutor at sentence. A prosecutor should not be permitted, to make a submission as to the bounds of the available sentencing range.

Subjective matters taken into account (cf s 21A(1)) The following topics have been updated:

Victims and victim impact statements The statutory scheme enacted by the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) for victim impact statements for Commonwealth offences is described at [12-870].

Particular offences

Assault, wounding and related offences The chapter at [50-150] has been amended to include reference to the new offences created by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014.

Fact finding at sentence Youkhana v R [2013] NSWCCA 85 has been added at [1-480] — the judge directed that the Evidence Act 1995 apply to sentence proceedings and admitted a hearsay statement in the Crown case. R v Nguyen [2013] NSWCCA 195 has been added at [1-500] — it is a breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 to take into account the absence of a fact that if present would have rendered an offender guilty of more serious offence.

Purposes of sentencing Munda v Western Australia [2013] HCA 38 at [54] has been added at [2-240] under the sub-heading “Arguments about the limited utility of general deterrence”. The High Court acknowledged that general deterrence has limited utility in some circumstances and retorted with three responses.

Intensive correction orders (ICOs) R v Glynatsis [2013] NSWCCA 131 has been added at [3-605] — the mode of serving sentences of imprisonment by way of an ICO did not adequately provide for general deterrence, given the nature of the criminality of nine insider trading offences. A reference has been at [3-640] in relation to the new mandatory condition that an offender submit to a medical examination in relation to capacity to undertake community service work as directed by a supervisor. A new paragraph has been added at [3-665] to address performance of ICOs and the discussion of breaches at [3-670] has been revised.

Suspended sentences R v Eckermann [2013] NSWCCA 188 has been added at [5-750] — asking whether a sentence of imprisonment should be suspended before announcing the term of imprisonment does not necessarily indicate error (that is, that the court overlooked the necessity of first determining the length of the sentence). A new paragraph has been added at [5-760] to address the issue of suspended sentences and multiple offences and also the fact that a court cannot utilise the aggregate sentence provisions in s 53A when imposing a suspended sentence.

Concurrent and consecutive sentences Franklin v R [2013] NSWCCA 122 and Magnuson v R [2013] NSWCCA 50 have been added at [8-230] to address the scenarios where several sexual offences are committed in one event or where a court can impose wholly cumulative sentences for discrete sexual offences committed on separate victims over an extended period. R v Hawkins [2013] NSWCCA 208 has also been added — the concurrency of various sentences for fraud offences meant the respondent effectively received no punishment for six of the offences.

Mandatory life sentences under s 61 Ngo v R [2013] NSWCCA 142 has been added at [8-600] and [8-630] — s 61(1) applies to all sentencing proceedings commenced after 3 April 2000, regardless of when the offence occurred. The phrase “can only be met” in s 61(1) is devoid of content in the sense that if the judge reaches the level of satisfaction required there is no room to impose a sentence other than life. It is difficult to reconcile the mandatory terms of s 61(1) with the preservation of s 21(1) Crimes (Sentencing Procedure) Act (general power to reduce penalties) in s 61(3).

Objective factors (cf s 21A(1)) Elias v The Queen [2013] HCA 31 has been added at [10-085] — a lesser offence that the prosecution could have proceeded upon is not relevant to the sentencing exercise.

Subjective matters taken into account (cf s 21A(1))

Section 21A factors “in addition to” any Act or rule of law The discussion of s 21A(2)(eb) offences committed in the home of the victim or any other person at [11-105] has been rewritten to include the decisions of Montero v R [2013] NSWCCA 214, Melbom v R [2013] NSWCCA 210 and DJM v R [2013] NSWCCA 101. Doubt has been expressed about the limitation that has been placed on s 21A(2)(eb) that it cannot be applied when the offence was committed in the home of the offender and victim.

Victims and victim impact statements Munda v Western Australia [2013] HCA 38 has been added in the introduction at [12-790] — it is the role of the criminal law to vindicate the dignity of each victim of violence and to discourage victims from resorting to self-help. A new sub-heading “Victim impact statements and harm caused by sexual assault” has been added to [12-830] along with the decisions of RO v R [2013] NSWCCA 162 and RP v R [2013] NSWCCA 192 concerning factual findings about substantial harm.

Correction and adjustment of sentences This section at [13-900]ff has been re-written to include, among other things, Achurch v R (No 2) [2013] NSWCCA 117 — jurisdiction to re-open is only enlivened where the error led to a penalty contrary to law and generally the error will be apparent from the sentence itself and not from the reasoning.

Dangerous driving King v The Queen (2012) 245 CLR 588 has been added to the discussion of the statutory hierarchy of driving at [18-370] — dangerous driving is not a species of negligent driving. To the extent the decision in R v Buttsworth [1983] 1 NSWLR 658 holds otherwise, it is disapproved. Cases which have followed R v Buttsworth are similarly qualified.

Firearms and prohibited weapons offences A new paragraph has been added at [60-045] to address sentencing for the unauthorised manufacture of firearms. The decisions of Smart v R [2013] NSWCCA 37 and Troung v R [2013] NSWCCA 36 have been included.

Money laundering Wang v R [2013] NSWCCA 2 and Majeed v R [2013] VSCA 40 have been added at [65-210] — as there is a very wide range of circumstances that can encompass the offence, sentences imposed in other cases are of limited assistance and there is no discernible sentencing range. Ihemeje v R [2012] NSWCCA 269 has been added to the discussion at [65-225] — sentences should be higher for offenders who obtain higher rewards and have a lower risk of detection.

Procedural fairness A warning under the Crimes (High Risk Offenders) Act 2006 has been added at [1-070].

Deferral for rehabilitation or other purpose The legislative references in this chapter were updated. References to Rayment v R (2010) 200 A Crim R 48 have been added to the discussion of Crown appeals at [5-400].

Setting terms of imprisonment References to R v Rae [2013] NSWCCA 9 and the necessity for implicit accumulation where an aggregate sentence is set have been made at [7-505]. A new paragraph has been added at [7-545] Rounding sentences to months focusing on the decision in Rios v R [2012] NSWCCA 8.

Standard non-parole period offences — Pt 4 Div 1A The paragraph at [7-955] What of cases decided before Muldrock v The Queen? has been amended to add a subheading “Re-opening not available” and a reference to Achurch v R (No 2) [2013] NSWCCA 117. Reference to Beveridge v R [2011] NSWCCA 249 at [28] has also been added at [7-990] concerning the effect of standard non-parole period on sentencing levels for cultivation offences.

Subjective matters taken into account (cf s 21A(1)) Reference to ZZ v R [2013] NSWCCA 83 at [110] (the out of character exception is narrow and rarely applies) has been added to [10-480] Intoxication.

Section 21A factors “in addition” to any Act or rule of law from [11-000] has been substantially revised. Paragraphs [11-230] Section 21A(3)(c) — the offender was provoked by the victim and [11-240] Section 21A(3)(d) — the offender was acting under duress were re-written. New text was also added at [11-195], [11-340] and [11-350].

Power to reduce penalties for assistance to authorities At [12-205] a reference to LB v R [2013] NSWCCA 70 at [44] was made regarding the statutory requirement to indicate the reduction for assistance. A new [12-215] Extension to sexually abused offenders who assist has been inserted discussing RJT v R (2012) 218 A Crim R 490, which held a discount for assistance can be given to an offender who reports sexual abuse.

Victims and victim impact statements Paragraph [12-860] has been amended relating to court ordered compensation for victims following the enactment of the Victims Rights and Support Act 2013. The changes include the addition of a new segment on Victims support levies.

Murder A new paragraph has been inserted at [30-025] to explain the new provisional sentencing of offenders who were less than 16 years of age at the time of the murder.

Appeals Paragraph [70-090] has been amended to add text concerning appeals from aggregate sentences and the impact of the decision in R v Rae [2013] NSWCCA 9.

Purposes of Sentencing Reference to R v Pogson [2012] NSWCCA 225 has been added to the discussion of rehabilitation at [2-260] and [2-270].

Intensive correction orders (ICOs) The section was rewritten to take account of R v Pogson at [3-600]ff; Whelan v R [2012] NSWCCA 147, R v Tannous [2012] NSWCCA 243 and Zreika v R [2012] NSWCCA 44 at [3-635].

Setting terms of imprisonment Revised text concerning aggregate sentences has been added at [7-505] to include R v Nykolyn [2012] NSWCCA 219 and R v Brown [2012] NSWCCA 199. Commentary on s 45(1) Crimes (Sentencing Procedure) Act 1999 in [7-520] has been updated to include Collier v R [2012] NSWCCA 213. Parole orders by court at [7-570] includes reference to R v Cross (No 2) [2012] NSWCCA 234.

Standard non-parole period offences — Pt 4 Div 1A At [7-890]ff, the effect of Muldrock v The Queen (2011) 244 CLR 120 on the role accorded to standard non-parole periods has been updated to include references to Aldous v R [2012] NSWCCA 153, Zreika v R, Bolt v R [2012] NSWCCA 50, GN v R [2012] NSWCCA 96, Stewart v R [2012] NSWCCA 183, Williams v R [2012] NSWCCA 172, R v Ehrlich [2012] NSWCCA 38, Beldon v R [2012] NSWCCA 194 and R v Dungay [2012] NSWCCA 197.

Objective factors (cf s 21A(1)) The availability of a less punitive sentencing regime is discussed at [10-085]. Zreika v R has been added at [10-080] concerning the possibility of summary disposal.

Children (Criminal Proceedings) Act 1987 A discussion of JM v R [2012] NSWCCA 83 has been included at [15-070] in relation to setting terms of imprisonment for juveniles. The text addressing Youth Conduct Orders has been amended.

Sentencing Commonwealth offenders The commentary regarding the plea of guilty under s 16A(2)(g) Crimes Act 1914 (Cth) has been rewritten to include Lee v R [2012] NSWCCA 123.

Particular offences

Appeals This section has been updated to include the figures for appeals in 2010 and 2011 in the severity and Crown appeals tables at [70-010]. Text which addresses the failure to mention a matter has been added in light of Stewart v R, Hanania v R [2012] NSWCCA 220 and Zreika v R. The section regarding fresh evidence has been rewritten at [70-060].

Particular offences

A new segment [65-200] Money laundering has been inserted, discussing the Commonwealth provisions in Pt 10.2 of the Criminal Code (Cth). The following topics are canvassed in the new segment:

The text includes reference to recent cases such as Milne v R [2012] NSWCCA 24, R v Li (2010) 202 A Crim R 195, R v Guo (2010) 201 A Crim R 403 and Ungureanu v R [2012] WASCA 11.

The chapter on Commonwealth drug offences can now be found at [65-100]ff.

Several consequential amendments have been made to the Bench Book as a result of Muldrock v The Queen (2011) 244 CLR 120. The amendments delete, qualify or caution Bench Book users of NSWCCA cases which applied R v Way (2004) 60 NSWLR 168 in the specific offences section.

The section numbers below, except where indicated otherwise, refer to those in the Crimes (Sentencing Procedure) Act 1999.

[1-200] Obligations of the parties

[1-200] The prosecutor has been amended to include a reference to R v Lipton [2011] NSWCCA 247 and Director of Public Prosecutions Amendment (Disclosures) Act 2011 concerning the Crown’s obligations of disclosure at sentence. A list of various papers by Public Defenders is also included at [1-210] The defence.

[1-400] Fact finding at sentence

[1-480] Application of the Evidence Act 1995 to sentencing has been amended to include a reference to Badans v R [2012] NSWCCA 97, which held that a court does not have a power to make an order for costs under the Evidence Act unless it has made a direction under s 4(2) that the Act applies to sentence proceedings.

[12-200] Power to reduce penalties for assistance to authorities

[12-205] New statutory requirement to make a record and [12-230] Application of discount have been substantially revised in light of the decision of R v Ehrlich [2012] NSWCCA 38.

[12-500] Court to take other matters into account (including pre-sentence custody)

[12-510] What time should be counted? has been amended to include a reference to R v DW [2012] NSWCCA 66. [12-520] Quasi-custody bail conditions has been substantially revised.

[12-790] Victims and victim impact statements

The whole section has been substantially revised and paragraph [12-830] has been renamed Evidentiary status of victim impact statements at sentence.

[50-000] Assault, wounding and related offences

The commentary in paragraph [50-010] Crimes Amendment Act 2007 concerning recklessness has been amended and renamed Repeal of malice: Crimes Amendment (Reckless Infliction of Harm) Bill 2012.

The section numbers below, except where indicated otherwise, refer to those in the Crimes (Sentencing Procedure) Act 1999.

[2-200] Purposes of Sentencing

At [2-210] Section 3A, a reference to Muldrock v The Queen (2011) 244 CLR 120 at [20] has been added.

[5-000] Section 10 dismissal of charges and conditional discharge

At [5-010] Section 10 bonds compared to s 9 bonds and [5-020] Use of s 10 orders generally, R v Mauger [2012] NSWCCA 51 at [37]–[41] (the differences between s 9 and s 10 bonds) has been inserted.

[7-890] Standard non-parole period offences — Pt 4 Div 1A

At [7-955]–[7-990], commentary has been substantially amended to include cases which applied Muldrock, including Butler v R [2012] NSWCCA 23 at [26] (finding error in cases decided before Muldrock), R v Koloamatangi [2011] NSWCCA 288 at [19] (the diminished role of snpp), Sheen v R [2011] NSWCCA 259 at [166] (snpp is a legislative guide for all cases) and Yang v R [2012] NSWCCA 49 at [28] (it “appears” that mental condition is not relevant to the assessment of objective seriousness).

[10-400] Subjective matters taken into account (cf s 21A(1))

At [10-420] Contrition, [10-460] The relevance of an offender’s mental condition and [10-500] Hardship of custody, references have been made to Alvares v R (2011) 209 A Crim R 297 at [44], Muldrock and Job v R [2011] NSWCCA 267 at [32] respectively.

[10-800] Parity

At [10-800]–[10-850], commentary has been substantially revised and rewritten in light of Green v The Queen (2011) 86 ALJR 36.

[11-000] Section 21A Factors “in addition to” any Act or Rule of Law

At [11-160] Section 21A(2)(k) — abuse of a position of trust or authority, a reference to MRW v R [2011] NSWCCA 260 has been inserted for child sexual assault.

[13-200] Taking Further Offences into Account

At [13-225] Charge negotiations: prosecutor to consult with victim, commentary has been added to make clear that s 35A applies to matters prosecuted by police in the Local Court.

At [13-230] Severity of additional penalty, a reference to Dionys v R [2011] NSWCCA 272 at [64]ff has been added.

[17-400] Sexual Offences Against Children

At [17-500] Persistent sexual abuse of child, commentary on s 66EA has been amended to include ARS v R [2011] NSWCCA 266 (concerning fact finding following a trial).

[70-000] Appeals

At [70-090] Principles applicable to Crown Appeals, Bui v DPP (Cth) [2012] HCA 1 has been added to the discussion of double jeopardy in Crown appeals concerning Commonwealth matters.

The section numbers below, except where indicated otherwise, refer to those in the Crimes (Sentencing Procedure) Act 1999.

Procedure

[1-000] Procedural fairness

At [1-040] Opportunity of addressing the court on issues, the commentary for later increasing a sentence proposed during sentence proceedings has been revised to include Weir v R [2011] NSWCCA 123 at [78]–[80]; Ng v R [2011] NSWCCA 227.

Crimes (Sentencing Procedure) Act 1999

[5-000] Section 10 dismissal of charges and conditional discharge

At [5-030] Application of factors in s 10(3) commentary concerning “Trivial nature of the offence” in s 10(3)(b) is added and a new paragraph, [5-035] Corporations and s 10 orders, is inserted.

[5-700] Suspended sentences

At [5-720] Commencement and setting non-parole period reference to R v JW (2010) 199 A Crim R 486 at [218] is included. At [5-790]  Effect of revocation and commencement of the sentence, commentary is added concerning the point that a court cannot impose another suspended sentence following revocation.

[7-500] Setting terms of imprisonment

At [7-510] Special circumstances, a reference has been inserted to Caristo v R [2011] NSWCCA 7 at [47] which held that there is no set percentage for the ratio of the non-parole period to head sentence once special circumstances has been established. At [7-580] Conditions on parole orders, a reference to Muldrock v The Queen [2011] HCA 39 has been inserted concerning the point that a court has no power to impose conditions for a sentences more than three years.

[7-890] Standard non-parole period offences — Pt 4 Div 1A

This section has been substantially rewritten to reflect the High Court decision in Muldrock v The Queen [2011] HCA 39 including [7-940] Applying Pt 4 Div 1A: Muldrock v The Queen, [7-950] The approach required to sentencing under s 54B(2), [7-955] Issues that may need clarification after Muldrock v The Queen and [7-960] Move upwards in the length of non-parole periods?.

[9-700] Objective and subjective factors at common law

New commentary has been inserted at [9-710] The difficulty of compartmentalising sentencing considerations and [9-720] The aggravating/mitigating binary fallacy.

[10-000] Objective factors

New commentary has been inserted at [10-015] Objective seriousness and post-offence conduct and [10-020] Consistency, where reference has been made to Hili v The Queen (2010) 85 ALJR 195 at [18], [49]. The paragraph [10-040] Premeditation and planning has been re-written.

[10-800] Parity

This chapter has been substantially revised.

[11-500] Guilty plea to be taken into account

At [11-504] Obligations of the court taking the plea, a new paragraph has been added to incorporate the decision of Collier v Director of Public Prosecutions [2011] NSWCA 202. At [11-514] The R v Borkowski principles, a reference has been inserted to R v AB [2011] NSWCCA 229 at [3], [33] where it was held that courts should generally continue to follow the approach in R v Borkowski (2009) 195 A Crim R 1, the principles being applied by reference to the particular circumstances in any case. In R v AB, it was further held that the discount for a plea may be eroded as a result of the manner in which the sentence proceedings are conducted. In [11-515] Criminal Case Conferencing Trial Act 2008, commentary has been amended to note the cessation of the scheme and its application, and the consideration of the scheme in Passaris v R [2011] NSWCCA 216 where it was held that “substantial grounds” under s 17 of the Criminal Case Conferencing Trial Act 2008 is established where an offender’s offer to plead guilty to an alternative charge is initially rejected by the Crown because of disputed facts.

Children (Criminal Proceedings) Act 1987

[15-000] Children (Criminal Proceedings) Act 1987ff has been revised and includes a new paragraph at [15-120] Intervention orders.

Particular offences

[19-930] Fraud offences in New South Wales has been amended to include references to the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 and a new paragraph has been inserted at [20-110] Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009.

Crimes (Sentencing Procedure) Amendment Act 2010

The amendments made to the Crimes (Sentencing Procedure) Act 1999 by the Crimes (Sentencing Procedure) Amendment Act 2010, which include provision for aggregate sentencing, have been incorporated as indicated below. The section numbers below refer to those in the Crimes (Sentencing Procedure) Act 1999.

[5-700] Suspended sentences

[5-780] Breach of s 12 bond and limit of Local Court jurisdiction has been amended to make clear that the Local Court only has jurisdiction to deal with the breach of a s 12 bond imposed in the District Court if the suspended sentence was imposed in a sentence appeal to the latter court (from the Local Court).

[7-500] Setting terms of imprisonment

[7-500] Court to set non-parole period has been revised to incorporate amendments to ss 45 and 53, and the insertion of ss 44(2A)–(2C), 49(2), 53A, 54B(4A)-(4C), which provide for setting terms of imprisonment and non-parole periods for aggregate sentences. Two new paragraphs, Setting non-parole periods for aggregate sentences (within [7-500]) and [7-590] Aggregate sentences have been inserted. Consequential amendments have been made to [7-560] Restrictions on term of sentence. References to Caristo v R [2011] NSWCCA 7, RWB v R (2010) 202 A Crim R 209 and Aguirre v R [2010] NSWCCA 115 have been added.

[7-890] Standard Non-Parole Period Offences - Pt 4 Div 1A

This section has been substantially revised to incorporate the new provisions governing standard non-parole periods and aggregate sentences. These include references to new ss 54B(4A) and 54B(4B) at [7-920] and [7-940]. Paragraph [7-890] Crimes (Sentencing Procedure) Amendment Act 2007 has been revised and the cases of R v Lane [2011] NSWSC 289 and GSH v R [2009] NSWCCA 214 have been added. The sections in [7-940] entitled The staged approach required by s 54B, What is “objective seriousness”? and Standard non-parole period is a reference point even for guilty plea cases have been substantially revised to include references to Khoury v R [2011] NSWCCA 118, Georgopoulos v R [2010] NSWCCA 246, SKA v R; R v SKA [2009] NSWCCA 186 and Muldrock v The Queen [2011] HCATrans 55. A new section Specifying the extent to which an offence departs from the mid-range (within [7-940]) has been inserted to include a reference to Sellars v R [2010] NSWCCA 133. A separate section on Youth and standard non-parole periods within the discussion of What is “objective seriousness”? at [7-940] has been added. The Judicial Commission’s publication by Trish Poletti and Hugh Donnelly, Monograph 33: The impact of the standard non-period sentencing scheme on sentencing patterns in NSW, has been included as reference on the question of whether sentences should be increased as a result of the statutory scheme.

[8-200] Concurrent and Consecutive Sentences

This section has been substantially revised and [8-220] Aggregate sentences of imprisonment has been inserted to include reference to s 53A (when sentencing an offender for more than one offence a court may impose an aggregate sentence of imprisonment rather than separate sentences). Paragraph [8-250] Sentences for offences involving escape by inmate has been amended to include s 57(1A). References to the cases of R v Jarrold [2010] NSWCCA 69, Nahlous v R (2010) 201 A Crim R 150, Hinchcliffe v R [2010] NSWCCA  306 and Allan v R (No 2) [2011] NSWCCA 27 have been included.

[11-000] Section 21A Factors “in addition to” any Act or Rule of Law

This section has been amended to incorporate in [11-000] two new factors to be disregarded when imposing a sentence — ss 24A(1)(c) (prohibition against child-related employment) and 24B (confiscation of assets and forfeiture of proceeds of crime). References to Oh v R [2010] NSWCCA 148, Collon v R [2009] NSWCCA 187 and Holloway v R [2011] NSWCCA 23 have also been added.

[11-500] Guilty Plea to be taken into Account

This section has been revised to incorporate in [11-505] Section 22 Crimes (Sentencing Procedure) Act 1999 references to new ss 22(1)(c) (circumstances in which offender indicated intention to plead guilty) and 22(1A) (discount for guilty plea must not be unreasonably disproportionate to nature and circumstances of offence). Paragraph [11-515] Criminal Case Conferencing Trial Act 2008 has been amended to include reference to the Criminal Case Conferencing Trial Amendment (Extension) Regulation 2010 and the cases of Chompeay v R [2011] NSWCCA 96, Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183.

[11-900] Power to Reduce Penalties for Pre-Trial Disclosure

[11-900] Section 22A has been revised to incorporate amendments made to s 22A(1).

[12-200] Power to Reduce Penalties for Assistance to Authorities

[12-200] Statutory provision has been amended to remove references to repealed ss 23(2)(a) (the effect of the offence on the victim or victims of the offence and their families) and 23(2)(j) (the likelihood of the offender re-offending on release). A new section [12-205] New statutory requirement to make a record has been inserted to incorporate the amendments to s 23. References to R v Holland [2011] NSWCCA 65, R v AZ [2011] NSWCCA 43, AAT v R [2011] NSWCCA 17 and Brown v R [2010] NSWCCA 73 have been made.

[13-200] Taking Further Offences into Account

A new section [13-225] Charge negotiations: prosecutor to consult with victim and police has been added to incorporate s 35A (Prosecutor to file certificate verifying consultation with victim and police in relation to charge negotiations before Form 1 or agreed statement of fact the subject of charge negotiations can be taken into account by court). Guideline 20 of the NSW DPP Prosecution Guidelines has also been included. See also consequential amendments in [1-400] Fact Finding.

[17-400] Sexual Offences Against Children

The cases of PWB v R [2011] NSWCCA 84, BT v R [2010] NSWCCA 267, Corby v R [2010] NSWCCA 146 and Bonwick v R [2010] NSWCCA 177 have been added to paragraph [17-510] Aggravated indecent assault: s 61M and a reference to new ss 24A(1)(c) (see [11-000] above) is included. Reference to the paper by Domenic Pezzano “Information for ODPP/Courts on Options for Inmates who Request Protective Custody — Limited Association and Non-Association” has also been included.

[19-890] Drug Misuse and Trafficking Act 1985 (NSW) Offences

Mansour v R [2011] NSWCCA 28 has been added at [19-890] Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999. A court cannot take into account the offences of ongoing supply that were committed without regard to public safety unless the circumstances exceed the norm.

Consequential amendments have been made to [4-000] Home Detention Orders, [3-600] Intensive Correction Orders, and [6-500] Non-Association and Place Restriction Orders to incorporate amendments made by the Crimes (Sentencing Procedure) Amendment Act 2010.

[1-000] Procedural fairness

This section has been wholly revised to include, inter alia, Yaghi v R [2010] NSWCCA 2 at [50] (a court must give the parties notice before it sentences upon a basis which differs from agreed facts); Button v R [2010] NSWCCA 264 at [18] (procedural fairness is denied if the judge announces the sentence at the hearing but later increases it) and Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at [60] (extent of requirement to give reasons for sentence in the Local Court).

[1-400] Fact finding

This section has been substantially revised to include, inter alia, O’Neill-Shaw v R [2010] NSWCCA 42 at [26] (if evidence is unchallenged by the prosecution, and it is not inherently implausible, the court is not entitled to reject it or fail to act on it without giving proper notice to the offender of that intended course) and R v Crowley [2004] NSWCCA 256 at [46] (agreed facts should always be carefully checked).

[5-000] Section 10 Dismissal of charges and conditional discharge

This section has been substantially revised to include, inter alia, Hoffenberg v District Court of NSW [2010] NSWCA 142 (the structure and application of s 10 explained in the context of an offence of intentionally damaging property); R v Stephenson [2010] NSWSC 779 at [66] (impermissible to use s 10 order merely to circumvent operation of a statute); Morse (Office of State Revenue) v Chan [2010] NSWSC 1290 (“mental condition” in s 10(3)(a) need not be causally connected with the offence); and the Road Transport (Driver Licensing) Amendment Act 2010 (demerit points not recorded where s 10 order).

[5-700] Suspended sentences

[5-785] Timing of disposal of further or subsequent offences has been revised to include R v Nicholson [2010] NSWCCA 80 at [14]; R v Dinh (2010) 199 A Crim R 573 at [85] (a judge who is aware of an outstanding s 12 suspended sentence bond imposed in the Local Court should refuse to pass sentence for further offences until breach proceedings have been disposed of).

[10-000] Objective factors (cf s 21A(1))

[10-010] Categories of conduct within the offence has been renamed Proportionality and revised to include, inter alia, R v Field [2011] NSWCCA 13 (for offences not subject to a standard non-parole period, when describing the circumstances of the offence, the court should use the term “seriousness of the offence” rather than “objective seriousness”, and the court generally should not make findings of where the offence lies in relation to a mid-range of objective seriousness). [10-020] General patterns of sentences has been renamed Consistency and revised to include Hili v The Queen (2010) 85 ALJR 195 at [18], [48]–[49], [53]–[54] and BW v R (unrep, 23/2/11, NSWCCA) (achieving consistency in sentencing and use of sentencing statistics).

[10-400] Subjective matters taken into account (cf s 21A(1))

[10-480] Intoxication has been revised to include Bourke v R (2010) 199 A Crim R 38 at [26] (offender’s intoxication will ordinarily not mitigate penalty); SK v R [2009] NSWCCA 21 at [7] (intoxication may be treated as an equivocal factor); and Hasan v The Queen [2010] VSCA 352 at [21] (consideration of intoxication as a sentencing consideration).

[16-000] Sentencing Commonwealth offenders

[16-002] Relevance of decisions of other State and Territory courts and [16-050] Fixing non-parole periods and recognizance release orders have been revised to include Hili v The Queen at [18], [48]–[49], [54], [56]–[57] (achieving consistency in sentencing and use of sentencing statistics); and at [13], [37]–[38], [40]–[41], [44] (discussion of relevant principles for fixing non-parole periods and making recognizance release orders).

[3-300] Penalties of imprisonment

The principle that the court is to determine the appropriate term of imprisonment without regard to the manner in which the sentence is to be served reiterated: R v Assaad [2009] NSWCCA 182 at [33].

[3-600] Intensive correction orders (ICOs)

This chapter replaces the commentary on periodic detention. A new sentencing option, an intensive correction order (ICO), was introduced and the power to make periodic detention orders ceased: Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (effective 1 October 2010). Consequential amendments have been made to other chapters to remove references to periodic detention and to refer to ICOs: see [3-300] Penalties of imprisonment; [4-000] Home detention orders; [4-400] Community services orders (CSOs); [5-700] Suspended sentences; and [6-100] Fines. These chapters have also been generally revised.

[5-700] Suspended sentences

Before imposing an alternative to full-time imprisonment, a court is required to consider the question of totality where it is sentencing for multiple offences: Burnard v R (2009) 193 A Crim R 23 at [111]. A revocation order for a s 12 bond must be made before imposing a penalty for a further offence: at [5-785].

[7-500] Setting terms of imprisonment

It is desirable for a court to provide reasons when the non-parole period exceeds the statutory ratio to avoid an inference being drawn (on appeal) that it was overlooked: Briggs v R [2010] NSWCCA 250 at [29], [34]; Etchell v R [2010] NSWCCA 262 at [49]–[50]. Whether long term institutionalisation, or the fact that an offender is serving a first custodial sentence, are bases for special circumstances considered: Jackson v R [2010] NSWCCA 162 at [24]–[25]; Clarke v R [2009] NSWCCA 49 at [12], respectively. Appellate intervention is necessary where the judge finds special circumstances, but it is not reflected in the aggregate sentence: Maglis v R [2010] NSWCCA 247 at [24]–[26].

[16-000] Sentencing Commonwealth offenders

The relevance of decisions of other State and Territory courts, sentencing principles for Commonwealth offences and national consistency in sentencing considered: at [16-002]. Commentary on sentencing for multiple summary offences included: at [16-035].

[17-400] Sexual offences against children

Assessing the objective seriousness of indecent assault considered: Corby v R [2010] NSWCCA 146. Commentary on child abuse/pornography offences has been substantially revised to include new State and Commonwealth offences and reference to Minehan v R [2010] NSWCCA 140 (factors relevant to the seriousness of an offence): at [17-541].

[20-400] Car-jacking and car rebirthing offences

Factors relevant to the seriousness of the car rebirthing offence considered: R v Hamieh [2010] NSWCCA 189.

[20-600] Sexual assault

The short duration of a sexual assault does not lessen objective seriousness, but a prolonged duration of an offence increases its objective seriousness: R v Daley [2010] NSWCCA 223.

[70-000] Appeals

Success rates for 2009 have been included: at [70-010]. Section 68A Crimes (Appeal and Review) Act 2001 (abolished double jeopardy in Crown Appeals) applies to Commonwealth Crown appeals and is not inconsistent with s 16A Crimes Act 1914 (Cth): DPP (Cth) v De La Rosa [2010] NSWCCA 194.

[4-400] Community Service Orders (CSOs)

In breach proceedings for a CSO the sentencing discretion must be re-exercised and the offender should be dealt with for the original offence: Bonsu v R [2009] NSWCCA 316.

[5-700] Suspended Sentences

There is no power to backdate the commencement of a suspended sentence. It is permissible to take into account pre-sentence custody at the time the suspended sentence is imposed rather than at later revocation proceedings: Pulitano v R [2010] NSWCCA 45 at [5-800].

[10-800] Parity

The statements of Campbell JA in Jimmy v R [2010] NSWCCA 60 at [203] as to the limits of the application of the parity principle to offenders convicted of different charges have been incorporated at [10-830].

[12-500] Court to Take Other Matters into Account

It is not appropriate for a court to adopt a mathematical formula to convert time spent in protection to an equivalent period spent in the general prison population: Clinton v R [2009] NSWCCA 276 at [12-510].

[12-790] Victims and Victim Impact Statements

A court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: R v Josefski [2010] NSWCCA 41. Section 3A(g) and s 21A(2)(g) Crimes (Sentencing Procedure) Act are limited by the rule: R v Josefski. “The statutory scheme for victim impact statements” at [12-820] has been rewritten to incorporate recent legislative amendments.

[20-200] Robbery

It is not a breach of the De Simoni principle if a sentencer takes into account for an offence of stealing from the person the fact that the victim’s hand was squeezed: Edwards v R [2009] NSWCCA 199 at [20-220].

[17-900] Commonwealth Drug Offences

The statements in R v Lawless (unrep, 24/6/94, NSWCCA) in relation to the application of the De Simoni principle to the offence of possession vis-à-vis importation may need to be qualified in light of The Queen v Olbrich (1999) 199 CLR 270 at [30]: El-Ghourani v R [2009] NSWCCA 140. However, the circumstances relating to the process of importation may still be relevant to a charge of possession: El-Ghourani v R at [30].

[70-000] Appeals

This section has been rewritten to incorporate the leading authority on s 68A Crimes (Appeal and Review) Act 2001 — R v JW [2010] NSWCCA 49 — particularly the meaning of “double jeopardy” and its general effect on Crown appeals.

[1-400] Fact Finding at Sentence

The Crown is obliged to tender a comprehensible agreed statement of facts to enable the court to discern what is agreed to be fact and what is merely assertion: Della-Vedova v R [2009] NSWCCA 107 at [14].

Cross references to discussions in the Particular Offences section of the principle in The Queen v De Simoni (1981) 147 CLR 383 have been added at [1-500].

[5-700] Suspended Sentences

The section at [5-730] Prohibition against post-dating, consecutive sentences and suspending limiting terms has been revised to make clear that it is not permissible to post-date a suspended sentence (and therefore to impose a consecutively served suspended sentence) or to suspend a limiting term.

[6-100] Fines

The section at [6-130] Fine(s) imposed with other orders has been rewritten and text has been added describing the reforms made by the Fines (Further Amendment) Act 2008 at [6-140] Default provisions.

[7-500] Setting Terms of Imprisonment

This section has been re-written to incorporate the leading authorities in relation to setting a term of imprisonment and special circumstances under s 44 Crimes (Sentencing Procedure) Act 1999.

[8-600] Mandatory Life Sentences under s 61

This section has been re-written.

[10-700] Sentencing Following a Retrial

This new section addresses the correct sentencing approach where an offender is convicted of an offence and is sentenced after a retrial.

[11-000] Section 21A Factors “in addition to” any Act or Rule of Law

The requirement in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 to “provide evidence” of remorse does not equate with a requirement that an offender actually give evidence of remorse: Butters v R [2010] NSWCCA 1 at [17]. See [11-290] Section 21A(3)(i) — remorse shown by the offender.

[13-200] Taking Further Offences into Account (Form 1 Offences)

This section has been substantially revised. A new section [13-260] The statutory power to reject a Form 1 under s 33(2)(b) has been added which includes reference to the recent decisions of C-P v R [2009] NSWCCA 291; El-Youseff v R [2010] NSWCCA 4; R v Eedens [2009] NSWCCA 254.

[2-200] Purposes of Sentencing

There is no legal authority permitting a judge to dismiss general deterrence as a factor for assessment in sentencing: R v Miria [2009] NSWCCA 68 at [2-240].

Society is entitled to have the sentence imposed denounce the criminal conduct of the offender: R v King [2009] NSWCCA 117 at [2-280].

Parsimony is not part of sentencing law of New South Wales: Blundell v R (2008) 70 NSWLR 660; Leach v R (2008) 183 A Crim R 1 at [2-295].

[5-400] Deferral for Rehabilitation or Other Purpose

New commentary which describes the declared intervention programs under s 347 Criminal Procedure Act 1986 has been added at [5-440].

[10-400]  Subjective Matters Taken into Account (cf s 21A(1))

The discussion of advanced age as a factor in sentencing has been rewritten at [10-430].

Where injuries inflicted on an offender in prison were not inflicted for the purpose of punishing the offender for the offence, they cannot be considered as extra-curial punishment: Silvano v R (2008) 184 A Crim R 593 at [10-520].

A new section has been added addressing deportation as a factor in sentencing at [10-570].

[12-790] Victim and Victim Impact Statements

The common law position as to the use of victim impact statements expressed in R v Previtera (1997) 94 A Crim R 76 was accepted as the current and prevailing position in SBF v R [2009] NSWCCA 231 at [12-810].

[17-400]  Sexual Offences Against Children

A new column containing cross-references to commentary has been included in Table 1: Sexual offences against children under the Crimes Act 1900 at [17-420].

[18-300]  Dangerous Driving

The application of the De Simoni principle to driving offences is discussed at [18-370]. In the statutory hierarchy of offences, manslaughter should be treated as a most serious offence for the purposes of the principle: SBF v R [2009] NSWCCA 231 at [18-370].

The fact that some young men may perceive themselves as “bullet proof” is a significant reason for general deterrence to be a prominent factor in dangerous driving cases: SBF v R at [18-380].

[20-400]  Car-jacking and Car Rebirthing Offences

This is a new section which addresses car-jacking and car rebirthing offences under ss 154C(1) and 154G Crimes Act 1900 respectively.

[70-000]  Appeals

Commentary has been added at [70-095] to refer to the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 which abolished the principle of double jeopardy as it relates to Crown appeals against sentence.

[90-000]  Mental Health (Forensic Provisions) Act 1990

The phrase “any other penalty” in s 23(2) (procedure after completion of special hearing) includes sentencing options found in the Crimes (Sentencing Procedure) Act 1999: Smith v R (2007) 169 A Crim R 265; [2007] NSWCCA 39, but not imprisonment and all its forms: Warren v R [2009] NSWCCA 176 at [90-030].

The protection of the community is often an important consideration when a court sets a limiting term: Bhuiyan v R [2009] NSWCCA 221 at [90-040].

Index

The Index has been updated to incorporate material up to and including Release 12.

Table of Statutes

A Table of Statutes has been inserted to incorporate material up to and including Release 12.

[7-890] Standard Non-Parole Period Offences — Pt 4 Div 1A

The offence to which a SNPP provision applies is identified by the section of the statute in the Table rather than the words used to describe the offence: Hosseini v R [2009] NSWCCA 52 at [7-900].

SNPPs do not apply to sentencing if an offender is under 18 years at the time of the offence: new s 54D(3) (inserted by Crimes Amendment (Sexual Offences) Act 2008) at [7-900].

Section 54C requires the court to explain why a sentence is imposed without a non-parole period: R v Thawer [2009] NSWCCA 158 at [7-930].

A helpful summary of steps for a court to take when sentencing for a SNPP offence is set out in MLP v R (2006) 164 A Crim R 93, which was approved in Louizos v R, R v Louizos [2009] NSWCCA 71 at [7-945].

[10-400]  Subjective Matters Taken into Account (cf s 21A(1))

Good character has been amended to include the special rule under s 21A(5A) for child sexual offences at [10-410].

[10-800] Parity

Parity only applies in a “very limited class of case” where two offenders face different charges: Pham v R [2009] NSWCCA 25 at [10-830].

[11-000]  Section 21A Factors “in addition to” any Act or Rule of Law

The court must not take into account as a mitigating factor the fact that an offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000: new s 24A at [11-000].

“Gratuitous cruelty” in s 21A(2)(f) suggests that the infliction of pain is an end in itself: McCullough v R [2009] NSWCCA 94 at [11-110].

Section 21A(2)(k) is not intended to extend the concept of breach of trust beyond the common law. For the section to apply there must have been a special relationship between the victim and the offender at the time of the offending: Suleman v R [2009] NSWCCA 70 at [11-160].

[11-500] Guilty Plea to be Taken into Account

Twelve principles of general application which clarify the application of the discount for the utilitarian value of a plea are set out in R v Borkowski [2009] NSWCCA 102 at [11-514]. A discussion of the Criminal Case Conferencing Trial Act 2008 is provided at [11-515].

It is preferable to expressly acknowledge the significance of a voluntary disclosure of unknown guilt at sentence: DBW v R [2007] NSWCCA 236 at [11-530]. The circumstances where a court will set aside a guilty plea are set out in Johnston v R [2009] NSWCCA 82 at [11-545].

[15-000]  Children (Criminal Proceedings) Act 1987

A discussion of the amendments made by the Children (Criminal Proceedings) Amendment Act 2008 and SS v R [2009] NSWCCA 114 is provided at [15-010]. KT v R (2008) 182 A Crim R 571 which comprehensively discusses the relevance of youth at sentence is included at [15-015].

Commentary on the new sentencing options under s 33 created by the amending Act is also provided at [15-110].

[17-400]  Sexual Offences Against Children

The discussion of offences committed many years earlier has been substantially revised at [17-410]. A comprehensive table of sexual offences against children has been inserted at [17-420]. There is a new subsection addressing sentencing for child pornography offences at [17-541]. The new voyerism and related offences created under the Crimes Amendment (Sexual Offences) Act 2008 are discussed at [17-543].

[19-800]  Drug Misuse and Trafficking Act 1985 (NSW) Offences

Commentary on s 21A Crimes (Sentencing Procedure) Act 1999 as it applies to drug offences has been substantially revised at [19-890].

[20-120]  Public Justice Offences

Consideration of factors to be taken into account when punishing for a contempt in the context of a deliberate refusal to give evidence: Field v New South Wales Crime Commission [2009] NSWCA 144 at [20-155]. Discussion of the false and misleading evidence offence under s 107(1) Police Integrity Commission Act 1996 at [20-170].

[20-600]  Sexual Assault

A discussion of the amendments made by the Crimes Amendment (Sexual Offences) Act 2008 is provided, including the introduction of new sexual offences and increased maximum penalties for a number of existing offences.

The courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse: DBW v R [2007] NSWCCA 236. It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child: R v King [2009] NSWCCA 117 at [20-604].

A discussion of cases assessing the objective gravity of the sexual assault is included: R v PGM [2008] NSWCCA 172; R v Hibberd [2009] NSWCCA 20; R v King at [20-630].

A conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence: Sabapathy v R [2008] NSWCCA 82 at [20-640].

Further cases are included on the relevance of delay: R v Spiers [2008] NSWCCA 107 at [20-770], and assaults in a domestic context: Raczkowski v R [2008] NSWCCA 152 at [20-775].

[50-000]  Assault, Wounding and Related Offences

The seriousness of a s 35 offence will depend on the seriousness of the wounding: McCullough v R at [50-070].

Drink spiking is a very serious crime: Samadi v R [2008] NSWCCA 330 at [50-110]. Very severe penalties must be imposed for glassings: R v Miria [2009] NSWCCA 68 at [50-140].

[63-000]  Damage by Fire and Related Offences

This is a new section which addresses Pt 4 Div 2 Crimes Act. Division 2 contains the offences of malicious damage by means of fire under ss 195, 196 and 197.

[70-000]  Appeals

If the facts are challenged on appeal, it is necessary to identify specific error as a ground of appeal: Carroll v The Queen (2009) 83 ALJR 579 at [70-030].

It is open to an appeal court to form a different view of the objective seriousness of an offence when the only error asserted is that the sentence is “plainly unjust” within the terms of House v The King (1936) 55 CLR 499: Carroll v The Queen at [70-090].

[7-890] Standard non parole period offences

The table of Standard non parole periods found at [8-000] has been amended to provide an extra column cross referencing to commentary in the Book for the offences listed.

[70-000] Appeals

A new section has been inserted called “Appeals” which deals with appeals for matters dealt with on indictment and appeals from the Local Court. It provides an empirical overview of the success rates for Crown and severity appeals under the Criminal Appeal Act 1912 for the period 2001–2007; commentary on ss 5(1) and 6(3) (severity appeals) and s 5D (Crown appeals) of the Act. There is also a brief commentary of the statutory provisions for severity and Crown appeals against sentences imposed in the Local Court.

[90-000] Mental Health (Criminal Procedure) Act 1990

A new section has been inserted which deals with orders that can be made under Pts 2 and 3 of the Act specifically s 10(4) dismissals; sentencing outcomes after special hearings including limiting terms; diversionary orders under s 32; and s 33 (mentally ill persons) orders including community treatment orders.

[10-480] Intoxication

The commentary for this sentencing factor has been revised in light of Stanford v R [2007] NSWCCA 73 at [53]–[55] and R v Mitchell (2007) 177 A Crim R 94 at [29] that “…Violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence”.

[11-010] Section 21A Factors “in addition to” any Act or Rule of Law

This section has been streamlined and revised to include the voluminous case law on the section including: Van Can Ha v R [2008] NSWCCA 141 at [4] which held the mandatory language used in s 21A(1) “the court is to take into account” and ss 21A(2) and 21A(3) “…to be taken into account” does not require a court to engage in a ritual analysis of the possible s 21A factors; Porter v R [2008] NSWCCA 145 as to the meaning of “conditional liberty” in s 21A(2)(j); and Hewitt v R [2007] NSWCCA 353 which exhaustively addressed the scope of s 21A(2)(n) (the offence was part of a planned or organised criminal activity).

Particular Offences

[50-000] Assault, Wounding and Related Offences

This new section contains sentencing commentary for personal violence offences under the Crimes Act 1900, namely offences found in ss 59, 61, 35, 33, 37, 38 and the offences of assaulting police while in execution of duty under ss 58 and 60. The commentary addresses the factors relevant to assessing the objective gravity of these offences: the extent and nature of the injuries; the degree of violence; and the intention or mental element of the offence. The section includes commentary on the Crimes Amendment Act 2007 which removed “maliciously” from all offences in the Crimes Act. It also addresses the application of The Queen v De Simoni (1981) 147 CLR 383 for each offence as well as common aggravating factors under s 21A Crimes (Sentencing Procedure) Act 1999 and the common law.

[40-000] Manslaughter and Infanticide

This new section has sentencing commentary for manslaughter by unlawful and dangerous act, manslaughter by criminal negligence and the three statutory categories: manslaughter by provocation (s 23 Crimes Act); substantial impairment (s 23A Crimes Act); and excessive self defence (s 421 Crimes Act). It addresses, inter alia, the issue of relative seriousness between voluntary and involuntary manslaughter, joint criminal enterprise, killings of children by parents or carers, accessories after the fact to manslaughter and infanticide.

[18-300] Dangerous Driving

This section has been updated and revised. It includes reference to Rosenthal v R [2008] NSWCCA 149 at [16]–[17] at [18-330] which held that an offender’s prior driving record is not relevant to the question of whether he or she had abandoned responsibility; Hughes v R [2008] NSWCCA 48 at [33] at [18-370] that where an act of dangerous driving causes the death of a pregnant woman, it is an error to have additional regard to the death of her foetus as a matter increasing the seriousness of the offence; and R v Carruthers [2008] NSWCCA 59 at [29]–[31] at [18-340] that where the offence involves the intoxication of the offender, there is a particular need for sentences to adequately reflect general deterrence.

[20-000] Robbery

This section has been completely rewritten and includes commentary for all the robbery offences found in the Crimes Act including demand money with menaces under s 99.

[17-900] Commonwealth Drug Offences

This section has been updated and revised. It includes a reference to Adams v The Queen [2008] HCA 15 at [10] at [17-930] where the High Court held sentencing judges, in the application of the quantity-based system in the Customs Act should not apply a judicially constructed harm-based gradation of penalties since this cuts across the legislative scheme. The same principle applies to drug offences under the Criminal Code Act 1995 (Cth): R v Corbett [2008] NSWCCA 42.

Crimes (Sentencing Procedure) Act — Sentencing Procedure

[10-560] Subjective Matters Taken into Account

A subheading “Ameliorative conduct” has been added in light of the decision of Thewlis v R [2008] NSWCCA 176 at [40] which holds that post crime ameliorative conduct can be taken into account as a factor in mitigation of sentence.

[12-790] Victims and Victim Impact Statements

This section has been updated and revised. It includes a reference to R v Porter [2008] NSWCCA 145 at [53] at [12-825] which confirms that the statutory scheme for victim impact statements is not a code and where it does not apply to an offence, unsworn statements by victims may still be considered relevant and admissible to the sentencing process. The section also makes reference to the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Bill 2008 at [12-820] which, when enacted, will extend the statutory scheme to “prescribed sexual offences” and allow statements to be read by support persons.

Crimes Act 1914 (Cth)

[16-000]  Sentencing Commonwealth Offenders

The section has been substantially revised and includes the following additions:

Particular Offences

[17-000] Break and Enter Offences

This section has been substantially revised and includes the following additions:

[20-120] Public Justice Offences

Some form of custodial sentence is normally appropriate for the offence of influencing witnesses/ jurors under s 323 Crimes Act. When the offence is committed in the context of domestic violence to dissuade the victim from giving evidence, there is a need for a significant element of general deterrence: R v Burton [2008] NSWCCA 128 at [101], [105]. In sentencing for s 323 it is an error to have regard to the absence of a fact which, if it were present, would constitute a different and more serious offence, such as an offence of threatening or intimidating a juror under s 322(a): Burton at [89].

[30-000] Murder

If more than one murder is committed in a single episode of criminality, the objective criminality of one murder is capable of informing the objective criminality of another and such an approach does not infringe the principle that prior record cannot be used to increase the objective seriousness of an offence: Adanguidi v R (2006) 167 A Crim R 295 at [32].

[60-000] Firearms and Prohibited Weapons Offences

A new section has been added at [60-000]ff containing commentary for firearms offences in the Firearms Act, Weapons Prohibition Act and the Crimes Act.

Particular Offences

Detain for advantage/Kidnapping

This section has been revised to include references to recent cases on sentencing for offences under s 86 and s 90A (repealed) of the Crimes Act 1900, including Heine v R [2008] NSWCCA 61; Davis v R [2006] NSWCCA 392; Wilmot v R (2007) 169 A Crim R 280; and R v Nahle [2007] NSWCCA 40.

Murder

A new section entitled Murder has been added at [30-000]. The section contains extensive commentary on:

The separate section on Solicit to Murder (previously at [21-000]) is deleted, having been incorporated and revised in the new section on Murder.

Public Justice Offences

The Public Justice Offences section has been reparagraphed and re-indexed. No change has been made to content.

Index

The Index has been updated to include material up to and including Release 7.

Crimes (Sentencing Procedure) Act 1999

Section 21A Factors “in addition to” any Act or Rule of Law
The amendments made by the Crimes (Sentencing Procedure) Amendment Act 2007 (the amending Act) have been incorporated to add seven new aggravating features under s 21A; add the amendment to s 21A(3)(i) which now provides that remorse may only be taken into account if the offender has provided evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions, or made reparation (or both); and finally to include the amendment to s 21A(2)(d) (prior convictions) by adding the text “particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences”.

Standard Non-Parole Period Offences — Part 4 Division 1A
Eleven new offences added by the amending Act have been incorporated in the Table of standard non-parole periods. The case of R v Knight & Biuvanua [2007] NSWCCA 283 has been incorporated (where a judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation. When the objective criminality is above mid-range then, of course, the maximum penalty prescribed for the offence becomes of more significance.)

Particular Offences

Fraud Offences in New South Wales
A new section entitled Fraud Offences in New South Wales has been added at [19-930]. The section contains extensive commentary at [19-970] addressing the factors that bear upon objective seriousness of fraud offences, matters in mitigation and the application of s 21A to fraud offences. It also contains extensive commentary for commonly prosecuted fraud offences under ss 156, 176A, 178A, 178BA, 178BB and 300 of the Crimes Act 1900.

Public Justice Offences
A new section entitled Public Justice Offences has been added at [20-080]. The section contains extensive commentary for the offences found Pt 7 of the Crimes Act 1900 (NSW) headed “Public Justice Offences” and the common law offences of bribery and contempt. The section also contains commentary addressing the purposes of punishment and the particular aggravating feature of offences committed by public officials.

Offences under the Drug Misuse and Trafficking Act 1985

This section has been substantially revised at [19-800]ff to take account of the following authorities:

Concurrent and consecutive sentences

This section has been revised again in light of a series of Court of Criminal Appeal decisions on the application of the totality principle. The following paragraphs have been revised:

Sexual assault

The revision of this section includes amendments to [20-630] Assessing the objective gravity of the sexual assault. The section addresses the topic of forms of sexual intercourse and objective seriousness.

Release 4 updates the index to cover the material incorporated into the book by Release 3.

Concurrent and Consecutive Sentences

This section has been re-written to incorporate recent decisions on the topic including: R v Folbigg (2005) 152 A Crim R 35; R v Hilton (2005) 157 A Crim R 504; EPA v Barnes [2006] NSWCCA 246; R v MMK (2006) 164 A Crim R 481; R v MAK [2006] NSWCCA 381; Richards v R [2006] NSWCCA 262; R v Smith [2006] NSWCCA 353; R v Harris [2007] NSWCCA 130; Cahyadi v R [2007] NSWCCA 1; Nguyen v R [2007] NSWCCA 14. The section addresses the following topics:

Section 21A Factors “in addition to” any Act or Rule of Law

Power to Reduce Penalties for Assistance to Authorities

Court to Take Other Matters into Account (Including Pre-Sentence Custody)

[1-010] Reasons for decision

Thomas v R [2006] NSWCCA 313 at [16]; Gallant v R [2006] NSWCCA 339.

[1-030] Publish[ing] (reasons for decision) in oral form

The length of judgment is not a reason to deliver the remarks only in written form: Curtis v R [2007] NSWCCA 11 at [30]–[31].

[1-040] Opportunity of addressing

Information obtained by the sentencer in other cases: R v JRB [2006] NSWCCA 371 at [42]; and prevalence of an offence R v House [2005] NSWCCA 88 at [23].

[1-410] The standard(s) of proof at sentence

To add a reference to the High Court decision of Leach v The Queen [2007] HCA 3 at [41].

[3-610] Sentencing procedures for periodic detention orders

A court is entitled to consider the form of imprisonment selected when determining whether it should decline to set a non-parole period under s 45: R v Dickinson [2005] NSWCCA 284 at [15]–[16].

[5-700] Suspended Sentences

The following paragraphs have been substantially re-written following the passing of the Crimes and Courts Legislation Amendment Act 2006:

[5-300] Section 10A Conviction with no other penalty

Commentary on the rationale and use of this new sentencing option introduced by the Crimes and Courts Legislation Amendment Act 2006.

Guilty Plea to be taken into account

Release 1 comprises the folder, tab cards and all filed pages, as distributed.