Section 21A(1)–(5C) Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows:

Section 21A(6) defines “child sexual offence”, “prescribed traffic offence”, “self-induced intoxication” and “serious personal violence offence”.

While s 21A(1) requires the court to take into account the aggravating factors and mitigating factors in s 21A(2) and (3) respectively, it does not purport to codify the law in the area of aggravating and mitigating factors that can be taken into account at sentence: Porter v R [2008] NSWCCA 145 at [87].

Section 21A(1)(c) provides that in determining an appropriate sentence for an offence the court is to take into account “any other objective or subjective factor that affects the relative seriousness of the offence”. The language employed is very broad: R v Jammeh [2004] NSWCCA 327 at [23]. See Subjective matters at common law at [10-400]ff.

The “matters” referred to in the suffix to s 21A(1) extend beyond the aggravating and mitigating factors tabled in s 21A(2) and (3): Van Can Ha v R [2008] NSWCCA 141 at [4].

Therefore, a judge can take account of the effect of the crime on the victim via ss 3A(g) and 21A(1)(c): R v Jammeh [2004] NSWCCA 327 at [23]. This is separate and different from applying s 21A(2)(g), which requires “the injury, emotional harm, loss or damage caused by the offence” to be “substantial” (discussed at [11-120]): R v Jammeh at [23].

Further, common law sentencing principles are preserved by s 21A(1) and must be applied: Archer v R [2017] NSWCCA 151 at [132]; Porter v R [2008] NSWCCA 145 at [87]; Cvitan v R [2009] NSWCCA 156 at [60]; Meis v R [2022] NSWCCA 118 at [39]–[43]. Section 21A(4) provides “the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.” A sentencing principle, established by common law and not abrogated by the Act, is a rule of law: R v Johnson [2004] NSWCCA 76 at [33]. In enacting s 21A, it was the intention of Parliament to replicate the common law: Meis v R at [24]; R v Way (2004) 60 NSWLR 168 at [56]–[57], [103], [118]; R v Wickham [2004] NSWCCA 193 at [23].

For an aggravating factor to be taken into account it must be proved beyond reasonable doubt, while mitigating factors need only be proved on the balance of probabilities: Olbrich v The Queen (1999) 199 CLR 270 at [27]; Meis v R at [29], [47].

The aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton (2006) 66 NSWLR 566 at [34]. Parliament has not used the word “aggravation” in its narrow common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and s 21A(2)(h) and (j) support that interpretation. For example, the aggravating factor under s 21A(2)(j), that the offence was committed while the offender was on conditional liberty, is relevant as a subjective consideration but not as part of the assessment of the objective seriousness of the offence: Elhassan v R [2018] NSWCCA 118 at [14]; Kelly v R [2021] NSWCCA 205 at [16].

The Court of Criminal Appeal has developed specific approaches as to how s 21A(2) should and should not be applied in a given case. They are designed to encourage transparency, ensure procedural fairness and avoid double counting.

Section 21A(2) was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: Suleman v R [2009] NSWCCA 70 at [26]. The court should always give attention to the words used to describe any aggravating factor, the policy rationale behind it and the fact that the Crown is to prove a matter of aggravation beyond reasonable doubt: Gore v R [2010] NSWCCA 330 at [105]; see also Olbrich v The Queen (1999) 199 CLR 270 at [27]; Meis v R [2022] NSWCCA 118 at [29].

Section 21A(2) does no more than reflect the common law and therefore an aggravating factor in s 21A(2) cannot be taken into account if doing so would breach the De Simoni principle: s 21A(4); Davies v R [2019] NSWCCA 45 at [32]; R v Johnson [2005] NSWCCA 186 at [22]; R v Wickham [2004] NSWCCA 193 at [26]; Rend v R [2006] NSWCCA 41. For an explanation of the De Simoni principle see [1-500] De Simoni principle.

Section 21A(2)(a) is directed at offences committed against victims who exercise public or community functions and the offence arose because of the victim’s occupation.

The common law has long recognised that people in certain occupations work under a degree of risk. For example, the fact that the victim is a police officer is treated as an aggravating factor: R v Penisini [2004] NSWCCA 339 at [20].

It is not essential the offender knew the victim fell within the particular category of victims, but it must be reasonably foreseeable: R v Nguyen [2013] NSWCCA 195 at [96]–[97]. In R v Nguyen, uniformed and plain clothes police officers attended a garage used by the respondent, announcing they were police officers, as they approached. The offender discharged a firearm and in an exchange of gunfire one police officer fatally shot another officer. The offender’s plea of guilty to manslaughter was accepted on the basis he genuinely believed the police officers were robbers. Nevertheless, the sentencing judge was correct to find the aggravating factor in s 21A(2)(a) operated as, despite the offender’s belief, it was also reasonably foreseeable the people were, in fact, police officers: at [38], [96].

There is provision for a higher standard non-parole period for the offence of murder involving certain categories of persons (see Table of Standard non-parole periods under s 54D Crimes (Sentencing Procedure) Act 1999) care needs to be taken to ensure there is no double counting of aggravating circumstances when consideration is being given to the sentencing of this class of persons.

For many offences, threatening or using violence is an element or inherent characteristic of the offence. Care must be taken to avoid double counting in such circumstances (see above at [11-040]). Also, if the threat or use of violence constitutes a more serious offence, it cannot be taken to aggravate an offence (see [11-050]).

For the application of s 21A(2)(b) to specific offences see: Break and enter offences at [17-070]; Robbery at [20-260] (s 97 armed robbery), [20-270] (s 98 robbery with wounding) and [20-230] (s 95(1) robbery in circumstances of aggravation); Detain for advantage/kidnapping at [18-720]; Assault, wounding and related offences at [50-140].

For the application of s 21A(2)(c) to specific offences see: Break and enter offences at [17-070]; Robbery at [20-260] (s 97 armed robbery); [20-270] (s 98 robbery with wounding) and Assault, wounding and related offences at [50-140].

The absence of a weapon is not a matter of mitigation: Versluys v R [2008] NSWCCA 76 at [37]. Where the assailant has used his or her hands instead of a weapon it does not follow that the offence is necessarily less serious than if a weapon was used: Versluys v R at [37].

In TC v R [2009] NSWCCA 296 at [78] the offender assaulted and tied up the victim, then splashed petrol around her house, before setting fire to it. The Court of Criminal Appeal found the use of “explosives” applies to petrol in such circumstances and there was no error in it being taken into account as an aggravating factor for an offence of damage property with intent to danger life contrary to s 198 Crimes Act 1900: at [77]–[78].

Section 21A(2)(cb) may apply where an offender administers a drug to facilitate an offence. In Irmak v R [2021] NSWCCA 178 two offenders were convicted of a series of aggravated sexual assaults. A significantly aggravating feature of the offending was they made the young complainant, who was already intoxicated, ingest large quantities of methylamphetamine and gamma-hydroxybutyrate to ensure compliance with unwanted sexual conduct: at [309], [312]–[314].

This subsection is discussed extensively in Subjective matters at common law at [10-400]. Generally, an explanation should be given as to how any previous convictions have been taken into account on sentence, including regarding the application of common law principles such as those in Veen v The Queen (No 2) (1998) 164 CLR 465: Meis v R [2022] NSWCCA 118 at [41]–[43].

Under s 21A(6), a “serious personal violence offence” is a personal violence offence within the meaning of s 4 Crimes (Domestic and Personal Violence) Act 2007 that is punishable by imprisonment for life or imprisonment of 5 years or more. The definition includes serious sexual offences.

Whether the aggravating factor of an offence being committed “in company” applies will depend on the facts of each case: White v R [2016] NSWCCA 190. In Gore v R [2010] NSWCCA 330, the Court held s 21A(2)(e) “relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person”: [101]. The mere fact two persons are in the company of each other during an offence is not, of itself, sufficient to satisfy s 21A(2)(e): Gore v R at [100]–[101]; Pehar v R [2020] NSWCCA 118.

In White v R, Simpson JA at [94] (Bathurst CJ agreeing), posed at least three questions on which to focus in determining whether an offence is committed in company:

Simpson JA’s reasoning in White v R was applied in IS v R [2017] NSWCCA 116. 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: Gore v R at [100]–[101]; White v R at [2]–[4], [92]–[94]. The concepts are co-extensive: White v R at [92]. Where “in company” is an element of an offence, it is an error to consider s 21A(2)(e) as an aggravating factor: Stevens v R [2007] NSWCCA 152 at [35].

In White v R the sentencing judge erred by finding the offences were committed in company where the offender was accompanied by a friend, who was not physically present at the precise time the offences were committed: [96]–[98]. In Gore v R, the Court held s 21A(2)(e) had no application where the offender had used his wife to assist in his trading of drugs: [101]. Nor was it held to apply to those who assisted in committing the offence of supply prohibited drugs, in the nature of the upline supplier or the person to whom drugs were supplied: Elliott v R [2018] NSWCCA 69 at [26], [30].

In contrast, in IS v R [2017] NSWCCA 116, the Court held there was no error in a finding a robbery was aggravated by its commission in company as the two other offenders were in sufficient proximity to support the offender and intimidate the victim; one actively assisted the offender and the offender’s own evidence established the other offenders present shared a common purpose with him: IS v R at [50]–[51].

R v Way (2004) 60 NSWLR 168 and Book v R [2018] NSWCCA 58 are further examples of the nuanced application of this aggravating factor to particular facts.

For the application of this subsection to specific offences see: Application of s 21A to break and enter offences at [17-070]; Robbery at [20-260] (armed robbery) and [20-270] (robbery with wounding); and Common aggravating factors under s 21A and the common law at [50-140].

Section 21A(2)(ea) concerns the commission of an offence for which a child, who is not the victim, is present: Arvinthan v R [2022] NSWCCA 44 at [39]. It “is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional well-being of a child [and]… to the child’s moral values”: Gore v R [2010] NSWCCA 330, per Howie AJ at [104]. For example, the supply of drugs in the presence of a child is a factor of aggravation”: Gore v R at [104].

This aggravating factor can apply if the offender is also a child: Lloyd v R [2017] NSWCCA 303 at [71]–[72].

The “generalised presence” of a child is not sufficient to constitute an aggravating factor. In McLaughlin v R [2013] NSWCCA 152, the Court held it was an error to find two domestic assault offences were aggravated under s 21A(2)(ea) where the judge made no finding that the child was actually present or witnessed the offences: McLaughlin v R at [31]–[32]. Similarly, in Alesbhi v R [2018] NSWCCA 30, there was no basis for the sentencing judge to conclude an offence of affray was aggravated by the presence of children when the affray occurred outside and there was no evidence the children witnessed the offence or knew what was happening: Alesbhi v R at [55]–[56].

This factor is directed towards offences committed in the sanctity of the home, a place where a person is entitled to feel safe and protected: Jonson v R [2016] NSWCCA 286 at [41]; R v Lulham [2016] NSWCCA 287 at [5]; Second Reading Speech, Crimes (Sentencing Procedure) Amendment Bill 2007, NSW, Legislative Council, Debates, 17/10/2007, p 2669. In determining whether s 21A(2)(eb) applies, the entirety of the circumstances of offending needs to be considered: R v Lau [2022] NSWCCA 131 at [89]. It is also a matter for the sentencing judge’s discretion: R v Lulham at [6].

The five-judge bench in Jonson v R held s 21A(2)(eb) is not restricted to cases where the offender was an intruder in the victim’s home, overturning previous authority: [50].

A literal construction therefore includes a home in which the offender is lawfully present, including one in which the offender resides with the victim: Jonson v R at [40]. However, the fact the offence occurred in a home will not always be an aggravating factor and, for the factor to apply, the court must conclude, it actually aggravates the offence in question: Jonson v R at [52]; citing Gore v R [2010] NSWCCA 330 at [29]; see also Doyle v R [2021] NSWCCA 297. This aggravating factor may also apply to areas on the same premises reasonably adjacent to the home, such as the driveway: R v Lulham at [5].

For the application of this factor to break and enter offences see [17-070] Application of s 21A to break and enter offences.

Gratuitous cruelty under s 21A(2)(f) is needless yet intentional violence committed simply to make the victim suffer: McCullough v R [2009] NSWCCA 94 at [30]. The application of s 21A(2)(f) depends upon matters of fact and degree: R v Atonio [2005] NSWCCA 200 at [23].

For offences of violence, it requires more than commission of the offence without justification and causing great pain: McCullough v R at [30]. For example, if in a case of malicious wounding, torture was involved (McCullough v R at [31]), or it included kicking a pregnant woman (R v King [2004] NSWCCA 444 at [139]). Manslaughter involving a prolonged and violent assault on a defenceless infant established gratuitous cruelty in R v Hoerler [2004] NSWCCA 184 at [43], [64], and [80], as did murder in Milat v R [2014] NSWCCA 29 where, for the last ten minutes of the already seriously injured deceased’s life, he was subjected to “unimaginable torment”: [106].

Examples of cases where s 21A(2)(f) was not applied include:

See also Child pornography at [17-541] and Assault, wounding and related offences at [50-140].

Section 21A(2)(g) provides that whether the injury, emotional harm, loss or damage caused by an offence/s is substantial may be taken into account. At common law, the court may have regard to the harm done to the victim by the commission of the crime: Signato v The Queen (1998) 194 CLR 656 at [29]; see also [10-070] Impact on the victim. However, the offender may not be punished for a more serious offence than the one charged: The Queen v De Simoni (1981) 147 CLR 383 at 389; see also [1-500] De Simoni principle.

A court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Josefski v R [2010] NSWCCA 41 at [4], [38]–[39]; R v Wickham [2004] NSWCCA 193 at [25].

The injury, emotional harm, loss or damage under the provision is to be “substantial”, going beyond what could ordinarily be expected in relation to the particular offence: R v Packer [2023] NSWCCA 87 at [80], [82]. The term “substantial” is a wide one, and its meaning will depend on the context in which it is used including the offence charged: Chemaissem v R [2021] NSWCCA 66 at [64]–[65]. Where multiple offences are committed, consideration should be given to which offences the aggravating factor applies: see for example R v Packer at [78].

Care must be taken to avoid double punishment where the injury etc forms an element of the offence, and the extent and nature of the injury or harm are relevant in assessing whether the aggravating factor applies: Taylor v R [2006] NSWCCA 7 at [40]. In such cases, the nature of the injury etc must take it outside that necessary to establish the element of the offence: Heron v R [2006] NSWCCA 215 at [49].

The aggravating factor must be proven beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]; R v Tuala [2015] NSWCCA 8 at [57], [77]. Although, for a child victim of sexual assault, harm may be able to be inferred: Culbert v R [2021] NSWCCA 38 at [113]–[119]; see also [17-410] Sentencing for historical child sexual offences. In certain circumstances, where a victim impact statement is the only evidence of harm, considerable caution must be exercised before it can be used to establish an aggravating factor to the requisite standard: Culbert v R at [119]; R v Tualu at [80]–[81]; Gagan (a pseudonym) v R [2020] NSWCCA 47 at [28]–[30]; see also Victims and victim impact statements at [12-810]. A causal connection between the offence and resulting harm must also be proved beyond reasonable doubt: Erector Group Pty Ltd v Burwood Council [2018] NSWCCA 56 at [92]; see also RO v R [2013] NSWCCA 162 at [91]–[92]. The provision also extends to injury, harm, loss or damage suffered by the victim’s dependents: Aslett v R [2006] NSWCCA 360 at [37].

Section 21A(2)(h) is directed towards offences motivated by hatred for, or prejudice against, a group of people (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), with the offender carrying out the offence because they believed the victim belonged to that particular group. The list of groups in s 21A(2)(h) is not exhaustive and includes, for example, paedophiles: Dunn v R [2007] NSWCCA 312 at [32].

Holloway v R [2011] NSWCCA 23 is an example of a case where the provision applied in the context of racial violence (at [32]), and Aslett v R [2006] NSWCCA 49, where it did not (as there was no evidence).

Section 21A(2)(i) provides it is an aggravating feature of an offence if it is committed “without regard for public safety”. As the elements of some offences may include disregard for public safety (for example, dangerous driving and, possibly, firearms offences), for the provision to apply, the offending conduct must go beyond the objective element or underlying policy: Elyard v R [2006] NSWCCA 43 at [12]; see also Trejos v R [2017] NSWCCA 122 at [56] in relation to commercial drug supply.

This subsection is not directed to the specific victim of any offence, but to the danger caused to other members of the public by reason of the offence: R v Chisari [2006] NSWCCA 19 at [22]. It is the risk to public safety that falls to be assessed under s 21A(2)(i) and not what actually transpired: R v Fryar [2008] NSWCCA 171 at [34].

For the application of s 21A(2)(i) to specific offences see Dangerous driving at [18-390]; Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-890]; Firearms and prohibited weapons offences at [60-040]–[60-050]; and Damage by fire and related offences at [63-020].

Section 21A(2)(ib) provides that it is an aggravating factor if an offence “involved a grave risk of death to another person or persons”.

The aggravating factor may be established where there is no actual injury, for example, where a firearm is discharged directly at another person: Z v R [2015] NSWCCA 274 at [77]. In Colomer v R [2014] NSWCCA 51 at [38]–[40], the court held there was a grave risk of death by the offender pointing a loaded firearm at another person.

Further examples of the application of the provision include:

When an offence is committed whilst being on conditional liberty, this may amount to an aggravating factor. “Conditional liberty” is not defined in s 21A but captures the relevant common law principle: Porter v R [2008] NSWCCA 145 at [86]; see also Conditional liberty at [10-550]. It includes offending committed while the offender is:

The term “conditional liberty” in s 21A(2)(j) includes where the foundational offence giving rise to the conditional liberty is not punishable by imprisonment: Porter v R at [86]. Section 21A(2)(j) may also apply if the foundational offence, for which the offender was on conditional liberty, was later withdrawn: R v Deng [2007] NSWCCA 216 at [64].

That the offence was committed in breach of an AVO and while the offender was on bail may be taken into account as distinct aggravating factors as breach of bail and being subject to an AVO are different concepts: Archer v R at [85], [89].

Abuse of trust and abuse of authority are distinct but related concepts which may overlap: MRW v R [2011] NSWCCA 260 at [78]; PC v R [2022] NSWCCA 107 at [72]–[73]. Their meanings reflect the common law: Suleman v R [2009] NSWCCA 70 at [26] approving R v Wickham [2004] NSWCCA 193 and R v Johnson [2005] NSWCCA 186; see also Mol v R [2017] NSWCCA 76 at [107].

The application of s 21A(2)(k) to child sexual offences can be complicated, especially when the offence includes an element that the victim is under the offender’s authority: see PC v R at [80]; HA v R [2023] NSWCCA 274 at [112]. Notwithstanding, a breach of trust may be taken into account in relation to an offence with an element that the victim is under the offender’s authority: MRW v R at [77]. However, undue weight should not be given to an abuse of trust where abuse of authority is an aggravating factor to avoid double counting: MRW v R at [78]. Further, not all child sexual offences involve an abuse of trust, and the aggravating factor may be taken into account: see for example KJH v R [2006] NSWCCA 189 at [29]. See also Sexual offences against children at [17-560].

Section 21A(2)(l) provides that it is an aggravating feature of an offence if:

Section 21A(2)(l) is concerned with the vulnerability of a particular class of victim who need to be especially protected: R v Tadrosse (2006) 65 NSWLR 740 at [24]–[26]; Betts v R [2015] NSWCCA 39 at [29]. It is the fact of a victim’s vulnerability which aggravates the offence: Sumpton v R [2016] NSWCCA 162 at [147].

The examples of classes of vulnerable person in s 21A(2)(l) do not amount to an exhaustive list: Ollis v R [2011] NSWCCA 155 at [96]; Perrin v R [2006] NSWCCA 64 at [35]; Longworth v R [2017] NSWCCA 119 at [17]. The occupations listed in the provision often involve work in isolation and sometimes involve significant amounts of money: Longworth v R at [17]–[18] (involving a security guard at a licensed venue); Veale v R [2008] NSWCCA 23 at [18] (involving a service station owner banking cash).

A combination of factors may operate to render a victim vulnerable: Ollis v R at [96]. For example, an elderly victim who lived alone (Katsis v R [2018] NSWCCA 9 at [62]), an adolescent student with limited English travelling alone on public transport (Ollis v R), an intoxicated taxi passenger (Ali v R [2010] NSWCCA 35 at [36]–[39]). The aggravating factor may also apply to vulnerable victims of a particular age even though an element of the offence concerns the victim’s age: RJA v R [2008] NSWCCA 137 at [13]; see below.

However, it is not directed to vulnerability in a general sense, for example, to:

Section 21A(2)(m) enables the court to take into account multiple victims or a series of criminal acts concerning an offence. This includes in relation to a “rolled up” charge: Johnston v R [2017] NSWCCA 53. As explained by Howie J in R v Tadrosse (2006) 65 NSWLR 740 at [29], s 21A(2)(m):

Section 21A(2)(m) does not generally apply to multiple offences with multiple victims and acts of criminality: Gray v R [2018] NSWCCA 39 at [46]; Aslett v R [2006] NSWCCA 360 at [38]; R v Tzanis [2005] NSWCCA 274 at [19]; R v Janceski [2005] NSWCCA 288; Magnuson v R [2013] NSWCCA 50 at [56]; R v Tadrosse at [28]. In these cases, the principle of totality is to be applied (see [8-200] The principle of totality). In respect of representative charges, to apply s 21A(2)(m) may result in impermissible double counting as it generally involves an acceptance of similar but uncharged offending to disentitle the offender to leniency on the basis the offence was an isolated one: see for example JAH v R [2006] NSWCCA 250; Clinton v R [2018] NSWCCA 66 at [37]–[39]; see also [10-030] Uncharged acts.

Where an offender is charged with multiple offences, in which the victims are the same for each offence, there are not, in relation to each offence, multiple victims for the purpose of s 21A(2)(m): McCabe v R [2006] NSWCCA 220 at [10]. However one offence may have multiple victims, as may a series of offences: Hockey v R [2006] NSWCCA 146 at [16].

Section 21A(2)(m) does not apply to Form 1 matters: Hawkins v R [2006] NSWCCA 91 at [28]–[29].

It is prudent for a sentencing judge to raise with the parties his or her intention to take this aggravating factor into account: Stokes v R [2008] NSWCCA 123 at [14]. The scope of s 21A(2)(n) was considered in Hewitt v R [2007] NSWCCA 353 where Hall J at [25] derived the following general propositions from prior cases about the operation of the provisions:

The fact there are several offences revealing some broad pattern of behaviour does not mean there is relevant “planning” for the purposes of s 21A(2)(n): RL v R [2015] NSWCCA 106 at [36]–[37]. In RL v R, a child sexual assault case, the court held the applicant’s offences committed over a five-year period, did not involve planning but rather demonstrated opportunistic behaviour.

There may be a “logical difficulty” in finding an offence was planned if it is accepted there was some level of duress or intimidation on the offender to participate in the offence: SS v R [2009] NSWCCA 114 at [99]; see also Legge v R [2007] NSWCCA 244 at [33].

It is unclear whether planning under s 21A(2)(n) applies only where the offender has been involved in the planning of the offence, or whether it is sufficient the offence itself was planned to take planning into account as an aggravating factor. Simpson J in Legge v R said at [34]:

However, in DPP (NSW) v Cornwall [2007] NSWCCA 359, Latham J said at [56]:

In Pham v R [2020] NSWCCA 269, the Court found it was unnecessary to resolve this apparent tension because despite there being limited evidence of the offender’s actual contribution to the planning of the offence, a significant hydroponic operation in 16 premises and his involvement which included leasing many of the premises in false names, demonstrated his knowing participation in the offence’s “planning and organisation”.

Fullerton J also commented that the apparent tension in the approaches in Legge v R and DPP (NSW) v Cornwall reflect their different factual contexts:

For the application of this subsection to certain offences, see Application of s 21A to break and enter offences at [17-070]; Sexual offences against children at [17-440]; Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890]; and Fraud offences at [19-990].

Where financial gain is an inherent characteristic of the offence, such as with many fraud offences, financial gain cannot be taken into account as an aggravating factor under s 21A(2)(o) unless its nature or extent is unusual: Clinton v R [2018] NSWCCA 66 at [20]; cf Lee v R [2019] NSWCCA 15 at [55], [61] (in relation to identity fraud under s 192J Crimes Act 1900). It also should not be taken into account as an aggravating factor, if it is an element of the offence or an inherent characteristic of that kind of offence: Mansour v R [2011] NSWCCA 28 at [46]; see also Clinton v R at [21]–[22].

For the application of this section to certain offences, see Drug offences and s 21A Crimes (Sentencing Procedure) Act 1999 at [19-890] and Aggravating factors (for fraud) at [19-990].

Section 21A(2)(p) provides it is an aggravating factor for a prescribed traffic offence if it is committed while a child under 16 years of age was a passenger in the offender’s vehicle. A “prescribed traffic offence” is defined in s 21A(6).

Some of the mitigating factors set out under s 21A(3) reciprocally mirror the aggravating factors set out in s 21A(2). For example, the circumstance that the injury, emotional harm, loss or damage caused by the offence was substantial is an aggravating factor; while the circumstance that the injury, emotional harm, loss or damage caused by the offence was not substantial is a mitigating factor.

This factor operates so as to mitigate the objective seriousness of the offence and is the converse of the aggravating factor set out under s 21A(2)(g).

When considering the mitigating factor in s 21A(3)(a), a court should not assume there is no lasting impact on a victim. The court should assume that the effect upon a victim of an armed robbery is substantial and this is taken into account in the penalty to be imposed. If there is evidence of a long lasting effect on the victim, this might be a matter of aggravation: R v Bichar [2006] NSWCCA 1 at [22], applying R v Solomon [2005] NSWCCA 158.

The fact that there is no substantial loss or damage that results from the offence does not necessarily diminish the offender’s criminality. “Although it is calculated to reduce the demands of retribution, it does not impact on the weight to be given to most of the purposes of sentencing”: Van Can Ha v R [2008] NSWCCA 141 at [43].

This factor, when present, will detract from the objective seriousness of offence and may be contrasted with offences that are planned or organised prior to their commission: see s 21A(2)(n). A claim of spontaneity under s 21A(3)(b) was rejected in the malicious damage of property by fire case of Porter v R [2008] NSWCCA 145 at [46].

This provision gives statutory recognition to the principle that, where offences are committed under provocation, the provocation mitigates the seriousness of the offence: R v Engert (1995) 84 A Crim R 67 at 68 and 71; R v Cioban [2003] NSWCCA 304.

However, not in every case does the explanation of an offender’s conduct, whether characterised as provocation or not, operate as a mitigating factor. The motive must impinge on the offender’s moral culpability. The degree to which motive can be seen as pertinent depends on all the circumstances, the most significant of which is the nature of the offence: R v White (unrep, 23/6/98, NSWCCA). An offender cannot simply take the law into his or her own hands: R v Buddle [2005] NSWCCA 82 at [11].

Where provocation is established such that it is a mitigating factor under s 21A(3)(c), it is a fundamental quality of the offending which may reduce its objective seriousness. There cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account: Williams v R [2012] NSWCCA 172 at [42]. The absence of provocation is not a factor in aggravation and does not increase the objective seriousness of the offence: Williams v R at [43]. In Pitt v R [2014] NSWCCA 70 at [57], [65], the extreme provocation of the deceased and his brother towards the applicant was one of the bases upon which the court intervened and reduced the sentence for manslaughter.

Evidence of “relationship tension and general enmity … leading up to the offence”, while part of the overall circumstances in which the offence occurred, “does not constitute evidence of provocation such as to amount to mitigation”: Shaw v R [2008] NSWCCA 58 at [26].

In ordinary language, duress implies forcible restraint and compulsion: R v N [1999] NSWCCA 187 per Adams J at [35].

Section 21A(3)(d) must be interpreted in light of the common law on the subject. Where an offender commits a crime while acting under duress which falls short of a complete defence to the charge, this “non-exculpatory duress” is capable of being a mitigating factor at sentence: Tiknius v R [2011] NSWCCA 215 (although the case concerned a Commonwealth offence the court declared the common law on the subject). Non-exculpatory duress may be taken into account as a mitigating factor for two reasons: it may affect the degree of the offender’s subjective or moral culpability and prospects of rehabilitation: Tiknius v R at [41]. It is relevant to the assessment of objective gravity if an offence is committed because of threats and fear of harm to oneself or others rather than financial profit or greed. These matters bear upon the moral or true culpability of an offender: R v Z (2005) 2 AC 467 at [22]. Where the source of duress is conduct of persons in another country a court is entitled to approach such claims with a significant degree of circumspection as claims may be easily made: Tiknius v R at [45].

Where the offender satisfies the court that the commission of the offence was affected by duress, the weight given to that factor involves the court considering, inter alia, the form and duration of the offender’s criminal conduct, the nature of the threats made, and opportunities available to the offender to report the matter to relevant authorities: Tiknius v R at [49]. Johnson J said at [51]:

The Court of Criminal Appeal has continued to apply Tiknius v R notwithstanding the decision of Muldrock v The Queen (2011) 244 CLR 120: Giang v R [2017] NSWCCA 25 at [32]–[33]. Muldrock v The Queen did not place duress, provocation, mental state and mental illness outside the scope of objective features, or confine duress to a purely subjective consideration: Giang v R at [33]. As to decisions since Muldrock v The Queen, see Kuti v R [2012] NSWCCA 43; Lindsay v R [2012] NSWCCA 124; Cherdchoochatri v R [2013] NSWCCA 118; RCW v R (No 2) (2014) 244 A Crim R 541: Giang v R at [33].

In Kuti v R, duress was a mitigating factor to some extent, but not such as to remove the need for deterrence. In Lindsay v R, the judge was not convinced that pressure from the offender’s “creditors” was “pressing on him as a motivation to commit [the] crime”.

In R v Ceissman [2004] NSWCCA 466 at [24] Wood CJ at CL considered “economic duress” as a motive for participation in the offence of aggravated break enter and steal in company, contrary to s 112(2) Crimes Act, and held that it did not mitigate the respondent’s objective criminality. The respondent’s participation in the offence stemmed from independent criminal conduct arising out of his continued association with career criminals: at [24].

This principle was applied by Spigelman CJ in R v N at [57]–[59].

At common law offenders without prior convictions may generally expect to be treated more leniently than those with previous convictions. The presence of relevant priors is an aggravating factor: see s 21A(2)(d).

See discussion of this factor in Prior record at [10-405].

Where the offender has a record of previous convictions at the time of appearing for sentencing of an offence, but the record is in relation to offences which were committed after the offence before the court, it is an error to consider the absence of a prior record as a mitigating factor: R v MAK & MSK [2006] NSWCCA 381 at [59]–[60].

See discussion in Subjective matters at common law at [10-410].

The reference to “good character” in s 21A(3)(f) relates to the character of the offender prior to the commission of the offence: Lozanovski v R [2006] NSWCCA 143 at [12]. This was confirmed in Aoun v R [2007] NSWCCA 292 at [22] where it was explained that s 21A(3)(f) deals with previous good character due to the presence of the word “was” in the provision.

In R v PGM [2008] NSWCCA 172, Fullerton J considered that where there is a pattern of re-offending over an extended period in the course of an ongoing relationship fostered for the commission of the offence, “a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending … diminishes the mitigating impact of a finding of good character”: at [44].

Section 21A(5A) provides that, in determining the appropriate sentence for a child sexual offence (as defined in s 21A(6)), an offender’s good character or lack of previous convictions is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

It was observed by Hodgson JA in Aoun v R [2007] NSWCCA 292 at [23] that:

For s 21A(5A) to apply, the sentencing judge should make an express finding specific to the offender that good character or lack of previous convictions assisted the offender in the commission of the offence: NLR v R [2011] NSWCCA 246.

See further Special rule for child sexual offences in Good character at [10-410].

This mitigating factor involves a favourable assessment or prediction relating to an offender’s future offending behaviour. It is commonly linked to a positive finding that the offender has good prospects for rehabilitation and, accordingly, will often influence the selection of the dominant purpose of sentencing. Its influence is particularly noticeable in borderline cases of imprisonment, where the sentencing court resolves not to impose a full-time custodial sentence on the basis that neither the principle of general deterrence nor concern for protection of society from the offender appear justified.

In Elyard v R [2006] NSWCCA 43 the court held that the judge failed to take into account the applicant’s good prospects of rehabilitation, per s 21A(3)(h). The judge found that the applicant had poor prospects of rehabilitation without providing a cogent basis for rejecting the psychologist’s report, which referred to the applicant’s objective progress in terms of a significant and measurable improvement in attitudes to drugs and alcohol abuse. Basten JA and Hall J, in separate judgments, found that his Honour failed to give proper weight to the psychologist’s opinions: Basten JA at [27], Hall J at [92].

In the circumstances of a case, it may be that even though someone is unlikely to re-offend, their prospects of rehabilitation are not so favourable: Barlow v R [2008] NSWCCA 96 at [91]. It was possible to reconcile these seemingly inconsistent findings on the facts in Barlow v R.

For an explanation of remorse at common law see Alvares v R (2011) 209 A Crim R 297 at [44] extracted at Subjective matters at common law at [10-420]. In essence remorse means regret for the wrongdoing the offender’s actions caused and, as a feature of post offence conduct, may be relied upon to mitigate penalty: Windle v R [2011] NSWCCA 277 at [44].

The section was amended to provide that remorse may be taken into account, “but only” 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). The impact of this provision (if any) on the common law (given the terms of s 21A(4): see [11-040]) is yet to be decided, and it is worth noting that there is no equivalent provision which states that s 21A(3)(i) has “effect despite any Act or rule of law to the contrary” as there is for the special rules for child sexual offences in s 21A(5A), (5B). Ultimately, so far as this statutory form of remorse is concerned, the question will turn on whether “evidence” has been provided. This requirement in s 21A(3)(i) to provide evidence of remorse does not equate with a requirement that an offender give evidence of remorse: Butters v R [2010] NSWCCA 1 at [17]; Alvares v R at [65]; Doumit v R [2011] NSWCCA 134 at [19]; Sun v R [2011] NSWCCA 99 at [25], [31].

The court should not simply disregard evidence of remorse because the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters v R at [18]; Mun v R [2015] NSWCCA 234 at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79 where the sentencing judge, in each case, did not err by rejecting the offender’s self-serving untested statements as evidence of remorse. In R v Harrison, Spigelman CJ said at [44]:

This approach is consistent with the court cautioning against uncritical reliance on material contained in tendered reports where an offender does not give evidence: R v Qutami [2001] NSWCCA 353.

McClellan CJ at CL said in Pfitzner v R [2010] NSWCCA 314 at [33]:

The practice of offenders relying on hearsay statements for findings of fact in their favour is not uncommon, however, this practice is to be discouraged: Halac v R [2015] NSWCCA 121 at [106]. In Imbornone v R, there was no error in the sentencing judge concluding the offender’s untested hearsay expressions of remorse to his psychiatrist were not sufficient to prove, on the balance of probabilities, the offender was remorseful under s 21A(3)(i): Imbornone v R at [55], [59]. Wilson J at [57] set out a number of principles to be applied when a sentencing judge is asked to take into account an untested statement made to a third party: see Untested self-serving statements at [1-490].

An assessment of the genuineness of remorse is likely to be better informed when expressed directly, that is, face to face because it is intrinsically a subjective matter: Alvares v R at [65]; Mun v R at [39]. The evidence before the judge in Windle v R at [54] did not satisfy the section since there was no evidence showing the applicant accepted responsibility for his actions; nor did he acknowledge or pay any reparation for the loss caused.

A judge is not obliged to accept assertions of contrition made by an offender: R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL, followed in R v Nguyen [2004] NSWCCA 438 at [21].

It is an error for a judge to look for evidence of contrition (or lack of contrition) only at the time of the commission of the offence, without regard to evidence of contrition at a later point in time: R v Johnston [2005] NSWCCA 80 at [28]. Later evidence of contrition — which appeared genuine and indicated the beginning of progress towards rehabilitation — should be taken into account by the sentencer.

The strength of the Crown case is a relevant consideration in relation to the evaluation of remorse: R v Sutton [2004] NSWCCA 225 at [12]; R v Thomson (2000) 49 NSWLR 383 at [137].

The court should not quantify the reduction for remorse either separately or as part of the utilitarian discount for the plea: R v Borkowski [2009] NSWCCA 102 at [32]. Given that s 21A makes specific provision for remorse to be considered as a separate mitigating factor, to include it as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting: Kite v R [2009] NSWCCA 12 at [12].

Remorse is a major factor in determining whether an offender is unlikely to re-offend (s 21A(3)(g)) and has good prospects of rehabilitation (s 21A(3)(h)). “Without true remorse it is difficult to see how either finding could be made”: R v MAK & MSK [2006] NSWCCA 381 at [41].

The reference in s 21A(3)(i)(ii) to reparation as a mitigating factor requires that before this factor comes into play, there must be evidence that the reparation has already been made at the time of sentence: R v Cage [2006] NSWCCA 304 at [34]. Repayment of the proceeds of crime is not necessarily evidence of genuine remorse: Chahal v R [2017] NSWCCA 203 at [39].

It has not been judicially determined just how the expression “not fully aware of the consequences of his or her actions because of the offender’s age” is to be applied or whether it adds anything to the common law on the subject. A narrow reading would suggest that the subsection would apply to very young offenders. The common law recognises “the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law”: KT v R [2008] NSWCCA 51 at [23]. Similarly, it is doubtful whether the subsection adds to the common law in relation to the relevance of the offender’s mental condition at sentence as expressed in Muldrock v The Queen (2011) 244 CLR 120 at [54]. In Taylor v R [2006] NSWCCA 7 the sentencing judge should have found that the applicant suffered from a “disability” and that his mental condition was a mitigating factor under s 21A(3)(j).

See further, Subjective matters at common law at [10-460] and Sentencing principles applicable to children dealt with at law at [15-090].

See Guilty pleas at [11-500].

The Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 was assented to on 18 April 2001 and commenced on 19 November 2001. It introduced procedures whereby the court could, on a case by case basis, impose pre-trial disclosure requirements on both the prosecution and the defence, in order to reduce delays in complex criminal trials. Now see Ch 3 Pt 3 Div 3 Criminal Procedure Act 1986.

Although s 22A Crimes (Sentencing Procedure) Act provides that a court may take into account the degree to which the offender cooperates with the court in making pre-trial disclosures, and may impose a lesser penalty than it would otherwise (s 22A(1)), any such lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence (s 22A(2)).

See Power to reduce penalties for pre-trial disclosure at [11-910].

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

Section 21A(5AA) provides:

For a discussion of the effect this subsection has on the common law, see Subjective matters at common law at [10-480]ff and Special Bulletin No 6 — Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014. It has effect despite any Act or rule of law to the contrary.

Section 21B Crimes (Sentencing Procedure) Act 1999 provides that a court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing: s 21B(1). The standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing: s 21B(2). These provisions apply to proceedings commenced on or after 18 October 2022: see Crimes (Sentencing Procedure) Amendment Act 2022. Prior to the insertion of s 21B, unless the offence was a child sexual offence (see s 25AA(1) (rep)), the court was required to sentence in accordance with the sentencing patterns and practices existing at the time of the offence: R v MJR (2002) 54 NSWLR 368; see also Sentencing practice after long delay in [10-530] Delay. Section 25AA(1) continues to apply to proceedings commenced from 31 August 2018 to 17 October 2022.

The Crimes Amendment (Sexual Offences) Act 2008 inserted s 24A (effective 1 January 2009). Section 24A(1) provides that, in sentencing an offender, the court must not take into account as a mitigating factor the fact that the offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence.

Section 24A was amended by the Crimes (Sentencing Procedure) Amendment Act 2010 to further provide that the court must not take into account, as a mitigating factor, the fact the offender is prohibited from engaging in child-related employment under the Commission for Children and Young People Act 1998 because of their conviction for a serious sex offence, the murder of a child or a child-related personal violence offence. Such an offender’s status as a “prohibited person” is not extra-curial punishment.

Section 24A was further amended by the Crimes (Serious Sex Offenders) Amendment Act 2013, which commenced on 19 March 2013. Section 24A(1)(d) was inserted to provide that the fact that an offender is subject to an order under the Crimes (High Risk Offenders) Act 2006 must not be taken into account as a mitigating factor. The amendments were a consequence of renaming the Crimes (Serious Sex Offenders) Act as the Crimes (High Risk Offenders) Act 2006 which extended the application of the Act to high risk violent offenders as well as serious sex offenders.

See further discussion of extra-curial punishment in Sexual offences against children at [17-570].

Section 24B prevents a court from taking into account, as a mitigating factor, the consequences of any confiscation or forfeiture order imposed on the offender because of the offence. See R v Hall [2013] NSWCCA 47 for an approach to a drug proceeds order.

The Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 inserted s 24C into the Crimes (Sentencing Procedure) Act 1999 to preclude consideration of loss of parliamentary pension as mitigating factor in sentencing. The amendments have a retrospective effect in the sense that they do not only apply to Members of Parliament convicted forthwith: Sch 1, cl 11A Parliamentary Contributory Superannuation Act 1971. Section 24C was first applied in R v Macdonald [2017] NSWSC 638 at [262].