Section 21A(2) (aggravating factors) Crimes (Sentencing Procedure) Act 1999 provides:

Section 21A(4) provides:

The Court of Criminal Appeal sat a bench of five in R v McNaughton (2006) 66 NSWLR 566 to settle how prior criminal record should be used against an offender in light of the common law and the terms of s 21A(2). The following sequential propositions can be extracted from the case with reference to the principle of proportionality:

The court in Hillier v DPP (2009) 198 A Crim R 565 and Van der Baan v R [2012] NSWCCA 5 at [34] reiterated the above approach.

It is incumbent upon the court to explain the manner in which the factor has been taken into account. A passing reference to s 21A(2)(d) is unsatisfactory: R v Walker [2005] NSWCCA 109 at [32]; R v Tadrosse (2005) 65 NSWLR 740 at [21]; Doolan v R (2006) 160 A Crim R 54 at [20]; Adegoke v R [2013] NSWCCA 193 at [35].

If an offender has committed offences that had gone undetected and unpunished until current proceedings, or is being punished for a series of ongoing offences, the offender may have no record of prior convictions despite having committed numerous offences.

In R v Smith [2000] NSWCCA 140, a case which involved ongoing misappropriation of funds, the Court of Criminal Appeal said at [21]–[22]:

Where an offender’s criminal record discloses a long “gap” in offending — a period in which no convictions have been recorded — this may provide a basis for inferring the offender has reasonable prospects of rehabilitation and may be unlikely to return to crime in the future: Ryan v The Queen (2001) 206 CLR 267 at 288. This assessment, however, still depends upon the circumstances of the individual case.

For example, in R v Johnson [2004] NSWCCA 76 at [29], the court held that, despite a gap in offending of over 10 years, the nature of the crimes committed both before and after the gap “could hardly inspire confidence concerning his rehabilitation or the unlikelihood of his returning to crime” and that leniency was plainly unwarranted.

There is also a distinction between taking into account in mitigation a period of no further convictions recorded from a certain point in time, and a positive finding there has not, as a matter of fact, been any offending since that time: Richards v R [2023] NSWCCA 107 at [83]. Noting Richards v R involved historical child sexual offending, if an offender seeks to be sentenced on the basis they have ceased offending from a particular time, this must be proved on the balance of probabilities and, if there is no evidence either way, the court may neither sentence on the basis offending has continued, nor ceased: Richards v R at [85].

Offences in the offender’s record which were committed after the date of the offence for which the offender stands for sentence may not be taken into account for the purposes of imposing a heavier sentence, but may be considered for the purposes of deciding whether the offender is deserving of leniency: R v Hutchins (1958) 75 WN (NSW) 75; R v Kennedy (unrep, 29/5/90, NSWCCA) at p 5, R v Boney (unrep, 22/7/91, NSWCCA); Bingul v R [2009] NSWCCA 239 at [69]. In Charara v DPP [2001] NSWCA 140 at [38], the court queried the logic of the reasoning in R v Hutchins:

Charara v DPP was quoted with approval in R v MAK [2006] NSWCCA 381 at [58].

In R v MAK, the judge erred by treating as a mitigating factor the absence of any criminal record notwithstanding the commission of later sexual offences. The later offending illustrated that the conduct for which the offender stood for sentence was not an aberration but rather the start of a course of conduct: R v MAK at [60]. The later offending was relevant not by way of aggravating the offences but by depriving the offender of any leniency to which he might otherwise have been entitled by the fact that he had no criminal record at the time of the commission of the original offences: R v MAK at [59]. The fact that the offender had no criminal record at the time was not considered to be a significant factor in the determination of the appropriate sentence. The court in R v MAK at [61] articulated the tension between the authorities as follows:

Prior convictions are to be taken into account even in circumstances where the convictions are the subject of a pending appeal on the basis that verdicts are not to be treated as provisional, pending their confirmation on appeal: R v Sinanovic [2000] NSWCCA 394 at [84].

The Criminal Records Act 1991 implements a “scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history”: s 3(1).

Where a conviction becomes spent (in most cases, after a period of 10 years without further convictions) the conviction ceases to form part of the offender’s criminal record. For general purposes other than in proceedings before a court, an offender is not required to disclose spent convictions when questioned as to his or her criminal record: s 12.

Because s 12 does not apply to proceedings before courts (s 16), a court may have regard to a spent conviction, and the general rule that the conviction need not be disclosed does not apply.

A court must take reasonable steps to ensure an offender’s privacy before admitting evidence of a spent conviction: s 16(2).

The use of the phrase “record of previous convictions” in s 21A(2)(d) excludes s 10 orders under the Act: R v Price [2005] NSWCCA 285 at [36]. A s 10 order does not form part of an offender’s record of previous convictions. If a s 10 order is to be taken into account it must be done by applying the specific common law principles in Veen v The Queen (No 2) in a limited way: R v Price at [38].

Section 21A(3)(e) provides that a mitigating factor to be taken into account in determining the appropriate sentence for an offence includes the offender not having any record (or any significant record) of previous convictions. However, the provision or the common law on the subject does not apply where the special rule for child sexual assault offences in s 21A(5A) applies (see further below).

Prior convictions may be formally proved under the provisions of the Evidence Act 1995, s 178. It provides that a certificate may be issued by a judge, magistrate, registrar or other proper officer of the court detailing particular convictions and sentences. Such a certificate is proof not only of the conviction or sentence itself, but also evidence of “the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate”: s 178(3).

Evidence of previous convictions in a foreign country may be taken into account in sentencing, even though the foreign procedures have not conformed to local trial methods: R v Postiglione (1991) 24 NSWLR 584 per Grove J at 590.

A court sentencing a federal offender must take into account antecedents: s 16A(2)(m) Crimes Act 1914 (Cth). See also Weininger v The Queen (2003) 212 CLR 629.

A distinction needs to be made between recording a conviction in respect of an offence committed by a juvenile and the admission of evidence of prior offences, where those offences were committed by a juvenile.

The Crown has a duty to assist the court by furnishing appropriate and relevant material touching on sentence, including the offender’s criminal antecedents report. This is a well recognised obligation and it is difficult to see how the sentencing process could be properly carried through without the Crown fulfilling it: R v Gamble [1983] 3 NSWLR 356 at 359.

An offender’s good character or lack of previous convictions is not to be taken into account as a mitigating factor for a child sexual offence if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence: s 21A(5A). See [17-570] Mitigating Factors.

There are also classes of offences where good character may carry less weight than others because they are frequently committed by persons of otherwise good character. For example, it has been held that less weight may be afforded to this factor in cases of:

As to adding to the above list, it has been held that there is not a sufficient basis to add offences involving possession of prohibited firearms, but the court can consider the issue of weight in an individual case: Athos v R (2013) 83 NSWLR 224 at [44].

The category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character is not closed: R v Gent at [61].

Ryan v The Queen (2001) 206 CLR 267, a case involving a paedophile priest, is a leading case discussing good character. What was said there is now subject to the special rule in s 21A(5A) described above. McHugh J in Ryan v The Queen at [23] and [25] said that when considering the element of prior good character the court must distinguish two logically distinct stages:

The weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case: Ryan v The Queen at [25].

The law on good character, including Ryan v The Queen, is comprehensively reviewed by Johnson J in R v Gent at [51]. The weight to be given to good character on sentence depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan v The Queen at [143].

In R v Kennedy [2000] NSWCCA 527 at [21]–[22] and later Jung v R [2017] NSWCCA 24, it was held that little or no weight may be attributed to an offender’s prior good character where:

The otherwise good character of the offender is only one of a number of matters the court must consider and the nature and circumstances of the offence is of utmost importance: R v Gent at [53].

Where a person has been convicted of an offence or offences to which he or she has expressly admitted being “representative”, or where there is uncontested evidence supporting such a proposition, the offender should not be given credit for being of prior good character: R v JCW [2000] NSWCCA 209, considered in R v Weininger [2000] NSWCCA 501 at [51]–[56].

The good reputation of the offender sometimes occurs only because the offences are committed in secret and the offences themselves are seldom committed “out of character” because they are premeditated: R v Levi (unrep, 15/5/97, NSWCCA). Gleeson CJ, however, added the following observation:

This was referred to in the judgment of McHugh J in Ryan v The Queen at [27] and again in R v Gent at [49].

As well as the risks associated with an offender’s medical condition, the realities of prison life should not be overlooked: R v Burrell [2000] NSWCCA 26 at [27]. This does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require: R v L (unrep, 17/6/96, NSWCCA).

Serious physical disabilities or poor health rendering imprisonment more burdensome to the offender than for the average prisoner has been held to establish special circumstances warranting a longer period on parole: R v Sellen (1991) 57 A Crim R 313.

For commentary regarding foetal alcohol spectrum disorder, see [10-460] Mental health or cognitive impairment below.

In DPP (Cth) v De La Rosa, McClellan CJ at CL summarised at [177] the principles developed by courts to be applied when sentencing an offender who is suffering from “a mental illness, intellectual handicap or other mental problems” (case references omitted):

McClellan CJ at CL further stated at [178]:

The principles in DPP (Cth) v De La Rosa have been “often-cited” and applied: Wornes v R [2022] NSWCCA 184 at [25]; see also R v SS (a pseudonym) [2022] NSWCCA 258; Biddle v R [2017] NSWCCA 128 at [89]–[90]; Laspina v R [2016] NSWCCA 181 at [39]; Aslan v R [2014] NSWCCA 114 at [33] and Jeffree v R [2017] NSWCCA 72 at [30]. However, the above principles are not absolute in their terms and there is no presumption as to their application. They merely direct attention to considerations that experience has shown commonly arise in such cases: Choy v R [2023] NSWCCA 23 at [74]; Alkanaan v R [2017] NSWCCA 56 at [108].

Where a principle does apply, it remains a matter for the judge to make a discretionary evaluation as to the extent of its significance: Blake v R [2021] NSWCCA 258 at [42]. In Blake v R, the court held it was open for the sentencing judge, in sentencing the offender for serious offences of violence against his ex-partner and her new partner including specially aggravated enter dwelling, to find that general deterrence remained important, albeit diminished “to some extent”, and the offender’s moral culpability “reduced somewhat”, as a result of the offender’s major depressive illness: [44]. The sentencing judge must examine the facts of the specific case to determine whether the mental condition has an impact on the sentencing process: Aslan v R at [34]; Jeffree v R at [31].

It should not be assumed that all the mental conditions recognised by the Diagnostic and Statistical Manual of Mental Disorders DSM (IV), 4th edn, American Psychiatric Association, 2000, Washington DC, attract the sentencing principle that less weight is given to general deterrence: R v Lawrence [2005] NSWCCA 91. Some conditions do not attract the principle. Spigelman CJ cited literature on the limitations of DSM (IV) at [23] and said at [24]:

Note: Diagnostic and Statistical Manual of Mental Disorders DSM-5, 5th edn, (Text Revision DSM-5-TR, 2022) is now available.

Heeding Spigelman CJ’s point, in Anderson v R [2022] NSWCCA 187, the court held uncritical reliance should not be placed upon DSM-labelled conditions for any of the sentencing considerations that may be engaged in cases of mental disorder as identified in DPP v De La Rosa: at [35]. In Anderson v R, a psychologist reported the offender likely had borderline intellectual function, and the court held Spigelman CJ’s caution is still more important as the DSM-5 refers to this as a subject of clinical focus and does not purport to recognise a mental disorder of that name: at [33]–[34].

However, in Wornes v R, the court held that the sentencing judge erred by failing to take the offender’s personality disorder, with a history of hallucination and “schizoid” symptoms, into account: at [30], [32]–[33]. The judge’s opinion a personality disorder ought not attract the principles in DPP (Cth) v De La Rosa as a matter of law constituted a significant departure from orthodoxy: Wornes v R at [26], [29]–[30], citing Brown v R [2020] VSCA 212 at [26].

A causal relationship between the mental disorder or abnormality and the commission of the offence will not always result in a reduced sentence. In R v Engert (1996) 84 A Crim R 67, Gleeson CJ said at 71:

See also DS v R [2022] NSWCCA 156 at [95]. Further, for such a causal connection to have a bearing on the sentence it need not be the direct or precipitating cause of offending: Moiler v R [2021] NSWCCA 73 at [59].

Another factor that may be relevant is whether there is a serious risk that imprisonment will have a significant adverse effect on the offender’s mental health: R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]–[15].

It is often the case that childhood social deprivation causes mental disorders but not always and usually not wholly, so it is important not to double count for the same factor: Williams v R [2022] NSWCCA 15 at [130]–[131]. In Williams v R, the combination of the offender’s psychiatric disorders and his childhood exposure to trauma and violence caused him to normalise the violence used in the commission of the offence (robbery), such that each factor deserved consideration in the sentencing process: at [132]–[133]. See also [10-470] Deprived background, below.

Section 21A(3)(j) also refers to an offender not being aware of the consequences of their actions because of a disability, as a mitigating factor. Whatever it may mean, the terms of s 21A(3)(j) are restricted to the common law on the subject. See discussion of Section 21A factors “in addition to” any Act or rule of law at [11-300].

The moderation of general deterrence when sentencing an offender with a mental disorder need not be great if they act with knowledge of what they are doing and with knowledge of the gravity of their actions. In R v Wright (1997) 93 A Crim R 48, the applicant’s psychotic state was self-induced by a failure to take medication and a deliberate or reckless taking of drugs. Hunt CJ at CL stated at 52:

R v Wright was referred to in passing by the High Court in Muldrock (at fn 68). Wright has been applied in a number of cases including R v SS at [95]; Wang v R [2021] NSWCCA 282 at [98]; Blake v R at [43]–[44]; R v Burnett [2011] NSWCCA 276; Cole v R [2010] NSWCCA 227 at [71]–[73]; Benitez v R [2006] NSWCCA 21 at [41]–[42]; Taylor v R [2006] NSWCCA 7 at [30]; R v Mitchell [1999] NSWCCA 120 at [42]–[45]; R v Hilder (1997) 97 A Crim R 70 at 84.

In Kapua v R [2023] NSWCCA 14, the court held it was open for the sentencing judge to find the offender’s post-traumatic stress disorder with psychotic features did not reduce her moral culpability because the offending, which involved significant fraud, required “planning, coordination and persistence” and was motivated (in part) to fund a drug habit: at [112]–[113].

However, in Skelton v R [2015] NSWCCA 320 at [138]–[139], the sentencing judge erred in concluding the extent of the reduction in the offender’s moral culpability was “not as great as might have been available if [he] did not fully appreciate his actions were wrong” following the jury’s rejection of the defence of mental illness. The court found the jury’s verdict left open the possibility the offender was impaired to some degree and the judge’s conclusion that the impairment was “not great at all, or even significant” was contrary to the expert evidence: Skelton v R at [138]ff.

In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said at 71:

In Benitez v R [2006] NSWCCA 21 the judge erred by finding that, although the applicant had good prospects of rehabilitation, his mental condition was not a mitigating factor because it was not the cause of the commission of the offence. It is not necessary to show that it was the cause, or even a cause, of the commission of the crime: Benitez v R at [36], referred to in R v Smart [2013] NSWCCA 37 at [26], [30].

In Veen v The Queen (No 2) (1988) 164 CLR 465, the majority said at 476:

In R v Engert (1995) 84 A Crim R 67 Gleeson CJ explained the problem that confronted the High Court in Veen v The Queen (No 2). His Honour stated at 68:

R v Whitehead (unrep, 15/6/93, NSWCCA) is an example of an application of the principle. Gleeson CJ stated that it would be incongruous to treat sexual sadism as a mitigating factor in sentencing for malicious wounding, explaining:

Similarly, in R v Adams [2002] NSWCCA 448, a case where the offender had a fascination with knives and suffered from a severe personality disorder of an antisocial type, the court held that there was a “compelling need to have regard to the protection of the community”. See Cole v R [2010] NSWCCA 227 at [73]–[75].

However, a consideration of the danger to society cannot lead to a heavier sentence than would be appropriate if the offender had not been suffering from a mental abnormality: Veen v The Queen (No 2) at 477; R v Scognamiglio (1991) 56 A Crim R 81 at 85. In Veen v The Queen (No 2), the High Court put the principle in these terms at 473:

In LCM v State of Western Australia [2016] WASCA 164, the Western Australian Court of Appeal considered the medical condition of foetal alcohol spectrum disorder (FASD) and how its relevance in sentencing proceedings. FASD is a mental impairment and as such engaged sentencing principles relating to an offender’s mental condition: LCM v State of Western Australia at [121]. The case contains a comprehensive discussion of Australian and overseas cases and literature. Mazza JA and Beech J at [123] (Martin CJ agreeing at [1] with additional observations at [2]–[25]) cautioned against the use of generalisations about FASD:

See also R v MBQ; ex parte Attorney-General (Qld) [2012] QCA 202.

In Eden v R [2023] NSWCCA 31, evidence of the offender’s FASD was sought to be relied upon on the sentence appeal when such evidence was not before the sentencing judge. The report was not admitted on appeal and the court held the offender’s FASD was one factor, amongst others, that affected the offender’s decision making, and that affixing a label to an offender’s condition does not automatically find expression in sentence: Eden v R at [37] citing Anderson v R at [33]–[35]. If there was a causal connection between the impairment as a result of the offender’s FASD and the offence, the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between them, must be considered in the assessment of the offence’s objective gravity: Eden v R at [38] citing DS v R [2022] NSWCCA 156 at [96]. Further, such evidence had the capacity to impact the offender’s moral culpability as well as inform the weight to be given to the need for specific deterrence: Eden v R at [39], [41]. Also see Intermediate appellate court consideration above.

In Hiemstra v Western Australia [2021] WASCA 96, an offender’s FASD was considered in the context of their traumatic childhood and the principle in Bugmy v The Queen (2013) 249 CLR 571. See Specific applications of the principle of Bugmy v The Queen below.

See [90-000] Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for commentary regarding penalty options available under Pts 4 and 5 of that Act.

See [30-000] Inquiries under the Mental Health and Cognitive Impairment Forensic Provisions Act in the Local Court Bench Book for commentary regarding diversion in summary proceedings.

See [4-300] Procedure for fitness to be tried (including special hearings) in the Criminal Trial Courts Bench Book for commentary regarding unfitness and special hearings in the District and Supreme Courts.

See [6-200] Defence of mental health impairment or cognitive impairment in the Criminal Trial Courts Bench Book regarding the defence of mental health and/or cognitive impairment and the special verdict of act proven but not criminally responsible.

See [6-550] Substantial impairment because of mental health impairment or cognitive impairment in the Criminal Trial Courts Bench Book regarding the partial defence to murder in s 23A Crimes Act 1990.

In Bugmy v The Queen at [40] the High Court said:

Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing), which was decided before Bugmy v The Queen, put it this way:

The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy v The Queen at [42]–[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy v The Queen at [43]. Social deprivation may impact on those purposes in different ways. The court in Bugmy v The Queen explained at [44]–[45]:

An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence: Bugmy v The Queen at [37]. Not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence: Bugmy v The Queen at [40].

In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background: Bugmy v The Queen at [41].

The above principles have been applied in a number of Court of Criminal Appeal decisions including Baines v R [2023] NSWCCA 302 at [76], [107]; DR v R [2022] NSWCCA 151 at [37], [40]; Hoskins v R [2021] NSWCCA 169 at [54]; Ohanian v R [2017] NSWCCA 268 at [24]–[26]; Kiernan v R [2016] NSWCCA 12 at [63].

While the High Court in Bugmy v The Queen referred to “profound” childhood deprivation, there is no “magic” in the word “profound” or any requirement to characterise an offender’s childhood as one of “profound deprivation” before the principle that social disadvantage may reduce an offender’s moral culpability is engaged: Hoskins v R [2021] NSWCCA 169 at [57].

In Nasrallah v R [2021] NSWCCA 207, the majority held it was open to the sentencing judge to find the offender, who had as a child been the victim of attempted sexual assault by an uncle, and of kidnapping and physical assault by a person she met online, did not disclose a history of profound deprivation in accordance with Bugmy v The Queen: Bell P (as his Honour then was) at [6], [18]–[19], [25]; Price J at [48], [50]–[52]; Hamill J dissenting at [86]–[87], [97]. Notwithstanding, Bell P at [21]–[22] and Price J at [46] found the judge had regard to the applicant’s background and adolescence in mitigation.

In Ingrey v R [2016] NSWCCA 31 at [34]–[35], the court held that the use of the word “may” by the plurality in Bugmy v The Queen at [40] did not mean that consideration of this factor is optional; it was a recognition that there may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect. A deprived background is not confined to an immediate family context or early childhood. The principle has been applied in other cases including where an offender had a supportive immediate family background but he had an association with peers and extended family who were part of the criminal milieu: Ingrey v R at [38]–[39]. The principle was also applied where an offender had a stable and secure upbringing with his extended family until the age of 13 when he discovered his biological mother’s identity, after which, he was exposed to an environment where violence and substance abuse were normalised: Hoskins v R at [62]–[63].

In Tsiakas v R [2015] NSWCCA 187, the court held that the offender’s solicitor should have given consideration to obtaining a psychiatric or psychological report, which could have addressed the applicant’s background. The sentence proceedings were, however, conducted on the premise of a background of disadvantage: Tsiakas v R at [74]. The failure to obtain a report did not occasion a miscarriage of justice in the circumstances of the case because “something of real significance was required to be presented … to be capable of materially affecting the outcome of the sentencing hearing”: Tsiakas v R per Beech-Jones J at [67].

However, in Kliendienst v R [2020] NSWCCA 98, there was uncontested evidence before the sentencing judge of the applicant’s deprived upbringing and exposure to violence, trauma and drug abuse, including associated expert evidence. Although no submission was put to the sentencing judge that the applicant’s moral culpability could be substantially reduced because of his background, the principles in Bugmy v The Queen were applicable as there was uncontested evidence of the factual basis for raising them: Kliendienst v R at [67]–[68].

When childhood social deprivation causes mental disorders, it may not do so wholly, so it is important not to double count for the same factor: Williams v R [2022] NSWCCA 15 at [130]–[131]. In Williams v R, the combination of the offender’s psychiatric disorders and his childhood exposure to trauma and violence caused him to normalise the violence used in the commission of the offence (robbery), such that each factor deserved consideration in the sentencing process: at [132]–[133]. See also [10-460] Mental health or cognitive impairment.

In Ingrey v R, the offender’s particular disadvantage was not the circumstances of his immediate upbringing by his mother and father, but his association with peers and extended family who were part of the criminal milieu. They regularly exposed the offender from a young age to criminal activity: Ingrey v R at [27]. Such circumstances would have compromised the offender’s capacity to mature and learn from experience and amounted to social disadvantage of the kind envisaged in Bugmy v The Queen: Ingrey v R at [35]–[39].

In Kentwell v R (No 2) [2015] NSWCCA 96, the offender succeeded in establishing that he had a deprived background. He was removed from his Aboriginal parents at 12 months of age and adopted out to a non-Aboriginal family, where he grew up deprived of knowledge about his family and culture. The court applied Bugmy v The Queen and held that the offender’s moral culpability was reduced, as the social exclusion he experienced was capable of constituting a background of deprivation explaining recourse to violence: Kentwell v R (No 2) at [90]–[93]. This was supported by a body of evidence demonstrating that social exclusion could cause high levels of aggression and anti-social behaviours.

In IS v R [2017] NSWCCA 116, evidence established that the offender had been exposed to parental substance abuse and familial violence before being placed under the care of the Minister at the age of seven, after which time he moved around considerably. The sentencing judge accepted that the principle in Bugmy v The Queen was engaged and also found that the offender had favourable rehabilitation prospects. However, it was implicit in the conclusions of the judge, concerning general deterrence and the need for community protection, that the judge failed to give any weight to the reduction in moral culpability made explicit in the earlier findings: IS v R at [58]. Campbell J said “… the weight that would ordinarily be given in offending of this serious nature to personal and general deterrence and the protection of society ‘to be moderated in favour of other purposes of punishment’ and, in particular, his ‘rehabilitation’: Bugmy at 596 [46]”: IS v R at [65].

In Donovan v R [2021] NSWCCA 323, despite accepting the offender’s profound childhood deprivation, the sentencing judge rejected the application of Bugmy v The Queen due to the offender’s prosocial behaviour and positive social achievements at the time of offending, as he was able to “rise above it”: at [84]. The judge’s reasoning was held to overlook the essence of the evidence, particularly regarding the link between the offender’s childhood exposure to abuse and the offending: at [85]–[89].

However, in Hiemstra v Western Australia [2021] WASCA 96, the offender had experienced significant childhood trauma and disadvantage, and had been diagnosed with foetal alcohol spectrum disorder (FASD). The court held the sentencing judge erred in the application of the principle in Bugmy v The Queen by failing to give full weight to the offender’s traumatic childhood including his FASD as it decreased his moral blameworthiness for the offending: [111]–[112], [118]–[119]. For further commentary concerning the consideration of FASD on sentence, see Foetal alcohol spectrum disorder at [10-460] Mental health or cognitive impairment.

The court in Kiernan v R [2016] NSWCCA 12 held that the sentencing judge did not err in dealing with the offender’s criminal history and subjective case notwithstanding the deprived and depraved circumstances of the latter’s upbringing. Hoeben CJ at CL said at [60]: “the applicant’s criminal history, together with the effect on him of his deprived and abusive childhood, meant that his Honour had to take into account the protection of the community …”

The plurality in Bugmy v The Queen did not talk in terms of general deterrence having no effect, but referred to that factor being “moderated in favour of other purposes of punishment” depending upon the particular facts of the case: Kiernan v R at [63]. The CCA in Kiernan v R concluded (at [64]) the judge understood and applied Bugmy v The Queen.

In Drew v R [2016] NSWCCA 310, it was accepted that the offender suffered economic and social deprivation during childhood, both while residing with his family on an Aboriginal reserve until the age of 14 and then after being placed in a boys’ home to learn a trade. However, limited weight could only be given to any allowance for the offender’s deprived background under the principles in Bugmy v The Queen per Fagan J at [18] (Gleeson JA agreeing at [1]). Even having regard to his background of social disadvantage, the fact remained that the offender was a recidivist violent offender with convictions for matters of violence stretching over 35 years, committed against 13 separate victims, including domestic partners and the offender’s son. The needs of specific deterrence and community protection loomed large: Drew v R at [1], [17], [125].

The same sentencing principles are to be applied to every case, irrespective of the offender’s identity or membership of an ethnic or other group. However, sentencing courts should take into account all material facts, including those facts which exist only by reason of the offender’s membership of such a group: Neal v The Queen (1982) 149 CLR 305, per Brennan J at 326.

The High Court in Munda v Western Australia (2013) 249 CLR 600 at [53] reiterated the principle in Neal v The Queen in the context of a manslaughter committed by an Aboriginal offender who perpetrated domestic violence against his partner:

For the purposes of applying the statutory principle of imprisonment as the last resort in s 5(1) Crimes (Sentencing Procedure) Act 1999, courts in NSW should not apply a different method of analysis for Aboriginal offenders as a group: Bugmy v The Queen (2013) 249 CLR 571 at [36]. Nor should courts in NSW take into account the “unique circumstances of all Aboriginal offenders” as relevant to the moral culpability of an individual Aboriginal offender and the high rate of incarceration of Aboriginal Australians: at [28].

In Bugmy v The Queen (2013) 249 CLR 571 (which preceded the introduction of s 21A(5AA)), R v Fernando (1992) 76 A Crim R 58 was approved, where French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [38] said:

In Bourke v R [2010] NSWCCA 22, which also preceded the introduction of s 21A(5AA), McClellan CJ at CL (Price and RA Hulme JJ agreeing) stated at [26]:

The Court of Criminal Appeal has since dealt with s 21A(5AA) and a discussion of some of these decisions, in chronological order, follows.

In Kelly v R [2016] NSWCCA 246, Rothman J (Hoeben CJ at CL and RA Hulme J agreeing) at [46]–[50] approved the above comment in Bourke v R, finding s 21A(5AA) did not abolish that part of R v Fernando approved in Bugmy v The Queen. His Honour stated at [50]:

In Kelly v R, it was accepted the offender had used drugs of various kinds since he was 13 and, at that age, “was not at an age of “rational choice” that would give rise to the full responsibility for the moral culpability and the predictable consequences of a choice to become addicted”: [54]. However, Rothman J found the use of drugs (benzodiazepine in this case) was still self-induced, even though the drug’s effect on the offender was out of the ordinary: [65]. His Honour was unable to find that “the violent impulses and aggressive behaviour, caused by the benzodiazepine, and the disinhibiting effect of it, was a ‘predictable consequence of his choice as to the use of drugs’” (referring to Bourke v R): [64].

In Tepania v R [2018] NSWCCA 247, Johnson J (Payne JA and Simpson AJA agreeing) considered at [122]–[128] the application of s 21A(5AA) in the context of an offender who had a socially disadvantaged upbringing, finding that s 21A(5AA) operates to prevent self-induced intoxication operating as a mitigating factor because of its impact upon the degree of deliberation by an offender: [127]. His Honour held the sentencing judge did not fail to have regard to the offender’s profound deprivation, and that the offender’s self-induced intoxication was not a mitigating factor pursuant to s 21A(5AA): [123]–[124], [127]–[128].

In Fisher v R [2021] NSWCCA 92, Adamson J (Fullerton J agreeing) held s 21A(5AA) precludes a sentencing court from taking into account self-induced intoxication to explain an offender’s conduct, where such explanation reduces the offender’s moral culpability and/or the objective seriousness of the offending: [225].

Fisher v R was a sentence appeal relating to an offence of sexual intercourse without consent and Adamson J (Fullerton J agreeing; Brereton JA dissenting) held the sentencing judge erred by taking into account the offender’s self-induced intoxication in determining whether he deliberately deceived the complainant and actually knew she was not consenting: [73]; [225], [231]. The judge’s statement he had not taken the offender’s self-induced intoxication into account in mitigation did not cure the error of using it to “explain” the offender’s conduct: [76]; [225], [229]. Fullerton J, in additional reasons, held the judge was obliged to disregard the respondent’s intoxication entirely when enquiring into his state of mind, awareness or perception at the time of the offending, where that enquiry was undertaken to assess the objective seriousness of the offending and the offender’s moral culpability: [74], [77].

In Pender v R [2023] NSWCCA 291, Simpson AJA (Rothman and Cavanagh JJ agreeing) at [50]–[51] approved of Fullerton and Adamson’s JJ’s construction of s 21A(5AA) in Fisher v R (above) and said it stood as the construction of the Court of Criminal Appeal. Although Fisher v R and Pender v R concerned sexual offending and consent (including the application of repealed ss 61HA and 61HE), these decisions potentially apply more broadly.

In Pender v R, the offender argued on appeal (but not in the sentence proceedings) that s 21A(5AA) did not apply as his intoxication was not self-induced as it was the result of an addiction, and the original addiction did not involve a free choice (citing Bourke v R at [26] and Kelly v R at [47]). Simpson AJA (Rothman and Cavanagh JJ agreeing) did not accept, on the evidence, the offender’s intoxication was not self-induced: [61]. Her Honour remarked that the proposition called for a considerable depth of examination, including as to whether the offender suffered an “addiction”, notwithstanding that it was accepted his drug use was largely, if not entirely, a consequence of significant adversities of his early life: [60]–[61].

Where intoxication involves the voluntary ingestion of alcohol by a person with a history of alcohol-related violence, it may also be an aggravating factor: R v Fletcher-Jones at 387; Mendes v R [2012] NSWCCA 103 at [73]–[75], [83]. In R v Mitchell [2007] NSWCCA 296 at [29], the court said that:

The court in GWM v R [2012] NSWCCA 240 at [75] held that voluntary or self induced intoxication by an offender where he committed an aggravated child sexual assault was not relevant to assessing the gravity of the offence except as a possible aggravating factor.

See also Assault, wounding and related offences at [50-150].

Where the offender becomes intoxicated voluntarily and embarks on a course that is criminal conduct, such as dangerous driving, the reason that the offender was intoxicated is generally irrelevant: Stanford v R [2007] NSWCCA 73 at [53]. This is due to the fact that “the offence is not concerned with punishing the drinking of alcohol but with the driving thereafter”: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at [142]; see also R v Doyle [2006] NSWCCA 118 at [30]. Subsequent offences will be treated more seriously: Stanford v R at [54].

Where intoxication is the basis upon which an aggravated version of dangerous driving is charged, it should not be double-counted as an aggravating factor: R v Doyle at [25]. The same double counting problem would arise if a court took into account an offender’s intoxication as an aggravating factor where it is an ingredient of the crime such as the offence of assault causing death while intoxicated under s 25A(2) Crimes Act. For intoxication and dangerous driving, see also [18-340] in Dangerous driving and navigation.

The approach of having regard to intoxication when applying the standard non-parole statutory scheme needs to be considered in light of the recently re-enacted s 54A(2) Crimes (Sentencing Procedure) Act. See further the discussion at What is the standard non-parole period? at [7-890].

Very many offences of armed robbery are committed because of an addiction to drugs. However, drug addiction is not an excuse: R v Henry per Wood CJ at CL at [236]; see also principle (a) at [273].

Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry at [185]. Per Spigelman CJ at [197]:

Persons who choose a course of addiction must be treated as choosing its consequences: R v Henry per Spigelman CJ at [198]. Not all persons who suffer from addiction commit crime, therefore to do so involves a choice: per Spigelman CJ at [200]; per Wood CJ at CL at [250]. There is no warrant in assessing a crime that was induced by the need for funds to feed a drug addiction, as being at the lower end of the scale of moral culpability or lower than other perceived requirements for money (such as gambling): R v Henry per Spigelman CJ at [202]. The proposition has been followed and applied repeatedly: Toole v  R [2014] NSWCCA 318 at [4]; R v SY [2003] NSWCCA 291; Jodeh v R [2011] NSWCCA 194.

Further, the decision to persist with an addiction, rather than to seek assistance, is also a matter of choice: R v Henry per Spigelman CJ at [201]. Those who make such choices must accept the consequences: R v Henry per Wood CJ at CL at [257], with which Spigelman CJ agreed.

In R v Henry, Wood CJ at CL set down a number of general principles in relation to the sentencing of offenders with drug addictions: at [273].

To the extent that an offence is motivated by a need to acquire funds to support a drug habit, such a factor may be taken into account as a factor relevant to objective criminality. This may be done in so far as it assists the court to determine:

The use of alcohol or drugs by an offender may be relevant in sentencing for one or more of a number of reasons. For example, it may be that a crime such as armed robbery has been committed in order to provide money for a drug addiction. The origin or extent of a drug addiction (or any attempts to overcome it) may be relevant subjective considerations where such an addiction might:

While it can be said that the objective of rehabilitation needs to be taken into account along with the other objectives of retribution and deterrence, it is but one aspect of sentencing. Such offenders should not be placed in a special category for sentencing: R v Henry per Wood CJ at CL at [268], [269] and [270].

Since R v Henry there have been instances where offenders have sought to bring their addiction within the third bullet point above.

The Compulsory Drug Treatment Correctional Centre Act 2004 amended the Drug Court Act 1998, the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999 to provide for imprisonment by way of compulsory treatment detention for drug-dependent recidivist offenders. The courts listed under the Drug Court Regulation have a duty to ascertain whether an offender sentenced to imprisonment might be eligible and, if so, to refer the offender to the Drug Court: s 18B Drug Court Act 1998. See R Dive, “Compulsory drug treatment in gaol — a new sentencing issue” (2006) 18(7) JOB 51.

The Drug Court determines eligibility, makes compulsory drug treatment orders and supervises participants.

The fact that a person to be sentenced is pregnant or the mother of young baby is a relevant factor to be taken into account: R v Togias (2001) 127 A Crim R 23; R v SLR [2000] NSWCCA 436; HJ v R [2014] NSWCCA 21 at [67], [73].

R v Togias involved the application of s 16A(2)(p) Crimes Act 1914 (Cth), which requires a court to have regard to “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”: HJ v R at [69].

In NSW, there are no facilities for mothers and babies to live together whilst an offender is in any juvenile detention facility. However, in the adult correctional system, there is a facility at Jacaranda House where mothers in custody can have their baby with them: HJ v R at [63]. Accordingly, in an appropriate case where a juvenile offender is pregnant at the time of sentence, a court may make an order with the effect that the offender be transferred to an adult correctional facility: R v SLR.

A court is required to have regard to the fact that an offender is the mother of a young baby, the effect of separation on her and the degree to which it may impact upon the hardship of her custody: HJ v R at [76]. If exceptional circumstances can be shown, it is relevant to have regard to any effect of full time custody on the offender’s child: HJ v R at [76]. Evidence of hardship and/or increased risk to the offender should she be imprisoned was lacking: R v Togias at [11]–[13], [57]–[58].

Where an offender has a young baby a court may consider declining to make an order that the offender serve her term of imprisonment in juvenile detention: HJ v R at [76].

The fact an offender may be required to serve their sentence in protective custody is a relevant matter on sentence, however, a sentencing court should not automatically reduce a sentence because the offender has been, or will be, on protection: R v Durocher-Yvon [2003] NSWCCA 299 at [23]–[24] cited in authorities including Clinton v R [2009] NSWCCA 276 at [24]; RWB v R [2010] NSWCCA 147 at [192]; Miller v R [2015] NSWCCA 86 at [31].

Protective custody should not be assumed to be a more onerous prison environment than the general prison population: R v Durocher-Yvon at [23]–[24]; Clinton v R at [24]; R v Mostyn [2004] NSWCCA 97 at [179]; R v Jarrold [2010] NSWCCA 69 at [27]; cf AB v The Queen (1999) 198 CLR 111 where Kirby J said, “it is well recognised in … Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison”: [105]. Kirby J’s proposition has been cited in decisions including R v Howard [2001] NSWCCA 309 at [18]; R v Rose [2004] NSWCCA 326 at [35]; R v Patison [2003] NSWCCA 171 at [88].

If an offender relies on their conditions of imprisonment in mitigation, evidence must be adduced as to what those conditions entail: Clarkson v R [2007] NSWCCA 70 at [273]; R v Jarrold at [27]; TL v R [2020] NSWCCA 265 at [366]. The relevance of protective custody on sentence will depend on matters including the evidence regarding the likely duration of protective custody and the practical restrictions upon the offender, including access to programs: Majid v R [2010] NSWCCA 121 at [58]. RWB v R at [192]–[195] and R v LP [2010] NSWCCA 154 at [21] are Court of Criminal Appeal decisions where the Court held the sentencing judge erred by taking into the account hardship in protective custody without an evidentiary basis.

It is not appropriate for a sentencing court to adopt a mathematical formula to convert time spent in protective custody to what would be an equivalent period spent in the general prison population: R v Chishimba [2011] NSWCCA 212 at [14]; Clinton v R at [25].

In Zahab v R [2021] NSWCCA 7 at [48] (relating to a terrorism offence) and BR v R [2021] NSWCCA 279 at [147] (relating to child sexual offences), the Court found the relevant comparison is between the conditions in which the offender is to serve their sentence compared to that of the general prison population, not between persons convicted of similar offences. Further, where there is evidence of the offender serving a sentence under some form of protection, but that evidence lacks detail as to the extent and nature of the restrictions, it should nevertheless be taken into account in a “general sense”: Zahab v R at [49]; BR v R at [148] both citing C v R [2013] NSWCCA 81 at [42]. For a discussion of ss 24(a), 47(3) and onerous conditions of custody relating to the COVID-19 pandemic, see Time served in protection or onerous conditions at [12-510] What time should be counted?

A sentencing court should take care not to double count time in protective custody. For example, in R v Jarrold, the Court found the sentencing judge erred by taking this factor into account by reducing the total term of the sentence, and without further explanation, in finding special circumstances: [29] citing R v S [2000] NSWCCA 13 at [33]. Similarly, in R v JD [2018] NSWCCA 233, the Court found the sentencing judge double counted hardship of custody as they gave a discount for the offender’s assistance to authorities, and made a finding of special circumstances (in part) on the same basis: [97]–[98].

Whether an offender will suffer harsher custodial conditions as a consequence of assistance is a factor to be considered in the application of s 23 (the power to reduce penalties for assistance); see [12-200].

In York v The Queen (2005) 225 CLR 466, the High Court set aside a partially suspended sentence of imprisonment that had been substituted by the Court of Appeal of the Supreme Court of Queensland and reinstated a wholly suspended sentence that had been imposed by the sentencing judge. The majority of the court had held that it would be bowing to pressure from criminals if the offender were able to avoid a custodial sentence because of the risk to her safety while in prison. However, the High Court made it clear that the safety of a prisoner is a relevant consideration in determining an appropriate sentence. In the particular circumstances of this case, there was persuasive evidence before the sentencing judge that the prisoner could not be protected in the Queensland prison system. McHugh J said at [31] that:

At [32] McHugh J further said:

It is the responsibility of the authorities, not the courts, to ensure the safety of prisoners in custody. The fact that prisoners will have to serve their sentences in protection is a very important consideration to be taken into account in fixing the length of the sentence but it should not usually be permitted to dictate that the custody should not be full time: R v Burchell (1987) 34 A Crim R 148 at 151; R v King (unrep, 20/8/91, NSWCCA).

In R v Jones (1985) 20 A Crim R 142, Street CJ said at 153:

See also R v Patison [2003] NSWCCA 171 at [38].

It cannot be assumed that an offender who is a police officer will serve his or her imprisonment in protective custody: Hughes v R [2014] NSWCCA 15 at [54]. It is necessary to point to evidence to that effect: Hughes v R at [54].

Any person who comes to Australia specifically to commit a serious crime has no justifiable cause for complaint when he or she is incarcerated in this country where the language is foreign to him or her and he or she is isolated from outside contact: R v Chu (unrep, 16/10/98, NSWCCA) per Spigelman CJ. See also R v Faneite (unrep, 1/5/98, NSWCCA) per Studdert J and R v Sugahara (unrep, 16/10/98, NSWCCA) per McInerney J.

The fact that the prisoner is a foreigner with limited English and has no friends or family who are able to visit will make their imprisonment harsher than would be the case for the ordinary prisoner. This requires some, though not much recognition: R v Huang [2000] NSWCCA 238 per Adams J at [19]. A failure to have regard to this factor does not mean the sentence(s) exhibit error: Yang v R [2007] NSWCCA 37. However, if there is no evidence before the sentencing judge as to the offender’s experience as a prisoner, it is not a consideration that requires substantial recognition but it is relevant to the question whether a sentence is manifestly excessive: Nguyen v R [2009] NSWCCA 181 at [27].

Similarly, in R v Anderson (1987) 32 A Crim R 146, Kirby P was of the view that in assessing the culpability of an offender, the role played by undercover police may be relevant to the sentence to be imposed. His Honour observed that there is a fine line between the passive yet properly inquisitive conduct of an undercover police agent approached by a drug dealer to become involved in an illegal drug offence and a positive inducement by that agent to such an offence or an encouragement which lifts the offence from a minor category to a major one.

The sentencing principles concerning extra-curial punishment extend to unintentional self-inflicted injuries received in the course of the offence but not if an offender deliberately self-inflicts injuries: Christodoulou v R [2008] NSWCCA 102 at [41]–[42]. In Cvetkovic v R [2013] NSWCCA 66, the court held the sentencing judge did not err by following Christodoulou v R and in not placing much weight on the harm the offender had done to himself. In dismissing an application for special leave to the High Court, Bell and Gageler JJ stated that leave to appeal was not warranted on the basis that Christodoulou v R was wrongly decided. The ground had “insufficient prospects of success” in the circumstances of the case: Cvetkovic v The Queen [2013] HCASL 131 at [5]. Note, however, that reasons for refusing an application for special leave create no precedent and are not binding on other courts: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [112], [119].

Similarly, in Betts v R [2015] NSWCCA 39 at [35], the court held the injuries suffered by the offender were either deliberately self-inflicted, or inflicted by the victim at the offender’s instigation and intimately bound up with his criminal conduct. Therefore, the injuries could not be considered extra-curial punishment for the purposes of sentencing.

The High Court, in Ryan v The Queen (2001) 206 CLR 267, expressed conflicting views on the question of whether public humiliation may be considered as a mitigating factor on sentence. Kirby and Callinan JJ were each of the view that adverse publicity and public opprobrium suffered by a paedophile priest could properly be taken into account: Ryan v The Queen at [123] and [177] respectively. Hayne J disagreed with Kirby and Callinan JJ: Ryan v The Queen at [157]. McHugh J expressed the view that public opprobrium and stigma did not entitle a convicted person to leniency, as such an approach would be “an impossible exercise” and appear to favour the powerful: Ryan v The Queen at [52]–[53]. McHugh J also considered it incongruous that the worse the crime, and the greater the public opprobrium, the greater the reduction might have to be: Ryan v The Queen at [55].

It is accepted in NSW that where public opprobrium reaches such a proportion that it has a physical or psychological effect on the person, it may properly be considered by the sentencing court: R v Allpass (1993) 72 A Crim R 561; Kenny v R [2010] NSWCCA 6; Duncan v R [2012] NSWCCA 78 at [28]; BJS v R [2013] NSWCCA 123 at [228]–[231].

In R v Obeid (No 12) [2016] NSWSC 1815, no such physical or psychological effect was shown: at [102].

In upholding a Crown appeal, the court in R v King [2009] NSWCCA 117 took into account a degree of extra-curial punishment the offender suffered as a result of the manifestly inadequate sentence (at [71]), acknowledging that “[p]ublic outrage at the sentence was turned upon the offender … Had a sentence that appropriately denounced his conduct been imposed on him, he would have been spared further public humiliation and anger”: at [69].

The proceedings in R v Wran [2016] NSWSC 1015, according to the sentencing judge, attracted significant public attention and inaccurate reporting. Harrison J said “the publication of [the] egregious articles warrants the imposition of a sentence that takes account of Ms Wran’s continuing exposure to the risk of custodial retribution, the unavoidable spectre of enduring damage to her reputation and an impeded recovery from her ongoing mental health and drug related problems”: R v Wran at [79].

Very limited weight was nonetheless attributed to extensive media coverage as a form of extra-curial punishment in R v Obeid (No 12) at [103]. This was because the offending involved the abuse of a public position; the media reports did not sensationalise facts; and, the case concerned an issue of public importance (political corruption). Therefore, it seemed “incongruous that the consequential public humiliation should mitigate the sentence”: R v Obeid (No 12) at [101]. R v Obeid (No 12) can be contrasted with R v Wilhelm [2010] NSWSC 378 per Howie J at [16], where the offender’s reputation was “destroyed by the allegations made against him and the reporting of those allegations in the media”.

There is a divergence of authority on the question of whether the professional ramifications experienced by an offender as a result of their offending can be taken into account as extra-curial punishment.

Wood J (as he then was) said in R v Hilder (unrep, 13/5/93, NSWCCA) that a court could “take into account the loss of reputation, and employment and also where appropriate, the loss of a pension or superannuation benefits”. This statement cannot apply to Members of Parliament to the extent that s 24C applies: see Section 24C — disqualification of parliamentary pension at [11-355]. In Ryan v The Queen (2001) 206 CLR 267 at [54], McHugh J expressed the view that “[i]t is legitimate … to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation”. None of the other Justices directly addressed the issue.

In Einfeld v R [2010] NSWCCA 87, the court noted there was an element of uncertainty as to whether the concept of extra-curial punishment “includes legal consequences of a kind which flow directly from the conviction or the sentence, such as disqualification from holding an office, remaining in an occupation or holding a licence”: Einfeld v R at [86]. However, their Honours found that the fact the offender would lose his practising certificate and be struck off the roll of solicitors could be taken into account: Einfeld v R at [95]. Such a conclusion was consistent with earlier authority: Oudomvilay v R [2006] NSWCCA 275 at [19]; R (Cth) v Poynder [2007] NSWCCA 157 at [86].

In R v Zerafa [2013] NSWCCA 222, the court accepted the professional ramifications of the offending were a mitigating factor, but found them to be of limited effect because the respondent “must have … anticipated … that an inevitable consequence, if his offending [defrauding the Commonwealth] were discovered … would be that he would be struck off the role of chartered accountants”: R v Zerafa at [92]. See also Kenny v R [2010] NSWCCA 6 at [48]–[50]. This was similar to the approach taken in FB v R [2011] NSWCCA 217, which concerned a high school teacher convicted of aggravated sexual assault of a student. The court noted at [156] that the “respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end”. In DPP v Klep [2006] VSCA 98 at [18], the Victorian Court of Appeal accepted that the loss of either a profession, office or trade as a direct result of the offending was a factor to be borne in mind but it was not a substitute for the punishment required by law.

Other authorities have declined to find professional ramifications were sufficient to constitute extra-curial punishment. In Greenwood v R [2014] NSWCCA 64 at [35], Hoeben CJ at CL (Bathurst CJ and Adams J agreeing) held that “[l]oss of employment, no matter what the employment, would be an inevitable consequence in almost every circumstance where a person was convicted of an offence of this kind [sexual and indecent assault]”. In Kearsley v R [2017] NSWCCA 28 at [76], the court held that extra-curial punishment cannot arise when the loss of employment is a natural consequence of a conviction. The applicant’s irrevocable loss of his medical career and good standing in the community were not “the superadded or unexpected result of something that is not reasonably associated with the fact of his conviction and sentence”: Kearsley v R at [77].

The relevance and/or weight to be given to professional ramifications as extra-curial punishment may be influenced by whether the offence was connected to, or committed in the course of, the offender’s occupation. The Victorian Court of Appeal has endorsed such an approach, observing in R v Talia [2009] VSCA 260, that “[t]here seems … to be a distinct difference between a disqualification resulting from criminal conduct in the course of the employment … and criminal conduct remote from that employment but having that consequence … [i]n the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation”: R v Talia at [28].

Rehabilitation undertaken by an offender during a period of delay may effect the sentencing exercise by lessening the significance of general deterrence: PH v R [2009] NSWCCA 161 per Howie J at [32]. For example, in Thorn v R [2009] NSWCCA 294 at [57], the court found that during the delay of 7 years between the commission of 55 fraud offences and the sentence “the applicant has not only completely reformed but he has also matured from a misguided youth with a compulsion to gamble into a well-respected citizen with honest and steady employment on the threshold of marriage”. Similarly, in R v Ware (unrep, 9/7/97, NSWCCA), Gleeson CJ said evidence of substantial rehabilitation might be regarded as mitigating. See also the discussion in R v Pickard [2011] SASCFC 134 at [95].

The cause of delay is relevant to determining the weight to be given to rehabilitation. Genuine rehabilitation undertaken during a period of delay caused by the offender absconding is not to be entirely ignored, but cannot be given the same significance as in a case where the delay was due to circumstances outside the offender’s control: R v Shore (1992) 66 A Crim R 37 at 47. In comparison, in Thorn v R, the offender had admitted the offences in 2003 and prosecution was not commenced until late 2008, with no explanation for the period of delay, which was in no way the fault of the offender.

Rehabilitation undertaken by an offender during a period of delay may also be a factor weighing in favour of the exercise of an appellate court’s residual discretion to dismiss a Crown appeal: see also The residual discretion to intervene at [70-100].

The “state of uncertain suspense” (Street CJ in R v Todd at 519) — where an offender experiences a delay following the initial intervention of the authorities — is a matter which can entitle an offender to an added element of leniency: R v Blanco [1999] NSWCCA 121 at [11], [16] and Mill v The Queen at 64–66). Where an offender relies on such a mitigating factor, they must establish it on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47], applying The Queen v Olbrich (1999) 199 CLR 270. In Sabra v R, the court held that the sentencing judge had erred in tending to the view that although the offender had evidently suffered anxiety and concern over the delay, greater consequences needed to be established before the delay could be taken into account: Sabra v R at [44]–[46].

An additional consideration is the desirability for prosecuting authorities to act promptly where there is evidence of serious criminality. It is in the public interest that those who are suspected of serious crime be brought to justice quickly, particularly where there is a strong case against them: R v Blanco at [17]. However, it is not permissible to reduce a sentence merely as a means of expressing disapproval at neglectful or dilatory conduct by the State. The focus is overwhelmingly on the consequences of the delay on the offender, no matter what the explanation for it: R v Donald at [49].

However, the principle does not apply to a state of suspense or uncertainty experienced by an offender who remains silent and hopes that his or her offending will remain undetected: R v Spiers [2008] NSWCCA 107 at [37]–[38] (applying R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]). An offender should not be rewarded for his successful concealment of his offending: R v Kay [2004] NSWCCA 130 at [33].

Lapse of time on bail brought about as a consequence of the proceedings, such as a delay of three years during which time the offender had been subject to restrictions on liberty, may properly be regarded as a penal consequence that can be taken into account in sentencing: R v Keyte (unrep, 26/3/86, NSWCCA) per Street CJ. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment: R v Fowler [2003] NSWCCA 321 at [242]. See also R v Khamas [1999] NSWCCA 436 and R v Jajou [2009] NSWCCA 167 concerning delay and the relevance of onerous reporting requirements while on bail.

Delay will not usually be a mitigating factor where it is caused by the problems associated with detecting, investigating or proving the offences and the period of the delay is reasonable in the circumstances: Scook v R per Buss JA quoted with approval in R v Donald [2013] NSWCCA 238 at [49].

Delay will not operate to the benefit of an offender where advantage is taken of the opportunity afforded by his/her liberty during that period to reoffend: R v DKL [2013] NSWCCA 233 at [46]. Nor does it apply to the sentencing for murder where there was no uncertainty as to the sentence the prisoner would receive if found guilty because of the provisions of s 19 Crimes Act 1900, as it then stood: R v King (1998) 99 A Crim R 288. It is the fact of imprisonment, rather than the length of the sentence, which will be of greatest significance in punishing the offender and denouncing his conduct: R v Moon [2000] NSWCCA 534 per Howie J at [81].

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. Section 25AA(1) continues to apply to proceedings commenced from 31 August 2018 to 17 October 2022.

However, s 21B(3) provides that a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if:

Section 21B(3) has not yet been judicially considered however, where it applies, reference to the common law that had developed prior to the insertion of s 21B may provide some guidance. Where an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, and if an authentic and credible body of statistical material exists that is capable of reconstructing what would have been done previously, then the approach outlined in R v Shore (1992) 66 A Crim R 37 should be adopted: R v MJR (2002) 54 NSWLR 368. In R v Shore Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) at [42] approved the trial judge’s statement of his approach as follows:

In the absence of such statistical material, the court is constrained to take the non-statistical approach, as described by Howie J in R v Moon [2000] NSWCCA 534 at [70], and approved by Sully J in R v MJR at [107]:

This view was endorsed by Spigelman CJ, who held that the sentencing practice at the time of the commission of the offences should be applied, rather than the higher severity that had been adopted since that time. According to Spigelman CJ, the propositions he put forward in R v PLV (2001) 51 NSWLR 736 at [94], concerning the difficulty in determining what the court would have done many years before, and in making such an artificial and inappropriate distinction, were incorrect. Instead, he found at [31]:

For a discussion of sentencing practices following delay in the context of sexual offences against children see Sentencing for historical child sexual offences at [17-410].

Pursuant to s 43, a court may order property to be restored to the person lawfully entitled to possession, where a person is accused under the Crimes Act of unlawfully acquiring or disposing of property: s 43(1) Criminal Procedure Act 1986.

Restitution orders may not be made in respect of certain valuable securities or negotiable instruments: s 43(3).

Any order under s 10 Crimes (Sentencing Procedure) Act 1999 has the effect of a conviction for a restitution order: s 10(4) Crimes (Sentencing Procedure) Act 1999.

As to restitution in respect of an offence taken into account, see below.

Restitution orders may be made irrespective of whether or not the person is found guilty of an offence with respect to the acquisition or disposal of the property in question: s 43(2) Criminal Procedure Act 1986.

The section does not expressly deal with the proceeds of the original property where those proceeds are in the hands of the defendant. However, it has been held, in R v Justices of the Central Criminal Court (1860) 18 QBD, that when examining similar legislation, proceeds are capable of being the subject of orders for restitution. The court in that case also said that a restitution order could be made against an agent, where the agent holds the proceeds on behalf of the defendant. It has been held that a court can make an order for restitution against the property or proceeds, but it cannot do both: R v London County Justices (1908) 72 JP 513.

Where an offender is charged with offences in relation to certain goods, and all those goods have been recovered, it is an incorrect exercise of judicial discretion to order the offender to make restitution out of money taken from him or her at the time of apprehension that relates to other offences with which the offender is not charged.

Where a person is found guilty of an offence, the sentencer may, with the consent of the person, take into account other offences to which guilt is admitted under s 33 Crimes (Sentencing Procedure) Act 1999: see Taking Further Offences into Account (Form 1 Offences) at [13-200].

A restitution order may be made in respect of such offences as though the person had been convicted: s 34 Crimes (Sentencing Procedure) Act 1999.

Where any valuable security has been paid by a person liable to payment thereof, or, being a negotiable instrument, has been taken for a valuable consideration without notice or cause to suspect that the same had been dishonestly come by, a court may not order restitution: s 43(3) Criminal Procedure Act 1986.

Beyond this provision, civil law regulates the rights of third parties.

There is a general principle that restitution orders should only be made in very clear cases: Stamp v United Dominions Trust (Commercial) Ltd [1967] 1 QB 418.

Where third party interests are affected, the third party is entitled to be heard before the restitution order is made: R v Macklin (1850) 5 Cox CC 216; Barclays Bank Ltd v Milne [1963] 1 WLR 1241.

It seems settled that, where there are serious competing claims between third parties, then criminal courts should not exercise their discretion to make restitution orders.

For the power of the court to impose restitution in addition to orders under s 10 Crimes (Sentencing Procedure) Act 1999 (which include good behaviour bonds), see Availability, above.

As to the power to impose restitution as a condition of either a s 10 dismissal or a s 12 suspended sentence, both those provisions are silent.

The Victims Support Scheme was established by the Victims Rights and Support Act 2013 for the provision of support for victims of acts of violence: see Pt 4. Concerning the eligibility for support, see Pt 4 Div 2. Provision for restitution by offenders is covered by Pt 5 Div 2. The Commissioner of Victims Rights has a discretion to make a provisional order for restitution by an offender: s 59.

The Children’s Court has such power as magistrates generally to award restitution: Children (Criminal Proceedings) Act 1987, s 27. Specifically, nothing in the list of penalties which the court may impose limits its power to make orders for restitution under s 43 Criminal Procedure Act 1986: s 33(5)(c) Children (Criminal Proceedings) Act 1987.

The commission of an offence whilst an offender is subject to conditional liberty can cast doubt on an offender’s rehabilitation and has been described as a “[b]etrayal of the opportunity for rehabilitation” which should be “regarded very seriously”: R v Tran [1999] NSWCCA 109 at [15] citing R v Vranic (unrep, 7/5/91, NSWCCA) and R v McMahon (unrep, 4/4/96, NSWCCA); R v Cicekdag [2004] NSWCCA 357 at [53]; R v Fernando [2002] NSWCCA 28 at [42].

It has been held that a person who commits offences while an escapee from lawful custody is, in terms of offence seriousness, in a scale above that of a person who commits offences while on conditional liberty on bail or parole: R v King [2003] NSWCCA 352 at [38].

A failure of the Crown to draw the sentencing judge’s attention to the fact that the offender was on conditional liberty (parole) at the time of committing the offence makes it difficult for the Crown to rely on that fact on an appeal against sentence: R v Amohanga [2005] NSWCCA 249 at [119].

As to the consequences of breaching various forms of conditional liberty, see further Variation and revocation of CRO conditions at [4-730] and Breaches of non-custodial community-based orders at [6-600]ff.

A court cannot alter an otherwise appropriate sentence to avoid or facilitate a non-citizen offender’s deportation: Hanna v EPA [2019] NSWCCA 299 at [65]; R v Fati [2021] kA 99 at [61]. In R v MAO; ex parte A-G [2006] QCA 99 at [16]–[18], the Queensland Court of Appeal found the judge erred in imposing a sentence of 11 months 3 weeks for child sexual offences so the sentence did not “endanger” the offender’s residency status. In R v Fati the judge found there was “no doubt” a sentence of imprisonment was required, but fully suspended the sentence to facilitate the offender’s immediate deportation. The South Australian Court of Appeal found it was wrong in principle to impose a “lesser sentence than is appropriate”: at [61]–[69].

Deportation is also not generally a relevant consideration in determining whether or not to fix a non-parole period: The Queen v Shrestha (1991) 173 CLR 48 at 71; see also He v R [2016] NSWCCA 220 at [23]; R v Calica (2021) 43 NTLR 7 at [77]–[78], [140]. A primary benefit of parole is the offender’s rehabilitation. A non-citizen offender who is likely to be deported should also receive this benefit by being eligible for release on parole. Deane, Dawson and Toohey JJ said at 71:

It is also impermissible to consider potential deportation in determining the length of the non-parole period even though deportation means the offender will not be supervised: R v Pham at [14]; He v R at [23]; AC v R [2016] NSWCCA 107 at [79]. Similarly, an offender who is likely to be deported should not be denied a finding of special circumstances if they would otherwise qualify for such a finding: R v Mirzaee [2004] NSWCCA 315 at [21].

There are two lines of conflicting authority in Australia as to whether the prospect of deportation can be taken into account as a factor in mitigation.

In NSW and Western Australia the longstanding approach is that it is an error to take the prospect of deportation into account as a mitigating factor. As previously noted, deportation is a matter for the Commonwealth Executive government, and as “the product of an entirely separate legislative and policy area of the regulation of our society” cannot be taken into account on sentence: R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311; R v Pham at [13]–[14]; Khanchitanon v R [2014] NSWCCA 204 at [28]; Kristensen v R at [35]. This includes taking deportation into account as extra-curial punishment: Khanchitanon v R at [28].

This approach has not changed since the mandatory cancellation provisions were introduced in 2014. In Kristensen v R, Payne JA (RA Hulme and Button JJ agreeing) said at [34]–[35]:

Further, the migration status of a non-citizen offender who has been residing in Australia is often unresolved until well after imposing the sentence so there may be practical difficulties quantifying the prospects of deportation: Hanna v EPA at [97]. If the longstanding position in NSW is to be challenged, the evidence about the applicant’s likely deportation needs to be more than a speculative possibility: Kristensen v R at [35]. In Kristensen v R potential deportation was considered speculative because the mandatory cancellation of the offender’s visa was subject to the offender applying to have it revoked. See also R v Calica at [157].

In NSW, there appears to be some divergence of views about taking deportation into account where it gives rise to exceptional circumstances due to the impact on non-citizen offenders’ family and dependents: Hanna v EPA at [85]–[88]; see also Hardship to family/dependents at [10-490]. In R v Kwon [2004] NSWCCA 456 at [48] (which predates R v Pham) and R v Hull [2016] NSWSC 634 at [130]–[131], Supreme Court judges, at first instance, took the prospect of deportation into account in such circumstances. R v Hull was referred to with approval in the dissenting judgment in R v Shortland [2018] NSWCCA 34 at [124] (Hidden AJ), but in Hanna v EPA at [85]–[87] doubt was cast on the correctness of these decisions.

In Victoria, Queensland, South Australia and the Northern Territory, the prospect of deportation may be taken into account in mitigation as a personal circumstance of a non-citizen offender if there is an assessable risk of deportation and evidence it would cause hardship. This is on the basis that either the prospect of deportation may make incarceration more burdensome or, upon release the offender may lose an opportunity to settle in Australia: Guden v R (2010) 28 VR 288 at [25]–[29]; Da Costa Junior v R [2016] VSCA 49 at [24]–[25], [52]–[53]; R v UE [2016] QCA 58 at [16]; R v Schelvis [2016] QCA 294 at [72]; R v Norris [2018] 3 Qd R 420 at [31]–[45]; see also Kroni v The Queen (2021) 138 SASR 37 at [227]–[229]; R v Calica, above, at [156].

These different “state-based” approaches have been followed regardless of whether the offences are State or Commonwealth offences: Sentencing of federal offenders in Australia: a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edition, July 2024, at [512]ff. See for example, Kristensen v R. However, in obiter remarks, the five-judge Bench in R v Calica said deportation should be able to be taken into account in mitigation in appropriate Commonwealth cases: at [155].

Cases involving non-citizen offenders may give rise to issues of hardship in custody due to isolation: see further Hardship in Custody, Foreign Nationals at [10-500].

Actual or potential deportation is irrelevant to structuring a sentence: R v Pham at [13].

A court cannot alter an otherwise appropriate sentence to avoid the effect of the Migration Act: Hanna v EPA at [65]. In R v MAO; ex parte A-G [2006] QCA 99 at [16]–[18], the Queensland Court of Appeal found the judge erred in imposing a sentence of 11 months 3 weeks for serious child sexual offences so the sentence did not “endanger” the offender’s residency status.

Nor should a court discriminate against non-citizen offenders in determining whether they can be eligible for release on parole: The Queen v Shrestha (1991) 173 CLR 48 at 71; see also He v R at [23]. A primary benefit of parole is the rehabilitation of an offender. A non-citizen offender who is likely to be deported should also receive this benefit by being eligible for release on parole. Deane, Dawson and Toohey JJ said at 71:

It is also impermissible to consider potential deportation in determining the length of the non-parole period even though deportation means the offender will not be supervised by NSW Community Corrections: R v Pham at [14]; He v R at [23]; AC v R at [79].

Similarly, an offender who is likely to be deported should not be denied a finding of special circumstances if they would otherwise qualify for such a finding: R v Mirzaee at [21].