Taking further offences into account (Form 1 offences)

[13-100] Introduction

When sentencing an offender for an offence (the principal offence), a court may take into account additional charges with which the offender has been charged but not convicted (further offences). The offender must want the further offences to be taken into account and a court may only take the criminality of those further offences into account if certain criteria and formalities have been met: ss 32, 33 and 35A.

The offender is only convicted of the principal offence and generally no proceedings can be taken or continued in relation to the further offences.

This is known as the Form 1 procedure.

The Form 1 procedure does not apply to Commonwealth offences. Section 16BA Crimes Act 1914 (Cth) provides a similar procedure for federal offences (and only federal offences). See Taking other offences into account: ss 16A(2)(b) and 16BA in [16-010]. Where there is mixed State and federal offending, a federal offence cannot be taken into account on the sentence of a State offence: Ilic v R [2020] NSWCCA 300 at [44].

A failure to comply with the terms of s 32 does not invalidate a sentence imposed for “the principal offence”: s 32(6). However, a sentencing court must be mindful of the need to comply with the various mandatory statutory requirements: Woodward v R [2017] NSWCCA 44 at [26]; Ghalbouni v R [2020] NSWCCA 21 at [29].

The Form 1 procedure cannot be conflated with the procedures for back-up and related offences in ss 165–167 Criminal Procedure Act 1986: CH v R [2019] NSWCCA 68 at [7]–[18].

[13-200] The statutory requirements

The provisions governing the authority and procedure for taking additional charges into account are found in Pt 3 Div 3 (ss 31–35) Crimes (Sentencing Procedure) Act 1999.

In proceedings for the principal offence (defined in s 31 as an offence the subject of proceedings under s 32(1)), the prosecutor may file in court a list of further offences in an approved form (Form 1) for which the offender has been charged but not convicted and which the offender wants taken into account on sentence for the principal offence: s 32(1); Crimes (Sentencing Procedure) Regulation 2017, cl 4. The Form 1 should clearly identify the principal offence, for example, by including, where necessary, the count, sequence or charge number if there are multiple counts of the same offence: LS v R [2020] NSWCCA 27 at [90].

A Form 1 may be filed at any time after the court finds the offender guilty and before dealing with them for the principal offence: s 32(2).

A copy of the Form 1, as filed, must be given to the offender and signed both by the offender and by, or on behalf of, the Director of Public Prosecutions: s 32(3), (4).

The Form 1 should not include further offences for which the sentencing court does not have jurisdiction to impose a penalty or offences punishable by life imprisonment: s 33(4)(a), (b). R v JH [2021] NSWCCA 299 is an example of a case where error was established because an offence in the latter category was placed on a Form 1. However, the Court of Criminal Appeal, the Supreme Court and the District Court may take summary offences into account: s 33(6).

The procedure the court must follow — s 33

The court must ask the offender “whether the offender wants the court to take any further offences into account in dealing with [them] for the principal offence”: s 33(1). The obligation imposed by s 33(1) should not be disregarded because its purpose is to demonstrate whether there is any doubt about an offender’s intention with respect to the procedure to be adopted with respect to the offences on the Form 1: Dale v R [2021] NSWCCA 320 at [38]–[40]. See Pham v R [2021] NSWCCA 234 as an example of where the judge’s failure to personally confirm with the offender the charge the offender wanted to be taken into account was an error: at [30]; cf Dale v R where the offender’s intention could be discerned from the actions of her counsel during the sentence proceedings: at [20].

The court may only take a further offence into account if the offender:

1.: admits guilt to the further offence: s 33(2)(a)(i),
2.: the offender indicates they want the court to take the further offence into account in dealing with them for the principal offence: s 33(2)(a)(ii), and
3.: in all of the circumstances, the court considers it appropriate to do so: s 33(2)(b).

If a Form 1 is taken into account, the court must certify this on the Form 1: s 35(1)(a).

The formal requirements in s 33(2)(a) to ask whether the offender admits guilt and consents to having the further offences taken into account should not be dispensed with because they are important safeguards to ensure the offender is aware of what is taking place and consents to procedures that may significantly “impact upon his freedom or the period during which he will remain in custody”: R v Felton [2002] NSWCCA 443 per Howie J at [3], cited with approval in R v Brandt [2004] NSWCCA 3 at [8]; Woodward v R at [26].

A court can only take offences on a single Form 1 into account on a single principal offence not across multiple offences: LS v R at [27]. Care should also be taken to ensure the Form 1 offences are taken into account in relation to the correct principal offence: Ghalbouni v R [2020] NSWCCA 21 at [49].

There are limits to an offender’s capacity to withdraw their consent to the Form 1 procedure. For example, it is unlikely a Form 1 can be withdrawn after the evidence has been presented and both cases closed in the sentence proceedings: Abel v R [2020] NSWCCA 82 at [82].

See [13-270] Effects of Form 1 procedure and Charge negotiations: prosecutor to consult with victim and police at [13-275] for formal requirements where there are charge negotiations involving victims.

Restrictions on Form 1 procedure

Any penalty imposed on the offender for the principal offence must not exceed the maximum penalty the court could have imposed for that offence had the further offence not been taken into account: s 33(3).

Section 31 provides that the full range of penalties for the principal offence can be imposed, including a non-association or place restriction order.

Ancillary orders and penalties

While a court cannot impose a separate penalty for Form 1 offences, certain ancillary orders or directions (restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege) relating to them may be made: s 34. The offender retains the same right of appeal as if the order had been made on conviction of the further offence: s 34(2). In Gardner v R [2003] NSWCCA 199 it was held that by operation of s 34, it was open to the sentencing judge to consider whether, as an ancillary order, a prescribed licence disqualification period (now in ss 205 and 205A Road Transport Act 2013) should be reduced or extended.

If the decision in respect of which the offence was taken into account is quashed, or set aside, then any ancillary order lapses: s 34(3).

[13-210] Guideline judgment for Form 1 sentencing

The Attorney General (NSW) applied for a guideline judgment in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (the Guideline) on the basis there was a need for a guideline setting out the proper approach to be taken by sentencing courts when Form 1 matters were under consideration. Chief Justice Spigelman delivered the judgment of the court with Wood CJ at CL, Grove, Sully and James JJ agreeing.

The rationale for the Form 1 procedure

Chief Justice Spigelman at [62]–[65] noted the following two distinct but consistent rationales for the procedure of taking matters into account on a Form 1.

1.: It promotes the objective of rehabilitation by providing an opportunity for an offender to emerge with a “clean slate” following sentencing for the principal offence.
2.: There is utilitarian value in the admission of guilt which saves resources utilised in further investigation by law enforcement agencies.

Including offences on a Form 1 gives them a significantly lower prominence in the sentencing process, affording an obvious advantage and a greater incentive to admit guilt: at [66].

Focus throughout is on the principal offence

It is important that Form 1 matters should be taken into account only in relation to the principal offence. At [39]–[42] Spigelman CJ said:

[39]The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure. This is not sentencing for the principal offence.

[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence.

…

[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences … These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

Chief Justice Spigelman indicated at [43]–[44] that personal deterrence and retribution are not the only relevant factors to the Form 1 procedure:

I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence.

The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69]).

“Bottom up” approach appropriate

Chief Justice Spigelman observed at [18] that there were a number of propositions that were well established and uncontroversial. First, the essence of the process is to impose a longer sentence, or to alter the nature of the sentence, that would have been imposed if the primary sentence had stood alone. Secondly, the additional penalty may sometimes be substantial; it is incorrect to suggest that it should be small. However, Spigelman CJ said there was a divergence of approaches, characterised as either a “bottom up” or “top down” approach, raised an important issue of principle which had been the subject of uncertain and sometimes conflicting guidance in previous decisions of the court. The “bottom up” approach focuses on the appropriate sentence for the principal offence, which is increased by reason of the Form 1 offences . In contrast, a “top down” approach considers the sentence that would have been imposed by the application of sentencing principles if the court had been sentencing for the full range of offences.

The starting point of any analysis is the terms of the statutory power, with its emphasis that the court is concerned only with imposing a sentence for the “principal offence”. Such a power was held to be inconsistent with the “top down” approach advocated by the Attorney General in his submissions: at [35].

The court endorsed the “bottom up” approach in R v Timmis [2003] NSWCCA 158. See also Abbas v R [2013] NSWCCA 115 at [15].

[13-212] Should the “utilitarian” benefits of admitting guilt be taken into account?

Although the offender admits guilt to further offences on a Form 1, it is erroneous to confer a further benefit on them because they co-operated in settling the Form 1 and “clear[ed] the slate”: R v Van Ryn [2016] NSWCCA 1 at [214]–[215] citing R v Hinchliffe [2013] NSWCCA 327 at [219]. An offender already obtains an advantage from the Form 1 procedure as there is a cap upon the available sentence confined to the principal offence. It is an erroneous form of double counting to seek to confer a further benefit: R v Hinchliffe at [219].

In Gordon v R [2018] NSWCCA 54 at [95], RA Hulme J noted there is no statutory or common law requirement to take into account that an offender pleaded guilty to an offence if it is being taken into account on a Form 1 and identified, at [96]–[100], some of the potential difficulties associated with considering the procedural history of Form 1 offences when assessing the discount for the utilitarian value of the guilty plea for the principal offence. However, his Honour observed, at [101], that the procedural history should not be completely disregarded in assessing the sentence for the principal offence as it may have a bearing on other relevant matters including personal deterrence, remorse and prospects of rehabilitation.

See Whether guilty plea discount given for Form 1 offences at [11-525].

[13-215] Should the effect of Form 1 matters be quantified?

In the Guideline, Spigelman CJ said, “it will rarely be appropriate for a sentencing judge to attempt to quantify the effect … of Form 1 offences”: at [44]. This approach was confirmed in Abbas v R [2013] NSWCCA 115 at [14] where Bathurst CJ held that the object of s 33 was not to impose a distinct penalty for the offences to be taken into account.

However, the plurality of the High Court decision in Markarian v The Queen (2005) 228 CLR 357 considered that occasionally “it may be useful and certainly not erroneous” to specify the amount by which the penalty for the principal offence has been increased for Form 1 matters. Chief Justice Gleeson, Gummow, Hayne and Callinan JJ said at [43]:

Just as on occasions, albeit that they may be rare ones, it may not be inappropriate for a sentencing court to adopt an arithmetical approach, it may be useful and certainly not erroneous for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt. Here Hulme J sought to, and in our opinion did make it clear, that the additional period of imprisonment was imposed not as a separate penalty for the further offences but by way of increase of penalty for the principal offence.

[13-217] Deterrence and retribution

A court can take into account the criminality of the Form 1 offences. The Form 1 offence may also demonstrate a greater need for personal deterrence and retribution for the principal offence. That approach is consistent with the terms of s 33 and the Guideline for Form 1 offences: Abbas v R at [22], [23]; the Guideline at [42]. When the Form 1 offence is taken into account, the principle of proportionality is assessed by reference to those additional factors. The court takes the Form 1 offence into account within the terms of s 32 as part of the instinctive synthesis process of sentencing: Abbas v R at [22], [23].

This does not mean, however, that the Form 1 offences should be taken into account to elevate the objective seriousness of the principal offence. In RO v R [2019] NSWCCA 183 the sentencing judge erred by doing so: at [54]–[57].

[13-240] Serious, numerous and unrelated offences on a Form 1

The statutory scheme contemplates that serious offences can be included on a Form 1: the Guideline at [49]–[50]. The statement in R v Vougdis (unrep, 19/4/89, NSWCCA) at 132 that serious offences must be separately charged has to be understood in light of s 33(4) which provides that only offences with a maximum of life imprisonment may not be included on a Form 1: at [50]. Nevertheless Spigelman CJ said in the Guideline at [50]:

It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct to be appropriately reflected in the sentence.

There is also a difficulty of taking into account further offences which may appear to be disproportionate, not comparable, or not of the same kind and order of gravity as the principal offence under consideration: the Guideline at [51], [56].

A particular difficulty also confronts a court where there are numerous offences, or the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1: the Guideline at [57].

[13-250] Obligation on the Crown to strike a balance

It is predominantly a matter for the Crown as to what offences are included on the Form 1, so as to strike a balance between overloading an indictment and ensuring it adequately reflects the totality of the admitted criminality: the Guideline at [68]. However, it is also necessary for the Crown to have regard to the difficulties faced by a court in undertaking the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of conduct revealed by the indictment and the Form 1: at [57].

[13-260] The statutory power to reject a Form 1 under s 33(2)(b)

By the terms of s 33(2)(b), “if, in all of the circumstances, the court considers it appropriate to do so”, the court must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences: the Guideline at [67].

The court should recognise the many considerations which may inform a prosecutor’s decision to include matters on a Form 1: at [68]. Chief Justice Spigelman said of the exercise of the discretion at [67]:

There will be cases in which, for example, the administration of justice could be brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis. I do not intend the previous sentence to constitute a comprehensive statement of the circumstances in which the broad discretion vested in the sentencing judge by s 33(1)(b) [sic] can be exercised. Nevertheless, the role of the Court must be constrained, to ensure that the independence of the judicial office in an adversary system is protected. (Cf Maxwell v The Queen (1995) 184 CLR 501 esp at 513-514 and 534-535.)

In CP v R [2009] NSWCCA 291, McClellan CJ at CL at [8] said:

… when an entirely inappropriate arrangement is proffered and because of it a court would be denied the opportunity to impose a proper sentence, the discretion provided by s 33(2)(b) should be invoked and the court should decline to accept the Form 1.

The applicant in CP v R had pleaded guilty to two counts of armed robbery and one count of being an accessory to an aggravated car-jacking. Eight further offences were taken into account on a Form 1, including a charge of armed robbery. According to McClellan CJ at CL, including both the armed robbery offence and the concealing robbery offence on the Form 1 was inappropriate: at [9]. Justice McCallum (with whom Fullerton J agreed) noted at [36] that it would have been open to the sentencing judge to decline to take the armed robbery on the Form 1 into account.

Similarly, in El-Youssef v R [2010] NSWCCA 4 at [15], the court held that an armed robbery was inappropriately placed onto a Form 1 with the result the judge could not impose a sentence to reflect the seriousness of that offence.

In R v Eedens [2009] NSWCCA 254, the principal offence was sexual intercourse with a child under 10 years on indictment under s 66A Crimes Act 1900. Two further offences under ss 66A and 66C(1) were placed on a Form 1. The court held this was inappropriate because the sentence imposed could not sufficiently reflect the seriousness of the totality of applicant’s conduct. Generally, it is inappropriate to have a matter that carries a standard non-parole period taken into account on a Form 1, except in a situation which can be justified, such as when the offender is sentenced for numerous similar offences: R v Eedens at [19]. Similarly, in JL v R [2014] NSWCCA 130, after referring to the power to reject a Form 1 under s 33(2)(b), the court cited CP v R and held, at [7], that a charge of anal intercourse committed against an eight-year old girl was not an appropriate one for inclusion on a Form 1.

In Abbas v R [2013] NSWCCA 115, Bathurst CJ said at [26] that where the gravity of the Form 1 offences far exceed those for which the offender is being sentenced, or where the magnitude of the offences on the Form 1 make it impossible to take them into account in sentencing for the convicted offence, the court should give consideration to declining to take the Form 1 offences into account.

Hoeben CJ at CL (Garling and Bellew JJ agreeing) in DG v R [2017] NSWCCA 139 observed that charging three aggravated indecent assaults contrary to s 61M(1) Crimes Act and including sexual offences under subss 66C(2) and 66C(4) Crimes Act on a Form 1 involved “a distortion of the intention behind the Form 1 procedure … [and] … made the sentencing task to be performed by his Honour considerably more difficult than it should have been”: at [44]. Similarly, in Croxon v R [2017] NSWCCA 213, the inclusion of an aggravated sexual assault offence under s 61J(1) Crimes Act was considered by Bellew J at [12] to be “an entirely inappropriate use of the [Form 1] procedure” given the other charges faced by the offender (Hoeben CJ at CL and Davies J agreeing).

It should be noted, however, that there is no reported case (first instance or on appeal) where a court has exercised its power under s 33(2)(b) upon finding that it was inappropriate for a particular charge to be included on a Form 1. Further, the words in s 33(2)(b) have to be read in light of the common law principle that the selection of the charge is within the “absolute discretion” of the prosecutor: Elias v The Queen (2013) 248 CLR 483 at [33]. The scope for judicial intervention is thus limited to rare cases.

In Elias v The Queen, the High Court criticised a Victorian sentencing practice of sentencing an offender for a lesser charge if the facts could accommodate such an outcome. While the selection and structure of charges may have a bearing on the sentence, the separation of Executive and judicial functions does not permit the court to canvas the exercise of the prosecutor’s discretion in a case where it considers a less serious offence to be more appropriate any more than when the court considers a more serious charge to be more appropriate: Elias v The Queen at [34]. In expressing such a view, the court is attempting to influence the exercise of a discretion which is not any part of its own function: Maxwell v The Queen (1996) 184 CLR 501 at 514. The same reasoning could be applied to the exercise of power under s 33(2)(b).

[13-270] Effects of the Form 1 procedure

The offender is not convicted of Form 1 offences: s 35(4).

If a further offence is taken into account, the court is required to certify on the list of additional charges that the further offence has been taken into account, and no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside: s 35(1)(a) and (b).

A court is not prevented from taking the further offence into account when sentencing or re-sentencing the offender for the principal offence if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence: s 35(2).

An admission of guilt for the purposes of Pt 3 Div 3 Crimes (Sentencing Procedure) Act (ss 31–35) is not admissible in evidence in further criminal proceedings in relation to any such offence, or any other offence specified in the list of additional charges: s 35(3).

In any criminal proceedings, where reference may be made to, or evidence given about, the fact that the offender was convicted of the principal offence, reference may also lawfully be made to, or evidence given about, the fact that a further offence was taken into account in imposing a penalty for the principal offence: s 35(5).

The fact an offence was taken into account under Pt 3 Div 3 may be proved in the same manner as the conviction for the principal offence: s 35(6).

[13-275] Charge negotiations: prosecutor to consult with victim and police

Section 35A requires the prosecutor to file a certificate verifying consultation with victim and police in relation to charge negotiations before a Form 1 offence or any agreed statement of facts the subject of charge negotiations can be taken into account by the court. Section 35A(2) provides:

A court must not take into account offences other than the principal offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that—

(a)

the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and

(b)

any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines.

The reference in s 35A(2)(b) to “prosecution guidelines” is a reference to, inter alia, the Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines [March 2021], Chapter 4, Charge Resolution, where it is stated:

A matter may only be dealt with by way of charge resolution if it is in the public interest to do so. In determining whether a charge resolution is in the public interest, the following factors are to be considered, in addition to the public interest factors outlined in Chapter 1, the decision to prosecute:

1.

the charge or charges to proceed appropriately reflect the essential criminality of the criminal conduct capable of being proven beyond a reasonable doubt and provide an adequate basis for sentencing

2.

the evidence available to support the prosecution case is weak in a material way, even though it cannot be said that there is no reasonable prospect of conviction, and the public interest will be satisfied with an acknowledgment of guilt to certain lesser criminal conduct

3.

the cost saving to the community is significant when weighed against the likely outcome of the matter if it went to trial

4.

charge resolution will save a witness from having to give evidence in court proceedings, where the desirability of this is a particularly compelling factor in the case

See also Chapter 5, Victims and witnesses, in particular, at 5.4 “Information to be provided” and 5.6 “Consultation resolving charges and discontinuing prosecutions”.

Section 35A(3) provides the certificate must be signed by or on behalf of the DPP or by a person or class of persons prescribed by the regulations. The court may require the prosecution to explain the reason for a failure to file a certificate when it is required to do so: s 35A(5).

Section 35A is not limited to matters dealt with on indictment. It is intended to apply to Local Court matters where a Form 1 is taken into account. Clause 8(a) Crimes (Sentencing Procedure) Regulation 2017 provides that s 35A(3) applies to “proceedings being prosecuted by a police prosecutor — police officers”.