Sentencing Modules

Table of Contents
MODULE 1: THEORIES OF PUNISHMENT...................................................................................................2

THE RELATIONSHIP BETWEEN CRIME AND PUNISHMENT ..............................................................................2

Retribution and proportionality....................................................................................................................3
Deterrence......................................................................................................................................................4
Rehabilitation................................................................................................................................................5
Incapacitation................................................................................................................................................6
Restorative Justice.........................................................................................................................................7
Conclusion.....................................................................................................................................................9
COMMON LAW PURPOSES OF SENTENCING...................................................................................................10
STATUTORY PURPOSES OF SENTENCING........................................................................................................10

MODULE 2: FORMS OF SENTENCE.............................................................................................................11

IMPACTS OF CONVICTION................................................................................................................................11
SENTENCING ORDERS WITHOUT CONVICTION...............................................................................................12
Dismissal (s 10(1)(a))..................................................................................................................................12
Conditional Release Order (CRO) without Conviction (Section 10(1)(b))...............................................13
Conviction without Further Penalty (s 10A)..............................................................................................13
Court Fine....................................................................................................................................................14
Community Correction Order (CCO): s8, Part 7.......................................................................................14
Intensive Correction Order (ICO): s7, Part 5............................................................................................15
Imprisonment (s5, Part 4)...........................................................................................................................15
SEVERITY OF SENTENCE..................................................................................................................................16
Module 1: Theories of Punishment

The Relationship Between Crime and Punishment

Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017)

Punishment has several competing aims and effects.

 Retribution, deterrence, incapacitation and rehabilitation

 To view criminal law as a supplementary part, rather than an essential part, to

punishment, draws us into a discussion of the purposes and justifications of
punishment
o Ideologically polarised debate between:

Retributivists seeking punishment

VS
Utilitarians who view punishment as a tool to prevent crime

 Leading legal theorist HLA Hart conceded, theories of punishment do not necessarily
explain what punishment is or achieves, but rather constitute “moral claims as to what
 justifies the practice of punishment-claims as to why, morally, it should or may be
used”
o Therefore, discussions of punishment is highly normative.

Retribution and proportionality

 Retribution is the communal, institutionalised expression of the basic human instinct
to impose painful consequences upon persons who commit harmful and wrongful
acts.
o Usually, the primary purpose of punishment
o It is different to vengeance since retribution punishes proportionate to the
harm caused by their conduct and their blameworthiness or guilt.
 However, in a system based on retribution, there is no further purpose behind
punishment such as rehabilitation or deterrence.
o Therefore, retribution is said to be “backward-looking” since it focuses solely
on the past criminal act and the offender’s criminal responsibility for that act.
 Not only must there be proportionality between the nature and degree of punishment
and the blameworthiness of the offender, but the punishment must be proportionate to
the harm done.
o “The punishment must fit the crime”
 The theory of retributive justice also has implications beyond sentencing law and
practice:
o Generally, attempts to commit a crime grant lesser penalties as opposed to a
completed crime (Punishment must be proportioned according to whether or
not harm has been caused)
o Although a person who attempts to commit a crime may possess an equivalent
level of culpability to a person who successfully commits one, the importance
of proportionality in relation to harm justifies different treatment.
 Similarly, if an accused has attacked another, intending to cause
grievous bodily harm, he or she will be punished less severely if the
victim survives than if the victim dies.
 The level of blameworthiness may be the same, but the punishment
will differ according to the consequences of the accused's actions.
In the 1990s, there was mass dissatisfaction with the effectiveness of deterrence and
rehabilitation, reviving academic interest in retributive justice.
 Retribution, also known as a “Theory of Just Deserts”, occupies a prominent place in
discussions about modern sentencing law, policy, principles and practices.
 Modern sentencing legislation tends to adopt an array of different approaches
o The judge, in deciding whether the sentence is “just” or “appropriate” takes
into account a range of considerations (mitigating or aggravating factors)

Deterrence
 Deterrence is concerned with preventing crime
o It is “forward-looking” in the sense that it views punishment in its capacity to
prevent individuals from breaking the law
o Most agree that punishment is not legitimate unless it serves as an effective
deterrent
o It is an ideology that is sustained by political “law and order” campaigns that
tougher punishments work to prevent crime.
 Deterrence is modelled on particular assumptions about human nature
o People are rationally motivated to maximise pleasure and avoid pain
 Therefore, it is the threat of pain and punishment, as opposed to their
own moral “goodness”, that ensures compliance.
o To motivate rational people, the punishment must also be proportionate to
both harm and culpability
o It is measured to have maximum individual and general deterrent effect
 AKA, it prevents both recidivism for the individual as well as the
general effect of deterring other members of society
 Punishment can only have a deterrent effect on people who have freely chosen to
break the law
o You should not apply punishment to conduct that was involuntary.
 o This would excuse “individuals who could not know the law, who have acted
without intention, who have done the evil innocently, under an erroneous
supposition, or by irresistible constraint”
 AKA people who have made a honest and reasonable mistake
o Also, for the law to be effective as a deterrent, it must formulated in advance
in clear and accessible terms, and there must be certainty and consistency of
enforcement.
 The deterrent effect of the law is dependent on a wide range of factors:
▪️The publicity of the offence ▪️The nature of the offence

▪️The risk of detection ▪️Certainty of prosecution

▪️Social stigma attached to the offence and

punishment

 Research has suggested that a deterrent effect is correlated to two factors:

1. The certainty of punishment
2. The severity of punishment

 For example, in white collar crimes the deterrent effect may be reasonably high for a
number of reasons:
o The potential offenders are generally successful corporate players
 They are economically rational, self-interested, knowledgeable about
the law and occupy a high social standing
 The stigma of conviction involves significant social and professional
costs

 “Absolute Deterrence” refers to the “existence of a criminal justice system that

punishes offenders which consequently has the effect of deterring would-be
criminals”

Rehabilitation
Rehabilitation is also concerned with the prevention of crime, however, it differs from
deterrence in that it seeks to modify behaviour by changing or reforming the moral outlook of
the offender, rather than simply threatening or imposing a measure of pain to induce
compliance.

 Rehabilitation uses medical or pathological modelling to determine the motivations

and proper treatment of offenders.
o They look for latent abnormalities/characteristics and deem them as the
underlying causes of crime.
o Deviance (whether moral, social or legal) may be constructed in terms of a
"sickness" that requires diagnosis and treatment.
 The ICCPR accentuates that rehabilitation should be the principal purpose of
punishment: "The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social rehabilitation."

Incapacitation
Walker suggests that the “incapacitation” of dangerous individuals should be regarded as a
justification that is just as sound as all the other reasons for punishment. The modern idea of
incapacitation, removing the means and opportunity for future criminal offending, is linked
with assessments of risk and dangerousness.

 An issue with incapacitation occurs when considering those suffering a mental

impairment who, but for lack of capacity, committed a criminal offence.
o As persons acting without criminal responsibility cannot be punished, the
criminal law struck a balance between individual justice and public safety by
recognising a verdict of "not guilty by reason of insanity".
o This "qualified acquittal" has justified the detention of persons for an
indefinite duration in secure psychiatric institutions since the 19th century

 The scope of preventative detention has expanded further with the introduction of
laws that permit detention beyond the term of the original sentence for preventative as
opposed to punitive purposes.
o “Such a statutory system could, one would hope, avoid the disadvantages of
indeterminate prison sentences by being based on periodic orders for
 continuing detention in an institution other than a gaol and provide a
guarantee of regular and thorough review by psychiatric and other experts."
(Veen)

Incapacitating dangerous individuals by justifying that it is for the protection of the

community has been criticised heavily
 Punishing individuals for what they might do, rather than for what they have done.
 "It is wrong, in principle, to punish offenders for their predicted future conduct: they
should be punished for what they have done, not in respect of what they will or might
do. We should treat individuals (unless they are insane) as moral agents who can
choose whether or not to desist from future crimes. (Duff & Garland)

 Incapacitation as a purpose of sentencing has been contested many times, evident in

the changing views of the ALRC.
o In its 1988, the ALRC rejected incapacitation as a legitimate purpose of
sentencing for reasons
o By 2006, the ALRC had reversed its position.
 The ALRC's reversal reflects the growing acceptance of the need to
protect society, by means of incapacitation, from dangerous recidivists.

Restorative Justice
There is growing international social movement in favour of reconstructing criminal justice to
promote “restorative justice”.

There is no one singular definition for “restorative justice” since it emerged as a “unifying
banner”, encompassing a wide range of different methods and goals.
 One definition is “a process whereby parties with a stake in a specific offence
collectively resolve how to deal with the aftermath of the offence and its implications
for the future”

There are several goals for restorative justice practices:

 that offenders confront and accept responsibility for their conduct and its
consequences;
  that families and communities surrounding the protagonists play a role in both
reintegration and support for both the victim and the offender; and
 to provide a resolution for disputes

“Put simply, the focus of restorative justice is inclusive participation, reparation and
resolution”

Most restorative justice practices include an element of a meeting which brings together those
affected by a particular offence to decide how to deal with it.
 In Australia, this occurs through a “conference” where the offender, victims, families
and a facilitator meet to discuss the impact of their actions and ways to repair the
harm done.
o E.g. Circle Sentencing or diversionary conferencing for young offenders

Arguments for and against restorative justice

Supporting Arguments Opposing Arguments
Restorative justice practices may restore and Participation provides no benefits to
satisfy victims, offenders and communities unknowing victims (that is, the criminal
better than existing criminal justice justice system only applies in 10% of
practices offences committed)

Restorative justice practices may reduce Because more than 90% of crimes are
some forms of crime more and rehabilitate untouched by State processes, it may have
offenders better no significant impact on the crime rate
Conferences are structurally fairer due to the In some cases, it may increase victims’ fears
nature of participation of revictimisation
Engenders greater procedural justice, which It can make victims props for attempts
in turn communicates respect towards offender rehabilitation
Conferencing is more cost-effective It can be a ‘shaming machine’ that worsens
stigmatisation
Restorative justice practices enrich freedom It may widen nets of social control (though
and democracy Braithwaite found this not be the case in
Australia or New Zealand)
 It fails to redress structure problems
inherent in liberalism, like unemployment
and poverty. It may disadvantage women,
children, racial minorities. It may “trample
rights because of impoverished articulations
of procedural safeguards”

Conclusion
While theories of punishment have influenced the shape of the modern law, it is important to
recognise that the criminal law need not necessarily be tied to the search for the legitimacy of
State punishment.

 Punishment does not always occur after a guilty conviction.

o A conviction may be imposed without any painful or unpleasant consequences
beyond the finding of guilt.
o Admittedly, condemnation as a "criminal" is an unpleasant consequence for
most people.

These options acknowledge that the punitive effect of condemnation is neither always
needed, nor in fact desirable.
Common Law Purposes of Sentencing

Veen v The Queen sets out the common law approach to multiple purposes:

'… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing
discretion arises in large measure from unavoidable difficulty in giving weight to each of the
purposes of punishment. The purposes of criminal punishment are various: protection of
society, deterrence of the offender and of others who might be tempted to offend, retribution
and reform. The purposes overlap and none of them can be considered in isolation from the
others when determining what is an appropriate sentence in a particular case. They are
guideposts to the appropriate sentence but sometimes they point in different directions.'

Statutory Purposes of Sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 exhaustively lists the purposes of
sentencing. They are similar to the main theories of punishment, but also include additional
factors:

PURPOSES OF SENTENCING

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar
offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

Note that there is no guidance on how to rank or interpret the purposes in s 3A however the
HCA ruled that the common law approach to multiple purposes still applies:

Module 2: Forms of Sentence

This module discusses:

 The impacts of conviction
 The range of available sentencing options in NSW and
 Severity of Sentence

A sentencing judge or magistrate has a range of sentencing options to choose from depending
on circumstances:
 Type of offence
 Prior offences
 Jurisdictional limits applicable to the court

Impacts of Conviction
The impacts of sentence and conviction are far-ranging and long-lasting, and may impact on
a person’s ability to fully participate in the community for many years after the sentence
imposed.
 Consider this in light of the pressures to plead guilty and the prevalence of
‘convenience pleas’
  Criminal records may be accessed by a variety of stakeholders such as prospective
employers.

Some of the non-legal and non-criminal law impacts of conviction may include:

o loss of employment or preventing a person from being employed in a certain field,

in a certain role and/or by certain employers;

o revocation of certain licences, or preventing a person from being able to obtain

such licences in future (e.g. a security licence) which may further limit
employment opportunities;

o cancellation of visas leading to deportation from Australia or being held in

immigration detention;

o exclusion from jury service if convicted of certain offences;

o exclusion from serving as a company director if convicted of certain offences; and

o implications in family law proceedings involving the custody of the person's child.

Sentencing Orders without Conviction

S10, s9, Part 8

Dismissal (s 10(1)(a))
 Even if an offender pleads or is proven guilty, the sentencing court has a discretion to
make an order under s 10(1)(a) where the offence is ‘proven’ but the relevant charges
are dismissed without a record of conviction or the imposition of any further penalty.
 Usually reserved for minor summary offences for people who have no, or a very
limited, prior record.

10 Dismissal of charges and conditional discharge of offender

1) Without proceeding to conviction, a court that finds a person guilty of an offence may
make any one of the following orders—
 a) an order directing that the relevant charge be dismissed,
b) an order discharging the person under a conditional release order (in which case the
court proceeds to make a conditional release order under section 9),
c) an order discharging the person on condition that the person enter into an agreement
to participate in an intervention program and to comply with any intervention
plan arising out of the program.

Section 10(3) Factors taken into account

2) In deciding whether to make an order referred to in subsection (1), the court is to have
regard to the following factors—
a) the person’s character, antecedents, age, health and mental condition,
b) the trivial nature of the offence,
c) the extenuating circumstances in which the offence was committed,
d) any other matter that the court thinks proper to consider.

Conditional Release Order (CRO) without Conviction (Section 10(1)(b))

 A CRO is a non-custodial sentence requiring a person to comply with certain
conditions for a specified period of time, up to a maximum of 2 years.
 There are two mandatory conditions that a person subject to a CRO must comply
with:
1) They must not commit any offence
2) They must appear before the court if called on to do so at any time during the term
of the CRO

There is also a range of optional additional conditions that may be imposed at the court’s
discretion:

 supervision by Community Corrections;

 abstention from using alcohol and/or other drugs; 

 conditions not to associate with certain persons to go to certain places;

  requirements to participate in specified programs or treatment.

(The conditions imposed will depend on the person’s circumstances and their relationship to
the offending.)

If a person fails a condition, the sentence may be re-determined

Conviction without Further Penalty (s 10A)

In cases where a court considers that it would be inappropriate to impose a non-conviction
order because an offence is not trivial, but that it would also be inappropriate or inconvenient
to impose a penalty (such as a fine or community-based sentencing order) in the
circumstances of the case, the court may record a conviction only and decline to impose any
further penalty.

Court Fine
o Fines, or pecuniary penalties, developed at common law as an alternative to
imprisonment. In NSW, sentencing courts do not have the power to impose a fine
on an adult without also recording a conviction – even if the fine is imposed for a
trivial offence such as offensive language.

o Some offences are ‘fine only’ offences, while other offences carry a maximum
penalty of a fine, a period of imprisonment or both. The maximum fine available
for an offence is specified in the relevant legislation as a number of ‘penalty
units’. The current value of 1 penalty unit in NSW is $110.

Community Correction Order (CCO): s8, Part 7

 A Community Correction Order is a non-custodial sentencing option which allows a
person to serve their sentence in the community. (A CCO cannot be imposed without
a conviction also being recorded)

 A CCO requires a person to comply with certain conditions for a specified period of
time, up to a maximum of 3 years.

 There are two mandatory conditions that a person subject to a CCO must comply
with:
 1) They must not commit any offence

2) They must appear before the court if called on to do so at any time during the
term of the CCO

 There is also a range of optional additional conditions that may be imposed at the
court’s discretion. The available conditions are the same as those available in respect
of CROs, as well as the following, more restrictive conditions: a curfew; and/or
community service work.

 If a person fails to comply with conditions of the CCO, the sentence may be re-
determined

Intensive Correction Order (ICO): s7, Part 5

 An ICO, also known as a suspended sentence, allows a person who has been
sentenced to imprisonment to serve that sentence in the community.
 The threshold for imprisonment in s5 must be met before a court may make an ICO.
 An ICO can only be made if the term of imprisonment is 2 years or less (for a single
offence), or 3 years or less if it is an aggregate sentence for multiple offences.
 ICOs are not available for some serious offences (s67)
 There are two mandatory conditions that a person subject to a CCO must comply
with:
1) They must not commit any offence
2) They must submit to the supervision of Community Corrections
 The court must also impose at least one further condition from the following, unless
there are exceptional circumstances:
o Home detention
o Electronic monitoring
o Curfew
o Community Service Work
o Alcohol/drug abstention
o Non-association conditions
o Place restriction conditions
 o Requirement to participate in a specified program or treatment
 When an ICO is breached, they are immediately taken into custody to serve the
balance of their sentence by way of full-time imprisonment.
 An ICO may only be reinstated by order of the State Parole Authority.

Imprisonment (s5, Part 4)

 Imprisonment is the most serious and restrictive form of punishment, usually imposed
for serious offences.
 Imprisonment is intended to be a sanction of last resort.
 Section 5 requires a sentencing court to first consider all alternatives to imprisonment
and determine that ‘no penalty other than imprisonment is appropriate’ before a term
of imprisonment is ordered.

Severity of Sentence
 As well as deciding upon the type of sentence, the court must also decide upon the
appropriate severity of the penalty imposed.
 For imprisonment and fines, the maximum penalty is set by legislation.

Module 3: The Sentencing Process

 The role of the court and the parties in the sentencing process
 A few key provisions and principles that govern how an appropriate sentence is
determined, including the maximum penalty, non-parole periods and discounts for
guilty pleas.

Roles in Sentencing

Role of the Prosecutor

 A prosecutor’s principal role at sentence is to assist the court in arriving at an
appropriate sentence.
o This is done by outlining the relevant facts, sentencing principals and what has
been done in comparable cases (Babaro)
  A prosecutor should not advocate for a particular sentence, but must assist the court to
avoid falling into error if the court is about to impose a manifestly inadequate
sentence (CMB)

Role of Defence
 Defence lawyers have a duty to raise matters at sentence that are relevant and in their
client’s favour (KAB)
 Unlike prosecutors, the defence can make submissions to the court about an
appropriate sentence (EF v R)

Role of the Court

 The court’s task is simply to determine the appropriate sentence to apply in a
particular case.
 Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the principles that apply
when sentencing and the penalty options available
Instinctive Synthesis (pg. 1342-4)
 The process that governs the determination is known as “instinctive synthesis” (also
known as “intuitive synthesis”)
 It was described as deciding the appropriate punishment through “subjective
judgement” (Williscroft)
 The court said that this is inevitable and that it is “profitless”, even counter-
productive, to allot the various sentencing considerations in a mechanical process.
o '… sentencing is not a purely logical exercise, and the troublesome nature of
the sentencing discretion arises in large measure from unavoidable difficulty
in giving weight to each of the purposes of punishment’ (Veen)
 Critics read instinctive synthesis as judicial resistance to legislative direction and as a
reluctance to render the reasoning process which sentencing involves open to scrutiny

There are two different approaches to sentencing:

 Two-Step System (Veen)
o The “sentence should be proportionate to the gravity of the offence” unless the
applicant’s history warranted departure
o Was rejected by HCA in favour of the below approach
  The Instinctive Synthesis Methodology
o Rejects the “linear” approach
o The method by which the judge identifies all the factors relevant to the
sentence, discusses their significance then makes a value judgement as to what
the appropriate sentence given all the factors of the case (Markarian)
o “It departs from principle because it does not take account of the fact that there
are many conflicting and contributory elements which bear upon sentencing an
offender. Attributing a particular weight to some factors, while leaving the
significance of all other factors substantially unaltered, may be quite wrong.”
(Markarian)

 Intuitive synthesis confronts problems of:

o Vague and indeterminate nature
o The extent to which it renders the reasoning process in sentencing opaque
o Inadequacy in the light of the trend to quantification of sentencing discounts
such as guilty plea
o Prescribed sentencing factors and standard non-parole periods

 “Intuition” or “instinct” suggests the idea that there is some innate force, talent or
expertise that resides within the judge that cannot be “learnt” or “taught”
 However, sentencing is a social, legal and political practice embedded in a specific
professional context.
 As Hutton explains, it is woven from “a sentencer’s experience both as a judge and
as counsel, from the local working culture of the court, from the informal
professional culture of the various branches of the judiciary, and from the training
judges receive”
o “judicial wisdom and experience”

McHugh J in Markarian stated: "There is no Aladdin's Cave of accurate sentencing

Methodology ... There is only human judgment based on all the facts of the case, the judge's
experience, the data derived from comparable sentences and the guidelines and principles
authoritatively laid down in statutes and authoritative judgments"
McHugh J

The acceptance of the role of instinctive synthesis in the judicial sentencing process is not
opposed to the concern for predictability and consistency in sentencing that underpins the
rule of law and public confidence in the administration of criminal justice. The synthesising
task is conducted after a full and transparent articulation of the relevant considerations
including an indication of the relative weight to be given to those considerations in the
circumstances of the particular case. The instinctive synthesis approach does not prevent the
use of adjectives or adverbs or indications that this or these factors makes or make the case
more or less serious than other cases or are the critical features of the case.And judicial
instinct does not operate in a vacuum of random selection. On the contrary, instinctive
synthesis involves the exercise of a discretion controlled by judicial practice, appellate
review, legislative indicators and public opinion. Statute, legal principle and community
values all confine the scope in which instinct may operate. Thejudicial wisdom involved in
the instinctive synthesis approach is therefore likely to lead to better outcomes than the
pseudo-science of two-tier sentencing. At all events, I am not satisfied that two-tier
sentencing is a better method or process than the instinctive synthesis method that has been
the traditional approach of common lawjudges. (at [84))

Kirby J: With all respect to those of the different opinion, the phrase "instinctive synthesis"
sends quite the wrong signals for the law of sentencing in Australia. Who are those who have
the "instincts" in question? Only the judges. This is therefore a formula that risks
endorsement of the deployment of purely personal legal power. It runs contrary to the
tendency in other areas of the law, notably administrative law, to expose to subsequent
scrutiny the use of public power by public officials. It is contrary to the insistence of
Australian courts, including this Court, thatjudicial officers must give reasons for their
decisions. At this stage in the development of the Australian law of sentencing, this Court
should be encouraging, not impeding, transparency and accountability ofjudicial decision
making. I remain of the view that "[i]t is too late (and undesirable) to return to unexplained
judicial intuition". Talk of "instinctive synthesis" is like the breath of a bygone legal age. It
resonates with a claim, effectively, to unexplainable and unreviewable power.

So analysed, the residue of this judicial debate over twenty years - in this Court over the past
five years - is revealed for what it is.Australianjudges must now express their obeisance to an
"instinctive synthesis" as the explanation of their sentencing outcomes. It might be prudent
for them to avoid mention of "two stages" or of mathematics. Yet in many instances (and
increasingly by statutory prescription) ifjudges do so, no error of sentencing principle will
have occurred. Such mention may, in fact, sometimes even be required. The lofty and
absolute prescriptions of Williscro.ft and Young remain in place like the two vast and
trunkless legs of stone of Ozymandias. But, with all respect, they are now beginning to look
just as lifeless. One day, I expect that travellers to the antique land of this part of the law of
sentencing will walk this way without knowing that the two proscriptions once were there. (at
[129), [139))

Insights from Bench and Bar: Instinctive Synthesis

Justice Michael Kirby

 “Judges are there to give dispassionate decisions, uninfluenced by the strong forces
that can rise and swell and then retreat again in popular opinion… I think, an
unhappy development if the courts were equally prone to respond in that way to
passing political fancies… the courts serve the community of citizens of whom they
are members and it is important for them to be aware of changing moral, social,
values in the community and, in a general sense, keep up with the times.”
o G Sturgess and P Chubb, Judging the World: Law and Politics in the World's
Leading Courts  (Butterworths, 1988) 370

R v Jurisic (Spigelman CJ)

 “The preservation of a broad sentencing discretion is central to the ability of the
criminal courts to ensure justice is done in all the extraordinary variety of
circumstances of individual offences and individual offenders.”

UNSW Law Journal in 1999 (Michael Adams)

 “With the greatest respect for the parliament, grid sentencing, I thin, places a political
thumb on the scales in a way which is foreign to our conceptions of the rule of law
and which will have continuing repercussions for the role of the independent
judiciary.”

Georgopolos v The Queen

  “I close this discussion with the observation that many of the changes brought about
by the Crimes (Sentencing Procedure) Act 1999 have introduced artificial, abstruse
and technical considerations into the process of sentencing which add considerably
to the uncertainty and complexity of the process without any discernible
countervailing advantage in either transparency or outcomes. Sentencing is difficult
enough a task without the need to negotiate a logical minefield that already has
produced volumes of what should have been unnecessary jurisprudence, as the Courts
have attempted to lay down a coherent and logically consistent path through a
terminological jungle in the attempt, unsatisfactory in significant ways, to do their
conscientious best to apply the will of Parliament”

Nicholas Cowdrey
 “The modern historical objective of sentencing in our system is to make the
punishment fit the crime and the criminal. It is not possible for the relevant sentencing
considerations to be identified accurately and comprehensively in advance of the
offending (as Parliament would have to do in order to be able to fix just sentences in
legislation). There must be left scope for discretion, to be exercised in a judicial
fashion (and not arbitrarily or capriciously). The alternative is not justice.”

Maximum Penalties
 The maximum penalty for an offence is reserved for those cases that are considered so
grave as to warrant the maximum penalty for the offence. But there is no ‘worst
instance’ of offending for a particular offence (Veen v The Queen)
 The maximum penalty should be considered a yardstick or guide (set by parliament)
that compares the current court case and the worst category of case for that offence
(Markarian v The Queen)
 Objective seriousness is like a spectrum on which the offending falls – the maximum
penalty is reserved for offending at the most serious end of that spectrum.
 A sentencing court must acknowledge the maximum penalty for the offence, and
considering the wrong maximum penalty will be an error (R v Mason)

Objective Seriousness
  A sentencing court must make an assessment about where the offending before it sits
on the range of objective seriousness for offences of that type. In other words, a
court is to consider the gravity of the offending viewed objectively; that is, looking at
the objective circumstances of the offending.
 Objective factors are found under Section 21A(2) of the Crimes (Sentencing
Procedure) Act 1999 (NSW)
o Including the degree of planning (s 21A(2)(n))
o the offending committed in the company of one or more other persons (s
21A(2)(e))
o was committed in the presence of a child (s 21A(2)(ea))
o the offender used or threatened to use violence or a weapon (ss 21A(2)(b),
(c)),
o the offending caused substantial loss or damage (s 21A(2)(g)).
 "Assessment of the objective gravity of an offence forms a significant part of the
sentencing process with respect to all offences... In sentencing for an offence … a
court should make an assessment of the objective gravity of the offence applying
general law principles, so that all factors which bear upon the seriousness of the
offence should be taken into account (unless excluded by statute). Factors such as
motive, provocation or non-exculpatory duress may be taken into account in this way.
Regard may be had to factors personal to the offender that are causally connected
with or materially contributed to the commission of the offences, including (if it be
the case) a mental disorder or mental impairment." (Tepania v The Queen)
 A court should indicate if the offending before it is in the lower, middle or upper
range of objective seriousness.

Discount for Guilty Pleas

 A guilty plea can be valuable in two key ways on sentence:
o It can provide evidence of remorse (demonstrate that the person is sorry for
their actions and takes responsibility for them)
o There is a utilitarian value to the plea (saving the court time, costs and other
resources required by a trial)
 In general, the closer the case gets towards a trial, the lower the value of the guilty
plea (and the lower the discount)
  The impact of a guilty plea can be affected by a range of other factors including:
o Whether the Crown’s case is strong (means a plea is less valuable since
conviction is inevitable)
o The later a defendant pleads guilty, the lower utilitarian value

Non-Parole Period (NPP)

 A NPP is the minimum period that a person sentenced to imprisonment must serve in
full-time custody after considering all elements such as need for rehabilitation,
objective seriousness and subjective circumstances (Hili v The Queen)
 The court must set out the NPP when sentencing a person to full-time imprisonment
(s44)
 A court may not impose a NPP for a sentence of imprisonment of 6 months or less (s
46)
 The balance of a sentence (the period of parole) is principally to facilitate a person’s
rehabilitation – “a mitigation of punishment in favour of rehabilitation through
conditional freedom by parole” (R v Zolfonoon)

Setting a NPP
 The NPP should not be less than 75% of the head sentence (s 44(2))
o There are many instances where a court will depart from this (i.e. “special
circumstances” that warrant that departure: s 44(2))
o That could include that the person requires a longer period on parole to assist
in rehabilitation, usually given to young offenders

Standard Non-Parole Periods (SNPP)

 Some offences have a SNPP which are listed in the table in pt4 div 1A.
 The SNPP is an indication from Parliament as to the appropriate NPP that a court
should set for offending that is “in the middle of the range of seriousness” for that
offence (s 54A(2))
 For a useful summary of the correct approach to taking into account an applicable
SNPP in sentencing, read [109]-[112] of the NSWCCA's decision in Tepania v R

Guideline Judgements
  Guideline judgements basically provide clear parameters from parliament when
sentencing a person for a particular offence.
 A guideline judgement might set out an appropriate sentencing range where the
objective seriousness of the offending and the defendant’s subjective circumstances
are of a particular nature.

There are only a few guideline judgements in NSW, covering the following offences or
sentencing processes:
i) high range PCA (drink driving);
ii) taking into account offences on a Form 1;
iii) taking into account guilty pleas (although this is slightly affected by later
legislative amendments referred to earlier in this module);
iv) break, enter & commit an indictable offence therein;
v) armed robbery
vi) dangerous driving

Break, enter & commit an indictable offence therein

 The NSW Attorney-General applied for a guideline judgment for offences under s
112(1) of the Crimes Act 1900 (NSW), being break and enter and commit a serious
indictable offence therein.
 While the NSWCCA was not persuaded that there was a general pattern of leniency in
sentencing for such offences at the time, nor was it possible to identify a “typical”
case, the NSWCCA set out some factors relevant to assessing objective seriousness of
the offending for offences under s 112(1).
 These included the extent of planning, repeat incursions of premises, vandalism and
significant damage to property, offending while the defendant was on bail or parole,
and the offence being committed at the premises of a vulnerable victim (such as an
elderly person, a person with a disability or a person who is sick).

Mandatory minimum sentences

 The most extreme limit on judicial discretion are mandatory minimum sentences.
They may take the form of:
 o a mandatory maximum penalty – such as the mandatory term of life
imprisonment for murder of a police officer under s 19B of the Crimes Act
1900 (NSW), or

o a mandatory NPP (‘minimum sentence’) – such as the 8-year mandatory

minimum NPP for assault causing death while intoxicated under s 25B of
the Crimes Act 1900 (NSW).

 While critiques of mandatory sentencing understandably focus on imprisonment, there

are other forms of penalty can be mandatory. For example, many drink driving
offences attract mandatory licence disqualification: see, e.g. Road Transport Act
2013 (NSW) ss 204, 205.

 In the short comments below, Russell Hogg reminds us that mandatory penalty laws
don’t obliterate discretion – they shift it from judges to prosecutors.

 Julia Quilter also points out that appellate courts are not always simply resisting the
legislature’s pushes towards more punitive sentencing and being responsive to public
opinion – they are sometimes leading the way.

Module 4: Specific Factors To Be Taken Into Account

 Priciples in Bugmy v The Queen will be taken into account in determining the weight
that ought to be given to each of the different purposes of sentencing
 the fact that a sentencing court "is to take into account" (s 21A(1)) the matters
in ss 21A(2) and (3) does not mean that the court must increase or decrease
the sentence to be imposed simply because such factors are present: s
21A(5).
 In R v Way, the NSWCCA held that the list of factors in s 21A was not
intended to overrule, disturb or restrict the application of the principles of
sentencing that had been established by the courts over time.
 Note also that s 21A(2) makes clear that an aggravating factor cannot be
taken into account here if it is already part of an offence definition. For
example, if a person is being sentenced for an act causing grievous bodily
 harm, then s 21A(2)(g) may not also be taken into account, because the
extent of the injury is already factored into the offence for which the offender
is being sentenced.

Discounts
 S22 deals with a guilty plea being taken into account
 S25D sets out discounts
 Any discount for a guilty plea should bbe applied after the otherwise sentence has
been determined
 S22A allows for lesser penalties for conducing their case in a way that ‘facilitates the
administration of justice’ – ie the degree which the cooperated in pre-trial processes

Disadvantaged
 In recognising that a background of disadvantage “may leave its mark on a
person throughout life” and “is a feature of the person’s make-up”, the High
Court in Bugmy addressed one of the key constraints that had limited the
application of the Fernando principles: the plurality emphatically stated
that the impacts of such a background do not diminish over time, nor
with repeated contact with the criminal process, and must be given “full
weight” in every sentencing exercise (at [44]).

 The judgment emphasised that there is a need to point to ‘material tending to

establish the relevant background’ in every case where the principles are said
to apply, meaning that any defendant seeking to establish the application of
the Bugmy principles must be able to provide evidence of their personal lived
experiences of a 'deprived' background.

 The High Court was careful to point out, however, that any such reduction in
moral culpability will not be inevitable or automatically lead to a more
lenient sentence. The relevance of the person's background will always be
determined in the context of all of the facts and circumstances of the case,
including the need to give weight to the other purposes of sentencing (such as
protection of the community).

As noted above, at [44], the High Court pointed out that a finding that the relevant
principles apply does not automatically lead to a more lenient sentence: 

“Giving weight to the conflicting purposes of punishment is what makes the exercise
of the discretion so difficult. An offender's childhood exposure to extreme violence
and alcohol abuse may explain the offender's recourse to violence when frustrated
such that the offender's moral culpability for the inability to control that impulse may
be substantially reduced.  However, the inability to control the violent response to
frustration may increase the importance of protecting the community from the
offender.”

Although it would be an error to express any corresponding reduction or increase in

sentence mathematically (there is no Bugmy 'discount'), most judicial officers will
specify the way in which they have taken the principles into account in their remarks
on sentence – e.g. by finding that the person's moral culpability is reduced and there
is an increased need for rehabilitation, warranting an adjustment to the ratio of the
head sentence and NPP to allow the person greater time in the community on parole
to engage in rehabilitative programs.

Proportionality (s 3A(a))
 This is a reflection of the common law principle of
proportionality: R v Scott
 While a person must be adequately punished for an offence
they are found to have committed, a sentencing court must
also be careful not to impose an unduly harsh sentence (such
as one that is crushing on the person). Proportionality dictates
that the sentence should reflect the objective gravity, or
objective seriousness, of the offending – the sentence should
be proportionate to that gravity: Veen v The Queen (No
2) (1988) 164 CLR 465, 472.

Consistency
 It is essential that sentencing courts are consistent in the application of
relevant legal principles. Sentencing courts should be concerned
with "consistency in the application of the relevant legal principles, not
some numerical or mathematical equivalence": Hili v The Queen

Parity
Similar to consistency, parity is also concerned with treating like cases alike: Green
v The Queen (2011) 244 CLR 462 [28]. However, ensuring parity focuses more on
consistency among related defendants, whether they are co-offenders in the same
criminal enterprise, or had some involvement in that enterprise leading to a particular
charge (i.e., they do not need to be co-offenders for parity to be in issue: Jimmy v
R [2010] NSWCCA 60 [245]-[246]). The parity principle was perhaps best
summarised by Dawson J in Lowe v The Queen (1984) 154 CLR 606, 623:

"There is no rule of law which requires co-offenders to be given the same sentence
for the same offence even if no distinction can be drawn between them. Obviously
where the circumstances of each offender or his involvement in the offence are
different then different sentences may be called for but justice should be even-
handed... [A]ny difference between the sentences imposed upon co-offenders for
the same offence ought not to be such as to give rise to a justifiable sense of a
grievance on the part of the offender with the heavier sentence or to give the
appearance that justice has not been done"

A common ground of appeal against a sentence imposed on a co-offender is where

that co-offender has this justifiable sense of grievance over the sentence imposed
on them, in comparison to their co-offender. Parity seeks to ensure there is no such
unjustiable disparity between the sentences imposed on related defendants. This is
one factor to be taken into account by a sentencing court under s 21A(1) of
the Crimes (Sentencing Procedure) Act 1999 (NSW): Green [19]. When sentencing
co-offenders, a sentencing court must still treat each person's sentence as an
individual sentencing exercise, but the court will look at the different roles each
person played in the criminal enterprise.

The best way is for the same judge or magistrate to sentence each related
defendant. This practice is strongly encouraged by the High Court and NSWCCA:
see, for example, Postiglione v The Queen (1997) 189 CLR 295; Adams v R [2018]
NSWCCA 139 [81].

Setting a Sentence

Imprisonment
There are a number of important steps a court must take when imposing a sentence
of imprisonment, including:
 o setting a non-parole period, unless the court decides not to (s 45) or the
sentence is six months or less (s 46): s 44(1).

o stating when the sentence commences and when the person is to be

released, taking account of time they have spent in custody on that
charge: ss 47, 48.
If a person is being sentenced for more than one offence, the process of determining
the sentences for those offences can be even more complex. Sentences can be
served concurrently (at the same time), consecutively (one after the other),
or partly concurrently and partly consecutively (the sentences overlap):
see Crimes (Sentencing Procedure) Act 1999 (NSW) ss 55(1), (2).

The court may also decide to impose what is known as an aggregate sentence of
imprisonment. This is where the court imposes an overall sentence for two or more
offences. Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets
out the process the court is required to follow when imposing such a sentence,
including by indicating what sentences would have been imposed for each of the
individual offences (known as the 'indicative' sentence): s 53A(2)(b). For a useful
(albeit thorough) explanation of the purpose of aggregate sentences and the
intention behind s 53A.

When imposing an aggregate sentence, a sentencing court must be mindful of the

principle of totality, and guard against any penalty that may be crushing for the
person being sentenced. We consider totality briefly on the next page.

Totality
When a court is sentencing a person for multiple offences, the court must ensure
that the aggregation of all of the sentences is a "just and appropriate measure of the
total criminality involved": Postiglione v The Queen (1997) 189 CLR 295, 307-308
(McHugh J). The need to maintain an appropriate relationship between the totality of
the criminality involved in a series of offences and the totality of the sentences to be
imposed for those offences is critical to avoid crushing sentences.

The NSWCCA explained the need to avoid this eventuality in R v MAK [2006]
NSWCCA 381 (at [17]):

"[A]n extremely long overall sentence may be crushing on an offender in the sense
that it will induce a feeling of hopelessness and destroy any expectation of a useful
life after release. This effect both increases the severity of the sentence to be served
and also destroys such prospects as there may be of rehabilitation and reform. Of
course, in many cases of multiple offending, the offender may not be entitled to the
element of mercy entailed in adopting such a constraint."
The severity of a sentence is not simply the product of a linear relationship. As
Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301, 306:

"... the severity of a sentence increases at a greater rate than any increase in the
length of the sentence. Thus, a sentence of five years is more than five times as
severe as a sentence of one year. Similarly, while a sentence of seven years may be
appropriate for one set of offences and a sentence of eight years may be
appropriate for another set of offences, each looked at in isolation. Where both sets
were committed by the one offender a sentence of 15 years may be out of proportion
to the degree of criminality involved because of the compounding effect on the
severity of the total sentence of simply aggregating the two sets of sentences."

A sentencing court must, however, take care when applying the totality principle.
Public confidence in the administration of justice requires the Court to avoid any
suggestion that what is in effect being offered is some kind of a discount for multiple
offending: R v Knight (2005) 155 A Crim R 252 [112].

For similar reasons, in a case where an person who is already serving other
sentences comes to be sentenced for additional offences, the impression must not
be given that no, or little, penalty is imposed for the additional offences.

Explaining the sentence

The Crimes (Sentencing Procedure) Act 1999 (NSW) sets out some important steps
involved in explaining a sentence. For example, when imposing an ICO, CCO or
CRO, the sentencing court must "ensure that reasonable steps are taken to explain
to the offender (in language that the offender can readily understand).. (a) the
offender’s obligations under the order, and (b)  the consequences that may follow if
the offender fails to comply with those obligations": s 17I(1).

There may also be specific implications for people convicted or sentenced for certain
offences that a court must explain, including that they may be subject to the Crimes
(High Risk Offenders) Act 2006 (NSW) regime (see s 25C(1) of that Act).