Updates and background for this project (Digest)

• Introduction
• Sentencing - general principles and current procedures

INTRODUCTION

2.1 The Commission’s recommendations concerning the role of juries in sentencing can only be fully understood in the context of current sentencing practices, Accordingly, this chapter outlines the law and procedure that bind judges in NSW when sentencing offenders.

SENTENCING - GENERAL PRINCIPLES AND CURRENT PROCEDURES

2.2 Section 80 of the Commonwealth Constitution enshrines the right of a person charged with one or more offences against Commonwealth law to have the trial of those offences heard before a jury, where they are tried on indictment. However, that right to trial by jury extends only to the determination of guilt or innocence.¹ In all States and Territories of Australia, a judicial officer, and only a judicial officer, can impose a sentence on an offender once his or her guilt has been established.²

2.3 A conviction for an offence may occur either through the accused entering a plea of guilty, or following a trial in which the accused has been found guilty beyond reasonable doubt. Where an offence is tried without a jury, the judge or magistrate will determine both the verdict and the appropriate punishment.³ Should the offence be tried on indictment before a jury, the jurors will determine the question of guilt before being discharged. The presiding judge will alone determine the sentence, following an examination of relevant considerations.

The sentencing hearing

2.4 The sentencing hearing will generally be held a few weeks after the trial has concluded. This gives the Probation and Parole Service, or the Department of Juvenile Justice,⁴ time to prepare any reports that have been requested by the court, or are required by law, concerning the offender’s background, time in detention, and prospects of rehabilitation. The hearing is generally held in open court,⁵ and any member of the public, including the jurors who decided the verdict, may attend the sentencing hearing. Both the defence and the prosecution have the opportunity to present oral or documentary evidence at the hearing. The defence counsel may call witnesses to attest to the offender’s general good character, psychiatric state, remorse, and prospects of rehabilitation. These matters may be tested or contradicted by evidence called by the prosecution.

Factors judges may consider

2.5 Judges have a wide discretion in determining the appropriate level of penalty in each case.⁶ A judge must have regard to a number of factors, such as the nature of the crime and the maximum penalty for a particular offence specified by statute.⁷ Judges also have access to information about sentencing precedents and statistics through the Sentencing Information System (“SIS”). This assists in achieving consistency, and in ensuring that the sentence passed falls within the appropriate range.

2.6 Judges will apply the general principles of sentencing when determining appropriate penalties in each case. For example, one of the factors judges will consider when sentencing is proportionality: that is, ensuring that the punishment fits the crime.⁸ Consistency between sentences is also an important principle. For example, judges look to be fair when imposing sentences to avoid inappropriate disparities between punishments given to co-offenders. They also endeavour to achieve consistency by ensuring that the sentence is within the range for similar offences.⁹

2.7 Another factor is the totality of the sentence. If an offender is convicted of more than one offence, he or she will receive more than one sentence. The judge will determine the appropriate sentence for each offence, consider questions of cumulation or concurrence, and determine whether the aggregate sentence is just and appropriate for the overall level of criminal behaviour. The approach of making the individual sentences wholly or partially concurrent is now preferred to that of lowering some or all of the sentences below that which would otherwise be appropriate.¹⁰ On occasions, the judge may also be required to take into account any additional offences that the offender acknowledges and asks to be considered.¹¹

2.8 In addition to these general principles, judges will also have regard to any aggravating or mitigating factors that may exist in each specific case.¹²

Aggravating and mitigating factors

2.9 The aggravating and mitigating circumstances to which a judge will have regard are set out in the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge may decide on a penalty at the higher end of the scale depending on whether the following aggravating factors are present:

• the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation;
• the offence involved the actual or threatened use of violence, or of a weapon;
• the offender has a record of previous convictions,¹³ or the offence was committed while the offender was on conditional liberty in relation to another offence or alleged offence;
• the offence was committed in company, or was part of a planned or organised criminal activity;
• the offence involved gratuitous cruelty;
• the injury, emotional harm, loss or damage caused by the offence was substantial;
• the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability);
• the offence was committed without regard for public safety;
• the offender abused a position of trust or authority in relation to the victim;
• the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bank teller or service station attendant); or
• the offence involved multiple victims or a series of criminal acts.¹⁴

• the injury, emotional harm, loss or damage caused by the offence was not substantial;
• the offence was not part of a planned or organised criminal activity;
• the offender was provoked by the victim, or was acting under duress;
• the offender does not have any record (or any significant record) of previous convictions;
• the offender was a person of good character;
• the offender is unlikely to re-offend, or has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise;
• the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner;
• the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability;
• a plea of guilty by the offender;¹⁵
• the degree of pre-trial disclosure by the defence;¹⁶ or
• the offender provided assistance to law enforcement authorities.¹⁷

Victim Impact Statements

2.12 In certain circumstances, a judge may consider a victim impact statement (“a VIS”) before determining an appropriate sentence. As the name suggests, a VIS is a document prepared by, or on behalf of, a victim of crime, describing the impact that the crime has had on the life of the victim or the victim’s family. The court may only receive a VIS in relation to an offence heard on indictment that resulted in the death of, or actual physical bodily harm caused to, the victim; or an offence resulting in actual or threatened violence, including sexual assault.¹⁹ There is no obligation on the victim to prepare a VIS,²⁰ or on the court to receive or consider one.²¹ However, where the victim has died as a direct result of the crime for which the offender has been convicted, and the victim’s family has prepared a VIS, the court must receive and acknowledge the VIS, and may make any comment on it that it considers appropriate.²²

2.13 If the court chooses, it may receive and consider a VIS at any time after conviction and prior to sentencing.²³ The court may make the VIS available to the prosecutor, the offender or any other person, subject to any conditions it considers appropriate.²⁴ The victim, or a representative of the victim, may read all or part of the VIS to the court during the sentencing hearing.²⁵

Sentencing guidelines

2.14 Judges must also consider any relevant sentencing guidelines.²⁶ In NSW, the Attorney General may request the Court of Criminal Appeal to consider delivering a guideline judgment on a particular question of law, without the need for an appeal on that matter to have been brought before the Court.²⁷ Alternatively, the Court may give a judgment of its own motion.²⁸ Guideline judgments may indicate appropriate factors to consider when sentencing for specific offences, but may not be made with respect to particular offenders.²⁹

2.15 Guideline judgments serve as templates for structuring judicial discretion. They are not binding on judges, but act as an additional factor that judges must consider in exercising their sentencing discretion.³⁰ The judgments are intended as a tool to enhance sentencing consistency, while not detracting from the need for judges to exercise discretion when determining penalties based on the particular facts and circumstances of each case. ³¹ In introducing the legislative scheme in 1998, the Government stressed the balance between sentencing consistency and the free exercise of judicial discretion as being crucial to maintaining public confidence in the justice system.³² Since 1998, guideline judgments have been handed down in relation to seven areas of law.³³

Purposes of sentencing

2.16 In deciding on an appropriate sentence, a judge also keeps in mind the purposes of the penalty. The Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the court may impose a sentence on an offender for the following purposes:

(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; and

(g) to recognise the harm done to the victim of the crime and the community.³⁴

2.17 In Cheung v The Queen, Justice Kirby set out the four relevant constraints on a sentencing judge’s discretion.³⁵ First, a judge must act within, and in accordance with, any applicable statutory provision. Secondly, an offender may only be sentenced for an offence regarding which he or she has pleaded guilty, or been convicted by a court.³⁶ Consistent with this, a judge may only consider evidence during sentencing that has been agreed upon by both counsel or proved by the prosecution,³⁷ and may only rely on evidence that has been made known to the offender.³⁸

2.18 Next, where the jury has delivered a verdict, a judge must not impose a sentence that conflicts with that verdict.³⁹ Where there is more than one possible basis for the jury’s verdict, the judge must determine the factual basis for the verdict,⁴⁰ by reference to the evidence which is before the Court at the sentencing hearing.⁴¹ The sentencing judge may form his or her own view of the facts upon which the jury based their decision, provided this does not conflict with the jury’s verdict.⁴²

2.19 Finally, judges must be satisfied beyond reasonable doubt of those facts which are adverse to the accused, upon which any sentence is based.⁴³ Judges must also give reasons for the sentences they impose, setting out the facts they considered to be aggravating or mitigating factors.⁴⁴

Sentencing options

2.20 Following a plea or a finding or guilt, the court determines the appropriate penalty. In some instances, usually relating to the least serious of offences, the court may, without proceeding to a conviction, direct that the charge be dismissed.⁴⁵ The Court may also make an order discharging the offender on the condition that he or she enters into a good behaviour bond,⁴⁶ or agrees to participate in an intervention program, and comply with that program.⁴⁷

2.21 Where the court determines that some form of penalty is warranted, it must decide between custodial and non-custodial options. In some circumstances, that choice may be limited by statute, since imprisonment is not available as a choice for all offences. Where a custodial sentence is available, the court should only sentence an offender to prison after having considered all other alternatives.⁴⁸ If the Court determines that no penalty other than imprisonment is appropriate, it must determine what the length of that sentence should be. Then, the Court must consider any available alternatives to serving the sentence of imprisonment by way of full-time custody.⁴⁹ Judges determine the nature and length of any custodial sentence having regard to the subjective and objective factors discussed above.⁵⁰

2.22 Imposing a custodial sentence does not always mean that the offender must serve that sentence on a full-time basis. Where an offender is sentenced to imprisonment for a period of not more than three years, the court may direct that the sentence be served by way of periodic detention.⁵¹ Where the sentence of imprisonment is not more than 18 months, the court may make a home detention order.⁵²

2.23 In other cases, non-custodial sentencing options may be available. They include community service orders,⁵³ good behaviour bonds,⁵⁴ suspended sentences,⁵⁵ deferred sentences,⁵⁶ fines,⁵⁷ and non-association or place restriction orders.⁵⁸

Non-parole periods

2.24 When sentencing an offender to imprisonment for an offence, a Court is first required to set a non-parole period for the sentence. This refers to the minimum period for which the offender must be kept in detention in relation to the offence. The Court must then set the balance of the term of the sentence. That balance must not exceed one-third of the non-parole period, unless the Court decides that there are special circumstances for increasing it, in which case the Court must provide reasons for that decision.⁵⁹

2.25 A Court may not set a non-parole period for a sentence if the term of imprisonment is six months or less.⁶⁰ Where the Court imposes a sentence of imprisonment for a term of three years or less, being a sentence that has a non-parole period, it must make an order directing the release of the offender on parole at the end of the non-parole period.⁶¹

2.26 When the offence is one which falls within the category of offences for which standard non-parole periods have been prescribed by statute, then that is the non-parole period which is to be set. However, the Court may determine that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period prescribed for that offence.⁶²

Reaching a sentencing decision

2.27 The task of reaching a decision as to an appropriate sentencing option is a difficult and complex one. Judges in NSW must draw on a vast body of accumulated knowledge, including:

• the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes Act 1914 (Cth);⁶³
• a significant body of case law illustrating the sentencing principles discussed above;
• the sentencing ranges for each offence in respect of which an offender is convicted;
• any relevant guideline judgments;
• an understanding of sentencing statistics and their relevance; and
• an awareness and understanding of the significance of any mitigating factors that may be specifically relevant to the offender (for example, the opportunities, or lack thereof, for rehabilitation, potential hardships that may be faced by offenders with life-threatening illnesses, etc).

2.29 The alternative approach is known as “instinctive synthesis”, whereby judges consider all of the relevant factors simultaneously and arrive at one final sentence determination. Which of these methodologies is preferred has long been the subject of debate.⁶⁷ Both approaches have been criticised: the two stage approach for being too mathematically rigid and more likely to give rise to errors; and the instinctive synthesis method for lacking sufficient precision and transparency to enable the reasons for the sentence to be clearly understood.

2.30 In the recent case of Markarian v The Queen,⁶⁸ the majority of the High Court stated that much confusion surrounds the terms and attempts to define and categorise them, and that there can be no universal rule stating that one method should always be adopted over the other.⁶⁹

In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed….

[I]t cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.⁷⁰

2.31 While it is the judiciary who ultimately determine penalties in each case, others also play a role in sentencing. That role may be an over-arching one: setting the policies that guide sentencing law and practice; or may be specifically related to penalty outcomes in particular cases.

Courts

2.32 Obviously, the courts, through judicial officers, have the most direct involvement in sentencing by imposing penalties in each case where an offender pleads guilty to, or is convicted of, an offence. As well as sentencing in individual cases, the courts also establish sentencing precedent, particularly by issuing guideline judgments.⁷¹

Parliament

2.33 Judicial discretion in selecting appropriate sentences exists subject to the power of Parliament to enact legislation setting maximum penalties for criminal offences, and restricting the type of penalty available for certain offences. Generally in New South Wales, as well as in other Australian jurisdictions, there has been resistance to the idea of Parliament curtailing judicial discretion by prescribing minimum penalties for offences. However, in 1999, Parliament introduced minimum life sentences for murder and for serious drug trafficking offences in certain circumstances,⁷² and standard non-parole periods for certain offences.⁷³

The parties

2.34 During the trial, counsel for both sides tender evidence, much of which will be relevant to sentencing in the event that the defendant is found guilty. At the sentencing hearing, the prosecution and defence counsel may present further evidence concerning the offender’s subjective circumstances. This may include evidence as to character, prior convictions, psychiatric or psychological status, potential hardship arising from the manner in which the sentence will be served, previous performance on parole, etc, with a view to persuading the judge to hand down either a lenient or more severe sentence.

Victims

2.35 People who have been the victims of certain crimes, or who have lost family members as a result of a violent crime, may have some input into the sentencing process by preparing a Victims Impact Statement. The circumstances in which a VIS may be relevant are discussed at paragraph 2.12-2.13 above.

2.36 Victims of crime may also be assisted by groups such as the Enough is Enough Anti-Violence Movement, the Victims of Crime Assistance League (VOCAL), or the Homicide Victims Support Group.⁷⁴ In addition to providing support for victims, these groups lobby for recognition of victims’ rights in the criminal justice system. Representatives from these groups are members of the Sentencing Council of NSW.

Specialist bodies

2.37 The Sentencing Council of NSW was established in 2003 to provide independent advice to the Government on sentencing policy and practice. Set up under the Crimes (Sentencing Procedure) Act 1999 (NSW),⁷⁵ the Sentencing Council comprises of 13 representatives from the judiciary, the police, the criminal bar (both prosecutors and defenders), corrective services and juvenile justice officers, community representatives, victims’ rights advocates and an Aboriginal justice specialist.⁷⁶ The Council’s main functions are to advise and consult with the Attorney General in relation to offences suitable for standard non-parole periods and for guideline judgments; to monitor, and report annually on, sentencing trends and practices; and to prepare reports to the Attorney General (upon request) on particular aspects of sentencing law.⁷⁷ An amendment to the Crimes (Sentencing Procedure) Act 1999 (NSW) in late 2006 resulted in the Sentencing Council’s functions being expanded to include a public education role.⁷⁸ This is discussed in further detail in Chapter 4.

2.38 In welcoming the establishment of the Sentencing Council, the former Attorney General noted the likelihood of it generating robust debate and controversial recommendations. He observed that the Sentencing Council “will provide an invaluable opportunity for the wider community to make a major contribution to the development of sentencing law and practice”.⁷⁹ To date, the Sentencing Council has prepared reports on the effect of abolishing short prison sentences, the application of standard non-parole periods to certain offences, how best to achieve consistency in sentencing in the Local Courts, and on the use and enforcement of fines and penalties.⁸⁰ The Council also prepares an annual review of sentencing trends and practices.⁸¹

2.39 The Judicial Commission also has input into sentencing. In addition to organising and supervising the continuing education and training of judges in NSW, the Judicial Commission assists the courts in achieving consistency in sentencing.⁸² In carrying out this task, the Judicial Commission maintains databases (such as the Judicial Information Research System “JIRS”,⁸³ and the SIS)⁸⁴ . The Judicial Commission also produces judicial officers’ bulletins and empirical studies of sentencing practice across NSW courts. Other, more generalist, research organisations, such as this Commission,⁸⁵ the Bureau of Crime Statistics and Research,⁸⁶ and the Criminal Law Review Division within the Attorney General’s Department,⁸⁷ have also reported on aspects of NSW sentencing law and policy.

The media and the public

2.40 The media play an important role as a conduit of information between the justice system and the community. They are in a position to inform the public about sentencing decisions and practices, and to encourage public debate. As such, they are able to guide and comment upon public opinion in relation to sentencing outcomes and practices, and to affect public confidence levels in the criminal justice system.

2.41 In Markarian v The Queen,⁸⁸ Justice McHugh recently observed:

Public responses to sentencing, although not entitled to influence any particular case, have a legitimate impact on the democratic process. Judges are aware that, if they consistently impose sentences that are too lenient or too severe, they risk undermining public confidence in the administration of justice and invite legislative interference in the exercise of judicial discretion. For the sake of criminal justice generally, judges attempt to impose sentences that accord with legitimate community expectations.⁸⁹

2.42 Australian jurors play no direct or defined role in determining an appropriate sentence for the offender whom they have found guilty. However, they may indirectly affect a sentence handed down to an offender in a number of ways. For example, a jury may return a guilty verdict with a recommendation to the judge that the offender be treated with leniency with respect to the sentence he or she is given. While the judge must consider the expression of such a view and treat it with respect, he or she is not bound by it when determining the sentence.⁹⁰ Jurors may also have an indirect impact on sentencing, for example, where they deliver a special verdict, or a verdict of guilty on an alternative count. The ways in which jurors can currently have a peripheral effect on sentencing through their verdicts is discussed in Chapter 3.

1. See Savvas v The Queen (1995) 183 CLR 1. That right also extends only to offences under Commonwealth law. The Jury Act 1977 (NSW) is the statutory basis for jury trial procedure in NSW.

2. There is a wealth of authority for this point, but see generally R v De Simoni (1981) 147 CLR 383, 392; Kingswell v The Queen (1985) 159 CLR 264, 276; Savvas v The Queen (1995) 183 CLR 1, 8; Cheung v The Queen (2001) 209 CLR 1, [14], [16].

3. Note that all trials in the Local Courts will be held without a jury: jury trials occur only in the Supreme and District Courts.

4. See Children (Criminal Proceedings) Act 1987 (NSW) s 25.

5. R v Foster (1992) 25 NSWLR 732. Exceptions exist where the offender is a child (Children (Criminal Proceedings) Act 1987 (NSW) s 10); or where the Court has directed that the proceedings be held in camera, eg, in a trial involving a prescribed sexual offence (Criminal Procedure Act 1986 (NSW) s 291A).

6. The desirability of having broad judicial discretion has been espoused by the courts and elsewhere: see, eg, R v Whyte (2002) 55 NSWLR 252; and New South Wales Law Reform Commission, Sentencing, Report 79 (1996), [1.7] (“NSWLRC Report 79”).

7. For the relevance of the statutory maximum, see Markarian v The Queen (2005) 215 ALR 213, where the High Court discussed the reasoning involved in the process of sentencing.

8. Veen v The Queen (No 2) (1988) 164 CLR 465; Bugmy v The Queen (1990) 169 CLR 525; and R v Whyte (2002) 55 NSWLR 252, [152]. For a detailed discussion of proportionality, see New South Wales Law Reform Commission, Sentencing, Discussion Paper 33 (1996), [3.35]-[3.37] (“NSWLRC DP 33”).

9. See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; and R v Morgan (1993) 70 A Crim R 368, 371. See also NSWLRC DP 33, [3.38]-[3.40].

10. See Pearce v The Queen (1998) 194 CLR 610; Postiglione v The Queen (1997) 189 CLR 295; and R H McL v The Queen (2000) 74 ALJR 1319. See also Crimes (Sentencing Procedure) Act 1999 (NSW) Part 4, Division 2.

11. Crimes (Sentencing Procedure) Act 1999 (NSW) Part 3, Division 3. See also Markarian v The Queen (2005) 215 ALR 213.

12. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21 and s 21A.

13. Although only for the limited purposes noted in R v Shankley [2003] NSWCCA 253.

14. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2).

15. The Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the sentencing court must take into account any guilty plea made by a defendant, and may accordingly impose a lesser sentence than that which would otherwise be appropriate: s 22.

16. The Crimes (Sentencing Procedure) Act 1999 (NSW) states that the court may impose a lesser penalty than it would otherwise impose on an offender in circumstances where the offender has made pre-trial disclosures for the purposes of the trial: s 22A.

17. Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. The full list of mitigating factors is contained in Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3).

18. Crimes (Sentencing Procedure) Act 1999 (NSW) s 24.

19. Crimes (Sentencing Procedure) Act 1999 (NSW) s 27.

20. Crimes (Sentencing Procedure) Act 1999 (NSW) s 29.

21. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28.

22. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(3). Where the crime involves the death of a victim, a VIS by a member of the family which deals only with the effect of the death upon the family, has been held to be irrelevant to the sentence being imposed: R v Previtera (1997) 94 A Crim R 76; and R v Bollen (1998) 99 A Crim R 510.

23. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(1).

24. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(5).

25 . Crimes (Sentencing Procedure) Act 1999 (NSW) s 30A.

26. In NSW, guideline judgments are underpinned by formal, legislative requirements: see Crimes (Sentencing Procedure) Act 1999 (NSW) Part 3, Division 4.

27. Crimes (Sentencing Procedure) Act 1999 (NSW) s 37. The Court is not required to give a guideline judgment if it considers it inappropriate to do so: s 40.

28. Crimes (Sentencing Procedure) Act 1999 (NSW) s 37A.

29. Crimes (Sentencing Procedure) Act 1999 (NSW) s 37(3).

30. Crimes (Sentencing Procedure) Act 1999 (NSW) s 42A.

31. For a discussion of the function and operation of guideline judgments, see Justice James Spigelman, “Sentencing Guideline Judgments” (1999) 73 Australian Law Journal 876; and R v Whyte (2002) 55 NSWLR 252.

32. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, 28 October 1998, 9190 (the Hon Gabrielle Harrison MP for the Hon Paul Whelan MP, Attorney General). This was the Second Reading Speech introducing the Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW). That Act was subsequently repealed and incorporated into the Crimes (Sentencing Procedure) Act 1999 (NSW) Part 3 Division 4.

33. Those areas are: Dangerous driving (R v Jurisic (1998) 45 NSWLR 209 - reformulated in R v Whyte (2002) 55 NSWLR 252); Armed robbery (R v Henry (1999) 46 NSWLR 346); Drug importation (Wong & Leung (1999) 48 NSWLR 340 - overruled in Wong v The Queen; Leung v The Queen (2001) 76 ALJR 79); Break, enter and steal (R v Ponfield (1999) 46 NSWLR 327); Effect of a guilty plea on sentence (Thomson & Houlton (2000) 49 NSWLR 383); Effect of an admission of guilt relating to other offences (Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 46); and high range prescribed content of alcohol (Attorney General’s Application No 3 of 2002 (2004) 6 NSWLR 305). A further application by the Attorney General requesting guidelines relating to assault on a police officer was refused by the Court of Criminal Appeal (Attorney General’s Application No 2 of 2002 [2002] NSWCCA 515).

34. Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A.

35. (2001) 209 CLR 1, [99].

36. R v De Simoni (1981) 147 CLR 383.

37. R v O’Neill [1979] 2 NSWLR 582.

38. Stanton v Dawson (1987) 31 A Crim R 104.

39. R v Ford (1994) 75 A Crim R 398; R v Harris (1961) VR 326; R v Isaacs (1997) 41 NSWLR 374.

40. This can often be a difficult task, as noted by the Chief Justice in his speech. See [3.10] of this Report for further discussion on this point.

41. R v O’Neill [1979]2 NSWLR 582; Chow v DPP (1992) 28 NSWLR 593.

42. Savvas v The Queen (1995) 69 ALJR 564; Maxwell v The Queen (1996) 184 CLR 501.

43. Matters favourable to the accused need only be proved on the balance of probabilities. For a more detailed explanation of the role of fact finding in sentencing, see Weininger v The Queen (2003) 212 CLR 629.

44. R v O’Neill [1979] 2 NSWLR 582; and R v SG (2003) NSWCCA 220.

45. Crimes (Sentencing Procedure) Act 1999 (NSW) s 10.

46. For a period of up to 2 years: Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(b).

47. Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(c) and Part 8C.

48. Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1).

49. R v Douar [2005] NSWCCA 455.

50. See [2.5]-[2.11] above. The statutory provisions governing sentencing procedures for imprisonment are contained in the Crimes (Sentencing Procedure) Act 1999 (NSW) Part 4.

51. Crimes (Sentencing Procedure) Act 1999 (NSW) s 6 and Part 5.

52. Crimes (Sentencing Procedure) Act 1999 (NSW) s 7 and Part 6.

53. The court may order an offender complete up to 500 hours of community service: Crimes (Sentencing Procedure) Act 1999 (NSW) s 8 and Part 7.

54. A good behaviour bond may extend for up to 5 years: Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 and Part 8.

55. Crimes (Sentencing Procedure) Act 1999 (NSW) s 12.

56. Crimes (Sentencing Procedure) Act 1999 (NSW) s 11.

57. Crimes (Sentencing Procedure) Act 1999 (NSW) Part 2 Division 4.

58. These are orders preventing the offender from associating with a specified person, or frequenting or visiting a specified place or district, for a stated amount of time: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17A and Part 8A.

59. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44. The meaning of “special circumstance” was considered in R v Simpson (2001) 53 NSWLR 704 and R v Way (2004) 60 NSWLR 168.

60. Crimes (Sentencing Procedure) Act 1999 (NSW) s 46.

61. Crimes (Sentencing Procedure) Act 1999 (NSW) s 50.

62. Crimes (Sentencing Procedure) Act 1999 (NSW) Part 4 Division 1B. For the application of these provisions, see R v Way (2004) 60 NSWLR 168, and R v Davies [2004] NSWCCA 319.

63. When sentencing offenders convicted of offences against Commonwealth law.

64. These categorisations are general only, and do not otherwise limit the exercise of judicial discretion: see Markarian v The Queen (2005) 215 ALR 213, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

65. Note that legislation sometimes requires judges to specify how much a sentence has been discounted due to certain factors: see Crimes Act 1914 (Cth) s 21E.

66. See Thomson & Houlton (2000) 49 NSWLR 383 and R v Sharma (2002) 54 NSWLR 300 for the effect of a guilty plea on sentencing.

67. See, eg, AB v The Queen (1999) 198 CLR 111; Wong and Leung v The Queen (2001) 207 CLR 584; Cameron v The Queen (2002) 209 CLR 339; R v Sharma (2002) 54 NSWLR 300; R v Whyte (2002) 55 NSWLR 252; and Markarian v The Queen (2005) 215 ALR 213.

68. [2005] 215 ALR 213.

69. Markarian v The Queen (2005) 215 ALR 213, [36] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

70. Markarian v The Queen (2005) 215 ALR 213, [37], [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

71. See discussion at [2.14]-[2.15] above.

72. Crimes (Sentencing Procedure) Act 1999 (NSW) s 61. See also R v Merritt (2004) 59 NSWLR 557.

73. Crimes (Sentencing Procedure) Act 1999 (NSW) Part 4 Division 1A.

74. Although these groups would not normally be allowed to participate in the sentencing procedure themselves.

75. Part 8B. For information concerning the Sentencing Council’s functions, membership and publications, see «www. lawlink.nsw.gov.au/sentencingcouncil».

76. Crimes (Sentencing Procedure) Act 1999 (NSW) s 100I.

77. Crimes (Sentencing Procedure) Act 1999 (NSW) s 100J.

78. Crimes (Sentencing Procedure) Act 1999 (NSW) s 100J(1)(e).

79. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, Crimes (Sentencing Procedures) Amendment (Standard Minimum Sentencing) Bill 2002 (NSW), 23 October 2002, 5818 (Second Reading Speech by the Hon RJ Debus MP, Attorney General).

80. See «www.lawlink.nsw.gov.au/sentencingcouncil» for details.

81. See, eg, NSW Sentencing Council, Report on Sentencing Trends and Practices 2005-2006, accessed at «www.lawlink.nsw.gov.au/scouncil/».

82. See «www.jc.nsw.gov.au».

83. Dealing with sentencing principles and practice.

84. Dealing with sentencing statistics.

85. See, eg, NSWLRC Report 79; New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96 (2000); New South Wales Law Reform Commission, Sentencing: Corporate Offenders , Report 103 (2003). See also New South Wales Law Reform Commission, Sentencing: Young Offenders, Report 104 (2006).

86. Examples of fairly recent publications by the Bureau of Crime Statistics and Research dealing with sentencing issues include S Moffatt, D Weatherburn and J Fitzgerald, “Sentencing Drink Drivers: The Use of Dismissals and Conditional Discharges” (2004) 81 Crime and Justice Bulletin; J Fitzgerald, “Trends in Sentencing in the New South Wales Criminal Courts: 1990-2000” (2001) 62 Crime and Justice Bulletin; and J Baker, “Are the Courts Becoming More Lenient? Recent Trends in Convictions and Penalties in NSW Higher and Local Courts” (1998) 40 Crime and Justice Bulletin. For a full list, see «www.lawlink.nsw.gov.au/bocsar».

87. See «www.lawlink.nsw.gov.au/clrd» for further details.

88. (2005) 215 ALR 213.

89. (2005) 215 ALR 213, [236].

90. Whittaker v The King (1928) 41 CLR 230.