5.1 This chapter addresses the principal factors which courts take into account in determining the sentence of imprisonment which is to be imposed on an offender. The operation of these factors is considered both at common law and under sentencing legislation which has recently been enacted in several Australian jurisdictions. The operation of these factors is very much case-specific both at common law and under legislation. Their effect on sentence determination lies in the discretion of the sentencing officer. The Commission’s tentative view is that this is both appropriate and inevitable to ensure the individualised justice for which sentencing law calls.¹

5.2 A central issue is whether a more rational and consistent approach to sentencing could be achieved by providing legislative guidance as to the factors which should be taken into account in sentence disposition. In most Australian jurisdictions, the legislature has now begun the process of identifying and tabulating relevant factors.² In South Australia, the Australian Capital Territory and under federal law, the lists are permissive in the sense that the courts are required to consider such matters in the list as are relevant and known to the court. But in Queensland, Victoria and the Northern Territory, the legislation requires courts to have regard to the matters in the list. In all cases, the lists are open-ended, non-exhaustive and allow other matters to be taken into account.³ In fact, listed factors represent only a small proportion of those that have been referred to by the courts. The factors are listed in no order of priority or importance and no attempt is made to state whether a particular factor is relevant as an aggravating or mitigating factor,⁴ although this is often obvious - as, for example, where the legislation mentions the “degree to which the person has shown contrition”.⁵ Many of the factors are very general, such as the requirement to consider the “nature and gravity of the offence” and the reference to prior convictions. In a few cases the statutory guideline reverses the common law position. But for the most part the lists merely state factors which would be taken into account at common law.

5.3 The Commission’s tentative view is that the factors relevant to sentencing disposition, the most important of which we discuss in this chapter, ought not to be listed in consolidated sentencing legislation.⁶ Our first, and overriding, reason is that such a listing could lead to a very literal approach which would destroy the flexibility essential to achieving justice in individual cases (as the common law now strives to do). This danger would be magnified if the legislation were seen as a code. Secondly, we are not convinced that the sentencing guidelines recently enacted in other Australian jurisdictions add anything to the common law. It is difficult to see how they promote a more rational or consistent approach to sentencing than does the common law. To the extent to which they do not change the common law, there seems no particular point to them. This is especially true to the extent to which they fail to resolve difficulties which exist at common law - as they tend to do in failing to specify whether certain matters are relevant to aggravation or mitigation;⁷ or failing to deal with difficult concepts.⁸

5.4 Where difficulties do exist, or are perceived to exist, in this area of the common law, the Commission is in no doubt that, generally speaking, they are better resolved by development of the common law, free from the constraints of statute. The attempt to reduce the common law to statutory form runs the risk of creating a lack of clarity and precision in the law. Take two examples:

• The legislation in the Australian Capital Territory now provides that a court shall not increase the severity of the sentence that it would otherwise impose because of the offender’s behaviour in court.⁹ The effect is unclear. The provision clearly means that a sentence cannot be increased because the offender’s behaviour in court showed a lack of remorse, a proposition which accords with the common law.¹⁰ But does it also mean that in considering whether to mitigate the sentence on grounds of remorse, the behaviour of the offender in court cannot be taken into account? This would reflect neither the common law nor common sense.¹¹
• It would be extremely difficult to reduce to statutory form the many variable factors which may need to be taken into account when considering the sentencing of a woman without reinforcing outmoded stereotypes of womanhood;¹² or the many factors which are relevant to sentence in cases of misappropriation of property involving a breach of trust.¹³

In short, the Commission agrees with the dissenting opinions expressed in the Australian Law Reform Commission that “[w]hat is needed here is the development of principle, not an exercise in statutory interpretation”.¹⁴

5.5 In this chapter we identify areas where we think that the common law may need reform. We have, however, deliberately refrained from making specific proposals for reform in this area of the law. We have chosen instead either to state the arguments for or against particular propositions or to indicate our provisional support for one view or another. In both cases, we seek community input into what the law ought to be. We also invite comments on whether reform in any particular area should be left to the common law or should be imposed by statute.

5.6 The purpose of this chapter is three-fold. First, to draw attention to the wide variety of matters which the court must take into account in sentencing offenders. This adds substance to the point, made in Chapter 2, that no two cases are identical, either by reason of the circumstances of the offence or by reason of factors pertaining to the offender. Arguments about sentence disparity must bear this in mind. Secondly, to isolate any particular factors which may be in need of reform with a view to eliciting submissions concerning them. Thirdly, to outline how the various factors are translated in practice into a sentence of imprisonment.¹⁵

5.7 The factors considered by the courts fall into five broad categories,¹⁶ namely, those:

• relevant to the nature of the offence;
• relevant to the nature of the offender;
• relevant to the offender’s response to the charges;
• relating to the effect of the offence and sanction; and
• relating to the relevance of the sentence imposed on a co-offender.

FACTORS RELEVANT TO THE NATURE AND GRAVITY OF THE OFFENCE

5.8 The nature and gravity of the offence is obviously a central consideration affecting sentencing discretion. With the proviso that the facts cannot be relied on by the sentencing court as constituting the ingredients of a more serious offence than the offence of which the offender has been convicted,¹⁷ the gravity of an offence in a particular case will depend on the facts relating to the offence including the objective circumstances and the offender’s state of mind. The gravity of a particular offence type is determined by the legislative view of gravity and, perhaps, by the prevalence of the offence.

Legislative view of gravity: steering by the maximum

5.9 Courts have long recognised that they are to have regard to the maximum penalty as an indication of the gravity of the offence. As Chief Justice Street indicated in R v Oliver:

The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed ... this reflects a legislative view of the seriousness of the criminal conduct.¹⁸

Courts should pay due regard to legislative policy which fixes the statutory maxima to determine how seriously a particular crime should be regarded even where there are inconsistencies in the relativities of the various maxima.¹⁹

5.10 An elaboration of the requirement that courts have regard to the maximum penalty is the principle that the maximum penalty is reserved for the worst type of case falling within the relevant prohibition.²⁰ In Veen v The Queen (No 2), Chief Justice Mason and Justices Brennan, Dawson and Toohey explained that this principle

does not mean that a lesser penalty must be imposed if it can be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.²¹

This is an important principle because its observance secures proportion and comparability among sentences.²² The principle applies even if the maximum is thought by the judge to be too high. As Justice Hunt said in R v Hawkins: “It is none of his or her business to say that the maximum provided is too high. That is a matter for the legislature, not for the individual judge.”²³ There is some conflict about whether the principle applies when the maximum is thought to be too low,²⁴ but equally that should be none of the court’s business.

5.11 Courts must also have regard to a number of other factors as indicators of the legislative view of gravity of offence:

• minimum penalties;²⁵
• increases in statutory maxima;²⁶
• other legislative change in relation to the offence;²⁷
• legislative reductions;²⁸ and
• international covenants ratified by Australia.²⁹

5.12 Clearly, in the light of these principles, it is important that the legislation is consistent in the penalty provisions it imposes, properly reflecting the seriousness of individual offences in prescribed statutory maxima. The manner in which this should be done will form the focus of the third phase of this inquiry by the Commission into sentencing law.³⁰

Prevalence of the offence

5.13 The principle that prevalence of an offence is a valid consideration when imposing sentence and one which justifies an increased penalty gained early recognition³¹ and has been repeated many times. It applies in relation to increased prevalence of a particular offence generally;³² of a particular offence committed by a particular group;³³ or of a particular offence in a particular locality.³⁴ The rationale for justifying an increased penalty on the basis of prevalence is usually based upon general deterrence. It follows that the argument for an increased penalty on the basis of prevalence is stronger in cases where the offence is regarded as being susceptible to general deterrence. In R v Peterson, Chief Justice Burt said:

[I]t must be accepted that the prevalence of a particular offence in a particular locality or generally at the time of the commission of the offence to be dealt with must play some part in the sentencing process, particularly in emphasising the importance of general deterrence.³⁵

The much discussed question of the effectiveness of imprisonment as a deterrent to crime, and in particular of the effectiveness of increased levels of punishment, was adverted to during argument. I think that it must be conceded that there is no proven correlation between the level of punishment and the incidence of crime and that there is no clear evidence that increased levels of punishment have an effect upon the prevalence of crime. Nevertheless the criminal justice system has always proceeded upon the assumption that punishment deters and that the proper response to increased prevalence of crime of a particular type is to increase the level of punishment for that crime. I think that courts have to make the assumption that punishments which they impose operate as a deterrent.³⁷

5.16 The courts limit the reliance they place on prevalence by ensuring that the sentence must not be greater than the nature and circumstances of the offence call for,³⁹ and by insisting that increased prevalence is properly ascertained.⁴⁰ However, courts have not always been rigorous in the way they ascertain prevalence, relying on unsupported generalised statements and personal knowledge.⁴¹ There is a strong argument that if prevalence is to be relied on, it should be properly established.⁴²

5.17 A sentencing judge is entitled to impose a sentence that exceeds the normal range on the ground of prevalence, but warnings of the need for an increased range are useful and the absence of a prior warning of an increase may be relevant in deciding whether a sentence is manifestly excessive.⁴³ But as the High Court indicated in Poyner v The Queen,⁴⁴ where the prevailing standard appears to the sentencing judge to be too lenient, there is no binding principle which requires courts to give a warning before a penalty in excess of the prevailing standard can be imposed. Some appeal courts have shown a reluctance to increase the range for a particular offence on the grounds of prevalence. Thus Justice Dowsett once said in the Queensland Court of Criminal Appeal that to offer an opinion as to the appropriate range, is to give an advisory opinion, something which appeal courts at common law have declined to do.⁴⁵ Other appeal courts have not always been so coy.⁴⁶

5.18 The Australian Law Reform Commission recommended that prevalence not be included in the list of factors relevant to sentence. This recommendation was grounded in the Commission’s rejection of general deterrence as a justification for punishment.⁴⁷ It was also based on the difficulty of courts obtaining the necessary statistics to determine whether there had been an increase in the particular offence.⁴⁸ Legislation in the ACT now expressly provides that prevalence is not to be taken into account to increase a penalty.⁴⁹ By contrast, the Queensland and Northern Territory courts are required to take prevalence into account.⁵⁰ Prevalence is not mentioned in the list of factors in the Commonwealth statutory sentencing guidelines, nor is it mentioned in the Victorian or South Australian guidelines. In these jurisdictions, prevalence remains relevant by virtue of the common law.

Premeditation and execution

5.19 Case law establishes that:

• the fact that a crime is carefully and deliberately planned is an aggravating factor;⁵¹
• the degree of premeditation may be inferred from the amount of planning, which in turn may be inferred from a variety of factors, such as choice of target and attempts at disguise;⁵²
• provocation is a factor mitigating crimes of violence;⁵³
• the use of a weapon is an aggravating factor;⁵⁴
• if a violent offence is committed in company this is aggravating.⁵⁵

5.20 The Australian Law Reform Commission recommended that degree of intention, premeditation and planning and whether or not a weapon was used be included in sentencing guidelines.⁵⁶ Legislation in the Australian Capital Territory includes the reason or reasons why the person committed the offence as a relevant factor⁵⁷ and, following the Australian Law Reform Commission, makes relevant the degree to which the offence was the result of provocation, duress or entrapment.⁵⁸

5.21 The issue of provocation is difficult in two respects. First, while it is clear that in many cases a provoked act of violence is regarded as less culpable than a premeditated one, in the context of non-consensual sexual offences, provocation or encouragement is controversial. Despite some judicial support for the proposition that behaviour of the victim interpreted by the offender as an indication that she⁵⁹ may consent to intercourse is mitigating,⁶⁰ such an approach serves to preserve the myth that men cannot control their behaviour beyond some hypothetical point.⁶¹ The Commission’s tentative view is that this is undesirable and that a distinction should be made between non-sexual assaults (where provocation should be relevant) and sexual assaults (where provocation ought not to be relevant). Secondly, it is sometimes difficult to draw a distinction between provocation which is mitigating and acts of revenge for a victim’s prior unlawful acts. While courts have quite properly condemned offenders who take the law into their own hands, a concession is sometimes made to the fact that the victim is not entirely innocent or that the offender believed the victim had committed an offence.⁶²

5.22 The Commission endorses the approach which holds that the use of a weapon is an aggravating factor in sentencing. In our view, there is a need to discourage the use of weapons, and firearms in particular. The Commission does not, however, support the employment of mandatory increased penalties for use of firearms in the course of the commission of an offence.

Degree of participation

5.23 Courts have referred to the obvious fact that a sentence should reflect the degree of participation of an offender in an offence, so that an offender who is a principal, ringleader or instigator in a criminal venture may expect a more severe sentence than a follower or mere paid agent.⁶³ But in the case of drug trafficking while participation of a lower order must be reflected in the sentence imposed,⁶⁴ persons with a lesser role are not treated with the same degree of leniency as in other crimes.⁶⁵

5.24 Despite the recommendation of the Australian Law Reform Commission to include level of participation as a factor in sentencing guidelines,⁶⁶ no jurisdiction has been so explicit. Guidelines in Queensland, Victoria, the Northern Territory and the Australian Capital Territory cover the issue of degree of participation in more general terms by providing that courts are required to take into account “the extent to which the offender is to blame for the offence”,⁶⁷ or “the offender’s culpability and degree of responsibility for the offence”.⁶⁸ These provisions are wide enough to cover issues in addition to degree of participation, such as issues of premeditation and the mental capacity of the offender.

Breach of trust

5.25 Where circumstances of the offence indicate a breach of confidence or trust by the offender an increased penalty is warranted.⁶⁹ Such a breach attracts an additional penalty on a number of grounds. First, breach of trust adds to the gravity of the crime and justice demands a heavier penalty. Secondly, if public officers or professionals in a position of trust commit offences, public confidence is seriously undermined and so denunciation of such conduct is required.⁷⁰ Thirdly, the difficulty of detection and proof of such offences requires a general deterrent penalty.⁷¹ Moreover, cases of “white collar crime”, which often involve a degree of planning, are more appropriate vehicles for general deterrence than crimes of violence.⁷²

5.26 Cases involving breach of trust most commonly occur in relation to defalcation by professionals, agents or trusted employees. But they are not limited to misappropriations of money or property. Offences by public officials involving corruption involve a breach of trust.⁷³ Sexual offences may have an element of breach of trust.⁷⁴ Sometimes drug offences may have such an element.⁷⁵

5.27 Offences committed by police officers and solicitors may also involve a breach of trust. Offences committed by police officers are seriously regarded because of their special position in relation to all offences. In R v Wright (No 2),⁷⁶ the Victorian Court of Criminal Appeal suggested that any offence committed by a police officer, whether committed on duty or not, is a breach of trust because of the oath taken by police officers “to preserve the peace and to put down offenders”. This has particular significance in relation to offences concerned with the administration of justice.⁷⁷ Similarly, the position of a solicitor is also an aggravating factor for the offence of attempting to pervert the course of justice.⁷⁸ But, unlike the position of police officers, an offence committed by a solicitor is not aggravated when it was not committed in the capacity of a solicitor, although it is of relevance in indicating his or her awareness of the criminality of the conduct involved.⁷⁹

5.28 By way of elaboration of the force of breach of trust as a factor affecting sentence in cases of misappropriation, the English Court of Appeal delivered a guideline judgment in R v Barrick.⁸⁰ The following were matters which were listed as those to which a court may wish to have regard in determining the proper level of sentence for such an offence:

• the amount of money or value of property obtained;
• the quality and degree of trust reposed in the offender including his or her rank;
• the period over which the fraud or thefts have been perpetrated;
• the use to which the money or property was put;
• the effect upon the victim;
• the impact of the offences on the public and public confidence;
• the effect on fellow employees or partners;
• the effect on the offender;
• matters of mitigation - such as illness, being placed under great strain or excessive responsibility, delay and co-operation with the authorities.⁸¹

Consequences and impact on the victim

5.29 In a number of jurisdictions it is expressly provided by statute that any injury, loss or damage resulting from the offence is a matter to be taken into account in passing sentence.⁸² The common law position is that the consequences of criminal acts may properly be taken into account in considering punishment,⁸³ provided that to do so would not involve sentencing the offender for a more serious offence.⁸⁴ It does not follow that because a criminal act does not cause injury it may not be punished severely.⁸⁵ The potential for serious injury is still an important factor,⁸⁶ but at the same time it is relevant that no physical harm or enduring psychological disturbance was caused.⁸⁷ As the Victorian Full Court said in Webb:

It is always open to a judge to have regard to the fact that no evil effect resulted from the crime to a victim. That is a common occurrence and a fact quite properly taken into account. But conversely, a learned judge is quite entitled, in our view, to have regard to any detrimental, prejudicial, or deleterious effect that may have been produced on the victim by the commission of the crime.⁸⁸

5.30 The cases have also made the point that the occupational status of the victim may be an aggravating factor. Where the victim is a police officer acting in the execution of his or her duty, the offence is viewed seriously by the courts pursuant to their duty to vindicate the authority of the police by imposing a substantial punishment.⁸⁹

5.31 But there are a number of matters in relation to consequences and victim impact which are controversial and which the Commission identifies as possibly being in need of clarification. These are:

• the responsibility of the offender for unforeseeable consequences;
• the relevance of youth or vulnerability as an aggravating factor;
• the sexual experience of the victim in the case of sexual offences; and
• the wishes of the victim in relation to sentence.

Unforeseeable consequences

5.32 Courts have generally refused to have regard to unforeseeable consequences. In R v Boyd⁹⁰ it was suggested that if the consequences are not such as could have been reasonably foreseen by the offender, they should not be used against him or her, but if they ought to have been foreseen they are relevant. In Boyd the consequences were criminal acts of a third person. But the decision has been relied upon to support the general proposition that a sentencer should only have regard to reasonably foreseeable consequences.⁹¹ This is contrary to the Tasmanian decision in R v Wise where Justice Crisp suggested that “consequences may be material to sentence, whatever be the consequences of strict morality”.⁹² The problem with this approach is that it ignores the fact that the imposition of criminal responsibility is determined by reference to the offender’s culpability, not by reference to the consequences of the offender’s conduct.⁹³ For this reason the Commission does not support a general rule that an offender should be liable at sentencing for consequences which are unforeseeable. The Commission does not, however, object to the admission of evidence of actual injury for the purposes of demonstrating the objective seriousness of the offence.⁹⁴ And we note that where the consequences of an offence are the direct effect of the offender’s acts, for example the impact on the victim of injuries inflicted on that victim by the defendant, it is unlikely that those effects will be excluded from consideration on the basis that they were not foreseen or necessarily foreseeable.⁹⁵

Youth and vulnerability

5.33 In a number of cases, courts have suggested that youth of the victim is an aggravating factor in sexual offences by calling for sentences in the upper range when the victim is very young.⁹⁶ Similarly, it has been suggested that if the victim suffers from some incapacity, such as old age, ill health, mental retardation or a physical handicap, a more severe sentence will also be called for.⁹⁷ Heavier sentences can be justified on the grounds that public perception demands a greater degree of denunciation in such cases, but it should not be assumed that the impact of the offence on a very young victim is necessarily greater. In R v Rogers⁹⁸ the Supreme Court of Western Australia referred to the lack of evidence as to whether harm is more likely in the case of younger victims of sexual assault. The Commission’s tentative view is that courts should not assume that any particular category of victim is likely to have suffered more or less harm than another category of victim. On the other hand, it is legitimate to take into account public feelings of outrage; for example, in the case of rape of a very young child or a very old woman.

The sexual experience of victims in the case of sexual offences

5.34 The relevance of the character or occupation of the victim is, in this instance, controversial. Some judicial comments suggest that the rape of a “woman of good repute”, an “ordinary decent housewife” necessarily deserves a more severe sentence than the rape of someone without such a reputation.⁹⁹ In two Victorian cases, R v Harris¹⁰⁰ and R v Hakopian,¹⁰¹ the fact that the complainant was a prostitute was treated as a mitigating factor on the basis that “the likely psychological effect on the victim of forced [sex] is much less of a factor in this case and lessens the gravity of the offences”.¹⁰² The decision in Hakopian attracted a storm of criticism,¹⁰³ the Victorian Sentencing Manual¹⁰⁴ preferring the approach of Justice Howse in R v Henry:

[P]rostitutes are entitled to the same protection from the law as are chaste women. It would be unthinkable that the courts would apply one law for prostitutes and another for chaste women. However in assessing the heinousness of crimes of this kind, it is quite proper to take into account the likely and actual effect of the crime on the victim, psychiatrically, psychologically and otherwise. In this connection the previous and then current sexual experience of the victim is significant.¹⁰⁵

This accords with the law in New South Wales, where courts have generally rejected the proposition that the crime is less serious because the victim is a sex worker,¹⁰⁶ and where Justice Kirby has said that Hakopian is wrong.¹⁰⁷

5.35 More generally, the relevance of the sexual experience of the victim has been challenged on the grounds that it diverts attention from the offence to a judgment of the victim, fostering assessments of them along a continuum of good and bad and encouraging assumptions that the more sexually experienced are closer to the bad end of the continuum than are the less experienced. The Commission agrees with Zdenkowski that such assumptions confuse sex and sexual assault.¹⁰⁸ The frequency of consensual sexual activity is irrelevant to psychological capacity to deal with the violence inherent in non-consensual sex. Moreover the use of prior sexual history in this way undermines legislative attempts to exclude sexual history from sexual assault trials.¹⁰⁹ A possible solution is to refuse to allow prior sexual history or occupation to be a mitigating factor in sentencing.¹¹⁰ Rather, it is something that could be raised by the prosecution if it were thought to be a factor that aggravated the offence. This would allow for it to be used in cases where loss of virginity has some special status in respect of marriageability, as it has in some ethnic communities.¹¹¹ Perhaps it could even be used where the impact of a sexual assault on a sex worker has resulted in loss of employment.¹¹²

The wishes of the victim in relation to sentence

5.36 There are differing views about the relevance of the wishes of the victim. The general rule appears to be that the wishes of the victim are not taken into account in sentence determination.¹¹³ But in a case of attempted murder of his former de facto wife and the wounding of her friend, the Tasmanian Court of Criminal Appeal regarded the fact the complainants had forgiven the applicant and did not wish any punishment to be imposed was relevant. While not determinative, Chief Justice Green stated this was a factor which militated against giving much weight to considerations of retribution or denunciation in the sentence.¹¹⁴ A similar approach is taken in New Zealand.¹¹⁵

5.37 Taking the wishes of victims into account in imposing sentence can, perhaps, be supported as an extension of the principle which makes restitution to the victim a relevant factor.¹¹⁶ It can also be argued that, in the interests of balance, the views of the victim should be relevant. The Commission is, however, of the view that the wishes of the victim are irrelevant in the sentencing process.¹¹⁷ If weight is to be given to victim’s wishes for leniency, undue pressure could be brought to bear on victims to express forgiveness, especially in domestic violence cases¹¹⁸ It is difficult to see why considerations of denunciation and retribution should be muted in cases of violence. To have regard to victim’s wishes in cases of violence suggests the matter is a private one with an outcome that can be negotiated with the victim, rather than a public wrong and a public evil deserving of condemnation.

FACTORS RELEVANT TO THE NATURE OF THE OFFENDER

Prior convictions

5.38 Section 9(2)(f) of the Penalties and Sentences Act 1992 (Qld) requires a court to have regard to “the offender’s character” in passing sentence and s 11(a) directs a court to consider the number, seriousness, date, relevance and nature of previous convictions of the offender in determining character. The Victorian and Northern Territory guidelines have similar provisions.¹¹⁹ Section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA) and s 16A(2)(m) of the Crimes Act 1914 (Cth) merely make the character and antecedents of the defendant relevant to sentence without further elaboration, although paragraph (b) in each section makes the course of criminal conduct relevant if the current offence “forms a part of a course of conduct consisting of a series of criminal acts of the same or a similar character”. These guidelines do not assist the courts in determining what weight is to be given to prior convictions. Section 7(2)(b) of the Western Australian Sentencing Act 1995 adopts a different approach by including the offender’s criminal record in the list of factors which are not aggravating.

5.39 It has long been the practice for courts to punish repeat offenders more severely than those who have not previously been convicted.¹²⁰ But the principle of proportionality places limits on the extent to which a punishment can be increased because of prior criminality. In Veen No 2¹²¹ the High Court made it clear that previous convictions cannot justify a sentence that is longer than is appropriate to the gravity of the current offence either to extend the period of protection of society from the risk of recidivism by the offender or to act as a deterrent. The judgment of the majority (Chief Justice Mason and Justices Brennan, Dawson and Toohey), rejected the applicant’s submission that antecedent criminal history was relevant only to an offender’s claim for leniency. Rather:

It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.¹²²

• not all prior offences are of equal weight: more weight is given to offences of the same character, and convictions in the children’s court are of little relevance;¹²³
• to be relevant a prior offence does not have to be an offence committed and dealt with before the commission of the instant offence;¹²⁴
• a gap in an offender’s prior record may be mitigating;¹²⁵ and
• “stale offences” (that is, those remote in time from the instant offence) are generally regarded as irrelevant.¹²⁶

5.41 It is a “cardinal rule”, at common law, that an otherwise good character may operate to reduce the sentence which the facts of the crime would otherwise attract.¹²⁷ Moreover the courts have suggested the following qualifications to the rule that good character is mitigating:

• little weight is given to prior good character when the offence is not an isolated act;¹²⁸
• persons holding high public office who commit a crime relating to that office cannot expect much weight to be given to prior good character;¹²⁹
• prior good character is of less significance in sentencing drug traffickers;¹³⁰ and
• less weight is given to good character when the need for general deterrence is strong.¹³¹

5.42 The Commonwealth and South Australian statutory sentencing guidelines refer merely to the relevance of “character” and “antecedents”.¹³² The Victorian and Queensland legislation elaborate on the relevance of character by providing that in determining the character of an offender a court may consider as well as criminal record, “any significant contributions made by the offender to the community” and in Victoria, “the general reputation of the offender”.¹³³

Age

5.43 Sentencing guidelines of the Commonwealth and of Queensland, South Australia, the Northern Territory and the Australian Capital Territory merely specify “age” as a relevant consideration without further elaboration.¹³⁴ The common law is more explicit: reform is the dominant consideration in sentencing young offenders and imprisonment is to be avoided wherever a reasonable alternative is open. The dominance of rehabilitation as the goal of punishment in the case of young offenders has survived the general decline in popularity of rehabilitation as a sentencing goal.¹³⁵ A young offender in this context is generally accepted as a person under the age of 21. The rationale for the principle is that the public interest is better served by seeking to avoid the damaging impact of imprisonment on a young offender thereby maximising the chances of rehabilitation. While this principle has often been repeated and applied¹³⁶ (especially where the young offender is being sentenced for a first offence),¹³⁷ exceptions to the principle are recognised in the case of:

• “a crime of considerable gravity”;¹³⁸
• “a persistent offender who has shown himself not amenable to disciplinary methods short of gaol”.¹³⁹

5.44 In the case of old offenders, courts have regarded the diminishing life expectancy of the offender as relevant to sentence and have had regard to the need to preserve some measure of life after release.¹⁴⁰ But such considerations cannot be allowed to be a justification for an “unacceptably inappropriate sentence”.¹⁴¹

5.45 These principles, particularly in relation to young offenders, are well known and relatively uncontroversial. However, it is arguable that the need to avoid the damaging effects of imprisonment on young offenders requires some practical reinforcement. To an extent, this will come from adoption of the Commission’s proposal that the use of terms of imprisonment of less than six months must be expressly justified.¹⁴² Section 9(4) of the Penalties and Sentences Act 1992 (Qld) provides a further possible model. It states that offenders under the age of 25 who have not previously been convicted cannot be sentenced to imprisonment unless all other sentences have first been considered and the court has considered the desirability of not imprisoning a first offender.

Sex

5.46 Judicial pronouncements as to the relevance of sex to sentencing are conflicting. Some courts assert that, as a general principle, the law does not treat males and females differently in the sentencing process. The Court of Criminal Appeal said in R v Kelso:

It has been urged upon us that [the sentence] was out of proportion to other sentences imposed upon women who are convicted or plead guilty to manslaughter. There has been no authority to which we have been referred which discloses that the court, or any court, has based its imposition of sentence upon a woman that she should receive a lesser sentence than a man. There is no basis in our view for adopting that approach to sentencing.¹⁴³

5.47 Whether on not the fact of being female alone should justify a lesser sentence, there are some circumstances in which being female is clearly relevant to sentence. Considerations of pregnancy and the needs of very young children are obvious examples. In such cases a woman may have more success in arguing that the impact on dependants should be taken into account in sentence,¹⁴⁶ or at least that the circumstances are so exceptional as to attract the exception to the general common law principle that hardship to others is not a relevant sentencing consideration.¹⁴⁷ As well, the cultural background of the offender may assume particular importance if the offender is female. In R v Bibi,¹⁴⁸ an English case, allowance was made for the fact that the female offender implicated in offences committed by males was a Muslim with a traditional role subservient to men.

5.48 While it is sometimes claimed that women are, in practice, treated more leniently than men at the sentencing stage of the criminal process,¹⁴⁹ such assertions are largely unsubstantiated.¹⁵⁰ Empirical evidence from research in the US and the UK has produced conflicting results. If female offenders are treated more leniently for some offences, it is unlikely to be true for all offences or for unconventional women who are perceived to have offended moral standards or to have repudiated their femininity.¹⁵¹

5.49 Whether a more lenient approach to the sentencing of female offenders is justified is a matter of debate. On the basis that prevalence is relevant to sentence, including prevalence by a particular group of offenders,¹⁵² the undoubted low incidence of female criminality justifies less weight being given to general deterrence and consequently less severe sentences. But, while a decision of the Victorian Court of Criminal Appeal suggests that lower recidivism rates justify leniency,¹⁵³ this is only relevant if there were evidence that sex is independently related to recidivism rates. Another ground on which leniency could be justified is suggested in R v Neal, where Justice Brennan said:

The same principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts, including those facts which exist only by reason of the offender’s membership of an ethnic or other group.¹⁵⁴

Race

5.50 In practice courts have adopted a more lenient approach when sentencing Aboriginal offenders particularly those living on reserves and in remote areas.¹⁵⁷ The practice is justified not by reference to race alone, but to the social economic and other disadvantages suffered by Aboriginal offenders. In R v Neal¹⁵⁸ the High Court considered a case where a sentence of two months imposed on an Aboriginal offender for assault by spitting at the white manager of the local store on the reserve had been increased on an appeal against the severity of sentence. The relevance of living conditions on Aboriginal reserves was considered by both Justices Murphy and Brennan. Justice Murphy stated that race conditions and race relations present a special mitigating factor in Australia and the fact that the applicant was in a position of inferiority in relation to the whites managing the reserve should have been treated as a special mitigating factor in imposing sentence.¹⁵⁹ For Justice Brennan the fact that the incident was accounted for by the problems of life on the reserve was a relevant mitigating factor.¹⁶⁰ His Honour said:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the administration of justice.¹⁶¹

Similar views have been expressed, and developed, in a number of other courts.¹⁶²

5.51 In making allowance for “those facts which exist by reason of an offender’s membership of an ethnic or other group”, courts have made a number of concessions in relation to Aboriginal offenders:¹⁶³

• alcohol may be treated as a larger mitigating factor than in the case of non-Aboriginal offenders;¹⁶⁴
• the likely impact of a custodial sentence should be taken into account where it is likely to have greater impact on an Aboriginal offender;¹⁶⁵
• cultural beliefs may be a mitigating factor;¹⁶⁶
• tribal punishment or traditional pay back is a matter properly to be taken into account;¹⁶⁷
• the wishes of the tribal community of an offender regarding sentence are relevant;¹⁶⁸ and
• forthcoming tribal ceremonies may be a relevant factor.¹⁶⁹

5.52 Notwithstanding recommendations from the Australian Law Reform Commission for legislative endorsement of the principles relating to the relevance to sentence of Aboriginality,¹⁷⁰ general sentencing guidelines do not include reference to the cultural background of the offender. The only exceptions are s 429A(1)(k) of the Crimes Act 1900 (ACT) and some juvenile justice legislation.¹⁷¹ The Australian Law Reform Commission recommended as follows:

A general legislative endorsement of the practice of taking Aboriginal customary laws into account is appropriate. It should be provided in legislation that, where a person who is or was at the relevant time a member of an Aboriginal community is convicted of an offence, the matters that the court shall have regard to in determining the sentence to be imposed on the person in respect of the offence include, so far as they are relevant, the customary laws of that Aboriginal community, and the customary laws of any other Aboriginal community of which some other person involved in the offence (including a victim of the offence) was a member at the relevant time.¹⁷²

Illness and physical disability

5.54 The principle is well accepted that ill health or physical disability is mitigating where it renders punishment more burdensome or where there is a risk of imprisonment having a grave effect on health.¹⁷⁴ It received the endorsement of the High Court in R v Bailey.¹⁷⁵ At the same time it is also well accepted that ill health or disability will not allow an offender to escape punishment for a serious crime.¹⁷⁶ It has also been held that physical disability such as blindness and deafness can so affect an offender’s perceptions of the world and beliefs as to right and wrong that moral culpability is greatly reduced.¹⁷⁷

Mental disorder

5.55 Apart from referring generally to culpability, statutory sentencing guidelines merely make mental condition a relevant factor together with character and age.¹⁷⁸ The courts have endeavoured to elaborate on the relevance of mental disorder and to confront the issue of the fact that mental disorder may suggest a reduced sentence because of reduced responsibility, but an increased sentence because of the need to protect the public. A reduced sentence can be justified on grounds of reduced culpability and less weight to retribution.¹⁷⁹ A mental disorder, because of the chance of rehabilitation by psychiatric treatment, may provide grounds for a non-custodial sentence.¹⁸⁰ General deterrence is a factor which should often be given little weight in the case of an offender suffering from a mental abnormality because such an offender is not an appropriate medium for making an example to others.¹⁸¹ But where there is evidence that the offender has a propensity for further offences due to a mental disorder, it is not appropriate to reduce the sentence because of the offender’s mental state without regard to the fact that such a mental state rendered the offender a risk to society.

5.56 The leading decisions on preventive detention of mentally disordered offenders are the High Court decisions in Veen (No 1)¹⁸² and Veen (No 2).¹⁸³ In the first decision the High Court quashed a life sentence imposed on an Aboriginal homosexual prostitute, who on a charge of murder had been found guilty of manslaughter on the basis of diminished responsibility, and possibly provocation. In the circumstances the sentence was too severe. According to Justices Jacobs, Stephen and Murphy, the trial judge’s justification of the life sentence on the basis of the likelihood of reoffending infringed the principle that a person must be given the sentence appropriate to the crime and no more. Justice Murphy warned: “Take care that the punishment does not exceed the guilt”.¹⁸⁴ While all the justices, except Justice Murphy, would allow the extension of a sentence on a mentally disordered offender to protect society, it was made clear that the sentence must remain proportionate to the crime. Veen (No 1) was applied by the Court of Criminal Appeal in R v Leaver,¹⁸⁵ an appeal from a life sentence imposed for inflicting grievous bodily harm with intent, where the offender, a borderline defective with serious personality difficulties and a record of offences of violence, caused brain damage to an eleven year old boy by striking him on the head a number of times with a claw hammer. A life sentence was upheld on the basis that viewed objectively, and without resort to the circumstance that the appellant was a danger to society, the offence warranted a life sentence. The appellant’s background, mental condition and antecedents afforded no grounds for declining to impose that sentence.

5.57 In Veen (No 2), the High Court again had occasion to consider the issues of the relevance of mental disorder and dangerousness to sentence. Ten months after his release on licence under the sentence of 12 years imposed by the High Court, Veen again stabbed and killed another homosexual. A plea of guilty to manslaughter was accepted on the basis of diminished responsibility. A life sentence was upheld by a majority of the High Court (Chief Justice Mason, Justices Brennan, Dawson and Toohey) on the grounds that the case was in the worst category, Veen’s mental abnormality made him a grave danger to society and a life sentence was appropriate in all the circumstances. Justices Wilson, Deane and Gaudron dissented, considering that, in the light of the errors of principle by both the trial judge and the Court of Criminal Appeal, the matter should be remitted to the Court of Criminal Appeal for reconsideration. The case clearly affirms the principle decided in Veen (No 1) that, while the need to protect the community from a dangerous offender is a matter relevant to sentence, the sentence should not be increased beyond that which is proportionate to the gravity of the offence in order to protect society. As Chief Justice Mason, Justices Brennan, Dawson and Toohey said in Veen (No 2):

The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No 1) that a sentence should not be increased beyond that which is proportionate to the crime in order to merely extend the period of protection of society from the risk of recidivism on the part of the offender ...¹⁸⁶

5.58 There are, however, differences between the majority and the minority in the interpretation of Veen (No 1) and in how a proportionate sentence is to be calculated. The majority interpreted the leading majority judgment of Justice Jacobs as determining a proportionate sentence by reference to all the facts of the case, including the mental condition of the offender.¹⁸⁷ But Justice Wilson (with whom Justices Deane and Gaudron agreed) stated that the decision stands as authority for the proposition that a sentence should not be increased beyond the longest sentence that the “objective” features of the offence warrant.¹⁸⁸ It is clear that their Honours intended “objective features” to exclude matters personal to the offender, including mental disorder and future dangerousness. On this view, matters personal to the offender are relevant only to the question of whether the case admits of any leniency being shown to the offender.¹⁸⁹ The mental condition of an offender may justify a degree of leniency, but if the offender is potentially a danger to society, protection of the community may deny any resort to leniency.¹⁹⁰ The majority, on the other hand, state “protection of society is a factor in determining a proportionate sentence”,¹⁹¹ but also that “consideration of danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental disorder”.¹⁹² The majority view, of course, represents the law.¹⁹³ However, there are, undoubtedly, misconceptions as to what the law is.¹⁹⁴

5.59 The mental condition of the offender is a difficult matter, perhaps one on which judges may fairly expect some guidance from Parliament. The Commission’s tentative view is that any reform of this area of the law should make it clear that the mental disorder of an offender justifies less weight being given to considerations of general deterrence and retribution. It may also need to state that where there is evidence that the offender is likely to be a danger to the public, a sentence cannot be imposed which is disproportionate to the gravity of the offence assessed according to the objective facts of the offence. A further point which could usefully be considered is suggested by s 429A(r) of the Crimes Act 1900 (ACT), which requires a court to have regard to whether a person is voluntarily seeking treatment for any physical or mental condition which may have contributed to the commission of the offence. There is common law support for the relevance of such a matter.¹⁹⁵

Intellectual disability

5.60 As with mental disorder, the intellectual disability of an offender is mitigating where it reduces culpability.¹⁹⁶ Again, general and personal deterrence are of less relevance in sentencing persons with an intellectual disability.¹⁹⁷ Courts have treated intellectually disabled offenders in the same way as mentally disordered offenders in relation to the issue of protection of the public, recognising that the relevance of protection of the public is subject to the principle asserted in Veen (No 1).¹⁹⁸ In R v Roadley¹⁹⁹ a sentence of 6 years imprisonment for sexual penetration of a six year old boy, imposed on a 40 year old paedophile with a mental age of five or six so he could be detained in a psychiatric unit for intellectually disabled offenders, was set aside on the ground that neither the lack of appropriate social security services nor the need to protect the public, justified imprisonment, which in the light of the offence and the offender’s intellectual disability, was inappropriate and disproportionate.

Substance abuse

5.61 With a number of exceptions (including the case of Aboriginal offenders),²⁰⁰ courts have generally refused to regard a state of intoxication at the time of the commission of an offence as extenuating. For example, in R v De Jesus,²⁰¹ it was argued that sentences for rape, unlawful detention and indecent assault were manifestly excessive having regard to the high state of intoxication of the applicant at the time of the commission of the offences. Rejecting this submission, Justice Smith (with whom Justice Rowland agreed), said:

Such a ground cannot sustain a great deal of argument. It may be that these offences came to be committed because the applicant had far too much to drink on each occasion but it has been repeatedly stated in this Court that drunkenness will not be taken into account as a mitigating factor. The day has long past when somebody can come along and say, ‘I have committed these offences but I was full of drink’.²⁰²

5.62 In fact in the case of crimes of violence, the effects of alcohol or drugs may aggravate the seriousness of the offence. Justice Zelling of the Supreme Court of South Australia acknowledged this in R v Sewell,²⁰³ where he pointed out that an assault by a person under the influence is more frightening to the average person than an assault by a sober person. Similarly, Justice Wright of the Supreme Court of Tasmania was unimpressed by the claim that intoxication was a mitigating factor in cases involving a lethal weapon:

Indeed, it cannot be left out of account that a drunken man, wielding a lethal weapon such as a shot gun, greatly enhances the potential for disaster, particularly if the victim of the assault sees his only hope of salvation in attempting to wrest the weapon from his assailant.²⁰⁴

5.63 Even when substance abuse amounts to an addiction, it is not a mitigating factor, at least in relation to serious crime. So the fact that an offence was committed to obtain money to support a drug habit is “of little consequence in mitigating the sentence to be imposed”.²⁰⁵ In R v Speiro, a case of armed robbery, Chief Justice King said:

One feels sympathy for a person who has become entangled in drug addiction, but the courts cannot treat addiction as an excuse, or even a mitigating factor, in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same severe punishment as would be received by others.²⁰⁶

5.64 In some situations the courts have shown more sympathy:

• where there is something which either wholly or partly explains the taking of alcohol or drugs - for example, addiction arising from a painful disease or medical treatment;²⁰⁷
• where the offender has been cured of the addiction or the promise of rehabilitation is great;²⁰⁸
• in the case of Aboriginal offenders; ²⁰⁹
• where the offence is out of character;²¹⁰ and
• where, occasionally, intoxication has been allowed to add marginal weight to other factors which mitigate against moral culpability.²¹¹

5.65 Section 429A(n) of the Crimes Act 1900 (ACT) provides that in determining sentence a court is to have regard to whether the person was affected by a drug or alcohol and the circumstances in which the person became affected. There is no indication whether this is to be a mitigating or an aggravating factor. On the other hand, the Northern Territory Criminal Code makes intoxication an aggravating factor by s 154(4), which provides that when a person is convicted of the crime of dangerous act or omission, and at the time of the act or omission he or she is under the influence of alcohol, a further maximum penalty of 4 years applies. As the High Court has pointed out, this provision reflects concern by the legislature over the effect of intoxication on the level of crime, such that the Northern Territory courts are required to have regard to the higher maximum penalty in cases to which it applies.²¹²

RESPONSE TO THE CHARGES

Contrition

5.66 Courts have long recognised that contrition, repentance and remorse are relevant to sentence leading in a proper case to some reduction of the sentence that would otherwise be imposed.²¹³ Genuine remorse may be evidenced in a number of ways:

• by a plea of guilty;
• by co-operation with the police;
• by making reparation;
• by apologising; and
• by self inflicted injuries or attempted suicide.

While the first three of these matters are mitigating factors in their own right, they may also provide evidence of remorse.

Plea of guilty

5.67 The issue of sentencing discount for guilty pleas has been a contentious one.²¹⁴ There are at least five matters that have to be addressed. First, should a discount be allowed for a bare plea of guilty? Secondly, should there be a discretion to refuse a discount? Thirdly, what factors affect the weight to be attached to the discount in the circumstances? Fourthly, should the sentencing judge be required to state that a reduction has been made? And, fifthly, should the sentencing judge specify the amount of the discount?

Should a bare plea of guilty be mitigating?

5.68 The courts have justified allowing sentence reductions for guilty pleas on the following grounds:

• The plea demonstrates genuine remorse.²¹⁵
• The plea relieves the victim of the burden of giving evidence,²¹⁶ a factor of particular importance where evidence of a young child would have been required.²¹⁷
• The plea obviates a lying story which would have allowed the offender to escape punishment and which, in the circumstances, provides hope for rehabilitation.²¹⁸
• The plea saves time and expense and relieves delays and congestion in the courts.

5.69 The last of the justifications in paragraph 5.68 is controversial. Section 439(1) of the Crimes Act 1900 (NSW) provides that:²¹⁹

In passing sentence for an offence on a person who pleaded guilty to the offence, a Court must take into account:

(a) the fact that the person pleaded guilty; and

(b) when the person pleaded guilty or indicated an intention to plead guilty,

and may accordingly reduce the sentence that would have otherwise have been passed.

Where a sentence is not reduced because of a guilty plea, the court is required by s 439(2) to indicate this and to state the reasons for failure to do so. This provision, effective from 1 February 1992, did no more than declare the existing common law of New South Wales.²²⁰ In R v Holder,²²¹ Chief Justice Street had suggested that the relevance of plea of guilty is subsumed under the general category of contrition to prevent the appearance of the criminal law dealing more harshly with a person who pleads not guilty. But later, in R v Ellis, his Honour said (in a judgment in which Justices Hunt and Allen concurred):

This court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.²²²

5.70 Later decisions in R v Bond²²³ and R v Winchester²²⁴ confirm that the relevance of a plea of guilty is not subsumed under the category of contrition, but that it may be taken into account as a factor in its own right on the grounds of saving the time and cost involved in a trial. In Bond, Justice Kirby, having referred to the congestion of the criminal lists in New South Wales, said:

In such circumstances, I believe there is a strong argument of policy for reflecting in the sentencing policy laid down by this Court, an appropriate measure of allowance for the fact that an accused person has pleaded guilty. Such pleas save enormous public expense. They reduce the congestion of the lists. They permit the courts to attend more speedily and efficiently to those cases which are contested. They allow police, prosecutors and many others to devote their time and energies to other cases where there may be proper and meritorious defences. Under our accusatorial system of criminal justice, it is the accused’s right to put the prosecution to proof.²²⁵

Later his Honour asserted:

It upholds a fundamental purpose of the criminal justice system which is not simply to punish the guilty but also to vindicate the society which the system protects and to bring criminal proceedings to a speedy and public end.²²⁶

5.71 The advantages and disadvantages of allowing a discount for a bare plea of guilty have been debated at length.²²⁷ Some of the objections to allowing courts to reduce sentence on the grounds of saving the expense of a trial and reducing congestion of cases and delays are:²²⁸

• it penalises those who plead not guilty;
• it promotes pleas of guilty in cases where the prosecution should justly be put to proof, thus creating the risk that innocent persons will be pressured to plead guilty;
• it smacks of judicial participation in charge bargaining;
• it undermines the principle that a plea must be made voluntarily;
• it is wrong to allow a benefit for merely facing the inevitable or doing what the offender ought to do anyway;
• it is wrong to take into account matters which do not relate to the offence or the offender or the traditional theories of punishment, but relate solely to the administration of the criminal justice system;²²⁹
• increasing guilty pleas will militate against public scrutiny of the police and law enforcers; and
• ultimately, it will create the risk that innocent people will plead guilty.

The advantages are:

• further encouragement to avoid or minimise the ordeal of victims;
• saving the public expense of a trial, including cost saving for legal aid; and
• relieving delays and backlogs.

5.72 While the objections to allowing a discount for a guilty plea are compelling in terms of principle and logic, the pragmatic grounds for allowing the discount are also compelling. Moreover, the following comments of Justice Wright of the Supreme Court of Tasmania provide some response to the principled objections to a discount:

To my mind, it is distasteful and contrary to generally held notions of fairness and balance to contend that genuine contrition and remorse can and should be taken into account in mitigation, but at the same time to claim that the bare fact of a guilty plea is of neutral effect. A prisoner rarely speaks for himself and usually engages counsel to do so. Are we to give weight to the persuasive oratory of counsel expressing regret on behalf of his client, but to ignore the indisputable fact that by pleading guilty the prisoner has entirely relinquished all prospect of acquittal?²³⁰

Should there be a discretion to refuse a discount?

5.73 Section 439(2) of the Crimes Act 1900 makes plain that there is a discretion to refuse to grant a discount in appropriate cases. Some cases have suggested that where the plea of guilty is a means of inducing the prosecution not to proceed with a more serious charge and/or where the likelihood of conviction is remote, refusal of a discount is justified.²³¹ Other cases have suggested that such matters are merely relevant to weight, and a guilty plea should nevertheless entitle an offender to some discount on grounds of saving of time and expense.²³² The latter represents the approach of the New South Wales courts.²³³

5.74 The Western Australian Sentencing Act 1995 states explicitly that a plea of guilty is a mitigating factor.²³⁴ So stated there does not appear to be discretion to refuse a sentencing discount in such cases. Given that the justification for allowing a discount is that of saving time and expense of a trial, it is arguable that some recognition for a plea should always be given irrespective of the strength of the case or the fact that the offender was originally charged with a more serious offence. On the other hand, it could be said that such an approach unduly fetters the judge’s discretion.

What factors affect the weight of the discount?

5.75 The legislation makes the stage of the proceedings at which the offender pleads guilty or indicates to the authorities an intention to do so a relevant factor in considering the reduction of sentence that should be made.²³⁵ These provisions are declaratory of the common law. But there are other matters that are relevant to weight. As already indicated the strength of the prosecution case may be relevant.²³⁶ In R v Pereira,²³⁷ where the respondent was convicted for importing cocaine after being caught red-handed at Sydney airport, there was a massive amount of evidence against him that would have made conviction virtually inevitable. Justice Carruthers (with whom Justices Clarke and Loveday agreed) said: “Allowing for the fact that time and resources of the State have been saved, nevertheless, the pleas of guilty in this case do not attract the full discount.”²³⁸ The appeal was allowed on the basis that the sentencing judge had placed too much weight on the pleas of guilty and contrition.

5.76 A different view has been taken by Justice Byrne (with whom Justices McPherson and Moynihan agreed) in the Queensland Court of Criminal Appeal. His Honour said:

I remain to be convinced that this reluctance to make any allowance for guilty pleas in apparently indefensible cases is justified. If ... administrative expediency resulting from a guilty plea is a sufficient basis for moderation in sentencing, it ought not to be decisive against a lesser sentence that conviction seems certain in the event of a trial. Unless there is an incentive for an offender to admit guilt, there is always the prospect the trial will proceed to verdict, if only because the accused perceives that there is nothing to be lost by risking the contest. It was in recognition of the benefits to the administration of criminal justice deriving from a timely plea that in Davis²³⁹ the court reduced sentences in a case said to be unarguable. The offenders, it was thought, were obdurate persons likely to have insisted on a trial unless influenced by the real prospect of a lower sentence on a guilty plea. Another intended benefit of a submission to conviction, one frequently mentioned in sexual cases, is sparing the witnesses the ordeal of a trial. That advantage is no less valuable in seemingly irresistible cases.²⁴⁰

5.77 Justice Byrne also referred to two difficulties in principle with the contention that the effect of a guilty plea should depend on the judge’s perception of the strength of the prosecution’s case. The first was that the time needed to investigate the weight of the prosecution’s case would absorb some of the time saved by avoiding a trial. Secondly, increasing credit for doubtful cases increases the potential to subvert the voluntariness of pleas and increases the risk that persons will plead guilty when they may have been acquitted at trial.

5.78 Justice Hunt has suggested that the strength of the prosecution case is more relevant to the weight to be given to pleas of guilty as an indication of remorse:

The degree of leniency to be afforded will depend on many different factors. The plea may in some cases be an indication of contrition, or some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded on this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable ....²⁴¹

5.79 It is also possible to accept that the weight of the case may be relevant to the amount of the discount in cases where the plea is seen as suggesting a glimmer of hope for future rehabilitation. For if the case is such that a lying story would give the offender some prospect of escaping conviction, then refraining from attempting to lie their way out of the charges may be a positive point in the accused’s favour.²⁴²

5.80 The Commission’s tentative view is that the argument, that weight should be given to guilty pleas for relieving the victim of the stress of giving evidence in irresistible cases as well as doubtful ones, is persuasive. Clearly avoidance of witness trauma should itself be a factor relevant to the amount of the discount. And rather than strength of the prosecution case, consideration should be focused on the nature and length of the trial avoided as a relevant matter. Strength of the case could then be considered if appropriate in relation to the issue of remorse as suggested in Winchester and Bond.

Should a judge be required to state that a discount has been made?

5.81 In some jurisdictions courts are required by statute to state expressly that a reduction has been made for a guilty plea.²⁴³ In New South Wales, the only requirement is that a judge who does not reduce a sentence for a plea of guilty must give reasons why the reduction was not made.²⁴⁴ If there is no statement that a reduction has not been made, then it follows that there has been a reduction. The Commission tentatively prefers a rule which requires the courts to state that a reduction has been made for a guilty plea. Prudence suggests that some reference be made to the fact that a discount has been made in the sentencer’s reasons. A failure to do so may indicate this factor has been overlooked.²⁴⁵ Moreover, advertising the discount may encourage others to co-operate.

Should the amount of the discount be specified?

5.82 Australian courts have not generally been prepared to specify a standard or even a range of discounts for a guilty plea. They have answered the question of the amount of discount in general terms rather than precise formulae, using words such as “moderate encouragement to plead”²⁴⁶ or even a “substantial reduction in the objective sentence”.²⁴⁷ The response of Chief Justice Asche to a question by the Solicitor-General, in Jabaltjari, as to what (if any) discount should be given to a sentence for a plea of guilty, is typical:

[B]ecause the circumstances vary widely it would be wrong and unduly restrictive of a sentencing judge’s discretion to fix on any specific percentage reduction even an average; nor has any other State or Federal Court attempted such an exercise.²⁴⁸

5.83 Other arguments against the desirability of quantifying the discount are:²⁴⁹

• it will generally be impossible or misleading to do so unless a similar quantification is placed on all other elements;
• it gives rise to the “two tier approach” and is contrary the “instinctive synthesis” methodology;²⁵⁰ and
• it raises the expectation that a guilty plea will result in a uniform discount, whereas the discount will vary considerably between different cases.

5.84 In favour of a quantified discount it has been argued that:²⁵¹

• it affords the offender an opportunity of discerning and challenging the basis of the penalty imposed;
• it operates as an incentive for guilty pleas by giving a clear idea of the sort of discount that can be given for a guilty plea; and
• to disallow such an approach is an impermissible fetter on a judge’s sentencing discretion.

5.85 The debate between the two views to some extent reflects the opposing views to the two-tiered approach to sentencing on the one hand and the instinctive or intuitive approach on the other.²⁵² But Justice Slicer has recently suggested, in the Tasmanian Court of Criminal Appeal, that one can adopt the intuitive approach in relation to facts relating to the offender and the offence, while using the second stage for matters such as guilty plea, co-operation with the police and informing. His Honour said:

[I]n my opinion ... it is not unreasonable to adopt a two stage process. The determination of the initial sentence could be made by reference to the intrinsic characteristics of the case in accordance with the methodology of “intuitive synthesis”. The second stage would be by reference to the external factors of social utility and public policy. It would not pay regard to subjective characteristics. Its value determined by questions of public policy could be expressed in quantitative terms.²⁵³

Restitution

5.86 Common law sentencing principles recognise that restitution is a mitigating factor in passing sentence. In determining the relevant sentence for an offence, courts take into account the fact that restitution has been made by returning goods or money stolen.²⁵⁴ Failure to take into account restitution made can amount to appellable error.²⁵⁵

5.87 There is, however, some difference of opinion as to the restrictions on the use of restitution as a mitigating factor. Concern that discounts for restitution may amount to a system of offenders buying their way out of crime has led some judges to suggest that restitution should only be relevant where it is coupled with evidence of remorse, a commitment to reform or sacrifice. In R v O’Keefe, Justice Stanley (with whom Justices Wanstall and Stable agreed), said:

It would be of the worst example if any sentence induced or tended to induce a belief that offenders would escape punishment if, when convicted, they made or offered restitution. Offenders cannot bargain with the court, and, in effect, buy themselves out of sentences.


....

It would be highly improper to arrive at a lesser sentence for a wealthy man who could and did make restitution, than for a poor man who had not the money to make restitution. It would be exceedingly foolish to accept as genuine every statement from the dock that if the prisoner had the money he would make restitution.²⁵⁶

In many of [the] cases, some emphasis has been placed upon the fact that the amount involved has voluntarily been repaid, but in my view it would be wrong to interpret those cases as supporting any proposition that an offender is able to purchase mitigation. Where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account in mitigation. Otherwise, in my view, it is more a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation when the loss has simply been made good.²⁵⁷

5.89 The decision of the Court of Criminal Appeal of Western Australia in Mickelburg v The Queen²⁶⁰ supports a broader approach to restitution, suggesting that weight should be given to it even when restitution is expedient because it gives some measure of justice to the victim. Justice Brinsden said:

In the courts of this state it is commonly the practice to give consideration as one of a number of mitigating factors to any restitution the offender may have made to the victim. While a crime is a crime against the community and this one was particularly that, nevertheless one must remember that a crime is often a crime which injures a particular individual. It seems to me the ends of justice are better served if some restitution is made to the victim where restitution is possible. The courts ought to encourage restitution and one way for them to do this is to offer some inducement in the form of a lesser penalty.²⁶¹

This is supported by the legislation in the ACT which makes restitution a factor in its own right independently of remorse or co-operation with the authorities (which are separately listed),²⁶² and which provides that in determining sentence a court shall have regard to “any action the person may have taken to make reparation for an injury, loss or damage resulting from the offence.”²⁶³

5.90 Two other issues are controversial in relation to restitution. The first is whether restitution can be mitigating when its source is an indemnity fund or the generosity of a stranger. In R v Wirth, Chief Justice Bray said:

It ... seems to me it would be wrong in principle if the generosity of a stranger to the proceedings were permitted in effect to purchase leniency for the offender. The law does not recognise vicarious atonement for crime .... these are matters which ought not to be allowed to deflect the course of justice.²⁶⁴

A different view was taken of vicarious atonement in R v O’Brien²⁶⁵ where the Victorian Court of Criminal Appeal was of the view that contributions from relatives and well wishers made with object of redeeming the good name of the offender and with the object of mitigating the seriousness of the offence are matters which should go to mitigating the penalty.

5.91 The Commission’s tentative view is that a general rule will not resolve this issue satisfactorily. The sources of an offender’s reimbursement are, potentially, numerous and regard ought to be had to them. Where the source of reimbursement is an indemnity fund, no action may be required of, and no liability may be incurred by, the offender. In such circumstance, restitution should probably not be a factor in sentencing.²⁶⁶ But the situation is entirely different where, as in Wirth, the offender has borrowed money and arranged for relatives to secure the loan. Here restitution involves the liability of the offender to make reparation.

5.92 The second controversial issue is whether restitution can be relied on when it results from consent to a civil order or a forfeiture order. The courts have indicated that consent to a civil order or acquiescence in a forfeiture order is unlikely to be significant without more²⁶⁷ (such as an indication of remorse or co-operation with the authorities).²⁶⁸ Without more, it is merely bowing to the inevitable. In principle, such inevitability ought, as with the inevitability of conviction,²⁶⁹ to be a matter of weight. In the context of forfeiture orders, the total exclusion of restitution may be justified, as a matter of the policy, by appeal to the underlying purpose of forfeiture legislation.²⁷⁰

Co-operation with the police

5.93 An offender may co-operate with the police and the law enforcement authorities in a number of ways:

• by voluntarily surrendering to the police and confessing to crimes;
• after apprehension, by confessing to the crimes for which the offender was apprehended;
• after apprehension, by admitting to offences of which the police were unaware;
• by “informing”, that is, by revealing information going beyond own involvement, (such as the identity of co-offenders); and
• by pleading guilty.

“Pleading guilty” has already been considered.²⁷¹ Informing is considered separately below.²⁷² This section discusses the first three forms of co-operation with the police.

Voluntary surrender

5.95 Co-operation with the police by surrendering and making a full confession attracts a sentencing discount over and above that allowed for remorse and a plea of guilty. In R v Ellis,²⁷⁴ the guilt of the respondent to seven armed robberies was disclosed for the first time when he voluntarily came forward and made a confession. Chief Justice Street, having said that a plea of guilty entitles an offender to an element of leniency, added:

When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been being committed and confession of guilt of that offence.

The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being established by the law enforcement authorities, as well as guilt being established against the person concerned.²⁷⁵

Co-operation when apprehended

5.96 Whether co-operation with the police by confessing at an early stage after apprehension is a mitigating factor independently of a plea of guilty and contrition is less clear and was subject to differing views in R v Bond.²⁷⁶ The applicant had frankly admitted his guilt in relation to assaulting a woman with intention to have sexual intercourse with her and thereby causing her death. On appeal it was argued that the sentencing judge had erred in failing to regard co-operation with the police as a separate and distinct ground for leniency. A majority of the Court of Criminal Appeal (Justices Badgery-Parker and Wood) held there was no error. Justice Badgery-Parker said:

[I]t does not appear to me to be the case that whenever an applicant confesses his guilt and facilitates the establishment by the police of the details of the particular crime with which he is charged, that he must receive a discount off his sentence over and above that attracted by his plea of guilty and expressions of remorse. The plea of guilty itself attracts some measure of leniency, both as evidence of genuine contrition and because of the saving to the community which it represents by the avoidance of the need for trial. Further discount may be appropriate if it can reasonably be seen that the guilt of the offender could not have been established but for his own co-operation and admissions; but this does not appear to me to be a case of that kind.²⁷⁷

Justice Kirby dissented on this point. In his view, a separate allowance should be made for co-operation with the police and a plea of guilty beyond that allowed for contrition.

Confession to guilt of unknown offences after apprehension

5.97 Where an offender admits to police additional offences of which they would otherwise have been unaware, there is authority that an added element of leniency is warranted.²⁷⁸

Informing

5.98 Despite considerable controversy about the dangers of the practice of offering a discount for informing,²⁷⁹ the principle that a sentence should be reduced for informing is now firmly established. The courts have held that it is in the public interest to encourage offenders to provide the authorities with information which will assist in the apprehension of other offenders. It is also acknowledged that informers experience particular hardship in prison because of the hostility of fellow inmates.

5.99 Section 442B of the Crimes Act 1900 (NSW), which has already been outlined,²⁸⁰ extends to informing.²⁸¹ This section has clarified a number of issues in relation to informing where there were conflicting judicial opinions, but at least three other matters remain unresolved:²⁸²

• should there be a fixed tariff for informing?
• should the sentencer specify the discount for informing?
• should there be a power on appeal to receive fresh evidence in relation to informing?

A fixed tariff?

5.100 A fixed formula or scale of discounts has been rejected in a number of New South Wales decisions. The circumstances of each case can vary significantly and cases are dealt with on a case by case basis.²⁸³ Moreover it may be open to a sentencing judge to relate the discount only to the most serious offences which are being dealt with.²⁸⁴ But in R v Perrier,²⁸⁵ a majority of the Victorian Court of Criminal Appeal apparently approved of the use of a fixed formula in the case of drug couriers. Justice McGarvie referred to the difficulty in apprehending principals in the heroin and drug trade and the need to encourage couriers to overcome their reluctance to implicate the principal traffickers. He approved the view of Justice Stewart, in the Report of the Royal Commission of Inquiry into Drug Trafficking 1983, that there has never been sufficient effort to cultivate the informer in organised crime, particularly an informer who is, or has been, part of the criminal syndicate. He then said:

For these reasons I consider that it should become known to those associated with the drug trade that in a case such as this, the courier faces a heavy sentence unless co-operation is forthcoming, but if there is co-operation which results in the conviction of a principal trafficker, a courier who admits the offence and pleads guilty might well have the period of sentence reduced by about two-thirds.²⁸⁶

Justice Murphy agreed with the proposed substituted sentence announced by Justice McGarvie. Justice Brooking dissented. He considered the proportion chosen to be too high, and in any event thought it wrong “to circumscribe the discretion by the use of a formula which is to be applied as a kind of sentencing rule of thumb.”²⁸⁷

5.101 A differently constituted Victorian Court of Criminal Appeal in R v Schioparlan²⁸⁸ considered that in the light of the uncertainty as to whether Justice Murphy endorsed the above quoted passage from Justice McGarvie’s judgment, the case could not be regarded as laying down authoritatively a standard discount for drug informers. And in R v Heaney the Court considered it was “now clear that in Victoria the sentencing discretion is not to be governed by reference to a tabulated scale of reductions in percentage or other terms”.²⁸⁹ Perrier was explained as an example of the extent to which a court may go in reducing the sentence of a courier involved in drug importation for informing in relation to those involved at a more significant level.

Should the discount be specified?

5.102 The Court of Criminal Appeal of South Australia has suggested on a number of occasions that it is a highly desirable practice for a sentencing judge to indicate what sentence would have been imposed if a special discount had not been awarded for incriminating co-offenders or others who have committed crimes.²⁹⁰ Where, in sentencing for a federal offence, there is reduction for an undertaking to co-operate in the future with law enforcement agencies in proceedings in relation to any offence, the court is required to specify the amount of reduction of the sentence or non-parole period.²⁹¹ The Court of Criminal Appeal discussed the matter at length in R v Gallagher.²⁹² In this case, it was held that a judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is possible to do so. But in some cases it may be difficult to identify a separate quantified discount for assistance. In explaining this, Justice Hunt said:

[I]n some cases there will be an overlap between the “utilitarian” consideration of encouraging prisoners to give assistance and what may be called the ordinary subjective features of remorse or contrition which such co-operation may demonstrate.²⁹³

He added: “Nevertheless, if a separate discount for assistance to the authorities can be identified, I would prefer that it be identified”.

5.103 In contrast, the Victorian Courts have indicated a strong dislike for the granting of specified and quantified discounts, stressing that account is to be taken of all matters relevant to mitigation and aggravation and to pronounce the sentence which the “instinctive synthesis” of those matters produces.²⁹⁴ Nevertheless in the recent decision of R v Mundy²⁹⁵ the Court did not deny there was a discretion to state the amount of the reduction. Delivering the leading judgment, Justice Nathan said:

I do not think the view that a fixed informer discount should be stated reflects the law. But that is not to say that a sentencing judge might not find it relevant in a particular case to recite a percentage discount so long as it is assigned to the sentencing process then before the court.²⁹⁶

Should there be a power on appeal to receive fresh evidence relating to informing?

5.104 Where an offender continues to give significant assistance to the authorities after sentence and that assistance had not been anticipated by the sentencing judge,²⁹⁷ or the conditions under which the prisoner serves his sentence turn out to be much more severe than anticipated, the matter is one for the executive. It is not for the appeal court to review the sentence on the basis of such further evidence unless proper grounds for receiving fresh evidence are established.²⁹⁸ Nor will evidence which was available at the time of sentence, but not available at the time of the plea, be accepted on appeal.²⁹⁹ But in R v Many,³⁰⁰ the Court of Criminal Appeal allowed the admission of new evidence of facts occurring before sentence which was not “fresh” evidence, on the grounds of “the interests of justice”.

Conduct of the defence

5.105 It has long been established that a more severe sentence should not be passed on an offender because of a plea of not guilty or because of the way in which the defence was conducted.³⁰¹ While what is otherwise appropriate can be reduced by reason of a plea of guilty, it cannot be increased by reason of a plea of not guilty or the conduct of the defence. As was said in the joint judgment of the Victorian Court of Criminal Appeal in R v Gray:

It is impermissible to increase what is a proper sentence for the offence committed in order to mark the court’s disapproval of the accused’s having put the issues to proof or having presented a time-wasting or even scurrilous defence.³⁰²

5.106 In Victoria the question has arisen as to whether it is permissible to take into account a time wasting defence as an indication of lack of remorse. In R v Yam,³⁰³ the trial judge had shown considerable irritation at what he regarded as the needless length of the trial. In the course of the plea in mitigation by defence counsel, he remarked that, because the applicant had prolonged the trial by maintaining a time-wasting defence, he was entitled to ignore almost every other mitigating factor that might have been taken into account. In his reasons for sentence, some comments suggested that the “time-wasting disputation” indicated a lack of remorse which justified the same sentence as his co-offender who had played a more significant role and who had more to gain, but whose defence had not been so time consuming. The Court of Criminal Appeal held that the judge had erred in allowing his view as to undue loss or waste of time arising from the conduct of the defence to enter into his sentencing discretion.

5.107 Yam was distinguished on its facts by a similarly constituted court in R v Marijancevic,³⁰⁴ where one of the grounds of appeal relied upon the alleged error of the trial judge in taking into account the fact that during his trial for property offences, the applicant made long and sustained allegations of gross and improper conduct by the police. The Court held that while the judge’s comments supported the view that he thought the defence an opprobrious one, there was nothing to suggest he increased the sentence by reason of such factors. But the Court commented that:

[T]rial judges should take particular care to avoid the creation of a belief in the mind of a prisoner convicted after trial that his sentence will be increased - not just because he chose to defend the charge - but because the judge thought the defence to be time-wasting and/or scurrilous.³⁰⁵

The decision in Yam that the conduct of the defence should not enter into the sentencing discretion is qualified by the Sentencing Act 1991 (Vic) which permits a court to have regard to the conduct of the offender at the trial as an indication of lack of remorse.³⁰⁶ This is not to say that a court can increase a sentence because of the conduct of the defence; only that it may be relevant to the existence of remorse as a mitigating factor.³⁰⁷

Delay

5.108 Delay between apprehension and sentence that is not attributable to the fault of the offender is mitigating.³⁰⁸ The courts have stressed the desirability of disposing of offences promptly.³⁰⁹ There are a number of grounds for regarding delay as mitigating:

• if the offender has shown signs of rehabilitation, there is little need for a corrective sentence;³¹⁰
• where the stress and anxiety caused by uncertainty of outcome is punishment in itself;³¹¹
• the unfairness to the offender of receiving punishment long after the offence;³¹² and
• if prosecution was dilatory, as an expression of disapproval by the imposition of a more lenient sentence.³¹³

5.109 It is less clear that delay should be mitigating where it is due to the fact that the offence was not reported or the offender was not apprehended.³¹⁴ This is so particularly in the case of sexual offences where the delay in reporting may be due to threats to the victim. In all cases of sexual offences there are strong policy reasons for not making delay a mitigating factor. Where delay is due to the fact that the offender’s responsibility for a known offence is unsuspected until the offender has confessed, delay may be a relevant factor, but “it is not as great as it might be in other circumstances”.³¹⁵ In such a case it is probably sufficient that co-operation with the authorities is regarded as mitigating.

Jury’s recommendation for mercy

5.110 A jury may make a recommendation for mercy. While such a recommendation should be treated with respect, it remains a recommendation only. In R v Whittaker, Justice Isaacs put the position thus:

It is of course the duty of a judge who has the difficult task of determining the proper sentence to be imposed upon a person convicted of a crime to take into his consideration a recommendation by the jury for mercy. But it must be emphasised that it is not part of the verdict; it does not bind the trial judge; it operates only as a recommendation, and the responsibility in the interests of society to impose an appropriate sentence commensurate with the seriousness of the crime remains with the trial judge. It in no way absolves the trial judge from the duty of considering the circumstances of the crime independently for himself, and it in no way requires him to put any remote or strained interpretation upon the facts to find some justification for the rider.³¹⁶

FACTORS RELEVANT TO THE EFFECT OF OFFENCE AND SANCTION

Hardship to the offender

5.111 Where imprisonment will cause particular hardship to the offender, either directly or indirectly, it may be a factor to be taken into account in mitigation of sentence.³¹⁸ The list of what amounts to hardship is not closed. The authorities have extended it to cover:

• Loss of status in terms of the disgrace, humiliation and loss of previous standing in the community - a factor especially relevant to white collar offenders for whom “an equivalent gaol term is plainly a severer punishment .... than it would be for many violent criminals, who could take up much the same life upon leaving gaol as they had led before.”³¹⁹
• Loss of employment, particularly where that also involves a loss of status.³²⁰ Loss of employment may well tip the balance in favour of a non-custodial penalty, and can be justified on rehabilitative as well as retributive grounds.
• The ill-health or disability of the offender, including the age of the offender.³²¹

5.112 In contrast, the Court of Criminal Appeal held in R v Chenkovit³²² that relevant hardship was not established by the argument that the offender was a foreign national who would be serving the sentence away from home without the opportunity of receiving visits from friends and family. The Court pointed out that the respondent had made the choice of coming to Australia in furtherance of a conspiracy to import heroin. Nor has the non-eligibility of a foreign national for a minimum security rating or weekend or work release been regarded as a mitigating factor.³²³

5.113 The Australian Law Reform Commission recommended that the list of relevant sentencing considerations include:

• whether a particular type of sanction would cause hardship to the offender; and
• the indirect effects on the offender of conviction or a particular sanction, for example
  
  - loss of, or inability to continue in or obtain, suitable employment;

  - loss of pension rights;

  - cancellation or suspension of trading or other licence;

  - diminution of educational opportunities; and

  - deportation.³²⁴

Hardship to others

5.114 The common law position is that hardship to the family of an offender is not a factor which bears on the severity of sentence. Courts have consistently accepted this as the general rule,³²⁵ which can only be departed from in rare and exceptional circumstances.³²⁶ The Australian Law Reform Commission recommended that impact of a particular sanction on third parties should be made a relevant factor on the ground that detrimental impact on the offender’s family can itself be a form of punishment on the offender.³²⁷ A number of statutory guidelines³²⁸ now appear to have reversed the common law position,³²⁹ but courts in South Australia and Western Australia have not interpreted the provisions in this way.³³⁰

THE RELEVANCE OF ANY SENTENCE IMPOSED ON CO-OFFENDERS

5.115 Any sentence imposed on a co-offender is relevant to sentence on two grounds. First, the offender should not be left with a justifiable sense of grievance; secondly, the appearance to objective bystanders of injustice by unfair and unequal penalties should be avoided.³³¹ While this basic principle is well settled, it is unclear whether:³³²

• a court should depart from the principle of parity where the sentence imposed on the co-offender is inadequate. A difference of opinion on this point emerged in the judgment of the High Court in Lowe v The Queen.³³³ Justice Mason expressed the view that a co-offender’s sentence was still relevant even if thought to be inadequate, and also that on that account a sentence could be reduced even to a point where it too might be regarded as inadequate. On the other hand, Justice Brennan thought that an inappropriately lenient sentence should not be taken into account. The judgment of Justice Dawson - and perhaps that of Chief Justice Gibbs - gives implicit support for the reduction of a sentence when a co-offender’s sentence is too lenient, but whether it could be reduced to the point of inadequacy was not addressed;
• a court is under a duty to investigate the background of a co-offender to avoid a disparate sentence.³³⁴

METHODOLOGY

5.116 Once the judge has surveyed all the factors in the case which are relevant to the determination of sentence, he or she will be faced with the question of the appropriate penalty. Assuming that the judge decides that the appropriate penalty is imprisonment, the question then arises as to how all the factors operating in the case are to be translated into a sentence of imprisonment of a particular duration. This raises two questions of methodology:

• First, how, generally, is the judge to approach the task?
• Secondly, and particularly, does the judge determine sentence length by reference to a standard or tariff derived from past cases?

“Instinctive synthesis” and “two-tier” approaches to sentencing

5.117 One aspect of sentencing which may alter the exercise of judicial discretion is the approach adopted by judges when assessing the various “objective” and “subjective” factors operating on the offence and the offender in imposing sentence. The authorities identify both an “instinctive synthesis” and a “two-tier” approach.

5.118 The “instinctive synthesis” approach is associated particularly with the jurisprudence of the Supreme Court of Victoria. The leading decision is R v Williscroft, in which Justices Adam and Starke said:

[I]n our view, it is profitless ... to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination.

...

We are aware that [our] conclusion rests upon what is essentially a subjective judgment largely intuitively reached by an appellate judge as to what punishment is appropriate.³³⁵

5.119 This view was forcefully restated by the Victorian Court of Criminal Appeal in R v Young.³³⁶ In that case the trial judge had adopted the two-tier methodology in arriving at sentence. First, a sentence proportionate to the “objective” gravity of the offence was determined; secondly, the actual sentence was set taking into account the “subjective” factors and circumstances of the offender. The CCA strongly disagreed with this approach:

We see no justification for this course whatever and we think that its adoption would be likely to lead either to the imposition of inadequate sentences or to injustice. It would certainly lead to an increase in appeals against sentence. What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence, as the learned judge in his report in these cases said that he had purported to fix. Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?³³⁷

5.120 By contrast, several decisions from other jurisdictions - notably the Northern Territory and Western Australia - adopt the two stage approach to sentence as a valid form of sentencing methodology.³³⁸

5.121 The New South Wales Court of Criminal Appeal endorsed the Victorian approach in R v Lett.³³⁹ The trial judge reviewed the objective facts of the offence, which justified consideration of a life sentence. He then referred to the “strong mitigating circumstances” in relation to the offender before arriving at the actual sentence. Justice Hunt, with whom Justices Sully and Levine agreed, regarded the trial judge’s approach as “unwise”, and referred to the Victorian Court of Criminal Appeal’s critical comments about the “two tiered” approach in Young.³⁴⁰ In Bugmy v The Queen,³⁴¹ it was argued on appeal that the decision in Veen (No 2) required a two stage approach to sentencing. However Justices Dawson, Toohey and Gaudron (the only members of the court to deal with the point) declined to provide any guidance on the issue.³⁴² In the absence of any determination of the issue in the High Court, it appears that the “two-tier” approach to sentencing is not to be adopted in New South Wales.

5.122 The Victorian Sentencing Committee urged a more structured approach to sentencing methodology and this was reflected in cl 5 of Victoria’s Penalties and Sentences Bill 1989, which required a sentencer first to “determine what sentence would be proportionate to the offence in the light of the objective circumstances of the offence”, and then to “determine what is the appropriate sentence in all the circumstances of the offence.” This approach was reflected in the County Court Sentencing Manual. However, the opposition of the Supreme Court ensured that cl 5 was not enacted.³⁴³

5.123 The argument in favour of the adoption of the two-tier approach to sentence is that it arguably provides better information to the offender and the community as to why a particular sentence was imposed and how it was arrived at. It may also encourage the more uniform adoption of basic sentencing principles.³⁴⁴ However, the impact of importing such a methodology may be over-estimated. First, the methodology is potentially difficult to apply because it assumes that there is a clear demarcation between factors relevant to each tier of the approach. Yet this is not so.³⁴⁵ Secondly, as Justice Murray has pointed out in the Supreme Court of Western Australia, the issue which arises in Courts of Criminal Appeal is whether the sentence is manifestly excessive (or, in the case of Crown appeals, manifestly lenient).³⁴⁶ Effective guidance depends more upon consideration of relevant sentencing ranges for particular categories of case, than upon the adoption of a particular sentencing method.

Sentence ranges and tariffs

5.124 Some jurisdictions have accepted the concept of the “tariff” in sentencing. In New South Wales, reference is more commonly made to the “range” of sentences that would be appropriate to: (i) the crime of which the offender has been convicted, having regard to (ii) the circumstances in which the crime was committed, and (iii) the circumstances of the offender. The observations of Justice Hunt in R v Morgan,³⁴⁷ and subsequently in R v Warfield,³⁴⁸ indicate that factors in mitigation are incorporated into the tariff or range of sentence considered by the court:

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or lenient than some other sentence ... which merely forms part of that range.³⁴⁹

Thus, the range of sentence develops not only with regard to the general offence category (for example, armed robbery) but in relation to typical factual situations that arise within that broad offence (for example, armed robbery of a bank by an offender with prior convictions seeking to support a drug habit, who was armed with a loaded firearm).

5.125 One should avoid thinking of the tariff as a rigid concept imposing strict limits on judicial discretion in sentencing. As Thomas has pointed out, tariffs should be regarded as a “complex body of principle” which provide a framework for reference, rather than a single sentence of years or months.³⁵⁰ The tariff is sensitive to the volume of cases which adhere to particular fact situations. The greater the volume of cases that share such circumstances, the better the guidance that the tariff can provide for any particular situation in which the crime was committed. The key points to note about the range are that:

• it is relatively loosely defined over time, on a case-by-case basis; and
• it is a necessary approach to sentencing, in order to provide a quantitative measure of consistency to a system which is primarily governed by qualitative principles, and which relies upon a large degree of discretion in determining particular sentences.

QUESTIONS ARISING IN CHAPTER 5



1. Should the courts continue to take the prevalence of the offence into account in determining sentences?

2. If prevalence is to be retained as a relevant factor, should any restrictions be imposed on taking it into account, such as:

(a) subject to the principle of proportionality?

(b) a requirement that prevalence or increased prevalence be properly established?

3. What should the courts recognise as provocation for the purposes of sentencing?

4. When should provocation be taken into account in cases of (a) sexual assault and (b) non-sexual assault?

5. Should the use of a weapon in the course of the commission of an offence be regarded as an aggravating factor in sentence?

6. When should breach of trust be an aggravating factor in sentencing in the case of (a) police officers? (b) solicitors? and (c) any other office or occupation?

7. Are the Barrick factors useful in enumerating the considerations to be taken into account in cases of crimes of misappropriation involving breach of trust?

8. Should the courts in sentencing an offender take account of the consequences of the offence to the victim when those consequences are unforeseeable? If so, for what purpose ought the consequences to be taken into account?

9. Should the fact that the victim is very young or especially vulnerable be an aggravating factor in sentencing?

10. Should the sexual experience of the victim ever be a factor relevant to sentence for a sexual offence?

11. Should the victim’s wish that the offender be not punished or punished only lightly be a relevant factor in sentencing?

12. In what way should a prior record be relevant to sentence?

13. What weight ought to be given to good character where the need for general deterrence is strong?

14. Should reformation continue to be the dominant goal in the sentencing of young offenders?

15. Should New South Wales adopt the rule in s 9(4) of the Penalties and Sentences Act 1992 (Qld) that offenders under the age of 25 who have not previously been convicted cannot be sentenced to imprisonment unless all other sentences have first been considered and the court has considered the desirability of not imprisoning a first offender?

16. Should the fact that the offender is a woman generally justify a more lenient approach to sentencing? If not, are there ever circumstances in which special consideration should be given to the fact that the offender is a woman?

17. What factors ought the courts to take into account in the sentencing of Aboriginal offenders?

18. To what extent ought illness or physical disability to feature as factors in sentencing?

19. Should the principle of proportionality limit the sentence imposed on offenders with a mental disorder or should danger to the public be allowed to increase sentence?

20. Does the mental disorder of the offender justify less emphasis in sentencing on general deterrence and retribution?

21. Should the fact that a mentally disordered offender is seeking treatment for the disorder which contributed to the commission of the crime be a relevant factor in sentencing?

22. Should the same principles of sentencing apply in the case of offenders with an intellectual impairment?

23. What effect (if any) ought the offender’s substance abuse to have at the point of sentencing?

24. Should a bare plea of guilty continue to count as a mitigating factor?

25. If so, should there be a discretion to refuse to make a discount for a plea of guilty?

26. Should the weight attached to the discount for a guilty plea be affected by:

(a) the time at which the offender pleaded guilty or indicated an intention to plead guilty?

(b) the inevitability of conviction?

(c) the degree to which psychological trauma to potential witnesses has been avoided or lessened?

(d) the nature of and length of the trial otherwise required?

27. Should a sentencer be required to state that a discount has been made?

28. Ought the amount of discount for a guilty plea to be quantified?

29. When, generally, ought restitution to be taken into account as a mitigating or aggravating factor in sentencing?

30. Should an offender who makes restitution by reason of support from a third party or an indemnity fund receive a discount in sentence?

31. Should an offender who makes restitution by reason of consent to a civil order or acquiescence in a forfeiture order be given a reduction in sentence?

32. When should co-operation with the police attract a discount in sentence over and above that allowed for remorse and a plea of guilty?

33. Should there be a fixed tariff for informing in drug cases?

34. Should the amount of discount for informing be specified by the sentencer?

35. Should there be a power on appeal to receive fresh evidence relating to informing?

36. Should the conduct of the defence ever be taken into account in sentencing?

37. Should delay between apprehension and sentence ever be a mitigating factor where that delay is attributable to some action or inaction on the part of the offender?

38. What weight ought to be given in sentencing to a jury’s recommendation for mercy?

39. In what situations should the hardship which imprisonment will impose on the offender be a relevant consideration in sentencing?

40. In passing a sentence of imprisonment on an offender, should the court take into account any hardship which will be suffered by third persons, such as the offender’s family or dependants?

41. Should a court depart from the principle of parity when the sentence imposed on the co-offender is inadequate?

42. To what extent should courts investigate the background of a co-offender in order to avoid disparity of sentence?

43. Should the factors discussed in this Chapter be incorporated into consolidated sentencing legislation?

1. See paras 2.7-2.12.

2. Criminal Law (Sentencing Act) 1988 (SA) s 10; Crimes Act 1914 (Cth) s 16A; Sentencing Act 1991 (Vic) s 5(2); Penalties and Sentences Act 1992 (Qld) s 9(2); Crimes Act 1900 (ACT) s 429A; Sentencing Act 1995 (NT) s 5(2). Compare Sentencing Act 1995 (WA) s 6-8 (which does not attempt to list the factors).

3. The lists vary in length. The ACT list in the most extensive. Compare the list in Victoria.

4. With the exception of s 6-8 of Sentencing Act 1995 (WA).

5. See paras 5.66-5.85.

6. See paras 2.7-2.12.

7. Such as restitution (see paras 5.86-5.92), substance abuse (see paras 5.61-5.65), and illness and physical disability (see para 5.54).

8. Such as failing to detail premeditation and execution (see paras 5.19-5.22) or degrees of participation (see paras 5.23-5.24); or to resolve the misconceptions emerging from Veen (see paras 5.56-5.59).

9. Crimes Act 1900 (ACT) s 429B(f).

10. See para 5.66.

11. See para 5.66.

12. See paras 5.46-5.49.

13. See paras 5.25-5.28.

14. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 171.

15. See paras 5.116-5.125.

16. Our classification is derived from R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (OUP, Melbourne, 1985) at Chapter 11, and K Warner, Sentencing In Tasmania (Federation Press, Sydney, 1991) at Chapter 11.

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

18. (1980) 7 A Crim R 174 at 177. See also Sentencing Act 1991 (Vic) s 5(2)(a). And see Penalties and Sentences Act 1992 (Qld) s 9(2)(b); Sentencing Act 1995 (NT) s 5(2)(a) (courts to have regard to the maximum and minimum penalty prescribed).

19. See R v Hayes [1984] 1 NSWLR 740 at 743 per Street CJ. See also Fox and Freiberg at 450.

20. R v Postiglione (1992) 57 A Crim R 301 (NSW CCA); Reynolds v Wilkinson (1948) 51 WALR 17.

21. (1988) 164 CLR 465 at 478.

22. R v McMahon (1978) 19 ALR 448 (NSW CCA). See paras 3.35-3.40.

23. (1993) 67 A Crim R 64 at 68. Compare D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) at 30.

24. See Fox and Freiberg at 450; Warner at 258.

25. R v Weller (1988) 37 A Crim R 349.

26. R v Donaldson [1968] 1 NSWR 642; Butler [1971] VR 892 at 896.

27. R v Ginder (1987) 23 A Crim R 1.

28. R v Dimosantos (1993) 116 ALR 411.

29. R v Peel [1971] 1 NSWLR 247.

30. See paras 1.18-1.20.

31. R v Ragen (1916) 33 WN (NSW) 106 (the prevalence of pilfering from wharves in Sydney properly considered); Hargreaves v Chalkley (1903) 24 ALT 84 (prevalence of insulting behaviour in a particular neighbourhood relevant).

32. R v Hayes [1984] 1 NSWLR 740 (burglary); R v Williscroft [1975] VR 292 at 302 (armed robbery); R v Peterson [1984] WAR 329 at 332 (armed robbery).

33. Ris v Wills [1966] Tas SR 92 at 96 (burglary by youths)

34. Hargreaves v Chalkley (1903) 24 ALT 84 (prevalence of insulting behaviour in a particular neighbourhood relevant).

35. R v Peterson [1984] WAR 329 at 332, cited with approval by the Court of Criminal Appeal in R v Morley [1985] WAR 65 at 70. See also Martin v Scotland (1972) 2 SASR 271 at 272 per Walters J.

36. See para 3.8.

37. (1987) 46 SASR 118 at 120.

38. Tas CCA, No A26/1994, 12 April 1994, unreported, at 3 per Zeeman J.

39. R v Peterson [1984] WAR 329 at 332 per Burt CJ; Martin v Scotland (1972) 2 SASR 271 at 272 per Walter J; R v Jabaltjari (1989) 46 A Crim R 47 at 71 per Martin J.

40. R v Jabaltjari (1989) 46 A Crim R 47 at 63 per Asche CJ, at 71 per Martin J, at 79 per Angel J.

41. For example R v Piercey [1971] VR 647.

42. Fox and Freiberg at 67.

43. Yardley v Betts (1979) 22 SASR 108 at 113; R v Jabaltjari (1989) 46 A Crim R 47 at 77.

44. (1986) 66 ALR 264.

45. R v Ryan (1988) 33 A Crim R 384 (CCA Qld).

46. See R v Joyce (1985) 20 A Crim R 384. See also Warner at 65-66.

47. See para 2.9.

48. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 98.

49. Crimes Act 1900 (ACT) s 429B(e). But general deterrence may be taken into account: s 429A(1)(i).

50. Penalties and Sentences Act 1992 (Qld) s 9(2)(h); Sentencing Act 1995 (NT) s 5(2)(g).

51. R v Tait (1979) 24 ALR 473 at 485; Hook v Ralphs (1987) 27 A Crim R 222 at 225; R v McCormack [1981] VR 104; R v Sumner (1985) 19 A Crim R 210 at 218.

52. R v Tallon (1993) 67 A Crim R 42 at 44.

53. R v Okutgen (1982) 8 A Crim R 262.

54. R v Billam [1986] 1 All ER 985.

55. R v Roberts (1982) 4 Cr App R (S) 8.

56. Sentencing (ALRC 44, 1988) at para 89.

57. Crimes Act 1900 (ACT) s 429A(1)(w).

58. Crimes Act 1900 (ACT) s 429A(1)(o).

59. Although the law relating to sexual assaults is gender neutral and women do perpetrate such assaults on men and women, the vast majority of such offences involve assaults by men upon women.

60. R v Wallis (NSW CCA, No 69, 25 June 1975, unreported,); R v Webb [1971] VR 147 at 153; R v Billam [1986] 1 All ER 985.

61. See M Fisher and F Ammett, “Sentencing of Sexual Offenders When Their Victims are Prostitutes and Other Issues Arising out of Hakopian” (1992) 18 Melbourne University Law Review 683 at 688-689.

62. R v Wayne (1992) 62 A Crim R 1 at 9 (NT SC) (D assaulted by the victim three days before the offence); R v S (Tas SC, Ser No A 69 of 1991, 3 September 1991, unreported) (that D believed he was punishing his daughter’s rapist was regarding as mitigating).

63. Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ; R v Pastras (1993) 65 A Crim R 584 at 588.

64 R v Tait (1979) 24 ALR 473 at 487.

65. R v Laurentieu (1992) 63 A Crim R 402 at 405-406 per Kirby P; R v Le Cerf (1975) 13 SASR 237.

66. Sentencing (ALRC 44, 1988) at para 89.

67. Penalties and Sentences Act 1992 (Qld) s 9(2)(d); Sentencing Act 1995 (NT) s 6 (2)(c).

68. Sentencing Act 1991 (Vic) s 5(2)(d). Section 429A(2)(g) of the Crimes Act 1900 (ACT) merely refers to degree or responsibility for the commission of the offence.

69. The only jurisdiction to include breach of trust in sentencing guidelines is the Australian Capital Territory: see Crimes Act 1900 (ACT) s 429A(1)(s).

70. R v Jackson (1987) 30 A Crim R 230 (cabinet minister); R v Moyse (1988) 38 A Crim R 169 (senior police officer); R v Daly (1983) 8 A Crim R 433, R v Pangallo 56 A Crim R 441 (lawyer).

71. R v Glenister [1980] 2 NSWLR 597 at 616.

72. R v Moffat (Vic CCA, No 76, 15 December 1992, unreported); R v Martin (1994) 74 A Crim R 252 at 256 (Vic CCA); R v Skeates [1978] Qd R 85 (general deterrence an important consideration in cases of embezzlement by bank employee). See also para 3.6.

73. R v Jackson (1987) 30 A Crim R 230.

74. R v Bielaczek (NSW SC, CD70212/1990, 19 March 1992, Badgery-Parker J, unreported) at 10-11; R v Hermann (1988) 37 A Crim R 440 at 441 per Kirby P.

75. R v Broadhurst (1986) 25 A Crim R 349 at 359 (NSW CCA) (drug offences committed by air freight forwarding agent); R v Whatley (Vic CCA, 1/11/1974, unreported) (doctor abusing position to obtain drugs for personal use).

76. [1968] VR 174 at 181.

77. R v Cosgrove (1988) 34 A Crim R 299 at 306 (NSW CCA); R v Jones (1989) 41 A Crim R 1 at 21 (Vic CCA).

78. R v Del Piano (1990) 45 A Crim R 199 at 204.

79. Del Piano.

80. (1985) 81 Cr App R 78 at 82. On guideline judgments, see paras 6.36-6.41.

81. The Barrick factors have been quoted with approval in a number of Western Australian cases: Del Piano (1990) 45 A Crim R 199 at 219 (WA CCA) (a case of secret commissions rather than misappropriation); R v Carreras (1992) 60 A Crim R 402 at 407 (WA CCA); R v Birch (1993) 69 A Crim R 181 at 185 (WA CCA). The same factors were listed in R v Bird (1988) 56 NTR 17 at 33 without reference to Barrick.

82. Crimes Act 1914 (Cth) s 16A(2)(e); Criminal Law (Sentencing) Act 1988 (SA) s 10(e); Penalties and Sentences Act 1992 (Qld) s 9(2)(e); Crimes Act 1900 (ACT) s 429A(1)(e); Sentencing Act 1995 (NT) s 5(2)(d).

83. R v Teremoana (1990) 54 SASR 30; R v RKB (NSW CCA, No 60344/1990, 30 June 1992, Badgery-Parker J (McInerney and Loveday JJ agreeing), unreported) at 5. See also Wise v The Queen [1965] Tas SR 196 at 201 per Crisp J, at 209 per Neasey J.

84. De Simoni v The Queen (1981) 147 CLR 383.

85. Wise v The Queen [1965] Tas SR 196 at 202 per Crisp J (a case of dangerous driving where no death or bodily harm caused).

86. R v McCormack [1981] VR 104 (foreseeable consequences of a riot which did not eventuate relevant). The emphasis placed on the degree of danger posed in cases of dangerous driving is also an illustration of the importance of potential risks.

87. R v Bedelph (1981) 4 A Crim R 192 (assault on the basis of disciplining a 13 year old boy by tying him to a tree in the bush).

88. [1971] VR 147 at 150.

89. For example R v McCormack [1981] VR 104; House v Johnson [1966] Tas SR 292.

90. [1975] VR 168 at 172 (a case of assault by tying the naked victim to a bed for the purpose of allowing the co-accused to force an admission of rape).

91. See P Mullaly, Victorian Sentencing Manual (The Law Printer, Melbourne, 1991) at 188.

92. Wise [1965] Tas SR 196 at 201, see also at 209 per Neasey J.

93. See paras 11.19, 11.40.

94. See para 11.40.

95. See R v Teremoana (1990) 54 SASR 30; McCormack v The Queen (SA CCA, No 894/90, 20 March 1991, unreported); R v Economedes (1990) 58 A Crim R 466.

96. For example R v Dole [1975] VR 754.

97. Fox and Freiberg at 436.

98. (1989) 44 A Crim R 301 at 304 per Malcolm CJ, at 316 per Brinsden J. See also R v Gogolin (NSW CCA, No 225/87, 7 October 1988, unreported). Compare R v G (NSW CCA, No 70213/87, 29 June 1989, unreported).

99. See R v Webb [1971] VR 147 at 153.

100. Vic CCA, 18 August 1981, unreported.

101. Vic SC, No 187, 8 August 1991, Jones J, unreported.

102. Hakopian at 8. An appeal against sentence on the ground that the trial judge had placed too much weight on the fact that the complainant was a prostitute was abandoned and it was conceded that the judge was not in breach of any sentencing principle when he dealt with the matter on the basis that the complainant was a prostitute: Hakopian (Vic CCA, No 187, 11 December 1991, unreported).

103. D Cass, “Case Note” (1992) 16 Criminal Law Journal 200; G Coos, “Hakopian’s Case - Oh Chastity! What Crimes are Committed in thy Name” (1992) 16 Criminal Law Journal 160; B Keogh, “Sentencing Sex Offenders in Victoria” (1993) 67 Law Institute Journal 396; M Fisher and F Ammett, “Sentencing Sexual Offenders When Their Victims are Prostitutes and Other Issues Arising out of Hakopian” (1992) 18 Melbourne University Law Review 683.

104. Victorian Sentencing Manual at 487.

105. County Court of Victoria, 6 October 1988, unreported.

106. R v Marten (NSW CCA, No 76, 8 July 1982, Street CJ, unreported);. R v Leary (NSW CCA, No 60254/93, 8th October 1993, unreported).

107. Leary at 6-7.

108. G Zdenkowski, “Contemporary Sentencing Issues” in Chappell D and P Wilson, The Australian Criminal Justice System - the Mid 1990s (Butterworths, Sydney, 1994) 171 at 190;

109. See Crimes Act 1900 (NSW) s 409B.

110. This has the support of the English guidelines case of Billam [1986] 1 All ER 985 where the Court said the victim’s previous sexual experience was not a mitigating factor.

111. Fox and Freiberg at 458.

112. See K Gilbert, “Rape and the Sex Industry” (1992) Criminology Australia 14 for a description of the impact of rape on sex workers.

113. R v RKB (NSW CCA, No 60344/90, 30 June 1992, unreported). See also R v Pritchard [1973] Cr App R 492; Fox and Freiberg at 458; Victorian Sentencing Manual at 189.

114. R v McGhee (Tas CCA, Ser A9 of 1994, 2 June 1994, unreported). See also R v Crime Appeal [1992] BCL 1905.

115. G G Hall, Sentencing Guide (Butterworths, Wellington, 1994) at para 1.5.7.

116. See paras 5.86-5.92.

117. See further para 11.58 (VIS not to address question of appropriate sentence).

118. R v Glen (NSW CCA, No. 60738/1993, unreported, 19 December 1994) per Simpson J.

119. Sentencing Act 1991 (Vic) s 5(1)(c); Sentencing Act 1995 (NT) s 5(1)(b).

120. For example Grayson v The King (1920) 22 WALR 37.

121. (1988) 164 CLR 465.

122. Veen (No 2) at 477. The CCA has generally understood Veen (No 2) in this sense: see D Hunt and H Donnelly, “The Objective Circumstances of the Case and Prior Record” (1995) 7 Judicial Officers Bulletin 57 at 58. See also R v Barton (NSW CCA, No 60740/94, 28 July 1995, unreported). In the Commission’s view, this understanding is not qualified by apparent statements to the contrary in Baumer v The Queen (1988) 166 CLR 51 at 57-58 (where the issue arose incidentally). But compare R Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489 at 500.

123. See Fox and Freiberg at 462.

124. For example, R v Hutchins (1957) 75 WN (NSW) 75.

125. For example, R v Boyd [1975] VR 168.

126. See Thomas at 201.

127. R v McInerney (1986) 42 SASR 111 at 113 per King CJ.

128. For example R v Hermann (1988) 37 A Crim R 440 (NSW CCA); R v Sopher (1990) 70 A Crim R 570 (NSW CCA).

129. R v Jackson (1988) 33 A Crim R 413 (NSW CCA).

130. R v Leroy [1984] 2 NSWLR 441 at 446-447.

131. R v Edwards [1988] VR 481. Compare Ireland (1987) 29 A Crim R 353 (NT CCA), a case of dangerous driving, where Maurice J (at 369) expressly disapproved cases which state that virtually no allowance should be made for good character in fixing the head sentence in cases where general deterrence is important, but said of dangerous driving: “It does not matter whether the offender who perpetrates the crime ... is a rogue or a previously upright citizen” (at 371-2).

132. Crimes Act 1914 (Cth) s 16A(2)(m); Criminal Law (Sentencing) Act 1988 (SA) s 10(l).

133. Sentencing Act 1991 (Vic) s 6; Penalties and Sentences Act 1992 (Qld) s 11. The Sentencing Act 1995 (NT) s 6 is in almost the same terms as the Queensland provision.

134. Crimes Act 1914 (Cth) s 16A(2)(m); Penalties and Sentences Act 1992 (Qld) s 9(2)(f); Criminal Law (Sentencing) Act 1988 (SA) s 10(1); Sentencing Act 1995 (NT) s 6(2)(e); Crimes Act 1900 (ACT) s 429A(1)(k).

135. See paras 3.16, 3.22.

136. For example, Hill v Katich [1973] WAR 11 at 12.

137. For example, R v Smith (1988) 33 A Crim R 95.

138. R v Pham (1991) 55 A Crim R 128 (NSW CCA), R v Hawkins (1993) A Crim R 64. Compare R v GDP (1991) 53 A Crim R 112 at 115, R v XYJ (NSW CCA, No 60823/91, 15 June 1992).

139. R v Regan (1993) 67 A Crim R 100 (Vic CCA); Lahey v Sanderson [1959] Tas SR 17 at 21.

140. R v Hunter (1984) 36 SASR 101; R v Yates [1985] VR 41; R v Davis (NSW CCA, No 60030/91, 20 August 1991, unreported).

141. R v Bazley (1993) 65 A Crim R 154 at 158.

142. See Proposal 3.

143. NSW CCA, 4 June 1982, unreported. A similar view is expressed in R v Tracey [1987] Tas R 108 at 120 per Wright J.

144. R v Friday (1984) 14 A Crim R 471 (Conolly J).

145. Fox and Freiberg at 465-466. Compare Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Volume 1 at 372 which suggests that judicial attitudes in Victoria are more ambivalent.

146. See Crimes Act 1914 (Cth) s 16A(2)(p); Crimes (Sentencing) Act 1988 (SA) s 10(n).

147. R v Boyle (1987) 34 A Crim R 206. But see R v Wirth (1976) 14 SASR 291 at 293 where Bray CJ said it is difficult to see that more weight should be given to consideration of the offender’s family in the case of a woman than in the case of men and added, “the contemporary sociological climate frowns on discrimination on the basis of sex”. On hardship, see paras 5.111-5.114.

148. (1980) 2 Cr App R (S) 177.

149. For example D Biles, “Prisons and Prisoners in Australia” in D Chappell and P Wilson (eds), The Australian Criminal Justice System (2nd ed, Butterworths, Sydney, 1977) 337 at 352.

150. Warner at 270 note 55.

151. D Farrington and A Morris, “Sex, Sentencing and Reconviction” (1983) 23 Brit J Crim 229 at 245; A Worrall, “Out of Place: Female Offenders in Court” (1981) 28 Probation Journal 90. See also G Zdenkowski, “Contemporary sentencing issues” in Chappell D and Wilson P, The Australian Criminal Justice System: The mid 1990s (Butterworths, Sydney, 1994) 181 note 59.

152. See para 5.13.

153. R v Stokes (Vic CCA, 29 May 1981, unreported).

154. R v Neal (1982) 7 A Crim R 129 at 145.

155. See paras 5.50-5.53.

156. The dangers in accepting a policy of leniency towards women are briefly discussed in Warner at 271-272.

157. Jabaltjari v Hammersley (1977) 15 ALR 94; R v Friday (1985) 14 A Crim R 470 (Qld CCA); R v Bulmer (1986) 15 A Crim R 155 (Qld CCA); R v Yougie (1987) 33 A Crim R 301 (Qld CCA); Leech v Peters (1988) 40 A Crim R 350 (SA SC); Houghagen v Charra (1989) 50 A Crim R 419 (SA SC) at 422 per Bollen J.

158. (1982) 7 A Crim R 129.

159. Neal at 137, 140.

160. Neal at 144.

161. Neal at 145 per Brennan J.

162. R v Fernando (1994) 76 A Crim R 58 at 62-63; Jabaltjari v Hammersley (1977) 15 ALR 94 at 98 per Muirhead J; R v Rogers (1989) 44 A Crim R 301 at 307 per Malcolm CJ; R v Minor (1992) 59 A Crim R 227 at 238 per Mildren J,.

163. See generally R v Fernando (1994) 76 A Crim R 58 at 62-63 per Wood J.

164. R v Rogers and Murray (1989) 44 A Crim R 301 at 315 per Wallace J.

165. For example R v Juli (1990) 50 A Crim R 31.

166. For example R v Shannon (1991) 56 A Crim R 56.

167. For example R v Jadurin (1982) 7 A Crim R 182.

168. For example R v Minor (1992) 59 A Crim R 227.

169. For example R v Jagamara (NT SC, 18 November 1980, Gallop J, unreported). And see The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Vol 1 at para 514.

170. The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Vol 1 at para 517. See also Multiculturalism and the Law (ALRC 57, 1992) at paras 8.13-8.14.

171. Young Offenders Act 1993 (SA) s 3(3)(e); Young Offenders Act 1994 (WA), s 46(2)(c).

172. The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Vol 1 at para 517.

173. See para 1.13.

174. R v Smith (1987) 44 SASR 587, applied in R v McDonald (1988) 38 A Crim R 470 (NSW CCA), R v Sellen (1991) A Crim R 313.

175. (1988) 34 A Crim R 154.

176. R v Jones (1993) 70 A Crim R 449 (NSW CCA) (offender HIV positive); Smith at 589 per King CJ.

177. R v D (NSW CCA, 21 December 1984, unreported) (16 year old deaf and dumb Aboriginal broke into a woman’s house and raped her several times).

178. Crimes Act 1914 (Cth) s 16A(2)(m); Criminal Law (Sentencing) Act 1988 (SA) s 10(l); Crimes Act 1900 (ACT) s 429A(1)(k). The Penalties and Sentences Act 1992 (Qld) s 9(2)(f) and the Sentencing Act 1995 (NT) s 5(2)(e) refer to the “intellectual capacity” of the offender.

179. R v Smith (1958) 75 WN (NSW) 198; R v Anderson [1981] VR 155; Veen (No 2) (1988) 164 CLR 465 at 477; R v Bell [1982] Qd R 216; R v Man (1990) 50 A Crim R 79 at 83; R v Skipper (1992) 64 A Crim R 260 (psychiatric disorder mitigated the respondent’s attempts to murder her children).

180. R v Hurd [1988] Tas R 126 (suspended sentence).

181. For example R v Anderson [1981] VR 155.

182. (1979) 143 CLR 458.

183. (1988) 164 CLR 465. See also R v Kocan [1966] 2 NSWR 565; R v Nell [1969] 2 NSWR 563; R v Leaver (1981) 6 A Crim R 141.

184. Veen (No 1) at 494.

185. (1981) 6 A Crim R 141.

186. Veen (No 2) at 472.

187. Veen (No 2) at 472

188. Veen (No 2) at 485-486

189. Veen (No 2) at 488

190. Veen (No 2) at 489; and see at 491 per Deane J.

191. Veen (No 2) at 474 (as Mason J had indicated in Veen (No 1) at 468).

192. Veen (No 2) at 477. In R v Chivers (1991) 54 A Crim R 272, Thomas J had difficulty reconciling these two passages.

193. For example R v Barton (NSW CCA, No 60740/94, 28 July 1995, unreported).

194. Consider dicta in Baumer v The Queen (1988) 166 CLR 51 at 57-58 and some other cases (eg R v Chivers (1991) 54 A Crim R 272 at 280 per Thomas J, at 292 per Cooper J (Qld CCA); R v Gooch (1989) 43 A Crim R 382 at 388 per Malcolm CJ (WA CCA)) which may be inconsistent with the majority view in Veen (No 2). See also R G Fox, “The Killings of Bobby Veen” (1988) 12 Crim LJ 339 at 348 and 354. Compare paras 3.36 and 5.39.

195. Warner at 285.

196. For example R v Masolatti (1976) 14 SASR 124.

197. R v Letteri (NSW CCA, No 60407/91, 18 March 1992, unreported) at 14 per Badgery Parker J (with whom Gleeson CJ and Sheller JA agreed). See also R v Champion (1992) 64 A Crim R 244. Compare R v Mason-Stuart (1993) 68 A Crim R 163 at 164; R v Shinfield (NSW CCA, No 60090/93, 13 May 1993, unreported); R v Heather (NSW CCA, No 60933/93, 1 August 1995, unreported). Compare R v Russell (NSW CCA, No 60248/94, 15 December 1995, unreported).

198. See Ciaston (1987) 27 A Crim R 285 at 286.

199. (1990) 51 A Crim R 336. Compare R v Leaver (1981) 6 A Crim R 141.

200. See paras 5.50-5.53.

201. (1986) 20 A Crim R 402 (WA CCA). See also R v De Souza (NSW SC, No 70105/94, 10 November 1995, Dunford J, unreported); R v Redenbach (1991) 52 A Crim R 95 at 99; R v Harradine (1991) 61 A Crim R 200 (that D was grossly affected by alcohol and drugs at the time of the rape of his de facto wife was held to be no excuse); R v Austin [1971] Tas SR 227 at 228.

202. (1986) 20 A Crim R 402 at 405.

203. (1981) 5 A Crim R 204. See also R v Coleman (1990) 67 A Crim R 306 at 327 per Hunt CJ at CL.

204. R v Dowie [1989] Tas R 167 at 185.

205. R v Halewyn (1984) 12 A Crim R 202 (armed robbery of service station to support heroin addiction).

206. (1979) 22 SASR 543 at 549. See also R v Valentini (1989) 46 A Crim R 23 (NSW CCA); R v Ellis (1993) 68 A Crim R 449 (NSW CCA).

207. For example R v Talbot (1991) 59 A Crim R 383.

208. For example R v Fabian (1992) 64 A Crim R 365; R v Halewyn (1984) 12 A Crim R 202.

209. See paras 5.50-5.53.

210. R v Coleman (1990) 67 A Crim R 306 at 327 (NSW CCA); R v Sewell (1981) 5 A Crim R 204 at 207. See also Fox and Freiberg at 471-473.

211. R v Wicks (1989) 44 A Crim R 147 (WA CCA); R v Coleman 67 A Crim R 306.

212. Baumer v The Queen (1988) 166 CLR 51, followed in R v Maurice (1992) 61 A Crim R 30 at 45.

213. R v Holder [1983] 3 NSWLR 245; R v Gray [1977] VR 225 at 231; Shannon (1979) 21 SASR 442; R v Neal (1982) 149 CLR 305 at 325 per Murphy J. See also Crimes Act 1914 (Cth) s 16A(2)(f); Criminal Law (Sentencing) Act 1988 (SA) s 10(f); Crimes Act 1900 (ACT) s 429A(1)(v).

214. The Australian Law Reform Commission divided 4:3 on the issue: see Sentencing (ALRC 44, 1988) at paras 173-174. A sentencing indication scheme, designed in part to encourage early pleas of guilty which attracted a sentencing discount, operated in New South Wales between 1993 and 1995 (when it was abandoned). For an evaluation of the scheme, see D Weatherburn, E Matka and B Lind, Sentence Indication Scheme Evaluation - A Final Report (NSW Bureau of Crime Statistics and Research, Sydney, October 1995).

215. For example R v Harris [1967] SASR 316.

216. For example R v Osmond [1987] 1 Qd R 429; R v Schumacher (1981) 3 A Crim R 441.

217. R v Fisher (1989) 40 A Crim R 442 (NSW CCA).

218. R v Slater (1984) 36 SASR 524 at 526 per King CJ.

219. The following statutory provisions also require a guilty plea to be taken into account: Crimes Act 1914 (Cth) s 16A(2)(g); Sentencing Act 1991 (Vic) s 5(2)(e); Criminal Law (Sentencing) Act 1988 (SA) s 10(g); Penalties and Sentences Act 1992 (Qld) s 13; Crimes Act 1900 (ACT) s 429A(1)(u); Sentencing Act 1995 (NT) s 5(2)(j). Generally, these provisions clearly apply independently of any other attribute in the offender such as remorse: see R v Morton (1986) 23 A Crim R 433 at 437 (Vic CCA).

220. R v Winchester (1992) 58 A Crim R 345 at 350.

221. [1983] 3 NSWLR 245.

222. (1986) 6 NSWLR 603 at 604.

223. (1990) 48 A Crim R 1.

224. (1992) 58 A Crim R 345.

225. Bond at 6. See also R v Pereira (1991) 57 A Crim R 46 (where pleas of guilty did not attract the full discount because of the inevitability of conviction).

226. Bond at 8.

227. For a recent discussion, see J Willis, “New Wine in Old Bottles: The Sentencing Discount for Pleading Guilty” in A Kapardis (ed), Sentencing (La Trobe University Press, Bundoora, 1995) (Special Issue 13 No 2 of Law in Context) Chapter 4.

228. See R v Shannon (1979) 21 SASR 442 at 448-450 per King CJ; R v Bond (1990) 48 A Crim R 1 at 7-8 per Kirby P; R v Jabaltjari (1989) 46 A Crim R 47. See also G Zdenkowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson, The Australian Criminal Justice System- the mid 1990s (Butterworths, Sydney, 1994) at 172. See also Sentencing (ALRC 44, 1988) at para 173.

229. R v Jabaltjari (1989) 46 A Crim R 47.

230. R v Dowie [1989] Tas R 167 at 184.

231. For example R v Shannon (1979) 21 SASR 442 at 453 per King CJ.

232. For example R v Giakas (1988) 33 A Crim R 23 at 27; Bulger (1990) 48 A Crim R 239 at 244.

233. For example Ellis (1986) 6 NSWLR 603 at 604; Pereira (1991) 57 A Crim R 46 at 48 (CCA).

234. Sentencing Act 1995 (WA) s 8(2).

235. Crimes Act 1900 (NSW) s 439(1)(b). See also Penalties and Sentences Act 1992 (Qld) s 13(2); Sentencing Act 1991 (Vic) s 5(2)(e).

236. See para 5.74.

237. (1991) 57 A Crim R 46.

238. Pereira at 48.

239. (1980) 2 Cr App R (S) 168.

240. R v Bulger (1990) 48 A Crim R 239 at 244. But see R v Marshall (1992) 62 A Crim R 162 at 170 per Davies JA and Williams J (Qld CCA) (no credit for the plea of guilty because of inevitability of conviction for the offence).

241. Winchester (1992) 52 A Crim R 345 at 350 per Hunt CJ at CL.

242. R v Slater (1984) 36 SASR 524 at 526 per King CJ. See also Bond (1990) 48 A Crim R 1 at 7 per Kirby P.

243. For example Penalties and Sentences Act 1992 (Qld) s 3(3) and (4).

244. Crimes Act 1900 (NSW) s 439(2).

245. Victorian Sentencing Manual at 275.

246. For example R v Shannon (1979) 21 SASR 442 at 449 per King CJ.

247. R v Jabaltjari (1989) 46 A Crim R 47 at 62 per Asche CJ.

248. Jabaltjari at 62-3.

249. See R v Morton (1986) 23 A Crim R 433 at 438; R v Pavlic (Tas CCA, No A51 of 1995, 25 August 1995, per Green CJ and Wright J, unreported).

250. See paras 5.117-5.123.

251. See R v Harris (1992) 59 SASR 300 at 302; Pavlic per Slicer J.

252. See paras 5.117-5.123.

253. Pavlic at para 47.

254. For example R v Phelan (1993) 66 A Crim R 446 (NSW CCA).

255. R v Chalone (1990) 49 A Crim R 370 (NSW CCA).

256. [1959] Qd R 395 at 400-401.

257. R v Phelan (1993) 66 A Crim R 446 at 448 per Hunt CJ at CL.

258. Phelan at 450.

259. Crimes Act 1914 (Cth) s 16A(2)(f); Criminal Law (Sentencing) Act 1988 (SA) s 10(f).

260. (1984) 13 A Crim R 365.

261. Mickelburg at 370. See also R v Allen (1989) 41 A Crim R 51 (Vic CCA) (which is to the same effect).

262. Crimes Act 1900 (ACT) s 429A(1).

263. Crimes Act 1900 (ACT) s 429A(1)(f).

264. (1976) 14 SASR 291 at 264.

265. Vic CCA, 13 December 1976, unreported (quoted by F Rinaldi in Papamihail [1980] 4 Crim L J 192).

266. Consider R v Nicholls (1991) 53 A Crim R 455 at 456, and Crimes Act 1900 (ACT) s 429A(1)(f).

267. See also Sentencing Act 1991 (Vic) s 5(2A)(b) (a sentencing court must not have regard to a forfeiture order made under the Crimes (Confiscation of Profits) Act 1986 (Vic) in respect of property derived or realised as a result of the commission of the offence). See also Sentencing Act 1995 (WA) s 8 (forfeiture of property to the Crown is not a mitigating factor).

268. See Sentencing Act 1991 (Vic) s 5(2B).

269. See para 5.78.

270. See paras 10.46-10.47.

271. See paras 5.67-5.80.

272. See paras 5.98-5.104.

273. For legislative provisions in other jurisdictions, see Penalties and Sentences Act 1992 s 9(2)(i), Crimes Act 1914 (Cth) s 16A(2)(h); Crimes Act 1900 (ACT) s 429A(1)(h); Sentencing Act 1995 (NT) s 5(2)(h); Criminal Law (Sentencing) Act 1988 (SA) s 10(h).

274. (1986) 6 NSWLR 603.

275. Ellis at 604, applied in R v Stuart (1990) 47 A Crim R 293 (NSW CCA). See also R v Heard (1987) 34 A Crim R 320 (NSW CCA) where an appeal against severity of sentence was allowed and a non-custodial sentence substituted where the appellant surrendered to the police, admitted guilt, identified two co-offenders and gave evidence for the Crown.

276. (1990) 48 A Crim R 1.

277. Bond at 15.

278. R v Stuart (1990) 47 A Crim R 293 (D confessed to offences committed at large and for which he was not suspected, when arrested for escape).

279. G Zdenkowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson, The Australian Criminal Justice System-the mid 1990s (Butterworths, Sydney, 1994) at 173-175.

280. See para 5.94.

281. For provisions in other jurisdictions, see Crimes Act 1914 (Cth) s 16A(2)(h); Penalties and Sentences Act 1992 (Qld) s 9(2)(i); Crimes Act 1900 (ACT) s 429A(h); Sentencing Act 1995 (NT) s 5(2)(h).

282. The further question whether or not failure to co-operate as promised should be a ground of appeal is answered in the affirmative by s 5DA of the Criminal Appeal Act 1912 (NSW). See also Crimes Act 1914 (Cth) s 21E.

283. R v Cartwright (1987) 17 NSWLR 243 at 255 per Hunt and Badgery-Parker JJ, at 245 per Mahoney JA; R v Salameh (1991) 55 A Crim R 384 at 386 per Smart J, at 388 per Kirby P, at 392 per Lee CJ at CL; R v Gallagher (1991) 23 NSWLR 220 at 230 per Gleeson CJ, at 234 per Hunt J; R v Davies (NSW CCA, No 60575/94, 1 December 1995, unreported).

284. Gallagher at 259.

285. (1990) 59 A Crim R 164.

286. Perrier at 172.

287. Perrier at 175.

288. (1991) 54 A Crim R 294 at 305.

289. Heaney [1992] 2 VR 531 at 560

290. R v Harris (1992) 59 SASR 300 at 301; R v J (1992) 64 A Crim R 441.

291. Crimes Act 1914 (Cth) s 21E(1). See also R v Nagy [1992] 1 VR 637 at 649 per McGarvie J dissenting.

292. (1991) 23 NSWLR 220.

293. Gallagher at 233.

294. R v Morton [1986] VR 863; R v Young [1990] VR 951; R v Nagy [1992] 1 VR 637 per Crockett and Phillips JJ; McGarvie J dissenting. See also paras 5.118-5.119.

295. (1994) 76 A Crim R 92.

296. Mundy at 97.

297. R v Perez-Vargas (1986) 8 NSWLR 559 at 565.

298. R v Cartwright (1989) 17 NSWLR 243 at 257.

299. R v Schioparlan (1991) 54 A Crim R 294 at 303.

300. (1990) 52 A Crim R 54.

301. R v Witham [1949] QJP 68; R v Harris [1967] SASR 316. See also Crimes Act 1900 (ACT) s 429B(f) and (g).

302. [1977] VR 225 at 231.

303. (1991) 55 A Crim R 116.

304. (1991) 54 A Crim R 431.

305. Marijancevic at 446.

306. Sentencing Act 1991 (Vic) s 5(2C).

307. See para 5.66.

308. R v Turner (1981) 6 A Crim R 265 (NSW CCA) (delay caused by the technical administrative oversight of charging offender with escape under State instead of federal law); R v Allard (1991) 52 A Crim R 460 (NSW CCA) (staleness of offence mitigating where offender not put on trial and sentenced for almost 5 years from apprehension for supplying heroin).

309. R v Crawley (1982) 5 A Crim R 451; R v Murrell (1985) 15 A Crim R 303 at 307 per Fox J.

310. R v Smith (1982) 7 A Crim R 437 at 442.

311. R v Smith (1982) 7 A Crim R 437 at 442.

312. R v Todd [1982] 2 NSWLR 517 at 519.

313. R v Crawley (1981) 36 ALR 241.

314. See Fox and Freiberg para 11.516.

315. R v Dodd (1991) 57 A Crim R 349.

316. (1928) 41 CLR 230 at 240. See also Crimes Act 1900 (ACT) s 429A(1)(q).

317. See R v Tappy [1960] VR 137 at 139; R v Harris [1961] VR 236 at 237.

318. For example Crimes Act 1900 (ACT) s 429A(p).

319. R v McDonald (1994) 71 A Crim R 370 at 380.

320. R v Del Piano (1990) 45 A Crim R 199 at 208, 215 (disqualification from acting as a company director and disbarment from legal profession).

321. See paras 5.54.

322. (1986) 30 A Crim R 95.

323. R v Kogelbauer (1992) A Crim R 357; R v Pereira (1991) 57 A Crim R 46 at 49.

324. Sentencing (ALRC 44, 1988) at para 170.

325. Tame v Fingleton (1974) 8 SASR 507 at 511; R v Mitchell [1974] VR 625 at 631; R v Tilley (1991) 53 A Crim R 1; R v Jany [1966] Qd R 328; Jarrett v Samuels (1972) 4 SASR 78.

326. See R v Alexander (1994) 78 A Crim R 141 at 145. See also R v Boyle (1987) 34 A Crim R 202.

327. Sentencing (ALRC 44, 1988) at para 172.

328. See Crimes Act 1914 (Cth) s 16A(2)(p); Criminal Law (Sentencing) Act 1988 (SA) s 10(n); Crimes Act 1900 (ACT) s 429A(1)(m).

329. See DPP v El Karhani (1990) 21 NSWLR 370 at 383; R v Sopher (1993) 70 A Crim R 570 at 575. Compare R v Van de Heuval (1992) 63 A Crim R 75 (NSW CCA).

330. R v Adami (1989) 42 A Crim R 88 (SA CCA); R v Sinclair (1990) 51 A Crim R 418 (WA CCA); R v Burns (1994) 71 A Crim R 450 (WA CCA).

331. Lowe v The Queen (1984) 154 CLR 606.

332. It should be recalled that parity between co-offenders does not automatically follow where there are relevant differences in terms of degree of participation in the offence and in the backgrounds of the co-offenders: see para 3.38.

333. (1984) 154 CLR 606.

334. Warner at 293-294.

335. R v Williscroft [1975] VR 292 at 300.

336. [1990] VR 951.

337. Young at 960. See also R v Nagy [1992] 1 VR 637 at 638 per Crockett J (with whom Phillips J agreed), contra at 650 per McGarvie J; R v Beaven (NSW CCA, NSW, 22 August 1991, unreported); R v Morgan (1993) 70 A Crim R 368.

338. R v Ireland (1987) 49 NTR 10 at 23; R v Jabaltjari (1989) 64 NTR 1 at 20; R v Raggett (1990) 101 FLR 323 at 334; Punch v The Queen (1993) 9 WAR 486 at 493. Compare R v Longshaw (1993) 114 FLR 423 at 426 per Kearney J (CCA NT).

339. R v Lett (NSW CCA, No 60112/94, 27 March 1995, unreported). See also R v Gallagher (1991) 23 NSWLR 220 at 233; R v Garforth (NSW CCA, No 60500/93, 23 May 1994, unreported) at 7; R v Twala (NSW CCA, No 60187/93, 4 November 1994, unreported) at 6.

340. Lett at 8.

341. (1990) 169 CLR 525.

342. Bugmy at 535-36.

343. See A Freiberg, “Sentencing Reform in Victoria: A Case-Study” in C Clarkson and Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995) at 61-62. See also C Corns, “Destructuring Sentencing Decision-Making in Victoria” (1990) 23 Australian and New Zealand Journal of Criminology 145.

344. Corns at 155-156.

345. See 5.117-5.119, and Chapter 3.

346. Punch at 496.

347. R v Morgan (1993) 70 A Crim R 368. Allen J and Loveday AJ agreed with Hunt CJ at CL.

348. R v Warfield (1994) 34 NSWLR 200. McInerney and James JJ agreed with Hunt CJ at CL.

349. Morgan at 371; Warfield at 207.

350. D A Thomas, Principles of Sentencing (Second edition, Heinemann, London 1979) at 29 (emphasis added).