2 Procedure


Introduction

[2.1] It is for the sentencing court to decide the facts material to sentencing, and to determine the sentence in accordance with the applicable law. The composition of the sentencing court will be determined by legislation conferring jurisdiction. In NSW, the vast bulk of sentencing is performed by a magistrate in the Local Court. Sentencing for the most serious offences will be performed by judges (even in cases where a jury has determined the issue of guilt1) Cheung [2001] HCA 67, 209 CLR 1, Gleeson CJ, Gummow and Hayne JJ at [4]–[5], [16].). All such judicial officers are appointed in a way designed to ensure judicial independence, as measured by appointment processes, tenure, and resistance to external influences. Subject to important qualifications, determination of facts for the purposes of a sentencing hearing should proceed in accordance with ordinary legal principles applicable to a criminal trial.2) Chow (1992) 28 NSWLR 593 at 605. The major qualifications to this proposition are:

  • some facts will be determined as a matter of law by the plea of guilty or the verdict of guilty
  • some facts potentially relevant to determination of an appropriate sentence need not be determined
  • informal procedures may be adopted in determining facts

There are also particular aspects of procedure unique to sentencing proceedings. In addition, there is a statutory mechanism allowing sentencing proceedings to be re-opened to correct error.

Principles of criminal procedure

Summary

As a general proposition, a sentencing proceeding should proceed in accordance with ordinary legal principles applicable to a criminal trial:

  • proceedings in public
  • adversarial procedure
  • procedural fairness
  • “accusatorial” elements
  • special duties imposed on the prosecution
  • rules of evidence apply

However, there are important qualifications to these general principles in sentencing proceedings.

[2.2] Putting the important qualifications to the side for the moment, the ordinary legal principles applicable to a criminal trial that also apply in sentencing proceedings may be summarised as follows:

Proceedings in public

[2.3] Unless required by statutory provision, the sentencing of an offender should occur in open court.3) Page [1977] 2 NSWLR 173. There should be no communication with the judicial officer in chambers.4) Warby [1983] 1 NSWLR 289; Foster (1992) 25 NSWLR 732; Milsom [2014] NSWCCA 142 at [103]. Evidence received in sentencing proceedings should, as a general principle, be tendered in open court.5) Otway [2005] NSWCCA 352 at [13]. However, where the offender is a child6) The Children (Criminal Proceedings) Act 1987 (NSW) defines a “child” to mean a person who is under the age of 18 years., special procedures apply to all criminal proceedings.7) See Children (Criminal Proceedings) Act 1987 (NSW) s 10 (exclusion of the general public from criminal proceedings); ss 15A-15G (publishing and broadcasting of names). Special rules also apply to criminal proceedings in relation to prescribed sexual offences.8) See Criminal Procedure Act 1986 (NSW), ss 290-291C.

Adversarial procedure

[2.4] Sentencing proceedings adopt adversarial procedures.9) Madden [2011] NSWCCA 254 at [29]; see also Sills [2011] NSWCCA 271 at [50]; Milsom [2014] NSWCCA 142 at [92]; Capaldo [2015] SASCFC 56 at [8]. The court must avoid bias (actual or apprehended) and prejudgment.10) See, for example, Milsom [2014] NSWCCA 142 at [122], [142]-[146], [150]-[160]; Murray [2015] NSWCCA 75 at [16]; Capaldo [2015] SASCFC 56 at [8], [35], [70]. ]; Ford [2016] NSWCCA 69 at [26]-[28]; Tarrant [2018] NSWCCA 21 at [72]; Mansweto [2018] NSWCCA 232 at [35]-[65]. Of course, there is no bias if, in cases where the offending is, for example, of extreme depravity, the sentencing judge simply holds and expresses the view that the offender’s conduct was extremely depraved: Ford [2016] NSWCCA 69 at [22]. It is not the role of the sentencing court to seek out evidentiary material, nor to determine the scope of the evidence put before the court.11) Milsom [2014] NSWCCA 142 at [94]; Ellis [2015] NSWCCA 262 at [70]. While a court may identify additional material that would assist in the sentencing process, the court must be very circumspect in intruding into the role of counsel.12) Madden [2011] NSWCCA 254 at [29]]; Milsom [2014] NSWCCA 142 at [95]-[96]; Capaldo [2015] SASCFC 56 at [9]-[17]. A sentencing court cannot insist on legal representation or the obtaining of further evidence in the face of constant requests by an unrepresented offender to proceed with sentencing.13) Kelly [2016] NSWCCA 246 at [27]. Save in the most exceptional circumstances, the court should not take the initiative to call a person to give evidence.14) Chow (1992) 28 NSWLR 593 at 605. The court may properly invite a prosecutor to reconsider a decision concerning the calling of evidence. But the court cannot direct the prosecutor to call or tender evidence. However, where the offender is a child15) The Children (Criminal Proceedings) Act 1987 (NSW) defines a “child” to mean a person who is under the age of 18 years., special procedures apply.16) For example, under s 12(4) of the Children (Criminal Proceedings) Act 1987 (NSW) a court is required to “give the child the fullest opportunity practicable to be heard, and to participate, in the proceedings”. The Children’s Court has special obligations with regard to explaining the procedure of the Court to a child: s 12(3). While a court may ask questions of a witness (including an offender who chooses to testify)17) Pleasance [2016] NSWCCA 113 at [83]., there are limitations on such questioning.18) See, for example, Milsom [2014] NSWCCA 142 at [125]-[126]; Ellis [2015] NSWCCA 262 at [57]-[75] (the conduct of the sentencing judge “deprived the [offender] of the opportunity to properly present his case”); Goldberg 2018] NSWCCA 99, White JA at [11] (judge asking leading questions of offender). However, the questioning of the offender in Pleasance [2016] NSWCCA 113 was not unfair because the judge sought clarification of perceived inconsistencies and the offender was “given every opportunity to clarify her evidence” (at [83]-[89]).

Procedural fairness

[2.5] The sentencing court must accord procedural fairness to the parties (and particularly to the offender).19) Pantorno [1989] HCA 18, 166 CLR 466 at 483 (see also 473-4); S D [2013] VSCA 133 at [33]-[53]. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1 at [34]-[37]; Thomson [2014] NSWCCA 88 at [52]-[53]. For an example of a case where there was a denial of procedural fairness to the prosecution, see White [2018] NSWCCA 238. For example:

  • Sentencing should, as a general principle, occur in the presence of the offender (although there would be no breach of the principle where the offender chooses not to be present20) As regards circumstances in which the offender may be taken to have waived the right to be present, see McHardie (1983) 2 NSWLR 733; Jones [1998] SASC 7021; Mokbel [2010] VSCA 11; Taupati [2017] VSCA 106 at [20]-[34].). This proposition applies generally to sentencing of indictable offences.21) CJP [2003] NSWCCA 187 at [29]–[37]. The principle extends to requiring the offender to understand the language of the proceedings and that may require the provision of an interpreter.22) See Mayen v Ryan (No 2) [2014] ACTSC 33 at [52]-[60]; Capaldo [2015] SASCFC 56 at [14]-[17]. However, in respect of summary proceedings, s 199 of the Criminal Procedure Act 1986 (NSW) permits proceedings to be heard in the absence of the offender, although s 25 of theCrimes (Sentencing Procedure) Act 1999 (NSW) (hereafter referred to as the “NSW Act”) substantially restricts the sentencing orders that may be made if the offender is absent.23) See Chapter 6 Courts at [6.3].
  • The offender should have a reasonable opportunity to adduce admissible evidence.24) See McPherson [2011] SASCFC 105 (sentencing judge should have granted adjournment to allow offender to obtain an expert report); McGrath [2018] VSCA 134 (proceedings should have been adjourned notwithstanding judge about to retire). This may arise even in circumstances where facts have been agreed: see Mulligan [2016] NSWCCA 47 at [20]-[21] (and see [2.24] below).
  • The offender should have an opportunity to cross-examine any prosecution witness (at least, where the witness will be relied upon by the sentencing court).25) Le [2007] NSWCCA 330. In B [2015] NSWCCA 103, it was held that there was no denial of procedural fairness in a case where the offender was denied the opportunity to cross-examine the maker of a “victim impact statement” where “reliance was not placed on the ‘victim impact statements] in a manner adverse to” the offender, “particularly where the indicated scope of cross-examination bore the hallmarks of cross-examination for a collateral purpose” (Ward JA at [206], Wilson J agreeing).
  • A failure on the part of the sentencing court to disclose matters of concern, or a course of conduct contemplated, may breach procedural fairness.26) Anderson (1992) 27 NSWLR 701; Chow (1992) 28 NSWLR 593 at 606. Thus, the court should give due notice to the offender if a factual concession by the prosecution will not be accepted by the court as the basis for sentencing.27) Baroudi [2007] NSWCCA 48. See also S D [2013] VSCA 133 at [48]-[49]. The Victorian Court of Appeal has held that this principle does not extend to concessions regarding sentencing range: Smith [2013] VSCA 219 at [20]. However, see [2.46] below. Where there is an agreed statement of facts placed before the sentencing court, and there is also material either inconsistent with, or in amplification of, some aspect of the facts in that statement, the court should not act upon that material without having brought it to the attention of the parties during the course of submissions so that the parties can deal with it.28) DL [2018] HCA 32, 92 ALJR 764 at [39]; Uzabeaga [2000] NSWCCA 381, 119 A Crim R 452 at [35]; Falls [2004] NSWCCA 335 at [37]; Mohamad [2005] NSWCCA 406 at [14]-[15]; Govindaraju [2011] NSWCCA 255 at [52]–[57]; Tran [2018] NSWCCA 220 at [108]-[113]. See also Lowe [2009] VSCA 268 at [15]-[17]; Perry [2016] VSCA 152 at [93]-[96]. Where counsel for the offender proceeds on the assumption that, as a matter of law, there is no obligation on the defence to adduce evidence on an issue, and the prosecution does not take issue with this, the court should indicate any lack of acceptance of the assumption.29) Pantorno [1989] HCA 18, 166 CLR 466 at 482-483 [11]–[12].
  • A prosecutor who does not accept the evidence of a witness called by the offender should put the alternative view in cross-examination, so that the witness may respond and so that the court has the benefit of assessing that response.30) O’Neil-Shaw [2010] NSWCCA 42 at [27], [51].
  • Where there has been no cross-examination of witnesses to contest their evidence, “judges should in general abstain from making adverse findings about parties and witnesses”.31) O’Neil-Shaw [2010] NSWCCA 42 at [27]; Devaney [2012] NSWCCA 285 at [88]; Van Zwam [2017] NSWCCA 127 at [113]. However, it will depend on the circumstances.32) Cherdchoochatri [2013] NSWCCA 118, 277 FLR 126 at [48]-[57]. The sentencing court may give no, or less, weight to evidence adduced to contradict the witness and no, or less, weight to an inference sought to be drawn which was not put to the witness. Prima facie, unchallenged evidence should be accepted by the sentencing court, although the court is not bound to accept it. A court can sometimes reject evidence that has not been cross-examined on, if, for example, it was inconsistent with agreed facts or other evidence that the court accepted, or was inherently incredible.33) Reberger [2011] NSWCCA 132 at [48]; Khanwaiz [2012] NSWCCA 168 at [96]-[100]; Cherdchoochatri [2013] NSWCCA 118 at [52], [62]; Lam [2015] NSWCCA 143 at [62]-[64]. However, while a sentencing court is not bound to accept evidence of any witness simply because it has not been challenged in cross-examination, fairness would usually require that the court indicate that it is not prepared to act upon the evidence in order to permit the party that called the witness to address on it or to lead further evidence to support it.34) Falls [2004] NSWCCA 335 at [34]–[35]; Heath [2016] NSWCCA 24 at [50]. See also Lowe [2009] VSCA 268 at [20]; Gibbs [2012] VSCA 241 at [29]-[30]; S D [2013] VSCA 133 at [35]-[36]. However, compare Wang [2013] NSWCCA 2 at [2], [68]-[78], [119]. In Lam [2015] NSWCCA 143, it was held that it should have been apparent that an expert’s opinion might be rejected if the factual assumptions on which it was based were not established. See also Gifford [2016] NSWCCA 302, 263 A Crim R 373 at [89]-[93]. Further, a failure to warn that an expert opinion may not be accepted may be immaterial if the opinion has no material bearing on the determination of sentence: Ross [2015] VSCA 302 at [25]-[33]. Similarly, where an offender makes an assertion of fact in respect a matter where he or she has the onus of proof and that assertion is not contested by the prosecution, the court should give notice of an inclination not to accept it.35) Ryan [2003] NSWCCA 202, 141 A Crim R 403 at [29]; Cherdchoochatri [2013] NSWCCA 118 at [10], [58]. See also Beevers [2016] VSCA 271 at [38]-[39]. However, in Newman [2018] NSWCCA 208, the assertion was made out of court and was untestable, so that the prosecution did not need to address the issue (at [28]).
  • The parties have a right to make submissions on sentence (and the appropriate order).36) Tocknell (unreported, NSWCCA, 28 May 1998); Ex parte Kelly; Re Teece [1966] 2 NSWR 674 at 678; White [2018] NSWCCA 238 at [11]-[12]. See also [2.46.5] below regarding the scope of permissible submissions. Although there is no recognised right to make submissions with knowledge of the factual basis upon which the offender will be sentenced, Redlich JA of the Victorian Court of Appeal observed in Formosa [2012] VSCA 298 at [3]: “Where there is a factual issue in dispute on the plea which might substantially affect the view that is taken of the objective gravity of the offence or the degree of criminality of the offender or some matter relied upon in aggravation or mitigation of penalty, it will usually be desirable that the sentencing judge announce his or her findings at the completion of hearing any evidence and submissions directed to that dispute. Although reasons for the findings may await the sentencing remarks, sufficient needs to be said as to the intended findings before the balance of the plea in mitigation is conducted, so that the parties have an opportunity to make submissions in the light of those findings” (emphasis not in original).
  • A concession made by the prosecutor need not be accepted by the sentencing court, but the court should give notice of an inclination not to accept the concession.37) Pantorno [1989] HCA 18, 166 CLR 466 at 473 [11], 482-483 [11]–[12]; Schofield [2003] NSWCCA 3, 138 A Crim R 19; Murray [2015] NSWCCA 75 at [22]; Portelli [2015] VSCA 159 at [46]; Lehn [2016] NSWCCA 255, 262 A Crim R 537 at [65]; Suleiman [2017] WASCA 26 at [46]-[50]; Aitkin [2017] VSCA 103 at [81]; Brown [2018] VSCA 328 at [74]. See also Collins [2018] HCA 18 at [32]. However, a prosecution concession that sentences “could” be made concurrent does not require a sentencing judge to give notice of an inclination to make them (partially) cumulative: Toole [2014] NSWCCA 318, 247 A Crim R 272 at [46]-[48]. An indication that the prosecution “does not want to be heard” on a matter does not necessarily constitute a concession: Rodgers [2018] NSWCCA 47 at [97], [131].
  • A sentencing court that intends to rely on information obtained in other cases or elsewhere (for example, as a matter of judicial notice) should disclose that intention to the parties in the instant case so as to afford the parties an opportunity of objecting or of taking other steps.38) JRB [2006] NSWCCA 371 at [42]; Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [85]-[87]. On the other hand, a breach of the obligation to afford procedural fairness would not be established merely because a sentencing court referred to another sentencing decision that was not adverted to in the submissions of the parties.39) Munday [2017] NSWCCA 95 at [25].
  • There may be a denial of procedural fairness where the offender relied upon a representation by the sentencing court that a particular sentence was to be imposed (or that a particular sentence would not be imposed), or that a particular finding critical to the determination of sentence would be made, and the court departed from that representation without notice to the offender.40) Parker (1992) 28 NSWLR 282 at 296; Button [2010] NSWCCA 264; Weir [2011] NSWCCA 123; Ng [2011] NSWCCA 227, 214 A Crim R 191 at [49]; BT [2012] NSWCCA 276, 227 A Crim R 354 at [40]-[42] (no such representation given); Nair [2013] NSWCCA 79; Tran [2014] NSWCCA 85 at [15]-[17] (representation as to level of “objective seriousness”); Thomson [2014] NSWCCA 88 (no representation where said only that a particular sentence was “likely”); Milsom [2014] NSWCCA 142 at [120]-[121] (sentence higher than range indicated). In Tuvunivono [2013] NSWCCA 176 it was held at [55] that sufficient notice was given in a case where the sentencing judge began to deliver the sentencing remarks but gave the parties an opportunity to make further submissions before sentence was passed. The offender has lost the opportunity to make submissions to the court in opposition to the course ultimately taken.41) Weir [2011] NSWCCA 123 at [67]. However, if the offender had full opportunity to make submissions prior to the representation from the sentencing court, there may be no denial of procedural fairness: Dang [2014] NSWCCA 47 at [43]-[48]. Thus, for example, a sentencing court would not accord procedural fairness if an offender was led to believe that a particular discount on sentence would be given for some mitigating factor (such as the utilitarian value of a guilty plea) and then a lesser discount was given.42) Trujillo-Mesa [2010] NSWCCA 201. There would be a breach of the principles of procedural fairness for a sentencing court to indicate in sentencing proceedings that accumulation of sentences was not being considered and then to impose accumulation without warning to the offender.43) Fairbairn [2006] NSWCCA 337, 165 A Crim R 434 at [2]. However, in Thomson [2014] NSWCCA 88 there was no such indication and the sentencing judge was not obliged to signal to the parties in advance of his decision whether he accepted the Crown's submission on accumulation (at [61]).
  • There may be a denial of procedural fairness where the court makes a finding adverse to the interests of the offender and had not given any indication that such a finding might be made. Thus, for example, if the offender contends for a ratio of non-parole period to term of less than 75% and the prosecutor does not contend for a ratio greater than 75%, the sentencing judge should give notice that ratio greater than 75% is being contemplated - because that is a rare outcome that would have been resisted if foreshadowed.44) Brennan [2018] NSWCCA 22 at [2]-[4], [97]. If a sentencing court considers that an aggravating factor is present, the court should, in fairness to the offender, indicate this to the offender so that the offender will have an opportunity to attempt to persuade the court that the aggravating feature is not present or for some reason it should not be taken into account.45) Tadrosse [2005] NSWCCA 145 at [19]; Stokes [2008] NSWCCA 123, 185 A Crim R 74 at [14]; Ng [2011] NSWCCA 227, 214 A Crim R 191 at [50]; Milsom [2014] NSWCCA 142 at [126]-[127]; Chong [2017] NSWCCA 185 at [8]-[15], [37]-[39]. See also Chol [2012] VSCA 204 at [22]-[30] (question of prevalence needed to be raised unless "notorious"). However, it will depend on the facts of the case.46) Ly [2014] FCAFC 175 at [103]-[106]. For an example of a case where members of the appeal court came to different views as to whether there was a denial of procedural fairness in a case where the sentencing judge did not give notice that she was contemplating finding a matter of aggravation (where the prosecution had not submitted that it should be found), see KAB [2015] NSWCCA 55. In Forrest [2017] NTCCA 5 the Northern Territory Court of Criminal Appeal held at [61] that a “finding by a sentencing judge in relation to an aggravating or mitigating circumstance will not constitute a breach of procedural fairness by reason only of the fact that the matter was not the subject of express treatment in the course of sentencing submissions” and that, “[i]in the particular circumstances of this case, the sentencing court was entitled to assume that counsel would be aware of the manners in which intoxication could potentially be taken into account”, including as a matter in aggravation. If the prosecutor has expressly relied on the aggravating factor, that will be sufficient.47) Longworth [2017] NSWCCA 119 at [21]-[25]. Whilst a court is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material, there is no obligation to expose mental processes or provisional views.48) Ly [2014] FCAFC 175 at [103]; Tweedie [2015] NSWCCA 71 at [24]-[26], [54]-[58]. Further, it has been held that there has been no unfairness if any opportunity to oppose the adverse conclusion would not have been taken.49) Dennis [2015] NSWCCA 297, Beech-Jones J (Johnson J agreeing) at [50]. RS Hulme AJ disagreed, holding at [63] that there was a denial of procedural fairness (but his Honour would have dismissed the appeal that “it is impossible to believe” further submissions would or might have had any impact”). Where the onus of proof is on the offender, the risk that the sentencing court will not be satisfied that the onus has been discharged will usually be readily apparent.50) See Newman [2018] NSWCCA 208 at [29]-[32]; Morgan [2016] VSCA 143 at [51]; Collins [2018] SASCFC 97 at [17].
  • A sentencing court contemplating the imposition of a custodial sentence should normally give clear notice to that effect so that the offender can respond and draw attention to alternative non-custodial sentences that might be appropriate.51) Parker (1992) 28 NSWLR 282 at 289G.
  • A failure of sentencing court contemplating imposing a sentence which may be considered unusual or an additional penalty which is unusual to give clear notice to that effect may involve a denial of procedural fairness.52) See Robertson [2017] QCA 164 at [56] (considering imposing a sentence which may be considered unusual or an additional penalty which is unusual); Strangio [2017] VSCA 6 (decision that would nominally be favourable to the offender but would have adverse consequences); MCW [2018] QCA 241.
  • A sentencing court has special obligations to take steps to ensure that the sentencing procedure is conducted fairly where the offender is unrepresented or incompetently represented.53) Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92 at [95]-[96]. See also Wills [2014] NSWCCA 253 at [35]-[40]; Wheeder v Verity [2015] NTSC 34 at [14]; Bridges [2017] SASC 35 at [15].

[2.5.5] However, while each party must be given an adequate opportunity to present the party's case, there is no duty imposed on the sentencing court to ensure that a party uses the opportunity given to its best advantage and there is no requirement to give any party more than one such opportunity.54) Hernandez [2013] NSWCCA 51 at [38]-[39], citing Sullivan v Department of Transport (1978) 20 ALR 323 at 343; Re Association of Architects of Australia; ex parte Municipal Officers' Association of Australia [1989] HCA 13, 63 ALJR 298 at 305. Further, there is no general obligation on a sentencing court to give notice of every consideration of “importance” to the determination of sentence.55) Toole [2014] NSWCCA 318, 247 A Crim R 272 at [44].

[2.6] The right to a “fair trial” has meant that that a trial for a “serious” offence cannot, in the absence of “exceptional circumstances”, proceed where the accused is unable to obtain legal representation.56) Dietrich (1992) 177 CLR 292. Although there does not appear to be comparable authority in respect of sentencing for serious offences, it is likely that a similar approach would be followed if the offender wished to have legal representation in the sentencing proceedings.57) A “serious offence” should be understood in this context as one where the court intends to impose a sentence that would deprive the offender of his or her liberty or place the offender in jeopardy of being deprived of his or her liberty: see Deane J in Dietrich (1992) 177 CLR 292 at 336.

Accusatorial procedure

[2.7] While the offender is no longer an “accused”, aspects of accusatorial procedure adopted in criminal trials are extended to the sentencing context.58) Chow (1992) 28 NSWLR 593 at 605C, 605F; Palu [2002] NSWCCA 381, 134 A Crim R 174 at [21]; O’Neil-Shaw [2010] NSWCCA 42 at [26]. The prosecution must prove (disputed59) See Rajendran [2014] NSWCCA 113 at [53]-[56].) facts60) There is some controversy as to whether this proposition applies to future probabilities or possibilities (for example, a “risk of future dangerousness”). One view is that it does not: see SLD [2003] NSWCCA 310 at [30]; McNamara [2004] NSWCCA 42 at [27]-[29]; Hines (No 3) [2014] NSWSC 1273 at [93]. Plainly, the court need not be satisfied beyond reasonable doubt that the offender will re-offend (see SLD at [30]). However, the better view would be that the existence of a particular degree of risk is a "fact" and that a sentencing court must be satisfied beyond reasonable doubt that there is a significant or substantial risk of re-offending: see Chapter 4 at [4.109]. upon which it seeks to rely beyond reasonable doubt.61) There is no statutory provision in NSW comparable to s 132C Evidence Act 1977 (Qld). Where, for example, the prosecution relies on circumstantial evidence, the fact cannot be established beyond reasonable doubt unless its existence is the only rational or reasonable conclusion that can be drawn from the circumstances (see McClelland [2017] VSCA 124 at [47]). In Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ stated that:

a sentencing judge “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt”.62) [1999] HCA 54, 199 CLR 270 at [27].

Conversely, “if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities”.63) [1999] HCA 54, 199 CLR 270 at [27]. The approach taken in the civil courts to the standard of proof expressed in terms of “the balance of probabilities” would be applicable.64) Swan [2006] NSWCCA 47 at [46]. One of those factors is “the gravity of the matters alleged”.65) Swan [2006] NSWCCA 47 at [46]:“[w]here what is involved is an allegation of serious criminal conduct the discharge of the onus on the civil basis must take into account the gravity of the allegations”. Another important principle is the proposition that evidence is to be weighed according to the proof which it was in the power of one party to produce and in the power of the other to contradict.66) Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970; G v H (1994) 181 CLR 387 at 391-392; Ho v Powell [2001] NSWCA 168, 51 NSWLR 572 at [16]. For example, a failure to adduce particular evidence from an expert witness called by the defence may support an inference that the evidence would not have assisted the defence: Hunt [2017] NSWCCA 305 at [57]. For that reason, a claim that, for example, an offence was committed under duress may be approached “with a significant degree of circumspection”.67) Tiknius [2011] NSWCCA 215, 221 A Crim R 365 at [45]:“Claims may be easily made concerning the alleged conduct of persons in another country which is said to have applied pressure upon an offender: Anna Le v R [2006] NSWCCA 136 at [32]. It has been said that verification of a spurious claim of duress may prove difficult: Z [2005] UKHL 22; (2005) 2 AC 467 at 492 [22]”. Some factual issues may not be capable of determination without expert evidence. For example, a sentencing court may require expert evidence to establish the causal link between the offender’s mental abnormality and the commission of the offence.68) Wilmot [2007] NSWCCA 278 at [28]-[32]; Mercael [2010] NSWCCA 36; Lewis [2011] NSWCCA 206; Arbili [2012] NSWCCA 48 at [39]-[41]. However, as will be discussed below, a difference between a sentencing procedure and a criminal trial is the determination of those facts that need to be decided.

[2.8] The offender cannot be required to testify (the “right to silence”). A sentencing court may not use an assertion of the right to silence (or the privilege against self-incrimination) adversely to the offender in determining the factual basis for sentencing.69) See WC [2016] NSWCCA 173 at [63]. In Ta, James J found it unnecessary to determine whether authorities relating to “comment” on the failure of a defendant to testify have any application to sentencing proceedings.70) [2011] NSWCCA 32 at [120] (Hall J and Price J agreeing). Clearly enough, for a sentencing court to take into account the failure of a defendant/offender to testify does not, strictly speaking, involve a“comment”on that failure. If the offender bears the onus of proof on some factual issue, his or her failure to testify may bear on whether the fact is proved.71) Hinchliffe [2013] NSWCCA 327 at [242]; Islam [2016] NSWCCA 233 at [98] (relevant to whether contrition). Even where the onus is on the prosecution, the NSW Court of Criminal Appeal has accepted that the failure of an offender to give evidence disputing some fact or inference reasonably open on the evidence in sentencing proceedings should be taken into account by the court in more readily finding the fact or drawing the inference –“taking the evidence at face value”.72) McKibben [2007] NSWCCA 89 at [16]; Aoun [2011] NSWCCA 284 at [57]. On the other hand, the principles that underlie this area of the law may still have application in sentencing proceedings, notwithstanding the differences between a criminal trial before a jury and a sentence hearing before a judicial officer.73) However, James J noted at [118] that in the Queensland case of Miller [2003] QCA 404 Holmes J, who delivered the leading judgment with which the other members of the Queensland Court of Appeal agreed, after pointing to various differences between a criminal trial before a jury and a sentence hearing before a judge, said at [27]: “Because of these distinctions, I do not think that the constraints on comment and approach imposed by the Weissensteiner line of authority have any application to fact finding on sentence”. If an offender does testify, there is no obligation on the court to give particular weight to the testimony.74) See, for example, Chiang [2016] NSWCCA 45 at [17]-[20]. Thus, a sentencing judge is not bound to accept assertions by an offender that he or she is remorseful, even when that assertion is made in the witness box.75) Stafrace (1997) 96 A Crim R 452; Alvares [2011] NSWCCA 33, 209 A Crim R 297 at [65]; Alkanaan [2017] NSWCCA 56 at [134]. Nor will what Simpson J described, in Pham, as “the often ritual incantation of remorse and contrition”,76) [2010] NSWCCA 208 at [33]. See alsoAlvares [2011] NSWCCA 33, 209 A Crim 297 at [65]; Sun [2011] NSWCCA 99 at [31]. be automatically accepted by a sentencing court. With respect to a corporate offender, the same applies.77) Assertions of remorse on behalf of the corporation are unlikely to be given much weight. In practice, there would need to be evidence of actual remorse on the part of directors of the corporation, which might be the subject of testing under cross-examination: Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 (Pain J) at [29]; see also Garrett v Williams (2006) 160 LGERA 115 (Preston CJ) at [161] There would need to be evidence of actual remorse: Cahill v State of New South Wales (Department of Community Services) (No 4) (2008) 182 IR 231 (Boland P) at [57]-[63]; Morrison v P & H Minepro Australia Pty Ltd [2009] NSWIRComm 144 (Boland P) at [27]. See also Inspector Ron Spence v Allam Homes Pty Ltd [2008] NSWIRComm 249 at [36]; Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 at [66]-[81]; Inspector Karen Simpson v Wingruby Pty Ltd t-as Lithgow Tyre Service [2010] NSWIRComm 104 at [27]-[28]; Inspector Walker v Great Lakes Community Resources Incorporated t-as Workplace Services [2010] NSWIRComm 182 at [27]-[28].

Comment

Authority that, in cases where the prosecution bears the onus of proof in relation to a fact bearing on sentence, the failure of the offender to give evidence disputing that fact may be taken into account by the sentencing court in more readily finding the fact, should be regarded as doubtful. The High Court has made it clear that, in a criminal trial, it is a consequence of the accusatorial nature of the trial that it will only be in unusual circumstances, where whether or not a fact existed would be peculiarly within the knowledge of the defendant, that such reasoning may be permissible to assist the prosecution to prove the fact beyond reasonable doubt.78) Dyers (2002) 210 CLR 285. Given the general principle that determination of facts for the purposes of a sentencing hearing should proceed in accordance with ordinary legal principles applicable to a criminal trial, it is not apparent why a different approach should be taken in sentencing proceedings where the prosecution seeks to rely on the failure of the offender to testify.

Duties of the prosecution

[2.9] One aspect of criminal proceedings is the special duty on the prosecution. It is the duty of the prosecution to assist the court by the furnishing of appropriate and relevant material touching upon the determination of a sentence.79) Gamble (1984) 14 A Crim R 179 at 182; Azzopardi [2011] VSCA 372, 219 A Crim R 369 at [70]. Thus, for example, while the onus of proof in relation to a mitigating fact such as assistance to the authorities rests on the offender, it is appropriate for the prosecution to adduce evidence on that issue.80) Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [64]; Farkas [2014] NSWCCA 141 at [14], [89]-[90].

Rules of evidence apply

[2.10] Section 4 of the Evidence Act 1995 (NSW) provides as follows:

Courts and proceedings to which Act applies

  1. This Act applies to all proceedings in a NSW court, including proceedings that:
    1. relate to bail, or
    2. are interlocutory proceedings or proceedings of a similar kind, or
    3. are heard in chambers, or
    4. subject to subsection (2), relate to sentencing.
  2. If such a proceeding relates to sentencing:
    1. this Act applies only if the court directs that the law of evidence applies in the proceeding, and
    2. if the court specifies in the direction that the law of evidence applies only in relation to specified matters-the direction has effect accordingly.
  3. The court must make a direction if:
    1. a party to the proceeding applies for such a direction in relation to the proof of a fact, and
    2. in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.
  4. The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

[2.11] A comparable provision is found in the Commonwealth Evidence Act 1995. It follows that the NSW and the Commonwealth Evidence Acts only apply in sentencing proceedings to the extent that the sentencing court directs.81) s 4(1)(d), (2). Section 4(3) and (4) provide for the circumstances in which such a direction should be made. Considerable discretion is conferred on the sentencing court. It has been held that, where sentencing proceedings follow a trial, the provisions of the Evidence Act 1995 should apply.82) Lewis (unreported, NSWSC, Dowd J, 25 October 1996). Section 94(2) in both the NSW and Commonwealth Evidence Acts provides that Pt 3.6 (Tendency and Coincidence) of the Act does not apply so far as a proceeding relates to sentencing. If a direction is not made under s 4, the common law relating to evidence continues to apply (except to the extent that it has been affected by other statutory provisions).83) Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [61]; Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [14], [89]-[90]. Thus, for example:

  • A sentencing court may not sentence an offender on the basis of material not in evidence against that offender, but which emerged in proceedings relating to a co-offender.84) Perrin [2006] NSWCCA 64; Khanwaiz [2012] NSWCCA 168 at [123]. On the other hand, if the offender does not object to the court taking into account such evidence, the position is different: Tattersall [2011] NSWCCA 282 at [30]. In Baquiran [2014] NSWCCA 221, evidence of factual findings made by another sentencing court in respect of a co-offender was admitted without objection, but only for the purpose of identifying the factual basis upon which the co-offender was sentenced (relevant to application of the parity principle) – “it could thus not be used as evidence of the truth of the matters asserted in it or, in the case of the other sentencing judgments, of the accuracy of the findings made in them” (Macfarlan JA at [27]).
  • Evidence that is not relevant to the exercise of the sentencing discretion should be disregarded.85) See Aitkin [2017] VSCA 103 at [82](b). In Shashati [2018] NSWCCA 167 it was held at [23]-[27] that the sentencing judge had wrongly considered that evidence of previous driving behaviour was not relevant to the offender’s manner of driving, and culpability, at the time of an accident.
  • Evidence admissible for one use but inadmissible for another use may not be used for the latter use (thus, for example, a statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly86) Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [99]. Giles JA added that, when the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown’s assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender.).
  • It would be procedurally unfair to admit evidence of a hearsay assertion regarding a factual matter in dispute where the evidence is objected to by a party and the party does not have the opportunity to test the evidence.87) Pleasance [2016] NSWCCA 113 at [101], [105]. Of course, the position is different if no objection is taken to admission of the evidence, notwithstanding that it is not subject to cross-examination: see Van Zwam [2017] NSWCCA 127 at [5]-[6], [110].
  • Prior convictions of the offender must be properly proved.88) Ex parte Kelly; Re Teece [1966] 2 NSWR 674 at 678.
  • An expert should not be permitted to express an opinion on a subject matter outside the expert's area of expertise.89) WW [2012] NSWCCA 165 at [58]-[60].
  • Unduly oppressive cross-examination of the offender (for example, insisting that the offender identify co-offenders) may be disallowed.90) See Ellis [2015] NSWCCA 262 at [44], [68], [75].
  • Principles limiting the taking of judicial notice of facts apply.91) JRB [2006] NSWCCA 371 at [42]; Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [14]; Henderson [2016] NSWCCA 8, 256 A Crim R 519 at [60]; Drew [2016] NSWCCA 310 at [85]-[90] (domestic violence in indigenous communities and the under-reporting of such violence); Munday [2017] NSWCCA 95 at [24]; Murray [2017] NSWCCA 262 at [50]. See also S D [2013] VSCA 133 at [37]]; Haddara v The Queen [2016] VSCA 168 at [69] (proving “prevalence”). The observations made by the High Court in Bugmy [2013] HCA 37, 249 CLR 571 at [41] should not be understood to preclude the general application of the principles relating to taking judicial notice – only that any fact judicially noticed must be relevant to the individual offender. See also Drew [2016] NSWCCA 310 at [83]-[84], [90].
  • Principles regarding the use of presumptions (for example, a “persuasive presumption” that children are harmed by sexual activity, with the onus of disproving that assumption resting upon the offender92) Adamson [2015] VSCA 194 at [22].).
  • A warning required to be given about particular evidence in a trial should be given (the court warning itself) in sentencing proceedings.93) Hill [2003] NSWCCA 16; see also Youkhana [2013] NSWCCA 85 at [73].

[2.12] Of course, there may be no objection taken to evidence that is either strictly inadmissible or may not be used for a particular purpose. In those circumstances, it is for the sentencing court to determine the weight that should be given to the material. For example:

  • Hearsay representation. Objection may not be taken by the prosecution to a Pre-Sentence Report that contains hearsay statements by the offender. If the offender does not testify, with the consequence that the statements in the Report cannot be the subject of cross-examination, the report remains admissible but the weight to be given to such evidence, and any opinion based on such a representation, will be limited.94) Qutami [2001] NSWCCA 353 at [58]; Niketic [2002] NSWCCA 425 at [4]; Hooper [2004] NSWCCA 10; Alameddine [2004] NSWCCA 286; Alvares[2011] NSWCCA 33, 209 A Crim 297; Sun [2011] NSWCCA 99 at [31]; Hinchliffe [2013] NSWCCA 327 at [239]-[242]; Loveridge [2014] NSWCCA 120 at [125]; Ly [2014] FCAFC 175 at [110]; Halac [2015] NSWCCA 121 at [105]-[107]; Mun [2015] NSWCCA 234 at [36]-[44]; JDX [2017] NSWCCA 9 at [35]-[41]; Imbornone [2017] NSWCCA 144 at [57]-[58]. However, the position may be different if the offender has given evidence by way of affidavit and has not been required to make himself or herself available for cross-examination: O’Brien [2010] NSWCCA 297 at [29]–[32]; Sun [2011] NSWCCA 99 at [37]; Van Zwam [2017] NSWCCA 127 at [2]-[6], [110]-[111]; but see Imbornone [2017] NSWCCA 144, RA Hulme J at [3]-[9]. On the other hand, there would be nothing to cross-examine if the offender made a decision not to give evidence (either orally or in the form of an affidavit) and simply offered to make himself or herself available for cross-examination: Ballard [2011] NSWCCA 193 at [21]. On the other hand, where an expert takes into account statements made by the offender as part of a history, without any reliance on their truth, the statements are not hearsay and the failure of the offender to testify will not reduce the weight to be given to the opinion of the expert.95) See Devaney [2012] NSWCCA 285, Allsop P at [88] (but see also Campbell JA at [144]); Pym [2014] NSWCCA 182 at [79]. Of course, a finding that the history is not reliable may impact on the weight to be given to the opinion: see SW [2013] NSWCCA 103 at [123]-[126], [199]-[204], [223]-[229].
  • Opinion evidence. Objection may not be taken to an opinion expressed by an “expert” that is not based on the expert’s specialised knowledge and thus would be strictly inadmissible – little or no weight my be given to such evidence.96) WW [2012] NSWCCA 165 at [55]-[60]; Lam [2015] NSWCCA 143 at [74]-[83].
  • Victim impact statement. Since the statement is unsworn, may not be in the victim’s own words and will usually be untested by cross-examination, the weight to be given to such evidence will be limited.97) Slack [2004] NSWCCA 128 at [62]; Bain [2006] NSWCCA 79; Deng [2007] NSWCCA 216 at [59]–[61]. Of course, the position is different where there was an opportunity to cross-examine the person who made the statement: King [2004] NSWCCA 444 at [174]-[176]. The Cth Act permits cross-examination with the leave of the court (s 16AB(6.)) Different weight may be given to different assertions (for example, more weight may be given to a statement regarding the victim’s feelings about the offence than matters bearing on the objective seriousness of the offence).98) Thomas [2007] NSWCCA 269 at [37]. In Tuala [2015] NSWCCA 8, 248 A Crim R 502, it was held at [84] that a VIS could not, in the circumstances of the case, prove beyond reasonable doubt that the injury, loss and damage caused by the offences was more substantial than could ordinarily be expected of such offences. See also EG [2015] NSWCCA 21 at [36]; Muggleton [2015] NSWCCA 62 at [40]-[46]. It has been observed that “given the inherent subjectivity of a victim impact statement, the assertions made within it will properly be used by the court for the purposes of findings made at a level of generality, rather than specificity”: Dimitrovska [2015] WASCA 162 at [74]-[75]. However, in the absence of a submission regarding limited use or limited weight, it would be open to a sentencing court to give the statement sufficient weight to prove (on its own) some matter beyond reasonable doubt.99) Wilmot [2007] NSWCCA 30, 169 A Crim R 280 at [34]; Wilson [2005] NSWCCA 219 at [28]; Aguirre [2010] NSWCCA 115 at [77]; MJB [2014] NSWCCA 195 at [50]-[53]; Tuala [2015] NSWCCA 8, 248 A Crim R 502 at [78]. In RP [2013] NSWCCA 192, 234 A Crim R 272, the victim had claimed harm that "went well beyond what might be regarded as the type of harm expected from the circumstances of the ... offending", the claim was not supported by other evidence, there was a submission in the sentencing proceedings that the content of the statement should be given limited weight and the Court of Criminal Appeal appears to have accepted that the sentencing judge erred in sentencing the offender on the basis of those claims (see Price J at [24]-[30]). See also RL [2015] NSWCCA 106 at [49]-[57]. Where the statement tends to be confirmatory of other evidence or where it asserts matters that might be expected of the offence in question, there will usually be little difficulty with acceptance of its contents.100) Tuala [2015] NSWCCA 8, 248 A Crim R 502 at [79]; Bajouri [2016] NSWCCA 20 at [40]-[42]; Faehringer [2017] NSWCCA 248 at [59]-[61]; Hughes [2018] NSWCCA 2 at [95].

[2.13] The simple fact that the weight to be given certain evidence is limited does not require that the evidence be rejected. It would still be open to the sentencing court to rely on the evidence for the purposes of a factual determination.101) Thus, in Alvares [2011] NSWCCA 33, 209 A Crim 297, Buddin J (McClellan CJ at CL and Schmidt J agreeing) observed at [66] that it has never been “authoritatively stated that an offender will only be entitled to the benefit of a finding of remorse in the event that he or she gives sworn evidence to that effect”. Thus, hearsay assertions of remorse may, in some circumstances, be sufficient to support a finding of remorse, although they will not require such a finding.

Other material

[2.14] The word “evidence” is generally confined to “matters going to the commission of the offence or the personal circumstances of the [offender]”.102) See s 12 Criminal Appeal Act 1912 (NSW); s 29A Criminal Procedure Act 1986 (NSW); Beldan (1986) 21 A Crim R 159; J (1992) 64 A Crim R 441 at 459; Hallocoglu (1991) 29 NSWLR 67; Henry [1999] NSWCCA 111, 46 NSWLR 346, 106 A Crim R 149 at [84]. The means of acquiring information in formulating sentencing principles and guidelines is not confined by the rules of evidence developed for fact finding with respect to matters that only concern the parties to a particular case. Thus, sentencing statistics, statistics on the incidence of particular offences and victim surveys are not “evidence” and may be received regardless of the applicable rules relating to evidence.

Qualifications to the general principles

Summary

A sentencing hearing involves the determination by the sentencing court of the appropriate sentence for the offence. There is no joinder of some general issue between prosecution and offender. Accordingly, there are important qualifications to the ordinary principles of criminal procedure:

  • some facts relevant to the determination of that sentence will have been determined by the verdict of guilty (or by a plea of guilty)
  • some facts relevant to the determination of sentence should be identified by questioning the jury after a verdict of guilty is returned
  • some facts potentially relevant to determination of an appropriate sentence need not be determined at all
  • informal procedures may be adopted, and are encouraged by the courts, particularly where there has been a plea of guilty (for example, providing an agreed statement of facts to the sentencing court)

[2.15] As noted above, there are important qualifications to the proposition that determination of facts for the purposes of a sentencing hearing should proceed in accordance with ordinary legal principles applicable to a criminal trial. A criminal trial involves a joinder of issue between the prosecution and defence as to whether an offence was committed. The prosecution will be required, absent formal admission by the defendant, to prove facts that constitute the elements of the offence. A sentencing hearing involves the determination by the sentencing court of the appropriate sentence for the offence. There is no joinder of some general issue between prosecution and offender in sentencing proceedings.103) Olbrich [1999] HCA 54, 199 CLR 270 at [25]. Some facts relevant to the determination of that sentence will have been determined by the the trial tribunal of fact or by a plea of guilty. Some facts potentially relevant to determination of an appropriate sentence need not be determined at all.

Some facts will be determined as a matter of law by the verdict of guilty or the plea of guilty

[2.16] Where there has been a verdict of guilty, the facts as found by the sentencing court must be consistent with the verdict of the tribunal of fact.104) Cheung [2001] HCA 67, 209 CLR 1, Gleeson CJ, Gummow and Hayne JJ at [14], Gaudron J at [76]. On occasion, difficulties can arise in deciding what facts have been determined, expressly or impliedly, by the verdict.105) See, for example, in relation to contravention of s 66EA(1) Crimes Act 1900 (NSW), which related to the commission of three or more sexual offences on three or more separate occasions during a period of time, ARS [2011] NSWCCA 266 at [230]–[231]. See also Vulovic [2013] NSWCCA 340; Thompson [2014] WASCA 108 at [23]-[25] (“intend to sell or supply”); Smith [2015] NSWCCA 193 at [18]-[24], [72] (excessive self-defence). Although there is no authority on the question, a circumstantial fact that the jury was instructed was indispensable to a verdict of guilty would be impliedly determined to exist by the verdict of guilty. As regards a jury verdict, Gleeson CJ, Gummow and Hayne JJ stated in Cheung:

The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue.106) [2001] HCA 67, 209 CLR 1 at [5].

The plurality also stated:

If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.107) [2001] HCA 67, 209 CLR 1 at [17].

The NSW Court of Criminal Appeal has observed that “[t]he verdict of the jury implies findings only of facts the jury were bound to find in order properly to come to its verdict”.108) Vulovic [2013] NSWCCA 340 at [25]. Some courts refer to such facts as “core facts”: PES [2014] WASCA 96 at [37]. See also McKay [2014] NSWCCA 187 at [73]. In answering that question, it may be necessary to look closely at the way the prosecution case was put and the judicial directions given to the jury.109)Nguyen [2016] NSWCCA 5 at [41]-[57].

[2.17] Where a prosecutor relies upon a circumstance of aggravation which increases the applicable maximum penalty, it should be alleged in the indictment, and, if there is a dispute, it should be resolved by a jury, at least where there has been a plea of not guilty and a jury has been empanelled.110) Kingswell [1985] HCA 72, 159 CLR 264; Meaton [1986] HCA 27, 160 CLR 359. However, even if this procedure is not adopted, a sentence imposed under the higher maximum penalty may stand if no miscarriage of justice arose (if, for example, it was inevitable that the jury would have found the circumstance of aggravation proved). See Waskin [2003] NSWCCA 96, 141 A Crim R 1; Warby [2007] NSWCCA 173, 171 A Crim R 575 at [14]–[20].

[2.17.2] Where a defence (for example, duress) was left to the jury, a verdict of guilty does not mean that the sentencing judge is precluded from sentencing on the basis of mitigation arising from duress (or the making of threats to the offender).111) Oblach [2005] NSWCCA 440 at [69]–[70]; Hines (No 3) [2014] NSWSC 1273 at [32]-[33], [46]. While the facts as found by the sentencing court must be consistent with the verdict of the tribunal of fact, duress as a defence is different to duress as a mitigating factor. For example, duress as a defence contains an objective test that takes into account reasonable alternatives to commission of the offence. Duress as a mitigating factor is not so constrained. There would be no necessary inconsistency with the jury verdict if the sentencing judge were to determine that threats were in fact made to the offender.112) Oblach [2005] NSWCCA 440 at [70]. See also Woods [2012] NTCCA 8 at [10]-[14] (“excessive self-defence”); Fahda [2013] NSWCCA 86 (“provocation”); Da-Pra [2014] NSWCCA 211 at [410] (“substantial impairment”); Skelton [2015] NSWCCA 320 at [126]-[139] (“mental illness”).

[2.17.3] Where a partial defence, reducing a charged offence to a less serious offence, succeeds, the court sentencing for the less serious offence may face difficulties in ensuring that the facts as found by the sentencing court are consistent with the facts that have been determined, expressly or impliedly, by the verdict.113) See Tarrant [2018] NSWCCA 21 at [77]-[92].

[2.17.4] Where there has been a plea of guilty, the facts as found by the sentencing court must be consistent with what is necessarily involved as an element of the offence.114) GAS [2004] HCA 22, 217 CLR 198 at [30]. See also Grant [2014] NSWCCA 67 at [61]-[66]; RMW [2016] NSWCCA 211 at [18]-[26] (judge erred in sentencing offender on factual basis inconsistent with element of offence to which offender plead guilty). Further, the significance of other facts will vary depending on the facts determined as a matter of law by the plea of guilty: Torun [2015] VSCA 15 at [61]. Of course, there may be alternative elements of an offence. The fault element for some offences, for example, may be either intention or recklessness. The sentencing judge may sentence the offender on the basis of either intention or recklessness but not on the basis of another fault element, such as negligence. Just as with a jury verdict, a plea of guilty does not mean that the sentencing judge is precluded from sentencing on the basis of a mitigating factor that might have founded a defence.115) In Elturk [2014] NSWCCA 61 it was held at [33]-[35] that, while an offender’s plea of guilty precluded his mental illness from absolving him of criminal responsibility, he had not waived his right to have his mental illness considered as a mitigating factor (particularly as it bore on his moral culpability and the objective seriousness of the offence). Similarly, a plea of guilty to manslaughter on the basis of diminished responsibility arising from “substantial” mental impairment will not preclude a finding that the impairment was greater than “substantial” (that is, greater than that required to establish manslaughter rather than murder).116) Catley [2014] NSWCCA 249 at [42]-[43]; Ukropina [2016] NSWCCA 277 at [36]. See also Iese [2017] QCA 68 at [18]-[27].

[2.17.5] In general, the parties to a sentencing proceeding should not be permitted to adduce evidence that is inconsistent with (where there is a verdict of guilty) the verdict of a tribunal of fact or (where there is a plea of guilty) what is necessarily involved as an element of the offence. The NSW Court of Criminal Appeal has observed that, in practice, “some leniency” is accorded in sentencing proceedings “to allow evidence given on behalf of the offender which is not consistent with that given at trial” but emphasised that “to rely upon evidence on sentence which is fundamentally inconsistent with evidence given at the trial (or at least to make findings based on it which are inconsistent with those which, in all probability, formed the basis of the jury’s verdict), in a manner favourable to the prosecution, should not be permitted”.117) See Tarrant [2018] NSWCCA 21 at [92].

Some facts relevant to the determination of sentence should be identified by questioning the jury after a verdict of guilty is returned

[2.17.6] The High Court in Cheung endorsed the view that there will be very few cases in which it is appropriate or useful to question the jury about the process of reasoning by which they came to their verdict.118) [2001] HCA 67, 209 CLR 1 at [18]. The Court referred to Isaacs, where the NSW Court of Criminal Appeal noted that, in relation to sentencing for manslaughter, a practice had developed of questioning the jury as to the basis on which the verdict was reached.119) (1997) 90 A Crim R 587 at 592. However, the Court of Criminal Appeal concluded that trial judges should refrain from asking a jury the basis of a verdict of manslaughter “save in exceptional circumstances”.120) (1997) 90 A Crim R 587 at 593. The primary reason is that the jury need not agree regarding the basis upon which they find manslaughter proved - they may reason to the conclusion of guilt upon differing bases. No indication was given by the Court of Criminal Appeal as regards what such exceptional circumstances might be where it is appropriate to question a jury in such a case and it is likely that will rarely, if ever, arise.

[2.17.7] However, the position is different where the jury are required to be agreed with respect to particular conduct because it is part of the physical elements of the offence, and the verdict does not reveal what has been agreed in this regard. In Chiro121) [2017] HCA 37, 347 ALR 546. the High Court held that, where a jury returned a verdict of guilty of an offence under s 50(1) of the South Australian Criminal Law Consolidation Act of persistent sexual exploitation of a child where the prosecution alleged a number of acts of “sexual exploitation” and the jury were required to be agreed that the prosecution had proved beyond reasonable doubt that the accused committed the same two or more underlying acts of sexual exploitation “the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved”.122) Kiefel CJ, Keane and Nettle JJ at [32]. This is not the taking of a “special verdict” but rather the asking of questions of the jury. Since the acts of sexual exploitation were the actus reus (that is, the physical elements) of the offence, it was for the jury to determine those acts.123) [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [42]. Accordingly, where the jury are required to be agreed with respect to particular conduct, and the verdict does not reveal what has been agreed in this regard, the sentencing judge should ask the jury to specify that agreed conduct.124) [2017] HCA 37, Kiefel CJ, Keane and Nettle JJ at [46]. Because the particular acts of sexual exploitation are the actus reus of the offence, the offender must be sentenced on the basis of those particular acts, bearing in mind that the sentence to be imposed is to be determined by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been convicted of each of those offences: Kiefel CJ, Keane and Nettle JJ at [44]. As regards practical difficulties that might arise with such questions, see the dissenting judgment of Edelman J at [115]-[116]. It would be appropriate to inform the jury prior to verdict that, if their verdict is guilty, they will be asked to state which of the alleged particular conduct they are agreed has been proved.125) [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [47].

[2.17.9] Cases may arise where, despite a requirement that the jury be agreed with respect to particular conduct, the judge is unable to clarify which of the alleged particular conduct has been found proved by the jury. In such cases, the offender must be sentenced on the basis most favourable to the offender. Thus, in Chiro126) [2017] HCA 37, 347 ALR 546. the High Court held that, where a jury returned a verdict of guilty of an offence under s 50(1) of the South Australian Criminal Law Consolidation Act of persistent sexual exploitation of a child where the prosecution alleged a number of acts of “sexual exploitation”, the particular acts of sexual exploitation were the actus reus of the offence and it was for the jury (and not the sentencing judge) to determine those acts. Kiefel CJ, Keane and Nettle JJ observed that if the judge “does not or cannot get the jury” to identify which of the alleged particular conduct has been found proved, the offender must be sentenced “on the basis most favourable to the offender”.127) [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [52]. In Chiro, that meant that the offender should have been sentenced on the basis of having committed no more than the least serious acts of sexual exploitation particularised by the prosecution.128) [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [53]. As regards practical difficulties that might arise, see the dissenting judgment of Edelman J at [118]-[119].

Some facts potentially relevant to determination of an appropriate sentence need not be determined

[2.18] As a general proposition, a sentencing court is only required to take into account relevant facts known to the court. In Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ stated:

Because the offence to which the respondent pleaded guilty was a “federal offence”, the primary judge was bound, in sentencing the respondent, to apply the relevant provisions of the Crimes Act (Cth). Section 16A(2)(a) of that Act requires a sentencing judge to take into account, so far as “known to the court”, the nature and circumstances of the offence. The reference to what is “known to the court” is very important and mirrors what would be the position in the absence of statutory provision.129) [1999] HCA 54, 199 CLR 270 at [17].

Similarly, in Weininger, Gleeson CJ, McHugh, Gummow and Hayne JJ stated:

[A] sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. … Some matters will remain unknown to the sentencing judge.130) [2003] HCA 14, 212 CLR 629 at [23].

This reflects that fact that, as the High Court observed in GAS, “[t]here may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case”.131) [2004] HCA 22, 217 CLR 198 at [30]. In Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ stated:

In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a 58 year old first offender who pleaded guilty to importing more than 1.1 kilograms of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation “principal” could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was “a courier”. The respondent bore the burden of proving this fact. The judge was not persuaded of it. … As we have said, the primary judge did not take facts into account in a way that was adverse to the accused (other than those established by the plea and the Statement of Facts). He was not persuaded of circumstances which the respondent contends should have been taken into account in his favour.132) [1999] HCA 54, 199 CLR 270 at [26]–[28].

[2.19] Accordingly, where an offender

  1. submits that the sentence to be imposed should be reduced because of some fact;
  2. the prosecution disputes the existence of that fact;
  3. the offender fails to prove on the balance of probabilities the existence of that fact; and
  4. the prosecution fails to prove beyond reasonable doubt the non-existence of that fact

the sentencing court should sentence the offender on the basis that the existence/non-existence of the fact is unknown. Applying that analysis to the circumstances of Olbrich, the sentencing judge should sentence simply on the basis that the offender physically imported the drugs, treating as unknown whether he did so as a courier or as a principal (that is, on his own account). The plurality considered that this was what the sentencing judge had done, observing that the sentencing judge “did not take facts into account in a way that was adverse to the accused (other than those established by the plea and the Statement of Facts)”.133) [1999] HCA 54, 199 CLR 270 at [28]. Similarly, at [22] the plurality stated that the sentencing judge “sentenced the respondent as if the respondent had told the police and the court nothing about the circumstances of the event at all”. See also Dao [2014] VSCA 93, 240 A Crim R 574. This analysis was confirmed in Weininger where the plurality judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated:

As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.134) [2003] HCA 14, 212 CLR 629 at [19].

Similarly, it was stated that a sentencing judge should:

pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied.135) [2003] HCA 14, 212 CLR 629 at [24].

[2.20] In Weininger, the offender relied on an absence of prior convictions to establish as a fact that“he was a person of previously good character or, at least, a person who had not previously engaged in conduct of the kind giving rise to the present charges”.136) Plurality judgment at [25]. However, the sentencing judge observed that the (undisputed) prosecution statement of facts asserted that the offender had told a police informant that he was a member of a syndicate that had imported drugs in the past. The plurality held that there was no error in the sentencing judge not being satisfied by the offender that “these offences were the first criminal conduct in which he had engaged”.137) Plurality judgment at [29]. That did not mean that the sentencing judge could treat the offender “as a person guilty of crimes with which he had not been charged” (that is, used his antecedents adversely to him to increase the sentence to be imposed) but the plurality held that the sentencing judge had not done this.138) Plurality judgment at [29]. Kirby J, in dissent, disagreed (at [74], [94].

[2.20.5] Similarly, a failure to be persuaded that the offender is remorseful is different from a positive finding that the offender is not remorseful.139) Pham [2010] NSWCCA 208 at [28]–[34]. It follows that considerable care needs to be taken in characterising the situation where a factual assertion advanced by the offender in mitigation (“I am remorseful”, “I was a courier”, “I offended without premeditation”, “I was provoked”) is not proved on the balance of probabilities. The prosecution may be content for the sentencing court to proceed on the basis that the matter is simply left unknown. However, if the prosecution seeks a negative finding (“the offender is not remorseful”, “the offender was not a courier”, “the offence was not unpremeditated”, “the offender was not provoked”), that would support a more severe sentence than if the matter were left unknown and the onus of proof rests on the prosecution to establish that negative fact beyond reasonable doubt.

[2.21] Nevertheless, where certain conduct is the actus reus of the offence, the sentencing court must ascertain that conduct for the purposes of sentencing. 140) See [2.17.7] -[2.17.9] above. Further, in some circumstances, a sentencing court may not be willing to proceed on the basis that some fact relevant to the determination of an appropriate sentence is not known. That may be particularly the case where the fact would bear on the culpability of the offender. In Cheung, Gleeson CJ, Gummow and Hayne JJ stated:

There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender’s culpability is more difficult than that of determining his or her guilt. A simple example may be provided by a charge of murder against someone who has caused the death of an elderly, ill, person by administering a lethal injection. It may be the prosecution case that the accused was motivated by a desire to inherit the victim’s estate. Another possible view of the facts may be that the accused was motivated by a desire to put an end to the victim’s suffering. Both possibilities may be consistent with guilt. A jury would probably be instructed that, although the prosecution alleged a motive of greed, it was not essential that such motive be established. Some jurors may accept that there was such a motive. Others may not. The sentencing judge may need to address the question of motive. If the judge were unable to be satisfied beyond reasonable doubt as to the motive of personal gain, then the accused would be sentenced upon the more favourable basis. But that would be because the sentencing judge could not be satisfied of the prosecution’s allegation. It would not be because the judge was obliged to sentence upon the view of the facts most favourable to the offender that was consistent with the jury’s verdict.141) [2001] HCA 67, 209 CLR 1 at [8]-[9].

In such a case, the sentencing court“may need”to resolve the factual dispute in order to determine an appropriate sentence142) In Smith [2015] NSWCCA 193 it was observed at [59] that it was “essential to the key question for sentencing” to determine what the offender perceived the circumstances to be when he killed the deceased (where the jury had found him not guilty of murder but guilty of manslaughter). In contrast, in Seymour [2017] SASC 33, Doyle J at [97] proceeded on the basis that he was “left in the somewhat unsatisfactory position of having to sentence the defendant on the basis that the reason or motivation for his” offence “is unknown”., and simply proceeding on the basis that the motive is not known is not a practical option. The factual dispute is resolved by application of the onus of proof beyond reasonable doubt on the prosecution. Gleeson CJ, Gummow and Hayne JJ referred143) [2001] HCA 67, 209 CLR 1 at [14]. with approval to the following passage fromIsaacs where the NSW Court of Criminal Appeal observed that “the practical effect of” the requirement that “findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt”

may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender.144) (1997) 90 A Crim R 587 at 592.

[2.22] In Isaacs, the NSW Court of Criminal Appeal accepted that, when sentencing an offender for manslaughter where the verdict of the jury might have been reached on a number of alternative bases, the trial judge was “required”to determine the basis of liability for manslaughter upon which the offender would be sentenced.145) Lupoi (1984) 15 A Crim R 183 at 184, cited in Isaacs (1997) 90 A Crim R 587 at 592 and 595. Such a finding “must be arrived at beyond reasonable doubt” and, since the court is required to resolve any reasonable doubt in favour of the offender, then the court will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. Of course, this proposition will not apply if a more serious view of the facts (advanced by the prosecution) is not disputed by the offender.146) See Rajendran [2014] NSWCCA 113 at [53]-[56].

[2.22.5] However, subsequent to the judgment in Cheung, the High Court revisited the issue in Filippou.147) [2015] HCA 29, 256 CLR 47. The approach established in Olbrich and Weininger was re-affirmed, notwithstanding a recognition that “it is undesirable that a judge should be required to sentence an offender without knowing all of the relevant facts and circumstances of the offending”.148) French CJ, Bell, Keane and Nettle JJ at [72], Gageler J agreeing at [74]. Cheung was distinguished on the basis that it involved a jury trial where “it was impossible to say whether the jury has convicted the offender on the more or less favourable version of events, of which either would have sustained the conviction” and “because of the necessity for a judge to sentence in accordance with the jury's findings of fact, the judge might take the view that he or she should assume that the jury has convicted the offender on the basis of the more favourable version of events”.149) French CJ, Bell, Keane and Nettle JJ at [67], Gageler J agreeing at [74]. However, it was emphasised that, even with a jury verdict, a sentencing judge would be “entitled to proceed on the basis that [a particular fact] was not known”.150) French CJ, Bell, Keane and Nettle JJ at [68], Gageler J agreeing at [74].

Comment

The distinction between rejecting a basis for mitigation of sentence (because the factual basis has not been proved on the balance of probabilities) and taking a factual matter into account adversely to the offender, is readily understandable. Thus, as in Weininger, a sentencing court may not be satisfied that the offender is a person of good character (and thus not mitigate sentence on this basis) but not proceed to impose a heavier sentence on the basis that the offender is a person who had committed prior similar offences (since the commission of those offences had not been proved beyond reasonable doubt). Of course, the sentence will be heavier than it would have been if there had been a positive finding of good character but it will not be increased (“aggravated”) because of prior criminality. It will be the same position as if there were no information at all regarding antecedents before the sentencing court.

However, in other contexts, this distinction is more problematic. Sometimes, as a practical matter, the need to determine a factual issue one way or the other will seem essential because the circumstance will be bi-polar, either mitigating or aggravating.151) See Callaway JA in Storey [1998] 1 VR 359 at 376. For example, there will often be a significant difference in culpability between a premeditated and an unpremeditated offence. If the offender asserts the offence was unpremeditated but the sentencing court is not satisfied of this fact on the balance of probabilities, yet not satisfied beyond reasonable doubt that it was premeditated, how is the court to proceed? According to the High Court, on the basis that he or she simply does not know whether it was premeditated or not. How then does the court compare the culpability of this offender with other offenders who commit such a crime?

The problem is highlighted by Olbrich. If the sentencing judge proceeded on the basis that he did not know whether or not the offender imported the drugs as a courier for someone else or on his own account152) It would be in the offender’s favour if he was importing the drugs as agent for another and, conversely, adverse to him if he was importing the drugs on his own account. By analogy, a young Oliver Twist acting on the orders of a Fagan is seen to be less culpable than a young offender acting on his own account. Reasons for this include the perception that, in general, the agent has less responsibility for the crime, and also has less to gain from it, than the person who acts on his own account., how was culpability to be assessed? How is the culpability of this offender to be compared with other offenders who commit such a crime, where those other offenders fall into one or the other category? As it happens, notwithstanding the view of the plurality in Olbrich that the sentencing judge did not actually determine the factual issue, it is apparent that he proceeded to sentence the offender on the basis that he was a “principal” (that is, he imported the drugs on his own account). Kirby J, dissenting, extracted in his judgment at [37] the key passage in the remarks on sentence of the sentencing judge:

“Therefore, I am not satisfied that he was bringing this drug into Australia as a courier and I am not prepared to mitigate his sentence on that basis. How do I then proceed to sentence him? [Counsel] submits that I cannot sentence him on the basis that he was a principle [sic]. But that seems to me to be the only alternative, having decided that I cannot treat him as a courier. If I dismiss his account of the facts surrounding his importation then for the purposes of assessing his culpability for the offence I should treat him as if he had told the police or this Court nothing about the circumstances of the event at all.”

Thus, the sentencing judge sentenced the offender on the basis that he was a principal.153)For another example, see Nguyen [2015] NSWCCA 268 (the sentencing judge was not satisfied that a person transporting drugs was a mere courier and sentenced him on the basis that he possessed the drugs “for the purposes of sale” without finding the existence of that state of mind beyond reasonable doubt). Sometimes a sentencing court will consider that any proper assessment of culpability will require such a factual determination, regardless of whether the conviction follows a verdict or a plea of guilty. In that regard, while the plurality judgment in Filippou stated that Cheung was “directed to circumstances which might arise following trial by jury”154) [2015] HCA 29, 256 CLR 47 at [67]., in fact it was expressly stated in the plurality judgment in that case that difficulties “of assessing an offender's culpability” arise in “many cases involving either a plea of guilty, or a conviction following a plea of not guilty”.155) [2001] HCA 67, 209 CLR 1 at [8].

Equally problematic is the observation in Filippou that the example given in Cheung involved a “necessity for a judge to sentence in accordance with the jury's findings of fact, [where] the judge might take the view that he or she should assume that the jury has convicted the offender on the basis of the more favourable version of events”.156) [2015] HCA 29, 256 CLR 47 at [67]. Where a jury may have followed different factual routes to a particular verdict, it is not necessary (or, indeed, appropriate) for the sentencing judge to attempt to determine which version of facts “the jury” convicted upon. Perhaps reflecting this, the plurality in Filippou accepted that a sentencing judge need not make such an attempt, but failed to provide any guidance on which course the judge should adopt.

In Filippou, it was acknowledged that “it is undesirable that a judge should be required to sentence an offender without knowing all of the relevant facts and circumstances of the offending” but this was countered with the proposition that justice would “not be served by making assumptions that could lead to an offender being sentenced on too favourable a basis”.157) [2015] HCA 29, 256 CLR 47 at [72]. Similarly, the plurality in Olbrich observed that, where the sentencing judge has disbelieved the respondent’s testimony that he was a courier, it is “incongruous”158) [2003] HCA 14, 212 CLR 629 at [24]. to require the judge to sentence him on the basis that he was a courier (where the prosecution fails to meet the burden of proof). Yet why should he not be given the benefit of the doubt on the issue?

An analogy may be drawn to a defence of self-defence in a criminal trial. Once the accused has met the evidential burden of raising the issue, the burden is on the Crown to prove, beyond reasonable doubt, that the accused was not acting in self-defence. Even if the accused enters the witness box and nothing he says (including his assertions of self-defence) is believed, there may be other evidence sufficient to create a reasonable doubt on the matter. In those circumstances, the prosecution has failed to meet its burden and the defence will succeed. This reflects the “golden thread” that it is the duty of the prosecution to prove guilt and rebut any defences raised by the accused (other than insanity).159) Woolmington [1935] AC 462; Thomas (1960) 102 CLR 584. If the general principles which apply to a criminal trial also apply to sentencing proceedings, why should Olbrich have been required to prove that he was acting as a courier?

The plurality in Olbrich also observed that “very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence”.160) [2003] HCA 14, 212 CLR 629 at [16]. Yet the prosecution will often have very limited information as to the circumstances claimed to show self-defence and other like defences. Indeed, it would seem incongruous that if, for example, provocation were advanced as a defence to murder, the onus would be on the prosecution to disprove it beyond reasonable doubt, but if advanced to reduce culpability on sentence, the offender must prove it.

Informal procedures may be adopted

[2.23] Informal procedures may be adopted, and are encouraged by the courts, particularly but not exclusively161) See, for example, Fadel [2017] NSWCCA 134 at [142]-[143]. where there has been a plea of guilty.162) Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [61], [69]. Usually, an agreed statement of facts, sometimes negotiated between the offender (and his or her legal representatives) and the prosecution, will be placed before the sentencing court. Sometimes an amount of material, representing the prosecution brief (or parts of it) will be given to the court, together with victim impact statements and other documentary material which may not conform to the ordinary rules of evidence. Otherwise inadmissible material may be received by the court by express consent or because the offender does not object.163) Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [69]. Apart from the facts determined as a matter of law by the verdict of guilty or the plea of guilty, the prosecution may, with the consent of the defence, simply assert the existence of facts relevant to the determination of sentence. The offender may accept the correctness of the asserted facts - they will then be “agreed facts”. This may be done formally, by a document presented to the sentencing court as a statement of agreed facts, or informally, by a statement of facts which is not contradicted.164) GAS [2004] HCA 22, 217 CLR 198 at [30]. In Weininger, the plurality judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated:

At the sentencing hearing, counsel for the prosecution tendered, without objection, a statement of facts. There having been no objection to its receipt, the primary judge was entitled to act on the facts described in the statement.165) [2003] HCA 14, 212 CLR 629 at [7].

[2.24] The following general propositions apply to a statement of agreed facts:

  • In general, it should be reduced to writing.166) The High Court explained why this was desirable in GAS [2004] HCA 22, 217 CLR 198 at [44]: “Recording what is agreed, in an agreed form of words, should reduce the scope for misunderstanding what is to be, or has been, agreed. It should serve to focus the minds of counsel, and the parties, upon the application of the three fundamental principles which are set out earlier in these reasons and describe the respective responsibilities of the prosecutor, the accused person and the sentencing judge. Most importantly, it enables counsel for both sides to be clear about the instructions to be obtained from their respective clients and the matters about which, and basis on which, counsel should tender advice to their respective clients. There should then be far less room for subsequent debate about the basis on which an accused person chose to enter a plea of guilty.” In Porter [2015] NSWCCA 59 it was observed at [40] that “[e]ven if negotiations about the facts are continuing up until the time of the hearing, a typed draft brought to Court should be amended, by hand, if need be, and the changes initialled so as not to delay the proceedings”.
  • A document tendered and received as a statement of agreed facts may not, in fact, have been agreed to by the offender.167) Korgbara [2010] NSWCCA 176 at [34]. Thus, the offender’s signature on the document will not be determinative.168) Korgbara [2010] NSWCCA 176 at [22]. The question is whether the offender is aware of the contents of the document and admits the factual account contained within it.
  • It should not include matters of law. Accordingly, it would be inappropriate for the parties to agree that “each accused would receive a lesser sentence than a principal” since this “related, in substance, to the significance for a sentencing judge’s discretion of a circumstance that varies in importance from case to case”.169) GAS [2004] HCA 22, 217 CLR 198 at [33], [39].
  • It should state facts rather than summarise evidence.170) Ellis [2015] NSWCCA 262 at [10].
  • It should include not only matters of fact bearing upon the sentence, but also matters relevant to the decision of the offender to plead guilty.171) GAS [2004] HCA 22, 217 CLR 198 at [43]:“Although the recording of the agreement is most obviously necessary in cases where some agreement is reached about matters of fact that will be put to the court as agreed facts or circumstances bearing upon questions of sentence, the desirability of recording what is agreed is not confined to those cases. It extends to every substantial matter that is agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty”.
  • It must be consistent with the facts determined as a matter of law by the plea of guilty (or the verdict of guilty).172) Ishac [2011] NSWCCA 107 at [32]; Palu [2002] NSWCCA 381, 134 A Crim R 174 at [21]. In particular, facts should not be agreed that would result in a breach of the principle (see Principle 12) that an offender may not be punished for conduct that would constitute a more serious offence than that charged: Pun [2017] VSCA 219 at [18].
  • It should not include facts regarding some other offence.173) Sills [2011] NSWCCA 271 at [50].
  • It should always be carefully checked by all parties and their legal representatives, and especially by counsel for an offender.174) Ishac [2011] NSWCCA 107 at [32]; Crowley [2004] NSWCCA 256 at [46].
  • The prosecution should not, in general, tender other material which might supplement or contradict the facts set out in the agreed statement.175) Palu [2002] NSWCCA 381, 134 A Crim R 174 at [21]; Barri [2004] NSWCCA 221 at [58]; H [2005] NSWCCA 282 at [58]. However, it may involve a denial of procedural fairness to the prosecution if the prosecution is not permitted to adduce further material where the defendant has given or adduced evidence that supplements or contradicts the agreed facts, or to adduce further material to meet a criticism made by the sentencing court: Mulligan [2016] NSWCCA 47 at [20]-[21]. Similarly, it would be “unsatisfactory for an offender to give evidence as to the facts and circumstances of the offence where the Crown, with the consent of the defence, has tendered what purports to be an agreed statement of facts”.176) Falls [2004] NSWCCA 335 at [39].
  • Where agreed facts are presented and the other materials tendered by either side depart from the agreed facts, counsel should draw this to the court’s attention and advise which is to prevail and on what facts the offender should be sentenced.177) Crowley [2004] NSWCCA 256 at [46]. If this does not happen and the court subsequently discovers that there is a difference, this should be raised with the parties and the matter be resolved by agreement or otherwise. Nevertheless, the court may act on the facts described in the agreed statement even if contrary evidence is adduced in the sentencing proceedings.178) Falls [2004] NSWCCA 335 at [37]; Zangana [2015] NSWCCA 102 at [92]-[94]. A sentencing court may reject an offender’s sworn evidence where the offender gives evidence inconsistent with the agreed statement of facts tendered by the prosecution.179) Zamitt [2010] NSWCCA 29; Khanwaiz [2012] NSWCCA 168 at [96]-[100]; Zangana [2015] NSWCCA 102 at [92]-[94].

[2.25] A statement of agreed facts does not bind the sentencing court. Since it is for the sentencing court to find the relevant facts, and to determine the sentence in accordance with the law, such an agreement cannot bind the court. As the High Court observed in GAS:

[T]here may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions.180) GAS [2004] HCA 22, 217 CLR 198 at [31]. See also DL [2018] HCA 32, 92 ALJR 764 at [39]. In Anderson [2018] NSWCCA 49, the NSW Court of Criminal Appeal allowed a ground of appeal that the sentencing judge failed “to give effect to [an] Agreed Fact” but it is clear that the core error was sentencing the offender inconsistently with the plea of guilty (at [41]).

As noted above, procedural fairness generally requires that the sentencing court should not determine a fact inconsistently with an agreed fact without having brought that possibility it to the attention of the parties during the course of submissions so that the parties can deal with it.181) See [4.5] above, 4th dot point.

[2.25.2] Where the sentencing court seeks to rely upon a statement of agreed facts for the purposes of drawing an inference from those facts, then the usual accusatorial principles (see [2.7]) apply. Thus, an inference unfavourable to the offender is required to be established beyond reasonable doubt.182) Kirkland [2005] NSWCCA 130 at [13]-[16]; Cowling [2015] NSWCCA 213 at [13].

[2.25.5] Just as otherwise inadmissible material may be received by the court from the prosecution by express consent of the offender or because the offender does not object, so may informal procedures be adopted regarding eliciting relevant facts on behalf of the offender. It is common for factual assertions to be made “from the Bar table” on behalf of the offender and for the sentencing court to rely on those assertions in the absence of prosecution challenge.183) See Olbrich [1999] HCA 54, 199 CLR 270 at [25]; Succarieh [2017] QCA 85 at [113]. In some jurisdictions, the view is taken that reasonable notice should be given to the prosecution, ideally in writing and far enough in advance of the hearing to afford the prosecution an opportunity to make inquiries concerning the matter and to challenge the assertion if considered necessary or appropriate: Bara [2016] NTCCA 5 at [48]. It is common practice in some jurisdictions for both parties to provide each other and the sentencing court with a written outline of submissions in advance, and for the outline provided by defence counsel to include a summary of the submissions intended to be made in relation to the objective circumstances of the offending and the offender’s subjective personal circumstances, including matters going to mitigation. However, the sentencing court is not obliged to accept those facts in the absence of formal evidence and may indicate that the assertion will not be acted upon.184) Olbrich [1999] HCA 54, 199 CLR 270 at [25]. Giving such an indication would be required as a matter of procedural fairness (see [2.5] above; Pantorno [1989] HCA 18, 166 CLR 466 at 473 [11], 482-483 [11]–[12]; Schofield [2003] NSWCCA 3, 138 A Crim R 19). However, it was held in Bara [2016] NTCCA 5 at [47] that there was no need for such an indication because the submission from the Bar table was made for a very limited purpose. The Victorian Court of Appeal has pointed out that this should be approached on a case-by-case basis. Thus, it has been said that a sentencing court should not “approach a particular category of facts in a type of case from the predetermined perspective that an assertion from the Bar table … as to the existence of that fact will not be accepted in the absence of formal proof of that fact”, because “the apprehension may arise that the judge will not dispassionately consider the material which is available in support of or against the fact in issue”.185) Vozlic [2013] VSCA 113, 39 VR 327 at [23].

Particular procedures in a sentencing proceeding

Summary

Special procedures are adopted in sentencing proceedings in relation to:

  • a court, sentencing an offender for one offence, “taking into account” another offence that the offender admits having committed
  • obtaining pre-sentence reports from an appropriate government service
  • deferring passing sentence in order to better assess the offender’s prospects of rehabilitation (or for some other proper purpose)
  • “provisional sentences”
  • obtaining a “victim impact statement”
  • obtaining a child background report
  • character references

[2.26] Some particular aspects of procedure in sentencing proceedings require more extensive discussion.

“taking into account“another offence

[2.27] By s 32 of the NSW Act, provision is made for a “list of additional charges”. The form for such a list is provided in “Form 1”in Schedule 1 of the Crimes (Sentencing Procedure) Regulation 2000. The procedure is generally referred to as “taking into account matters on a Form 1”. The provisions in Division 3 of Part 3 (ss 31-35A) detail the applicable procedures to be followed. Section 33(1) provides that the court must ask the offender “whether the offender wants the Court to take any further offences into account in dealing with the offender for the principal offence”. This requirement is a formality which should not be dispensed with because it is an important “to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody”.186) Felton [2002] NSWCCA 443, 135 A Crim R 328 at [3]; Brandt [2004] NSWCCA 3 at [8]; Calcutt [2012] NSWCCA 40, 221 A Crim R 505 at [21]; Woodward [2017] NSWCCA 44 at [25]. In Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002)187) [2002] NSWCCA 518, 56 NSWLR 146, 137 A Crim R 180. the NSW Court of Criminal Appeal gave a “guideline judgment” in respect of this procedure. Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) stated:

The legislative scheme empowers a prosecutor to file a list of additional charges specifying other offences which an offender wants the court to take into account. Nothing in the statutory scheme identifies any criterion for selection of matters to be included on any such list. Nor is there any statutory indication of any desirable, let alone necessary, relationship between a principal offence and offences on such a list. However, the Court is given an overriding discretion to refuse to accede to the wishes of the prosecution and the offender. By s 33(2)(b), a sentencing judge only needs to take into account the further offences “if, in all the circumstances, the court considers it appropriate to do so”.

This is a wide discretion which should not be confined by the identification of a list of situations in which it should not be exercised. The authorities do, however, contain a number of expressions of opinion about when the Form 1 procedure is not appropriate, which may suggest circumstances in which the discretion to take matters into account should not be exercised.

… As long as the most serious offences or, in the case of similar offences, an appropriate range of offences, are included on the indictment, there is no objection to the inclusion of some offences on a Form 1. It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct to be appropriately reflected in the sentence.

… [There are] difficulties involved in the intellectual exercise of ‘taking into account’, in a particular respect, matters which may appear to be disproportionate or not comparable to the primary matter under consideration.

Further, there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1. A sentencing judge will find it difficult to undertake the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1.

… By reason of the express statutory power, a sentencing judge must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences. There will be cases in which, for example, the administration of justice could be brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis. I do not intend the previous sentence to constitute a comprehensive statement of the circumstances in which the broad discretion vested in the sentencing judge by s33(1)(b) can be exercised. Nevertheless, the role of the Court must be constrained, to ensure that the independence of the judicial office in an adversary system is protected. (Cf Maxwell v The Queen (1995) 184 CLR 501 esp at 513-514 and 534-535.)188) [2002] NSWCCA 518, 56 NSWLR 146, 137 A Crim R 180 at [47]–[67]. See also Marshall [2013] NSWCCA 16 at [10]; Abbas [2013] NSWCCA 115, 231 A Crim R 413 at [10]; PB [2016] NSWCCA 258 at [56]-[57].

The document filed by the prosecutor (a “Form 1”) must identify the “principal offence” in relation to which the offender wishes other offences to be taken into account.189) Williams [2005] NSWCCA 355, 156 A Crim R 225 at [29]. This may be done informally: O’Connor [2017] NSWCCA 300 at [34]-[35]. The procedure is not limited to offences carrying custodial sentences, since the definition of “imposing a penalty” in s 31 is both broad and non-exclusive.190) See Marshall [2013] NSWCCA 16 at [10]. Even if a custodial sentence is to be imposed for the principal offence, an offence punishable only by a non-custodial sentence may be taken into account.191) Marshall [2013] NSWCCA 16 at [11]. See also Linden [2017] NSWCCA 321 at [69]-[76].

[2.27.5] It is clear that the discretion to decline to take into account another offence pursuant to this procedure will be affected by the constraints imposed by sentencing principle on the way in which it may be taken into account. Those principles are discussed in Chapter 3.192) See Chapter 3 Principles at [3.143]-[3.150]. In the case of Abbas Bathurst CJ stated:

There may be cases in which it is not possible to properly take Form 1 offences into account by reference to the additional need for punishment and retribution in respect of the convicted offence. This will generally only occur in cases where the gravity of the Form 1 offence is far in excess of those for which the offender is being sentenced, or when the magnitude of the offences on the Form 1 make it impossible to take them into account in sentencing for the convicted offence. In these circumstances the Court should decline to take the Form 1 offences into account.193) Abbas [2013] NSWCCA 115, 231 A Crim R 413 at [26] (Hoeben CJ at CL, Garling J and Campbell J agreeing). See also JL [2014] NSWCCA 130 at [7].

[2.28] Section 16A(2)(b) of the Cth Act provides that a sentencing court is required to take into account “other offences (if any) that are required or permitted to be taken into account”. Section 16BA creates a procedure whereby other offences may be “taken into account”. Notwithstanding the different statutory language to Division 3 of Part 3 of the NSW Act, NSW courts have held that the principles established in the NSW guideline judgment (Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002)194) [2002] NSWCCA 518, 56 NSWLR 146, 137 A Crim R 180.) apply.195) Dennison [2011] NSWCCA 114. Thus, although the terms of s 16BA might suggest that matters can be taken into account when sentencing for more than one federal offence, it has been held that it cannot have been the intention of the legislature that more than one sentence could be increased by taking into account the same offences since that would result in double counting the matters being taken into account.196) Assafiri [2007] NSWCCA 159. However, one difference between the Commonwealth and NSW provisions is that the former does not exclude offences carrying a maximum penalty of life imprisonment from being taken into account in respect of another offence.197) Nguyen [2010] NSWCCA 238 Johnson J at [117] (MacFarlan JA and RA Hulme J agreeing). Even if s 16BA is not utilised, it may be possible for a sentencing court to “pick up” and apply the NSW procedure in respect of a federal offence pursuant to s 68 of the Judiciary Act 1903 (Cth).198) Compare Adams [2014] WASCA 191at [11]-[53], [158]-[165].

Reports

[2.29] Under the NSW Act, before a sentencing court imposes a sentence on an offender, the court may request, but is not obliged to request, an “assessment report” from a community corrections officer199) The term “community corrections officer” is defined in s 3(1) to have “the same meaning as it has in the Crimes (Administration of Sentences) Act 1999”. In that Act, it is defined to mean “a person who is employed within Corrective Services NSW as a community corrections officer, as referred to in section 231”: s 3(1). or a juvenile justice officer200) The term “juvenile justice officer” is defined in s 3(1) to have “the same meaning as it has in the Children (Detention Centres) Act 1987”. In that Act, it is defined to mean “a member of staff of the Department who is principally involved in the administration of this or any other Act administered by the Minister, and includes any member of staff of the Department who is in the branch of the Department known as Juvenile Justice”: s 3(1). The “Department” is defined to mean the Department of Justice.: s 17C of the NSW Act. The requirements of an assessment report are specified in s 17B and the regulations.  In certain circumstances, a report is required :

  • a community service work condition requiring the performance of community service work for a specified number of hours cannot be imposed on a CCO unless an assessment report relating to the imposition of such a condition in relation to the offender has been obtained (s 17D(4)) and the assessment report states that the offender is suitable to be the subject of such a condition: s 89(4)
  • an ICO cannot be imposed unless it an assessment report has been obtained in relation to the offender (s 17D(1)) unless the court is satisfied that it has sufficient information to justify making the ICO without a report: s 17D(1A)
  • a community service work condition cannot be imposed on a CCO unless an assessment report relating to the imposition of such a condition in relation to the offender has been obtained (s 17D(4)) and the assessment report states that the offender is suitable to be the subject of such a condition: s 89(4)
  • a community service work condition cannot be imposed on an ICO unless an assessment report relating to the imposition of such a condition in relation to the offender has been obtained (s 17D(4)) and the assessment report states that the offender is suitable to be the subject of such a condition: s 73A(3)
  • a home detention condition cannot be imposed for an ICO unless an assessment report relating to the imposition of such a condition in relation to the offender has been obtained (s 17D(4)) and the assessment report states that the offender is suitable to be the subject of such a condition: s 73A(3)
  • a court imposing a “final sentence” on a child offender given a “provisional sentence” for an offence of murder must first obtain for any “progress review” a report containing an assessment of the care and treatment of the offender while in custody, an assessment of the offender’s psychiatric, cognitive and psychological development since the provisional sentence was imposed, and such other matters as the court requires to be addressed in the report: s 60F

[2.30] Apart from these requirements, the sentencing court may choose to order a pre-sentence report from an appropriate government service. There is no obligation to obtain such a report.201) See Hanania [2012] NSWCCA 220 at [40]-[48]. For example, in Majors, Carruthers J stated:

It is essentially for the trial judge to determine whether he or she considers it appropriate to defer the sentencing process until such time as a pre-sentence report is obtained. In this regard a number of factors would exercise the sentencing judge’s mind. One factor which may be relevant is that, in many cases, the pre-sentence report, the preparation of which invariably involves an interview with the offender, consists substantially of self-serving statements made by the offender, often involving unsubstantiated allegations. The Crown is obliged to tender the report, which obviates the need for the offender to give evidence before the sentencing judge and thereby deprives the Crown Prosecutor of the opportunity to cross-examine the offender. It also deprives the judge of the opportunity of hearing the offender give evidence of subjective matters. The sentencing judge is often then left in doubt as to how much weight may be given to all or any part of the report, particularly conclusions, suggestions and recommendations by the interviewing officer.202) (1991) 54 A Crim R 334 at 337 (Hunt J and McInerney J agreeing).

[2.30.5] It would usually be appropriate to adjourn sentencing in order to obtain a report. However, this should not be done for an impermissible purpose. For example, a sentencing court should not adjourn sentencing for the purposes of ensuring that the offender would serve a period of custody (where bail pending sentencing is refused) which, if taken into account at the time of sentencing, would have the consequence of reducing the term of the appropriate period of imprisonment to be imposed so as to make the offender eligible for such a sentencing option as an intensive corrections order.203) See West [2014] NSWCCA 250 at [33]-[44].

[2.31] With regard to federal offenders, Part IB of the Cth Act does not make provision for pre-sentence reports. Provisions relating to pre-sentence reports are considered to be matters of sentencing procedure and procedures in respect of NSW offenders are therefore picked up and applied in the sentencing of federal offenders by ss 68 and 79 of the Judiciary Act 1903(Cth).

Prospects of offender rehabilitation

[2.32] The likelihood of re-offending and its converse, the likelihood of rehabilitation, or the “prospects of rehabilitation”, is a question of fact for the sentencing court. The usual principles regarding fact determination apply, although the situation is complicated given that the court is not investigating an historical fact but considering a possible future event. In assessing prospects of rehabilitation, a sentencing court may take into account such things as psychologist’s opinions and psychological tests. In Corby, Johnson J observed that a particular psychological test in respect of the offender was a “common tool in risk assessment of sex offenders, although it forms only part of the process” and “must be approached with caution”.204) [2010] NSWCCA 146 at [91]. See also Cowling [2015] NSWCCA 213 at [35]-[47].The sentencing court is certainly not bound by the report since it is an item of evidence to be weighed with all the other evidence admitted in the sentence proceeding.205) Stoeski [2014] NSWCCA 161 at [38]-[39].

[2.33] Plainly enough, a sentencing court will be more easily persuaded that prospects of rehabilitation are good if significant rehabilitation has already occurred at the time of sentencing.206) Darby [2011] NSWCCA 52 at [53]; Lal [2006] NSWCCA 197 at [20]; Croaker [2004] NSWCCA 470 at [28]; Rose [2004] NSWCCA 326; Hunt [2002] NSWCCA 482; Rai [2002] NSWCCA 506 at [13]; Ramos [2000] NSWCCA 189, 112 A Crim R 339 at [14]; Hill [1999] NSWCCA 140 at [10]–[11]; Duncan (1983) 9 A Crim R 354. See also JW [2010] NSWCCA 49, 199 A Crim R 486 at [210]. On the other hand, steps backward prior to sentencing will not necessarily be indicative of the loss of progress towards rehabilitation.207) Croaker [2004] NSWCCA 470 at [28]. Section 11 of the NSW Act permits a sentencing court to defer passing sentence (and grant bail to the offender) in order to, among other things, better assess the offender’s prospects of rehabilitation. The provision provides as follows:

Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes

1. A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date, and granting bail to the offender in accordance with the Bail Act 1978:

a. for the purpose of assessing the offender’s capacity and prospects for rehabilitation, or

b. for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or

b1. for the purpose of assessing the offender’s capacity and prospects for participation in an intervention program, or

b2. for the purpose of allowing the offender to participate in an intervention program, or

c. for any other purpose the court considers appropriate in the circumstances.

2. The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt.

2A. An order referred to in subsection (1) (b2) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. Section 36A of the Bail Act 1978 enables a court to grant bail to a person on either or both of the following conditions:

a. that the person enter into an agreement to subject himself or herself to an assessment of the person’s capacity and prospects for participation in an intervention program or other program for treatment or rehabilitation,

b. that the person enter into an agreement to:

i. participate in an intervention program and to comply with any intervention plan arising out of the program, or

ii. participate in any other program for treatment or rehabilitation.

3. This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.

4. Subsection (1) (b1) and (b2) do not limit the kinds of purposes for which an order may be made under subsection (1), so that an order may be made under that subsection for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program, or to be assessed for participation in such a program.

[2.34] While the power conferred under this provision is not limited to determining the offender’s prospects of rehabilitation (it permits an adjournment “for any other purpose the court considers appropriate in the circumstances”208) An adjournment would be appropriate to, for example, enable recommended and important surgery to take place (Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [61]) or where there is a significant risk of suicide arising from severe depression if the offender remained in custody (Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [58]).), it is explicitly permitted on such a basis. An order made under this provision is sometimes referred to as a “Griffiths remand”, referring to the judgment of the High Court confirming the appropriateness under the common law of a delay in sentencing on such a basis.209) Griffiths (1977) 137 CLR 293; see also Brown [2009] NSWCCA 6, 193 A Crim R 546 at [2]. In Farrell [2014] NSWCCA 30, 239 A Crim R 212 it was accepted that deferral of sentence and granting bail would be appropriate where this was “was necessary to enable … surgery to be performed” on the offender but the offender had failed to establish that it was necessary because there was no evidence to suggest that the surgery could not be obtained in prison: at [65]. In Trindall, Smart AJ stated:

Often a Court experiences difficulty when sentencing an offender in determining the offender’s prospects of rehabilitation and whether the foreshadowed rehabilitation will occur. In many instances it will be of great assistance to the sentencing judge if there is an adjournment to enable the offender to demonstrate that rehabilitation has taken place or is well on the way.210) Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [60] (Spigelman CJ and Grove J agreeing).

[2.35] The adjournment will allow the sentencing court to have evidence of what has actually taken place rather then to have to base its decision on the opinions of experts, assertions by the offender and what has happened in what may be a short time since the commission of the offence or the offender’s arrest.211) Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [60]; Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [23]. Since the exercise of the power given under this provision will inevitably result in delay in the finalisation of the prosecution of the offender, the court should only grant the adjournment where it is necessary in the interests of justice.212) Palu [2002] NSWCCA 381, 134 A Crim R 174 at [30]; Pulliene [2009] NSWCCA 47 at [28]. In making that determination, the court should take into account not only the anticipated delay but also the objective seriousness of the offence and otherwise available evidence as to the offender’s prospects of rehabilitation.213) Palu [2002] NSWCCA 381, 134 A Crim R 174 at [30], [38]; Hopoi [2014] NSWCCA 263 at [44], [46]-[51]. In Cunningham [2017] SASCFC 28, the Full Court of the South Australian Supreme Court held that the severe disabilities suffered by the offender’s child and the enormity of the job of caring for the child were factors relevant to the making of an order under comparable legislation). Exercise of the discretion would be appropriate where an adjournment would, in the circumstances, be of assistance in determining the appropriate sentence to impose.214) Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [18]; Leahy [2004] NSWCCA 148 at [14]; Hopoi [2014] NSWCCA 263 at [52]-[54]. It would, for example, enable a determination to be made as to whether the offender is at the “crossroads” between a criminal and law-abiding life.215) Rose [2004] NSWCCA 326 at [43]; Pulliene [2009] NSWCCA 47 at [27]. It would allow an adjournment for the purpose of demonstrating that rehabilitation has taken place, even though the rehabilitation may have already been completed.216) Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [166]. This provision may be utilized even if a custodial sentence is inevitable.217) Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [64]; Leahy [2004] NSWCCA 148 at [13]; Brown [2009] NSWCCA 6, 193 A Crim R 546 at [22]; Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [22]. In Rayment, Tobias JA stated:

No doubt, with some offenders rehabilitation will be a slower process than with others. Each case must be determined on its own circumstances. The discretion cannot be confined provided that the sentencing judge considers that an adjournment, for example, for the purpose of an offender demonstrating that rehabilitation has taken place, will be of assistance in determining the appropriate sentence to impose. In my view this is so even if a custodial sentence is inevitable.218) Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [25].

In such circumstances, the court should make it clear to the offender that prison is inevitable and that the purpose of the adjournment is to assist the court in determining the precise sentence.219) Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [64] (Spigelman CJ and Grove J agreeing). Progress in rehabilitation during the period of adjournment pending sentence would be relevant to both the term of the sentence to be imposed, and the applicable non-parole period.220) Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [22].

[2.36] A similar procedure for deferring sentencing is available in the Children’s Court under s 33(1)(c2) of theChildren (Criminal Proceedings) Act 1987 (NSW) (discussed in Chapter 6).

[2.37] In respect of federal offences, a “Griffiths remand” might be utilised, (referring to the judgment of the High Court confirming the power of a sentencing court to adjourn sentencing for an appropriate reason).221) Griffiths (1977) 137 CLR 293; see also Brown [2009] NSWCCA 6, 193 A Crim R 546 at [2]. The court’s power to defer sentencing is not confined to obtaining a behavioural assessment of an offender. Subject to any statutory requirement, a court may defer sentencing for any proper purpose affecting the sentencing task.222) Griffiths (1977) 137 CLR 293 at 321-323, 335, 338-339; Togias [2001] NSWCCA 522, 127 A Crim R 23 at [6]. In any event, it is likely that s 11 of the NSW Act is picked up pursuant to s 68 of the Judiciary Act 1903 (Cth).

Provisional sentencing

[2.37.5] Pursuant to Division 2A in Part 4 of the NSW Act, a “provisional sentence” may be imposed on a child being sentenced for the offence of murder if certain conditions are satisfied. Those conditions (s 60B) include a requirement that the sentencing court “cannot satisfactorily assess” the prospects of rehabilitation. Where a “provisional sentence” is imposed by a court, that court (if practicable, constituted in the same way as the court that imposed the provisional sentence) must conduct a “progress review” in relation to the offender at least once every 2 years after the provisional sentence is imposed: s 60E. At such a progress review, a “final sentence” may be imposed (see [5.131.5]). The court may obtain for any “progress review” a report containing an assessment of the care and treatment of the offender while in custody, an assessment of the offender’s psychiatric, cognitive and psychological development since the provisional sentence was imposed, and such other matters as the court requires to be addressed in the report: s 60F. The only provision dealing directly with the procedure to be adopted at the progress review is s 60E(6), which provides that a “progress review is to be conducted in the presence of the offender”. However, there is little doubt that a progress review is to be conducted in accordance with the usual procedures of a sentencing proceeding.

[2.37.7] Absent provisions such as Division 2A in Part 4 of the NSW Act, a sentencing court may not impose a sentence in two stages. For example, a court may not impose a sentence of imprisonment and then, depending on circumstances that emerge during the period of imprisonment, later sentence the offender to a non-custodial option.223) See West [2014] NSWCCA 250 at [41]-[44].

Victim impact statement

NSW Act

[2.38] The NSW Act provides for the receipt by a sentencing court of a “victim impact statement” (VIS). Section 28(1) states:

If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.

However, it is important to note that evidence of the harm suffered by a victim of an offence may also be admitted under general principles without reliance on this statutory scheme.224) Porter [2008] NSWCCA 145 at [52]-[56]; Miller [2014] NSWCCA 34 at [154]-[156]. Further, a sentencing court may make findings as to harm without a VIS being admitted or admissions made by the offender.225) WAP [2017] NSWCCA 212 at [77].

(a) Application

[2.39] The VIS scheme applies to certain types of offences being dealt with by the Supreme Court, District Court, Local Court and the Industrial Relations Commission. For example, it applies to an offence being dealt with on indictment by the Supreme Court or District Court if the offence “involves the death of, or actual physical bodily harm, to any person”, or if the offence is“a prescribed sexual offence”.

(b) Persons who can make a VIS

[2.40] A VIS can be made by a “primary victim”, which means a person against whom the offence was committed, or a person who witnessed the offence, but only if the person has suffered personal harm (which includes physical and psychological harm) as a result of the offence. If a primary victim has died as a direct result of the offence, a VIS can be made by a “family victim”. This means a person who was, at the time of the offence, a member of the primary victim’s immediate family (whether or not the person has suffered personal harm as a result of the offence).

(c) Nature of a VIS

[2.41] A VIS is a written statement containing particulars of:

  1. in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence;
  2. in the case of a family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family.

The limitation to harm suffered by the victim as a direct result of the offence is important.226) See RL [2015] NSWCCA 106 at [51]-[57]; AC [2016] NSWCCA 107 at [44] (document did not identify the harm which the victim had suffered “as the result of the applicant’s offending”). That is consistent with the principle that an offender may not be punished for some other offence of which he or she has not been convicted.227) See PWB [2011] NSWCCA 84 at [53]; BCY [2015] QCA 200 at [61]-[68]. Of course, in some cases it may not be possible to separate out the impact of any particular occurrence from another, but the sentencing court must nonetheless apply the principle and only take into account the impact of the offence in respect of which the offender is to be sentenced.228) PWB [2011] NSWCCA 84 at [53]; MA [2001] NSWCCA 30 at [18]. As regards a family victim, it has been observed that the term “impact” should not be construed narrowly.229) Turnbull (No. 24) [2016] NSWSC 830 at [8]. The form and content of victim impact statements is regulated by Division 2 of Part 2 of the Crimes (Sentencing Procedure) Regulation 2017. Section 30(3) provides that a “court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division”.230) See AC [2016] NSWCCA 107 (requirements not satisfied).

(d) Receipt and consideration by court

[2.42] Section 28(1) confers a discretion on the sentencing court to receive and consider231) The provision does not elucidate what use may be made of a victim impact statement: see [2.12] above. a victim impact statement at any time between conviction and sentencing. However, if a primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate: s 28(3). The court is required to receive a victim impact statement given by each family victim. On the other hand, the court has a discretion as to whether it will take into account a victim impact statement given by a family victim in connection with the determination of the punishment for the offence (s 28(4): “A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community”). This provision suggests that the family victim impact statement cannot be taken into account except to the extent that it bears on the assessment of “harm to the community”. As regards the discretion to use it for that purpose, no guidance is provided as to how the discretion is to be exercised.232) Hines (No 3) [2014] NSWSC 1273 at [78]. In Previtera it was held that it could rarely be appropriate to take a family victim statement into account in sentencing the offender for the murder of the victim. This was on the premise that the value of the life lost, and the resulting harm suffered, should not be regarded as greater in one case than in another.233) Previtera (1997) 94 A Crim R 76 at 86-7. See also Bollen (1998) 99 A Crim R 510at 529-530; Tzanis [2005] NSWCCA 274 at [15]-[18]; Whybrow [2008]NSWCCA 270 at [17]. Section 28(4) was enacted to "change the law"234) Turner [2011] NSWCCA 189, Basten JA at [1]. as it was declared in Previtera, but the question is whether it is “appropriate” for a sentencing court to hold that the “harm to the community” is greater because, for example, the victim was loved by many than if the victim was “a friendless or homeless member of the community”.235) Basten JA in Hendricks [2011] NSWCCA 203 at [9]. Nevertheless, a family victim statement may be relevant where, for example, the victim suffered a “slow lingering and painful death”236) Previtera (1997) 94 A Crim R 76 at 86. or where the offender knew of the harm that would result (and thus it bears on the offender’s culpability).237) Lewis [2001] NSWCCA 448 at [67].  It is not necessary that an intention to kill be present, only that the offender foresee that death could result and be aware of the likely effect of that death: Sheiles [2018] NSWCCA 285 at [40]-[42].

(e) Reading out a VIS in court

[2.43] If a VIS has been received by a court, “a victim to whom it relates, or a person having parental responsibility for the victim, or a member of the immediate family, or other representative of the victim, is entitled to read out the whole or any part of the statement to the court”: s 30A(1). If the proceedings are for a prescribed sexual offence, the court may be closed: s 30A(3A)-(3C). If the proceedings are for a prescribed sexual offence, the court may be closed: s 30A(3A)-(3C). The section does not appear to contemplate that the author of the statement may be cross-examined. 238)See MJB [2014] NSWCCA 195 at [50]. However, the position may well be different “where the author of a so-called victim impact statement is an expert, rather than a victim”: Muggleton [2015] NSWCCA 62 at [44].

Cth Act

[2.44] The Cth Act provides for the receipt by a sentencing court of a “victim impact statement”. Section 16A(2)(ea) requires that, “if an individual who is a victim of the offence has suffered harm as a result of the offence”, “any victim impact statement for the victim” is to be taken into account in sentencing. The term “victim” is not defined. However, s 16 defines “harm” to “include”: “(a) physical, psychological and emotional suffering; and (b) economic and other loss; and (c) damage”. Further, s 16AAA provides, in part:

Victim impact statements

(1) A victim impact statement, for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied:

(a) the statement must be made by one of the following:

(i) the individual;
(ii) if the court gives leave, a member of the individual's family;
(iii) a person appointed by the court;

(b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence;

(c) if the statement is written, the statement must be:

(i) signed or otherwise acknowledged by the maker of the statement; and
(ii) given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender;

(d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender.

(2) However, the court may order that the requirement in paragraph (1)(d) does not apply to a particular oral statement.

Section 16AAA(1)(b) permits the “victim impact statement” to describe the “impact” of the offence on the victim, and such “impact” is not limited to “the harm suffered by the victim as a result of the offence”. However, the term “must” would appear to indicate that the VIS must be limited to (only) describing that “impact” on the victim. Thus, even if leave is given by the court pursuant to s 16AAA(1)(a)(ii) for a member of the individual's family239) AWKO [2010] NSWCCA 90 at [19]. to make a VIS, the family member would not be permitted to describe the impact of the offence on anyone other than the victim. Section s 16AB deals with other procedural issues relating to such victim impact statements:

Matters relating to victim impact statements

(1) This section applies in relation to victim impact statements made known to a court as described in paragraph 16A(2)(ea).

(2) Only one victim impact statement may be made for each victim of an offence, unless the court gives leave.

(3) No implication is to be drawn from the absence of a victim impact statement for a victim.

(4) All or part of a victim impact statement for a victim may be read to the court by or on behalf of the victim.

(5) A victim impact statement is not to be read to the court, or otherwise taken into account, to the extent that:

(a) it expresses an opinion about an appropriate sentence; or
(b) it is offensive, threatening, intimidating or harassing; or
(c) admitting it into evidence would otherwise not be in the interests of justice.

(6) The person convicted of the offence may only test the facts in a victim impact statement:

(a) by way of cross-examining the maker of the statement; and
(b) if the court gives leave to do so.

(7) For the purposes of Part IAD (about protecting vulnerable persons):

(a) giving evidence includes giving a reading under subsection (4); and
(b) a cross-examination includes a cross-examination under subsection (6).

Note: This confirms that any protections available under Part IAD will be available for the reading or the cross-examination.

Section 16AB(5) imposes further limits on the contents of a VIS beyond those imposed by s 16AAA. Further, 16AB(6) permits cross-examination of the maker of the statement “if the court gives leave to do so”. No guidance is given as to the factors the court should take into account when deciding whether or not to grant leave, although clearly the principles of procedural fairness should be applied. As noted at [2.5], one of those principles is that the offender should have an opportunity to cross-examine any prosecution witness, at least where the witness will be relied upon by the sentencing court.240) Thomas [2006] NSWCCA 313 at [16]. See also Sanchet [2006] NSWCCA 291 at [39]; DBW [2007] NSWCCA 236 at [33]-[37]; Jackson [2011] NSWCCA 124 at [26]. If a sentencing court indicates that a particular factor may affect the sentence to be imposed, it is that court’s duty to make plain whether that factor did, in the event, have that effect: Dimozantos (No 2) [1993] HCA 52, 178 CLR 122 at [15]. However, 16AB(6) would appear to prohibit evidence being adduced by the offender to rebut some aspect of the VIS (given that such evidence could be characterised as designed to “test the facts in” the VIS). As under NSW law, evidence of the harm suffered by a victim of an offence may be admitted under general principles without reliance on any statutory scheme.241) Porter [2008] NSWCCA 145 at [52]-[56]; Miller [2014] NSWCCA 34 at [154]-[156]. See also B [2015] NSWCCA 103 at [195].

Child background report

[2.45] Section 25 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that a “child” is not to be sentenced to imprisonment or juvenile detention unless “a background report, prepared in accordance with the regulations, has been tendered in evidence with respect to the circumstances surrounding the commission of the offence” and related procedural steps have been taken.242) See CVH [2003] NSWCCA 237. The Regulations require such a background report to deal with such matters as the child’s family background, antecedents, disabilities, employment, education, friends and associates and the nature and extent of the child’s participation in the life of the community.

Character reference

[2.45.5] Sentencing courts will receive a written (and signed) “character reference” for the purpose of establishing the “good character” of the offender, without requiring the author to attend court for the purposes of cross-examination. There are no mandatory requirements for a (good) character reference given in respect of an offender. However, such a reference will be given little or no weight unless the author provides the context in which he or she is giving the reference 243) Smorhun v Devine [2014] ACTSC 208 at [53]; Law v Ilievski [2016] ACTSC 291 at [73]. (particularly by demonstrating awareness of the offence or offences for which the offender is to be sentenced) and sets out the basis on which the assessment of character it contains is made.244) Carter v Nussbaum (No 2) [2013] FamCA 1014 at [6]; Law v Ilievski [2016] ACTSC 291 at [73]. It will have little or no weight if the reference asserts facts that are inconsistent with the facts of the offence upon which the offender is to be sentenced.245) Bollen (1998) 99 A Crim R 510 at 521; Law v Ilievski [2016] ACTSC 291 at [74]. It has been observed:

It is preferable … that a reference should … show that the author is able to describe the person “warts and all”. This, of course, requires that the author preferably sets out the circumstances under which he or she knows the person for whom the reference is given, as well as knowledge of the person’s criminal history and the circumstances of the offence.246) Law v Ilievski [2016] ACTSC 291, Refshauge ACJ at [75]. See also Poole v Edwards [2016] ACTSC 159 at [100].

Submissions to the court

Summary

While the parties to a sentencing proceeding may make “submissions” regarding sentence, a submission by the prosecution as to the “available range” of sentences (or as to the sentence that should be imposed) should not even be taken into account by the sentencing court. Further, submissions from the parties, even if “agreed”, cannot bind the sentencing court.

[2.46] As noted at [2.5], it is an aspect of procedural fairness that the parties in the sentencing proceeding have a right to make “submissions” regarding sentence. Further, it is well established that the Crown has a duty to make submissions that will “assist” the court in sentencing, particularly in avoiding appealable error.247) Tait (1979) 24 ALR 473; Casey (1986) 20 A Crim R 191; Holder [2014] VSCA 61 at [32], [34]. See also Barbaro [2014] HCA 2, 305 ALR 323 at [21], [39]-[40]. This duty extends to drawing to the attention of the court what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases.248) Barbaro [2014] HCA 2, 305 ALR 323 at [39]. However, in Barbaro249) See Chapter 3 Principles at [3.155]-[3.163]., the High Court overturned earlier authority permitting (and, in some cases, requiring) the prosecution to make a submission as to the “available range” of sentences that might be imposed in the particular case. It was held that such a submission would not be a submission of law but a “statement of opinion” and that “the sentencing judge need not, and should not, take it into account in fixing the sentences to be imposed”.250) [2014] HCA 2, 305 ALR 323, French CJ, Hayne, Kiefel and Bell JJ at [49]. It was held that the prosecution should limit submissions to submissions “about what facts may or should be found, about the relevant principles [and] about comparable sentences” (see at [38]). Gageler J took a different view (see at [59]-[62]). The plurality judgment also stated that it is not “the role” of the prosecution “to proffer some statement of the specific result which … should be reached”.251) French CJ, Hayne, Kiefel and Bell JJ at [39]. See also Ojielumhen [2014] ACTCA 28 at [21].

[2.46.5] The Victorian Court of Appeal has provided guidance as to the limits of the judgment of the High Court in Barbaro. Warren CJ, Nettle JA and Redlich JA held in Matthews252) [2014] VSCA 291, 246 A Crim R 193. Priest and Lasry JJA provided a separate opinion. that “nothing said in Barbaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate”.253) [2014] VSCA 291, 246 A Crim R 193 at [27]. See also Haynes [2017] VSCA 79. Thus, the prosecution may, and should, make a submission as to the range of sentencing options appropriately open.254) See also Priest and Lasry JJA at [144]-[153]. Further, Warren CJ, Nettle JA and Redlich JA stated that Barbaro does not preclude the making, on behalf of the offender, of a “quantified sentencing range submission”.255) [2014] VSCA 291, 246 A Crim R 193 at [22]. Where such a submission is made, the prosecution may, and should, make a submission in response:

[W]hen and if defence counsel does make a submission as to range, we consider that it is necessary and therefore permissible for the Crown to respond and, in particular, to be able to tell the judge whether in the Crown’s submission it would be open to impose a sentence within that range; or, if not, to draw to the judge’s attention the comparable and other cases, current sentencing practices and other relevant considerations which in the Crown’s submission support that conclusion. To say so is not to suggest that the Crown would be entitled to specify an alternative quantified range. So much is now prohibited by Barbaro. But it remains necessary to the proper functioning of the sentencing process that the Crown be able to and do draw to the judge’s attention the possibility that acceptance of a defence submission might lead to appealable error.256) [2014] VSCA 291, 246 A Crim R 193 at [25].

Subsequently, Kiefel, Bell and Keane JJ observed in CMB257) [2015] HCA 9, 317 ALR 308 at [64]. See also Lamis [2016] NSWCCA 274 at [41]-[45]. that the prosecutor’s duty to assist the sentencing court to avoid appealable error would extend to making a submission that “the form of proposed sentencing order” which had been indicated by the court “would be manifestly inadequate”, thereby apparently endorsing the proposition that there is a duty to make a submission as to the sentencing "dispositions" appropriately open. No reference was made to the other propositions advanced by the Victorian Court of Appeal.

Comment

The judgment of the High Court in Barbaro was regrettable for a number of reasons. The plurality judgment accepted that a submission made on appeal that a sentence was “outside the available range” is a submission of law but held that a submission as to “the available range” at sentencing would not be. However, as Gageler J pointed out in his separate judgment, “the character of a submission that a sentence within a given range would or would not be available to be imposed by a sentencing court in the circumstances of a particular case as one of law … cannot depend on whether the submission is made to a sentencing court or to a court of criminal appeal”.258) [2014] HCA 2, 305 ALR 323 at [61]. More important, it should not matter whether or not such a submission is properly characterised as a submission of law – in an adversarial procedure, both parties should be permitted as a matter of fairness to make a submission as to the ultimate outcome. To characterise a quantified submission as to “appropriate range” (or, indeed, as to the “appropriate sentence”) as an “opinion”, which should be ignored, misses the point about submissions. In an adversarial proceeding, a party to the proceeding should be permitted to make, and have considered, a submission as to how the proceeding should be ultimately determined.259) In a civil proceeding where a court has to determine the appropriate quantum of damages, the parties must be permitted to make a submission on that question and have that submission considered by the court – it is impossible to understand why a different approach is taken to determination of an appropriate sentence. Furthermore, the judgment was regrettable for reasons of policy. Permitting the prosecution to make a submission as to an appropriate range (or as to an appropriate sentence), where the offender had been informed of that proposed submission during plea negotiations, increases the prospects of obtaining a plea of guilty, without constituting an improper inducement or undermining the independence of the courts. In Canada, for example, it is accepted that allowing the prosecution to make submissions as to an appropriate sentencing range after plea negotiations (with sentencing courts only sentencing outside that range for “good reason”) encourages the entry of pleas of guilty. Barbaro has now been reversed by legislation in Queensland.260)Penalties and Sentences Act 1992 (Qld), s 15. However, if the approach of the Victorian Court of Appeal prevails, the concerns arising from the judgment of the High Court will be largely mitigated. In particular, the prosecution may agree during plea negotiations that, if a nominated range is advanced on behalf of the offender, it will submit to the sentencing court that it would be open to the court to impose a sentence within that range.

[2.46.7] Since it is for the sentencing court to determine the sentence in accordance with the law, submissions from the parties, even if “agreed”, cannot bind the court.261) CMB [2015] HCA 9, 317 ALR 308, Kiefel, Bell and Keane JJ at [64]. Any agreement between the parties which relates to the appropriateness of any particular sentence, or a component of it, must be confined to an undertaking by the prosecution to make a submission to the sentencing court consistent with the terms of that agreement.262) Ahmad [2006] NSWCCA 177 at [23]. The agreement can neither bind the court nor be given any greater weight than other submissions.263) Ahmad [2006] NSWCCA 177 at [23] . On the other hand, since sentencing proceedings are adversarial, it would be an exceptional case for a sentencing court to impose a more severe sentence than that contended for by the prosecution.264) See Miller [2018] ACTCA 21 at [8] (“A position taken by the Crown sets a limit beyond which a sentencing judge should not travel other than in exceptional circumstances”).

Sentencing decision

Summary

A sentencing court must give reasons for its decision as to an appropriate sentence. The matters of significance in determining sentence must be identified, including the facts giving rise to the offence, the findings in relation to all matters taken into account in mitigation or aggravation of sentence, and the reasoning which leads to the sentence imposed. Various statutory provisions require reasons to be given in respect of specified matters. Absent exceptional circumstances, there must be contemporaneity between the handing down of the sentence and the expression of the reasons for the sentence. Statutory provisions require certain specific matters to be explained to the offender where a sentencing court makes a particular order when imposing sentence.

[2.47] In Thomson, Spigelman CJ:

Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a Court is to publish reasons for its decision, not merely to provide reasons to the parties.265) [2000] NSWCCA 309, 49 NSWLR 383, 115 A Crim R 104 at [42] (Wood CJ at CL, Foster AJA, Grove J, James J agreeing). See also Thomas [2006] NSWCCA 313 at [16].

Given the obligation to give reasons, it has been observed that "what in the past were somewhat dismissively characterised as ‘remarks on sentence’ must now be understood as reasons for judgment”.266) Lee [2016] NSWCCA 146, Basten JA and McCallum J at [23], Davies J dissenting at [57].

[2.48] In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ stated:

The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public.267) [2005] HCA 25, 228 CLR 357 at [39].

Thus, one purpose of remarks on sentence is to explain to the offender and to the community what sentence is being imposed and why. Button J of the NSW Supreme Court has observed:

There is no requirement that remarks on sentence be anodyne or mealy-mouthed. If an offence is trivial, or comically inept, a sentencing judge is surely entitled to say so in the remarks on sentence. Conversely, where, as here, a series of offences is so serious as to inspire severe condemnation, I do not consider that a sentencing judge should be prohibited from using strong, even powerful, language, although it should never become inflamed or inflammatory.268) Piscitelli [2013] NSWCCA 8 at [69]. See also Wilken [2013] NSWCCA 304, where Campbell J observed at [48] that “elaborate, complex or detailed” reasons are “more likely to obscure than clarify”.

A second purpose is to facilitate appellate review.269) For discussion of the applicable principles regarding an appeal on the basis of a failure to give reasons, see Chapter 7 at [7.25].  Remarks on sentence need not be detailed but they must inform an appellate court of the reasons for imposition of the sentence.270) Duffy [1999] NSWCCA 321 at [11]; Thomson [2000] NSWCCA 309, 49 NSWLR 383 at 394-395 [42]-[44]; JCE [2000] NSWCCA 498, 120 A Crim R 18 at 21 [19]; King [2004] NSWCCA 444, 150 A Crim R 409 at [132]; Thomas [2006] NSWCCA 313 at [16]; Hamieh [2010] NSWCCA 189 at [30]; Kennedy [2008] NSWCCA 21 at [25]-[26]; Firth [2018] NSWCCA 144 at [59]. This will assist in isolating errors in the process of sentence determination, errors shown explicitly by the reasons and errors inferred from failure to mention matters relevant to a particular factual or discretionary issue (the inference being that the sentencing court failed to take that material into account).271) Kennedy [2008] NSWCCA 21 at [25]-[26], citing Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57, 221 ALR 402 at [130]. See also Brown [2006] NSWCCA 144 at [3]; El Masri [2005] NSWCCA 167 at [36]; Tadrosse [2005] NSWCCA 145, 65 NSWLR 740 at [21]; McCarroll [1999] NSWCCA 237 at [14] – [15]. Sentencing courts must take care in identifying the matters, such as objective seriousness of the offending272) It is well established that the reasons for sentence should include some assessment of the objective seriousness of the offending conduct: West [2014] NSWCCA 250 at [27]-[29]. However, there is no obligation to provide elaborate reasoning in the circumstances of a particular case and it is not necessary to make a finding as to where precisely the offence lay in the spectrum of offending: Bland [2014] NSWCCA 82 at [143]; DV [2017] NSWCCA 276 at [220]., which have been of significance when arriving at the sentence imposed on an offender.273) In Muldrock [2011] HCA 39, 244 CLR 120 at [29], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed that a sentencing court must “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”. The plurality stated that this requirement was imposed by Pt 4 Div 1A of the NSW Act, but it is clear that the same requirement is imposed under the common law. Only if this is done will it be possible to understand the reasons for arriving at the sentence and enable effective appellate review.274) AWKO [2010] NSWCCA 90 at [19]. If a consideration was an “important part” of the offender’s case on sentence, it should be addressed in the reasons.275) Dunshea [2016] NSWCCA 244 at [29]. The sentencing court should summarise precisely and carefully the facts giving rise to the offences, provide at least some assessment of, or reflection upon, the seriousness of the offending conduct and set out the findings in relation to all matters taken into account in mitigation or aggravation of sentence as well as the reasoning which leads to the sentence imposed.276) Thomas [2006] NSWCCA 313 at [16]; Gal [2015] NSWCCA 242 at [29]-[39]. See also Sanchet [2006] NSWCCA 291 at [39]; DBW [2007] NSWCCA 236 at [33]-[37]; Jackson [2011] NSWCCA 124 at [26]; Shine [2016] NSWCCA 149, 260 A Crim R 454 at [71]. See also Bedford v Earle (No 2) [2015] ACTSC 309 at [120]-[121]; Tannous [2017] VSCA 91 at [35] (“[I]t is important that the judge’s reasons include more than an overarching statement that the offender’s mental impairment has been taken into account. The reader should not be left to ask how it has been taken into account. Rather, the judge’s reasons should provide the answer to that question”). If a sentencing court indicates that a particular factor may affect the sentence to be imposed, it is that court’s duty to make plain whether that factor did, in the event, have that effect: Dimozantos (No 2) [1993] HCA 52, 178 CLR 122 at [15]. There is an expectation that a judge who does conclude that an aggravating feature is present will clearly say so, and explain how that conclusion was reached.277) DBW [2007] NSWCCA 236 at [33], [36]; Ha [2008] NSWCCA 141 at [4]; Wong [2018] NSWCCA 263 at [61]. It has been observed that:

the purpose of delivering reasons on sentencing is, as with other exercises of judicial power, to provide transparency as to the process by which the judge reached a particular conclusion. This important function of providing reasons for orders is not diminished by the unfortunate practice of referring, colloquially, to “remarks” on sentence. The identification of relevant considerations is not an exercise in ticking items off on a list; it requires explanation of the direction in which the particular consideration operates and some indication of the weight to be accorded.278)Darcy-Shillingsworth [2017] NSWCCA 224, Basten JA at [65]. However, Beech-Jones J stated at [101] that, while he agreed with the general sentiments, he did “not accept that this Court can impose that as a requirement. The task of this Court is to ascertain error. It is not to specify prescriptive guidelines for sentencing judges about how to write judgments”. The other member of the Court, Fagan J, did not say anything about the matter.

Indeed, it has been held that

the reasons must be adequate to demonstrate the absence of a real “possibility” that the judge failed to apply correct legal principle.279)Lee [2016] NSWCCA 146 at [26]. It was added: “In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied”. See also Ukropina [2016] NSWCCA 277 at [38].

Thus, where there is “a real possibility” that an appeal court will infer from an omission to refer to a particular applicable sentencing principle that it was not applied, the reasons “must” demonstrate that the principle was applied.280) Lee [2016] NSWCCA 146 at [26]. For example, there is authority that a court sentencing in respect of a NSW offence that imposes a non-parole period that is greater than 75% of the relevant term should, “for abundant caution and to make clear that it had not been done unintentionally, … give reasons for doing so”: Brennan [2018] NSWCCA 22, Button J at [37], citing Maglovski [2014] NSWCCA 238 at [28]; Barrett [2011] NSWCCA 213 at [29]; Wakefield [2010] NSWCCA 12 at [26]. A consideration which “must” be taken into account by the sentencing court (such as a plea of guilty) “must form part of the reasoning process and should therefore be addressed in the judgment”.281) Lee [2016] NSWCCA 146 at [37]. On the other hand, there is no need to provide reasons in respect of a matter if that matter was not in dispute282) Lee [2016] NSWCCA 146 at [34]. or to refer to every piece of evidence tendered or every argument made by the parties, or to state that which is tolerably clear by inference.283) AMZ [2013] NSWCCA 6 at [25]; Firth [2018] NSWCCA 144 at [61]. There is no need “to refer directly and in terms to every statutory provision considered or applied, and to every principle of sentencing law regarded as relevant”.284) Taylor [2018] NSWCCA 255 at [55]. Further, in some cases for the sentencing judge to embark upon a detailed exposition in a sentencing judgment of some matter may defeat the very purpose of the statutory provision that requires consideration of that matter.285) In Greentree [2018] NSWCCA 227 an argument that a sentencing judge had failed to give proper reasons in applying s 23(2) of the NSW Act and failed properly to consider the factors set out in that provision was rejected. It was pointed out at [55]-[56] that if knowledge of the fact or detail of assistance provided by the offender to the authorities is revealed then the offender or his family may be put at risk and the benefits that the law enforcement authorities might otherwise obtain from that assistance may be undermined or even destroyed, so that “to embark upon a detailed exposition in a sentencing judgment of the factors in s 23(2) may defeat the very purpose of the statutory provision”.

[2.49] Sentencing courts cannot evade proper appellate review by general statements that the law has been complied with in the sentencing process. For example, the principle of no double counting provides that if a factor has been (fully) taken onto account already in the sentencing exercise, it should not be further taken into account as a mitigating or aggravating factor.286) See Chapter 3 Principles at [3.155]-[3.163]. The sentence at the end of s 21A(2) of the NSW Act, “[t]he court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence” reflects this principle. If there has been double counting in fact, no statement of compliance with sentencing principle will overcome it.287) See Ghazi [2006] NSWCCA 320; Wilken [2013] NSWCCA 304 at [48]. See also Chapter 7 Appeal at [7.26].

[2.51] However, the extent to which findings of fact and matters of evaluation need to be specified in detail will depend upon the facts and circumstances of the case.288) Cook [2010] NSWCCA 191 at [28]. In Hamieh, the NSW Court of Criminal Appeal observed:

It is important to recognise, therefore, that there is a practical tension between the principles requiring oral reasons, delivered in plain English and with brevity (usually in a busy list) and the need for reasons to satisfy the requirements of the law in the particular case. Remarks on sentence are frequently delivered ex tempore and, as the Chief Justice has observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566, at [48] 577: “The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed".289) [2010] NSWCCA 189 at [32]. See also GWM [2012] NSWCCA 240 at [58]-[59]; Gray [2013] NSWCCA 169 at [43]; O'Brien [2013] NSWCCA 197 at [32]; Newton [2014] NSWCCA 41 at [41]; Samuel [2017] NSWCCA 239 at [76].

These propositions apply even more strongly in the Local Court, given the volume of work and limited time available to magistrates.290) Acuthan v Coates (1986) 6 NSWLR 472 at 478-479. See also Green v Webb [2006] WASC 71 at [11]; Dickson [2013] ACTSC 94 at [169]. However, compare Bedford v Earle (No 2) [2015] ACTSC 309 at [120]-[121].

[2.52] Various NSW statutory provisions require reasons to be given in specified areas:

  • s 5(2) of the NSW Act: “A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so.”291)In Fedele [2015] NSWCCA 286 the NSW Court of Criminal Appeal held that there was a breach of this requirement and it was “no answer to say, pragmatically, that [the sentence] was wholly concurrent with the sentence for [a] Commonwealth offence and made no difference to the overall outcome” (Hidden J at [41]). (s 5(3) provides that s 5(2) does not limit any other requirement on a court to record the reasons for its decisions).
  • s 25F(7) of the NSW Act: if the statutory sentencing discount for the utilitarian value of the a plea of guilty is applied the “court must indicate” and “must record … how the sentence imposed was calculated”; and if the court “determines in accordance with this section” not to apply or to reduce that discount, the court must indicate and record “the reasons for the determination”.
  • s 44(2), s 44(2B) of the NSW Act: where the balance of the term of the sentence after serving the non-parole period exceeds one-third of the non-parole period “the court must make a record of its reasons” for the decision that there are “special circumstances for it being more”.
  • s 45(2) of the NSW Act provides that if a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so.
  • s 54B(3), s 54C(1) of the NSW Act requiring reasons why the applicable “standard non-parole period” was not imposed. In Muldrock, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed at [29] that a central purpose of Div 1A is to“require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”.292) [2011] HCA 39, 244 CLR 120 at [29].
  • s 90(7) of the NSW Act provides that, where a court decides not to impose “a graffiti clean up condition” (defined in s 90(8)) in a case where a community service order is made in relation to an offender who has been found guilty of a “graffiti offence” (defined in s 3(1) to mean “an offence under the Graffiti Control Act 2008) the court must make a record of its reasons for deciding not to impose such a condition.

[2.53] Similarly, there are a number of federal statutory provisions that require reasons to be given in specified areas:

  • s 17A(2) of the Cth Act provides that, where a court passes a sentence of imprisonment on a person for a federal offence, the court “shall state the reasons for its decision that no other sentence is appropriate”.
  • s 19AB(4) of the Cth Act provides that, if the court does not impose a non-parole period or make a recognisance release order in respect of a term that exceeds 3 years, because “having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate” (s 19AB(3)), the court must state its reasons and cause the reasons to be entered in the records of the court.
  • s 19AC(5) of the Cth Act provides that, if the court does not impose a recognisance release order in respect of a term that does not exceed 3 years, because “having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that such an order is not appropriate” (s 19AC(4)), the court must state its reasons and cause the reasons to be entered in the records of the court.
  • 19AD(5) of the Cth Act provides that, if a court declines to fix a new non-parole period in circumstances where the court imposes a federal sentence and cancels an existing non-parole period, the court must state its reasons for deciding that a non-parole period is not appropriate.
  • 19AE(5) of the Cth Act provides that, if a court declines to fix a new recognizance release order or a non-parole period in circumstances where the court imposes a federal sentence and cancels an existing recognizance release order, the court must state its reasons for deciding that neither a recognizance release order nor a non-parole period is appropriate.

[2.54] There must be contemporaneity between the handing down of the sentence and the expression of the reasons for the sentence293) CJP [2003] NSWCCA 187 at [66], [69]., although “allowance must be made for the rare case when, for example, due to the exigencies of the circumstances a sentence is pronounced late on one day and reasons are delivered at the first opportunity on the following day”.294) CJP [2003] NSWCCA 187 at [70]. This requirement flows from a principal purpose of remarks on sentence being to provide an oral explanation of the sentence to the offender, the victim(s) and persons in court at the time when sentence is being passed.295) Bottin [2005] NSWCCA 254 at [12]; Curtis [2007] NSWCCA 11 at [30]-[31]; Hersi [2010] NSWCCA 57 at [7]; Hamieh [2010] NSWCCA 189 at [29].

[2.55] Various NSW statutory provisions require certain specific matters to be explained to the offender where a sentencing court:

  • imposes a sentence of imprisonment (s 48 of the NSW Act)
  • imposes a sentence for “a serious violence offence” (s 25C Crimes (High Risk Offenders) Act 2006)
  • makes an intensive correction order, a community correction order or a conditional release order (s 17I(1) of the NSW Act)
  • makes a non-association order or place restriction order (s 100B(1) of the NSW Act)

Section 48(1) of the NSW Act provides:

  1. When sentencing an offender to imprisonment for an offence, or to an aggregate sentence of imprisonment for 2 or more offences, a court must specify:
    1. the day on which the sentence commences or is taken to have commenced, and
    2. the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole, having regard to:
      1. that and any other sentence of imprisonment to which the offender is subject, and
      2. the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject.

In NSW, it is the conventional practice to commence consecutive sentences on the anniversary of the commencement date of the first sentence.296) See Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [25]-[32]. Each of the other provisions provides that the court “must ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand): (a) the offender’s obligations [under the order], and (b) the consequences that may follow if the offender fails to comply with those obligations”. Similarly, s 18H of the Drug Court Act 1998 (NSW) requires the Drug Court, if it makes a“compulsory drug treatment order”, to “ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand): (a) the offender’s obligations under the compulsory drug treatment order, and (b) the consequences that may follow if the offender fails to comply with those obligations”.

[2.56] A number of provisions in Part IB of the Cth Act include a requirement that the court explain or cause to be explained to the offender, in language likely to be understood by the person, the purposes and effects of imposing particular sentencing options, including the consequences of failing to comply with a sentence or order.297) ss 16F(2), 19B(2), 20(2), 20AB(2). For example, section 16F of the Cth Act provides:

Court to explain sentence

  1. Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period including, in particular, an explanation:
    1. that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and
    2. that, if a parole order is made, the order will be subject to conditions; and
    3. that the parole order may be amended or revoked; and
    4. of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.
  2. Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation:
    1. that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and
    2. of the conditions to which the order is subject; and
    3. of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and
    4. that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

The failure to comply with the requirements of this provision does not render the sentence a nullity.298) Hutton [2004] NSWCCA 60 at [18] to [28] per Sully J, Simpson and Sperling JJ agreeing at [75] and [76] respectively. Indeed, such a procedural error does not in itself warrant the grant of leave to appeal: Tu [2011] NSWCCA 31 at [112]. However, in Elshani [2015] NSWCCA 254 it was held at [20] that the failure to comply with s 16F supported a conclusion that the sentencing judge erroneously applied State sentencing procedure rather than Commonwealth sentencing procedure. Other provisions similar to s 16F require the court, after passing sentence in which a particular order is made to, “as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on” the offender.299) See s 20AB(5) Cth Act.

Re-opening sentencing

Summary

Sentencing courts have an inherent power to reopen sentencing proceedings before the sentence has been “perfected”, in order to correct some misapprehension of the facts or the relevant law. Even where it has been perfected, the “slip rule” permits the sentencing court to correct an error arising from accidental slip or omission so that the record does represent what the court pronounced or intended to pronounce as its order. Further, there is a statutory power to reopen sentencing proceedings conferred under s 43 of the NSW Act. A sentencing court may reopen sentencing proceedings on the application of a party to the proceedings or on the court’s own initiative to correct an error where the court has “imposed a penalty that is contrary to law” or “failed to impose a penalty that is required to be imposed by law”. However, showing error of law or fact will not necessarily establish that the court has “imposed a penalty that is contrary to law” - the High Court has made it clear that a penalty is only “contrary to law” where it was beyond the power of the court to impose. There are also some currently limited powers to reopen under the Cth Act, although there is a Bill before Parliament which would expand those powers.

[2.57] Sentencing courts have an inherent power to reopen sentencing proceedings before the sentence has been “perfected”, in the sense that the necessary procedural steps to produce a “record” of the sentence have been taken.300) Achurch [2014] HCA 10, 306 ALR 566 at [17]; Rickard [2007] NSWCCA 332 at [5]. The power to reopen a sentence which has not been perfected is a discretionary power which may be exercised to correct some misapprehension of the facts or the relevant law (where this state of affairs is not to be attributed solely to the neglect or default of the party seeking reopening of the proceedings).301) Elliott [2007] HCA 51, 234 CLR 38 at [33]; Rickard [2007] NSWCCA 332 at [10]. The principle of finality302) See Achurch [2014] HCA 10, 306 ALR 566 at [14]-[15]. requires there to be some error, oversight or miscarriage in the original sentence which existed when the order was made even if it only became manifest in the light of subsequent events.303) Rickard [2007] NSWCCA 332 at [13].

[2.57.5] Sentencing courts do not have an inherent power to reopen sentencing proceedings after the sentence has been “perfected”304) See Bailey v Marinoff [1971] HCA 49, 125 CLR 529; Edwards [2012] VSCA 293 at [15], [157]-[161]., although the Chief Justice of the Victorian Supreme Court has pointed out some qualifications to this proposition:

This general position is subject to some qualifications, of which three are presently relevant. First, the court may have inherent or implied power to correct some kinds of errors in its orders (the ‘slip rule’). Secondly, statute may confer on the court additional power to vary a sentencing order. For example, statute may expand the court’s power to correct an error in the original order beyond the type of errors that can be corrected under the court’s inherent or implied power to correct errors. Statute may also confer power to vary a sentencing order in other circumstances. Thirdly, if the original sentencing order was made in excess of jurisdiction, it may lack sufficient legal effect to trigger the application of the functus officio doctrine.305) Edwards [2012] VSCA 293, Warren CJ at [16]. However, it should be noted that Warren CJ was in dissent on the question whether the third qualification meant that the sentencing court in question was functus officio: see Weinberg JA and Williams AJA at [157]-[236].

Under the “slip rule”,306) Achurch [2014] HCA 10, 306 ALR 566 at [18]. See, for example, Kelly (No 2) [2017] ACTSC 64 at [29]-[33]. Refshauge J stated at [30] that “the often used test of whether a mistake or omission is accidental is … If attention had been called to [the fact of the mistake or omission] the correction would at once have been made”. there is a power to correct an error arising from accidental slip or omission.The power, which should be used sparingly and in accordance with the principles of procedural fairness307) A sentence should not be amended, even under the slip rule, without notice to the parties and, except with their express consent, nor otherwise than in open court: Elson v Ayton [2010] ACTSC 70, 241 FLR 178; Kelly (No 2) [2017] ACTSC 64 at [34]., is to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order - it does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.308) Achurch [2014] HCA 10, 306 ALR 566 at [18].

[2.58] In NSW, a power to reopen sentencing proceedings is conferred under s 43 of the NSW Act, which provides309) Section 43 substantially re-enacts s 24 of the Criminal Procedure Act 1986 (formerly s 19 of that Act: see the Statute Law (Miscellaneous Provisions) Act 1989 (NSW) ). as follows:

Court may reopen proceedings to correct sentencing errors

1. This section applies to criminal proceedings (including proceedings on appeal) in which a court has:

a. imposed a penalty that is contrary to law, or

b. failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings.

2. The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:

a. may impose a penalty that is in accordance with the law, and

b. if necessary, may amend any relevant conviction or order.

3. For the purposes of this section, the court:

a. may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or

b. if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person’s arrest.

4. Subject to subsection (5), nothing in this section affects any right of appeal.

5. For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.

6. In this section: “impose a penalty” includes:

a. impose a sentence of imprisonment or a fine, or

b. make a periodic detention order, home detention order or community service order, or

c. make an order that provides for an offender to enter into a good behaviour bond, or

c1. make a non-association order or place restriction order, or

d. make an order under section 10, 11 or 12, or

e. make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege.

Section 3 of the Crimes (Sentencing Procedure Act) 1999 (NSW) defines “court” to mean:

a. the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or

b. any other court that, or person who, exercises criminal jurisdiction,

but, subject to the Children (Criminal Proceedings) Act 1987 , does not include the Children’s Court or any other court that, or person who, exercises the functions of the Children’s Court.

[2.59] NSW courts generally gave this provision a broad interpretation on the basis it was a remedial provision intended to create a simple procedure to correct sentencing error.310) Ho (1995) 37 NSWLR 393 at 403-4; Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [104]; Finnie (No. 2) [2004] NSWCCA 150 at [15]; Meakin [2011] NSWCA 373, 216 A Crim R 128 at [27]; Achurch (No 2) [2013] NSWCCA 117, 234 A Crim R 154 at [60]-[61]. However, in Achurch, the High Court rejected a broad approach on the basis that “[t]he attribution of a narrower purpose and application … is consistent with the maintenance of” the distinction between “re-opening proceedings to correct an error which has led to a sentence not authorised by law and correction of error by a sentencing court on appeal”.311) [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [27]. The plurality judgment in Achurch emphasised that the provision only applies to criminal proceedings where a court has “imposed a penalty that is contrary to law” or “failed to impose a penalty that is required to be imposed by law”. As regards the first condition, it was observed that “what must be contrary to law is the ‘penalty’” and that requirement would not be satisfied “merely by demonstrating that the court has erred in law or fact”. The plurality stated:

Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Examples of circumstances in which a penalty may be said to be contrary to law include:

- A penalty which exceeds the maximum penalty prescribed for the offence.

- A penalty which it is beyond the power of the court to impose because some precondition for its imposition is not satisfied — eg the existence of an aggravating factor or the existence of prior convictions for the same kind of offence.312) [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [32]. The reference to an error in respect of the existence of an aggravating factor or a prior conviction should be understood in the context of the words “some precondition for its imposition is not satisfied”. That is, it is a reference to offences where a particular maximum penalty only applies if a specified (aggravating) factor is present. It should not be understood to refer more generally to aggravating factors which do not affect the applicable maximum penalty.

Indeed, it would seem that it is necessary that it be shown that the “penalty”313) A “penalty” includes any necessary part of the sentence imposed and thus includes a “non-parole period”: Petrou (unreported, NSWCCA, 13 February 1990); Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [106]. imposed was beyond the power of the court to impose (rather than simply “not open”) because the plurality held that this provision would not permit a re-opening on the basis that some error resulted in a penalty that “lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion”.314) [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [32]. This analysis was made explicit by Gageler J at [41]. It was explained that resolution of that issue “would involve an evaluative exercise which must be dealt with by way of appeal”.315)[2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [32].

[2.60] It follows that NSW decisions regarding the scope and application of this provision prior to the High Court’s judgment in Achurch must be approached with great caution. In those earlier cases it had been held that a sentence could be reopened:

  • to make a subsequent term of imprisonment cumulative upon, or partly cumulative upon and partly concurrent with, the original term so that a further non- parole period may be imposed316) Petrou (unreported, NSWCCA, 13 February 1990).
  • to correct a penalty which was contrary to law by reason of misinformation given to the judge about the determinate sentences currently being served by the offender317) Denning (unreported, NSWCCA, 15 May 1992).
  • to reduce the non-parole period of a sentence that was ordered to be served as a juvenile offender (in a juvenile detention centre) where that order was contrary to law (because the term of the non-parole period was 6 days too long to permit the order)318) DGP [2010] NSWSC 1408.
  • to impose a sentence which extended the period of time the offender would spend in prison and which complied with s 9(3) of the NSW Act319) Tangen (unreported, NSWCCA, 21 June 1996).
  • to ensure that the sentence took into account a relevant sentencing fact or principle320) Ho (1995) 37 NSWLR 393. A sentencing principle would not be relevant in this sense if no issue had been raised in relation to it in the sentencing proceeding: Meakin [2011] NSWCA 373, 216 A Crim R 128 at [80]. (at least where, if taken into account, it would, rather than may, result in a different sentence321) Meakin [2011] NSWCA 373, 216 A Crim R 128 at [93].)
  • to ensure that a relevant sentencing principle was properly applied322) Finnie (No. 2) [2004] NSWCCA 150 Howie J (Spigelman CJ and Dunford J agreeing) at [31]; Meakin [2011] NSWCA 373, 216 A Crim R 128 at [63]–[65].
  • to correct an erroneous finding of fact or an omission to find, or take into account, a relevant fact323) Finnie (No. 2) [2004] NSWCCA 150, Howie J (Spigelman CJ and Dunford J agreeing) at [32] (an example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists).
  • to ensure that the penalty imposed was capable of ascertainment324) Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA at [153], Palmer J at [186].

Several of these purported applications of this provision may now be regarded as wrongly decided. For example, it has been held since Achurch that a failure to take into account pre-sentence custody (and back-date the sentence accordingly) does not render the sentence "contrary to law", so that the error is not amenable to correction by way of re-opening the sentencing proceedings pursuant to s 43.325) CS [2014] NSWCCA 229, 245 A Crim R 249 at [21]. However, compare Chen [2015] NSWCCA 277 at [56]-[58]. An error as to the offence for which a sentence was to be “indicated” (for the purposes of imposing an aggregate sentence for that offence and others), which could “be characterised as an error in the reasoning that led to the indication of a sentence”, was held not to result in a sentence “contrary to law” because the aggregate sentence was “well within the statutory and discretionary power of the Court to impose”.326) Van Ryn (No 2) [2016] NSWCCA 160 at [16]-[17]. It may be doubted whether an order directing the release of an offender on parole involves the imposition of a penalty.327) See Mundine [2017] NSWCCA 97 at [6], [83], [115].

Comment

The strict approach taken by the High Court in Achurch to the statutory requirement for reopening proceedings to correct sentencing errors that the sentencing court “imposed a penalty that is contrary to law” raises the question whether s 43 should be amended. To take the last example, it would plainly seem desirable that a sentencing court be able to re-open sentencing proceedings where it is apparent that the court was mistaken as to an offence for which, along with other offences, an “aggregate sentence” was to be imposed. Such an error should not require a successful appeal against sentence prior to re-sentencing. Indeed, it is not apparent why a sentencing court should not be able to correct any error without the need for an appeal. Since the power would be discretionary, the court could decline to re-open if there were good reasons not to do so. It is suggested that the words in s 43(1)(a), “imposed a penalty that is contrary to law” should be amended to read “erred in determining a penalty”.

[2.64] Sentencing proceedings may be reopened on the application of a party to the proceedings or on the court’s own initiative: s 43(2). Reopened proceedings must comply with the requirements of procedural fairness (including giving the parties an opportunity to be heard: s 43(2)). If necessary, the court may issue a warrant for the offender’s arrest: s 43(3). The material to which the court can have regard in considering an application to reopen is not limited to the formal record of the sentence.328) Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [109]. Regard may be had to all the circumstances relevant to the imposition of the penalty.329) Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [109].

[2.65] Where the court exercises its discretion to reopen, it is authorised to amend the sentence, and if necessary to re-sentence entirely, in order to produce the result which the sentencing judge originally intended to be achieved by the sentence originally, but invalidly, imposed. The court in re-sentencing applies the law which existed at the time the original sentence was imposed and takes into account the circumstances of the offence or offences and the position at the time of the imposition of the original penalty. As to whether the court must consider what has happened since that penalty was imposed and the circumstances which then exist, the position is unclear. There is authority that the court is not limited to the position as at the imposition of the original penalty330) Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [107]. See also Tangen (unreported, NSWCCA, 21 June 1996). although, of course, the court must not take into irrelevant considerations.331) In Thompson-Davis [2013] NSWCCA 75, the sentencing judge had commenced the sentence at a future date than the date of sentencing (in breach of s 47 of the NSW Act) and, when correcting that commencement date pursuant to s 43, erred in taking into account the irrelevant consideration of the expiry date of the original sentence (Campbell J at [52]). However, in a decision subsequent to Achurch, treating that judgment of the High Court as giving a narrow interpretation to the power conferred by s 43, it has been held that the provision “is not intended to afford an opportunity to sentenced offenders to re-litigate what they have already litigated, or to seek a different outcome, on different evidence… .Section 43 does not extend to a general re-opening of proceedings in such a way as to permit or enable a reconsideration (with or without additional evidence) of the decision originally made.”332) Bungie [2015] NSWCCA 9 at [40]-[41].

[2.66] For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this provision, the time within which such an appeal must be made commences on the date on which the penalty is so imposed: s 43(5).

[2.67] With regard to federal offenders, a sentencing court is given an express power to correct sentencing errors concerning the failure to fix, or properly to fix, a non-parole period, or to make, or properly to make a recognizance release order: s 19AH. More generally, s 19AHA applies if a “sentencing order”333) Defined in s 19AHA(8) to mean an order imposing, or purporting to impose, a sentence, an order fixing a non parole period, or a recognizance release order. “(a) reflects an error of a technical nature made by the court; or (b) has a defect of form; or (c) contains an ambiguity”: s 19AHA(1). The Note to s 19AHA(1) states: “For paragraph (a), the following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter”. Section 19AHA(3) confers power on the court to “at any time, by order, amend the sentencing order to rectify the error, defect or ambiguity”. The court may amend the sentencing order whether or not the court is constituted in the way in which it was constituted when the person was sentenced: s 19AH(5).

 


References   [ + ]

1. Cheung [2001] HCA 67, 209 CLR 1, Gleeson CJ, Gummow and Hayne JJ at [4]–[5], [16].
2. Chow (1992) 28 NSWLR 593 at 605.
3. Page [1977] 2 NSWLR 173.
4. Warby [1983] 1 NSWLR 289; Foster (1992) 25 NSWLR 732; Milsom [2014] NSWCCA 142 at [103].
5. Otway [2005] NSWCCA 352 at [13].
6. The Children (Criminal Proceedings) Act 1987 (NSW) defines a “child” to mean a person who is under the age of 18 years.
7. See Children (Criminal Proceedings) Act 1987 (NSW) s 10 (exclusion of the general public from criminal proceedings); ss 15A-15G (publishing and broadcasting of names).
8. See Criminal Procedure Act 1986 (NSW), ss 290-291C.
9. Madden [2011] NSWCCA 254 at [29]; see also Sills [2011] NSWCCA 271 at [50]; Milsom [2014] NSWCCA 142 at [92]; Capaldo [2015] SASCFC 56 at [8].
10. See, for example, Milsom [2014] NSWCCA 142 at [122], [142]-[146], [150]-[160]; Murray [2015] NSWCCA 75 at [16]; Capaldo [2015] SASCFC 56 at [8], [35], [70]. ]; Ford [2016] NSWCCA 69 at [26]-[28]; Tarrant [2018] NSWCCA 21 at [72]; Mansweto [2018] NSWCCA 232 at [35]-[65]. Of course, there is no bias if, in cases where the offending is, for example, of extreme depravity, the sentencing judge simply holds and expresses the view that the offender’s conduct was extremely depraved: Ford [2016] NSWCCA 69 at [22].
11. Milsom [2014] NSWCCA 142 at [94]; Ellis [2015] NSWCCA 262 at [70].
12. Madden [2011] NSWCCA 254 at [29]]; Milsom [2014] NSWCCA 142 at [95]-[96]; Capaldo [2015] SASCFC 56 at [9]-[17].
13. Kelly [2016] NSWCCA 246 at [27].
14. Chow (1992) 28 NSWLR 593 at 605.
15. The Children (Criminal Proceedings) Act 1987 (NSW) defines a “child” to mean a person who is under the age of 18 years.
16. For example, under s 12(4) of the Children (Criminal Proceedings) Act 1987 (NSW) a court is required to “give the child the fullest opportunity practicable to be heard, and to participate, in the proceedings”. The Children’s Court has special obligations with regard to explaining the procedure of the Court to a child: s 12(3).
17. Pleasance [2016] NSWCCA 113 at [83].
18. See, for example, Milsom [2014] NSWCCA 142 at [125]-[126]; Ellis [2015] NSWCCA 262 at [57]-[75] (the conduct of the sentencing judge “deprived the [offender] of the opportunity to properly present his case”); Goldberg 2018] NSWCCA 99, White JA at [11] (judge asking leading questions of offender). However, the questioning of the offender in Pleasance [2016] NSWCCA 113 was not unfair because the judge sought clarification of perceived inconsistencies and the offender was “given every opportunity to clarify her evidence” (at [83]-[89]).
19. Pantorno [1989] HCA 18, 166 CLR 466 at 483 (see also 473-4); S D [2013] VSCA 133 at [33]-[53]. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1 at [34]-[37]; Thomson [2014] NSWCCA 88 at [52]-[53]. For an example of a case where there was a denial of procedural fairness to the prosecution, see White [2018] NSWCCA 238.
20. As regards circumstances in which the offender may be taken to have waived the right to be present, see McHardie (1983) 2 NSWLR 733; Jones [1998] SASC 7021; Mokbel [2010] VSCA 11; Taupati [2017] VSCA 106 at [20]-[34].
21. CJP [2003] NSWCCA 187 at [29]–[37].
22. See Mayen v Ryan (No 2) [2014] ACTSC 33 at [52]-[60]; Capaldo [2015] SASCFC 56 at [14]-[17].
23. See Chapter 6 Courts at [6.3].
24. See McPherson [2011] SASCFC 105 (sentencing judge should have granted adjournment to allow offender to obtain an expert report); McGrath [2018] VSCA 134 (proceedings should have been adjourned notwithstanding judge about to retire). This may arise even in circumstances where facts have been agreed: see Mulligan [2016] NSWCCA 47 at [20]-[21] (and see [2.24] below).
25. Le [2007] NSWCCA 330. In B [2015] NSWCCA 103, it was held that there was no denial of procedural fairness in a case where the offender was denied the opportunity to cross-examine the maker of a “victim impact statement” where “reliance was not placed on the ‘victim impact statements] in a manner adverse to” the offender, “particularly where the indicated scope of cross-examination bore the hallmarks of cross-examination for a collateral purpose” (Ward JA at [206], Wilson J agreeing).
26. Anderson (1992) 27 NSWLR 701; Chow (1992) 28 NSWLR 593 at 606.
27. Baroudi [2007] NSWCCA 48. See also S D [2013] VSCA 133 at [48]-[49]. The Victorian Court of Appeal has held that this principle does not extend to concessions regarding sentencing range: Smith [2013] VSCA 219 at [20]. However, see [2.46] below.
28. DL [2018] HCA 32, 92 ALJR 764 at [39]; Uzabeaga [2000] NSWCCA 381, 119 A Crim R 452 at [35]; Falls [2004] NSWCCA 335 at [37]; Mohamad [2005] NSWCCA 406 at [14]-[15]; Govindaraju [2011] NSWCCA 255 at [52]–[57]; Tran [2018] NSWCCA 220 at [108]-[113]. See also Lowe [2009] VSCA 268 at [15]-[17]; Perry [2016] VSCA 152 at [93]-[96].
29. Pantorno [1989] HCA 18, 166 CLR 466 at 482-483 [11]–[12].
30. O’Neil-Shaw [2010] NSWCCA 42 at [27], [51].
31. O’Neil-Shaw [2010] NSWCCA 42 at [27]; Devaney [2012] NSWCCA 285 at [88]; Van Zwam [2017] NSWCCA 127 at [113].
32. Cherdchoochatri [2013] NSWCCA 118, 277 FLR 126 at [48]-[57].
33. Reberger [2011] NSWCCA 132 at [48]; Khanwaiz [2012] NSWCCA 168 at [96]-[100]; Cherdchoochatri [2013] NSWCCA 118 at [52], [62]; Lam [2015] NSWCCA 143 at [62]-[64].
34. Falls [2004] NSWCCA 335 at [34]–[35]; Heath [2016] NSWCCA 24 at [50]. See also Lowe [2009] VSCA 268 at [20]; Gibbs [2012] VSCA 241 at [29]-[30]; S D [2013] VSCA 133 at [35]-[36]. However, compare Wang [2013] NSWCCA 2 at [2], [68]-[78], [119]. In Lam [2015] NSWCCA 143, it was held that it should have been apparent that an expert’s opinion might be rejected if the factual assumptions on which it was based were not established. See also Gifford [2016] NSWCCA 302, 263 A Crim R 373 at [89]-[93]. Further, a failure to warn that an expert opinion may not be accepted may be immaterial if the opinion has no material bearing on the determination of sentence: Ross [2015] VSCA 302 at [25]-[33].
35. Ryan [2003] NSWCCA 202, 141 A Crim R 403 at [29]; Cherdchoochatri [2013] NSWCCA 118 at [10], [58]. See also Beevers [2016] VSCA 271 at [38]-[39]. However, in Newman [2018] NSWCCA 208, the assertion was made out of court and was untestable, so that the prosecution did not need to address the issue (at [28]).
36. Tocknell (unreported, NSWCCA, 28 May 1998); Ex parte Kelly; Re Teece [1966] 2 NSWR 674 at 678; White [2018] NSWCCA 238 at [11]-[12]. See also [2.46.5] below regarding the scope of permissible submissions. Although there is no recognised right to make submissions with knowledge of the factual basis upon which the offender will be sentenced, Redlich JA of the Victorian Court of Appeal observed in Formosa [2012] VSCA 298 at [3]: “Where there is a factual issue in dispute on the plea which might substantially affect the view that is taken of the objective gravity of the offence or the degree of criminality of the offender or some matter relied upon in aggravation or mitigation of penalty, it will usually be desirable that the sentencing judge announce his or her findings at the completion of hearing any evidence and submissions directed to that dispute. Although reasons for the findings may await the sentencing remarks, sufficient needs to be said as to the intended findings before the balance of the plea in mitigation is conducted, so that the parties have an opportunity to make submissions in the light of those findings” (emphasis not in original).
37. Pantorno [1989] HCA 18, 166 CLR 466 at 473 [11], 482-483 [11]–[12]; Schofield [2003] NSWCCA 3, 138 A Crim R 19; Murray [2015] NSWCCA 75 at [22]; Portelli [2015] VSCA 159 at [46]; Lehn [2016] NSWCCA 255, 262 A Crim R 537 at [65]; Suleiman [2017] WASCA 26 at [46]-[50]; Aitkin [2017] VSCA 103 at [81]; Brown [2018] VSCA 328 at [74]. See also Collins [2018] HCA 18 at [32]. However, a prosecution concession that sentences “could” be made concurrent does not require a sentencing judge to give notice of an inclination to make them (partially) cumulative: Toole [2014] NSWCCA 318, 247 A Crim R 272 at [46]-[48]. An indication that the prosecution “does not want to be heard” on a matter does not necessarily constitute a concession: Rodgers [2018] NSWCCA 47 at [97], [131].
38. JRB [2006] NSWCCA 371 at [42]; Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [85]-[87].
39. Munday [2017] NSWCCA 95 at [25].
40. Parker (1992) 28 NSWLR 282 at 296; Button [2010] NSWCCA 264; Weir [2011] NSWCCA 123; Ng [2011] NSWCCA 227, 214 A Crim R 191 at [49]; BT [2012] NSWCCA 276, 227 A Crim R 354 at [40]-[42] (no such representation given); Nair [2013] NSWCCA 79; Tran [2014] NSWCCA 85 at [15]-[17] (representation as to level of “objective seriousness”); Thomson [2014] NSWCCA 88 (no representation where said only that a particular sentence was “likely”); Milsom [2014] NSWCCA 142 at [120]-[121] (sentence higher than range indicated). In Tuvunivono [2013] NSWCCA 176 it was held at [55] that sufficient notice was given in a case where the sentencing judge began to deliver the sentencing remarks but gave the parties an opportunity to make further submissions before sentence was passed.
41. Weir [2011] NSWCCA 123 at [67]. However, if the offender had full opportunity to make submissions prior to the representation from the sentencing court, there may be no denial of procedural fairness: Dang [2014] NSWCCA 47 at [43]-[48].
42. Trujillo-Mesa [2010] NSWCCA 201.
43. Fairbairn [2006] NSWCCA 337, 165 A Crim R 434 at [2]. However, in Thomson [2014] NSWCCA 88 there was no such indication and the sentencing judge was not obliged to signal to the parties in advance of his decision whether he accepted the Crown's submission on accumulation (at [61]).
44. Brennan [2018] NSWCCA 22 at [2]-[4], [97].
45. Tadrosse [2005] NSWCCA 145 at [19]; Stokes [2008] NSWCCA 123, 185 A Crim R 74 at [14]; Ng [2011] NSWCCA 227, 214 A Crim R 191 at [50]; Milsom [2014] NSWCCA 142 at [126]-[127]; Chong [2017] NSWCCA 185 at [8]-[15], [37]-[39]. See also Chol [2012] VSCA 204 at [22]-[30] (question of prevalence needed to be raised unless "notorious").
46. Ly [2014] FCAFC 175 at [103]-[106]. For an example of a case where members of the appeal court came to different views as to whether there was a denial of procedural fairness in a case where the sentencing judge did not give notice that she was contemplating finding a matter of aggravation (where the prosecution had not submitted that it should be found), see KAB [2015] NSWCCA 55. In Forrest [2017] NTCCA 5 the Northern Territory Court of Criminal Appeal held at [61] that a “finding by a sentencing judge in relation to an aggravating or mitigating circumstance will not constitute a breach of procedural fairness by reason only of the fact that the matter was not the subject of express treatment in the course of sentencing submissions” and that, “[i]in the particular circumstances of this case, the sentencing court was entitled to assume that counsel would be aware of the manners in which intoxication could potentially be taken into account”, including as a matter in aggravation.
47. Longworth [2017] NSWCCA 119 at [21]-[25].
48. Ly [2014] FCAFC 175 at [103]; Tweedie [2015] NSWCCA 71 at [24]-[26], [54]-[58].
49. Dennis [2015] NSWCCA 297, Beech-Jones J (Johnson J agreeing) at [50]. RS Hulme AJ disagreed, holding at [63] that there was a denial of procedural fairness (but his Honour would have dismissed the appeal that “it is impossible to believe” further submissions would or might have had any impact”).
50. See Newman [2018] NSWCCA 208 at [29]-[32]; Morgan [2016] VSCA 143 at [51]; Collins [2018] SASCFC 97 at [17].
51. Parker (1992) 28 NSWLR 282 at 289G.
52.  See Robertson [2017] QCA 164 at [56] (considering imposing a sentence which may be considered unusual or an additional penalty which is unusual); Strangio [2017] VSCA 6 (decision that would nominally be favourable to the offender but would have adverse consequences); MCW [2018] QCA 241.
53. Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92 at [95]-[96]. See also Wills [2014] NSWCCA 253 at [35]-[40]; Wheeder v Verity [2015] NTSC 34 at [14]; Bridges [2017] SASC 35 at [15].
54. Hernandez [2013] NSWCCA 51 at [38]-[39], citing Sullivan v Department of Transport (1978) 20 ALR 323 at 343; Re Association of Architects of Australia; ex parte Municipal Officers' Association of Australia [1989] HCA 13, 63 ALJR 298 at 305.
55. Toole [2014] NSWCCA 318, 247 A Crim R 272 at [44].
56. Dietrich (1992) 177 CLR 292.
57. A “serious offence” should be understood in this context as one where the court intends to impose a sentence that would deprive the offender of his or her liberty or place the offender in jeopardy of being deprived of his or her liberty: see Deane J in Dietrich (1992) 177 CLR 292 at 336.
58. Chow (1992) 28 NSWLR 593 at 605C, 605F; Palu [2002] NSWCCA 381, 134 A Crim R 174 at [21]; O’Neil-Shaw [2010] NSWCCA 42 at [26].
59. See Rajendran [2014] NSWCCA 113 at [53]-[56].
60. There is some controversy as to whether this proposition applies to future probabilities or possibilities (for example, a “risk of future dangerousness”). One view is that it does not: see SLD [2003] NSWCCA 310 at [30]; McNamara [2004] NSWCCA 42 at [27]-[29]; Hines (No 3) [2014] NSWSC 1273 at [93]. Plainly, the court need not be satisfied beyond reasonable doubt that the offender will re-offend (see SLD at [30]). However, the better view would be that the existence of a particular degree of risk is a "fact" and that a sentencing court must be satisfied beyond reasonable doubt that there is a significant or substantial risk of re-offending: see Chapter 4 at [4.109].
61. There is no statutory provision in NSW comparable to s 132C Evidence Act 1977 (Qld). Where, for example, the prosecution relies on circumstantial evidence, the fact cannot be established beyond reasonable doubt unless its existence is the only rational or reasonable conclusion that can be drawn from the circumstances (see McClelland [2017] VSCA 124 at [47]).
62. [1999] HCA 54, 199 CLR 270 at [27].
63. [1999] HCA 54, 199 CLR 270 at [27].
64. Swan [2006] NSWCCA 47 at [46].
65. Swan [2006] NSWCCA 47 at [46]:“[w]here what is involved is an allegation of serious criminal conduct the discharge of the onus on the civil basis must take into account the gravity of the allegations”.
66. Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970; G v H (1994) 181 CLR 387 at 391-392; Ho v Powell [2001] NSWCA 168, 51 NSWLR 572 at [16]. For example, a failure to adduce particular evidence from an expert witness called by the defence may support an inference that the evidence would not have assisted the defence: Hunt [2017] NSWCCA 305 at [57].
67. Tiknius [2011] NSWCCA 215, 221 A Crim R 365 at [45]:“Claims may be easily made concerning the alleged conduct of persons in another country which is said to have applied pressure upon an offender: Anna Le v R [2006] NSWCCA 136 at [32]. It has been said that verification of a spurious claim of duress may prove difficult: Z [2005] UKHL 22; (2005) 2 AC 467 at 492 [22]”.
68. Wilmot [2007] NSWCCA 278 at [28]-[32]; Mercael [2010] NSWCCA 36; Lewis [2011] NSWCCA 206; Arbili [2012] NSWCCA 48 at [39]-[41]. However, as will be discussed below, a difference between a sentencing procedure and a criminal trial is the determination of those facts that need to be decided.
69. See WC [2016] NSWCCA 173 at [63].
70. [2011] NSWCCA 32 at [120] (Hall J and Price J agreeing).
71. Hinchliffe [2013] NSWCCA 327 at [242]; Islam [2016] NSWCCA 233 at [98] (relevant to whether contrition).
72. McKibben [2007] NSWCCA 89 at [16]; Aoun [2011] NSWCCA 284 at [57].
73. However, James J noted at [118] that in the Queensland case of Miller [2003] QCA 404 Holmes J, who delivered the leading judgment with which the other members of the Queensland Court of Appeal agreed, after pointing to various differences between a criminal trial before a jury and a sentence hearing before a judge, said at [27]: “Because of these distinctions, I do not think that the constraints on comment and approach imposed by the Weissensteiner line of authority have any application to fact finding on sentence”.
74. See, for example, Chiang [2016] NSWCCA 45 at [17]-[20].
75. Stafrace (1997) 96 A Crim R 452; Alvares [2011] NSWCCA 33, 209 A Crim R 297 at [65]; Alkanaan [2017] NSWCCA 56 at [134].
76. [2010] NSWCCA 208 at [33]. See alsoAlvares [2011] NSWCCA 33, 209 A Crim 297 at [65]; Sun [2011] NSWCCA 99 at [31].
77. Assertions of remorse on behalf of the corporation are unlikely to be given much weight. In practice, there would need to be evidence of actual remorse on the part of directors of the corporation, which might be the subject of testing under cross-examination: Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 (Pain J) at [29]; see also Garrett v Williams (2006) 160 LGERA 115 (Preston CJ) at [161] There would need to be evidence of actual remorse: Cahill v State of New South Wales (Department of Community Services) (No 4) (2008) 182 IR 231 (Boland P) at [57]-[63]; Morrison v P & H Minepro Australia Pty Ltd [2009] NSWIRComm 144 (Boland P) at [27]. See also Inspector Ron Spence v Allam Homes Pty Ltd [2008] NSWIRComm 249 at [36]; Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 at [66]-[81]; Inspector Karen Simpson v Wingruby Pty Ltd t-as Lithgow Tyre Service [2010] NSWIRComm 104 at [27]-[28]; Inspector Walker v Great Lakes Community Resources Incorporated t-as Workplace Services [2010] NSWIRComm 182 at [27]-[28].
78. Dyers (2002) 210 CLR 285.
79. Gamble (1984) 14 A Crim R 179 at 182; Azzopardi [2011] VSCA 372, 219 A Crim R 369 at [70].
80. Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [64]; Farkas [2014] NSWCCA 141 at [14], [89]-[90].
81. s 4(1)(d), (2).
82. Lewis (unreported, NSWSC, Dowd J, 25 October 1996).
83. Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [61]; Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [14], [89]-[90].
84. Perrin [2006] NSWCCA 64; Khanwaiz [2012] NSWCCA 168 at [123]. On the other hand, if the offender does not object to the court taking into account such evidence, the position is different: Tattersall [2011] NSWCCA 282 at [30]. In Baquiran [2014] NSWCCA 221, evidence of factual findings made by another sentencing court in respect of a co-offender was admitted without objection, but only for the purpose of identifying the factual basis upon which the co-offender was sentenced (relevant to application of the parity principle) – “it could thus not be used as evidence of the truth of the matters asserted in it or, in the case of the other sentencing judgments, of the accuracy of the findings made in them” (Macfarlan JA at [27]).
85. See Aitkin [2017] VSCA 103 at [82](b). In Shashati [2018] NSWCCA 167 it was held at [23]-[27] that the sentencing judge had wrongly considered that evidence of previous driving behaviour was not relevant to the offender’s manner of driving, and culpability, at the time of an accident.
86. Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [99]. Giles JA added that, when the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown’s assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender.
87. Pleasance [2016] NSWCCA 113 at [101], [105]. Of course, the position is different if no objection is taken to admission of the evidence, notwithstanding that it is not subject to cross-examination: see Van Zwam [2017] NSWCCA 127 at [5]-[6], [110].
88. Ex parte Kelly; Re Teece [1966] 2 NSWR 674 at 678.
89. WW [2012] NSWCCA 165 at [58]-[60].
90. See Ellis [2015] NSWCCA 262 at [44], [68], [75].
91. JRB [2006] NSWCCA 371 at [42]; Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [14]; Henderson [2016] NSWCCA 8, 256 A Crim R 519 at [60]; Drew [2016] NSWCCA 310 at [85]-[90] (domestic violence in indigenous communities and the under-reporting of such violence); Munday [2017] NSWCCA 95 at [24]; Murray [2017] NSWCCA 262 at [50]. See also S D [2013] VSCA 133 at [37]]; Haddara v The Queen [2016] VSCA 168 at [69] (proving “prevalence”). The observations made by the High Court in Bugmy [2013] HCA 37, 249 CLR 571 at [41] should not be understood to preclude the general application of the principles relating to taking judicial notice – only that any fact judicially noticed must be relevant to the individual offender. See also Drew [2016] NSWCCA 310 at [83]-[84], [90].
92. Adamson [2015] VSCA 194 at [22].
93. Hill [2003] NSWCCA 16; see also Youkhana [2013] NSWCCA 85 at [73].
94. Qutami [2001] NSWCCA 353 at [58]; Niketic [2002] NSWCCA 425 at [4]; Hooper [2004] NSWCCA 10; Alameddine [2004] NSWCCA 286; Alvares[2011] NSWCCA 33, 209 A Crim 297; Sun [2011] NSWCCA 99 at [31]; Hinchliffe [2013] NSWCCA 327 at [239]-[242]; Loveridge [2014] NSWCCA 120 at [125]; Ly [2014] FCAFC 175 at [110]; Halac [2015] NSWCCA 121 at [105]-[107]; Mun [2015] NSWCCA 234 at [36]-[44]; JDX [2017] NSWCCA 9 at [35]-[41]; Imbornone [2017] NSWCCA 144 at [57]-[58]. However, the position may be different if the offender has given evidence by way of affidavit and has not been required to make himself or herself available for cross-examination: O’Brien [2010] NSWCCA 297 at [29]–[32]; Sun [2011] NSWCCA 99 at [37]; Van Zwam [2017] NSWCCA 127 at [2]-[6], [110]-[111]; but see Imbornone [2017] NSWCCA 144, RA Hulme J at [3]-[9]. On the other hand, there would be nothing to cross-examine if the offender made a decision not to give evidence (either orally or in the form of an affidavit) and simply offered to make himself or herself available for cross-examination: Ballard [2011] NSWCCA 193 at [21].
95. See Devaney [2012] NSWCCA 285, Allsop P at [88] (but see also Campbell JA at [144]); Pym [2014] NSWCCA 182 at [79]. Of course, a finding that the history is not reliable may impact on the weight to be given to the opinion: see SW [2013] NSWCCA 103 at [123]-[126], [199]-[204], [223]-[229].
96. WW [2012] NSWCCA 165 at [55]-[60]; Lam [2015] NSWCCA 143 at [74]-[83].
97. Slack [2004] NSWCCA 128 at [62]; Bain [2006] NSWCCA 79; Deng [2007] NSWCCA 216 at [59]–[61]. Of course, the position is different where there was an opportunity to cross-examine the person who made the statement: King [2004] NSWCCA 444 at [174]-[176]. The Cth Act permits cross-examination with the leave of the court (s 16AB(6
98. Thomas [2007] NSWCCA 269 at [37]. In Tuala [2015] NSWCCA 8, 248 A Crim R 502, it was held at [84] that a VIS could not, in the circumstances of the case, prove beyond reasonable doubt that the injury, loss and damage caused by the offences was more substantial than could ordinarily be expected of such offences. See also EG [2015] NSWCCA 21 at [36]; Muggleton [2015] NSWCCA 62 at [40]-[46]. It has been observed that “given the inherent subjectivity of a victim impact statement, the assertions made within it will properly be used by the court for the purposes of findings made at a level of generality, rather than specificity”: Dimitrovska [2015] WASCA 162 at [74]-[75].
99. Wilmot [2007] NSWCCA 30, 169 A Crim R 280 at [34]; Wilson [2005] NSWCCA 219 at [28]; Aguirre [2010] NSWCCA 115 at [77]; MJB [2014] NSWCCA 195 at [50]-[53]; Tuala [2015] NSWCCA 8, 248 A Crim R 502 at [78]. In RP [2013] NSWCCA 192, 234 A Crim R 272, the victim had claimed harm that "went well beyond what might be regarded as the type of harm expected from the circumstances of the ... offending", the claim was not supported by other evidence, there was a submission in the sentencing proceedings that the content of the statement should be given limited weight and the Court of Criminal Appeal appears to have accepted that the sentencing judge erred in sentencing the offender on the basis of those claims (see Price J at [24]-[30]). See also RL [2015] NSWCCA 106 at [49]-[57].
100. Tuala [2015] NSWCCA 8, 248 A Crim R 502 at [79]; Bajouri [2016] NSWCCA 20 at [40]-[42]; Faehringer [2017] NSWCCA 248 at [59]-[61]; Hughes [2018] NSWCCA 2 at [95].
101. Thus, in Alvares [2011] NSWCCA 33, 209 A Crim 297, Buddin J (McClellan CJ at CL and Schmidt J agreeing) observed at [66] that it has never been “authoritatively stated that an offender will only be entitled to the benefit of a finding of remorse in the event that he or she gives sworn evidence to that effect”. Thus, hearsay assertions of remorse may, in some circumstances, be sufficient to support a finding of remorse, although they will not require such a finding.
102. See s 12 Criminal Appeal Act 1912 (NSW); s 29A Criminal Procedure Act 1986 (NSW); Beldan (1986) 21 A Crim R 159; J (1992) 64 A Crim R 441 at 459; Hallocoglu (1991) 29 NSWLR 67; Henry [1999] NSWCCA 111, 46 NSWLR 346, 106 A Crim R 149 at [84].
103. Olbrich [1999] HCA 54, 199 CLR 270 at [25].
104. Cheung [2001] HCA 67, 209 CLR 1, Gleeson CJ, Gummow and Hayne JJ at [14], Gaudron J at [76].
105. See, for example, in relation to contravention of s 66EA(1) Crimes Act 1900 (NSW), which related to the commission of three or more sexual offences on three or more separate occasions during a period of time, ARS [2011] NSWCCA 266 at [230]–[231]. See also Vulovic [2013] NSWCCA 340; Thompson [2014] WASCA 108 at [23]-[25] (“intend to sell or supply”); Smith [2015] NSWCCA 193 at [18]-[24], [72] (excessive self-defence).
106. [2001] HCA 67, 209 CLR 1 at [5].
107. [2001] HCA 67, 209 CLR 1 at [17].
108. Vulovic [2013] NSWCCA 340 at [25]. Some courts refer to such facts as “core facts”: PES [2014] WASCA 96 at [37]. See also McKay [2014] NSWCCA 187 at [73].
109. Nguyen [2016] NSWCCA 5 at [41]-[57].
110. Kingswell [1985] HCA 72, 159 CLR 264; Meaton [1986] HCA 27, 160 CLR 359. However, even if this procedure is not adopted, a sentence imposed under the higher maximum penalty may stand if no miscarriage of justice arose (if, for example, it was inevitable that the jury would have found the circumstance of aggravation proved). See Waskin [2003] NSWCCA 96, 141 A Crim R 1; Warby [2007] NSWCCA 173, 171 A Crim R 575 at [14]–[20].
111. Oblach [2005] NSWCCA 440 at [69]–[70]; Hines (No 3) [2014] NSWSC 1273 at [32]-[33], [46].
112. Oblach [2005] NSWCCA 440 at [70]. See also Woods [2012] NTCCA 8 at [10]-[14] (“excessive self-defence”); Fahda [2013] NSWCCA 86 (“provocation”); Da-Pra [2014] NSWCCA 211 at [410] (“substantial impairment”); Skelton [2015] NSWCCA 320 at [126]-[139] (“mental illness”).
113. See Tarrant [2018] NSWCCA 21 at [77]-[92].
114. GAS [2004] HCA 22, 217 CLR 198 at [30]. See also Grant [2014] NSWCCA 67 at [61]-[66]; RMW [2016] NSWCCA 211 at [18]-[26] (judge erred in sentencing offender on factual basis inconsistent with element of offence to which offender plead guilty). Further, the significance of other facts will vary depending on the facts determined as a matter of law by the plea of guilty: Torun [2015] VSCA 15 at [61].
115. In Elturk [2014] NSWCCA 61 it was held at [33]-[35] that, while an offender’s plea of guilty precluded his mental illness from absolving him of criminal responsibility, he had not waived his right to have his mental illness considered as a mitigating factor (particularly as it bore on his moral culpability and the objective seriousness of the offence).
116. Catley [2014] NSWCCA 249 at [42]-[43]; Ukropina [2016] NSWCCA 277 at [36]. See also Iese [2017] QCA 68 at [18]-[27].
117. See Tarrant [2018] NSWCCA 21 at [92].
118. [2001] HCA 67, 209 CLR 1 at [18].
119. (1997) 90 A Crim R 587 at 592.
120. (1997) 90 A Crim R 587 at 593.
121. [2017] HCA 37, 347 ALR 546.
122. Kiefel CJ, Keane and Nettle JJ at [32]. This is not the taking of a “special verdict” but rather the asking of questions of the jury.
123. [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [42].
124. [2017] HCA 37, Kiefel CJ, Keane and Nettle JJ at [46]. Because the particular acts of sexual exploitation are the actus reus of the offence, the offender must be sentenced on the basis of those particular acts, bearing in mind that the sentence to be imposed is to be determined by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been convicted of each of those offences: Kiefel CJ, Keane and Nettle JJ at [44]. As regards practical difficulties that might arise with such questions, see the dissenting judgment of Edelman J at [115]-[116].
125. [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [47].
126. [2017] HCA 37, 347 ALR 546.
127. [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [52].
128. [2017] HCA 37, 347 ALR 546, Kiefel CJ, Keane and Nettle JJ at [53]. As regards practical difficulties that might arise, see the dissenting judgment of Edelman J at [118]-[119].
129. [1999] HCA 54, 199 CLR 270 at [17].
130. [2003] HCA 14, 212 CLR 629 at [23].
131. [2004] HCA 22, 217 CLR 198 at [30].
132. [1999] HCA 54, 199 CLR 270 at [26]–[28].
133. [1999] HCA 54, 199 CLR 270 at [28]. Similarly, at [22] the plurality stated that the sentencing judge “sentenced the respondent as if the respondent had told the police and the court nothing about the circumstances of the event at all”. See also Dao [2014] VSCA 93, 240 A Crim R 574.
134. [2003] HCA 14, 212 CLR 629 at [19].
135. [2003] HCA 14, 212 CLR 629 at [24].
136. Plurality judgment at [25].
137. Plurality judgment at [29].
138. Plurality judgment at [29]. Kirby J, in dissent, disagreed (at [74], [94].
139. Pham [2010] NSWCCA 208 at [28]–[34].
140. See [2.17.7] -[2.17.9] above.
141. [2001] HCA 67, 209 CLR 1 at [8]-[9].
142. In Smith [2015] NSWCCA 193 it was observed at [59] that it was “essential to the key question for sentencing” to determine what the offender perceived the circumstances to be when he killed the deceased (where the jury had found him not guilty of murder but guilty of manslaughter). In contrast, in Seymour [2017] SASC 33, Doyle J at [97] proceeded on the basis that he was “left in the somewhat unsatisfactory position of having to sentence the defendant on the basis that the reason or motivation for his” offence “is unknown”.
143. [2001] HCA 67, 209 CLR 1 at [14].
144. (1997) 90 A Crim R 587 at 592.
145. Lupoi (1984) 15 A Crim R 183 at 184, cited in Isaacs (1997) 90 A Crim R 587 at 592 and 595.
146. See Rajendran [2014] NSWCCA 113 at [53]-[56].
147. [2015] HCA 29, 256 CLR 47.
148. French CJ, Bell, Keane and Nettle JJ at [72], Gageler J agreeing at [74].
149. French CJ, Bell, Keane and Nettle JJ at [67], Gageler J agreeing at [74].
150. French CJ, Bell, Keane and Nettle JJ at [68], Gageler J agreeing at [74].
151. See Callaway JA in Storey [1998] 1 VR 359 at 376.
152. It would be in the offender’s favour if he was importing the drugs as agent for another and, conversely, adverse to him if he was importing the drugs on his own account. By analogy, a young Oliver Twist acting on the orders of a Fagan is seen to be less culpable than a young offender acting on his own account. Reasons for this include the perception that, in general, the agent has less responsibility for the crime, and also has less to gain from it, than the person who acts on his own account.
153. For another example, see Nguyen [2015] NSWCCA 268 (the sentencing judge was not satisfied that a person transporting drugs was a mere courier and sentenced him on the basis that he possessed the drugs “for the purposes of sale” without finding the existence of that state of mind beyond reasonable doubt).
154. [2015] HCA 29, 256 CLR 47 at [67].
155. [2001] HCA 67, 209 CLR 1 at [8].
156. [2015] HCA 29, 256 CLR 47 at [67].
157. [2015] HCA 29, 256 CLR 47 at [72].
158. [2003] HCA 14, 212 CLR 629 at [24].
159. Woolmington [1935] AC 462; Thomas (1960) 102 CLR 584.
160. [2003] HCA 14, 212 CLR 629 at [16].
161. See, for example, Fadel [2017] NSWCCA 134 at [142]-[143].
162. Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [61], [69].
163. Bourchas [2002] NSWCCA 373, 113 A Crim R 413 at [69].
164. GAS [2004] HCA 22, 217 CLR 198 at [30].
165. [2003] HCA 14, 212 CLR 629 at [7].
166. The High Court explained why this was desirable in GAS [2004] HCA 22, 217 CLR 198 at [44]: “Recording what is agreed, in an agreed form of words, should reduce the scope for misunderstanding what is to be, or has been, agreed. It should serve to focus the minds of counsel, and the parties, upon the application of the three fundamental principles which are set out earlier in these reasons and describe the respective responsibilities of the prosecutor, the accused person and the sentencing judge. Most importantly, it enables counsel for both sides to be clear about the instructions to be obtained from their respective clients and the matters about which, and basis on which, counsel should tender advice to their respective clients. There should then be far less room for subsequent debate about the basis on which an accused person chose to enter a plea of guilty.” In Porter [2015] NSWCCA 59 it was observed at [40] that “[e]ven if negotiations about the facts are continuing up until the time of the hearing, a typed draft brought to Court should be amended, by hand, if need be, and the changes initialled so as not to delay the proceedings”.
167. Korgbara [2010] NSWCCA 176 at [34].
168. Korgbara [2010] NSWCCA 176 at [22].
169. GAS [2004] HCA 22, 217 CLR 198 at [33], [39].
170. Ellis [2015] NSWCCA 262 at [10].
171. GAS [2004] HCA 22, 217 CLR 198 at [43]:“Although the recording of the agreement is most obviously necessary in cases where some agreement is reached about matters of fact that will be put to the court as agreed facts or circumstances bearing upon questions of sentence, the desirability of recording what is agreed is not confined to those cases. It extends to every substantial matter that is agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty”.
172. Ishac [2011] NSWCCA 107 at [32]; Palu [2002] NSWCCA 381, 134 A Crim R 174 at [21]. In particular, facts should not be agreed that would result in a breach of the principle (see Principle 12) that an offender may not be punished for conduct that would constitute a more serious offence than that charged: Pun [2017] VSCA 219 at [18].
173. Sills [2011] NSWCCA 271 at [50].
174. Ishac [2011] NSWCCA 107 at [32]; Crowley [2004] NSWCCA 256 at [46].
175. Palu [2002] NSWCCA 381, 134 A Crim R 174 at [21]; Barri [2004] NSWCCA 221 at [58]; H [2005] NSWCCA 282 at [58]. However, it may involve a denial of procedural fairness to the prosecution if the prosecution is not permitted to adduce further material where the defendant has given or adduced evidence that supplements or contradicts the agreed facts, or to adduce further material to meet a criticism made by the sentencing court: Mulligan [2016] NSWCCA 47 at [20]-[21].
176. Falls [2004] NSWCCA 335 at [39].
177. Crowley [2004] NSWCCA 256 at [46].
178. Falls [2004] NSWCCA 335 at [37]; Zangana [2015] NSWCCA 102 at [92]-[94].
179. Zamitt [2010] NSWCCA 29; Khanwaiz [2012] NSWCCA 168 at [96]-[100]; Zangana [2015] NSWCCA 102 at [92]-[94].
180. GAS [2004] HCA 22, 217 CLR 198 at [31]. See also DL [2018] HCA 32, 92 ALJR 764 at [39]. In Anderson [2018] NSWCCA 49, the NSW Court of Criminal Appeal allowed a ground of appeal that the sentencing judge failed “to give effect to [an] Agreed Fact” but it is clear that the core error was sentencing the offender inconsistently with the plea of guilty (at [41]).
181.  See [4.5] above, 4th dot point.
182. Kirkland [2005] NSWCCA 130 at [13]-[16]; Cowling [2015] NSWCCA 213 at [13].
183. See Olbrich [1999] HCA 54, 199 CLR 270 at [25]; Succarieh [2017] QCA 85 at [113]. In some jurisdictions, the view is taken that reasonable notice should be given to the prosecution, ideally in writing and far enough in advance of the hearing to afford the prosecution an opportunity to make inquiries concerning the matter and to challenge the assertion if considered necessary or appropriate: Bara [2016] NTCCA 5 at [48]. It is common practice in some jurisdictions for both parties to provide each other and the sentencing court with a written outline of submissions in advance, and for the outline provided by defence counsel to include a summary of the submissions intended to be made in relation to the objective circumstances of the offending and the offender’s subjective personal circumstances, including matters going to mitigation.
184. Olbrich [1999] HCA 54, 199 CLR 270 at [25]. Giving such an indication would be required as a matter of procedural fairness (see [2.5] above; Pantorno [1989] HCA 18, 166 CLR 466 at 473 [11], 482-483 [11]–[12]; Schofield [2003] NSWCCA 3, 138 A Crim R 19). However, it was held in Bara [2016] NTCCA 5 at [47] that there was no need for such an indication because the submission from the Bar table was made for a very limited purpose.
185. Vozlic [2013] VSCA 113, 39 VR 327 at [23].
186. Felton [2002] NSWCCA 443, 135 A Crim R 328 at [3]; Brandt [2004] NSWCCA 3 at [8]; Calcutt [2012] NSWCCA 40, 221 A Crim R 505 at [21]; Woodward [2017] NSWCCA 44 at [25].
187. [2002] NSWCCA 518, 56 NSWLR 146, 137 A Crim R 180.
188. [2002] NSWCCA 518, 56 NSWLR 146, 137 A Crim R 180 at [47]–[67]. See also Marshall [2013] NSWCCA 16 at [10]; Abbas [2013] NSWCCA 115, 231 A Crim R 413 at [10]; PB [2016] NSWCCA 258 at [56]-[57].
189. Williams [2005] NSWCCA 355, 156 A Crim R 225 at [29]. This may be done informally: O’Connor [2017] NSWCCA 300 at [34]-[35].
190. See Marshall [2013] NSWCCA 16 at [10].
191. Marshall [2013] NSWCCA 16 at [11]. See also Linden [2017] NSWCCA 321 at [69]-[76].
192. See Chapter 3 Principles at [3.143]-[3.150].
193. Abbas [2013] NSWCCA 115, 231 A Crim R 413 at [26] (Hoeben CJ at CL, Garling J and Campbell J agreeing). See also JL [2014] NSWCCA 130 at [7].
194. [2002] NSWCCA 518, 56 NSWLR 146, 137 A Crim R 180.
195. Dennison [2011] NSWCCA 114.
196. Assafiri [2007] NSWCCA 159.
197. Nguyen [2010] NSWCCA 238 Johnson J at [117] (MacFarlan JA and RA Hulme J agreeing).
198. Compare Adams [2014] WASCA 191at [11]-[53], [158]-[165].
199. The term “community corrections officer” is defined in s 3(1) to have “the same meaning as it has in the Crimes (Administration of Sentences) Act 1999”. In that Act, it is defined to mean “a person who is employed within Corrective Services NSW as a community corrections officer, as referred to in section 231”: s 3(1).
200. The term “juvenile justice officer” is defined in s 3(1) to have “the same meaning as it has in the Children (Detention Centres) Act 1987”. In that Act, it is defined to mean “a member of staff of the Department who is principally involved in the administration of this or any other Act administered by the Minister, and includes any member of staff of the Department who is in the branch of the Department known as Juvenile Justice”: s 3(1). The “Department” is defined to mean the Department of Justice.
201. See Hanania [2012] NSWCCA 220 at [40]-[48].
202. (1991) 54 A Crim R 334 at 337 (Hunt J and McInerney J agreeing).
203. See West [2014] NSWCCA 250 at [33]-[44].
204. [2010] NSWCCA 146 at [91]. See also Cowling [2015] NSWCCA 213 at [35]-[47].
205. Stoeski [2014] NSWCCA 161 at [38]-[39].
206. Darby [2011] NSWCCA 52 at [53]; Lal [2006] NSWCCA 197 at [20]; Croaker [2004] NSWCCA 470 at [28]; Rose [2004] NSWCCA 326; Hunt [2002] NSWCCA 482; Rai [2002] NSWCCA 506 at [13]; Ramos [2000] NSWCCA 189, 112 A Crim R 339 at [14]; Hill [1999] NSWCCA 140 at [10]–[11]; Duncan (1983) 9 A Crim R 354. See also JW [2010] NSWCCA 49, 199 A Crim R 486 at [210].
207. Croaker [2004] NSWCCA 470 at [28].
208. An adjournment would be appropriate to, for example, enable recommended and important surgery to take place (Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [61]) or where there is a significant risk of suicide arising from severe depression if the offender remained in custody (Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [58]).
209. Griffiths (1977) 137 CLR 293; see also Brown [2009] NSWCCA 6, 193 A Crim R 546 at [2]. In Farrell [2014] NSWCCA 30, 239 A Crim R 212 it was accepted that deferral of sentence and granting bail would be appropriate where this was “was necessary to enable … surgery to be performed” on the offender but the offender had failed to establish that it was necessary because there was no evidence to suggest that the surgery could not be obtained in prison: at [65].
210. Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [60] (Spigelman CJ and Grove J agreeing).
211. Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [60]; Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [23].
212. Palu [2002] NSWCCA 381, 134 A Crim R 174 at [30]; Pulliene [2009] NSWCCA 47 at [28].
213. Palu [2002] NSWCCA 381, 134 A Crim R 174 at [30], [38]; Hopoi [2014] NSWCCA 263 at [44], [46]-[51]. In Cunningham [2017] SASCFC 28, the Full Court of the South Australian Supreme Court held that the severe disabilities suffered by the offender’s child and the enormity of the job of caring for the child were factors relevant to the making of an order under comparable legislation).
214. Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [18]; Leahy [2004] NSWCCA 148 at [14]; Hopoi [2014] NSWCCA 263 at [52]-[54].
215. Rose [2004] NSWCCA 326 at [43]; Pulliene [2009] NSWCCA 47 at [27].
216. Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [166].
217. Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [64]; Leahy [2004] NSWCCA 148 at [13]; Brown [2009] NSWCCA 6, 193 A Crim R 546 at [22]; Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [22].
218. Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [25].
219. Trindall [2002] NSWCCA 364, 133 A Crim R 119 at [64] (Spigelman CJ and Grove J agreeing).
220. Rayment [2010] NSWCCA 85, 200 A Crim R 48 at [22].
221. Griffiths (1977) 137 CLR 293; see also Brown [2009] NSWCCA 6, 193 A Crim R 546 at [2].
222. Griffiths (1977) 137 CLR 293 at 321-323, 335, 338-339; Togias [2001] NSWCCA 522, 127 A Crim R 23 at [6].
223. See West [2014] NSWCCA 250 at [41]-[44].
224. Porter [2008] NSWCCA 145 at [52]-[56]; Miller [2014] NSWCCA 34 at [154]-[156].
225. WAP [2017] NSWCCA 212 at [77].
226. See RL [2015] NSWCCA 106 at [51]-[57]; AC [2016] NSWCCA 107 at [44] (document did not identify the harm which the victim had suffered “as the result of the applicant’s offending”).
227. See PWB [2011] NSWCCA 84 at [53]; BCY [2015] QCA 200 at [61]-[68].
228. PWB [2011] NSWCCA 84 at [53]; MA [2001] NSWCCA 30 at [18].
229. Turnbull (No. 24) [2016] NSWSC 830 at [8].
230. See AC [2016] NSWCCA 107 (requirements not satisfied).
231. The provision does not elucidate what use may be made of a victim impact statement: see [2.12] above.
232. Hines (No 3) [2014] NSWSC 1273 at [78].
233. Previtera (1997) 94 A Crim R 76 at 86-7. See also Bollen (1998) 99 A Crim R 510at 529-530; Tzanis [2005] NSWCCA 274 at [15]-[18]; Whybrow [2008]NSWCCA 270 at [17].
234. Turner [2011] NSWCCA 189, Basten JA at [1].
235. Basten JA in Hendricks [2011] NSWCCA 203 at [9].
236. Previtera (1997) 94 A Crim R 76 at 86.
237. Lewis [2001] NSWCCA 448 at [67].  It is not necessary that an intention to kill be present, only that the offender foresee that death could result and be aware of the likely effect of that death: Sheiles [2018] NSWCCA 285 at [40]-[42].
238. See MJB [2014] NSWCCA 195 at [50]. However, the position may well be different “where the author of a so-called victim impact statement is an expert, rather than a victim”: Muggleton [2015] NSWCCA 62 at [44].
239. AWKO [2010] NSWCCA 90 at [19].
240. Thomas [2006] NSWCCA 313 at [16]. See also Sanchet [2006] NSWCCA 291 at [39]; DBW [2007] NSWCCA 236 at [33]-[37]; Jackson [2011] NSWCCA 124 at [26]. If a sentencing court indicates that a particular factor may affect the sentence to be imposed, it is that court’s duty to make plain whether that factor did, in the event, have that effect: Dimozantos (No 2) [1993] HCA 52, 178 CLR 122 at [15].
241. Porter [2008] NSWCCA 145 at [52]-[56]; Miller [2014] NSWCCA 34 at [154]-[156]. See also B [2015] NSWCCA 103 at [195].
242. See CVH [2003] NSWCCA 237.
243. Smorhun v Devine [2014] ACTSC 208 at [53]; Law v Ilievski [2016] ACTSC 291 at [73].
244. Carter v Nussbaum (No 2) [2013] FamCA 1014 at [6]; Law v Ilievski [2016] ACTSC 291 at [73].
245. Bollen (1998) 99 A Crim R 510 at 521; Law v Ilievski [2016] ACTSC 291 at [74].
246. Law v Ilievski [2016] ACTSC 291, Refshauge ACJ at [75]. See also Poole v Edwards [2016] ACTSC 159 at [100].
247. Tait (1979) 24 ALR 473; Casey (1986) 20 A Crim R 191; Holder [2014] VSCA 61 at [32], [34]. See also Barbaro [2014] HCA 2, 305 ALR 323 at [21], [39]-[40].
248. Barbaro [2014] HCA 2, 305 ALR 323 at [39].
249. See Chapter 3 Principles at [3.155]-[3.163].
250. [2014] HCA 2, 305 ALR 323, French CJ, Hayne, Kiefel and Bell JJ at [49]. It was held that the prosecution should limit submissions to submissions “about what facts may or should be found, about the relevant principles [and] about comparable sentences” (see at [38]). Gageler J took a different view (see at [59]-[62]).
251. French CJ, Hayne, Kiefel and Bell JJ at [39]. See also Ojielumhen [2014] ACTCA 28 at [21].
252. [2014] VSCA 291, 246 A Crim R 193. Priest and Lasry JJA provided a separate opinion.
253. [2014] VSCA 291, 246 A Crim R 193 at [27]. See also Haynes [2017] VSCA 79.
254. See also Priest and Lasry JJA at [144]-[153].
255. [2014] VSCA 291, 246 A Crim R 193 at [22].
256. [2014] VSCA 291, 246 A Crim R 193 at [25].
257. [2015] HCA 9, 317 ALR 308 at [64]. See also Lamis [2016] NSWCCA 274 at [41]-[45].
258. [2014] HCA 2, 305 ALR 323 at [61].
259. In a civil proceeding where a court has to determine the appropriate quantum of damages, the parties must be permitted to make a submission on that question and have that submission considered by the court – it is impossible to understand why a different approach is taken to determination of an appropriate sentence.
260. Penalties and Sentences Act 1992 (Qld), s 15.
261. CMB [2015] HCA 9, 317 ALR 308, Kiefel, Bell and Keane JJ at [64].
262. Ahmad [2006] NSWCCA 177 at [23].
263. Ahmad [2006] NSWCCA 177 at [23] .
264.  See Miller [2018] ACTCA 21 at [8] (“A position taken by the Crown sets a limit beyond which a sentencing judge should not travel other than in exceptional circumstances”).
265. [2000] NSWCCA 309, 49 NSWLR 383, 115 A Crim R 104 at [42] (Wood CJ at CL, Foster AJA, Grove J, James J agreeing). See also Thomas [2006] NSWCCA 313 at [16].
266. Lee [2016] NSWCCA 146, Basten JA and McCallum J at [23], Davies J dissenting at [57].
267. [2005] HCA 25, 228 CLR 357 at [39].
268. Piscitelli [2013] NSWCCA 8 at [69]. See also Wilken [2013] NSWCCA 304, where Campbell J observed at [48] that “elaborate, complex or detailed” reasons are “more likely to obscure than clarify”.
269. For discussion of the applicable principles regarding an appeal on the basis of a failure to give reasons, see Chapter 7 at [7.25].
270. Duffy [1999] NSWCCA 321 at [11]; Thomson [2000] NSWCCA 309, 49 NSWLR 383 at 394-395 [42]-[44]; JCE [2000] NSWCCA 498, 120 A Crim R 18 at 21 [19]; King [2004] NSWCCA 444, 150 A Crim R 409 at [132]; Thomas [2006] NSWCCA 313 at [16]; Hamieh [2010] NSWCCA 189 at [30]; Kennedy [2008] NSWCCA 21 at [25]-[26]; Firth [2018] NSWCCA 144 at [59].
271. Kennedy [2008] NSWCCA 21 at [25]-[26], citing Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57, 221 ALR 402 at [130]. See also Brown [2006] NSWCCA 144 at [3]; El Masri [2005] NSWCCA 167 at [36]; Tadrosse [2005] NSWCCA 145, 65 NSWLR 740 at [21]; McCarroll [1999] NSWCCA 237 at [14] – [15].
272. It is well established that the reasons for sentence should include some assessment of the objective seriousness of the offending conduct: West [2014] NSWCCA 250 at [27]-[29]. However, there is no obligation to provide elaborate reasoning in the circumstances of a particular case and it is not necessary to make a finding as to where precisely the offence lay in the spectrum of offending: Bland [2014] NSWCCA 82 at [143]; DV [2017] NSWCCA 276 at [220].
273. In Muldrock [2011] HCA 39, 244 CLR 120 at [29], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed that a sentencing court must “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”. The plurality stated that this requirement was imposed by Pt 4 Div 1A of the NSW Act, but it is clear that the same requirement is imposed under the common law.
274. AWKO [2010] NSWCCA 90 at [19].
275. Dunshea [2016] NSWCCA 244 at [29].
276. Thomas [2006] NSWCCA 313 at [16]; Gal [2015] NSWCCA 242 at [29]-[39]. See also Sanchet [2006] NSWCCA 291 at [39]; DBW [2007] NSWCCA 236 at [33]-[37]; Jackson [2011] NSWCCA 124 at [26]; Shine [2016] NSWCCA 149, 260 A Crim R 454 at [71]. See also Bedford v Earle (No 2) [2015] ACTSC 309 at [120]-[121]; Tannous [2017] VSCA 91 at [35] (“[I]t is important that the judge’s reasons include more than an overarching statement that the offender’s mental impairment has been taken into account. The reader should not be left to ask how it has been taken into account. Rather, the judge’s reasons should provide the answer to that question”). If a sentencing court indicates that a particular factor may affect the sentence to be imposed, it is that court’s duty to make plain whether that factor did, in the event, have that effect: Dimozantos (No 2) [1993] HCA 52, 178 CLR 122 at [15].
277. DBW [2007] NSWCCA 236 at [33], [36]; Ha [2008] NSWCCA 141 at [4]; Wong [2018] NSWCCA 263 at [61].
278. Darcy-Shillingsworth [2017] NSWCCA 224, Basten JA at [65]. However, Beech-Jones J stated at [101] that, while he agreed with the general sentiments, he did “not accept that this Court can impose that as a requirement. The task of this Court is to ascertain error. It is not to specify prescriptive guidelines for sentencing judges about how to write judgments”. The other member of the Court, Fagan J, did not say anything about the matter.
279. Lee [2016] NSWCCA 146 at [26]. It was added: “In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied”. See also Ukropina [2016] NSWCCA 277 at [38].
280. Lee [2016] NSWCCA 146 at [26]. For example, there is authority that a court sentencing in respect of a NSW offence that imposes a non-parole period that is greater than 75% of the relevant term should, “for abundant caution and to make clear that it had not been done unintentionally, … give reasons for doing so”: Brennan [2018] NSWCCA 22, Button J at [37], citing Maglovski [2014] NSWCCA 238 at [28]; Barrett [2011] NSWCCA 213 at [29]; Wakefield [2010] NSWCCA 12 at [26].
281. Lee [2016] NSWCCA 146 at [37].
282. Lee [2016] NSWCCA 146 at [34].
283.  AMZ [2013] NSWCCA 6 at [25]; Firth [2018] NSWCCA 144 at [61].
284.  Taylor [2018] NSWCCA 255 at [55].
285.  In Greentree [2018] NSWCCA 227 an argument that a sentencing judge had failed to give proper reasons in applying s 23(2) of the NSW Act and failed properly to consider the factors set out in that provision was rejected. It was pointed out at [55]-[56] that if knowledge of the fact or detail of assistance provided by the offender to the authorities is revealed then the offender or his family may be put at risk and the benefits that the law enforcement authorities might otherwise obtain from that assistance may be undermined or even destroyed, so that “to embark upon a detailed exposition in a sentencing judgment of the factors in s 23(2) may defeat the very purpose of the statutory provision”.
286. See Chapter 3 Principles at [3.155]-[3.163].
287. See Ghazi [2006] NSWCCA 320; Wilken [2013] NSWCCA 304 at [48]. See also Chapter 7 Appeal at [7.26].
288. Cook [2010] NSWCCA 191 at [28].
289. [2010] NSWCCA 189 at [32]. See also GWM [2012] NSWCCA 240 at [58]-[59]; Gray [2013] NSWCCA 169 at [43]; O'Brien [2013] NSWCCA 197 at [32]; Newton [2014] NSWCCA 41 at [41]; Samuel [2017] NSWCCA 239 at [76].
290. Acuthan v Coates (1986) 6 NSWLR 472 at 478-479. See also Green v Webb [2006] WASC 71 at [11]; Dickson [2013] ACTSC 94 at [169]. However, compare Bedford v Earle (No 2) [2015] ACTSC 309 at [120]-[121].
291. In Fedele [2015] NSWCCA 286 the NSW Court of Criminal Appeal held that there was a breach of this requirement and it was “no answer to say, pragmatically, that [the sentence] was wholly concurrent with the sentence for [a] Commonwealth offence and made no difference to the overall outcome” (Hidden J at [41]).
292. [2011] HCA 39, 244 CLR 120 at [29].
293. CJP [2003] NSWCCA 187 at [66], [69].
294. CJP [2003] NSWCCA 187 at [70].
295. Bottin [2005] NSWCCA 254 at [12]; Curtis [2007] NSWCCA 11 at [30]-[31]; Hersi [2010] NSWCCA 57 at [7]; Hamieh [2010] NSWCCA 189 at [29].
296. See Farkas [2014] NSWCCA 141, 243 A Crim R 388 at [25]-[32].
297. ss 16F(2), 19B(2), 20(2), 20AB(2).
298. Hutton [2004] NSWCCA 60 at [18] to [28] per Sully J, Simpson and Sperling JJ agreeing at [75] and [76] respectively. Indeed, such a procedural error does not in itself warrant the grant of leave to appeal: Tu [2011] NSWCCA 31 at [112]. However, in Elshani [2015] NSWCCA 254 it was held at [20] that the failure to comply with s 16F supported a conclusion that the sentencing judge erroneously applied State sentencing procedure rather than Commonwealth sentencing procedure.
299. See s 20AB(5) Cth Act.
300. Achurch [2014] HCA 10, 306 ALR 566 at [17]; Rickard [2007] NSWCCA 332 at [5].
301. Elliott [2007] HCA 51, 234 CLR 38 at [33]; Rickard [2007] NSWCCA 332 at [10].
302. See Achurch [2014] HCA 10, 306 ALR 566 at [14]-[15].
303. Rickard [2007] NSWCCA 332 at [13].
304. See Bailey v Marinoff [1971] HCA 49, 125 CLR 529; Edwards [2012] VSCA 293 at [15], [157]-[161].
305. Edwards [2012] VSCA 293, Warren CJ at [16]. However, it should be noted that Warren CJ was in dissent on the question whether the third qualification meant that the sentencing court in question was functus officio: see Weinberg JA and Williams AJA at [157]-[236].
306. Achurch [2014] HCA 10, 306 ALR 566 at [18]. See, for example, Kelly (No 2) [2017] ACTSC 64 at [29]-[33]. Refshauge J stated at [30] that “the often used test of whether a mistake or omission is accidental is … If attention had been called to [the fact of the mistake or omission] the correction would at once have been made”.
307. A sentence should not be amended, even under the slip rule, without notice to the parties and, except with their express consent, nor otherwise than in open court: Elson v Ayton [2010] ACTSC 70, 241 FLR 178; Kelly (No 2) [2017] ACTSC 64 at [34].
308. Achurch [2014] HCA 10, 306 ALR 566 at [18].
309. Section 43 substantially re-enacts s 24 of the Criminal Procedure Act 1986 (formerly s 19 of that Act: see the Statute Law (Miscellaneous Provisions) Act 1989 (NSW) ).
310. Ho (1995) 37 NSWLR 393 at 403-4; Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [104]; Finnie (No. 2) [2004] NSWCCA 150 at [15]; Meakin [2011] NSWCA 373, 216 A Crim R 128 at [27]; Achurch (No 2) [2013] NSWCCA 117, 234 A Crim R 154 at [60]-[61].
311. [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [27].
312. [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [32]. The reference to an error in respect of the existence of an aggravating factor or a prior conviction should be understood in the context of the words “some precondition for its imposition is not satisfied”. That is, it is a reference to offences where a particular maximum penalty only applies if a specified (aggravating) factor is present. It should not be understood to refer more generally to aggravating factors which do not affect the applicable maximum penalty.
313. A “penalty” includes any necessary part of the sentence imposed and thus includes a “non-parole period”: Petrou (unreported, NSWCCA, 13 February 1990); Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [106].
314. [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [32]. This analysis was made explicit by Gageler J at [41].
315. [2014] HCA 10, 306 ALR 566, French CJ, Crennan, Kiefel and Bell JJ at [32].
316. Petrou (unreported, NSWCCA, 13 February 1990).
317. Denning (unreported, NSWCCA, 15 May 1992).
318. DGP [2010] NSWSC 1408.
319. Tangen (unreported, NSWCCA, 21 June 1996).
320. Ho (1995) 37 NSWLR 393. A sentencing principle would not be relevant in this sense if no issue had been raised in relation to it in the sentencing proceeding: Meakin [2011] NSWCA 373, 216 A Crim R 128 at [80].
321. Meakin [2011] NSWCA 373, 216 A Crim R 128 at [93].
322. Finnie (No. 2) [2004] NSWCCA 150 Howie J (Spigelman CJ and Dunford J agreeing) at [31]; Meakin [2011] NSWCA 373, 216 A Crim R 128 at [63]–[65].
323. Finnie (No. 2) [2004] NSWCCA 150, Howie J (Spigelman CJ and Dunford J agreeing) at [32] (an example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute where such a prior conviction exists).
324. Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA at [153], Palmer J at [186].
325. CS [2014] NSWCCA 229, 245 A Crim R 249 at [21]. However, compare Chen [2015] NSWCCA 277 at [56]-[58].
326. Van Ryn (No 2) [2016] NSWCCA 160 at [16]-[17].
327. See Mundine [2017] NSWCCA 97 at [6], [83], [115].
328. Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [109].
329. Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [109].
330. Erceg v District Court of NSW [2003] NSWCA 379, 143 A Crim R 455, McColl JA (Palmer J agreeing) at [107]. See also Tangen (unreported, NSWCCA, 21 June 1996).
331. In Thompson-Davis [2013] NSWCCA 75, the sentencing judge had commenced the sentence at a future date than the date of sentencing (in breach of s 47 of the NSW Act) and, when correcting that commencement date pursuant to s 43, erred in taking into account the irrelevant consideration of the expiry date of the original sentence (Campbell J at [52]).
332. Bungie [2015] NSWCCA 9 at [40]-[41].
333. Defined in s 19AHA(8) to mean an order imposing, or purporting to impose, a sentence, an order fixing a non parole period, or a recognizance release order.