Criminal Procedure Scaffold and Sentencing Considerations

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The purposes of sentencing provided under s 3A of the Crimes (Sentencing Procedure) Act 1999

(NSW) are a balance of multiple factors including adequate punishment for the offender ensuring

they are held to account, specific and general deterrence, protection for the community while also

recognising the harm caused to the victim.

IF MULTIPLE OFFENCES :

Given there are multiple offences, I will apply the factors to the individual offences and not approach

the task in a general way as to avoid leading to error. R v Tadrosse

IF NEEDED DURING JUDGEMENT

I note that the aggravating factors set out in s 21A(2) are intended to encompass both subjective and

objective considerations (R v McNaughton (2006)) and not those that are an element of the offence.

Aggravating Factors

21A(2)(a)the victim was a police ofÏcer, emergency services worker, correctional ofÏcer, judicial

ofÏcer, council law enforcement ofÏcer, health worker, teacher, community worker, or other

public ofÏcial, exercising public or community functions and the offence arose because of the

victim’s occupation or voluntary work,

21A(2)(b)the offence involved the actual or threatened use of violence,

– Note NOT if part of the offence !

21A(2)(c)the offence involved the actual or threatened use of a weapon,

The absence of a weapon is not a matter of mitigation: Versluys v R [2008] NSWCCA 76 at [37].

Where the assailant has used his or her hands instead of a weapon it does not follow that the

offence is necessarily less serious than if a weapon was used: Versluys v R at [37].

21A(2)(ca)the offence involved the actual or threatened use of explosives or a chemical or

biological agent,

21A(2)(cb)the offence involved the offender causing the victim to take, inhale or be affected by a

narcotic drug, alcohol or any other intoxicating substance,

21A(2)(d) the offender has a record of previous convictions (particularly if the offender is being

sentenced for a serious personal violence offence and has a record of previous convictions for

serious personal violence offences),

On the facts of the case the offender has prior convictions 21A(2)(d) including

INSERTFACTPRIORCONVICTIONS and these are relevant to the purposes of punishment, the personal

deterrence, rehabilitation and the protection of society. (Veen v The Queen)

In this case the prior offences of INSERTFACT demonstrate that it appears more likely to be an

uncharacteristic aberration

Demonstrate that this offence is a continuation of a long history and atÝtude to disobey the law.

21A(2)(e)the offence was committed in company,

It has no application to an offender who happens to use his wife to assist in his drug

trade: Gore v R at [101].

21A(2)(ea)the offence was committed in the presence of a child under 18 years of age,

21A(2)(eb)the offence was committed in the home of the victim or any other person,

A literal construction therefore includes a home in which the offender is lawfully

present, including one in which the offender resides with the victim: Jonson v R at

[40].

The reason given for the aggravating factor is that an offence involves a violation of

the victim’s reasonable expectation of safety and security in his or her own home: R

v Lulham at [5].

21A(2)(f)the offence involved gratuitous cruelty,

21A(2)(g)the injury, emotional harm, loss or damage caused by the offence was substantial,

Under common law, I am able to consider the injury, emotional harm (Huynh v R [2015]), loss or

damage harm done to the victim Signato v The Queen (1998) when the offender INSERTFACT ,

however I do not have the discretion to find this an aggravating factor given on the facts INSERTFACT

and would be considered substantial emotional harm to the victim. R v Ross [2006]

When the offender chose to INSERTFACT, the consequence of INSERTFACT was objectively intended

OR could have been reasonably foreseen and as such I do find this an aggravating factor. Josefski v R

[2010]

extends to that suffered by the victim’s spouses and dependents: Aslett v R [2006

21A(2)(h)the offence was motivated by hatred for or prejudice against a group of people to which

the offender believed the victim belonged (such as people of a particular religion, racial or ethnic

origin, language, sexual orientation or age, or having a particular disability),

In Aslett v R [2006] NSWCCA 49, at [124], it was held there was no evidence

to establish that the offence was motivated by hatred towards Asian people.

In Holloway v R [2011] NSWCCA 23 at [32] the court accepted that the

assaults were racially motivated.

21A(2)(i)the offence was committed without regard for public safety,

The offence of INSERTFACT arguably includes and takes account of the lack of “regard for public

safety”, 21A(2)(i), however on the facts the act of INSERTFACT by the offender is objectively conduct

that disregarded public safety. Elyard v R [2006] This consideration is not specific to the victim of the

offence but objectively considers the offender had no regard for the possibility of a group of people

being in the vicinity and as such I lean towards including an element of this as an aggravating factor.

(R v Fryar [2008])

(ib)the offence involved a grave risk of death to another person or persons,

The objective circumstance of the grave risk to of death (21A(2)(ib) given the offender INSERTFACT

and the act of INSERTFACT does ameliorate the sentence somewhat, I am inclined to still

acknowledge the aggravation under the risk of death. (Wallace v R ) (set fire and saved victim)

21A(2)(j)the offence was committed while the offender was on conditional liberty in relation to an

offence or alleged offence,

On the facts the offender was on bail 21A(2)(j) and while that offence was withdrawn it is a relevant

factor with regards to the determination of this sentence as the conditions of bail were still an legally

binding arrangement at the time of the offence. (R v Deng [2007])

I note that the conduct of INSERTFACT was similar to the conduct that related to the bond 21A(2)(j)

and as such is objectively leans to a more aggravating factor in this case. (Frigiani v R [2007])

“Breach of bail 21A(2)(j) and being subject to an AVO are two different concepts” and I am permitted

to consider the distinct nature of the aggravating factor here and note that it is not double counting.

(Archer v R [2017])

21A(2)(k)the offender abused a position of trust or authority in relation to the victim,

21A(2)(l)the victim was vulnerable,

Under Mill’s Harm Principle criminal laws and the legal penalties under them are to address a hurtful

act and the circumstances of this case involve a particularly vulnerable victim 21A(2)(l) INSERTFACT

in the class of Very Young Disabled, isolated, occupation taxi driver who need to be especially

protected. R v Tadrosse (2006)

21A(2)(m)the offence involved multiple victims or a series of criminal acts,

21A(2)(n)the offence was part of a planned or organised criminal activity,

21A(2)(o)the offence was committed for financial gain,

21A(2)(p) trafÏc offence with a child under 16 years of age was a passenger in the offender’s

vehicle.

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