Pillar 4: Sentencing
Subjective Features: How Personal Circumstances Affect Sentencing
After assessing objective seriousness, the court turns to the offender. Subjective features encompass everything about the person being sentenced that is relevant to the appropriate penalty. Effective presentation of these features is often the difference between custody and a community-based outcome.
The Guilty Plea
Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) mandates that the court take into account a guilty plea. The plea attracts a sentencing discount that reflects its utilitarian value (saving time, resources, and sparing witnesses) and may also evidence remorse.
Discount Guidelines
The timing of the plea is critical. In R v Thomson; R v Houlton (2000) 49 NSWLR 383, the Court of Criminal Appeal established that the earlier the plea, the greater the utilitarian value. Courts must indicate the sentence that would have been imposed without the plea, ensuring transparency.
"A plea of guilty is always a matter to be taken into account in favour of an offender. Its value varies according to the circumstances."
R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [115]
Prior Criminal History
A person's criminal history (or lack thereof) is one of the most significant subjective features. The principles operate differently depending on whether the person has prior convictions or not.
No Prior Record
The absence of prior convictions is a significant mitigating factor under s 21A(3)(e). It establishes:
- Good character generally
- The offence is an aberration
- Reduced need for specific deterrence
- Good prospects of rehabilitation
Prior Convictions
Prior convictions do not automatically increase sentence, but may be relevant to:
- Need for specific deterrence
- Assessment of rehabilitation prospects
- Community protection considerations
- Whether prior leniency was effective
Critically, prior convictions cannot be used to increase objective seriousness, and the court must not impose a sentence disproportionate to the current offence merely because the person has prior history: Veen v The Queen (No 2) (1988) 164 CLR 465.
Remorse and Insight
Genuine remorse is a mitigating factor under s 21A(3)(i). However, courts scrutinise claims of remorse carefully. Effective submissions on remorse are supported by evidence, not mere assertion.
Evidence of Remorse
Mental Health and Cognitive Impairment
Mental illness and cognitive impairment affect sentencing in multiple ways. The principles were comprehensively stated in R v Engert (1995) 84 A Crim R 67:
Reduced Moral Culpability
Where mental illness contributed to the offending, the offender's moral culpability may be reduced. The degree of reduction depends on the causal connection between the condition and the offending behaviour.
General Deterrence
Where mental illness is causally connected to the offending, the weight given to general deterrence is diminished. A person whose offending is driven by mental illness is unlikely to be deterred by the threat of punishment, and others in similar circumstances are similarly unlikely to be deterred.
Hardship of Imprisonment
A person with mental illness may find imprisonment more onerous than a person without such a condition. This additional hardship is a relevant consideration: R v Hemsley [2004] NSWCCA 228.
Section 32 Diversions
Under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a magistrate may divert a person with a mental illness, cognitive impairment, or developmental disability to a treatment plan rather than imposing a criminal sentence.
Special Principles: Bugmy and Fernando
Bugmy Principles
In Bugmy v The Queen (2013) 249 CLR 571, the High Court held that:
- Evidence of childhood deprivation and disadvantage does not diminish in weight with repeated offending
- The effects of profound childhood deprivation do not diminish with the passage of time or the commission of further offences
- These principles apply to all offenders who have experienced such deprivation, not only Aboriginal offenders
Fernando Principles
In R v Fernando (1992) 76 A Crim R 58, Wood J identified principles applicable when sentencing Aboriginal offenders:
- The same sentencing principles apply to all offenders, but the application may produce different results
- Drunkenness in the Aboriginal community is related to social and economic factors including dispossession
- Imprisonment may be particularly harsh for Aboriginal persons from remote communities
- Over-representation of Aboriginal people in custody is a factor courts are entitled to consider
Rehabilitation
Rehabilitation is both a purpose of sentencing (s 3A(d)) and a mitigating factor. Courts assess rehabilitation prospects having regard to the offender's age, criminal history, personal circumstances, and steps already taken to address the causes of offending.
Proactive rehabilitation steps taken before sentencing carry particular weight. Completing a drug and alcohol program, engaging with a psychologist, securing stable employment, or addressing relationship issues all demonstrate genuine commitment to change.
"Where the evidence demonstrates that an offender has good prospects of rehabilitation, and particularly where substantial steps have already been taken, this is a powerful subjective feature."
CORE Defence Lawyers submission framework
Extra-Curial Punishment
Consequences already suffered as a result of the offending may be taken into account as a form of punishment already received. These include:
- Loss of employment or professional standing
- Public exposure and media attention
- Relationship breakdown or family separation
- Physical injury suffered during the commission of the offence
- Immigration consequences (visa cancellation or deportation risk)
- Loss of professional registration or licence
In R v Daetz [2003] NSWCCA 216, the Court of Criminal Appeal confirmed that loss of employment and the consequences of public exposure are legitimate matters to take into account when sentencing.