Advanced Criminal Law Notes
Sentencing
Principles of Sentencing
New South Wales Law Reform Commission has identified five key principles of sentencing (Brown
1297):
1. Proportionality – the punishment must fit the seriousness of the crime.
2. Imprisonment as a last resort (see above).
3. Parity – treating like cases alike.
4. Sentencing only for the offence of which they are convicted (the De Simoni principle)
5. Totality – where an offender is serving sentences for several offences – the overall sentence
should be ‘“just and appropriate” to the totality of the offending behaviour’ and thus it is
related to the principle of proportionality. Report [3.29]
Proportionality
The court must impose a sentence that is proportional to the offence committed by the offender
— sentence should never exceed that which can be justified as appropriate or proportionate to
the gravity of the crime considered in light of its objective circumstances — s 3A(a) reflects this
purpose (Veen v The Queen)
Veen No 2 (1988) 164 CLR 465: the antecedent criminal history of an offender is a factor
which may be taken into account in determining the sentence to be imposed, but it cannot
be given such weight as to lead to the imposition of a penalty which is disproportionate to
the gravity of the instant offence.
Imprisonment as a last resort
- s 5: imprisonment as a last resort
- R v Zamagias held that the court must engage in 3 step process:
- 1. first, to determine that no other penalty except imprisonment is appropriate in the
circumstances;
- 2. second, to determine the length of the sentence without consideration what form the
custodial term may take; and
- 3. third, and only then, to decide whether or not the sentence should be full-time detention
or one of the alternatives to full-time detention, ebbing a suspended sentence, an
intensive correction order or home detention
Parity
Parity principle requires that there be parity (or relativity or due proportionality) between the
sentence imposed on co-offenders, such that like conduct is treated as life, and due allowance is
made for difference between the offenders
Lee v R: The party principle is an expression of the concept of equal justice. It requires that
offenders should be treated in a like manner. However, the parity principle also allows for different
sentenced to be imposed upon like offenders to reflect different degrees of culpability and/or
different circumstances.
Sentencing offenders only for the offence of which they are convicted — De Simoni Principles
A court imposing a sentence, is entitled to consider all of the conduct of the accused, including
that which would aggravate the offence, but cannot take into account circumstances of
aggravation which would have warranted a conviction for a more serious offence
- s 21A(4) prohibits a court from taking into account circumstances of aggravation or mitigation if
it would be contrary to any Act or rule of law
Totality
Totality principle applies where a court sentences an offender for multiple offences, or sentences
an offender for a fresh offence or offenders when he or she is already serving a seperate
sentence. It requires the overall sentence that is imposed (after taking into account whether the
individual sentences should be served concurrently, consecutively or, partly concurrently or partly
consecutively, or where an aggregate sentence should be imposed) to be ‘just and appropriate’ to
Page 1 of 35
,the totality of the offending behaviour. Required court to have regard to the effect of the total
length of the sentence for all of the offences, and in doing so, avoiding a ‘crushing’ sentence that
would not accord with an offender’s ‘record and prospects of rehabilitation’
Intuitive synthesis approach
*****Markarian v The Queen [2005] HCA 25: at [51] ‘the method of sentencing by which the judge
identifies all the factors that are relevant to the sentence, discusses their significance and then
makes a value judgment as to what is the appropriate sentence given all the factors of the case.
Only at the end of the process does the judge determine the sentence.
Williscroft [1975] VR 292: deciding the appropriate punishment through ‘subjective judgement’
Barbaro v The Queen [2014] HCA 2: affirmed that sentencing is not a mathematical exercise
(plurality)- Sentencing an offender is not, and cannot be undertaken as, some exercise in addition
or subtraction. A sentencing judge must reach a single sentence for each offence and must do so
by balancing many different and conflicting features. The sentencing cannot, and should not, be
broken down into some set of component parts. As the plurality said in Wong v The Queen, “[s]o
long as a sentencing judge must, or may, take account of all of the circumstances of the offence
and the offender, to single out some of those considerations and attribute specific numerical or
proportionate value to some features, distorts the already difficult balancing exercise which the
judge must perform”
Sentencing Aboriginal People - Individualised Justice
Fernando Principle
R v Fernando (1992) 76 A Crim R 58 [at 62-3] relevant principles in sentencing Aboriginal offender
as follows:
A) The same sentencing principles are to be applied in every case irrespective of the identity of a
particular offender or his membership of an ethnic or other group but that does not mean that
the sentencing courts should ignore those facts which exist only be reason of membership of
such group
B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but
rather to explain or throw light on the particular offence and the circumstances of the offender.
C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to
a very significant degree go hand in hand with Aboriginal communities are very real ones and
their cure requires more subtle remedies than the criminal law can provide by way of
imprisonment.
D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition
of significant terms of imprisonment provides any effective deterrent one other discouraging
the use of alcohol by members of the Aboriginal society or their resort to violence when
heavily affected by it, the courts must be very careful in their pursuit of their sentencing
policies to not deprive Aboriginals of the protection which it is assumed punishment provides.
In short, a belief cannot be allowed to go about that serious violence by drunken persons
within their society are treated by the law as occurrences of little moment.
E) While drunkenness is not normally an excuse or a mitigating factor, where the abuse of alcohol
by the person standing for sentence reflects the socio-economic circumstances and
environment in which the offender has grown up, that can and should be taken into account
as a mitigating factor. This involves the realistic recognition by the court of the endemic
presence of alcohol within Aboriginal communities, and the grave social difficulties faced by
those communities where poor self-image, absence of education and work opportunity and
other demoralising factors have placed heavy stresses on them, reinforcing their resort to
alcohol and compounding its worst effects.
F) That is sentencing persons of Aboriginal descent the court must avoid any hint of racism,
paternalism or collective guilt yet must nevertheless assess realistically the objective
seriousness of the crime within its local setting and by reference to the particular subjective
circumstances of the offender.
G) That in sentencing an Aboriginal person who has come from a deprived background or is
otherwise disadvantaged by reason of social or economic factors or who has little experience
of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh
when served in an environment which is foreign to him and which is dominated by inmates
Page 2 of 35
, and prison officers of European background with little understanding of his culture and society
or his own personality.
H) That is every sentencing exercise, whilst it is important to ensure that the punishment fits the
crime and not to lose sight of the objective seriousness of the offence in the midst of what
might otherwise be attractive subjective circumstances, full weight must be given to the
competing public interest to rehabilitation of the offender and the avoidance of recidivism.
- An offender submitting that the Fernando principles apply in a particular case must establish
the disadvantage that he or she has suffered as a result of his or her aboriginality.
Bugmy v The Queen [2013] HCA 27
- In NSW there is no warrant, in sentencing Aboriginal offenders, to apply a method of analysis
different from the which applies in sentencing.
- Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people
when sentencing an aboriginal offender — this would cease the concept of individualised
justice
- ‘Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the
recognition, in sentencing decisions, of social disadvantage that frequently (no matter the
ethnicity of the offender) precedes the commission of the crime’
- Held that where an offender’s absue of alcohol is reflection of the environment in which he or
she was raised it should be taken into account as a mitigating factor
Neal v The Queen (1982) 149 CLR 305
‘The same sentencing principles are to be applied, of course, in every case, irrespective of the
identity of a particular offender or his membership of an ethnic or other group. But in imposing
sentences courts are bound to take into account, in accordance with those principles, all material
facts including those facts which exist only by reason of the offender’s membership of an ethnic
or other group. So much is essential to the even administration of criminal justice’ at [13]
Two Stage Approach
Veen (No 1) (1979) 143 CLR 485: The method by which a judge first determines a sentence by
reference to the ‘objective circumstances of the case. This is the first tier of process. The judge
then increases or reduces this hypothetical sentence incrementally or decremental by reference to
other factors, usually but not always, personal to the accused. This is the second tier. (Markarian
(2006) 226 CLR 357 at 378
Purposes
Porter (1933) 55 CLR 182 (TB 882): The purpose of the law in punishing people is to prevent
others from committing a like crime or crimes. Its prime purpose is to deter people from
committing offences. It may be that there is an element of retribution in the criminal law, so that
when people have committed offences the law considers that they merit punishment, but its
prime purpose is to preserve society the depredations of dangerous and vicious people.
Veen No 2 (1988) 164 CLR 465: However, sentencing is not a purely logical exercise, and the
troublesome nature of the sentencing discretion arises in large measure from unavoidable
difficulty in giving weight to each of the purposes of punishment. The purposes of criminal
punishment are various: protection of society, deterrence of the offender and of others who might
be tempted to offend, retribution and reform. The purposes overlap and none of them can be
considered in isolation from the others when determining what is an appropriate sentence in a
particular case. They are guideposts to the appropriate sentence but sometimes they point in
different directions.
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
Page 3 of 35
, (f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
21A Aggravating, mitigating and other factors in sentencing
(1) General In determining the appropriate sentence for an offence, the court is to take into account the
following matters—
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or
permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate
sentence for an offence are as follows—
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer,
council law enforcement officer, health worker, teacher, community worker, or other public official,
exercising public or community functions and the offence arose because of the victim’s occupation or
voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(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,
(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),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(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),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National
Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or
alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a
disability, because of the geographical isolation of the victim or because of the victim’s occupation
(such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other
public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain,
(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed
while a child under 16 years of age was a passenger in the offender’s vehicle.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of
the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate
sentence for an offence are as follows—
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or
otherwise,
(i) the remorse shown by the offender for the offence, but only if—
(i) the offender has provided evidence that he or she has accepted responsibility for his or her
actions, and
Page 4 of 35
Sentencing
Principles of Sentencing
New South Wales Law Reform Commission has identified five key principles of sentencing (Brown
1297):
1. Proportionality – the punishment must fit the seriousness of the crime.
2. Imprisonment as a last resort (see above).
3. Parity – treating like cases alike.
4. Sentencing only for the offence of which they are convicted (the De Simoni principle)
5. Totality – where an offender is serving sentences for several offences – the overall sentence
should be ‘“just and appropriate” to the totality of the offending behaviour’ and thus it is
related to the principle of proportionality. Report [3.29]
Proportionality
The court must impose a sentence that is proportional to the offence committed by the offender
— sentence should never exceed that which can be justified as appropriate or proportionate to
the gravity of the crime considered in light of its objective circumstances — s 3A(a) reflects this
purpose (Veen v The Queen)
Veen No 2 (1988) 164 CLR 465: the antecedent criminal history of an offender is a factor
which may be taken into account in determining the sentence to be imposed, but it cannot
be given such weight as to lead to the imposition of a penalty which is disproportionate to
the gravity of the instant offence.
Imprisonment as a last resort
- s 5: imprisonment as a last resort
- R v Zamagias held that the court must engage in 3 step process:
- 1. first, to determine that no other penalty except imprisonment is appropriate in the
circumstances;
- 2. second, to determine the length of the sentence without consideration what form the
custodial term may take; and
- 3. third, and only then, to decide whether or not the sentence should be full-time detention
or one of the alternatives to full-time detention, ebbing a suspended sentence, an
intensive correction order or home detention
Parity
Parity principle requires that there be parity (or relativity or due proportionality) between the
sentence imposed on co-offenders, such that like conduct is treated as life, and due allowance is
made for difference between the offenders
Lee v R: The party principle is an expression of the concept of equal justice. It requires that
offenders should be treated in a like manner. However, the parity principle also allows for different
sentenced to be imposed upon like offenders to reflect different degrees of culpability and/or
different circumstances.
Sentencing offenders only for the offence of which they are convicted — De Simoni Principles
A court imposing a sentence, is entitled to consider all of the conduct of the accused, including
that which would aggravate the offence, but cannot take into account circumstances of
aggravation which would have warranted a conviction for a more serious offence
- s 21A(4) prohibits a court from taking into account circumstances of aggravation or mitigation if
it would be contrary to any Act or rule of law
Totality
Totality principle applies where a court sentences an offender for multiple offences, or sentences
an offender for a fresh offence or offenders when he or she is already serving a seperate
sentence. It requires the overall sentence that is imposed (after taking into account whether the
individual sentences should be served concurrently, consecutively or, partly concurrently or partly
consecutively, or where an aggregate sentence should be imposed) to be ‘just and appropriate’ to
Page 1 of 35
,the totality of the offending behaviour. Required court to have regard to the effect of the total
length of the sentence for all of the offences, and in doing so, avoiding a ‘crushing’ sentence that
would not accord with an offender’s ‘record and prospects of rehabilitation’
Intuitive synthesis approach
*****Markarian v The Queen [2005] HCA 25: at [51] ‘the method of sentencing by which the judge
identifies all the factors that are relevant to the sentence, discusses their significance and then
makes a value judgment as to what is the appropriate sentence given all the factors of the case.
Only at the end of the process does the judge determine the sentence.
Williscroft [1975] VR 292: deciding the appropriate punishment through ‘subjective judgement’
Barbaro v The Queen [2014] HCA 2: affirmed that sentencing is not a mathematical exercise
(plurality)- Sentencing an offender is not, and cannot be undertaken as, some exercise in addition
or subtraction. A sentencing judge must reach a single sentence for each offence and must do so
by balancing many different and conflicting features. The sentencing cannot, and should not, be
broken down into some set of component parts. As the plurality said in Wong v The Queen, “[s]o
long as a sentencing judge must, or may, take account of all of the circumstances of the offence
and the offender, to single out some of those considerations and attribute specific numerical or
proportionate value to some features, distorts the already difficult balancing exercise which the
judge must perform”
Sentencing Aboriginal People - Individualised Justice
Fernando Principle
R v Fernando (1992) 76 A Crim R 58 [at 62-3] relevant principles in sentencing Aboriginal offender
as follows:
A) The same sentencing principles are to be applied in every case irrespective of the identity of a
particular offender or his membership of an ethnic or other group but that does not mean that
the sentencing courts should ignore those facts which exist only be reason of membership of
such group
B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but
rather to explain or throw light on the particular offence and the circumstances of the offender.
C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to
a very significant degree go hand in hand with Aboriginal communities are very real ones and
their cure requires more subtle remedies than the criminal law can provide by way of
imprisonment.
D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition
of significant terms of imprisonment provides any effective deterrent one other discouraging
the use of alcohol by members of the Aboriginal society or their resort to violence when
heavily affected by it, the courts must be very careful in their pursuit of their sentencing
policies to not deprive Aboriginals of the protection which it is assumed punishment provides.
In short, a belief cannot be allowed to go about that serious violence by drunken persons
within their society are treated by the law as occurrences of little moment.
E) While drunkenness is not normally an excuse or a mitigating factor, where the abuse of alcohol
by the person standing for sentence reflects the socio-economic circumstances and
environment in which the offender has grown up, that can and should be taken into account
as a mitigating factor. This involves the realistic recognition by the court of the endemic
presence of alcohol within Aboriginal communities, and the grave social difficulties faced by
those communities where poor self-image, absence of education and work opportunity and
other demoralising factors have placed heavy stresses on them, reinforcing their resort to
alcohol and compounding its worst effects.
F) That is sentencing persons of Aboriginal descent the court must avoid any hint of racism,
paternalism or collective guilt yet must nevertheless assess realistically the objective
seriousness of the crime within its local setting and by reference to the particular subjective
circumstances of the offender.
G) That in sentencing an Aboriginal person who has come from a deprived background or is
otherwise disadvantaged by reason of social or economic factors or who has little experience
of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh
when served in an environment which is foreign to him and which is dominated by inmates
Page 2 of 35
, and prison officers of European background with little understanding of his culture and society
or his own personality.
H) That is every sentencing exercise, whilst it is important to ensure that the punishment fits the
crime and not to lose sight of the objective seriousness of the offence in the midst of what
might otherwise be attractive subjective circumstances, full weight must be given to the
competing public interest to rehabilitation of the offender and the avoidance of recidivism.
- An offender submitting that the Fernando principles apply in a particular case must establish
the disadvantage that he or she has suffered as a result of his or her aboriginality.
Bugmy v The Queen [2013] HCA 27
- In NSW there is no warrant, in sentencing Aboriginal offenders, to apply a method of analysis
different from the which applies in sentencing.
- Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people
when sentencing an aboriginal offender — this would cease the concept of individualised
justice
- ‘Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the
recognition, in sentencing decisions, of social disadvantage that frequently (no matter the
ethnicity of the offender) precedes the commission of the crime’
- Held that where an offender’s absue of alcohol is reflection of the environment in which he or
she was raised it should be taken into account as a mitigating factor
Neal v The Queen (1982) 149 CLR 305
‘The same sentencing principles are to be applied, of course, in every case, irrespective of the
identity of a particular offender or his membership of an ethnic or other group. But in imposing
sentences courts are bound to take into account, in accordance with those principles, all material
facts including those facts which exist only by reason of the offender’s membership of an ethnic
or other group. So much is essential to the even administration of criminal justice’ at [13]
Two Stage Approach
Veen (No 1) (1979) 143 CLR 485: The method by which a judge first determines a sentence by
reference to the ‘objective circumstances of the case. This is the first tier of process. The judge
then increases or reduces this hypothetical sentence incrementally or decremental by reference to
other factors, usually but not always, personal to the accused. This is the second tier. (Markarian
(2006) 226 CLR 357 at 378
Purposes
Porter (1933) 55 CLR 182 (TB 882): The purpose of the law in punishing people is to prevent
others from committing a like crime or crimes. Its prime purpose is to deter people from
committing offences. It may be that there is an element of retribution in the criminal law, so that
when people have committed offences the law considers that they merit punishment, but its
prime purpose is to preserve society the depredations of dangerous and vicious people.
Veen No 2 (1988) 164 CLR 465: However, sentencing is not a purely logical exercise, and the
troublesome nature of the sentencing discretion arises in large measure from unavoidable
difficulty in giving weight to each of the purposes of punishment. The purposes of criminal
punishment are various: protection of society, deterrence of the offender and of others who might
be tempted to offend, retribution and reform. The purposes overlap and none of them can be
considered in isolation from the others when determining what is an appropriate sentence in a
particular case. They are guideposts to the appropriate sentence but sometimes they point in
different directions.
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
Page 3 of 35
, (f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
21A Aggravating, mitigating and other factors in sentencing
(1) General In determining the appropriate sentence for an offence, the court is to take into account the
following matters—
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or
permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate
sentence for an offence are as follows—
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer,
council law enforcement officer, health worker, teacher, community worker, or other public official,
exercising public or community functions and the offence arose because of the victim’s occupation or
voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(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,
(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),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(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),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National
Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or
alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a
disability, because of the geographical isolation of the victim or because of the victim’s occupation
(such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other
public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain,
(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed
while a child under 16 years of age was a passenger in the offender’s vehicle.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of
the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate
sentence for an offence are as follows—
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or
otherwise,
(i) the remorse shown by the offender for the offence, but only if—
(i) the offender has provided evidence that he or she has accepted responsibility for his or her
actions, and
Page 4 of 35
