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SENTENCING CHECKLIST January 2019 Judge Dina Yehia

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SENTENCING CHECKLIST January 2019 Judge Dina Yehia SENTENCING CHECKLIST JUDGE DINA YEHIA SC Last updated January 2019 1 CONTENTS ABORIGINALITY ........................................................................................................ 4 ACCUMULATION AND CONCURRENCY ............................................................... 19 ADDICTION .............................................................................................................. 34 AGGREGATE SENTENCING .................................................................................. 41 ASSISTANCE TO AUTHORITIES ............................................................................ 43 BREACH OF TRUST ................................................................................................ 52 BAIL .......................................................................................................................... 53 CHILD PORNOGRAPHY .......................................................................................... 59 COMMENCEMENT DATE ........................................................................................ 67 COMMONWEALTH OFFENCES ............................................................................. 68 COULD THE MATTER HAVE BEEN DEALT WITH SUMMARILY? ....................... 80 DELAY ...................................................................................................................... 81 DENUNCIATION ....................................................................................................... 83 DEPRIVED BACKGROUND .................................................................................... 84 DOUBLE COUNTING ............................................................................................... 90 DRUGS ..................................................................................................................... 91 EXPERT EVIDENCE .............................................................................................. 105 EXTRA CURIAL PUNISHMENT ............................................................................. 108 FACT FINDING AT SENTENCE ............................................................................ 109 FACT FINDING FOLLOWING A GUILTY VERDICT ............................................. 112 FACT FINDING FOLLOWING A GUILTY PLEA ................................................... 112 FIREARMS ............................................................................................................. 113 FOREIGN NATIONALS .......................................................................................... 114 FORM 1 OFFENCES .............................................................................................. 114 GENERAL DETERRENCE ..................................................................................... 121 GOOD CHARACTER ............................................................................................. 129 GUIDELINE JUDGMENTS ..................................................................................... 133 HISTORICAL SEXUAL ASSAULT OFFENCES .................................................... 144 ILL HEALTH ........................................................................................................... 146 INSTITUTIONALISATION ...................................................................................... 146 INTENSIVE CORRECTION ORDERS .................................................................... 147 INTOXICATION ...................................................................................................... 157 JUDICIAL MEMORY .............................................................................................. 159 MAXIMUM PENALTY / WORST CASE ................................................................. 160 MENTAL ILLNESS / COGNITIVE IMPAIRMENT .................................................. 163 NON-PAROLE PERIOD ......................................................................................... 177 OBJECTIVE SERIOUSNESS ................................................................................. 178 PARITY ................................................................................................................... 183 PLANNING ............................................................................................................. 188 PLEA OF GUILTY .................................................................................................. 190 PRE-SENTENCE CUSTODY ................................................................................. 195 PRIOR CONVICTIONS ........................................................................................... 196 PURPOSES OF SENTENCING .............................................................................. 199 QUASI CUSTODY .................................................................................................. 202 REHABILITATION & INDIVIDUALISED JUSTICE ................................................ 207 REHABILITATION AND FUTURE DANGEROUSNESS ....................................... 214 2 REMORSE .............................................................................................................. 218 ROLE OF THE OFFENDER ................................................................................... 221 SECTION 5 CRIMES (SENTENCING PROCEDURE) ACT ................................... 222 SENTENCING DISCRETION ................................................................................. 223 SENTENCING STATISTICS AND COMPARABLE CASES .................................. 224 SPECIAL CIRCUMSTANCES ................................................................................ 228 SPECIAL HEARING SENTENCE .......................................................................... 234 STANDARD NON-PAROLE PERIODS .................................................................. 235 STATUTORY AGGRAVATING FACTORS ............................................................ 238 STATUTORY MITIGATING FACTORS OF THE OFFENCE ................................. 244 SUSPENDED SENTENCES ................................................................................... 245 TOTALITY ............................................................................................................... 247 VICTIMS .................................................................................................................. 251 VULNERABLE VICTIMS ........................................................................................ 253 VICTIM IMPACT STATEMENTS ............................................................................ 257 YOUTH (INC. CHILDREN) ..................................................................................... 262 3 ABORIGINALITY • Also see Fernando below under DEPRIVED BACKGROUND. • In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at [36]: [36] There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice. • In Munda v Western Australia [2013] HCA 38 French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [53]: [53] Mitigating factors must be given appropriate weight, but they must not be allowed 'to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.' It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. 4 • The reference to the "principle stated by Brennan J" is a reference to what his Honour said in Neal v The Queen (1982) 149 CLR 305 at 326: 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 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. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal. • Similar sentiments were articulated by Wood J in R v Fernando (1992) 76 A Crim R 58 at 63: [63]
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