Division 121 General power to reduce penalties
(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.(2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term.(3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount.(4) The power conferred on a court by this section is not limited by any other provision of this Part.(5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties.
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, or because of the victim’s occupation (such as a 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(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,(k) a plea of guilty by the offender (as provided by section 22),(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),(m) assistance by the offender to law enforcement authorities (as provided by section 23).(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.(5A) Special rules for child sexual offences
In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.(5C) For the purpose of subsection (2) (p), an offence under section 13 (2), 15 (4), 18B (2), 18D (2), 22 (2), 24D (1) or 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999 is taken to have been committed while a child under 16 years of age was a passenger in the offender’s vehicle if the offence was part of a series of events that involved the driving of the vehicle while the child was a passenger in the vehicle.(6) In this section:child sexual offence means:
(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.prescribed traffic offence means an offence under any of the following provisions:
(a) sections 9, 11B (1) and (3), 12 (1), 13 (2), 15 (4), 18B (2), 18D (2), 22 (2), 24D (1) and 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999,(b) sections 51B (1) and 52A (1) (a) and (3) (a) of the Crimes Act 1900,(c) section 52A (2) and (4) of the Crimes Act 1900 in the circumstances of aggravation referred to in section 52A (7) (a), (c) or (d) of that Act.serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.
22 Guilty plea to be taken into account
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:(a) the fact that the offender has pleaded guilty, and(b) when the offender pleaded guilty or indicated an intention to plead guilty, and(c) the circumstances in which the offender indicated an intention to plead guilty,and may accordingly impose a lesser penalty than it would otherwise have imposed.(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
22A Power to reduce penalties for facilitating the administration of justice
(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:(a) (Repealed)(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,(d) the nature and extent of the offender’s assistance or promised assistance,(e) the timeliness of the assistance or undertaking to assist,(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,(j) (Repealed)(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and(b) state the penalty that it would otherwise have imposed, and(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
24 Court to take other matters into account
In sentencing an offender, the court must take into account:(a) any time for which the offender has been held in custody in relation to the offence, and(b) in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community service order, good behaviour bond or intervention program order:(i) the fact that the person has been the subject of such an order or bond, and(ii) anything done by the offender in compliance with the offender’s obligations under the order or bond, and(c) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in, an intervention program or intervention plan under an intervention program order or good behaviour bond, anything done by the offender in compliance with the offender’s obligations under the intervention program order or good behaviour bond, and(d) in the case of an offender who is being sentenced following an order under section 11 (1) (b2):(i) anything done by the offender in compliance with the offender’s obligations under the order, and(ii) any recommendations arising out of the offender’s participation in the intervention program or intervention plan.
24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing
(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender:(a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or(b) has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, or(c) as a consequence of being convicted of the offence, is prohibited under the Commission for Children and Young People Act 1998 from applying for or attempting to obtain child-related employment or from undertaking or remaining in child-related employment, or(d) has or may become the subject of an order under the Crimes (High Risk Offenders) Act 2006 (whether as a high risk sex offender or as a high risk violent offender).(2) This section has effect despite any Act or rule of law to the contrary.
24B Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing
(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation.(2) In this section:confiscation or forfeiture legislation means the following:
(a) the Confiscation of Proceeds of Crime Act 1989,(b) the Criminal Assets Recovery Act 1990,(c) the Proceeds of Crime Act 2002 of the Commonwealth,(d) any other law prescribed by the regulations for the purposes of this definition.
25 Local Court not to impose certain penalties if offender is absent
(1) The Local Court must not make any of the following orders with respect to an absent offender:(a) an order imposing a sentence of imprisonment,(b) an intensive correction order,(c) a home detention order,(d) a community service order,(e) an order that provides for the offender to enter into a good behaviour bond,(f) a non-association order or place restriction order,(g) an intervention program order.(2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court:(a) may issue a warrant for the offender’s arrest, or(b) may authorise an authorised officer to issue a warrant for the offender’s arrest,for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires.(3) This section does not limit the power that any court other than the Local Court may have, apart from this section, to deal with an offender whom it has found guilty or convicted in his or her absence.(4) In this section:absent offender means an offender who is being dealt with in his or her absence.