Sentencing represents one of the most significant exercises of judicial discretion in the criminal justice system. The imposition of a criminal sentence must serve multiple, and sometimes competing, objectives: punishment, deterrence, rehabilitation, denunciation, and the protection of the community. In New South
Wales (NSW), the sentencing process is governed by a statutory framework under the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’), alongside established common law principles. Central to this process is the consideration of aggravating and mitigating factors.
These factors enable courts to assess the offender’s culpability and tailor the sentence accordingly. This article provides an in-depth exploration of how aggravating and mitigating factors operate under the CSPA, the interpretive guidance from the courts, and the contextual and cultural complexities that arise,
particularly in the sentencing of Aboriginal and Torres Strait Islander offenders.
Statutory Framework: Section 21A of the CSPA
The foundation for considering aggravating and mitigating factors in NSW lies in section 21A of the CSPA, introduced to improve consistency and transparency in sentencing. Section 21A provides a list of factors that must be considered in addition to any other matters permitted by law or required by the nature of the offence.
Aggravating factors are set out in s 21A(2), while mitigating factors are listed in s 21A(3). These provisions guide the court in assessing both the objective seriousness of the offence and the subjective circumstances of the offender, consistent with the two-tiered sentencing methodology endorsed in Muldrock v The Queen (2011) 244 CLR, which separates the consideration of the objective seriousness of the offence from the subjective circumstances of the offender. The first step requires the court to evaluate the offence itself, focusing on features such as the degree of violence, use of weapons, the level of harm caused or risked, and whether the offence involved planning or premeditation. This assessment excludes the offender’s personal characteristics and is designed to ensure that the punishment is proportionate to the gravity of the offence.
In the second step, the court turns to the subjective factors relating to the offender. These include matters such as the offender’s age, mental health, criminal history (or lack thereof), expressions of remorse, rehabilitation prospects, and mitigating factors listed under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This step allows the sentence to be individualised and responsive to the personal
circumstances of the offender, without compromising the proportionality requirement identified in Veen v The Queen (No 2) (1988) 164 CLR 465. The methodology is particularly important in standard non-parole period (SNPP) offences, where courts must determine whether the offence is within, below, or above the mid-range of objective seriousness, as discussed in R v Way (2004) 60 NSWLR 168 (Way).
Aggravating Factors
Aggravating factors serve to increase the seriousness of the offending conduct and may justify the imposition of a more severe penalty. These factors must be proved beyond reasonable doubt, as reaffirmed in Way.
Key Statutory Aggravating Factors (s 21A(2))
- Violence or Weapons: Use or threatened use of violence or weapons elevates the seriousness of the offence (s 21A(2)(c)).
2. Vulnerability of Victim: Offending against children, the elderly, or those with disabilities is treated more seriously (s 21A(2)(l)).
3. Position of Trust: Abuse of trust—e.g., by carers, teachers, or employers—is an aggravating factor (s 21A(2)(k)).
4. Domestic Context: Offences committed in the context of domestic violence are aggravating (s 21A(2)(zb)).
5. In the Presence of a Child: Committing an offence in front of a child under 18 can aggravate sentencing (s 21A(2)(ea)).
Planned or Organised Crime: Premeditation or organised criminal activity increases culpability (s 21A(2)(n)).
Mitigating Factors
In contrast, mitigating factors justify leniency by reducing the offender’s culpability. These are considered on the balance of probabilities, as outlined in R v Olbrich (1999) 199 CLR 270 (Olbrich).
In contrast to aggravating circumstances, which must be established beyond reasonable doubt, mitigating factors are assessed on the balance of probabilities. This evidentiary standard reflects the fact that it is the offender who seeks to rely on such factors to justify a reduction in penalty. The High Court in Olbrich made clear that if an offender wishes to assert any matter in mitigation—such as remorse,
rehabilitation efforts, provocation, or mental illness—they bear the onus of proving those facts on the civil standard.
In Olbrich, the accused sought to rely on an explanation given in a statement to customs officers that was inconsistent with the evidence led at trial. The High Court emphasised that if there is any ambiguity or unresolved doubt about the mitigating fact, the court is not obliged to resolve that doubt in favour of the offender. This principle ensures fairness in sentencing by avoiding unsubstantiated claims influencing judicial discretion. Thus, while courts are encouraged to consider all relevant material, they are only permitted to give weight to mitigating matters that are positively established, not merely alleged or inferred without adequate support.
This distinction between the standards of proof for aggravating and mitigating factors is crucial in maintaining the integrity of the sentencing process, particularly where the offender’s version of events is contested or contradicted by other evidence.
Common Statutory Mitigating Factors (s 21A(3))
1.Early Guilty Plea: Pleading guilty early is a key mitigating factor, facilitating court efficiency and sparing victims from reliving trauma (s 21A(3)(k)).
2. Remorse and Rehabilitation: Demonstrating remorse, accepting responsibility, and undertaking counselling or treatment can reduce penalties (s 21A(3)(i)–(j)).
Provocation: If the offender was provoked by the victim, it may reduce moral culpability (s 21A(3)(d)).
Good Character and No Prior Record: A previously clean record or good community standing is a mitigating factor (s 21A(3)(e), (f)).
Limited Damage or Harm: If the injury or loss caused was minor, this may reduce the seriousness of the offence (s 21A(3)(a)).
In Cameron v The Queen (2002) 209 CLR 339 (Cameron), the High Court emphasised that a guilty plea is a legitimate ground for mitigation, especially if entered early in the process. However, the weight given varies depending on the timing and the offender’s motivation.
Interaction Between Factors and Sentencing Discretion
While s 21A outlines specific factors, sentencing is not a mechanical process. Courts are guided by overarching principles such as proportionality. The final sentence must reflect the objective seriousness of the offence and the offender’s moral culpability.
Cultural and Systemic Contexts: Sentencing Aboriginal Offenders
Modern sentencing principles in Australia require courts not only to consider the nature of the offending conduct and the offender’s personal circumstances, but also to recognise the broader social, cultural, and historical contexts that may have influenced an offender’s life. This is particularly important when sentencing Aboriginal and Torres Strait Islander peoples, who remain significantly overrepresented in the criminal justice system.
In Bugmy v The Queen, the High Court affirmed that social deprivation and systemic disadvantage experienced by Aboriginal offenders can be relevant to assessing moral culpability, particularly where those conditions have contributed to substance abuse, cognitive impairment, or offending behaviour. The Court rejected the notion that widespread disadvantage could diminish the significance of such factors in
sentencing, making it clear that each offender’s background must be assessed individually. This position reinforces the idea that entrenched social disadvantage does not become irrelevant simply because it is common among certain populations.
Sentencing Options and Flexibility
Sentencing options in NSW range from non-conviction orders (s 10 dismissals), conditional release orders (CROs), community correction orders (CCOs), to full-time imprisonment. 1 The type of sentence imposed is shaped by the identified aggravating or mitigating features and the overall risk the offender poses to society.
Mitigating factors can support the imposition of non-custodial options, particularly where rehabilitation is realistic, while aggravating features may warrant custodial sentences or intensive correction orders (ICOs).
Aggravating and Mitigating Factors in Practice
As highlighted by Pannu Lawyers, best lawyers in Blacktown in their previous article, each factor must be weighed contextually and cannot be considered in isolation. For example, an offender with a history of trauma may still face prison where the offence is particularly violent, but their background may influence the term and conditions of imprisonment.
Additionally, the onus of proof is distinct: the prosecution must prove aggravating factors beyond reasonable doubt, while the defence bears the burden of establishing mitigating factors on the balance of probabilities.
Conclusion
The application of aggravating and mitigating factors is essential to the sentencing process in New South Wales. These factors enable courts to deliver sentences that are both fair and proportionate, taking into account not only the nature and seriousness of the offence but also the unique circumstances of the offender. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides a structured yet
flexible framework that promotes consistency while preserving judicial discretion.
As illustrated through case law such as Muldrock v The Queen, R v Way, Veen v The Queen (No 2) and Bugmy v The Queen, sentencing remains a nuanced exercise that involves careful balancing of competing considerations. While aggravating factors may call for denunciation and deterrence, mitigating factors can
highlight opportunities for rehabilitation and acknowledge personal hardship, disadvantage, or genuine remorse.
Importantly, sentencing is not a mathematical process, but one grounded in principle and guided by precedent, legislation, and a commitment to justice. Courts must continue to approach each case with sensitivity to cultural and systemic issues, particularly in relation to Aboriginal and Torres Strait Islander offenders. As the law evolves, ongoing reflection and reform will be crucial to ensuring that sentencing
practices in NSW remain equitable, informed, and responsive to the broader social context in which they operate.
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