Aggravating and Mitigating Factors in NSW Criminal Sentencing Procedure

The Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), section 21A, lists out the aggravating and mitigating factors that a judge or magistrate could take into account before delivering their final judgment to the defendant in NSW criminal cases.

The Prosecutor will often apply Section 21A(2) to pursuade the judge or magistrate to deliver a heavier sentence to the defendant. On the other hand, the Defence (lawyer representing the defendant) will often apply section 21A(3) of the Act to persuade the judge or magistrate to impose a more lenient sentence on the defendant.

Aggravating Factors

In NSW, the aggravating factors that a judge or magistrate can take into account before delivering their final judgment are listed in Section 21A(2) of the Act.

Some of the aggravating factors listed in Section 21A(2) of the Act include:

• the offence involved the actual or threatened use of violence or weapon or explosives;
• the defendant has a record of previous convictions;
• the offence involved gratuitous cruelty;
• the injury suffered by the victim was substantial; and
• the offence was part of a planned or organised criminal activity.

Mitigating Factors

In NSW, the mitigating factors that a judge or magistrate can take into account before delivering their final judgment are listed in Section 21A(3) of the Act.

Some of the mitigating factors listed in Section 21A(3) of the Act include:

• the injury suffered by the victim was not substantial;
• the defendant was under duress when carrying out the offence;
• the defendant was a first time offender;
• the defendant improved significantly during and after rehabilitation;
• there are evidence to prove that the defendant has shown remorse for the offence; and
• the defendant has entered into a plea guilty.

Issues with Section 21A of the Act

According to an article by The Sydney Morning Herald, there are difficulties in applying the factors stated in Section 21A of the Act.

One of the issues is that there is no clear distinction between aggravating and mitigating factors. There is an overlap between aggravating and mitigating factors. Some mitigating factors can be considered as aggravating factors and vice versa. This is a challenge for judges or magistrates when delivering the appropriate judgment for the defendant.

The report by the NSW Law Reform Commission (delivered in mid 2013) states that the distinction between mitigating and aggravating factors was "too simplistic and sometimes unhelpful". As stated in Wong v the Queen [2001] HCA 64, labelling circumstances as mitigating or aggravating could lead to automatic consequences for the defendant, which means justice is not being served.

Lately, as also stated in the report by the NSW Law Reform Commission, there have been numerous occasions where courts have double counted the aggravating factors in a case and led the judge or magistrate to impose a higher maximum penalty onto the defendant in error.

Reform to Section 21A of the Act

According to an article by The Sydney Morning Herald, one of the reforms recommended by the NSW Law Reform Commission is to reduce the 22 aggravating factors and 13 mitigating factors currently listed in Section 21A of the Act to six general factors. According to the report, this reform will discourage judges or magistrates to approach the factors currently stated in Section 21A of the Act as a "checklist".

The six general factors  recommended by the NSW Law Reform Commission include:

• the nature, circumstances and seriousness of the offence;
• the personal circumstances and vulnerability of the victim;
• the extent of any injury, emotional harm, loss or damage derived from the offence;
• the defendant’s character, general background, offending history, age, and physical and mental condition;
• the extent of the defendant’s remorse for the offence; and
• the defendant's progress of rehabilitation. 

The factors listed in Section 21A of the Act have advantages and disadvantages. However, at the moment, the disadvantages prevail over the advantages as courts experience difficulty in applying the factors listed in Section 21A of the Act consistently. One of the challenges is to differentiate the mitigating and aggravating factors in a  case. Therefore, it is good to see that reform has been carried out to improve the current difficulties. Hopefully, the recommendations made by the NSW Law Reform Commission will be implemented in the future.

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Crimes (Sentencing Procedure) Act 1999 (NSW) as reported in the TimeBase LawOne Service

NSW sentencing laws to be simplified (The Sydney Morning Herald)

Report 139: Sentencing (NSW Law Reform Commission)