Section 21A sentencing factors.

Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is the section that sets out the aggravating and mitigating factors a court takes into account in determining the appropriate sentence for an offence. The section was inserted in 2002. It does not exhaustively determine the sentence; the court applies the section alongside the objective gravity of the offence, the offender's subjective case, and the relevant authorities. The section is, nonetheless, the working framework that every sentencing exercise in the NSW criminal courts moves through. This note sets out the structure of the section, the burdens of proof on each list, and the practical use of the factors in advocacy on sentence.

The structure of section 21A.

Section 21A(1) provides that, in determining the appropriate sentence for an offence, the court is to take into account: (a) the aggravating factors in subsection (2) that are relevant and known to the court; (b) the mitigating factors in subsection (3) that are relevant and known to the court; and (c) any other objective or subjective factor that affects the relative seriousness of the offence. 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.

The structure is therefore: aggravating list (s 21A(2)), mitigating list (s 21A(3)), and a residual category for any other relevant factor. The lists are not exhaustive of the considerations the court takes into account; they are an indicative framework. Both lists capture factors that are recognisable across the bulk of sentencing exercises.

The aggravating list under s 21A(2).

The aggravating factors listed in subsection (2) cover the conduct of the offence, the victim, the offender's history, and the surrounding context. The leading items on the list are these.

• The victim was a police officer, emergency services worker, correctional officer, judicial officer, or other public official acting in the execution of their duty.
• The offence involved actual or threatened use of violence.
• The offence involved the actual or threatened use of a weapon.
• The offender has a record of previous convictions, particularly for offences of a similar kind.
• The offence was committed in company.
• The offence was committed in the home of the victim or another person.
• The offence involved gratuitous cruelty.
• The injury, loss or damage caused was substantial.
• The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged.
• The offence was committed without regard for public safety.
• The offence involved a grave risk of death.
• The victim was vulnerable (because of age, disability, isolation, or by reason of working in an occupation that exposes them to risk).
• The offender abused a position of trust or authority.
• The offence was part of a planned or organised criminal activity.
• The offender was on conditional liberty (bail, parole, a CRO, an ICO, an apprehended violence order) at the time of the offence.

The list captures the recurring features that justify a sentence at the upper end of the available range. Aggravating factors are to be proved by the prosecution beyond reasonable doubt. A factor that is asserted by the prosecution and disputed by the defence is the subject of a disputed-facts hearing in the usual way.

The mitigating list under s 21A(3).

The mitigating factors listed in subsection (3) cover the seriousness of the offence at the lower end, the offender's circumstances, and the conduct of the offender after the offence. The leading items are these.

• The injury, emotional harm, loss or damage caused by the offence was not substantial.
• The offence was not part of a planned or organised criminal activity.
• The offender was provoked by the victim.
• The offender was acting under duress.
• The offender does not have any record of previous convictions, or has a record indicating good character generally.
• The offender is of otherwise good character.
• The offender is unlikely to reoffend.
• The offender has good prospects of rehabilitation, whether by reason of their age or otherwise.
• The offender has shown remorse for the offence, by making reparation or accepting responsibility.
• The offender pleaded guilty (this factor operates alongside the section 25D fixed discount on indictable matters and the common-law discount under R v Thomson and Houlton on summary matters).
• The offender was assisting the authorities in the investigation or prosecution of an offence.

Mitigating factors are to be proved by the defence on the balance of probabilities. The mitigating list is the workhorse list for the defence sentencing brief; each factor that can be supported on the evidence is identified, supported by material, and addressed in the sentencing submissions.

The seriousness analysis.

The section 21A factors operate within the broader seriousness analysis. The court first identifies the objective gravity of the offence (where this offence sits on the spectrum of offences of this kind, on the conduct that occurred and the harm that was caused). The court then applies the aggravating and mitigating factors that bear on the conduct itself (factors that change the objective seriousness, such as the use of a weapon or the vulnerability of the victim). The court then takes into account the offender's subjective case, including the remaining mitigating factors that are personal to the offender (good character, prospects of rehabilitation, remorse).

The intuitive synthesis of all of these inputs produces the head sentence. The non-parole period is then calculated against the head sentence, with the ratio determined by the court on the material. The seriousness analysis is not arithmetic; it is the court's intuitive sentencing exercise informed by the framework.

The limits and the carve-outs.

Section 21A is subject to several limits and carve-outs. The court is not to take into account a factor as aggravating if it is an element of the offence (the use of a weapon in armed robbery is the element; it does not separately aggravate). The court is not to take into account self-induced intoxication as a mitigating factor. In sentencing for a child sexual offence, the offender's good character or lack of previous convictions is not to be taken into account as a mitigating factor where the good character was of assistance to the offender in the commission of the offence.

The double-counting prohibition is the practical limit that matters most in the day-to-day. Where a factor is already reflected in the objective seriousness of the offence (because it is an element or because it is an inherent feature of the offence), the court does not separately aggravate the sentence for that factor. The prohibition is policed by appellate courts; double-counting is one of the recurring grounds of sentence appeal.

What good advocacy on section 21A looks like.

Good defence advocacy on section 21A has three working features.

First, the defence identifies the aggravating factors that are reasonably available on the brief and addresses them in advance. Where the prosecution will assert that the victim was vulnerable, that the offence was committed in company, or that the offender abused a position of trust, the defence does not leave the prosecution to make the running. The defence either accepts the factor (where the brief clearly supports it), contests the factor in the disputed-facts hearing (where the brief does not support it on the criminal standard), or contextualises the factor (where it is available but operates differently from how the prosecution will characterise it).

Second, the defence advances the mitigating factors with documentary support. Good character requires references. Prospects of rehabilitation require evidence of treatment, work, study, family supports. Remorse requires a contemporaneous statement, restitution where possible, and conduct since the offence. The factor that is supported in the brief operates; the factor that is asserted without support does not.

Third, the defence engages with the residual factors under s 21A(1)(c). Many of the matters that move a sentence are not on the lists. The offender's age, the cultural context, the impact of incarceration on dependants, the conditions in custody under restrictive management regimes, post-traumatic considerations, the offender's recovery from addiction or mental illness, are all factors the court can and does take into account.

One last note.

Section 21A is not a checklist; it is a framework. Each factor that bears on the matter is identified, supported, and addressed. The objective seriousness of the offence sets the upper end of the range; the mitigating factors and the subjective case pull the range down; the aggravating factors and the prior history push the range up. The sentencing exercise that produces the best available outcome is the one in which the defence has done the section 21A work and is in a position to address each of the factors the court will consider.

This note is general information about the NSW sentencing framework and is not legal advice for any particular case. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

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