Published by Geoff Harrison | 4 September 2024
An important issue that used to apply relating to historical child sexual offenders was whether the offender was to be sentenced by sentencing practices and patterns at the time of the offence (see Moon and MJR below) or at the time of the sentence (as per the current legislation: s21B(1) Crimes (Sentencing Procedure) Act 1999. It is now the case that Section 21B applies to proceedings that commenced on or after 18 October 2022: Crimes (Sentencing Procedure) Amendment Act 2022, Sch 1[4], which now requires the court to sentence in accordance with current sentencing practices and patterns to all offences, rather than to child sexual offences only (s21B replaced/expanded upon aspects of s25AA).
The relevant sources, cases and legislation are set out below.
Other Sources:
Cases:
R v Moon [2000] NSWCCA 534 (where sentencing principles at the time of the offence prevailed at [71])
WB v R [2020] NSWCCA 159 (at [63] re emotional harm)
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 21B
Sentencing patterns and practices
(1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing.
(2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing.
(3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if--
(a) the offence is not a child sexual offence, and
(b) the offender establishes that there are exceptional circumstances.
(4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing.
(5) This section does not affect section 19.
(6) In this section--
"child sexual offence" has the same meaning as in section 25AA.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 25AA
Sentencing for child sexual offences
(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).
(5) In this section--
"child sexual offence" means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years--
(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,
(b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,
(c) an offence of attempting to commit any offence referred to in paragraph (a) or (b),
(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c).
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