R v Baxter

[2005] NSWCCA 234

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Aggravating factors
4. › Statutory aggravating factors under s 21A Crimes (Sentencing Procedure) Act 1999 (NSW)
5. › Whether factor that is element of offence may be treated as aggravating
6. › Whether prior criminal record aggravates the offence or is relevant to retribution and deterrence
7. › Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
1. Criminal Law
2. › Sentencing
3. › Discount for plea of guilty
4. › Utilitarian value of plea
5. › Whether sentencing judge adequately addressed discount
6. › Transparency in sentencing process
1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Whether Court should intervene where error found
5. › Whether some other sentence should have been passed
6. › Criminal Appeal Act 1912 (NSW), s 6(3)

Quick Take

A prior criminal record under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not aggravate the offence itself but may deprive the offender of leniency or indicate that more weight should be given to retribution, personal deterrence and the protection of the community. A sentencing judge must not treat as an aggravating factor under s 21A(2) a matter that is an element of the offence charged. However, such errors will not lead to re-sentencing where the Court is not persuaded that a different sentence should have been passed.