Prior convictions cannot be used to set the upper boundary of a proportionate sentence — they are not part of the objective circumstances of the offence. However, prior convictions remain relevant within the boundary set by objective circumstances to justify greater weight to retribution, personal deterrence and protection of the community. Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be interpreted consistently with this proportionality principle; the list of aggravating factors in s 21A(2) encompasses both subjective and objective considerations. R v Ponfield is no longer to be followed insofar as it treated prior convictions as enhancing the objective seriousness of the offence.
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