When a sentencing judge takes into account under s 21A of the Crimes (Sentencing Procedure) Act 1999 a factor that is also an element of the offence, the judge must explain how the factor is being used to assess the degree of seriousness of the offence rather than as a bare element. Prior criminal record must not be treated as an aggravating factor under s 21A but as a matter relevant to moral culpability and the objectives of punishment (retribution, deterrence, community protection), consistently with Veen (No 2). However, where the matters could properly have been taken into account through the correct analytical pathway, the error may not warrant appellate intervention if the sentence falls within the applicable range.
The full text is available to signed-in members, including the 6 later cases that cite this judgment.
4 of the 6 citing cases carry a classified treatment. How each court treated it is available to signed-in members.