Section 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) removes the discretion to decline to set a non-parole period for standard non-parole period offences; a fixed term cannot be imposed. The mitigating effect of the Fernando principles for Aboriginal offenders is significantly diminished where the offender has a long history of serious offending and multiple breaches of parole. The short duration of a sexual assault is not ordinarily a mitigating factor in assessing objective seriousness. A sentencing judge's assessment of where an offence lies on the scale of objective seriousness is a finding of fact reviewable only on House v The King principles.
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