CRIME — appeal — appeal against sentence — dishonestly causing financial disadvantage by deception — impact of mental conditions on sentencing exercise — material contribution — moral culpability — general deterrence — obligation of the sentencing judge — whether submission in relation to general deterrence made at first instance — reliance on transcript of proceedings to establish error
Quick Take
1Where evidence of an offender's mental conditions forms a substantial part of the case in mitigation, a sentencing judge is required to consider the potential impact of those conditions on the weight to be given to general deterrence; the majority view (Dhanji J) was that this obligation arises even absent a specific submission, though the other members of the Court preferred not to express a concluded view on that broader question.
2The relevance of a mental condition to the moderation of general deterrence is not predicated on establishing that the condition materially contributed to the commission of the offence; material contribution is relevant to moral culpability but the general deterrence inquiry is distinct.
3Reliance on the transcript of sentencing proceedings to establish error in the NSWCCA is generally impermissible, but exceptions exist where there is an allegation of denial of procedural fairness, a challenge to the adequacy of reasons in light of agreed positions, or a factual dispute as to whether a particular submission was made to the sentencing judge.
