SENTENCING - LAWS4314

Week 5

Aggravating Factors

Associate Professor Anthony Hopkins

ANU Law School
anthony.hopkins@anu.edu.au 1
Acknowledgement of Country
Seminar Outline

Purpose of today:
• To help you identify aggravating and mitigating factors and consider their
application
1. Questions about the Submission Assessment
2. List of Authorities Example
3. Bugmy and facts bearing upon competing sentencing purposes
4. Breakout Group: Identifying Aggravating and Mitigating factors in your brief.
5. Report Back: connecting aggravating and mitigating factors with purposes

Break

6. Aggravating Factors: Prior Convictions

7. Aggravating Factors: injury, loss, damage and harm
8. Aggravating Factors: degree of planning
9. Aggravating Factors: breach of trust
10. Aggravating Factors: motive
11. Aggravating Factors: offence prevalence
12. Aggravating and Mitigating Factors and Instinctive Synthesis
Submission Assessment Questions
Bugmy and facts bearing upon competing sentencing purposes

How could a fact or circumstance be both aggravating and mitigating? see

Bugmy v The Queen [2013] HCA 37 [44]-[45]

[44] Because the effects of profound childhood deprivation do not diminish with the
passage of time and repeated offending, it is right to speak of giving "full weight" to an
offender's deprived background in every sentencing decision. However, this is not to
suggest, as the appellant's submissions were apt to do, that an offender's deprived
background has the same (mitigatory) relevance for all of the purposes of punishment.
Giving weight to the conflicting purposes of punishment is what makes the exercise of the
discretion so difficult[66]. An offender's childhood exposure to extreme violence and
alcohol abuse may explain the offender's recourse to violence when frustrated such that
the offender's moral culpability for the inability to control that impulse may be
substantially reduced. However, the inability to control the violent response to frustration
may increase the importance of protecting the community from the offender.
Breakout Group: Identifying Aggravating and Mitigating Factors

Step 1: Choose a group that corresponds with your chosen brief:

Odd numbers = Beth Lalor

Even numbers = Edward Strand

If you join a group with more than 4 people then please leave the group and
join another

Step 2: Appoint a spokesperson to report back

Step 3: With the aid of Crimes (Sentencing) Act 2005 s 33 identify all of the
sentencing considerations applicable to your brief, deciding whether, in the context
of your brief, they are (1) aggravating (2) mitigating (3) both/unsure

Hint: It is important for you to consider how the existence of a particular

consideration/factual circumstance links the sentencing purposes in s 7.

Step 4: Did your group identify any considerations that were not contained in s 33.
Report Back: Aggravating and Mitigating Factors: R v Strand

Aggravating Both/Unsure Mitigating

Gambling Has a dependant,
- Course of conduct (i) degree of responsibility seeking help for addiction,
- personal circumstances of victim known (m) cultural background, physical mental Remorse
- impact on victim – health Gambling
- breach of trust (n) financial standing (j) guilty plea
- Gambling (v) (w) reasons, (k)(l) assistance to authority
- Course of conduct, degree of planning, remorse (o) family
damage caused by offence etc (t) seeking treatment
- Aggravating remorse
- (a) nature of offence
- (c) course of conduct
- (d) knowledge of circumstances
- (e) damage caused
- (u) position of trust

  Warning: The considerations and categorisation of

  considerations are those suggested by students during the
seminar. The lists (and categorisation) is not complete or
approved by the convenor. Still you may find them helpful in
thinking about sentencing considerations that arise on your
brief.
Report Back: Aggravating and Mitigating Factors: R v Lawlor

Aggravating Both/Unsure Mitigating

 (1)(a)- circumstances of offence; Mitigating
(1)(c) injury or loss; o Age – she is still young and
(1)(f) -effect on victim chance of rehabilitation is more likely to
succeed (Pattern of behaviour is not as
History of offending established)
o Broke bail conditions – implies o Background of social
she does not respect the law disadvantage
o Giving up on rehabilitation – o Intergenerational trauma from
means it may be less likely to succeed the colonialism from statement of elder
second time o Early indicators of a chance of
o Impacts on victims was rehabilitation (Art programs, Statement
significant (psychologically) from elder)
o Initially pleaded not guilty o Attitude to offences – expressed
o May not have a safe residence to remorse
return to if she is released into o Addiction – strict sentencing isn’t
community be best way to mediate a medical
condition (The reason she broke bail was
(a) Nature of offence for addiction reasons)
(b) Other offences
(c) Course of conduct - Early guilty plea
(d) Injury, loss, damage - Remorse and responsibility
(e) Effect of offence on victim - Assistance to authorities with
admissions
- Lack of planning (took place
during daytime, same street (less scary
  for victims))
- Long-term emotional trauma
(sexual abuse from family, lack of family
Warning: The considerations and categorisation of support)
considerations are those suggested by students during - Introduced to drugs while young
- Engagement in rehabilitation
the seminar. The lists (and categorisation) is not and 'yarn-circles' since.
complete or approved by the convenor. Still you may - Expressed desire to reform
find them helpful in thinking about sentencing - Young and reasonable
possibility of rehabilitation
considerations that arise on your brief. - Rehab better to address source of
Take a Break
Aggravating Factors: Injury, Loss, Damage and Harm

1. Look at s 33(1)(e) and (f). Is injury, loss,

damage and harm to the victim and others
limited by what was intended, foreseen or could
reasonably have been foreseen: See Josefski v The
Queen [2010] NSWCCA 41 (Text pp 298-302).

2. Is there any harm or consequence in your case

that could not reasonably have been foreseen?
Aggravating Factors: Prior Convictions

1. Can you find prior criminal history in s 33(1)?

2. How are prior convictions taken into account?

(Text p286-291)

3. In your sentencing submission, do you have to

refer to any of these cases?

4. How do you think the existence or non-existence

of prior conditions impacts your case?
Aggravating Factors: Degree of Planning/Premeditation

1. Can you find degree of planning in s 33(1)?

2. How is degree of planning taken into account?

(Text 307- 308)

3. Is this an issue in your case? How?

4. What sort of language could you use to highlight

this issue in your submission?
Aggravating Factors: Breach of Trust

1. Look at s 33(1)(u). How is breach of trust taken into account? (Text

312-316) Focus on what if anything the text says about
circumstances in which an employee misappropriates property.
Aggravating Factors: Motive

1. Look at s 33(1)(v). How is motive taken into account? (Text 316-

320) How is motive relevant in your case? How does it bear upon
any of the sentencing purposes?
Aggravating Factors: Prevalence

1. Can you find offence prevalence in s 33(1)? How is the prevalence

of the offence taken into account? (Text 333 - skim 320-338) Is
offence prevalence an issue in your case?
Aggravating and Mitigating Factors and Instinctive Synthesis

Do you actually have to refer to a fact as ‘aggravating’ or ‘mitigating’?

Why might you do so? If you don’t, does this give you more scope to
simply identify relevant facts without getting caught up in their
categorisation?
Thank you for listening and
engaging