Common Law Aggravating Factors (Breach of Trust (Business relationships…
Common Law Aggravating Factors
Aggravating sentencing factors different to aggravating offence factors
R v Tadrosse - court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged.
Problems with Idenitifying agravating factors
Elyard v R - identity the circumstances which place the offence towards the upper or lower ends of a range of moral culpability
It is an appealable error to take into account the features of an offence as an aggravating factor for sentencing purposes - court must bear in mind the prohibition against taking into account as a matter of agravation that which is an element to the offence charged - R v Tadrosse
Common Law Aggravating Factors
Veen v The Queen - the antecent criminal criminal history of an offender is a factor which may be taken into account in determining the sentence impoed but it cannot be given such wieght as to lead the imposition of a penalty that is disproportionate tot the gravity of the instant offence.
DPP v Broadby - chinese students had bas stolen, subsequent offence young singoporean student assault - the sentencer is not precluded from taking into account in an appropriate was and for appropirate purposs and offence in respect of whiich there has been a conviction between the time of the offence charged and the time of sentence whether that offence was beofre or after the offence charged.
R v McInerney - so far as subsequent offences are concerned, they cannot justify the court in imposing a higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defencdant would be misplaced.
The cardinal rule is that while the good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it.
can affect in 2 ways - diminish or abrogate any leniency by reason of good character and lead to a greater sentence than otherwise be imposed to deter personally or to protect the public from the risk they will commit further crime.
Injuries caused to victim
Vic - very broad view. Forseeability of injuries is irrelevant .
Sentencing Act (Vic) 1991 sentencing courts consider the impact of offences upon the victim - that is ss5(2)(daa)and S5(2)(db) has dispaced CL reasonably forseeability matters required to be considered byt he sentencing court
(da) the personal circumstances of any victim of the offence; and
(db) any injury , loss or damage resulting firectly from the offence
R v Boxtel - victim punched in the head - ended up quadiparesis - it seems to us of great iprtance not to allow the effects of unintended catastrophe to swamp all other considerations, particulary in fixing the non-parole period so as to cause an imbalance between all the factors which ought to be properly given their proper wieght.
R v Johnston - the need to satisfy public feeling and calm public outrage is not to be ignored, but courts must garud against permiting the course of justice to be distorted by the influence of attidtudes which are based on emotion rather than reason.
Substantial damage to property
Type of victim
Wakely v Police
To confront and attempt to steal from an elderly couple during the day in a shopping mall is a serious matter. The appellants conduct represetned a serious invasion of the rights of elderly people to feel safe in public places. The fact that the assualts gave rise to physical and emotional injuries is a matter of aggravation.
R v McHarg
Pizza delivery men were vulnerable to to robberies because they are alone carry cash and attend private homes and offences against them are often planned.
Crimes agains women
Crimes against children
Crimes against judicial officers
DPP v Arvanitidis - drug affected did not increase sentence as he could not forsee how he would react to emergency workers
R v McCormack I would readily conclude that ambulance officers, who are attacked when carrying out their duty of attending the wounded, are also to be protected byt eh courts byt the imposition of sentences that operate as a general deterrant.
Degree of Planning - where an offence is difficult to detect it will warrant higher general deterrance and therefore be aggravating.
Drug trafficking, white collar offences, insurance fraud, revenue offences, social security fraud
Offences commited while on bail - aggravating becuase the offender has breached a promise to the court who has granted bail that he or she would remain offence free on bail.
Offences committed on parole - early release from prison on the promise of good behaviour
Koumis v The Queen - in the circumstances before us the totality principle requires the court to have regard to all sentences whch the prisoner is now undergoing. Th principle requires he court to evaluate the overall criminality involved in all the offences or which the prisoner is undergoing sentence and to ensure the appropriate relativity between the totality of the criminality and the totality of the effective sentences imposed including circumstances whereby the sentence currently being served derives from breach of parole.
Sentencing 16B Sentencing Act 1991 - Every term of imprisoonment simposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existnace of exceptiional circumstances, be served cumulatively on any period of imprisoonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
R v Basso & Frazzetto the reasons for regarding the commission of an offence whilst on bail is aggravating and so serious are common sences, the person has been granted conditional liberty pendiing tiral and the community must be protected from them committing further crimes.
Breach of Trust
Parents of Child
Positions of care and
R v Lappas - selling state secrets, espionage crime of most gravity
)ffences committed with others (gang attacks)
Aouli v the Queen - commencheros at the airport
Crown not required to prove motive - not part of mens rea but can aggravate vigilante conduct, recial hatred and sexual hatred - Can mitigate provication
Prevalence - usuallay aggravates as general deterrence assumes a greater waith
Trajovski v the Queen - accused entitled to make submissions on the matter
threshold test high - Krijestoric v WA at it s highest marginal aggravating factor