I INTRODUCTION

Factors affecting sentencing within the criminal justice system of New South Wales are fundamental, as they enable courts to balance justice for the victim, the offender, and society by considering the full circumstances of the offence and the individual. This process is a significant part of judicial discretion. The purpose of sentencing and the ability to change sentencing based on factors stem from a variety of cases, a notable one being Veen v The Queen (No 2) (1988), which opened forums of discussions regarding the consideration of circumstances and the purpose of sentencing due to the offenders traumatised past of childhood sexual abuse. A commentary from this case encapsulates the complexity of factors in regards to the purpose of sentencing. “The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. “Further supporting these points, in a discussion during R v Engert (1995) regarding Veen v the Queen (No 2 1988), ​​“In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”. This reflects the prevailing judicial presumption that holistic considerations may influence sentencing, with sentencing judges exercising their discretion to determine the extent to which such factors mitigate the overall length of a sentence.  These factors enable courts to assess the culpability and the accused with the purpose of a fair punishment.  

Sentencing in Australia (specifically NSW) follows statutory frameworks such as the Crimes (Sentencing Procedure) Act 1999 in NSW and Crimes Act 1999 which decree that sentences must be proportional, considering objective and aggravating/mitigating factors. Courts must weigh a multitude of factors, such as punishment, deterrence, rehabilitation and victim impact. 

Mitigating factors refer to circumstances which are presented in court in order to reduce the culpability of a crime committed. Mitigating factors are assessed based on the balance of probabilities which stem from Olbrich v The Queen (1999). Olbrich argued that he did not know the full scale of the drug operation he was partaking in as he was only a courier. Through this hearing, the High Court decided that mitigating circumstances must be proved on the balance of probabilities. This enhances the effectiveness of the criminal justice system by allowing judges to exercise discretion and impose fair and appropriate sentences while preventing offenders from receiving reduced sentences without sufficient evidence. 

II MITIGATING FACTORS SECTIONS AND CASES (A-I)

Mitigating Factors are set out in Section 21A(3), of the Crimes (Sentencing Procedure) Act 1999 (NSW) which are listed from (a) - (m). Section 21A (3a) outlines that if the injury, emotional harm, loss or damage caused by the offence was not substantial it is up for consideration as a mitigating factor. Although Courts should assume that the impact was substantial on a victim. Sentencing judges should determine upon evidence by a given victim whether or not losses were substantial as precedent through AC v R [2016] NSWCCA. In this case, New South Wales Court of Criminal Appeal considered whether a sentencing judge had improperly relied on unproven factual findings that increased the severity of the offender’s sentence for child sexual offences. This case reinforces sentences should be evidence-based without unfair presumptions.

Furthermore, Section 21A (3b) states a mitigating factor as the offence was not part of a planned or organised criminal activity. If there is visible spontaneity, a sentence is able to be reduced. 

Crimes (Sentencing Procedure) Act 1999 (NSW) Section 21A (3c) examines provocation. Although provocation does not instantly warrant a mitigating factor, it is dependent on the offender's moral culpability. An attempt of provocation as defence is visible in R v Singh (2012), ABC reports in 2012 that Chamanjot Singh was given a minimum sentence of 6 years following the killing of his wife, utilising the defence that he was provoked due to a threatened divorce and financial struggles. This case warranted a law reform on provocation as a complete defence. The Crimes Amendment (Provocation) Act 2014 established that extreme provocation may operate solely as a partial defence, requiring the sentencing judge to undertake a detailed examination of the evidence, with particular regard to the events leading up to the alleged provocation, as emphasised by the Judicial Commission of New South Wales.

 Crimes (Sentencing Procedure) Act 1999 (NSW) Section 21A (3d) highlights a mitigating factor as a n offender acting under duress (forced compliance). Duress as a factor must be considered under common law, an offender committing a crime under duress, although does not fall under a complete charge is considered as "non-exculpatory duress”. It is vital in assessment of objective gravity to recognise the difference between threats and fear and own greed and gain in an offender's case. Tikninus v R is a monumental case to the duress factor, where the offender was involved in a drug importation operation, although argued on the balance of probabilities he was pressured due to fear of consequences from the criminal enterprise he was involved in. The Court ultimately decided although the offender's culpability was minimal, general deterrence was needed which cemented the principle of “Non-exculpatory duress”. 

Section 21 A (3e) of the Crimes (Sentencing Procedures) Act 1999 recognises that offenders with no prior record of illegal activity or a minimal record are subject to lenient sentencing rather than individuals with heavier records.

Section 21A (3f) of the Crimes (Sentencing Procedures) Act 1999 recognised the “good character clause” which is referring to the character of the offender prior to the conviction. A key case is Lozanovski v R [2006] NSWCCA, who was involved in a drug supplying offence and argued that the offence was out of character due to no prior conviction. The Court of Appeal recognised good character, although due to the nature of offence did not take it into account. This demonstrates that mitigating factors can be subject to cases based on the nature of the crime. 

This mitigating factor is commonly associated with Section 21A (3i) of The Crimes (Sentencing Procedures) Act 1999 which examines remorse shown by an offender. Section 21A (3i) explored whether an offender has accepted responsibility for their actions and acknowledged losses. As highlighted in the Judicial Commission of New South Wales’ exposition on the section “In accordance with the provision, before a judge takes remorse into account in mitigation, they should make a finding as to whether the expression of remorse is genuine: Pritchard v R [2022]”. 

 Furthermore, the mitigating factor of “good character” holds limited weight in circumstances such as; Child pornography offences (R v Gent [2005] NSWCCA 370), White Collar Crime, Drug Couriers, Child Sex Offences. 

The Minns Labor Government’s proposed reforms, as articulated in the ministerial release of 1 February 2026, aim to eliminate the consideration of a defendant’s “good character” as a mitigating factor in sentencing. This aims to amend the Crimes (Sentencing Procedure) Act 1999, which creates an unfair use of “good character” due to the inability of equal use, and the trauma it inflicts on victims. Attorney General Michael Daley stated in regards to the removal of good character factors that “Victim survivors shouldn’t have to sit in court and hear the person who hurt them or their loved one described as a ‘good person’.”

Section 21A (3G) examines the likelihood of the offender or reoffend. This affects the purpose of sentencing that relates to protecting community and general deterrence.  

This is commonly linked to the Crimes (Sentencing Procedure) Act 1999 (NSW) Section 21A(3H) which explores if an offender has good prospects of rehabilitation. Although these two sections should be treated distinctly differently, rehabilitation and likelihood of reoffending are separate cases. Meoli v R [2014] NSWCCA 297 was a sentencing appeal where the offender argued that the sentencing judge made an error by not specifically addressing his likelihood of reoffending as a mitigating factor. Although the appeal was rejected, as every section should not be considered and only need to acknowledge ones specific to the case. Sections 21A(3) (j–m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to pre-sentencing considerations, encompassing factors such as police powers, as well as the offender’s age and specific personal needs.

III CONCLUSION

Mitigating factors function to inform the discretion of the sentencing judge, potentially resulting in a reduced sentence where the circumstances warrant. They operate to calibrate the sentencing process in a manner that balances the interests of society, the rights of victims, and the circumstances of the offender. The range of mitigating factors is shaped by both statutory provisions and common law principles, encompassing a multitude of considerations codified under the Crimes (Sentencing Procedure) Act 1999 (NSW) and refined through judicial interpretation.

IV REFERENCES

https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/purposes_of_sentencing.html#p2-200- “Purpose of Sentencing”  May 2025. 

https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/mitigating_factors.html#p11-120 - “Mitigating Factors under s21A (3)” Nov 2025. 

https://www.timebase.com.au/news/2017/AT04184-article.html “Aggravating and Mitigating Factors in NSW Criminal Sentencing Procedure” April 2017

https://www.nsw.gov.au/ministerial-releases/nsw-to-abolish-good-character-at-sentencing “NSW to abolish ‘good character’ at sentencing“ Feb 2026 

https://www.justia.com/criminal/aggravating-mitigating-factors/ “Aggravating and Mitigating Factors in Criminal Sentencing Law“ October 2025