Published by Geoff Harrison | 15 March 2025
The Form 1 procedure allows the court to take into account other offences for which the accused has not been convicted when sentencing an offender for a principal offence. The offender must request the court to take the further offences into account as per s33(2)(ii) of the Crimes (Sentencing Procedure) Act 1999. The permissible use of Form 1 offences was discussed in Tukuafu by Huggett J at [129]:
Where further offending is in the form of charged offending before the court where the statutory preconditions for the Form 1 procedure have been met (which includes the residual discretion provided by s 33(2)), the authorities establish the following propositions in relation to the permissible use of evidence of a further offence on a Form 1 document when sentencing an offender for an offence (whether it be an offence with a standard non-parole period or not):
(1) A further offence may increase the weight to be afforded to personal (or specific) deterrence and retribution.
(2) A further offence may provide the context of the offending for which an offender is to be sentenced.
(3) A further offence may demonstrate that a principal offence was not isolated or aberrant but is representative of an ongoing course of conduct.
(4) A further offence may inform an offender’s moral culpability.
(5) A further offence may establish that an offender is not a person of good character.
(6) A further offence may establish an offender’s motive, state of mind and/or intention at the time the principal offence is committed.
(7) A further offence may establish an offender’s awareness of the complainant’s vulnerability.
Taking a further offence on a Form 1 document into account for one or more of these purposes is permissible and may result in an increase in the penalty or sentence ultimately imposed. Where the further offence is relatively minor in its seriousness, it may add little to nothing to the otherwise appropriate sentence. Where the criminality involved in the further offence is significant or substantial, subject to proportionality, its effect on the sentence imposed may be “substantial” (Attorney General’s Application at [18]). However, that effect is not because the further offence increased the objective seriousness of the principal offence. Rather, it is because the appropriate sentence is determined by reference to numerous matters including the objective seriousness of the offence for which the sentence is to be imposed (considered without regard to any further offending on a Form 1 document) and a consideration of whether further offending on a Form 1 document should bear upon any of the purposes described in [129].
It follows that the assessment of objective seriousness and its relationship with the principle of proportionality will be compromised if conduct encompassed in a Form 1 offence is taken into account. That will be because the resulting assessment of objective seriousness would not be an assessment based on the objective gravity of the offence before the court for sentence. Rather, it would reflect the principal offence and the further offence (or offences) attached to the principal offence by way of a Form 1 document. That would be erroneous because it would result in an offender being punished for the conduct encompassed by an offence on a Form 1 document.
Other Sources:
Cases:
Tukuafu v R [2024] NSWCCA 84 (7 June 2024) (at [129]
DG v R [2017] NSWCCA 139 (see [62] - [70])
Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) ACT 1999 No 1 of 2002 [2002] NSWCCA 518 (20 December 2002)
Dale v R [2021] NSWCCA 320 (re Procedure)
Pham v R [2021] NSWCCA 234 (at [30]).
Kabir v R [2020] NSWCCA 139 (re Commonwealth Offences)
Ghalbouni v R [2020] NSWCCA 21 (Form1 must be taken into account on correct offence)
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 31
Definitions
In this Division--
"further offence" means an offence referred to in a list of additional charges.
"impose a penalty" includes--
(a) impose a sentence of imprisonment or a fine, or
(b) make an intensive correction order or community correction order, or
(c) make an order that provides for an offender to enter into a good behaviour bond, or
(c1) make a non-association order or place restriction order, or
(d) make an order under section 10 or 11.
"list of additional charges" means a document filed in a court by the prosecutor, as referred to in section 32 (1).
"principal offence" means an offence the subject of proceedings referred to in section 32 (1).
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 32
Prosecutor may file list of additional charges
(1) In any proceedings for an offence (the
"principal offence" ), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
(2) A list of additional charges may be filed at any time--
(a) after the court finds the offender guilty of the principal offence, and
(b) before the court deals with the offender for the principal offence.
(3) A copy of the list of additional charges, as filed in the court, is to be given to the offender.
(4) A list of additional charges--
(b) must be signed by the offender, and
(c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.
(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.
(6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 33
Outstanding charges may be taken into account
(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence--
(a) if the offender--
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
(4) A court may not take a further offence into account--
(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or
(b) if the offence is an indictable offence that is punishable with imprisonment for life.
(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.
(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 34
Ancillary orders relating to offences taken into account
(1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.
(2) An offender with respect to whom an ancillary order is made has the same rights of appeal as he or she would have had if the order had been made on the conviction of the offender for the further offence.
(3) An ancillary order for an offence taken into account lapses, by operation of this subsection, if the offender's conviction for the principal offence is quashed or set aside.
(4) In this section,
"ancillary order" means an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 35
Consequences of taking offences into account
(1) If a further offence is taken into account under this Division--
(a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and
(b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.
(2) This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence.
(3) An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to--
(a) the further offence in respect of which the admission was made, or
(b) any other offence specified in the list of additional charges.
(4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.
(5) In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings--
(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and
(b) had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence.
(6) The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 35A
Consultation with victim and police in relation to charge negotiations
(1) In this section--
"charge negotiations" means negotiations between the prosecution and an offender with respect to a plea of guilty in relation to an offence other than the principal offence concerned.
"prosecution guidelines" means prosecution guidelines in relation to charge negotiations issued by the Director of Public Prosecutions.
"requisite consultation" means consultation with the victim and the police officer in charge of investigating an offence that complies with the applicable prosecution guidelines.
"victim" has the same meaning as it has in section 26.
(2) A court must not take into account offences other than the principal offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that--
(a) the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and
(b) any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines.
(3) The certificate must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.
(4) A certificate is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.
(5) The court may require the prosecution to explain the reason for a failure to file a certificate when it is required by this section to do so.
CRIMES ACT 1914 - SECT 16BA Taking other offences into account
CRIMES ACT 1914 - SECT 16BA
Taking other offences into account
(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:
(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;
(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;
(c) the document has been signed:
(i) by the Director of Public Prosecutions;
(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or
(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;
and by the person convicted;
(d) a copy of the document has been given to the person; and
(e) in all the circumstances it is proper to do so;
the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.
(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.
(3) The court shall not take into account under this section any indictable offence that it would not have jurisdiction to try even if the defendant consented to the court hearing and determining proceedings for the offence or the prosecutor requested the court to hear and determine those proceedings.
(3A) Subsection (3) does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence.
(4) Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his or her guilt, the sentence passed on him or her for any of the offences of which he or she has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him or her for the offence if no offence had been so taken into account.
(5) Where an offence is taken into account under this section, the court may make such orders with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court of the offence, but shall not otherwise impose any separate punishment for the offence.
(6) Where the court makes an order under subsection (5) in respect of an offence taken into account under this section, there shall be such rights of appeal in respect of the order as there would have been if the order had been an order made upon the conviction of the person for that offence.
(7) An order made under subsection (5) in respect of an offence taken into account under this section lapses, by force of this subsection, if the conviction or each conviction, as the case may be, in respect of which the offence was taken into account is quashed or set aside.
(8) Where an offence is taken into account under this section, the court shall certify, upon the document filed in the court, the offence taken into account and the conviction or convictions in respect of which the offence was taken into account and thereafter no proceedings shall be taken or continued in respect of the offence unless the conviction or each conviction, as the case may be, in respect of which the offence has been taken into account has been quashed or set aside.
(9) An admission of guilt made under and for the purposes of this section is not admissible in evidence in any proceedings taken or continued in respect of the offence in respect of which the admission was made or in respect of any other offence specified in the list contained in the document filed in the court.
(10) An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.
(11) In or in relation to any criminal proceeding, reference may lawfully be made to, or evidence may lawfully be given of, the fact that an offence was taken into account under this section in passing sentence for an offence for which a person was convicted if, in or in relation to that proceeding:
(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the person was convicted of the last - mentioned offence; and
(b) had the person been convicted of the offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the person had been convicted of that offence.
(12) The fact that an offence was taken into account under this section may be proved in the same manner as the conviction or any of the convictions, as the case may be, in relation to which it was taken into account may be proved.
CRIMES ACT 1914 (Cth) - SECT 16BA Taking other offences into account
Taking other offences into account
(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:
(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;
(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;
(c) the document has been signed:
(i) by the Director of Public Prosecutions;
(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or
(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;
and by the person convicted;
(d) a copy of the document has been given to the person; and
(e) in all the circumstances it is proper to do so;
the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.
(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.
(3) The court shall not take into account under this section any indictable offence that it would not have jurisdiction to try even if the defendant consented to the court hearing and determining proceedings for the offence or the prosecutor requested the court to hear and determine those proceedings.
(3A) Subsection (3) does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence.
(4) Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his or her guilt, the sentence passed on him or her for any of the offences of which he or she has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him or her for the offence if no offence had been so taken into account.
(5) Where an offence is taken into account under this section, the court may make such orders with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court of the offence, but shall not otherwise impose any separate punishment for the offence.
(6) Where the court makes an order under subsection (5) in respect of an offence taken into account under this section, there shall be such rights of appeal in respect of the order as there would have been if the order had been an order made upon the conviction of the person for that offence.
(7) An order made under subsection (5) in respect of an offence taken into account under this section lapses, by force of this subsection, if the conviction or each conviction, as the case may be, in respect of which the offence was taken into account is quashed or set aside.
(8) Where an offence is taken into account under this section, the court shall certify, upon the document filed in the court, the offence taken into account and the conviction or convictions in respect of which the offence was taken into account and thereafter no proceedings shall be taken or continued in respect of the offence unless the conviction or each conviction, as the case may be, in respect of which the offence has been taken into account has been quashed or set aside.
(9) An admission of guilt made under and for the purposes of this section is not admissible in evidence in any proceedings taken or continued in respect of the offence in respect of which the admission was made or in respect of any other offence specified in the list contained in the document filed in the court.
(10) An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.
(11) In or in relation to any criminal proceeding, reference may lawfully be made to, or evidence may lawfully be given of, the fact that an offence was taken into account under this section in passing sentence for an offence for which a person was convicted if, in or in relation to that proceeding:
(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the person was convicted of the last - mentioned offence; and
(b) had the person been convicted of the offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the person had been convicted of that offence.
(12) The fact that an offence was taken into account under this section may be proved in the same manner as the conviction or any of the convictions, as the case may be, in relation to which it was taken into account may be proved.
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