18 The significant part of that quote for present purposes are the last two sentences. When turning to consider s 21A and in particular subsection (2), a sentencing court must remain conscious of these limitations upon the scope of the aggravating features listed. If a court finds itself considering an aggravating feature that would not have been taken into account before s 21A was enacted, then it is very likely that the court has misconstrued the section.
19 In my opinion a sentencing judge would be prudent to raise with the parties during addresses whether any of the factors listed in s 21A(2) apply to the particular sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed are present, it seems to me that, in fairness to the offender and as a matter of good common sense, the judge should indicate to the offender's legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the particular case.
20 That is not a course that was adopted in the present case. The Crown submitted to the Judge that, in accordance with the decision in R v Pont (2001) 121 A Crim R 302, the relevant features of offences such as those committed by the applicant were breach of trust, planning and repetition of offending, all of which, it was submitted, were present in the offences before his Honour. Quite exactly how there was a breach of trust was not made clear and his Honour apparently did not accept that submission. But his Honour did find that the victim or victims were vulnerable, a matter not raised during addresses, and certainly not by the Crown.
21 His Honour did not give reasons to explain why he found that the aggravated features he nominated were present. Of course in many cases one or more aggravating factors would be obvious and it may be that a failure to do any more than identify the factors as being taken into account would hardly amount to an error in the exercise of discretion. But there have been a number of recent decisions of this Court that stress the importance of reasons being given by sentencing judges for reaching findings, especially where they are adverse to the offender. For example, the Court has held that it is an error for a judge to fail to explain why a discount in the order of 25 per cent has not been given for a plea of guilty made in the Local Court: see R v Johnson [2004] NSWCCA 307, R v Dowd [2005] NSWCCA 113. The Court has also found error in the failure of a judge to explain why no special circumstances were found to reduce the non-parole period where there were in the evidence matters that manifestly would have justified such a finding: R v Novakovic [2004] NSWCCA 437. More relevantly perhaps the Court has expressed its concern about the failure of a sentencing court to indicate how it has taken into account the aggravating factor mentioned in s 21A(2)(d), "the offender has a record of previous convictions": see R v Walker [2005] NSWCCA 109.
22 In the present case the Judge stated that he was not applying s 21A to each individual offence but was indicating generally the aggravating and mitigating factors he was taking into account. With respect I do not understand what his Honour meant by that remark. If there was a general aggravating feature that applied to all the offences, then it operated in determining the sentence to be imposed for each of the offences. As the principle enunciated in Pearce v The Queen has been taken as requiring that the court determine the appropriate sentence for each offence before considering the question of totality, so his Honour was required to consider the effect of any aggravating or mitigating factor when determining the appropriate sentence to be imposed for each offence before him. If an aggravating factor applied to one or more of the offences but not all of them, then clearly his Honour was required to indicate in respect of which offence or offences that aggravating feature was being taken into account.
23 The aggravating or mitigating factors do not necessarily apply globally to all the offences for which sentence is being passed: they may do so or they may not. For example, in the present case it was clearly a general aggravating factor applicable to all the offences that they were part of a planned or organised criminal activity and so that factor was to be taken into account when determining the sentence for all offences. But it is less certain that the aggravating factor under (g), that the injury, emotional harm, loss or damage caused by the offence was substantial, applied generally to all the offences: it depends upon the facts of any particular offence. However, I accept that this criticism of the unspecific nature of the approach taken by the Judge to aggravating and mitigating factors may generally speaking be a somewhat technical one having no practical significance in the determination of the overall sentence in respect of most of the factors mentioned by him. But with respect it is not a principled approach and is one that could lead to error particularly in the case of aggravating factors that very often will be offence specific.
24 However, because of the general approach taken by his Honour to the factors in s 21A and because of his failure to give reasons for his findings that any particular aggravating factor was present, it is impossible to know whether his Honour was applying the aggravating factor in (l) to all the offences or to only some of them, and if the latter which ones. But there was no evidence that any of the victims fell within the examples of the categories of victims given in s 21A(2)(l) or that they came within any analogous category. They were either persons working in unremarkable businesses who just happened to have acted on the false documents shown to them, or they were private individuals who parted with their money because they happened to believe the applicant's promise to carry out the work that they paid to have performed. It may be, although there is no evidence of it, that one or more of them were more easily persuaded to part with property or money than some other members in the community might have been, but that fact would not make them vulnerable for the purpose of the section.
25 Before s 21A(2) was enacted, the common law recognised that there were certain categories or classes of persons who needed to be especially protected because they were particularly vulnerable to criminal offences generally or a criminal offence of a particular type. Of course the purpose of sentencing is to protect the community generally and this is achieved by each of the aims of sentencing such as deterrence, denunciation and rehabilitation. But an aggravating factor is something that operates over and above the general considerations that indicate that a particular class of offending should generally be dealt with in a particular way.
26 It may well be the case the persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents such as a driver's licence because it is common to rely upon such documents as proof of identity. But that fact does not give rise to an aggravating factor under s 21A(2)(l). That provision is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender.
27 In R v Williams [2005] NSWCCA 99 this Court held that a sentencing judge was in error in taking into account as an aggravating factor under the section that the victim of a manslaughter offence was vulnerable. Buddin J with whom the other members of the Court agreed stated: