In The Queen v Olbrich (1999) 199 CLR 270, the High Court addressed the question of fact finding for Commonwealth offences. The majority adopted the Victorian decision of R v Storey [1998] 1 VR 359 at 369, that a sentencing judge:

The majority in The Queen v Olbrich said at [24]:

The majority further stated at [25]:

Section 16A(1) provides that a court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a “severity appropriate in all the circumstances of the offence”. However, s 16A(1) does not stand alone and should be read in conjunction with s 16A(2). In Wong v The Queen, above, Gaudron, Gummow and Hayne JJ (in a joint judgment) stated at [71]:

There is no distinct statement of the purposes of sentencing in the Crimes Act 1914 (Cth), unlike, for example, s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, s 16A of the Commonwealth Act includes deterrence, punishment and rehabilitation in the list of matters to which the court is to have regard in passing sentence, at s 16A(2)(j), (k) and (n), respectively.

Deterrence is only recognised by s 16A(2)(j) in the form of the deterrent effect that the sentence “may have on the person”. This type of deterrence, known as personal or specific deterrence, aims to discourage the particular offender from committing the offence again. It is different to general deterrence, which aims to discourage other potential offenders from committing the offence. Although general deterrence is omitted from s 16A(2)(j), courts are still required to take this factor into account.

In Putland v The Queen (2004) 218 CLR 174, Gleeson CJ said (at [12]), with regard to deterrence under Pt IB:

In R v Paull (1990) 20 NSWLR 427, Hunt J in the NSW Supreme Court observed (at 434) that s 16A:

In DPP (Cth) v El Karhani (1990) 21 NSWLR 370, the NSW Court of Criminal Appeal held at 378:

The factors listed under s 16A(2) are not categorised into aggravating or mitigating factors, unlike s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Nor is the list exhaustive, as already discussed above in the context of the omission of general deterrence. This is reinforced by the explicit statement at the beginning of s 16A(2): “In addition to any other matters …”. This statement, together with the words “of a severity appropriate in all the circumstances of the offence” in s 16A(1) denote that common law principles apply to sentencing federal offenders: Johnson v The Queen (2004) 78 ALJR 616 per Gummow, Callinan and Heydon JJ at [15].

In R v Ferrer-Esis (1991) 55 A Crim R 231, the NSW Court of Criminal Appeal confirmed (at 237–238) that the sentencing judge is not required to refer to every factor under s 16A:

Section 16A(2) states that “the court must take into account such of the following matters as are relevant and known to the court”. The concept of “relevant and known to the court” was examined by the High Court in Weininger v The Queen (2003) 212 CLR 629. Gleeson CJ, McHugh, Gummow and Hayne JJ (in a joint judgment) stated at [21]:

Section 16A(2)(b) allows any other offences (as required or permitted) to be taken into account at sentencing. Similarly, s 16BA allows the court, with the consent of the prosecutor, to take into account other federal offences to which an offender has pleaded guilty. Indictable offences can be taken into account as long as the court has jurisdiction to sentence a person for such an offence: s 16BA(3A).

The offender does not have to be “convicted” of the additional federal offences for them to be taken into account. Section 16BA(1)(b) only requires that the person “is believed to have committed” the additional federal offences. However, the text of s 16BA(1) goes on to conclude:

The result, therefore, is similar to s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that the court may take a further offence into account when sentencing for the principal offence if: the offender admits guilt to the further offence; and the offender wants the court to take the further offence into account when dealing with the principal offence; and if, in all of the circumstances, the court considers it appropriate to do so.

In Assafiri v R [2007] NSWCCA 159, the applicant pleaded guilty to four Commonwealth fraud offences, with 19 similar offences taken into account under s 16BA. The sentencing judge did not indicate which of the offences on the indictment the s 16BA offences were attached. The NSW Court of Criminal Appeal found that the judge appeared to have taken the additional offences into account in relation to all of the four offences on the indictment. Howie J stated at [9]:

The form on which additional offences are listed under s 16BA is Form 1 of Sch 3 of the Crimes Regulations 1990 (Cth).

Section 16A(2)(g) provides that the sentencing court must take into account the fact that an offender pleaded guilty. This is listed separately to contrition at s 16A(2)(f), because a plea of guilty does not necessarily indicate contrition.

While Pt IB does not require the discount to be quantified or the judge to give reasons for the amount of the discount, the High Court in Markarian v The Queen (2005) 228 CLR 357 confirmed at [24] that it is not an error to quantify a discount for a guilty plea.

The applicant in Cahyadi v R (2007) 168 A Crim R 41 pleaded guilty to two Commonwealth offences and one State offence, with additional offences taken into account. The sentencing judge specified a discount of 20 per cent only in relation to the State offence. However, it was evident that the judge took the plea into account on all of the offences, as the judge referred to “a willingness to facilitate the course of justice” which is a description of the value of the guilty plea from Cameron v The Queen (2002) 209 CLR 339. Howie J criticised the sentencing judge’s approach in Cahyadi at [34]:

The range of discount nominated by the NSW Court of Criminal Appeal in the guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383 has been found to be relevant to Commonwealth offences. For example, in R v Bugeja [2001] NSWCCA 196, Hodgson JA (with whom James and Adams JJ agreed on this point) said at [28]:

R v Bugeja was applied in R v Simon (2003) 142 A Crim R 166 at [19]; R v Otto (2005) 157 A Crim R 525 at [69]; and Morgan v R [2007] NSWCCA 8 at [21].

In Charkawi v R [2008] NSWCCA 159 the sentencing judge quantified a discount (of 10 per cent), following the approach in R v Bugeja, but did not specify the notional starting point for the undiscounted sentence, which is a practice encouraged by the Court of Criminal Appeal in decisions including R v Waqa (No 2) (2005) 156 A Crim R 454, R v Franklin [2005] NSWCCA 24, and R v Lynn [2004] NSWCCA 222. In rejecting the argument that the sentencing judge in Charkawi had erred in the application of the discount, Price J stated at [17]:

Where an offender pleads guilty and also assists the authorities, a combined discount should be given: R v Sukkar [2006] NSWCCA 92. The appropriate range for such a combined discount is generally between 20–50 per cent, with 50 per cent involving assistance of a very high order: R v Sukkar at [54]; R v SC [2008] NSWCCA 29 at [49]. Those cases were both Crown appeals in which the combined discount granted by the sentencing judge was found to be excessive. In Sukkar at [56], the combined discount of 45 per cent was reduced to 35 per cent on appeal, while in SC the combined discount of 50 per cent resulted in a manifestly inadequate sentence but the court exercised its discretion not to intervene: at [53], [55].

The strength of the Crown case is an irrelevant factor in determining the utilitarian value of a plea of guilty and is relevant only to the evaluation of remorse: R v Otto (2005) 157 A Crim R 525 at [81], where the offences were against Commonwealth law, citing R v Sutton [2004] NSWCCA 225 at [12].

However, the strength of the Crown case can have relevance to the plea in a Commonwealth matter. The Court of Criminal Appeal recently held in Danial v R [2008] NSWCCA 15 per James J at [27]–[28]:

The principle that the appropriate test is not the utilitarian value of the plea for a Commonwealth offence was stated in Cameron v The Queen (2002) 209 CLR 339 by Gaudron, Gummow and Callinan JJ at [14]:

Justice Howie, writing extra-curially, confirmed in “Sentencing Discounts: Are they Worth the Effort?” (2008) 8(4) The Judicial Review 473 at 475:

For a further discussion of utilitarian value, see N Bruni, “The Utilitarian Value of the Guilty Plea” (2004) 11(1) Criminal Law News 98.

Under s 16A(2)(h), a sentencing court must take into account the degree to which a federal offender has co-operated with law enforcement agencies in the investigation of the offence or other offences.

Section 21E(1) provides that, where a court reduces the sentence imposed because a federal offender has undertaken to co-operate in future with law enforcement agencies, the court must state that the sentence is being reduced for that reason and the sentence that would have applied otherwise. This requirement assists an appellate court in re-sentencing an offender who has failed to comply with the undertaking.

The NSW Court of Criminal Appeal differentiated between s 16A(2)(h) and s 21E(1) in R v Vo [2006] NSWCCA 165 at [36]. Section 16A(2)(h) relates to past co-operation whereas s 21E involves prospective co-operation. The two bases for a discount are distinct and should not be confused: Vo at [37], citing R v Gladkowski (2000) 115 A Crim R 446, in which the Queensland Court of Appeal held at [11] that s 16A(2)(h):

A judge who gives a combined reduction for past and future co-operation rather than separately addressing future co-operation, fails to comply with s 21E: Vo at [33]; R v Tae [2005] NSWCCA 29 at [19]. In such a case, the appellate court should itself fix a reduction for future co-operation in accordance with s 21E: Vo at [43]; R v Tae at [20], [32].

Section 21E(2) entitles the Director of Public Prosecutions (DPP) to appeal against the sentence when the offender fails, without reasonable excuse, to comply with the undertaking. Although the section is ambiguously worded, it is for the court to make its own determination whether an offender’s failure to co-operate is without “reasonable excuse”, rather than the question being determined by the DPP: R v YZ (1999) 162 ALR 265; [1999] NSWCCA 48 at [25], [29], [44].

Under s 21E(3)(a), where an offender fails entirely to co-operate after receiving a reduced sentence on the basis of promised co-operation, the court on appeal must substitute the sentence or non-parole period that would have been imposed but for the promised co-operation. Section 21E(3)(b) provides that, where the offender partially fails to co-operate, the court may substitute such a sentence or non-parole period not exceeding that which could be imposed under s 21E(3)(a). The court in Vo stated at [38]:

Although s 21E refers only to a “sentence” and a “non-parole period”, the Court of Appeal of Victoria has found that it does apply to the reduction of a recognisance release order: DPP (Cth) v Haunga (2001) 4 VR 285.

Unlike discounting for future assistance under s 21E, which requires the judge to specify the sentence before and after the discount, quantification is not required in relation to assistance which has been supplied. The NSW Court of Criminal Appeal in R v Gallagher (1991) 23 NSWLR 220 held that a sentencing judge is not obliged to specify a discrete, precisely quantified discount for past assistance, distinct from other subjective or mitigating circumstances. Gleeson CJ said at 228:

After referring to the requirement to specify the reduction for future co-operation under s 21E, Gleeson CJ stated at 230:

However, in some cases, specifying a separate discount for assistance to the authorities may be justified. In R v El Hani [2004] NSWCCA 162, Howie J pointed out at [70]:

The range of discount normally allowed for assistance to the authorities has been held to be 20–50 per cent: R v El Hani at [71]; R v Sukkar [2006] NSWCCA 92 at [5]; cf R v Cartwright (1989) 17 NSWLR 243 at 256.

Relevant considerations in assessing the extent of the discount to be given to federal offenders include the effectiveness of the assistance and its value to the authorities: R v El Hani; R v Barrientos [1999] NSWCCA 1. In El Hani, the court found at [73] that it was within the sentencing judge’s discretion to determine that a discount of 12.5 per cent “was appropriate for what was, in effect, very limited intelligence provided to the police about the present and past criminality of his co-offenders”.

The discount for assistance already given is for assistance that is accepted and used. In Alchikh v R [2007] NSWCCA 345 the court held at [25]:

The weight to be attached to prior good character may vary depending on the type of offence. In R v Leroy (1984) 2 NSWLR 441, the NSW Court of Criminal Appeal found that the lack of a criminal record will have less significance for a drug trafficking offence than for some other fields of crime. In R v Leroy, the defendant was convicted of being knowingly concerned in the importation of cocaine, contrary to s 233B of the Customs Act 1901 (Cth). Street CJ stated at 446–447:

The approach to character in R v Leroy has been applied in other federal drug importation cases in response to the argument that a lack of priors must be taken into account as part of character and antecedents under s 16A(2)(m) of the Crimes Act 1914 (Cth). The absence of a prior record is a matter to which relatively little weight can be given in such cases, although it is not completely irrelevant as a subjective circumstance: R v Barrientos [1999] NSWCCA 1 at [52]–[57]; R v Paliwala (2005) 153 A Crim R 451 at [20]–[26].

In white collar offences, such as those against the Corporations Act 2001 (Cth), less weight is attached to prior good character because it is normally the factor that places the defendant in the position that enables them to commit the offence: R v Rivkin [2004] NSWCCA 7 at [410]; R v Adler [2005] NSWSC 274 at [51]; R v Williams (2005) 152 A Crim R 548 at [61]; R v IR Hall (No 2) [2005] NSWSC 890 at [101].

The NSW Court of Criminal Appeal observed in R v Gent [2005] NSWCCA 370 at [61] that “there is no closed category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character.”

The court pointed out at [63] that it is a common feature of the federal offence of importing child pornography (and the State offence of possessing child pornography) that the offender is otherwise of good character, is in good employment, and of sound reputation: R v Liddington (1997) 97 A Crim R 400; R v Jones (1999) 108 A Crim R 50; R v Assheton (2002) 132 A Crim R 237; R v C: Ex parte Cth DPP [2004] QCA 469.

However, it could not categorically be said that less weight should be attached to prior good character for offences of importing child pornography against s 233BAB of the Customs Act 1901 (Cth). Johnson J stated in Gent at [65]–[66]:

In the circumstances of Gent, the evidence pointed to the offence not being an isolated incident or an aberration. It was relevant, for example, that the applicant had been dismissed from a teaching position in Qatar for similar activity. Johnson J concluded at [68]–[69]:

The Crimes Amendment (Bail and Sentencing) Act 2006 removed the reference in s 16A(2)(m) to “cultural background”, which could be taken into account at sentence along with other subjective features listed in that subsection (character, antecedents, age, means and physical or mental condition). The reason for its deletion was expressed by the Attorney General, Hon Philip Ruddock MP, in the Second Reading Speech to the Bill, Commonwealth of Australia, House of Representatives, Parliamentary Debates, 28 November 2006, p 18 at p 19:

To the same ends, s 16A(2A) was inserted to specifically provide that cultural practices are not to be taken into account in mitigating or aggravating the seriousness of criminal behaviour.

The removal of “cultural background” from s 16A was not without controversy. Professor Michael Dodson argues that there should be a legislative provision requiring courts to have regard to any relevant matters connected with an offender’s cultural background at sentence, including Aboriginal customary law: “Customary law and the sentencing of Indigenous offenders” (2008) 20(5) Judicial Officers’ Bulletin 37 at 38–39. The Australian Law Reform Commission, in its report on sentencing, had earlier supported the retention of “cultural background” in s 16A (Same crime, same time: sentencing of federal offencers, Report No 103, April 2006, at [29.45].)

The requirement under s 16A(2)(p) to take into account the “probable effect” upon an offender’s family or dependants of any sentence under consideration, does not represent a change from the common law, namely, that the probable effect must be “exceptional”: R v Sinclair (1990) 51 A Crim R 418. The WA Court of Criminal Appeal found (at 431) that the sentencing judge in that case incorrectly interpreted the effect of s 16A(2)(p) by taking the view that it had changed the common law. Similarly the NSW Court of Criminal Appeal has held that s 16A(2)(p) must be construed consistently with the common law position that hardship must be exceptional before it is given substantial weight: R v Togias (2001) 127 A Crim R 23 at [13]–[17]. (The authority of Togias has been confirmed in NSW and some other States despite the ACT Court of Appeal departing from it: see references in R v Le [2006] NSWCCA 136 at [25].)

In R v Hinton (2002) 134 A Crim R 286, Howie J stated at [31]:

Circumstances were held to be not exceptional in R v Capper [2000] NSWCCA 63, where the incarceration of the appellant caused his children (aged 10 and 12 years), of whom he had sole care, to become wards of the State and to reside with foster parents. But exceptional circumstances were found in R v Aller [2004] NSWCCA 378, in which a Crown appeal was dismissed against a 77 year old woman who had sole care of her seriously disabled 40 year old son.

In the Crown appeal of R v Nguyen (2006) 166 A Crim R 124, the sentencing judge was found to have erred by allowing a substantial reduction in the respondent’s sentence on the basis of family hardship pursuant to s 16A(2)(p), despite making a finding that the circumstances in the case were not exceptional: at [13]. While cases such as R v X [2004] NSWCCA 93 and R v Girard [2004] NSWCCA 170 correctly decided that hardship to an offender’s family could be taken into account as part of the general subjective circumstances, hardship cannot be used to justify any substantial reduction unless the hardship is truly exceptional: R v Nguyen at [27].

In R v El Hani [2004] NSWCCA 162, the court held that the sentencing judge erred in finding that it was only possible to mitigate the sentence for hardship caused to the applicant’s wife and children by reason of the applicant’s assistance to the authorities if the circumstances were exceptional and extraordinary. Howie J said at [58]:

The meaning under s 16A(2)(p) of the word “probable”, in the context of the “probable effect that any sentence … would have on any of the person’s family or dependants”, was considered by the South Australian Court of Criminal Appeal in R v Berlinsky [2005] SASC 316. Two judges made observations on the word “probable”. Bleby J stated at [42]:

Gray J seemed to take a broader view at [58]:

A number of provisions in Pt IB require the court to explain to the offender particular sentencing orders. For example, s 17A(2) provides that, when a court imposes a sentence of imprisonment, the court shall state the reasons why no other sentence is appropriate. The court must also explain the purpose and consequences of:

The difficulty of creating guideline judgments for Commonwealth offences was highlighted by the decision in Wong v The Queen (2001) 207 CLR 584. The High Court ruled (by majority) that the guideline judgment delivered by the NSW Court of Criminal Appeal on the importation of heroin and cocaine exceeded its jurisdiction. The NSW guideline prescribed a table of sentencing ranges to be applied in future cases. The High Court reasoned that the numerical nature of the guideline judgment intruded on the factors listed under s 16A of the Crimes Act 1914 (Cth). Gaudron, Gummow and Hayne JJ stated at [72]:

Gleeson CJ said at [31]:

Kirby J, referring to the list of matters under s 16A(2), observed at [134]:

In R v Paliwala (2005) 153 A Crim R 451, the court maintained that it was appropriate at sentence to refer to the range of sentences discussed in R v Wong and Leung (1999) 48 NSWLR 340. James J stated at [27]:

Section 21D confirms that nothing in Pt IB affects the prerogative of mercy that exists under s 61 of the Australian Constitution. The Governor-General may exercise the prerogative of mercy, on the advice of the Executive Council, to pardon or remit any sentence imposed on a federal offender.

When a person has been granted a pardon for a Commonwealth offence because they were wrongly convicted, the person is to be regarded throughout Australia as never having been convicted of the offence: ss 85ZR–85ZS.

Two types of orders are available under s 19B where a court is satisfied that a charge is proved: dismissal of the charge (s 19B(1)(c)); and conditional discharge (s 19B(1)(d)).

In determining whether to make such an order, the court is to have regard to the factors listed under s 19B(1)(b):

The matters under s 16A(2) to which the court must have regard when passing sentence (nature and circumstances of the offence, injury or damage caused, contrition, co-operation and so on) are also relevant to a consideration of s 19B: Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at [15], [29].

Reflecting on the matters under s 19B(1)(b), Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 stated (at 276):

The wording of s 19B(1)(b)(i) was amended by the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth), which commenced on 13 December 2006, to remove “cultural background” from the list of factors. This deletion was reinforced by inserting s 19B(1A) to provide that the court must not take into account under s 19B(1) any form of customary law or cultural practice as a reason for excusing, justifying, lessening or aggravating the seriousness of the criminal behaviour to which the offence relates.

The word “antecedents” in s 19B(1)(b)(i) has a wide meaning, including all aspects, favourable and unfavourable, of an offender’s personal, family, employment and vocational circumstances: Commissioner of Taxation v Baffsky, above, at [25]–[29]; Jones v Morley (1981) 29 SASR 57 at 63–64.

Section 19B(1)(b)(ii) requires a finding to be made that the offence is of a “trivial” nature before a defendant can be discharged without recording a conviction: Shillabeer v Stra [2007] SASC 274 at [12]. This decision was an appeal against the order of a magistrate who discharged the respondent after applying the criteria under State law for not recording a conviction, rather than the Commonwealth criteria under s 19B. Allowing the appeal, Debelle J in the Supreme Court of South Australia held that, as the magistrate determined the offences were “indeed serious” (not trivial) a conviction had to be recorded: at [13].

The presence of any “extenuating circumstances” surrounding the commission of the offence, pursuant to s 19B(1)(b)(iii), requires a link between the circumstance said to be extenuating and the commission of the offence: Commissioner of Taxation v Baffsky at [47].

The fact that the offender is subject to adverse consequences (eg, legal and social consequences) if a conviction is recorded is a relevant consideration: Commissioner of Taxation v Baffsky at [38]; R v Ingrassia (1997) 41 NSWLR 447 at 449.

Section 19B(1)(d) provides for the conditional discharge of a person without proceeding to conviction. The court can discharge the person with or without sureties, by recognizance or otherwise. The conditions of the discharge include that the offender:

The time limit for the condition of good behaviour under s 19B(1)(d) is currently three years, while the time limit for other conditions set by the court is two years. (By contrast, the maximum period of a good behaviour bond attached to a conditional release order under s 20(1) is five years.)

In Keys v West [2006] NSWSC 136, a magistrate convicted the defendant of a social security offence in his absence, and issued a bench warrant to bring him before the court for sentence (in accordance with s 75A of the Justices Act 1902 (NSW), now found at s 202 of the Criminal Procedure Act 1986). Later, a different magistrate discharged the defendant pursuant to s 19B(1)(d) upon entering a recognizance. The Commonwealth DPP applied unsuccessfully to the second magistate for an annulment of the sentence on the basis that the defendant had previously been convicted of the offence and therefore could not be discharged without conviction. The magistrate refused the application, reasoning that the recording or finding of an offence (pursuant to s 75A of the Justices Act) as proven for the purposes of issuing a warrant did not preclude a court from subsequently dealing with the matter by not recording a conviction: at [16]. On appeal, Hall J found at [56]:

It was therefore open to the magistrate at a later date to exercise the power to discharge the defendant under s 19B(1)(d) upon entering a recognizance: at [56].

Section 20(1)(a) provides that, where a court convicts a person of a federal offence, the court may order the conditional release of the person without passing sentence. The person must give security that he or she will comply with the conditions of release. These are the same as for s 19B(1)(d); namely,that the person will:

There is also an additional condition that the person shall pay to the Commonwealth such pecuniary penalty as the court dictates.

The court must still consider the matters listed under s 16A(2) in determining whether to conditionally release a person after conviction.

Nothing prohibits a judge, when making an order under s 20(1)(a), from imposing a good behaviour bond that extends beyond the period of imprisonment imposed under the order: R v Smith [2004] QCA 417 at [9].

Section 20 does not set out conditions that may be imposed on a federal offender who is conditionally released, to the same degree of specificity as some of the State and Territory sentencing legislation on recognisances/bonds. For example, in NSW, s 95(a) of the Crimes (Sentencing Procedure) Act 1999 stipulates as a condition of a good behaviour bond that the offender must appear before court if called upon at any time during the term of the bond. Section 95(c) precludes the court from ordering a person to perform community service work or make any form of payment as a condition of a good behaviour bond.

Section 20A sets out the consequences of failing to comply with a condition of discharge without conviction under s 19B(1) or conditional release after conviction under s 20(1).

Where a person has been conditionally discharged under s 19B(1) and has failed to comply with a condition of the order without reasonable excuse, the court may:

An additional option exists for a person who has been conditionally released under s 20(1) but has failed to comply with a condition of the order without reasonable excuse. The court may impose a fine not exceeding 10 penalty units: s 20A(5)(b).

A recognizance release order is defined by s 16(1) of the Crimes Act 1914 (Cth) as an order made under s 20(1)(b). It is analogous to a suspended sentence because the court sentences the offender to prison but directs that the person be released upon giving security (as referred to in s 20(1)(a)), either forthwith or after the offender has served a specified period of imprisonment.

Where a court sentences an offender to imprisonment for one or more federal offences, and the aggregate sentence does not exceed three years, a court must make a recognizance release order, unless the court is satisfied that it is not appropriate to do so, having regard to the nature of the offence/s and the antecedents of the person: s 19AC(1).

Where a court sentences an offender to imprisonment for one or more offences and the aggregate sentence exceeds three years, the court must either set a non-parole period or make a recognizance release order (but may decline to do either if satisfied it is not appropriate to do so): s 19AB(1).

A recognizance (either made under ss 19B(1) or 20(1)) can be varied or discharged: s 20AA. Examples of variations include:

Breach of a recognizance release order without reasonable excuse may result in the court: imposing a monetary penalty not exceeding $1000; extending the period of supervision to a period not greater than five years; revoking the order and imposing an alternative sentencing option under s 20AB; revoking the order and imprisoning the person for that part of the sentence they had not served at the time of release from custody; or taking no action: s 20A(5)(c).

Where a person is convicted of a federal offence or is discharged under s 19B the court may, in addition to the penalty imposed on the person, order the offender to make reparation by way of monetary payment or otherwise, for any loss suffered or expense incurred by the Commonwealth by reason of the offence: s 21B(1)(c). The court may also order the offender to make reparation to any person, in the same terms, for any loss suffered by the person as a direct result of the offence: s 21B(1)(d).

Section 21B(2) clarifies that a person is not to be imprisoned for failure to pay the amount required under the reparation order.

Sentencing alternatives under State or Territory law are available if prescribed under s 20AB of the Crimes Act 1914 (Cth) or cl 6 of the Crimes Regulations 1990 (Cth). Consequently, options that are not covered by the Act or the Regulation are not available.

The additional sentencing options pertaining to NSW are community service (s 20AB(1)), periodic detention (s 20AB(1) and cl 6(fa)) and home detention (cl 6(g)). As there is no reference in s 20AB or cl 6 to deferral of sentence (s 11 bond in NSW), non-association orders or place restriction orders, these options cannot be used for Commonwealth offences, despite being available in NSW for State offences.

Although a “suspended sentence” is not referred to by that name in Pt IB, an approximate equivalent is available. Such an order is known as a “recognizance release order” and has the effect of immediately or partially suspending a prison sentence. Section 20(1)(b) provides that a court may sentence a federal offender to a term of imprisonment but may direct that the person be released forthwith, or after serving a specified amount of time, upon giving security of compliance with certain conditions. Further details are outlined above in Recognizance release order/suspended sentence.

Where an alternative sentencing order is made under s 20AB, the laws of the State or Territory governing that sentence apply “so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth”: s 20AB(3).

Section 20AC outlines the procedure when an offender fails to comply with a sentencing alternative made under s 20AB. The court — if satisfied that the offender has, without reasonable cause or excuse, failed to comply with the sentence or order or any requirements related to it — may impose on the offender a pecuniary penalty not exceeding 10 penalty units; revoke the alternative sentence and re-sentence the offender; or take no action: s 20AC(6).

Section 20AC does not authorise the court to amend or revoke the order when the offender has a reasonable excuse for experiencing problems with compliance. The options in s 20AC only apply when the offender lacks a reasonable excuse. This situation was illustrated by the case of Rene Rivkin, who was convicted of the federal offence of insider trading and sentenced to nine months imprisonment, to be served by way of periodic detention: R v Rivkin (2003) 198 ALR 400; [2003] NSWSC 447. When Rivkin had difficulty complying with periodic detention, for medical and psychiatric reasons, a leave of absence was sought from the Commissioner of Corrective Services (NSW). In the absence of a judicial option, the problem was dealt with by the Commissioner agreeing to allow Rivkin to serve the eight remaining weekends of his periodic detention in one 16-day block. [See newspaper reports eg, Editorial, “Rivkin is just one of many”, The Sydney Morning Herald, 5 February 2004; Kate McClymont, “Rivkin deal means sentence will be served in a fortnight”, The Sydney Morning Herald, 23 September 2004.]

Generally, there is no procedure under Pt IB allowing the review of an alternative sentencing order, such as periodic detention, where it is no longer feasible for the offender to continue.

The principle of prison as a last resort is embodied in s 17A(1) of the Crimes Act 1914 (Cth):

Reasons must be given when a court imposes a sentence of imprisonment. Section 17A(2) provides that the court:

In R v Winchester (1992) 58 A Crim R 345 at 348 the Court of Criminal Appeal found that the sentencing judge failed to comply with s 17A. The judge imposed a sentence of imprisonment on the applicant, who was convicted of social security fraud but had not previously been sentenced to imprisonment, without giving reasons for being satisfied that no other sentence was appropriate.

Limitations apply to the imposition of prison sentences for certain minor offences, such as destroying or damaging Commonwealth property under s 29 of the Crimes Act 1914, and theft, receiving and fraud offences under the Criminal Code. Section 17B(1) states that a court is not to pass a sentence of imprisonment for the offences specified where the offence relates to “property, money or both, whose total value is not more than $2,000” and the offender has not previously been sentenced to imprisonment for any federal, State or Territory offence, unless the court is satisfied that there are exceptional circumstances.

Section 16E(1) provides that the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that jurisdiction for a federal offence in the same way as it applies to a person who is sentenced for a State or Territory offence.

The Crimes (Sentencing Procedure) Act 1999 (NSW) provides it is mandatory for the court to take into account any time the offender has spent in custody in relation to the offence: ss 24(a) and 47(3). Courts exercising the sentencing discretion under s 16E(1) should adopt practices already established in respect of sentencing for State matters: Assafiri v R [2007] NSWCCA 159 at [11]. Although there is no legislative requirement in NSW to backdate the sentence, the Court of Criminal Appeal has repeatedly held that it is preferable to take into account pre-sentence custody by backdating the sentence: R v Newman (2004) 145 A Crim R 361; R v Youkhana [2005] NSWCCA 231.

In Assafiri v R [2007] NSWCCA 159, the court confirmed that the judge did not err by backdating the sentence to take into account the period of pre-sentence custody served by the applicant who had been released on bail after serving some time in custody. Howie J stated at [11]:

Making allowance for time spent on bail may require backdating the sentence to a date when the offender was not necessarily in custody, but it is the total length of pre-sentence custody that dictates the relevant commencement date: R v Zeng [2008] NSWCCA 183 at [76].

For further discussion of NSW law, see Counting pre-sentence custody at [12-500].

Section 19(1) addresses the situation where a person who is convicted of a federal offence is, at the time of that conviction, serving or subject to one or more federal, State or Territory sentences. The court must, when imposing the sentence for the present federal offence, direct when the federal sentence commences, but so that:

The intention of s 19 is to ensure that there is no gap between the end of a sentence which an offender is serving at the time he or she is convicted of a federal offence and the commencement of the sentence for the instant (federal) offence.

The Queensland Court of Appeal in R v Dobie (2004) 145 A Crim R 472 confirmed (at [19]) that:

In other words, if the State non-parole period has concluded by the time the offender is sentenced for the federal offence, s 19 has no application.

Section 18 provides that where, under State or Territory law, a convicted person may be imprisoned in a particular kind or class of prison, a person convicted of an offence against the law of the Commonwealth may, in corresponding cases, be imprisoned in the kind or class of prison appropriate to the circumstances.

Section 19A provides that a federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State/Territory, may be detained in any prison in that jurisdiction and may be removed from one prison to another prison as if the person were detained as a State/Territory offender.

When a court imposes on a federal offender a sentence exceeding three years (or sentences in aggregate that exceed three years), including a federal life sentence, the court must either fix a single non-parole period in respect of the sentence(s) or make a recognizance release order: s 19AB.

When a court imposes on a federal offender a sentence of three years or less (or sentences in aggregate that do not exceed three years) the court must make a recognizance release order in respect of the instant sentence(s) and must not fix a non-parole period: s 19AC.

However, ss 19AB(3) and 19AC(4) allow the court to decline to comply with the above requirements if, having regard to the nature and circumstances of the offence(s) concerned and to the antecedents of the person, the court is satisfied that the designated orders under ss 19AB and 19AC are not appropriate. Furthermore, a recognizance release order is not required to be made for a federal sentence of six months or less: s 19AC(3).

If the court fails to fix, or properly fix, the non-parole period or to make a recognizance release order as required, there is provision under s 19AH for the Attorney General, the Director of Public Prosecutions, or the offender to apply to the court for it to do so.

Apart from the stipulation of “minimum non-parole offences” (discussed under the next sub-heading), Pt IB of the Crimes Act 1914 (Cth) does not provide a statutory ratio for the non-parole period as a proportion of the head sentence.

In practice, non-parole periods for federal offences are commonly set between 60 and 66 per cent of the head sentence: R v Bernier (1998) 102 A Crim R 44 at 49. In R v Sweet (2001) 125 A Crim R 341 at [38], the NSW Court of Criminal Appeal found that:

A ratio of 78 per cent between the effective non-parole period and the head sentence survived appellate scrutiny in Studman v R (2007) 175 A Crim R 143 and Bick v R [2006] NSWCCA 408. In each case the court found that no lesser sentence was warranted in law. In Studman, the court reasoned that the overall sentence and the effective non-parole period were lenient. While an important function of a non-parole period is the rehabilitation of the offender, it must also mark the offender’s criminality by reflecting considerations of punishment and deterrence, and a lesser non-parole period would not serve those functions: at [39]. Similarly, the court in Bick found that the non-parole period appropriately reflected the seriousness of the applicant’s criminality and the importance of general deterrence: at [23].

However, in Murphy v R [2007] NSWCCA 18 at [25], the court allowed the appeal on the ground that the sentencing judge erred in setting a non-parole period with a ratio of 69 per cent to the head sentence. The non-parole period should have been shorter, to reflect the judge’s positive findings on the applicant’s prospects of rehabilitation and the “normal” range referred to in Bernier’s case.

Ordinarily it is appropriate to apply the Commonwealth practice so far as the overall non-parole period is concerned where there is a mixture of State and Commonwealth offences and a Commonwealth offence is the most serious: Cahyadi v R (2007) 168 A Crim R 41 at [40]. In Cahyadi the applicant pleaded guilty to two Commonwealth offences and one State offence, with additional offences taken into account. A Commonwealth offence attracted the longest sentence, but the judge adopted the format used in NSW by first nominating the non-parole period and then the balance of term: s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). By making the Commonwealth sentences partially cumulative on the State offence, the total effective non-parole period became 75 per cent of the aggregate term, reflecting the NSW statutory ratio. The aggregate sentence was also expressed in the NSW format of non-parole period, followed by balance of term.

Howie J said at [38]:

Minimum non-parole periods were introduced by the Anti-Terrorism Act 2004 (Cth) for certain offences; namely, treachery, terrorism, treason and espionage: s 19AG(1).

The minimum non-parole period is to be at least three-quarters of the sentence of imprisonment, although the court retains the discretion to impose a longer non-parole period, if considered appropriate in the circumstances: s 19AG(2).

The totality principle, in the sense of taking into account other sentences to be served, is recognised in ss 16B, 19AD and 19AE of the Crimes Act 1914 (Cth).

In sentencing a person convicted of a federal offence, the court must have regard to any outstanding sentence imposed on the offender by another court for a federal, State or Territory offence: s 16B(1). The court must also take into account any sentence that the person is liable to serve because of the revocation of a parole order made or licence granted: s 16B(2).

When a court imposes a federal sentence on an offender who is serving a non-parole period for an existing federal sentence, the court must, in fixing the non-parole period, consider the existing non-parole period, the nature and circumstances of the offence concerned, and the antecedents of the person: s 19AD. The same principle applies under s 19AE to offenders who are already subject to an existing recognizance release order.

Options that the court may take are set out by ss 19AD and 19AE; namely, it may:

It should also be noted that a court may not fix a single non-parole period/recognizance release order for both a federal sentence of imprisonment and a State/Territory sentence of imprisonment: s 19AJ.

Section 19AK clearly states that a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia. Cases touching on this topic include The Queen v Shrestha (1991) 173 CLR 48 and DPP (Cth) v El Karhani (1990) 21 NSWLR 370.

Section 16G of the Crimes Act 1914 (Cth) was repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth). The repeal applies to all federal sentences imposed after 16 January 2003, irrespective of when the offence was committed.

Section 16G required a court imposing a federal sentence to adjust the sentence if it was to be served in a State or Territory that did not have remissions. New South Wales was one such State, as remissions were abolished as part of the “truth in sentencing” reforms under the Sentencing Act 1989.

It was generally regarded that the adjustment of a federal sentence to allow for the absence of remissions resulted in a reduction of the sentence by one-third: R v Paull (1990) 20 NSWLR 427 at 431. However, in R v Budiman (1998) 102 A Crim R 411, the NSW Court of Criminal Appeal observed at 415 that it is not “invariably or inevitably the case that a one-third allowance should be given”.

The repeal of s 16G followed the abolition of remissions in most States and Territories. Although it was anticipated that the length of federal sentences would increase, the NSW Court of Criminal Appeal rejected the notion that sentences should be automatically increased by a mathematical amount. An adjustment should not be made “by the use of a mathematical formula or a fixed percentage”: R v SC [2008] NSWCCA 29 at [34]; R v Chea [2008] NSWCCA 78 at [42].

In R v Paliwala (2005) 153 A Crim R 451, James J stated at [39]–[41]:

In R v Kevenaar (2004) 148 A Crim R 155, the sentencing judge erred by adopting an approach inconsistent with R v Studenikin (2004) 60 NSWLR 1 and instead attempting to impose a sentence which was “consistent with the pattern of sentencing for similar offences by similar offenders in the period leading up to this change in the law”: at [40]. Rather, the pattern of sentences imposed after the repeal of s 16G can be expected to accord with the length of the sentences in the earlier cases prior to the application of the s 16G discount, and the pre-discount amount is often stated in the case law: at [46]. A schedule of sentences outlined in R v Lee [2007] NSWCCA 234 at [36] shows that head sentences in drug importation cases since the repeal of s 16G, where the offender is a key organiser but not at the pinnacle of the organisation, have generally been over 20 years, with a number of offenders receiving life imprisonment.

Pursuant to s 19AA(1), any remissions that are provided on the term of sentence to State/Territory offenders by the State/Territory in which the federal offender serves their sentence of imprisonment also apply to federal sentences. However, a State/Territory law that enables the remission or reduction of a non-parole period of a State/Territory prison sentence does not apply to a federal sentence (unless the remission or reduction is due to industrial action by prison warders). As already stated, NSW does not allow remissions.

If a federal offender has been sentenced to more than three years but less than 10 years imprisonment, the Commonwealth Attorney General must direct that the offender be released on parole at the end of the non-parole period, unless the prisoner is still serving a State or Territory sentence when the federal non-parole period expires: s 19AL(1). In other words, for this category of sentences, release on parole is effectively automatic.

The threshold of three years reflects the requirements for setting non-parole periods: see above, Fixing non-parole periods and recognizance release orders at [16-050].

The maximum parole period for an offender released on parole under s 19AL (where the person has not been given a federal life sentence) is five years, pursuant to the definition of “parole period” in s 16.

When the federal sentence (or aggregate of federal sentences) is 10 years or more, or is a federal life sentence, and a non-parole period has been fixed, the Attorney General directs whether or not the offender is to be released on parole at the end of the non-parole period: s 19AL(2).

Release on licence is another form of conditional release of a federal offender. An offender, or someone acting on their behalf, must apply to the Attorney General for such an order: s 19AP(2). The application must specify the exceptional circumstances relied upon, and the Attorney General must be satisfied that those exceptional circumstances exist to justify the grant of the licence: s 19AP(3) and (4). Release on licence may be granted by the Attorney General whether or not a non-parole period has been fixed, or a recognizance release order has been made, and whether or not the non-parole period or pre-release period has expired. Two examples of circumstances in which early release may be granted are when an offender requires medical treatment that cannot be provided in the prison system and when an offender has provided assistance to law enforcement authorities but this was not taken into account at sentence.

The Attorney General’s Department makes its parole determinations on the basis of written material, and there is no opportunity for the offender to appear in person at a parole hearing. This contrasts with the practice in NSW for State offences, whereby the State Parole Authority may invite the offender to appear at a hearing and make submissions if the Authority forms an initial intention to refuse parole. The State Parole Authority has a statutory basis under the Crimes (Administration of Sentences) Act 1999 (NSW). There is no formal parole board at the federal level, although the Attorney General’s delegate may consult an advisory panel in difficult or controversial cases. The panel’s members include representatives from the Office of the Commonwealth Director of Public Prosecutions.

Certain conditions are automatically attached to parole or release on licence. These are that the offender must be of good behaviour, must not violate any law during the period of parole or licence, and that, if subject to supervision, the offender must obey all reasonable directions of the supervisor: ss 19AN(1) and 19AP(7). The Attorney General may also specify any other conditions in the order.

Supervision following release on parole/licence is intended to reduce the risk of reoffending and to assist the offender in reintegrating into the community. The maximum period of supervision is three years, as stated in the definition of “supervision period” under s 16(1).

Section 19AM confirms that an offender is not to be released on parole for a federal offence if the offender is serving (or is to serve) a State or Territory sentence.

A federal parole order or licence is revoked automatically when a federal offender who is released on parole or licence commits a further federal, State or Territory offence during the parole period and is sentenced to a term of imprisonment of more than three months: s 19AQ.

In addition, the Attorney General may revoke the parole order/licence where a federal offender fails to comply with conditions attached to the order, or there are reasonable grounds for suspecting that the offender has failed to comply: s 19AU.

A person who is arrested (with or without warrant) when their parole or licence is revoked by the Attorney General must, as soon as practicable, be brought before a magistrate in the State or Territory where they were arrested. The magistrate must direct that the person be detained in prison for the unserved part of the sentence: s 19AW. Similarly, a court imposing a sentence for an offence committed during parole must issue a warrant authorising the person to be detained in prison for the unserved part of the “outstanding” sentence: s 19AS.

Where a person has been convicted of an indictable federal offence the court may, without passing sentence, order that the person be detained in a hospital for a specified period for the purpose of receiving certain treatment. However, to make such an order, the court must be satisfied that:

Before reaching an opinion on these matters, the court must obtain and consider the reports of two “duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness”: s 20BS(5).

Furthermore, the court must not make a hospital order unless it would have otherwise sentenced the person to a term of imprisonment, but for the person’s mental illness: s 20BS(2).

The court must not specify a period that is longer than the period of imprisonment that would have been imposed if the hospital order had not been made: s 20BS(3).

Where a person is convicted of any federal offence, the court may, without passing sentence, order that the person reside at (or attend) a specified hospital or other place for the purpose of receiving psychiatric treatment, where the court is satisfied that:

Where a person is convicted of any federal offence, the court may, without passing sentence, order that the person be released on condition that he or she undertake the program or treatment specified in the order, where the court is satisfied that: