Commonwealth offences

Note:

All references to sections in this chapter are, unless otherwise stated, references to the Crimes Act 1914 (Cth).

[15-000] Overview

The main legislation that magistrates will encounter is the Crimes Act and the Commonwealth Criminal Code Act 1995 (Cth).

The Crimes Act contains matters of general application to all federal offences unless it is covered by a particular Act. It covers such matters as penalties, summary/indictable disposal, time limits, powers of arrest, search and seizure and sentencing. It covers some offences such as administration of justice and postal services but many of the offences are now found in the Criminal Code.

The Criminal Code contains offence provisions and general principles of criminal responsibility. The offences cover terrorism, property offences, fraud, forgery and national infrastructure. The Criminal Code deals with issues such as onus of proof, defences, elements of offences including the replacement of actus reus and mens rea with the concepts of physical (for example, conduct/result) and fault (for example, intention/recklessness) elements of an offence.

In summary, the Crimes Act is the source for sentencing. The Criminal Code contains most of the more common offences and is the source for how guilt is established.

Sentencing Bench Book

Magistrates will find a summary of the law and practice in relation to Commonwealth Offences and particularly the sentencing of offenders: see SBB Sentencing Commonwealth Offenders at [16-000]–[16-110].

[15-020] Jurisdiction

State procedures and jurisdictions apply to Commonwealth offenders tried in State courts.

Subject to provisions in Commonwealth law, State laws (including those relating to procedure, bail, evidence and competency of witnesses) apply to State courts exercising Federal jurisdiction: s 79 Judiciary Act 1903. Procedural matters such as summary or indictable disposal are often dealt with in the particular Act creating the offence: s 4J.

The general procedure for dealing with an indictable matter summarily is set out in s 4J(1). However, where the particular indictable offence is contained in an Act with a separate provision enabling the offence to be dealt with summarily that provision will apply: s 4J(2).

[15-040] Arrest for Commonwealth offences

A person arrested must be released (on bail or otherwise) within the investigation period, or brought before a magistrate within that period, or as soon as practicable after the end of the period.

The investigation period is two hours in the case of Aboriginal or Torres Strait Islanders and otherwise, four hours: s 23C(4). There are provisions for “dead” time: s 23C(7).

Special provision is made with respect to a person arrested for a terrorism offence: ss 23DB–23DF.

Extension for serious offences (other than terrorism offences)

An application can be made to a magistrate (if available at the time) for extension of the investigation period: s 23D(1). The application may be made before the magistrate, by telephone or in writing: s 23D(2). Information that must be included in the application is set out in s 23D(3).

An application for extension can only be granted, by signed written instrument, if the magistrate is satisfied of the following (s 23DA(2)):

(a) 

the offence is a serious offence (that is, carrying more than 12 months imprisonment)

(b) 

further detention is necessary to preserve or obtain evidence or complete the investigation into the offence or another serious Commonwealth offence

(c) 

the investigation is being properly conducted and without delay, and

(d) 

the person or his or her legal representative has been given the opportunity to make representations about the application.

Subject to s 23DA(4), the instrument must set out: the day and time the extension was granted, the reasons for granting it and the terms of the extension: s 23DA(3). The magistrate must give a copy of the instrument to the investigating official as soon as practicable after signing it: s 23DA(5)(a).

The investigation period may be extended for a period not exceeding 8 hours, and must not be extended more than once: s 23DA(7).

Where an application made by telephone or other electronic means is granted, the magistrate must inform the investigating official of the matters included in the instrument: s 23DA(5)(b).

[15-060] Procedures

Summary offences

An offence is summary if imprisonment of no more than 12 months or no imprisonment is provided: s 4H.

Indictable offences

Any offence punishable by imprisonment for a period exceeding 12 months is indictable: s 4G.

Dealing with certain indictable offences summarily

Indictable offences may be heard summarily if the court is empowered to do so by a Commonwealth Act. In particular, if the maximum penalty does not exceed 10 years’ imprisonment, the offence may be dealt with summarily with the consent of both the prosecutor and the defendant: s 4J.

Consent for summary disposition of indictable offences must be given before the hearing of evidence commences: Perry v Nash (1980) 32 ALR 177.

It is good practice in all matters to expressly ascertain the consent of both parties upon the entry of a plea: see Practice Note Comm 1 Procedures to be adopted for committal hearings in the Local Court at [4.6]; Practice Note Crim 1 Case management of criminal proceedings in the Local Court at [5.3(c)]. A failure by the court to obtain the defendant’s consent that a particular offence be dealt with summarily results in jurisdictional error: see Morgan v District Court of NSW (2017) 94 NSWLR 463 at [23].

Penalty

Subject to the Act creating the offence, if the maximum term of imprisonment provided does not exceed five years, the maximum penalty on summary disposal is 12 months and/or 60 pu ($12,600). If the maximum penalty provided exceeds five years, the summary penalty is two years and/or 120 pu ($25,200): s 4J(3). In any case the penalty must not exceed the maximum available if tried on indictment.

See s 4AA for the value of a penalty unit. For offences committed on or after 1 July 2017 a penalty unit is $210. Note: for offences committed from 31 July 2015 until 30 June 2017, a penalty unit is $180.

Value of property $5000 or less

If the property value to which the offence relates does not exceed $5000 and the prosecutor so requests, regardless of whether the defendant agrees, any indictable offence may be dealt with summarily if the court thinks fit: s 4J(4). If it does so then, subject to any lesser penalty under the relevant Act, the maximum is 12 months’ imprisonment and/or 60 pu ($12,600): s 4J(5).

Multiple offences

Any number of charges against the same provision of a Commonwealth law can be joined in the one information, complaint or summons, provided they are founded on the same facts or form part of a series of similar offences. If a person is convicted of two or more such offences, one penalty may be imposed. It must not exceed the total of the maximum penalties that could be imposed separately: s 4K.

Time for commencement of prosecutions

If no imprisonment or if imprisonment of six months or less is provided — the time for commencement of prosecution is one year after the commission of the offence. Otherwise (subject to the particular Act, for example, s 492 of the Migration Act 1958), at any time: s 15B.

Amendment

The court may make at the hearing any amendments it considers desirable or necessary to enable the real question in dispute to be determined: s 15C(1). The court cannot amend if injustice would be caused to the defendant: s 15C(3). Adjournments may be granted and cost orders made in certain circumstances: s 15C(2).

Challenge regarding jurisdiction

Where a party asserts that the case involves a constitutional argument, regard should be had to the Resources Section, Magistrates Information on Constitutional Arguments at <http://portal.agd.law.nsw>, that deals with whether there is a need to issue a notice to the Commonwealth Attorney General.

[15-080] Sentencing policy

Severity

A court must impose a sentence that is “of a severity appropriate in all the circumstances of the offence”: s 16A(1). Imprisonment is a sentence of last resort: s 17A(1).

Matters to be taken into account

A court must take the following matters into account where relevant (s 16A(2)):

  • the nature and circumstances of the offence

  • other offences to be taken into account

  • any course of conduct involving the same or similar acts

  • the personal circumstances of any victim

  • any injury, loss or damage resulting from the offence

  • any victim impact statement from a victim who has suffered harm as a result of the offence

  • the degree to which the defendant has demonstrated contrition (including making reparation)

  • the extent to which the person has failed to comply with any orders or obligations relating to pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence

  • a plea of guilty

  • co-operation with authorities in respect of the offence or other offences

  • the deterrent effect on the person

  • the deterrent effect on other persons

  • the need for adequate punishment

  • the defendant’s character, antecedents, cultural background, age, means and physical or mental condition

  • the prospect of rehabilitation

  • the probable effect on the defendant’s family or dependants.

It is not necessary to mention each of these considerations each time sentence is passed for a Commonwealth offence, although it is advisable to state “I take into account the provisions of s 16A that are relevant in this matter, namely [indicate matters that have been taken into account]”, so as to identify those factors that have influenced the court’s reasoning and conclusions: see RCW v R (No 2) (2014) 244 A Crim R 541 at [58].

General deterrence must also be taken into account: s 16A(2)(ja); DPP (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370. Any sentence currently being served, State or federal, must also be taken into account: s 16B.

Reduction for promised co-operation

If a sentence, order or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies in relation to proceedings (including confiscation proceedings) for any offence, the court must state the sentence has been reduced for that reason and state the sentence, order or non-parole period that would otherwise have been fixed: s 16AC(1)–(2).

It is advisable to state “If you had not co-operated, your sentence would have been …”.

Taking other offences into account

Other federal or Territory offences (including optional indictable offences) may be taken into account on sentence, subject to the procedure set out in s 16BA(1):

(a) 

the offences are listed in a document filed in the court, signed by the DPP and the defendant, and (a copy) given to the defendant

(b) 

if the prosecutor consents and the court thinks it is proper, the court asks the defendant if he admits guilt for any or all of the listed offences and wishes to have them taken into account when he is sentenced for the convicted offence, and

(c) 

the defendant does admit and agree.

The court cannot take into account any indictable offence it would not have jurisdiction to try: s 16BA(3A). The effect of this is that the Local Court cannot take into account any strictly indictable offence included on a s 16BA schedule.

The penalty imposed after taking the other offences into account should not exceed the maximum available for the offence or offences for which the defendant has been convicted: s 16BA(4).

Orders for reparation, costs, restitution, etc, can be made in respect of any “listed” offence, but otherwise no separate penalty can be imposed for such offence: s 16BA(5).

The court must certify on the document filed that those offences have been taken into account: s 16BA(8).

Explanation of penalty

Recognizances

Before imposing a recognizance, the court must explain to the defendant in language likely to be understood, the purpose and the effect of the order, the consequences of disobedience, and that the order may be varied or discharged upon application to the court: ss 19B(2) and 20(2).

Sentences

Where an order is made fixing a non-parole period or recognizance release, the purpose and consequences of the order must be explained to the defendant in language likely to be understood: s 16F(1)(2).

[15-100] Sentencing options

The detailed options below are in summary as follows:

(a) 

dismissal without conviction: s 19B

(b) 

discharge without conviction: s 19B

(c) 

fine

(d) 

conviction and conditional release without passing sentence: s 20(1)(a)

(e) 

fully/partial suspension of imprisonment: s 20(1)(b)

(f) 

intensive correction orders and CSO as per State legislation: s 20AB

(g) 

imprisonment — three years or less, use recognizance release order

(h) 

reparation orders: s 21B

(i) 

fingerprint orders

(a) Dismissal of charge — s 19B(1)(c)

[similar to s 10(1)(a) Crimes (Sentencing Procedure) Act 1999]

The provisions of s 19B are similar to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) but, unlike the NSW section, there is no catch all provision that allows a court to take into account “any other matter which the court thinks it proper to consider”. It is desirable to state on which ground or grounds in s 19B the order is based.

(b) Discharge without conviction — s 19B(1)(d)

[similar to s 10 bond Crimes (Sentencing Procedure) Act 1999]

The term recognizance is used instead of bond.

Good behaviour period

The period of recognizance must not exceed three years: s 19B(1)(d)(i).

Mandatory explanation

The conditions and consequences of breach, etc, must be explained before imposing a recognizance: s 19B(2).

Further conditions

Other conditions may be imposed including conditions for the payment of reparation, costs or compensation.

Breaches of recognizance

Section 20A(5) provides that the court has power to convict the person for the original offence or take no action if a s 19B(1) recognizance has been breached. Section 20A(1) requires action for an alleged breach to be initiated by information laid before a magistrate, upon which the magistrate may issue a summons or warrant. Therefore, a court cannot purport to “call up” a recognizance of its own motion.

(c) Fine

No orders for default etc need be made.

The Fines Act 1996 (NSW) applies subject to certain restrictions on the enforcement regime: for example, s 15A. As in State matters, a magistrate cannot grant time to pay.

Fine in lieu of imprisonment

Unless a contrary intention appears in the legislation, when an offence is punishable by imprisonment only, a court may impose a pecuniary penalty, instead of or in addition to, a term of imprisonment: s 4B(2).

The maximum penalty is calculated by the formula:

when:

“term of imprisonment” is the maximum term of imprisonment, expressed in months, by which the offence is punishable.

See s 4AA for the value of a penalty unit. For offences committed on or after 1 July 2017 a penalty unit is $210; for offences committed from 31 July 2015 until 30 June 2017, a penalty unit is $180.

Fine in lieu of imprisonment for body corporate

Unless a contrary intention appears in the legislation, where an offence is committed by a body corporate, a court may impose a pecuniary penalty not exceeding five times the maximum penalty that could be imposed on a natural person convicted of the same offence: s 4B(3).

Means to pay

The defendant’s financial circumstances must be taken into account, in addition to other matters to be considered: s 16C(1).

Fine, etc, under recognizance

See pecuniary penalty under recognizance below.

(d) Conviction and recognizance — s 20(1)(a)

[similar to s 9 bond Crimes (Sentencing Procedure) Act 1999]

Section 20(1)(a) provides for the conditional release of offenders after conviction, without the passing of sentence.

Good behaviour period

The period of recognizance must not exceed five years: s 20(1)(a)(i).

Mandatory explanation

The conditions and consequences of breach, etc, must be explained before imposing a recognizance: s 20(2).

Pecuniary penalty under recognizance

A pecuniary penalty can be imposed as a condition of a recognizance: s 20(1)(a)(iii). It is important that you specify a time for payment of the pecuniary penalty prior to the expiration of the recognizance. If the offence carries imprisonment only, the maximum pecuniary penalty under a recognizance is 60 pu ($12,600): s 20(5)(b)(ii). Costs, reparation or compensation may be ordered separately or as a condition of the recognizance: s 20(1)(a)(ii)(B).

Do not purport to impose a “fine” (as distinct from a “pecuniary penalty”) as a condition of a recognizance. This always leads to an application for resentencing as does a failure to specify a time for payment of the pecuniary penalty. The reason for using the term “pecuniary penalty”, is that a fine is a sentence and a recognizance in this section is imposed without passing sentence.

(e) Sentence and recognizance — s 20(1)(b)

[similar to s 12 bond suspended sentence Crimes (Sentencing Procedure) Act 1999]

Section 20(1)(b) provides for a suspended sentence either forthwith or after a short period of imprisonment, conditional upon the defendant entering a recognizance. Unlike NSW legislation, the period of the good behaviour does not have to correlate with the term of imprisonment and there can be a partial suspension of sentence.

Breaches of recognizances

Section 20A(5) provides the court has power to impose monetary penalties for breaches of recognizances imposed under s 20(1)(a) and (b). Section 20A(1) provides that action for alleged breach of recognizance is to be initiated by information laid before a magistrate, upon which the magistrate may issue a summons or warrant. Therefore, a court should not purport to “call up” a recognizance of its own motion.

(f) Intensive correction orders/community service orders

Intensive correction orders and community service orders are available for Commonwealth offences: s 20AB.

Note:

Where a Commonwealth matter carries a maximum 12 months imprisonment, a community service order of no more than 200 hours may be imposed.

Breaches

Breaches of an order for community service imposed for Commonwealth offences must be dealt with under the Crimes Act: s 20AC and not under State legislation. Options include: imposing a pecuniary penalty, (not exceeding 10 pu), revoking the sentence and dealing with the offender in any manner in which they could have been dealt with for that offence if the sentence had not been passed, or taking no action: s 20AC(6).

[15-120] (g) Sentences of imprisonment

Restrictions on imprisonment

Imprisonment may be imposed for federal offences only if no other sentence is appropriate: s 17A(1). The reasons that no other sentence is appropriate must be stated and recorded: s 17A(2).

Restriction on sentence of imprisonment for certain minor offences

If a person is convicted of one or more s 17B offences relating to property or money, whose total value is not more than $2000, and the person has not previously been sentenced to imprisonment for any federal, State or Territory offence, imprisonment must not be imposed unless warranted by exceptional circumstances: s 17B(1).

Section 17B(3) defines the following offences as s 17B offences:

Crimes Act 1914
SECTION DESCRIPTION PENALTY (MAX)
29 Destroy/damage Commonwealth property 60 pu ($12,600) and/or 12mths
Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2017 ($210). The penalty unit value for offences committed before that date will be lower.

Criminal Code
SECTION DESCRIPTION PENALTY (MAX)
131.1 Theft 60 pu ($12,600) and/or 12mths
132.1 Receive stolen property 120 pu ($25,200) and/or 2 yrs
132.6 Making off without payment 60 pu ($12,600) and/or 12mths
132.7 Going equipped for theft/property offence 60 pu ($12,600) and/or 12mths
134.1 Obtain property by deception 120 pu ($25,200) and/or 2 yrs
134.2 Obtain financial advantage by deception 120 pu ($25,200) and/or 2 yrs
135.1 Dishonestly obtain a gain 60 pu ($12,600) and/or 12mths
135.2 Obtain a financial advantage 60 pu ($12,600) and/or 12mths
135.4 Conspiracy to defraud 120 pu ($25,200) and/or 2 yrs
145.4 Falsification of documents 120 pu ($25,200) and/or 2 yrs
145.5 Give information derived from
false/misleading documents
120 pu ($25,200) and/or 2 yrs
Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2017 ($210). The penalty unit value for offences committed before that date will be lower.

No imprisonment for failure to pay reparation

A person is not to be imprisoned for failure to pay reparation, restitution, compensation or costs even though payment is a condition of a recognizance under s 20: s 20(2A).

Commencement of sentences

State laws relating to commencement of sentences and parole periods apply: s 16E. Note, however, the limitations imposed by ss 16E(2) and (3).

Ratio head sentence/non-parole

Unlike New South Wales, there is no statutory ratio. The proposition that there is a “norm” for a ratio of two-thirds is incorrect: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520.

Partial deferment of sentence

When a sentence of imprisonment is imposed, the defendant can be released on a recognizance forthwith or after having served a specified part of the sentence. The recognizance is in the same form as s 20(1)(a) and can be subject to conditions.

Cumulative sentences

Federal sentences can be made cumulative on existing State or federal sentences: s 19. The court must, when imposing the sentence for the relevant federal offence, direct when that sentence commences, but so:

(a) 

no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

(b) 

if a non-parole period applies in respect of any State or Territory sentences — the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.

See further the Sentencing Bench Book at [16-040].

Sentences of six months or less

If a sentence or sentences in aggregate do not exceed six months, a recognizance release order is not required: s 19AC(3).

Sentences of three years or less

If a sentence (or the aggregate of several concurrent sentences imposed at the one time) does not exceed three years, the court must fix a single recognizance release order in respect of all sentences: s 19AC. If the defendant is currently serving a sentence, plus the further sentence and the unserved balance of sentence does not exceed three years in aggregate, a recognizance release period must be fixed.

Sentences over three years

If a sentence (or the aggregate sentence if more than one is imposed at the one time) exceeds three years, the court must fix a single non-parole period: s 19AB(1).

Sentences on prisoner serving federal sentence

If a sentence is imposed which increases the balance of the time to be served by a sentenced prisoner to more than three years, and the person is not already subject to a non-parole period or recognizance release order, a single non-parole period must be fixed: s 19AB(2).

Where a person is already subject to a non-parole period: see s 19AD.

Where a person is already subject to a recognizance release order: see s 19AE.

Declining to fix a non-parole period or recognizance release order

If a sentence is not already subject to such an order, the court may decline to make a recognizance release order or fix a non-parole period, if the person’s antecedents or the circumstances of the offence make it inappropriate to do so: ss 19AB(3), 19AC(4) and 19AD(2). Reasons must be given: ss 19AB(4), 19AC(5) and 19AD(5).

(h) Reparation (compensation)

Reparation for loss or expenses incurred by reason of a federal offence may be ordered on any conviction or on any order under s 19B: s 21B. There is no monetary limit on the amount that may be ordered. An order may be made in favour of a person, or the Commonwealth or a public authority. In instances of the latter, do not make an instalment order as the Commonwealth will seek to recover the amount as a civil debt.

(i) Fingerprint orders

Section 3ZL(1) provides that the court may order a convicted person attend a police station or a police officer attend a person in a place of detention, within one month after conviction, to allow fingerprints and/or photographs to be taken.

[15-140] Person suffering from mental illness, etc

The Commonwealth provisions provide that where it appears that the defendant is suffering from a mental illness or an intellectual disability, then, after considering an outline of the facts or other evidence the court considers relevant, the court may either deal with the matter according to law, or if more appropriate, may dismiss the charge and discharge the defendant into the care of a responsible person, with or without conditions for up to three years; or on condition to attend on another person or at a place specified for assessment of the defendant’s mental condition, or treatment, or both, for up to three years; or unconditionally: s 20BQ(1).

Such an order acts as a stay of further proceedings against the defendant for the offence: s 20BQ(2).

The court may also adjourn the proceedings, remand the defendant on bail or make any other appropriate order: s 20BQ(1)(d). However, the court must not make an order under ss 19B, 20, 20AB or 21B (that is, must not make a recognizance, intensive correction, community service or reparation order): s 20BQ(3).

The Commonwealth provisions set out a legislative scheme which is complete on its face and leaves no room for the operation of the New South Wales legislation: see Kelly v Saadat-Talab (2008) 72 NSWLR 305 at [11].

One of the significant differences between the Commonwealth and State legislation is that the defendant must be suffering from a mental illness/intellectual disability at the time of the hearing for the Commonwealth provisions to apply. A person having an underlying condition, but stable on medication would still be considered to have a mental illness: see Kelly v Saadat-Talab at [30].

The court may inform itself as it thinks fit, but not so as to require the defendant to incriminate himself or herself: s 20BR. A magistrate is therefore not required to insist upon strict compliance with requirements of expert evidence, but may form a conclusion based on the whole of the material and applying common sense: DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102 at [38]–[39].

[15-160] Table of penalties

Crimes Act 1914 (Cth)

Following the introduction of the Criminal Code, many of the offences under the Crimes Act were repealed. Set out below are the more common offences remaining.

SECTION

DESCRIPTION

PENALTY (MAX)

29

Destroy or damage Commonwealth property

120 pu ($25,200) and/or 2 yrs

35

Give false testimony

60 pu ($12,600) and/or 12 mths

36

Fabricate evidence

60 pu ($12,600) and/or 12 mths

36A

Intimidate witness

60 pu ($12,600) and/or 12 mths

42

Conspiracy to obstruct, prevent, pervert or defeat the course of justice

120 pu ($25,200) and/or 2 yrs

47

Escape lawful custody

60 pu ($12,600) and/or 12 mths

70

Disclosure of information by Commonwealth officers

60 pu ($12,600) and/or 12 mths

85U

Obstructing carriage of articles by post

60 pu ($12,600) and/or 12 mths

85W

Cause controlled drugs or controlled plants to be carried through post

60 pu ($12,600) and/or 12 mths

89

Trespass on Commonwealth land

10 pu ($2,100)

Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2017 ($210). The penalty unit value for offences committed before that date will be lower.

Criminal Code Act 1995 offences

The most common offences under the Criminal Code are set out below. The penalties relate to summary disposal.

SECTION

DESCRIPTION

PENALTY (MAX)

134.1

Obtain property by deception

120 pu ($25,200) and/or 2 yrs

135.2

Obtain financial advantage

60 pu ($12,600) and/or 12 mths

135.4

Conspiracy to defraud

120 pu ($25,200) and/or 2 yrs

136.1

False/misleading statement in application

60 pu ($12,600) and/or 12 mths

144.1

Forgery

120 pu ($25,200) and/or 2 yrs

145.1

Using forged document

120 pu ($25,200) and/or 2 yrs

148.1

Impersonate Commonwealth public official

60 pu ($12,600) and/or 12 mths

471.1

Theft of articles in post

120 pu ($25,200) and/or 2 yrs

471.12

Using postal service to menace/harass/cause offence

60 pu ($12,600) and/or 12 mths

471.15

Cause explosive, or dangerous or harmful substance, to be carried through post

120 pu ($25,200) and/or 2 yrs

474.17

Using telecommunications service to menace/harass/cause offence

60 pu ($12,600) and/or 12 mths

478.1

Unauthorised access to data on Commonwealth computer

60 pu ($12,600) and/or 12 mths

480.5

Dishonestly obtain personal financial information

60 pu ($12,600) and/or 12 mths

Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2017 ($210). The penalty unit value for offences committed before that date will be lower.

[15-180] Taxation offences

Note:

unless otherwise specified, references to sections in this subdivision are to the Taxation Administration Act 1953 (Cth).

Overview

Serious taxation offences are prosecuted under Ch 7 of the Criminal Code. Most tax offences are dealt with under the Taxation Administration Act 1953. Most offences under the Act are “prescribed taxation offences” which is defined in s 8A as:

  • a taxation offence (other than a prescribed offence) that is committed by a natural person and punishable by a fine and not by imprisonment, or

  • a prescribed offence (other than a prescribed offence that the Commissioner has elected under ss 8F(1) or 8S(1) to treat otherwise than as a prescribed taxation offence) that is committed by a natural person, or

  • a taxation offence that is committed by a corporation.

The Commissioner may elect to prosecute certain offences for a fine only, or for a fine and imprisonment: s 8F. Where an election has been made a copy of the election must be filed with the court where the proceedings were commenced: s 8F(2).

A penalty of up to three times the tax avoided may be imposed for certain offences.

Many matters involve an offence under s 8C of failing to comply with a notice to lodge a tax return, or failing to submit a business activity statement (BAS). If the return is not lodged, the court is usually asked to make an order under s 8G for the return to be furnished by a particular date. A failure to comply with the s 8G order, is itself, an offence: s 8H.

It is important to note:

  • the penalties increase if the defendant has been, in the previous five years, convicted of a relevant offence

  • a prior conviction need not be prior in time. The two convictions may take place before the same court on the same day: s 8B(2).

A prosecution for a taxation offence may be commenced at any time: s 8ZB. Prescribed taxation offences are summary: ss 8A, 8ZA(3) and (4). Costs to a successful party may be awarded: s 8ZN.

The prosecution may rely upon a statement contained in the information (an averment) as prima facie evidence of the matter stated: s 8ZL.

The standard of proof in prescribed taxation offences is beyond reasonable doubt. Sections 13.1 and 13.2 of the Criminal Code, which overrides the Evidence Act 1995 (NSW), provides that the burden of proof is on the prosecution unless the offence provides for some other standard.

In some cases an additional pecuniary penalty may be imposed, based upon the amount of tax avoided: ss 8HA, 8W.

Sentencing principles in taxation offences

For a consideration of the use of s 19B (similar to s 10 Crimes (Sentencing Procedure) Act 1999): see Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568.

For a discussion of penalties for s 8C (tax return) offences: see Federal Commissioner of Taxation v Hagidimitriou (1985) 16 ATR 839. Note that it is a single court decision and over 20 years old.

Common features in taxation matters referred to in Commissioner of Taxation v Baffsky and Viney v Greaves (1987) 48 SASR 169 include:

  • need for deterrence

  • amount of tax assessed — debt or refund expected

  • whether returns have been lodged

  • length and reason for delay in lodging returns

  • whether failure to comply was due to actions of another

  • number of notices issued

  • effect of conviction.

If the Australian Taxation Office has levied an administrative penalty, this must be returned to the defendant when proceedings are commenced. It will be a starting point for any prosecution penalty: Vlahov v Federal Commissioner of Taxation (1993) 26 ATR 49.

[15-200] Table of penalties

SECTION

DESCRIPTION

PENALTY (MAX)

8C

Failure to comply with requirements (for example, tax return)

(a) 

if convicted in previous 5 yrs of a relevant offence: s 8B

(b) 

if previously convicted in previous 5 yrs of 2 or more relevant offences: s 8B
and Commissioner electing under s 8F(1) to treat offence otherwise than as a prescribed taxation offence.

The defendant can be ordered under s 8G to comply with the
original requirement.

20 pu ($4,200) and s 8HA

40 pu ($8,400) and s 8HA

50 pu ($10,500) and/or 12 mths and s 8HA

8D

Failure to answer questions when attending before Commissioner

(a) 

if convicted in previous 5 yrs of a relevant offence: s 8B

(b) 

if previously convicted in previous 5 yrs of 2 or more relevant offences: s 8B
and Commissioner electing under s 8F(1) to treat offence otherwise than as a prescribed taxation offence.

The defendant can be ordered under s 8G to comply with the
original requirement.

20 pu ($4,200) and s 8HA

40 pu ($8,400) and s 8HA

50 pu ($10,500) and/or 12 mths and s 8HA

8H

Refusal to comply with order under s 8G

50 pu ($10,500) and/or 12 mths and s 8HA

8K

False/misleading statement to tax officer

(a) 

if previously convicted of a relevant penalty offence: s 8B

20 pu ($4,200) and s 8W

40 pu ($8,400) and s 8W

8L

Incorrectly keeping records

(a) 

if previously convicted of a relevant penalty offence: s 8B

20 pu ($4,200) and s 8W

40 pu ($8,400) and s 8W

8N

Recklessly making false/misleading statements

(a) 

if previously convicted of a relevant offence and election
to treat other than as a prescribed offence: s 8B

30 pu ($6,300) and s 8W

50 pu ($10,500) and/or 12 mths

8Q

Recklessly/incorrectly keeping records etc

(a) 

if previously convicted of a relevant offence and
Commissioner elects to treat other than as
a prescribed offence: s 8B

30 pu ($6,300) and s 8W

50 pu ($10,500) and/or 12 mths

8T

Incorrectly keeping records with intention of
deceiving or misleading

(a) 

if previously convicted of a relevant offence

50 pu ($10,500) and/or 12 mths

 

100 pu ($21,000) and/or 2 yrs

8U

Falsifying or concealing identity with intention of
deceiving or misleading

(a) 

if previously convicted of a relevant offence

50 pu ($10,500) and/or 12 mths

 

100 pu ($21,000) and/or 2 yrs

8WA

Unauthorised requirement that tax file number be quoted

100 pu ($21,000) and/or 2 yrs

8WB

Unauthorised recording of tax file number

100 pu ($21,000) and/or 2 yrs

8WC

Conducting affairs so as to avoid tax file number requirements

100 pu ($21,000) and/or 2 yrs

8XA

Unauthorised access to taxation records

100 pu ($21,000) and/or 2 yrs

Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2017 ($210). The penalty unit value for offences committed before that date will be lower.

[15-220] Social welfare fraud

Most prosecutions are commenced under the Social Security (Administration) Act 1999. The more serious fraud matters may be commenced under the Criminal Code.

Depending on the date of the offences, there may still be reliance upon the Crimes Act and the Social Security Act 1991, which offence provisions have now been repealed.

Offences under the Social Security (Administration) Act are summary — the maximum penalty is 60 pu ($12,600) and/or 12 months: s 217 Social Security (Administration) Act 1999 and ss 4B, 4H Crimes Act 1914.

The most common charge under the Social Security (Administration) Act is:

SECTION

DESCRIPTION

215

Obtain payment not payable

The most common charges under the Criminal Code are:

SECTION

DESCRIPTION

PENALTY (MAX)

135.1(5)

Dishonestly cause a loss — indictable but on
summary disposal

60 pu ($12,600) and/or 12 mths

135.2 Obtain financial advantage — summary 60 pu ($12,600) and/or 12 months
Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2017 ($210). The penalty unit value for offences committed before that date will be lower.

For a discussion of the application of the Criminal Code to an offence under s 135.2: see DPP v Neamati (Cth) [2007] NSWSC 746. For a discussion of whether an omission can amount to an offence against s 135.2: see DPP (Cth) v Keating (2013) 248 CLR 459.

Sentencing in social security fraud

Common features in higher court cases include:

  • the sum of money involved: R v Hawkins (1989) 45 A Crim R 430

  • period of time over which fraud was committed: R v Delcaro (1989) 41 A Crim R 33

  • level of sophistication of the fraud: R v Hart [1999] NSWCCA 204

  • type of charge and maximum penalty

  • general deterrence: R v Purdon (unrep, 27/3/97, NSWCCA)

  • delay in bringing proceedings: Winchester v R (1992) 58 A Crim R 345

  • plea of guilty: Winchester v The Queen.

[15-240] Offences involving border controlled drugs, plants and precursors

Expansive legislation directed to offences of exporting and importing into, and trafficking within Australia of drugs is found in Ch 9, Pt 9.1 of the Criminal Code.

The term prohibited imports, which was used in s 233B(1) Customs Act 1901 (rep), has been replaced by the terms border controlled drugs and border controlled precursors in the Code. The main offences are under Div 307 where a person imports/exports a substance and is reckless as to whether the substance is a border controlled drug, plant or precursor. Section 300.5 provides in essence, that it is not necessary for the prosecution to prove the person knew or was reckless as to the particular identity of the border controlled drug, plant or precursor.

[15-260] Money laundering offences

Division 400 Criminal Code contains offences of money laundering which prohibit dealing with money or other property which is either a proceed of crime or intended to become an instrument of crime. While many of the offences are strictly indictable others may be dealt with summarily, including the offences under s 400.9 which prohibit dealing with money or other property which may reasonably be suspected of being proceeds of crime.

[15-280] Child pornography and child abuse offences

Chapter 10, Pt 10.5 Div 471 (subdiv B-C) and Pt 10.6 Div 474 (subdiv D and F) Criminal Code contain offences of using postal or telecommunications services for child pornography material or child abuse material. They prohibit possessing, producing, supplying or obtaining such material through use of postal or telecommunications services, as well as using these to procure a child to engage in sexual activity, or to “groom” a child. All are strictly indictable with the exception of offences of using such services to send indecent material (ss 471.26, 474.27A).

[15-300] Customs offences

Offences under the Customs Act 1901 include smuggling, importing/exporting prohibited goods and evasion of duty. Also included are offences under s 233BAA of importing/exporting “tier 1” goods which include ephedrine, pseudoephedrine and certain performance enhancing drugs.

Smuggling

Section 233(1)(a) prohibits the smuggling of goods. “Smuggling” is defined as any (or any attempted) importation, introduction or exportation of goods with intent to defraud the revenue: s 4(1). The intention to defraud the revenue must be clearly made out: R v Amenores [1980] 2 NSWLR 34.

The effect of the penalty provisions of ss 233AB(1) and 245(4) is that when dealt with summarily, the following penalties may be imposed:

  • For offences where the goods concerned had been entered for home consumption:

    • where the court can determine the duty that would have been payable on the smuggled goods, a penalty not exceeding five times the amount of the duty and not to exceed 200 pu ($42,000), or

    • where the court cannot determine the duty that would have been payable on the smuggled goods, a penalty not exceeding 200 pu ($42,000).

Importing/exporting

Section 233(b) and (c) prohibit the importation and exportation of prohibited imports/exports. Penalties will vary depending on the nature of the goods.

The effect of the penalty provisions of ss 233AB(2) and 245(4) is that when dealt with summarily, the following penalties may be imposed:

  • where the court can determine the value of the goods to which the offence relates, a penalty not exceeding three times the amount of the value of those goods and not to exceed 200 pu ($42,000), or

  • where the court cannot determine the value of the goods, a penalty not to exceed 200 pu ($42,000).

Evasion of duty

Section 234(1)(a) provides that a person shall not evade payment of any duty which is payable. If the duty can be determined, a penalty not exceeding five times the amount of that duty and not less than two times that amount to a maximum fine of 200 pu ($42,000). If the duty cannot be determined, the maximum fine is 200 pu ($42,000): s 234(2)(a). Section 234(1)(d) includes the offence of intentionally making a statement to an officer, reckless as to it being false/misleading. The penalty is a maximum fine of $21,000 and up to twice the duty payable on the goods: s 234(3).

In summary matters not punishable by imprisonment, the prosecution may rely on the averments in the information as prima facie proof of every factual element of an offence except the intent of the defendant (if that needs to be proved): ss 255(1); (4).

Section 263 of the Customs Act gives the court power to award costs to a successful party independently of the Criminal Procedure Act 1986: Commissioner of Taxation (Cth) v MacPherson [2000] 1 Qd R 496.

[15-320] Offences under the Quarantine Act 1908

Section 67(1) details the basic illegal importation offence. The Criminal Code applies in determining fault elements and onus of proof.

The maximum penalty when determined summarily, is a fine not exceeding 120 pu ($25,200) or imprisonment not exceeding two years: s 4J(3) Crimes Act 1914.

[15-340] Offences under the Migration Act 1958

Sections 229, 230 and 232 deal with the carriage of unlawful non-citizens in Australia. The offences are summary (maximum penalty 100 pu).

The offence of people smuggling under s 233A may be dealt with summarily (maximum penalty on summary conviction 2 yrs and/or 120 pu). Aggravated offences of people smuggling under s 233B (danger of death or serious harm etc.) and s 233C (at least 5 people), and the aggravated offence concerning false documents and/or false or misleading information relating to non-citizens (as least 5 people) (s 234A) are strictly indictable.

Otherwise, subject to the above, the offences of supporting people smuggling, making false statements to officers, concealing or harbouring illegal non-citizens, and using or possessing another person’s visa, may be dealt with summarily if the informant and defendant consent and the court considers it appropriate. The maximum penalty on summary conviction is two years imprisonment and/or a fine of 120 pu ($25,200).

[15-360] Passport offences

Offences involving foreign travel documents are found in Pt 3 Foreign Passports (Law Enforcement and Security) Act 2005. Offences involving Australian travel documents are in Pt 4 Australian Passports Act 2005 (Cth).

[15-380] Offences under the Financial Transaction Reports Act 1988

The Act provides for the reporting of certain transactions and imposes certain obligations in relation to cash or bullion. Section 15(1) requires persons transferring Australian currency or foreign currency out of Australia or into Australia in an amount not less than A$10,000 in value to make a report. A breach of the section may be dealt with summarily or on indictment. Maximum penalty upon summary conviction where the offender is a natural person — a fine not exceeding 60 pu ($12,600) or imprisonment not exceeding 12 months or both; Body corporate — fine not exceeding 300 pu ($63,000): s 15(6).

Section 24(2) prohibits the operating of an account in a false name. Maximum penalty upon summary conviction: Natural person — fine not exceeding 60 pu ($10,800) or imprisonment not exceeding 12 months or both; Body corporate — fine not exceeding 300 pu ($54,000).

[15-400] Proceeds of Crime Act 2002

Property used in connection with the commission of, or being the proceeds of, an indictable offence, a foreign indictable offence, or an indictable offence of Commonwealth concern is “tainted property” as defined in the Dictionary to the Act. Each of the terms “proceeds”, “indictable offence”, “foreign indictable offence” and “indictable offence of Commonwealth concern” are separately defined.

Following application by an “authorised officer” (defined in s 338), a freezing order may be made against the balance of an account with a financial institution provided the magistrate is satisfied in the terms specified in s 15B(1)(c). The determination under s 15B(1) need not be based on a finding as to the commission of a particular offence: s 15B(3).

Section 335(6) provides that a magistrate has proceeds jurisdiction to make a restraining order under s 17, a forfeiture order under s 48, or a pecuniary penalty order under s 116(1)(b)(i), if the order relates to an offence for which the person was convicted before a magistrate.

The civil standard of proof applies with respect to applications made under the Act: s 317(2).