Local Court Bench Book — Commonwealth offences

For further information in relation to Commonwealth sentencing, see Sentencing Bench Book at Crimes Act 1914 (Cth) — sentencing Commonwealth offenders at [16-000]–[16-110] and D Lane, Sentencing of federal offenders in Australia: a guide for practitioners, 6th edn, April 2023.

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)):

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).

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

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

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. This includes when an application is made for the case to be dealt with under s 20BQ: see further at [18-140] Person suffering from mental illness or intellectual disability.

The requirement to obtain consent is particularly important in cases often seen in the Local Court, for example, use carriage service to menace, harrass etc under s 474.17 of the Code.

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 3 Procedure for committal proceedings in the Local Court pursuant to the Early Appropriate Guilty Plea Scheme at [4.5]; 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 (in that case, use carriage service to menace) be dealt with summarily results in jurisdictional error: see Morgan v District Court of NSW (2017) 94 NSWLR 463 at [23].

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 ($18,780). If the maximum penalty provided exceeds five years, the summary penalty is two years and/or 120 pu ($37,560): 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 2023 a penalty unit is $313.

Note:

for offences committed from 31 July 2015 until 30 June 2017, a penalty unit is $180. For offences committed from 1 July 2017 until 30 June 2020, a penalty unit is $210. For offences committed from 1 July 2020 to 31 December 2022, a penalty unit is $222.00. For offences committed from 1 January 2023 to 30 June 2023, a penalty unit is $275.00.

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 ($18,780): s 4J(5).

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.

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.

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).

See Sovereign citizens — common arguments, rebuttals and caselaw which is available through the Magistrates’ Resources Section on JIRS.

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).

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

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.

Section 16A(2)(g) provides that the fact and timing of a guilty plea, including any resulting benefit to the community, victims and witnesses can be taken into account. It is desirable, although not mandatory, to specify the discount given in respect of a guilty plea: Huang aka Liu v R [2018] NSWCCA 70 at [9].

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 …”.

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):

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).

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 that the court thinks proper to consider”. It is desirable to state on which ground or grounds in s 19B the order is based.

The term recognizance is used instead of bond.

Section 20A(5) provides the 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.

No orders for default etc need be made.

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

The NSW option of a CCO is available as it is listed as a sentencing option in s 20AB(1AA). See [16-320] Community Correction Order for the conditions that may be made and for the sample order.

The NSW option of an ICO is available as it is listed as an additional option under s 20AB(1AA) and also prescribed by the Regulations. See [16-340] Intensive Correction Order for the conditions that may be made and for the sample order.

Reparation for loss or expenses may be ordered on a conviction or order under s 19B: s 21B. There is no monetary limit on the amount. 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.

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.

The test under s 20BQ is a different test to that applied under NSW legislation. While s 12 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 refers to mental health impairment and cognitive impairment, s 20BQ refers to mental illness within the meaning of the civil law of NSW. The Mental Health Act 2007 (NSW) s 4 defines mental illness as a condition that seriously impairs temporarily/permanently mental functioning and is characterised by one or more of symptoms of:

The Commonwealth provisions leave no room for the operation of the NSW legislation: see Kelly v Saadat-Talab (2008) 72 NSWLR 305 at [11]. 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].

The length of an order under s 20BQ can be up to 3 years.

There is NO legislative power to take action in the event of a breach of the order.

Such an order acts as a stay of further proceedings 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, generally 20AB or 21B, that is, must not make a recognizance, intensive correction or reparation order: s 20BQ(3). A residential treatment order is now one of the sentencing alternatives available under s 20AB, but when a court is dealing with a mentally ill defendant under s 20BQ, such an order may still be made: s 20BQ(3).

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.

Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2023 ($313). The penalty unit value for offences committed before that date will be lower.

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

Note:

the dollar value in the table is calculated on the basis of the value of a penalty unit as at 1 July 2023 ($313). The penalty unit value for offences committed before that date will be lower.

Note:

Where a penalty is marked with * it is a “Commonwealth child sexual offence”: Crimes Act 1914, s 3(1). See above at [18-120] (g) Sentences of imprisonment under Commonwealth child sex offenders must serve actual term of imprisonment: s 20(1)(b), (1B).

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:

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:

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.

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] NSWCCA 332.

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

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.

Common features in higher court cases include:

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:

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:

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 ($62,600). If the duty cannot be determined, the maximum fine is 200 pu ($62,600): 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 100 pu ($31,300) 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): s 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.