Sentencing Bench Book — Crimes Act 1914 (Cth) — sentencing Commonwealth offenders

It is implicit in Pt IB Crimes Act 1914 that the sentencing court must have regard to the sentences imposed in all States and Territories: The Queen v Pham (2015) 256 CLR 550 at [23], [41]. The Commonwealth Sentencing Database (available through JIRS) contains information about the sentences imposed nationally for Commonwealth offences dealt with by the Commonwealth Director of Public Prosecutions.

In The Queen v Pham, the plurality (French CJ, Keane and Nettle JJ) said at [24]:

Earlier in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the High Court, citing Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, stated at [135]:

The High Court expressly applied the Farah Constructions Pty Ltd v Say-Dee Pty Ltd principle to the Crimes Act 1914 in Hili v The Queen (2010) 242 CLR 520 at [57]. Hili at [57] was applied in The Queen v Pham at [18], [36].

The construction of all Commonwealth criminal legislation is subject to this principle.

The principle also applies to common law (sentencing) principles: CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [50]; R v NZ (2005) 63 NSWLR 628 at [165]. See also Tillman v AG (NSW) (2007) 70 NSWLR 448 per Giles JA and Ipp JA at [105]:

There is only one common law in Australia: Lipohar v The Queen (1999) 200 CLR 485 at [45]–[46]. Courts apply the principle of comity in the application of the common law. In R v Gent (2005) 162 A Crim R 29 at [29], Johnson J said that when construing and applying Commonwealth legislation, the court applied “a rule of comity with respect to decisions of intermediate appellate courts of other States dealing with the same legislation”. The comity principle was also referred to and applied by the Victorian Court of Appeal in DPP (Cth) v D’Alessandro (2010) 26 VR 477 at [21].

In Hili v The Queen (2010) 242 CLR 520, the High Court held (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [18]; Heydon J agreeing at [70]):

The court said, at [57], that there was a “self-evident” need for consistency of decisions throughout Australia:

The plurality in The Queen v Pham (2015) 256 CLR 550 affirmed Hili v The Queen in the following passage at [18]:

Bell and Gaegler JJ said at [50]:

It was an error for the Court of Appeal to rely only on Victorian appeal cases to the exclusion of other jurisdictions in determining whether the respondent’s sentence was manifestly excessive: The Queen v Pham at [30], [41].

The administration of criminal justice should be systematically fair. This “involves, amongst other things, reasonable consistency”: Wong v The Queen (2001) 207 CLR 584 per Gleeson CJ at [6]. Chief Justice Gleeson’s statement in Wong v The Queen was cited with approval in Hili v The Queen at [47]. The High Court added at [49]:

The High Court has repeatedly emphasised that the consistent application of the relevant legal principles is more important than numerical equivalence and that, in seeking such consistency, it is important to have regard to what has been done in other cases: Hili v The Queen at [48]–[49], [53]–[54]; Barbaro v The Queen (2014) 88 ALJR 372 at [40], [41].

In Hili v The Queen at [67], the High Court reviewed similar cases and dismissed the appeal because the sentences were very much lower than those imposed in the closely comparable interstate cases: R v Wheatley (2007) 67 ATR 531; [2007] VCC 718 and Ly v R [2007] NSWCCA 28. In R v Nikolovska [2010] NSWCCA 169 at [74] (decided after Hili v The Queen), the Court of Criminal Appeal extracted cases from McClellan CJ at CL’s schedule (which included interstate cases) in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 because they “provide[d] some insight into the relevant sentencing range: (cf Hili v The Queen at [64])”.

It is apparent from the discussion of the relevant sentencing principles for child pornography offences in P Mizzi, T Gotsis and P Poletti, Sentencing offenders convicted of child pornography and child abuse material offences, Research Monograph 34, Judicial Commission of NSW, Sydney, 2010, that there is, to a large extent, a nationally consistent approach to sentencing for such matters at least in terms of the general sentencing principles which are applied. See also DPP (Cth) v D’Alessandro (2010) 26 VR 477 at [21].

There may be issues associated with achieving consistency when trying to equate certain Commonwealth offences with a State equivalent. In R v Nakash [2017] NSWCCA 196, Simpson JA (N Adams J agreeing) adopted one approach saying, at [18]:

However, in Rajabizadeh v R [2017] WASCA 133, the Court of Appeal (WA) concluded, at [68], that it was wrong in principle to seek to achieve consistency by equating sentences for certain Commonwealth offences with a State equivalent, observing:

In seeking consistency, while care must be taken, courts (including first instance judges) must have regard to what has been done in other cases: Hili v The Queen at [53]; Barbaro v The Queen at [41]; The Queen v Pham (2015) 256 CLR 550 at [30], [41]; R v Nguyen [2010] NSWCCA 238 at [106]. The High Court has held Simpson J’s approach in DPP (Cth) v De La Rosa at [303]–[305] accurately identified the proper use of information about sentences that have been passed in other cases: Hili v The Queen at [54]; Barbaro v The Queen at [41]. Justice Simpson at [304] said that a range of sentences imposed in the past:

However, when considering past sentences “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”: DPP (Cth) v De La Rosa per Simpson J at [304], citing Wong v The Queen at [59]; Barbaro v The Queen at [41]; The Queen v Pham at [29]. Notwithstanding those limitations, and while noting the care that needed to be taken in the use of national schedules, in R v Nguyen at [104]–[107], the court confirmed that a schedule of drug importation cases, where the offender was a key organiser, although not at the pinnacle of the organisation, showing that generally head sentences were over 20 years, with a number of offenders receiving sentences of life imprisonment, was useful as a guide. The schedule prepared for the purposes of that case updated one prepared for R v Lee [2007] NSWCCA 234.

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): Wong v The Queen at [71] per Gaudron, Gummow and Hayne JJ.

There is no distinct statement of the purposes of sentencing in the Crimes Act 1914, unlike, for example, s 3A 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: ss 16A(2)(j), (ja), (k) and (n).

The Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) inserted s 16A(2)(ja) into the Act in November 2015 to explicitly provide that “the deterrent effect that any sentence or order under consideration may have on other persons” was a matter required to be taken into account when sentencing a federal offender. The introduction of s 16A(2)(ja) was not an indication that before its commencement the principle of general deterrence was not a relevant factor but to clarify that it is a factor: Aitchison v R [2015] VSCA 348 at [66], [69]. General deterrence has been a feature of sentencing practice throughout all jurisdictions, not just Australia, and express words would have been necessary to warrant its exclusion: Aitchison v R at [66], applying DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 378, where the NSWCCA (shortly after Pt IB commenced) had concluded that the duty imposed on a court by s 16A(1) to ensure the sentence or order “is of a severity appropriate in all the circumstances of the offence” imported general principles of sentencing law including general deterrence.

The factors listed under s 16A(2) are not categorised into aggravating or mitigating factors, unlike s 21A Crimes (Sentencing Procedure) Act 1999 (NSW). Nor is the list exhaustive, as 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 at 237–238, the NSWCCA confirmed 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. In a joint judgment, Gleeson CJ, McHugh, Gummow and Hayne JJ 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, when a person is convicted of federal offences, to take into account other federal offences (including indictable offences where the court has jurisdiction) in respect of which the offender admits guilt. The offender does not have to be “convicted” of the additional federal offences for them to be taken into account. This provision, and the process, is similar to s 33(2) Crimes (Sentencing Procedure) Act 1999 (NSW): see [13-200].

A document, found at Form 1, Sch 3 Crimes Regulations 1990 (Cth), listing the additional federal offences the person “is believed to have committed” is filed in court: s 16BA(1)(a)-(b). The Form 1 must be signed by the prosecutor and the offender: s 16BA(1)(c).

Before passing sentence, the court may, if in all the circumstances it is proper to do so, ask the offender whether they admit guilt in respect of the additional offences and wish them to be taken into account in passing sentence for the offences of which they have been convicted.

If the offender admits guilt and wishes to have the additional offences taken into account, the court may do so when passing sentence: s 16BA(2).

The sentencing judge must make the various statutory inquiries and obtain the necessary admissions and indication from the offender that they wish to have the additional offences taken into account: Purves v R [2019] NSWCCA 227 at [5]. However, where the offender is legally represented, their consent to the use of this procedure can be based on their legal representative’s words or conduct: Kabir v R [2020] NSWCCA 139 at [49]–[50]. A failure to obtain the necessary consent cannot be remedied on appeal because s 16BA(1) requires that this procedure be undertaken by the court which convicts the offender: Purves v R at [6].

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 the offences on the indictment to which 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. Justice Howie stated at [9]:

In Huang v R (2018) 96 NSWLR 743, a five-judge Bench unanimously held that the principle in The Queen v De Simoni (1981) 147 CLR 383 is confined to offences for which an offender is sentenced, and does not extend to matters taken into account pursuant to s 16BA: [8]; [54]; [98].

Section 16A(2)(d) enables a court to take into account the personal circumstances of any victim of the offence. The operation of this section is limited to the primary victim, or victims, of a particular offence. It does not include the concept of a family victim as exists in s 26 Crimes (Sentencing Procedure) Act 1999: R v Nahlous (2013) 228 A Crim R 503 at [104].

Where the offences involve certain Commonwealth child sex offences, ss 272.30, 471.29A and 474.29AA of the Criminal Code (Cth) operate in addition to s 16A and require the court to take into account the victim’s age and maturity if it is relevant to do so.

For offences committed before 29 June 2013, s 68 Judiciary Act 1903 (Cth) applies State and Territory procedural laws to federal prosecutions in State and Territory courts. Therefore, victim impact statements and pre-sentence reports could be tendered pursuant to the power under s 68. For offences committed on or after 29 June 2013, s 16A(2)(ea) Crimes Act 1914 applies. It provides that a court can have regard to any victim impact statement for the victim who has suffered harm as a result of the offence. The provisions of the Crimes Act 1914 relevant to these statements are discussed in more detail in Victims and victim impact statements at [12-870].

Section 16A(2)(f) permits a court sentencing a federal offender to take into account action taken to make reparation or contrition shown “in any other manner”. The former includes the repayment of money obtained as a consequence of an offence before pecuniary penalty proceedings under the Proceeds of Crime Act 2002 have been commenced: R v Host [2015] WASCA 23 at [25]; [198]. The effect of s 320 Proceeds of Crime Act is that the fact of making a pecuniary penalty order and payments made pursuant to it are irrelevant considerations which cannot be taken into account under s 16A(2)(f): R v Host at [25]; [115]; [198]; s 320(d). To the extent s 320 is inconsistent with s 16A(2)(f), s 16A(2)(f) must be read down to give effect to s 320: R v Host at [22]–[23]; [115]; [196]–[197].

Subjective considerations associated with a guilty plea, which do not attract a separate sentencing discount, may inform the extent to which an offender is contrite and may be taken into account in accordance with s 16A(2)(f): Betka v R [2020] NSWCCA 191 at [59]; Bae v R [2020] NSWCCA 35 at [54]–[56]; R v Borkowski [2009] NSWCCA 102 at [32]ff. The overlap between contrition and a guilty plea, and the need to avoid double-counting, is discussed further below.

Since July 2020, s 16A(2)(g) provides that the sentencing court must take into account the fact and timing of an offender’s guilty plea, and the degree to which both resulted in any benefit to the community or any victim of, or witness to, the offence. The section in its current form gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R (2018) 96 NSWLR 1 and Bae v R [2020] NSWCCA 35: Small v R [2020] NSWCCA 216 at [73].

Cases which considered the previous form of s 16A(2)(g) and discussed the approach to be taken in Commonwealth matters when dealing with the utilitarian value of guilty plea remain relevant.

In Bae v R, Johnson J (Bell P and Walton J agreeing) concluded that the principles set out in R v Borkowski [2009] NSWCCA 102 at [32]–[33] in respect of the utilitarian discount for State offences could practically assist for Commonwealth offences: at [52]–[54].

It is desirable to specify the discount given for a guilty plea in the interests of transparency: Huang aka Liu v R [2018] NSWCCA 70 at [9]: Xiao v R at [279]–[280]; Markarian v The Queen (2005) 228 CLR 357 at [24]; Cahyadi v R [2007] NSWCCA 1 at [34]. However, a failure to do so would not of itself constitute error: Huang aka Liu v R at [9].

It is an error to specify a range of percentage discounts as distinct from a specific percentage: Huang aka Liu v R at [9].

The guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383 which specified the discount to be applied for a plea of guilty does not apply to Commonwealth matters (see [111]); Lee v R [2012] NSWCCA 123 at [58]. As to the range that should be adopted, given there are different levels of discount for guilty pleas under the sentencing laws of the various States and Territories, adopting and applying a regime specific only to New South Wales may be at variance with the principles of national sentencing consistency for Commonwealth offences: Hili v The Queen (2010) 242 CLR 520; The Queen v Pham (2015) 256 CLR 550; Naizmand v R [2018] NSWCCA 25 at [42]–[43].

A distinction is recognised between the various aspects of a guilty plea and reference to objective and subjective factors has been described as a useful way to distinguish between these considerations: Bae v R at [55]; Diaz v R [2019] NSWCCA 216 at [77]–[83].

Identifying the utilitarian value of a guilty plea involves an objective assessment to be undertaken for the purpose of s 16A(2)(g): Bae v R at [55], [57]; Xiao v R at [280]; Huang v R (2018) NSWCCA 70 at [9], [49], [55]. It is only in respect of the utilitarian value of a plea of guilty that an arithmetical discount will be applied: Betka v R [2020] NSWCCA 191 at [62].

The plurality in Cameron v The Queen (2002) 209 CLR 339 recognised that a guilty plea, as well as facilitating the course of justice, could be relevant to other subjective considerations such as remorse: at [11]. Facilitating the course of justice was described as a mitigating factor in Chuang v R [2020] NSWCCA 60 at [17]. If an offender demonstrates contrition involving facilitation of the course of justice, this falls on the subjective side of factors and may be taken into account in accordance with s 16A(2)(f): Bae v R at [55], [57]; Chuang v R [2020] NSWCCA 60 at [15]–[19]. Factors such as remorse and contrition form part of the process of instinctive synthesis, but do not attract an arithmetical discount, and care should be taken to avoid double counting: Bae at [57]; Chuang at [19].

There is “no bright line test” for distinguishing between objective and subjective consideration and these may overlap: Bae v R at [56]; Singh v R [2018] NSWCCA 60 at [28]. In Singh v R at [28]–[30], the court rejected a submission that the sentencing judge erred by failing to distill the factors “relevant to the question of contrition without reference to the entering of the plea of guilty”. There was no requirement for a judge to approach the task in that way because it would make a difficult task “near impossible” and would be antithetical to the general approach explained by the High Court in Wong v The Queen (2001) 207 CLR 584 at [76] or the NSWCCA’s treatment of the question in Xiao v R: at [30].

Where an offender pleads guilty and also assists the authorities, a combined discount should be given: R v Sukkar (2006) 172 A Crim R 151. The appropriate range for such a combined discount is generally between 20–50%, with 50% 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 R v Sukkar at [56], the combined discount of 45% was reduced to 35% on appeal, while in R v SC the combined discount of 50% resulted in a manifestly inadequate sentence, but the court exercised its discretion not to intervene: R v Sukkar at [53], [55].

It is unnecessary to quantify a combined discount in terms of months as opposed to a percentage: Wu v R [2016] NSWCCA 96 at [57].

For a further discussion, see Justice Howie, writing extra-curially in “Sentencing discounts: are they worth the effort?” (2008) 8(4) TJR 473 at 475.

As to the procedure to adopt when considering an offender’s assistance to authorities see [12-210] Procedure.

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 16AC(1) and (2) 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 or order is being reduced for that reason and the sentence or order that would have applied otherwise. This requirement assists an appellate court in re-sentencing an offender who has failed to comply with the undertaking. Section 16AC was inserted by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), which relevantly commenced on 27 November 2015 and repealed the predecessor provision s 21E.

Failing to comply with the requirement in s 16AC(2) to identify the sentence that would have been imposed but for the undertaking to co-operate in the future, is an error: Dagher v R [2017] NSWCCA 258 at [8].

Section 16AC refers to the reduction of a “sentence”, “non-parole period” or “order”, as distinct from its predecessor s 21E which referred only to a “sentence” and “non-parole period”. The operation of s 16AC therefore extends to all penalties imposed on federal offenders, including fines and recognizance orders.

Discounts for assistance are intended to foster the interests of law enforcement and recognise the contrition involved as well as the potential risks to an offender. When allowing a discount, it is important the offender is clearly apprised of the fact a benefit is being conferred: R v A [2004] NSWCCA 292 at [25].

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 (and s 16AC as its successor) involves prospective co-operation. The two bases for a discount are distinct and should not be confused: R v Vo at [37], citing R v Gladkowski (2000) 115 A Crim R 446, where the Queensland Court of Appeal held at [11] that s 16A(2)(h):

It was held under the statutory predecessor to s 16AC (s 21E) that it is erroneous to give a combined reduction for past and future co-operation rather than separately addressing future co-operation: R v 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: R v Vo at [43]; R v Tae at [20], [32].

Unlike discounting for future assistance under s 16AC, 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. Chief Justice Gleeson said at 228:

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

While it is not uncommon for a judge to give a single discount for both the plea and assistance, in some cases, specifying a separate discount for assistance to the authorities may be justified. In R v El Hani, Howie J pointed out at [70]:

The range of discount normally allowed for assistance to the authorities has been held to be 20–50%: R v El Hani at [71]; R v Sukkar (2006) 172 A Crim R 151 at [5]; compare 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 at [73]; R v Barrientos [1999] NSWCCA 1 at [47] where Abadee J reviewed the authorities on assistance in respect of Commonwealth offences, including R v Dinic (1997) 149 ALR 488 and R v Cartwright. In R v El Hani, the court found at [73] that it was within the sentencing judge’s discretion to determine that a discount of 12.5%:

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]:

Failure to comply with undertaking

Section 16AC(3) (formerly s 21E(2)) entitles the Director of Public Prosecutions (DPP) to appeal, at any time, against the sentence when the offender fails, without reasonable excuse, to comply with the undertaking. The DPP bears the onus of proving, beyond reasonable doubt, that the failure was without reasonable excuse: R v MI [2018] NSWCCA 151 at [39].

Under s 16AC(4)(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 16AC(4)(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 16AC(4)(a). The court in R v Vo (referring to the predecessor to s 21E) stated at [38]:

In R v MI the offender partially failed to comply with an undertaking. In determining the sentence to be imposed, the court found the partial assistance provided was worthless in a practical sense, there were no compelling countervailing factors and that the entire discount for future assistance should be removed: at [76], [80].

Sentence assessment reports may be useful to alert the court to the “physical or mental condition” of the offender, as a matter the court should take into account under s 16A(2) (m) in passing sentence, or for the purpose of considering the orders available for sentencing persons with an intellectual disability or mental illness under Pt IB, Div 9 Crimes Act 1914. For further details see [16-110].

The weight to be attached to prior good character may vary depending on the type of offence. The lack of a criminal record will have less significance for a drug trafficking offence than for some other fields of crime: R v Leroy (1984) 2 NSWLR 441. In R v Leroy, the defendant was convicted of being knowingly concerned in the importation of cocaine, contrary to s 233B (rep) Customs Act 1901 (Cth). Chief Justice Street 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) Crimes Act 1914. 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]. A judge who found that the applicant had deliberately given false evidence was also entitled to find she was not a person of good character despite her lack of prior convictions: Nguyen v R [2016] NSWCCA 5 at [25], [27].

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 him or her to commit the offence: R v Rivkin (2004) 59 NSWLR 284 at [410]; R v Boughen (2012) 215 A Crim R 476 at [73].

The NSW Court of Criminal Appeal observed in R v Gent (2005) 162 A Crim R 29 at [61] that:

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 p DPP (Cth) [2004] QCA 469. Justice Johnson in R v Gent concluded at [64] that there was:

However, this issue was addressed again, and more directly, in Mouscas v R [2008] NSWCCA 181 at [37], which involved a State child pornography offence. The court concluded that it was legitimate for a sentencing court to give less weight to prior good character as a mitigating factor in child pornography offences. This aspect of that judgment was approved in the context of Commonwealth child pornography offences by the Victorian Court of Appeal in DPP (Cth) v D’Alessandro (2010) 26 VR 477 at [26], [27].

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 then Attorney-General, the 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 argued 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) JOB 37 at 38–39. The ALRC, in its report on sentencing, had earlier supported the retention of “cultural background” in s 16A: Same crime, same time: sentencing of federal offenders, Report No 103, April 2006, at [29.45].

The relevance of Aboriginality at sentence is thus governed by the common law on the subject, as to which see [10-470].

Section 16A(2)(ma) applies to federal offenders charged with, or convicted of, an offence from 20 July 2020: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020, s 2; Sch 8 item 7. The section requires consideration of whether the person’s standing in the community was used to aid the commission of the offence and, if so, is taken to aggravate the offence’s seriousness (cf, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999). The Explanatory Memorandum said this amendment was intended to:

Although the Explanatory Memorandum only refers to offences involving the sexual abuse of children, the provision is not so limited and applies to all offences. The prohibition in s 16A(2A) against taking into account any form of customary law or cultural practice as a reason to aggravate the seriousness of the criminal behaviour does not apply if a person’s standing in the community aided the commission of the offence.

The current position in NSW is that 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 Togias (2001) 127 A Crim R 23 at [13]–[17]; see the discussion of R v Togias in HJ v R [2014] NSWCCA 21 at [67]–[72] and the WA Court of Appeal decision of R v Sinclair (1990) 51 A Crim R 418. The authority of R v 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 Zerafa (2013) 235 A Crim R 265, the court noted the difference of approach between jurisdictions as to the application of s 16A(2)(p) but repeated that any change in the current position could only be effected by the High Court: at [93]; see also R v Togias at [17] per Spigelman CJ.

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

In Elshani v R (2015) 255 A Crim R 488, the court concluded that the line of authority and majority decision in R v Zerafa, where it was confirmed that the common law rule stating only exceptional hardship to an offender’s family can be taken into account applies to s 16A(2)(p), have become too embedded to be reconsidered: Elshani v R at [34]–[35].

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. Justice Howie 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 SA Court of Criminal Appeal in R v Berlinsky [2005] SASC 316. Two judges made apposite observations. Justice Bleby stated at [42]:

Justice Gray 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:

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 for cases involving the importation of heroin and cocaine exceeded its jurisdiction, essentially because the guideline provided a “grid” against which future sentences were to be judged. This was flawed because it departed from the terms of Pt IB of the Crimes Act 1914 (Cth) by focusing on one sentencing factor, the weight of the narcotic involved, to the exclusion of others: Wong v The Queen at [72] per Gaudron, Gummow and Hayne JJ; see also Gleeson CJ at [31] and Kirby J at [134].

The proper way to approach sentencing Commonwealth offenders and the use of previously decided cases to inform the sentencing of a particular offender has been comprehensively addressed by the High Court in Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 and The Queen v Pham (2015) 256 CLR 550: see further Achieving consistency in sentencing at [16-002].

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)).

Section 19B(1)(b) provides, inter alia, that the court may make either order if it is satisfied the charge or charges are proved, but is of the opinion, having regard to:

Reflecting on the text of South Australian legislation in similar terms to s 19B(1)(b), Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 stated (at 276):

Spigelman CJ said in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at [10]:

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 at [15], [29].

Section 19B(1A) provides 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 at [25]–[29]; Jones v Morley (1981) 29 SASR 57 at 63–64.

Section 19B(1)(b)(ii) refers to “the extent (if any) to which the offence is of a trivial nature”. In Shillabeer v Stra [2007] SASC 274, the magistrate decided not to record a conviction after finding that, although the offences were “indeed serious”, there were extenuating circumstances: Shillabeer v Stra at [10]–[12]. The Supreme Court held that the magistrate erred partly on the basis that his Honour “had to be satisfied, amongst other things, that the offending was of a trivial nature”: Shillabeer v Stra at [12]. It is not clear if the court was limiting its comments to the specific facts of the case or saying something broader. On one view, the statement (and another to similar effect immediately below it) suggests that a finding that the offence is of a trivial nature is a precondition to making an order under s 19B. However, such a reading is inconsistent with the text of s 19B(1)(b) by its use of the disjunctive “or” between (ii) and (iii), the observations of Windeyer J in Cobiac v Liddy, Commissioner of Taxation v Baffsky at [10] and counsel’s submissions in R v Stephenson [2010] NSWSC 779 at [66].

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 (for example, 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 will:

The power of a court to impose a condition on an offender who is discharged without conviction under s 19B(1) does not extend to the imposition of a community service order: DPP (Cth) v Ede [2014] NSWCA 282 at [35]. Section 20AB, which provides for such a sentencing option in respect of Commonwealth offenders, applies only to an offender who has been convicted: DPP (Cth) v Ede at [34].

The time limit for the condition of good behaviour under s 19B(1)(d) is currently 3 years, while the time limit for other conditions set by the court is 2 years. (By contrast, the maximum period of a good behaviour bond attached to a conditional release order under s 20(1) is 5 years.)

In Keys v West (2006) 65 NSWLR 668, 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 Justices Act 1902 (NSW), now found at s 202 Criminal Procedure Act 1986 (NSW)). 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 magistrate 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 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 recognizances/bonds.

A recognizance release order is defined by s 16(1) Crimes Act 1914 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 serving 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 3 years, a court must make a recognizance release order, unless satisfied 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). If the sentence is for a Commonwealth child sex offence (defined in s 3) there is a presumption the offender will serve a period of imprisonment before release unless the court is satisfied there are exceptional circumstances: s 20(1)(b)(ii). In such cases, s 20(1B) specifies the conditions which must be made as part of the order.

Section 20A sets out the consequences of failing to comply with a condition of an order under s 19B(1) or s 20(1).

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

If a person who has been conditionally released under s 20(1) fails to comply with a condition of the order without reasonable excuse, the options available to the court are set out in s 20A(5)(b) and include (i) and (ii) above but also a pecuniary penalty of 10 penalty units.

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 5 years; revoking the order and either imposing an alternative sentencing option under s 20AB or 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).

In DPP (Cth) v Seymour [2009] NSWSC 555, Simpson J concluded that s 20A does not permit a magistrate to set aside a duly executed conviction and substitute an order under s 20BQ: at [8]–[9]. The conviction can only be set aside by a proper appeal process at [10].

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

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, or any expense incurred, by the person by reason 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.

Pursuant to s 20AB Crimes Act 1914, additional sentences or orders under State or Territory law are available if they are:

Consequently, options that are not covered by the Act or the Regulation are not available. However, whether a particular sentencing alternative is available is also dependent on whether a court is empowered to pass such a sentence in respect of a State or Territory offender “in corresponding cases”: s 20AB(1)(b).

Whether a sentence or order is similar to one listed in s 20AB(1AA) is a question of degree to be considered in context and in light of the legislative purpose of extending sentencing options: DPP (Cth) v Costanzo [2005] 2 Qd R 385 at [23].

Additional sentencing options pertaining to NSW are community corrrection orders (CCOs) (s 20AB(1AA)(a)(iii)) and intensive correction orders (ICOs) (s 20AB(1) and cl 6(fa)). Home detention (cl 6(g)) is no longer available since the repeal of s 6 Crimes (Sentencing Procedure) Act 1999 with effect from 24 September 2018. 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 separately available in NSW for State offences. However, as an ICO in NSW may be subject to non-association or place restriction conditions, these may now be available to federal offenders as conditions of their ICO. See Intensive correction orders (ICOs) (alternative to full-time imprisonment) at [3-600]ff and, in relation to federal offences in particular, see Federal offences at [3-680].

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 sentence passed or an order made under s 20AB. The court — if satisfied the offender has, without reasonable cause or excuse, failed to comply with the sentence or order or any requirements related to it — may impose 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 failing to comply with it. 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 9 months imprisonment, to be served by way of periodic detention: R v Rivkin (2003) 198 ALR 400. 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 8 remaining weekends of his periodic detention in one 16-day block.

Generally, there is no procedure under Pt IB allowing the review of an alternative sentencing order, such as an intensive correction order, 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) Crimes Act 1914:

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 NSW 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 theft, receiving and fraud offences under the Criminal Code (Cth). Section 17B(1) states that a sentence of imprisonment must not be passed 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 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]. Sentences must comply with the terms of s 47(2): Payda v R [2013] NSWCCA 109 at [59]–[60]. Although there is no legislative requirement in NSW to backdate a sentence, the NSW 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 and Simpson (2004) 145 A Crim R 361; R v Youkhana [2005] NSWCCA 231.

In Assafiri v R, 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. Justice Howie 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 Court to take other matters into account (including 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. Sections 19(5)–(7) contain additional requirements when an offender is being sentenced for Cth child sex offences.

The Qld Court of Appeal in R v Dobie (2004) 145 A Crim R 472 at [19] confirmed 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 3 years (or sentences in aggregate that exceed 3 years), including a federal life sentence, the court must fix a single non-parole period: s 19AB(1); Kim v R [2018] NSWCCA 68 at [8], [80].

When a court imposes on a federal offender a sentence of 3 years or less (or sentences in aggregate that do not exceed 3 years) the court must make a recognizance release order 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 person’s antecedents, the court is satisfied that the designated orders under ss 19AB and 19AC are not appropriate, or if the person is expected to be serving a State or Territory sentence which extends beyond the expiry date of the federal sentence. Furthermore, a recognizance release order is not required to be made for a federal sentence of 6 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.

There is no judicially determined norm or percentage for non-parole periods and recognizance release orders for Commonwealth offences: Hili v The Queen at [13], [37]–[38]. It is wrong for a court to begin from an assumed percentage and then to seek to identify special circumstances justifying a departure from it: Hili v The Queen at [44]. All of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders and in imposing a sentence of imprisonment: Hili v The Queen at [40]. Section 16A(1) of the Act provides that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. What the “severity appropriate” is must be determined having regard to the principles identified in Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 58 ALJR 367; and Bugmy v The Queen (1990) 169 CLR 525: Hili v The Queen at [40]. A sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect by referring to and applying the principles identified in those cases: Hili v The Queen at [44].

A “critical” consideration is the determination of the period of imprisonment that justice requires an offender must serve in custody: Hili v The Queen at [41]. The non-parole period is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen at 627–629. The risk of re-offending is a relevant factor in setting the minimum term: Bugmy v The Queen at 537. The WA Court of Appeal, in Bertilone v R (2009) 197 A Crim R 78 at [55]–[66], set out a useful summary of the relevant considerations when determining the non-parole period for a Commonwealth offence, although what is stated in relation to the “usual” ratio for non-parole periods must now be read in light of Hili v The Queen.

Following Hili v The Queen, it is wrong to rely on a fixed or narrow range expressed as a proportion of the head sentence for determining the non-parole period: Lam v R [2014] WASCA 114 at [58]; Aboud v R [2017] NSWCCA 140 at [46]–[47]; Stipkovich v R [2018] WASCA 63 at [58]. In discussing the approach to fixing non-parole periods, McLure P in Lam v R observed, at [57]:

In tax fraud cases, the deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody: Hili v The Queen at [41].

Minimum non-parole periods apply 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 Crimes Act 1914.

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(a). The court must also take into account any sentence the person is liable to serve because of the revocation of a parole order made or licence granted: s 16B(b).

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:

A court cannot fix a single non-parole period or make a 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.

If a federal offender has been sentenced to more than 3 years, the Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole: s 19AL(1). (See s 19AC for sentences less than 3 years.)

If the Attorney-General refuses to make a parole order for a person under s 19AL(1) or s 19AL(2)(b), the Attorney-General must give the person a written notice, within 14 days after the refusal, and reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal. Section 19ALA contains a non-exhaustive list of the matters which may be considered by the Attorney-General in making a parole decision.

The Attorney-General is not required to make, or to refuse to make, a parole order if the offender is serving a State or Territory sentence or non-parole period and it ends after the federal sentence(s): s 19AL(5).

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: ss 19AP(3) and (4). Release on licence may be granted 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. The conditions applicable to a parole order or licence may be changed by written order of the Attorney-General at any time before the end of the parole or licence period: s 19APA.

Supervision following release on parole/licence is intended to reduce the risk of reoffending and to assist the offender in reintegrating into the community. There is no limit on the period of supervision. “Supervision period” is defined in s 16(1) by reference to the time between a person’s release on parole or licence and when either the relevant order, or nominated period of supervision, expires.

Section 19AM(2) 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.

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: