Sentencing Commonwealth offenders

See also Sentencing of Federal Offenders in Australia — A Guide for Practitioners, Commonwealth Director of Public Prosecutions, June 2018.

[16-000] Introduction

Part IB Crimes Act 1914 (Cth) sets out procedural requirements and penalty options for sentencing offenders who commit Commonwealth offences. However, Pt IB is not a code.

The High Court in Putland v The Queen (2004) 218 CLR 174 rejected the “proposition that Pt IB ‘covered a field’ as an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences”: per Gummow and Heydon JJ at [53]; compare Gleeson CJ at [12].

As the Australian Law Reform Commission (ALRC) noted in its report, Same crime, same time: sentencing of federal offenders, ALRC Report 103, April 2006, there is a potential for Commonwealth offenders to receive different sentences for the same offence, depending on the jurisdiction in which they are sentenced because State and Territory courts will apply their own laws in relation to procedure and have alternative sentencing options available to them: at [3.1]. This is a consequence of the application of s 68 Judiciary Act 1903 (Cth) which applies State and Territory procedural laws to federal prosecutions in State and Territory courts. The procedure for pre-sentence reports and the manner in which the totality principle is applied can differ when a court picks up local provisions: see the ALRC review of Pt IB in Same crime, same time at [14.46] in relation to pre-sentence reports.

In Putland v The Queen at [7], the High Court held that s 68 has no operation if “a Commonwealth law expressly or by implication made contrary provision, or … there [is] a Commonwealth legislative scheme … which is complete on its face”, citing The Queen v Gee (2003) 212 CLR 230 at [62]. It has been held that:

  • Div 4 Pt IB Crimes Act 1914 makes exhaustive provision for the fixing of non-parole periods and the making of recognizance release orders: Hili v The Queen (2010) 242 CLR 520 at [22].

  • Div 8 Pt 1B Crimes Act 1914, incorporating s 20BQ (diverting persons suffering a mental illness or intellectual disability), was “intended to be an exhaustive statement of the Commonwealth Parliament’s response to the issue [of diversion from the criminal justice system by reference to mental illness] leaving no room for the operation of the cognate State provision … to be picked up as federal law”: Kelly v Saadat-Taleb (2008) 72 NSWLR 305 at [29], [31], [48], [55].

It should be noted that s 20C Crimes Act 1914 provides that children and young persons may be tried and punished for federal offences in accordance with the law of the State or Territory in which they were charged or convicted. See Children and young offenders at [16-080].

Note:

The terms Commonwealth offences and federal offences are used interchangeably below. The main interpretation section in the Crimes Act 1914, s 3, defines “Commonwealth offence” to mean (except in Pt IC) “an offence against a law of the Commonwealth”; while for the purposes of Pt IB, s 16 defines “federal offence” as “an offence against the law of the Commonwealth”.

[16-002] Relevance of decisions of other State and Territory courts

Sentencing principles

It is implicit in Pt IB Crimes Act 1914 that the sentencing court must have regard to sentences that are imposed in all States and Territories: The Queen v Pham (2015) 256 CLR 550 at [23], [41]. In The Queen v Pham, the plurality (French CJ, Keane and Nettle JJ) said at [24]:

a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth. Hence, in the absence of a clear statutory indication of a different purpose or other justification, the approach to the sentencing of offenders convicted of such a crime needs to be largely the same throughout the Commonwealth. Further, as Gleeson CJ stated in Wong, the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. And, as was observed by the plurality in Hili, the search for consistency requires that sentencing judges have regard to what has been done in comparable cases throughout the Commonwealth. [Footnotes excluded.]

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]:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.

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]:

Commonwealth legislation, uniform national legislation and the common law have obvious claims to national certainty and predictability. The first and third are truly nation-wide, the secondly is effectively nation-wide, and there should be consistent decision-making throughout Australia notwithstanding the existence of separate legal jurisdictions. Perpetuation of egregious error is countered by departure from the prior decision if persuaded that it is plainly wrong, but there is for the most part social and economic unity within Australia calling for comity (in the sense described above) between the appellate courts of the separate jurisdictions.

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].

Achieving consistency in sentencing

See the extensive discussion of the issue of consistency in Objective Factors (cf s 21A(1)) at [10-020]ff.

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]):

Consistency in sentencing federal offenders is achieved by the proper application of the relevant statutory provisions, having proper regard not just to what has been done in other cases but why it was done, and by the work of the intermediate courts of appeal. [Emphasis in original.]

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

in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong.

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

where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.

Bell and Gaegler JJ said at [50]:

comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge. An appellate court’s reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance.

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]:

[W]hat is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.

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].

Use of information about sentences in other cases

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) 205 A Crim R 106 at [106]. The High Court has held Simpson J’s approach in DPP (Cth) v De La Rosa, above, 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:

  • does not fix boundaries which future courts must follow

  • can, and should, provide guidance, and stand as a yardstick against which to examine a proposed sentence.

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].

See the extensive discussion the use of other cases in Objective Factors (cf s 21A(1)) at [10-020]ff and the use of statistics at [10-024]ff.

[16-010] General sentencing principles applicable

Part IB, Div 2 Crimes Act 1914 is headed “General Sentencing Principles”. Section 16A states:

(1)

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2)

In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a)

the nature and circumstances of the offence;

(b)

other offences (if any) that are required or permitted to be taken into account;

(c)

if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character — that course of conduct;

(d)

the personal circumstances of any victim of the offence;

(e)

any injury, loss or damage resulting from the offence;

(ea)

if an individual who is a victim of the offence has suffered harm as a result of the offence — any victim impact statement for the victim;

(f)

the degree to which the person has shown contrition for the offence:

(i) 

by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) 

in any other manner;

(fa)

the extent to which the person has failed to comply with:

(i) 

any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii) 

any obligation under a law of the Commonwealth; or

(iii) 

any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g)

if the person has pleaded guilty to the charge in respect of the offence — that fact;

(h)

the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j)

the deterrent effect that any sentence or order under consideration may have on the person;

(ja)

the deterrent effect that any sentence or order under consideration may have on other persons;

(k)

the need to ensure that the person is adequately punished for the offence;

(m)

the character, antecedents, age, means and physical or mental condition of the person;

(n)

the prospect of rehabilitation of the person;

(p)

the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

(2A)

However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for:

(a) 

excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

(b) 

aggravating the seriousness of the criminal behaviour to which the offence relates.

(2B)

In subsection (2A):

criminal behaviour includes:

(a) 

any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

(b) 

any fault element relating to such a physical element.

(3)

Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

In Wong v The Queen (2001) 207 CLR 584 at [133], Kirby J stated that there is an:

… express requirement imposed on the judge … to conform to the requirements of s 16A of the Crimes Act 1914. That section expresses a number of matters to which a court must have regard when passing sentence. Necessarily, in any appeal against a sentence so imposed, the same considerations must apply in the appellate court. [Emphasis in original.]

Sentence of a “severity appropriate”: s 16A(1)

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.

Purposes of sentencing in s 16A(2): deterrence, punishment, rehabilitation

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).

Until amendments commencing 27 November 2015 (see below), deterrence in the Crimes Act 1914 was only recognised in the form of the deterrent effect that the sentence “may have on the person” under s 16A(2)(j). This type of deterrence, known as personal or specific deterrence, aims to discourage the particular offender from committing the offence again. It is different to general deterrence, which aims to discourage other potential offenders from committing the offence.

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

s 16A(1) imposes on the court the duty, which is its primary obligation, to ensure that the sentence or order “is of a severity appropriate in all the circumstances of the offence”. It is by this duty that the general principles of sentencing law are imported into the function of a court imposing a sentence on a Federal offender convicted of the offence. What will be “appropriate” will depend, in part, upon a consideration of fundamental notions, such as that of general deterrence.

The list of particular considerations in s 16A(2) must be read as subject to the primary obligation of the court stated in s 16A(1). All that s 16A(2) requires is that the court should “take into account” the listed matters. … However, the opening words of s 16A(2) must be noticed. They state that the matters there listed are to be taken into account “in addition to any other matters”. These words make it plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters. One other such relevant matter is clearly the general deterrent effect of the sentence.

In response to the judicial concern regarding the omission of general deterrence from s 16A, the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) inserted s 16A(2)(ja) 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) is not an indication that before its commencement, the principle of general deterrence was not a factor; the purpose of the amendment was 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.

List of factors under s 16A(2) is not exhaustive

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].

Exhaustive reference to the factors in s 16A is unnecessary

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:

[The] legislation only requires the sentencing judge to take those matters into account; it does not require judges always to refer to each of them when explaining the sentence imposed. Indeed, the act of sentencing is to a large extent incapable of being fitted into such a straightjacket, and in most cases it is unnecessary for the judge to expose the precise reasoning by which the ultimate sentence has been reached: Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. It is only where the judge has formed a particular view in relation to one or more of these items which would not otherwise be apparent in the circumstances of the case that reference should be made to the particular items in the judge’s remarks on sentence, so that no erroneous conclusion would otherwise be drawn in relation to those matters.

“Relevant and known to the court”

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]:

The use of the phrase “known to the court”, rather than “proved in evidence”, or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase “known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.

Taking other offences into account: ss 16A(2)(b) and 16BA

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

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

the court may, with the consent of the prosecutor and before passing sentence on the person, ask him whether he admits his guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him for the offence or offences of which he has been convicted. [Emphasis added.]

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

In Assafiri v R [2007] NSWCCA 159, the applicant pleaded guilty to four Commonwealth fraud offences, with 19 similar offences taken into account under s 16BA. The sentencing judge did not indicate 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]:

it cannot have been the intention of the legislature that more than one sentence could be increased by taking into account the same offences. Obviously that would result in double counting the matters being taken into account. This might not be of practical significance when the sentences are being served concurrently. But it would clearly be unfair to do so when some or all of the sentences are being served cumulatively as was the case here.

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

Personal circumstances of any victim of the offence: s 16A(2)(d)

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].

Victim impact statements: s 16A(2)(ea)

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].

The degree to which contrition is shown by taking action to make reparation: s 16A(2)(f)

Section 16A(2)(f) permits a court sentencing a federal offender to take into account, as some evidence of contrition, 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] (McLure P) and at [198] (Mazza JA). 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] (McLure P), at [115] (Buss JA) and at [198] (Mazza JA); 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] (McLure P), [115] (Buss JA); [196]–[197] (Mazza JA).

Plea of guilty: s 16A(2)(g)

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

When sentencing for Commonwealth offences, the court must consider the offender’s willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 at [14] where Gaudron, Gummow and Callinan JJ said:

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

A guilty plea is not limited to whether there is a willingness to facilitate the course of justice, and can be relevant to other subjective considerations such as remorse: Cameron v The Queen at [11]. As part of facilitating the course of justice, the court can also take into account the fact that the guilty plea has saved a witness or witnesses from giving evidence at trial: Cameron v The Queen at [79].

In assessing the willingness of an offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Tyler v R (2007) 173 A Crim R 458 at [114]; Danial v R [2008] NSWCCA 15 at [27]–[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or “truly motivated by a willingness to facilitate the course of justice”: Tyler v R at [114]; Lee v R [2012] NSWCCA 123 at [58].

Section 16A(2)(g) permits a utilitarian discount

In Xiao v R (2018) 96 NSWLR 1 at [269]–[278], a five-judge bench of the NSWCCA held that s 16A(2)(g) requires a court to take into account the utilitarian value of a guilty plea when considering the fact that an offender has pleaded guilty. To the extent that Tyler v R (2007) 173 A Crim R 458 found otherwise it should not be followed: Xiao v R at [278]; DPP (Cth) v Thomas [2016] VSCA 237 at [7]. Whether or not s 16A(2)(g) permitted a purely utilitarian discount was previously the subject of conflicting authority at the intermediate appellate level in NSW, Victoria and the ACT: see Tyler v R; DPP (Cth) v Gow [2015] NSWCCA 208, R v Harrington [2016] ACTCA 10; DPP (Cth) v Thomas [2016] VSCA 237.

In Huang aka Liu v R [2018] NSWCCA 70, Bathurst CJ at [9], summarised the approach to be taken in Commonwealth matters when dealing with the utilitarian value of a guilty plea:

  • Sentencing judges should take into account the utilitarian value of a plea. Failure to do so constitutes error.

  • While desirable to specify the discount given, a failure to do so would not of itself constitute error.

  • It is an error to specify a range of percentage discounts as distinct from a specific percentage.

In Naizmand v R [2018] NSWCCA 25, the court described the Crown’s submission concerning the effect of Xiao v R as expanding the operation of s 16A(2)(g) to include utilitarian considerations rather than being limited to them, that is, in addition to considerations relevant to whether or not a particular plea facilitated the course of justice. The court appeared to accept that submission, going on to state, at [43]:

In addition, … the Court in Xiao also recognised at [272] that contrition and remorse as sentencing considerations are separately accounted for in s 16A(2)(f). While the Court acknowledged that other factors in s 16A(2)(a)–(p) will from time to time overlap in the sentencing exercise for Commonwealth offences, the value of the plea as a subjective consideration under s 16A(2)(g) does have traction, particularly where, as the Court noted at [269], the section provides no express limitation on the manner in which the plea is to be taken into account.

The overlap between remorse, contrition and a guilty plea, all of which are separately listed in s 16A(2) was considered again in Singh v R [2018] NSWCCA 60 at [28]–[30]. In that case, 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: Singh v R at [30].

Quantifying the discount

Although there is no obligation to do so, it is desirable, in the interests of transparency, that the discount for a plea be specified: Xiao v R, above, at [279]–[280]; Markarian v The Queen (2005) 228 CLR 357 at [24]; Cahyadi v R (2007) 168 A Crim R 41 at [34].

The guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383 does not apply to Commonwealth matters (see [111]); Lee v R [2012] NSWCCA 123 at [58]. It is doubtful whether the guideline is a “reasonable range to adopt” for Commonwealth offences as the following cases suggest: R v Bugeja [2001] NSWCCA 196 at [28] and applied in R v Simon (2003) 142 A Crim R 166 at [19]; R v Otto (2005) 157 A Crim R 525 at [69]; and Morgan v R [2007] NSWCCA 8 at [21]. 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].

Combined discounts

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.

Co-operation with law enforcement agencies: ss 16A(2)(h) and 16AC

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, in which the Queensland Court of Appeal held at [11] that s 16A(2)(h):

includes co-operation in the form of self-incrimination, and also co-operation already given to law enforcement agencies in relation to their offences up to the time of the sentence. Co-operation of those kinds has no part to play in s 21E.

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:

It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.

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

I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so … Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by “tariffs” derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.

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]:

in the present case his Honour found that there was no remorse and that the applicant had not acknowledged, even in evidence, that what he had done was wrong. His Honour concluded that the applicant “might well be rehabilitated”. In those circumstances, which will be relatively rare, it was not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the purely utilitarian value of the plea.

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%:

was appropriate for what was, in effect, very limited intelligence provided to the police about the present and past criminality of his co-offenders.

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

The value of that assistance, and the discount to be allowed, are to be determined on objective and pragmatic grounds. If the authorities reject the proffered assistance, and it is not used, the prisoner will have given no assistance in the result and will not be entitled to any discount on that basis. In such a case the prisoner may be entitled to a greater discount for his plea of guilty but only if the sentencing Judge is able to find on the civil onus that his proffered assistance was honest and truthful.

Failure to comply with undertaking

Section 16AC(3) (formerly s 21E(2)) entitles the Director of Public Prosecutions (DPP) to appeal against the sentence when the offender fails, without reasonable excuse, to comply with the undertaking. Although the section is ambiguously worded, it is for the court to make its own determination whether an offender’s failure to co-operate is without “reasonable excuse”, rather than the question being determined by the DPP: R v YZ (1999) 162 ALR 265 at [25], [29], [44].

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]:

The purpose of s 21E(3)(a) or (b) is not to punish the offender for failing to cooperate but rather to restore the sentence which would have been imposed if the offer of cooperation had not been made … the additional sentence should so far as the appeal court is able reflect an increase in the sentence which reflects the extent to which the offered cooperation has not been forthcoming.

While the predecessor provision to s 21E(2) permitted an appeal by the DPP only “at any time while the offender is under sentence”, s 16AC(3) contains no such restriction, allowing the DPP to appeal at any time, including where an offender’s sentence has expired.

Character, antecedents, age, means and physical or mental condition: s 16A(2)(m)

Pre-sentence 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:

Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.

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:

there is no closed category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character.

The court pointed out at [63] that it is a common feature of the federal offence of importing child pornography (and the State offence of possessing child pornography) that the offender is otherwise of good character, is in good employment, and of sound reputation: R v Liddington (1997) 97 A Crim R 400; R v Jones (1999) 108 A Crim R 50; R v Assheton (2002) 132 A Crim R 237; R v C: Ex p DPP (Cth) [2004] QCA 469. Justice Johnson in R v Gent concluded at [64] that there was:

foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography.

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].

Cultural background and customary law: ss 16A(2)(m) and 16A(2A)

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:

Criminal behaviour can never, in any form, be excused, justified, authorised, required or rendered less serious because of customary law or cultural practice … The Australian government firmly rejects the idea that an offender’s cultural background should automatically be considered, when a court is sentencing an offender, so as to mitigate the sentence imposed.

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].

Probable effect of sentence on offender’s family or dependants: s 16A(2)(p)

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]:

It should be emphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed.

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]:

It should be noted that s 16A(2)(p) is only concerned with the impact of the sentence upon the offender’s family; that is, the impact of the offender being imprisoned for a specific term, or at all. The provision, and the limit placed upon it, is not concerned with some other relevant consideration arising in the course of sentencing the offender that has some bearing upon his or her family and may impact upon the sentence to be imposed. In particular, there is no principle that limits the court’s consideration of the effect upon the offender’s family of the fact that the offender has co-operated with the investigating or prosecuting authorities.

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 observations on the word “probable”. Justice Bleby stated at [42]:

in the context of s 16A of the Crimes Act I consider that the effect to be considered is that which is more probable than not or more likely to occur than not. If a lesser standard were required, it is likely that the drafter would have used the word “possible” rather than “probable.

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

In the context of s 16A(2)(p), a provision obviously intended by the legislature to enable the Court to take into account a wide range of circumstances and eventualities, the term “probable” is correctly interpreted as including events that are possible, in the sense of being credible or having the appearance of truth, that is, events that are plausible outcomes, not merely fanciful postulations. Such an interpretation provides consistency of approach when sentencing.

Court to explain sentence

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:

  • setting a non-parole period when imposing a sentence of imprisonment: s 16F

  • discharging a person without proceeding to a conviction: s 19B(2)

  • ordering a person’s conditional release on a good behaviour bond: s 20(2), or

  • selecting a sentencing alternative available under State law, for example, intensive correction orders: s 20AB(2).

Guideline judgments and s 16A

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

… while s 16A takes the form it now does, it would be wrong to produce some numerical guideline system of a kind similar to that adopted in some jurisdictions in the United States under which presumptive sentences are fixed by reference to a classification of the gravity of an offence and the seriousness of the offender’s previous criminal history. To do so would obviously depart from the legislative command of Pt IB of the Commonwealth Crimes Act if only because it fastens upon only some of the factors that are mentioned in the Act. Yet that is what the Court of Criminal Appeal’s tabulation of sentences does. It offers a grid against which future sentences are to be judged and it is a grid which is founded entirely on gravity of the offence as measured only by the weight of narcotic concerned.

See also Gleeson CJ at [31] and Kirby J at [134].

After Wong v The Queen was decided, the NSW Court of Criminal Appeal maintained that it was appropriate at sentence to refer to the range of sentences discussed in R v Wong and Leung (1999) 48 NSWLR 340 because they were based on the patterns of sentences imposed, although some allowance was necessary because of the repeal of s 16G Crimes Act 1914: R v Paliwala (2005) 153 A Crim R 451 at [27]; R v Taru [2002] NSWCCA 391 at [12]; R v Bezan (2004) 147 A Crim R 430 at [34]–[36]; R v Mas Rivadavia (2004) 61 NSWLR 63 at [65]–[66]; R v SC [2008] NSWCCA 29 at [27]; R v Chea [2008] NSWCCA 78 at [40]. The continued utility of this approach was reiterated by the court in R v Nguyen (2010) 205 A Crim R 106 at [72] per Johnson J.

However, one week after that case was decided, as part of a differently constituted bench, Simpson J concluded, in R v Cheung (2010) 203 A Crim R 398 at [90], that “in light of the criticisms made by the High Court … the proposition that the Wong and Leung guideline sentences continue to operate as ‘a useful guide’ cannot withstand scrutiny”.

Prerogative of mercy: ss 21D and 85ZR–85ZS

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.

[16-020] Non-custodial sentencing options

Section 17A provides that a judge shall not pass a sentence of imprisonment on any person for a federal offence, unless the judge has considered all other available sentences and is satisfied that no other sentence is appropriate. What follows is commentary about the non-custodial sentencing options available for federal offences.

Discharge of offender without proceeding to conviction: s 19B

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, the court may make either order if it is satisfied the charge or charges are proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person;

(ii) the extent (if any) to which the offence is of a trivial nature; or

(ii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation.

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):

The Act speaks of the court exercising the power it confers “having regard to” the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.

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

Section 19B(1)(b) itself consists of two stages. First is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it “is inexpedient to inflict any punishment” or to reach the other conclusions for which the paragraph provides.

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].

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

The word “antecedents” in s 19B(1)(b)(i) has a wide meaning, including all aspects, favourable and unfavourable, of an offender’s personal, family, employment and vocational circumstances: Commissioner of Taxation v Baffsky 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 (above), Commissioner of Taxation v Baffsky at [10] (also above) 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:

  • be of good behaviour

  • make such reparation or restitution or pay such compensation or costs as is stipulated in the order, and

  • comply with any other conditions the court thinks fit to specify.

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]:

The conviction made and recorded … constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, the determination did not constitute a conviction in the sense of a final disposition of the proceedings.

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].

Conditional release of offenders after conviction: s 20

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:

  • be of good behaviour (but for a period not exceeding 5 years);

  • make such reparation or restitution or pay such compensation or costs as the court specifies in the order; and

  • comply with any other conditions the court thinks fit to specify.

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.

Failure to comply with condition of discharge or conditional release: s 20A

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

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

(i) 

revoke the order, convict the person of the offence, and resentence the person, or

(ii) 

take no action: s 20A(5)(a).

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

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]. Her Honour then said at [10] that the conviction can only be set aside by a proper appeal process.

Recognizance release order/suspended sentence

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 the offender has served a specified period of imprisonment.

Where a court sentences an offender to imprisonment for one or more federal offences, and the aggregate sentence does not exceed 3 years, a court must make a recognizance release order, unless the court is satisfied that it is not appropriate to do so, having regard to the nature of the offence/s and the antecedents of the person: s 19AC(1).

Previously, where a court sentenced an offender to imprisonment for one or more offences and the aggregate sentence exceeded 3 years, s 19AB(1) provided that the court must either set a non-parole period or make a recognizance release order (but may decline to do either if satisfied it is not appropriate to do so). The making of a recognizance release order was removed as an option for a sentence exceeding 3 years by amendments commencing on 27 November 2015.

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

  • extending or reducing the duration of the recognizance (within the limits allowed under s 20AA(4))

  • inserting additional conditions

  • reducing the amount of compensation

  • altering the manner in which reparation is to be made: s 20AA(3).

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 imposing an alternative sentencing option under s 20AB; revoking the order and imprisoning the person for that part of the sentence they had not served at the time of release from custody; or taking no action: s 20A(5)(c).

Reparation for offences: s 21B

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.

Additional sentencing alternatives: s 20AB

Sentencing alternatives under State or Territory law are available if prescribed under s 20AB Crimes Act 1914 or cl 6 Crimes Regulations 1990 (Cth). 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).

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 an available sentencing option 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).

Failure to comply with sentencing order made under s 20AB

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 that the offender has, without reasonable cause or excuse, failed to comply with the sentence or order or any requirements related to it — may impose on the offender a pecuniary penalty not exceeding 10 penalty units; revoke the alternative sentence and re-sentence the offender; or take no action: s 20AC(6).

Section 20AC does not authorise the court to amend or revoke the order when the offender has a reasonable excuse for experiencing problems with compliance. The options in s 20AC only apply when the offender lacks a reasonable excuse. This situation was illustrated by the case of Rene Rivkin, who was convicted of the federal offence of insider trading and sentenced to 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.

[16-030] Fines

The court must take into account the financial circumstances of an offender before imposing a fine for a federal offence: s 16C. This is intended to reduce the likelihood of imprisonment for fine defaulters: Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989, Senate copy. However, an offender’s financial circumstances will not dictate the fine that is to be imposed; other factors including the seriousness of the offence, its prevalence and deterrence are also relevant: Jahandideh v R [2014] NSWCCA 178 at [15]–[17]; Darter v Diden (2006) 94 SASR 505 at [29].

Where a federal offence is punishable by imprisonment only, a fine may be imposed instead of, or in addition to, imprisonment unless the contrary intention appears. The statutory formula for calculating the number of penalty units appears at s 4B(2). The basic principle is that the maximum penalty, expressed in months, is multiplied by five.

State and Territory laws relating to the enforcement or recovery of fines apply to federal offenders, to the extent that they are not inconsistent with Commonwealth law: s 15A. In NSW, the relevant provisions are under Pt 4 Fines Act 1996. One modification made by Commonwealth law is that only a court is empowered to impose a penalty on a federal offender who fails to pay a fine, even where the State or Territory allows an authority other than a court to impose a penalty in this situation: s 15A(1AA).

[16-035] Sentencing for multiple offences

Section 4K Crimes Act 1914 states in part that:

(3)

Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

(4)

If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences …

It is important to note that in R v Bibaoui [1997] 2 VR 600, the Victorian Court of Appeal held that s 4K(3) was only concerned with summary offences and the words “information, complaint or summons” in the subsection did not embrace an indictment. Offences on indictment were covered by the application of s 68 Judiciary Act 1903 (Cth), which picked up the provisions of State legislation with regard to the procedures for the trial of indictable offences. The High Court in Putland v The Queen (2004) 218 CLR 174 per Gleeson CJ at [9], Gummow and Heydon JJ at [46], Kirby J at [86] confirmed that R v Bibaoui had been correctly decided.

In Thorn v R (2009) 198 A Crim R 135, the court held that where multiple offences are being dealt with on indictment, the proper approach to sentencing is to apply Pearce v The Queen (1998) 194 CLR 610 and sentence for each offence individually and then determine whether those sentences should be concurrent or cumulative in order to address the principle of totality: Thorn v R at [47].

However, Thorn v R was decided before the introduction of s 53A Crimes (Sentencing Procedure) Act 1999 on 14 March 2011. A judge sentencing an offender for multiple federal offences may also impose an aggregate sentence under s 53A. As Pt IB Crimes Act 1914, which includes s 4K(4), does not cover the field, s 68(1) Judiciary Act applies to pick up the aggregate sentencing scheme under s 53A for federal offenders dealt with on indictment: DPP (Cth) v Beattie [2017] NSWCCA 301 at [141]–[146].

See also [7-507] Settled propositions concerning s 53A.

[16-040] Sentences of imprisonment

Restrictions on imposing prison sentences: ss 17A and 17B

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

A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

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

(a)

shall state the reasons for its decision that no other sentence is appropriate; and

(b)

shall cause those reasons to be entered in the records of 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 court is not to pass a sentence of imprisonment for the offences specified where the offence relates to “property, money or both, whose total value is not more than $2,000” and the offender has not previously been sentenced to imprisonment for any federal, State or Territory offence, unless the court is satisfied that there are exceptional circumstances.

Commencement of sentence: s 16E

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]:

The normal and preferred practice in sentencing for State matters, where an offender has been in custody for some time before being released to bail, is to backdate the sentence for a period equal to the period served in custody notwithstanding that the offender may have been on bail for the period up until sentence is pronounced: see R v Newman & Simpson (2004) 145 A Crim R 361. This practice should be adopted pursuant to s 16E(1) of the Crimes Act (Cth) that provides that the law of this State relating to the commencement of sentences applies to a person sentenced for a Federal offence.

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].

Cumulative, partly cumulative or concurrent sentences of imprisonment: s 19

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:

(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.

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

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

It may be noted that s 19(1)(b) speaks in the present tense: “applies”. Thus it requires for its operation the existence of a non-parole period applying in respect of a State or Territory sentence at the time when a federal sentence is being imposed.

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.

Detention of offender in State or Territory prison: ss 18 and 19A

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.

[16-050] Fixing non-parole periods and making recognizance release orders

Part IB Crimes Act 1914 makes exhaustive provision for fixing non-parole periods and making recognizance release orders: Hili v The Queen (2010) 242 CLR 520 at [22].

When court must fix non-parole period or make recognizance release order: ss 19AB and 19AC

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 in respect of the sentence(s): s 19AB(1). Until the relevant commencement of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) on 27 November 2015, the court had the option under s 19AB(1) of either fixing a non-parole period or making a recognizance release order.

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 in respect of the instant sentence(s) and must not fix a non-parole period: s 19AC.

However, ss 19AB(3) and 19AC(4) allow the court to decline to comply with the above requirements if, having regard to the nature and circumstances of the offence(s) concerned and to the antecedents of the person, the court is satisfied that the designated orders under ss 19AB and 19AC are not appropriate, 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.

Matters relevant to non-parole periods and recognizance release orders

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.

In Lam v The Queen [2014] WASCA 114, McLure P reiterated that, following Hili v The Queen, it was wrong to rely on a fixed or narrow range expressed as a proportion of the head sentence for determining the non-parole period: at [58]. In discussing the approach to fixing non-parole periods, her Honour observed, at [57]:

because a non-parole period is a mitigation of punishment in favour of rehabilitation, positive sentencing factors in favour of rehabilitation in a particular case can reduce not only the length of the head sentence but also lower the proportion that the non-parole period bears to the head sentence. However, as Power makes clear, there is a limit below which the non-parole period cannot go. It cannot be reduced below the minimum that the justice of the case requires in order to satisfy all of the other sentencing objectives, including punishment, retribution and general deterrence.

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].

Mixture of Commonwealth and State offences

Non-parole periods

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

Justice Howie said at [38]:

the most serious offence was a Commonwealth crime and the activity was generally in contravention of Commonwealth law. It was only incidental that the applicant also offended against State laws. It seems to me in such a situation to be unfair to sentence by complying with the more severe State regime under s 44, where the statutory ratio is 75 per cent, rather than by adopting the practice for determining the non-parole period for Commonwealth offences, where the ratio is 60 to 66 per cent.

The approach taken in Cahyadi v R at [40], particularly its reference to “the practice for determining the non-parole period for Commonwealth offences, where the ratio is 60 to 66 per cent” must now be read in light of the holding in Hili v The Queen set out above. The non-parole period in such a case would be set with reference to 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]. It will not be sufficient just to apply s 44 Crimes (Sentencing Procedure) Act 1999 (NSW) to the Commonwealth offence. The form of the order must use the language of Pt IB.

Cumulation and concurrency

Reconciling the principles governing orders for cumulation and concurrency in relation to Commonwealth and State sentences is difficult: DPP (Vic) v Swingler [2017] VSCA 305 at [63]. In DPP (Vic) v Swingler at [78], the Victorian Court of Appeal observed that, when sentencing for a combination of Commonwealth and State offences, a judge has three possible avenues available:

1. 

impose sentence for each offence on the indictment in the order listed then differentiate between them by making orders as to cumulation or concurrency with regard to the State offences and orders as to commencement with regard to the Commonwealth offences

2. 

group the State offences together and first sentence upon them individually

3. 

group the Commonwealth offences together and deal with them first.

Minimum non-parole periods for terrorism offences: s 19AG

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

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

Totality principle when previous sentence to be served: ss 16B, 19AD and 19AE

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 that 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:

  • make an order confirming the existing non-parole period or recognizance release order

  • fix a new single non-parole period or recognizance release order in respect of all federal sentences that the offender is to serve or complete

  • cancel the existing non-parole period/recognizance release order and decline to set a new one, where the court decides that a non-parole period or recognizance release order is not appropriate.

It should also be noted that a court may not 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.

Possible deportation is no impediment to fixing non-parole period: s 19AK

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.

[16-060] Remissions

Impact of repeal of s 16G

Section 16G Crimes Act 1914 was repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) with effect from 16 January 2003.

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

It was generally regarded that the adjustment of a federal sentence to allow for the absence of remissions resulted in a reduction of the sentence by one-third: R v Paull (1990) 20 NSWLR 427 at 431; cf R v Budiman (1998) 102 A Crim R 411 at 415.

It was anticipated that the length of federal sentences would increase following the repeal of s 16G: R v  Bezan (2004) 147 A Crim R 430 at [18]; R v Paliwala (2005) 153 A Crim R 451 at [39]–[41]. However, the NSW Court of Criminal Appeal rejected the notion that sentences should be automatically increased by a mathematical amount: R v SC [2008] NSWCCA 29 at [34]; R v Chea [2008] NSWCCA 78 at [42].

A national schedule of sentences outlined in R v Lee [2007] NSWCCA 234 at [36] shows that head sentences in drug importation cases since the repeal of s 16G, where the offender is a key organiser but not at the pinnacle of the organisation, have generally been over 20 years, with a number of offenders receiving life imprisonment. While noting the care that needed to be taken in the use of national schedules, in R v Nguyen (2010) 205 A Crim R 106 at [104]–[107], the court confirmed that the updated schedule prepared for that appeal supported the analysis in R v Lee.

See earlier discussion under Use of information about sentences in other cases in [16-002] above.

Current provision on remissions: s 19AA

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

[16-070] Conditional release on parole or licence

The function of directing release on parole or licence resides with the Attorney-General (Cth) (or departmental delegate). The Attorney-General also retains other important decision-making powers, such as revoking parole and amending the conditions attached to it. By contrast, the court’s role is to determine the length of the sentence and of any non-parole period.

Release on parole — making of parole order

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.

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).

Section 19ALA contains a non-exhaustive list of matters which may be considered by the Attorney-General in making a parole decision under s 19AL on or after 27 November 2015.

Discretionary release on licence: s 19AP

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 by the Attorney-General whether or not a non-parole period has been fixed, or a recognizance release order has been made, and whether or not the non-parole period or pre-release period has expired. Two examples of circumstances in which early release may be granted are when an offender requires medical treatment that cannot be provided in the prison system and when an offender has provided assistance to law enforcement authorities but this was not taken into account at sentence.

Decision-making process

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.

Conditions and supervision: ss 19AN and 19AP

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. The maximum period of supervision is 3 years, as stated in the definition of “supervision period” under s 16(1).

Parole order where offender is serving State sentence: s 19AM

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.

Revocation of parole or licence

A federal parole order or licence is revoked automatically when a federal offender who is released on parole or licence commits a further federal, State or Territory offence during the parole period and is sentenced to a term of imprisonment of more than 3 months: s 19AQ.

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

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

[16-080] Children and young offenders

Section 20C Crimes Act 1914 provides that children and young persons may be tried and punished for federal offences in accordance with the law of the State or Territory in which they were charged or convicted. This enables the States and Territories to apply their respective juvenile justice regimes.

There is no definition of “child” or “young person” under the Crimes Act 1914. The definition used in the respective State or Territory is generally adopted, which may result in discrepancies in the treatment received between jurisdictions.

Diversionary options for dealing with young offenders are available to some degree under s 20C. The section allows a child who is “charged with or convicted of” a federal offence to be “tried, punished or otherwise dealt with” as if the offence was a State or Territory offence. The words “otherwise dealt with” are sufficiently broad to encompass many diversionary programs. However, the child must be charged or convicted first, which is often not a characteristic of pre-court diversionary options.

The power of a body to hear and determine federal offences must also be ascertained. Federal jurisdiction is invested in State and Territory courts of summary jurisdiction, including Children’s Courts, pursuant to s 39 Judiciary Act 1903 (Cth). But s 39 restricts jurisdiction to “courts”, which may not necessarily cover all alternative schemes.

[16-100] Imposing restrictions on passports at sentence

Section 22 authorises a court that passes a “relevant sentence” or makes a “relevant order” with regard to a person convicted of a “serious drug offence”, or other prescribed offence against the Commonwealth, to surrender possession of their Australian passport or refrain from applying for an Australian passport.

A serious drug offence means an offence involving or relating to controlled substances and punishable by a maximum penalty of 2 years imprisonment or more: s 22(7). The other offences currently prescribed under cl 6AA Crimes Regulations 1990 (Cth) are indictable passport offences.

“Relevant sentence” is defined by s 22(7) as a sentence of imprisonment, other than a suspended sentence, or sentencing alternatives available pursuant to s 20AB (for example, intensive correction orders for offenders sentenced in NSW). “Relevant order” refers to remanding a person in custody or on bail, suspending the sentence upon entering a recognizance, or ordering a conditional release.

[16-110] Offenders with mental illness or intellectual disability

Divisions 6–9 of Pt IB cover unfitness to be tried and other issues relating to mental illness. Only the provisions relevant to sentencing (under Div 9) will be examined here. Specific alternatives are available to the court instead of passing sentence.

Hospital orders: ss 20BS–20BU

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:

(a) 

the person is suffering from a mental illness within the civil law of the relevant State/Territory

(b) 

the illness contributed to the commission of the offence by the person

(c) 

appropriate treatment for the person is available in a hospital in the State/Territory, and

(d) 

the proposed treatment cannot be provided to the person other than as an inmate of a hospital: s 20BS(1).

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).

Psychiatric probation orders: ss 20BV–20BX

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:

(a) 

the person is suffering from a mental illness within the civil law of the relevant State/Territory

(b) 

the illness contributed to the commission of the offence by the person

(c) 

appropriate psychiatric treatment for the person is available in a hospital in the State/Territory, and

(d) 

the person consents to the order, and the person (or their legal guardian) consents to the proposed treatment: s 20BV(1) and (2).

Program probation orders: s 20BY

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:

(a) 

the person is suffering from an intellectual disability

(b) 

the disability contributed to the commission of the offence by the person, and

(c) 

an appropriate education program or treatment is available for the person in the State/Territory: s 20BY(1).