Sentencing Commonwealth offenders

[16-000] Summary of relevant considerations

Last reviewed: February 2024

See also Sentencing of Federal Offenders in Australia — A Guide for Practitioners, Commonwealth Director of Public Prosecutions, 6th edn, April 2023.

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

[16-005] Introduction

Last reviewed: November 2023

Part IB Crimes Act 1914 deals with the sentencing, imprisonment and release of federal offenders. It sets out the sentencing factors, procedural requirements and penalty options when sentencing a person for a “federal offence” (defined as an “offence against the law of the Commonwealth”: s 16 Crimes Act 1914 (Cth)). However, Pt IB is not a code. The High Court 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”: Putland v The Queen (2004) 218 CLR 174, at [53] (Gummow and Heydon JJ; see also Gleeson CJ at [12]).

As Part IB is not a code, State or Territory sentencing provisions can be picked up and applied to the sentencing of federal offenders; so long as that law is not inconsistent with a law of the Commonwealth (see s 109 of the Commonwealth of Australia Constitution Act; and ss 68(1) and 79(2) of the Judiciary Act 1903 (Cth)) (endorsed in Putland v R at [4] (Gleeson CJ); see also [34] (Gummow and Heydon JJ); Williams v The King [No 2] (1934) 50 CLR 551 at 560 per Dixon J; Ilic v R [2020] NSWCCA 300 at [24] (McCallum J) and Chan v R [2023] NSWCCA 206 at [4] (Kirk JA). For example, a federal offender sentenced in NSW can receive an intensive correction order (ICO) and where an ICO is considered, NSW sentencing procedures and provisions apply (see Additional sentencing alternatives: s 20AB at [16-030] Penalties that may be imposed and [3-600] Intensive Correction Orders.

The purpose of applying state laws to federal offenders is to ensure that offenders charged with federal offences are dealt with consistently with offenders in the state where they are prosecuted: Hildebrand v R [2021] NSWCCA 9 at [10]. Some key instances in which Part IB applies, to the exclusion of NSW sentencing laws, are:

  • Consideration of the factors in s 16A(2) when determining what is a sentence commensurate with the criminality. The aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 do not apply to the sentencing of federal offenders

  • Div 4 Pt IB is exhaustive regarding the fixing of a non-parole period and the making of a recognizance release order: Hili v The Queen (2010) 242 CLR 520 at [22]

  • There is no statutory ratio for the setting of a minimum period of full-time imprisonment or non-parole period (s 44 Crimes (Sentencing Procedure) Act does not apply and accordingly there is no need for a finding of “special circumstances” to warrant a ratio outside of that prescribed): Hili v The Queen (2010) 242 CLR 520; Power v The Queen (1974) 131 CLR 623 and Deakin v The Queen [1984] HCA 31

  • Div 8 Pt IB Crimes Act 1914, containing ss 20BQ, 20BR is exhaustive of the summary disposition for dealing with federal offenders suffering from mental illness or intellectual disability: Kelly v Saadat-Taleb (2008) 72 NSWLR 305

  • Section 16BA is exhaustive of the procedure for the Court to take into account additional offences when sentencing for an offence. A federal offence cannot be taken into account or included on a Form 1 list of additional charges filed pursuant to s 32 of the Crimes (Sentencing Procedure) Act): Hildebrand v R [2021] NSWCCA 9; Ilic v R [2020] NSWCCA 300. See also Taking other offences into account: s 16A(2)(b) and s 16BA at [16-025] Section 16A(2) factors.

[16-010] General sentencing principles applicable

Last reviewed: November 2023

Section 16A provides the approach to be taken when sentencing federal offenders:

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.

Section 16A(2) provides the factors that must be taken into account on sentence: see [16-025] Section 16A(2) factors.

[16-015] Restrictions on sentences of imprisonment and commencement date

Last reviewed: November 2023

Section 17A(1) of the Crimes Act 1914 (Cth) provides the court can only sentence a federal offender to imprisonment if it is satisfied that “no other sentence is appropriate in all the circumstances of the case”. It requires consideration of all other available sentences and all the circumstances of the case rather than focusing exclusively on a comparison between imprisonment and one or more types of sentences not involving imprisonment: Atanackovic v The Queen (2015) 45 VR 179; Woods v R [2023] NSWCCA 37.

The High Court and other appellate courts have discouraged principles that seek to dictate that a sentence of imprisonment is required for certain classes of cases: Sabbah v R (Cth) [2020] NSWCCA 89; Kovacevic v Mills [2000] SASC 106 at [43]; Totaan v R [2022] NSWCCA 75 at [90]–[100]; Hili v The Queen (2010) 242 CLR 520 at [36]–[38], [41]. In Sabbah v R, McCallum J commented that such principles do not give proper regard to the requirement of proportionality in s 16A(1), subvert the instinctive synthesis exercise of sentencing and are inconsistent with the principle in s 17A that a sentence of imprisonment should not be imposed unless no other sentence is appropriate in all the circumstance of the case: [4]–[10].

However, since 23 June 2020, for a Commonwealth child sex offence (as defined in s 3), s 20(1)(b)(iii), inserted by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), provides that immediate release on recognizance is not available unless there are “exceptional circumstances”. This suggests a minimum term of imprisonment is required, noting that, pursuant to s 67(1), (2) Crimes (Sentencing Procedure) Act 1999, an intensive correction order is also not available when sentencing offenders for certain child sexual offences in the Criminal Code. See also ss 16AAA, 16AAB, 16AAC in relation to mandatory minimum penalties, and exclusions and reductions to those penalties.

If a federal offender is sentenced to imprisonment, the laws of the State or Territory relating to its commencement date, including consideration of (and backdating for) any pre-sentence custody, apply: s 16E. In Marai v R [2023] NSWCCA 224, the Court of Criminal Appeal found no error in backdating the commencement of a sentence of imprisonment to account for the federal offender’s immigration detention while on bail, noting that the Commonwealth Director of Public Prosecution’s (CDPP’s) request was a factor in that detention: [95] (Sweeney J, with Kirk JA agreeing); s 16E Crimes Act 1914 (Cth); s 47(2) Crimes (Sentencing Procedure) Act . For further discussion of NSW law, see Court to take other matters into account (including pre-sentence custody) at [12-500]. A court is restricted from imposing imprisonment for certain minor offences unless satisfied there are exceptional circumstances that warrant it: s 17B(1), (3).

[16-020] Maximum penalties

Last reviewed: November 2023

The maximum penalty must be considered when determining an “appropriate” sentence: Markarian v The Queen (2005) 228 CLR 357 at [30]–[31]; Elias v The Queen (2013) 248 CLR 483 at [27]. It is Parliament’s expression to sentencing judges (and the community) of the seriousness of the offence: Muldrock v The Queen (2011) 244 CLR 120 at [31]; see also R v Taylor [2022] NSWCCA 256 at [60]. It also enables the sentencing judge to compare the case under consideration with the worst possible case (the latter attracting the maximum penalty): Markarian v The Queen at [39].

[16-025] Section 16A(2) factors

Last reviewed: November 2023

Section 16A(2) provides:

(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:

(i) 

that fact; and

(ii) 

the timing of the plea; and

(iii) 

the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

(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;

(ma)

if the person’s standing in the community was used by the person to aid in the commission of the offence — that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(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.

In determining the appropriate sentence, the Court “must” have regard to the factors in s 16A(2) so far as they are “relevant and known”. Section 16A(2) is not an exhaustive list as the factors are “[i]n addition to any other matters”.

There is nothing in s 16A(2) which “as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2)”: Totaan v R (2022) 108 NSWLR 17 at [83] (Bell CJ).

The plurality (Gaudron, Gummow and Hayne JJ) in Wong v The Queen (2001) 207 CLR 584 when considering the s 16A(2) factors stated at [75]:

Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis”. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features.

This does not deny the application of statute and principles governing the exercise of the sentencing discretion that have been developed by the High Court and appellate courts for particular offences. See for example, Kovacevic v Mills [2000] 76 SASC 106 where the court stated that, for the more serious cases of sustained and deliberate fraud, deterrence is very important: [43]. This description of the role of deterrence was approved in Totaan v R at [99]. However, the Court stated, s 16A does not fetter the sentencing discretion by creating any hierarchy of matters so as to result in one or more factors being described as “pre-eminent”: [99]; see also [81]–[83], [90]–[91].

There is no requirement for a sentencing judge to refer to every factor under s 16A(2). The Court of Criminal Appeal in R v Ferrer-Esis (1991) 55 A Crim R 231 at 237–238 stated s 16A:

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: R v Gallagher (1991) 23 NSWLR 220. 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.

As the list of factors in s 16A(2) is not exhaustive, common law principles apply to sentencing federal offenders irrespective of whether such principles are referred to, or located in, Pt IB of the Crimes Act 1914: Johnson v The Queen [2004] HCA 15 per Gummow, Callinan and Heydon JJ at [15]; Xiao v R [2018] NSWCCA 4 at [94]; Aboud v R [2021] NSWCCA 77 at [87]. For example, delay and proportionality are not factors listed in s 16A(2) but may be relevant when sentencing a federal offender: Aboud v R at [91]; Sabra v R [2015] NSWCCA 38 at [41]–[45]; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [18]; cf Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194 at [100] (For a detailed discussion of delay, see also Delay at [10-530] and for the application of delay in federal fraud sentences see Delay at [20-000] Mitigating factors).

Likewise, the “totality” of the offending in fixing sentences for separate offences is relevant to federal offences, with the question of totality arising only after the individual sentences are determined: Sigalla v R [2021] NSWCCA 22 at [118]; Pearce v The Queen (1998) 194 CLR 610; Mill v The Queen (1988) 166 CLR 59. See also [16-030] and [16-040].

Nature and circumstances of the offence: s 16A(2)(a)

This factor relates to consideration of matters relevant to assessing the objective seriousness of the offending. There are a wide variety of matters that can be considered. Broadly, it can involve considering the conduct, the degree of intention, knowledge or recklessness, motive and other factors that may impinge on the intentional aspects of the conduct.

The fact-finding exercise at sentencing is relevant to this factor. That is, where an offender disputes the facts and seeks to reduce the objective seriousness of the offence, they bear the burden of establishing such matters on the balance of probabilities, with the Crown bearing the burden of establishing facts adverse to offender beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; see also Onus of proof at [1-405]. A court will not resolve all disputed issues by determining the facts are either aggravating or mitigating. See The aggravating/mitigating binary fallacy at [9-720]. Where there is a lack of evidence about a factor see discussion in Role of offender and level of participation at [19-870] Other factors relevant to objective seriousness.

The case law assists as to what factors may be relevant to assessing the nature and circumstance of particular classes of offences. For example:

  • In relation to possession and transmission of child abuse material offences, see R v De Leeuw [2015] NSWCCA 183 at [72]; R v Aniezue [2016] ACTSC 82; R v Asplund [2010] NSWCCA 316; Minehan v R [2010] NSWCCA 140 at [94]; R v Hutchinson [2018] NSWCCA 152 at [45]; see also Commonwealth offences and Sentencing principles at [17-541];

  • In relation to importation or possession of unlawfully imported border controlled drugs: R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [210]–[211], [224] (McClellan CJ at CL) and the authorities cited; see also [65-100] Commonwealth drug offences; and

  • In relation to proceeds of crime offences (Div 400 Criminal Code), see R v Li [2010] NSWCCA 125 at [41]; Majeed v The Queen [2013] VSCA 40 at [35]; see also Money laundering at [65-200].

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. However, s 16A of the Commonwealth Act includes deterrence, punishment and rehabilitation in the list of matters to which the court is to have regard in passing sentence: ss 16A(2)(j), (ja), (k) and (n).

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

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. The offence is listed in a schedule, pursuant to s 16BA which allows the court, when a person is convicted of federal offences, to take into account other federal offences (including indictable offences where the court has jurisdiction) in respect of which the offender admits guilt. The federal offender does not have to be “convicted” of the additional federal offences for them to be taken into account. This provision, and the process, is similar to s 33(2) Crimes (Sentencing Procedure) Act 1999 (NSW): see [13-200] The statutory requirements. However, federal offences cannot be taken into account on a State Form 1 and may only be taken into account in relation to another federal offence using the s 16BA procedure. Similarly, State offences cannot be listed in a s 16BA schedule: see discussion in Ilic v R [2020] NSWCCA 300 and Hildebrand v R [2021] NSWCCA 9.

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

Before passing sentence, the court may, if in all the circumstances it is proper to do so, ask the federal offender whether they admit guilt in respect of the additional offences and wish them to be taken into account in passing sentence for the offences of which they have been convicted. If the federal offender admits guilt and wishes to have the additional offences taken into account, the court may do so when passing sentence: s 16BA(2).

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

An offence taken into account pursuant to s 16BA does not aggravate the objective seriousness of the principle offence but increases what would have otherwise been the penalty because of relevant purposes of sentencing, such as specific deterrence, responsibility and accountability for the offence: Le v R [2022] NSWCCA 243 at [36] (R A Hulme J); Nguyen v R [2019] NSWCCA 209 at [58]–[64] (Johnson J).

Offence consists of a series of criminal acts of the same or a similar character: s 16A(2)(c)

An offence forming part of a course of conduct consisting of a series of criminal acts of the same or a similar characteristic can be taken into account when determining a sentence that is appropriate in all the circumstances: R v Donald [2013] NSWCCA 238 at [79]. It will apply in different ways depending on the facts and circumstances of the case.

Section 16A(2)(c) will be relevant in cases involving “rolled up” charges. This approach is common for federal offences relating to child abuse material and fraud offences: R v De Leeuw [2015] NSWCCA 183 at [116]; R v Donald [2013] NSWCCA 238. Numerous offences are rolled into one offence on a plea of guilty which advantages an offender by restricting the maximum penalty available to a single offence, rather than the total theoretically available maximum sentence from multiple charges: R v Jones [2004] VSCA 68 at [13]; R v Donald at [84], [85]. A course of conduct may constitute an aggravating factor for “rolled up” charges because more than one episode of criminal conduct may magnify the objective seriousness of the offence: R v De Leeuw at [116]; R v Glynatsis [2013] NSWCCA 131 at [67]–[68]; Xiao v R [2018] NSWCCA 4 at [164]. Fitzgerald v R at [37].

In sentencing for a rolled-up charge, the court is required to assess the criminality of an offender’s conduct as particularised. The more contraventions or episodes of criminality that form part of the rolled-up charge, the more objectively serious the offence is likely to be: Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170.

Victim of the offence — personal circumstances and victim impacts statements: ss 16A(2)(d), (ea), 16AAAA and 16AB

When sentencing a federal offender the court must take into account:

  • the personal circumstances of any victim of an offence: s 16A(2)(d) and

  • if an individual who is “a victim of the offence” has suffered “harm” as a result of the offence, the court must consider any victim impact statement: s 16A(2)(ea).

“Victim” is not defined in Part IB. A “victim” has included an unwitting friend who has been manipulated or recruited to enable the offence: Kabir v R [2020] NSWCCA 139 at [62]. It has also included witnesses to a terrorist attack on another who suffered psychological and emotional harm as a result: R v Khan (No 11) [2019] NSWSC 594. In R v Zhu [2013] NSWSC 127 at [203], it was considered the classes of victims for insider trading offences were the market, the offender’s employers, and those who traded with the offenders not privy to the inside information. In R v Nahlous [2013] NSWCCA 90, the Court considered that, in relation to a child grooming offence, the child who was groomed was a victim, but their mother was not.

Section 16AAAA legislates the procedural requirements for victim impact statements. It provides a victim impact statement can be an oral or written statement made by a victim of the offence, or by a member of the victim’s family (with the court’s leave), or a person appointed by the Court: s 16AAAA(1). “Family” includes a de facto partner, a child of the victim, or anyone else who would be a member of the person’s family if the de facto partner or child is taken to be a member of the person’s family: s 16A(4).

Section 16AB sets out other procedural requirements or guidelines for victim impact statements and includes:

  • Only one victim impact statement can be made unless the court gives leave (s 16AB(2));

  • No implication is to be drawn from the absence of a victim impact statement (s 16AB(3));

  • A victim impact statement may be read to the court by or on behalf of the victim (s 16AB(4)); and

  • A victim impact statement cannot be read out or taken into account to the extent it expresses an opinion about an appropriate sentence, or is offensive, threatening or harassing, or admitting it would not be in the interests of justice.

The victim impact statement is intended to provide the sentencing judge with an understanding of the harm suffered from the offence. “Harm” is defined broadly in s 16 to include physical, psychological and emotional suffering, economic and other loss, and damage.

Any injury, loss or damage resulting from the offence: s 16A(2)(e)

This provision is not dependent on matters contained within a victim impact statement or particular victims being identified, and the court can take judicial notice of the injury, loss, or damage resulting from particular offences. Examples include:

  • Harm arising from transmission of child pornography offences: R v Jones (1999) 108 A Crim 50; DPP v D’Alessandro (2010) 26 VR 477; R v Clarkson (2011) 32 VR 361;

  • Damage to the reputation of Australian business persons conducting business in foreign countries and distortion to the market for bribery of foreign official offences: Elomar v R [2018] NSWCCA 224;

  • Damage to the Australian economy arising from cartel activities: DPP (Cth) v Nippon Yusen Kabushiki Kaisha (2017) 254 FCR 235, [250]–[252], [298], [300]; and

  • Harm to the community for the importation and possession of border controlled drugs: for example, Ngo v The Queen [2017] WASCA 3.

The degree to which contrition is shown: s 16A(2)(f)

Contrition must be “shown” (that is, established on the evidence) by an offender, either by words or conduct. The discount for contrition, like other subjective considerations, is generally not quantified but forms part of the process of instinctive synthesis: Betka v R [2020] NSWCCA 191 at [62]. An offender may express contrition in the form of remorse in their oral testimony in court, in a letter, or to family, friends or psychologists/psychiatrists. Ultimately, the weight and cogency to be given to utterances found in third party statements or untested material is a matter for the individual assessment of the judge: Lloyd v R [2022] NSWCCA 18 at [45]. A sentencing judge may be cautious of untested statements of contrition and remorse and attribute less weight to them than contrition that is first hand and tested: Imbornone v R [2017] NSWCCA 144 at [57], Singh v R [2018] NSWCCA 60 at [31]; Diaz v R [2019] NSWCCA 216 at [48]; Weber v R [2020] NSWCCA 103 at [62]–[63]; Pritchard v R [2022] NSWCCA 130 at [101].

Section 16A(2)(f) provides that the degree to which a court can take into account contrition expressed by a federal offender can include instances in which they made reparation for any injury, loss or damage arising from the offence. This includes the repayment of money obtained as a consequence of an offence before pecuniary penalty proceedings under the Proceeds of Crime Act 2002 have been commenced: R v Host [2015] WASCA 23 at [25]; [198]. The effect of s 320 Proceeds of Crime Act is that the fact of making a pecuniary penalty order and payments made pursuant to it are irrelevant considerations which cannot be taken into account under s 16A(2)(f): R v Host at [25]; [115]; [198]; s 320(d). To the extent s 320 is inconsistent with s 16A(2)(f), s 16A(2)(f) must be read down to give effect to s 320: R v Host at [22]–[23]; [115]; [196]–[197].

Contrition within s 16A(2)(f) may also refer to the subjective willingness of an offender to facilitate the course of justice. This is conceptually different from the utilitarian value of a guilty plea in s 16A(2)(g): Bae v R [2020] NSWCCA 35 at [55]; Giles-Adams v R [2023] NSWCCA 122 at [76].

As to s 16A(2)(f) and (g), the Court in Betka v R, Fullerton J said at [62] (Wilson and Ierace JJ agreeing):

While I accept that in practical terms the factors which inform the sentencing considerations in ss 16A(2)(f) and (g) of the Crimes Act (Cth) might overlap, what must be borne in mind is that it is only in respect of the objective or utilitarian value of a plea of guilty that the Court will apply an arithmetical discount when sentencing for a Commonwealth offence, a discount which is largely, although not exclusively, informed by the timing of the plea. Where a sentencing court is persuaded that the timing of the plea itself reflects a willingness on the part of the offender to facilitate the course of justice, that finding should find expression in the reasons for sentence as one of the factors which informs the value of the plea without it attracting any additional or arithmetical sentencing discount. Importantly, however, where the Court does not make that finding, or where the Court is not otherwise satisfied that the evidence relied upon by an offender allows for a finding of a subjective willingness to facilitate the course of justice as a mitigating factor on the balance of probabilities, the objective or utilitarian value of the plea should not be diminished.

The strength of the prosecution case can be taken into account in assessing contrition which facilitates the course of justice or is indicative of remorse. A guilty plea actuated by an overwhelming Crown case would suggest less weight is given to contrition involving facilitation of the course of justice: Bae v R [2020] NSWCCA 35; Tyler v R [2007] NSWCCA 247 at [114].

While contrition and remorse are required to be taken into account separately under s 16A(2)(f) in addition to the guilty plea under s 16A(2)(g), those factors can overlap: Singh v R at [26]–[28]; Xiao v R [2018] NSWCCA 4 at [134]. Care should be taken to avoid double counting the objective and subjective aspects of guilty pleas and contrition: Bae v R [2020] NSWCCA 35 at [55], [57]; Chuang v R [2020] NSWCCA 60 at [19]. When an offender pleads guilty and expresses contrition and a willingness to cooperate with authorities, those factors form a complex mix of inter-related considerations, and attempts to separate them to attribute specific numerical or proportionate value would be artificial, contrived and illogical: Singh v R at [28]–[29]; R v Gallagher (1991) 23 NSWLR 220; Wong v The Queen (2001) 207 CLR 584. Such an approach is also contrary to the process of instinctive synthesis: Singh v R at [30].

Failure to comply with legal obligations relating to pre-trial or ongoing disclosure: s 16A(2)(fa)

There is little appellate case law considering this provision. The provision suggests the court is required to consider the extent to which a federal offender failed to comply with pre-trial and ongoing disclosure obligations, where those laws are provided for by s 23CD(1) of the Federal Court of Australia Act 1976 (which relates to pre-trial and ongoing disclosure for offences prosecuted in the Federal Court of Australia), or by any obligation under a law of the Commonwealth or a law of the State or Territory. In Assi v R [2021] NSWCCA 181, a licensed customs officer was involved in a scheme to avoid the payment of excise duty on imported tobacco. While the judge was correct to take into account the offender’s breach of duties as a customs broker when considering the objective seriousness of the offence, the judge erred in finding the breach fell under s 16A(2)(fa)(ii): Assi v R at [46]. The section only applies to breaches of Commonwealth orders or obligations concerning a “pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence”: Assi v R at [45].

Plea of guilty: s 16A(2)(g)

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

Identifying the utilitarian value of a guilty plea within s 16A(2)(g) involves an objective assessment of the way in which the guilty plea facilitated the course of justice: Bae v R [2020] NSWCCA 35 at [55], [57]; Xiao v R (2018) 96 NSWLR 1 at [280]; Giles-Adams v R; Preca v The Queen [2023] NSWCCA 122 at [70]. A subjective acknowledgement of willingness to facilitate justice is not relevant to the utilitarian value of the plea in s 16A(2)(f): Bae v R [2020] NSWCCA 35 at [57]-[58]; see also R v Borkowski [2009] NSWCCA 102 at [32] (point 4) (Howie J).

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

The guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383, and specified discounts stipulated in ss 25D and 25E of the Crimes (Sentencing Procedure Act) 1999, do not apply to the sentencing of federal offenders. However, in Bae v R, Johnson J (Bell P and Walton J agreeing) concluded that the principles set out in R v Borkowski at [32]–[33] in respect of the utilitarian discount for State offences could practically assist for Commonwealth offences: at [52]–[54].

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

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

The court must take into account any past co-operation the federal offender has provided to law enforcement agencies under s 16A(2)(h), and any undertaking to cooperate in the future under s 16AC. The rationale for recognising assistance provided to the authorities is set out in R v Cartwright (1989) 17 NSWLR 243 at 252–253: see [12-205] Rationale for rationale for assistance to authorities.

Discounts for past and future assistance are distinct and should not be confused: R v Vo [2006] NSWCCA 165 at [37], citing R v Gladkowski (2000) 115 A Crim R 446). 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].

Where co-operation also demonstrates contrition, the contrition attracts an unquantified discount as part of instinctive synthesis under s 16A(2)(f) (see above discussion).

Past co-operation

Past co-operation includes co-operation in the investigation of the offence for which the offender is being sentenced as well as any other state, territory or federal offence.

There is no requirement, statutory or otherwise, for a sentencing judge to provide a discrete quantified discount for past assistance, but generally the practice is to do so especially in respect of the utilitarian benefit of the assistance: Weber v R [2020] NSWCCA 103 at [34], [68].

A discount will be extended for past assistance that is accepted and used by authorities: Alchikh v R [2007] NSWCCA 345 at [25]. The extent of the discount involves a consideration of the effectiveness of the assistance and its value to the authorities: R v El Hani [2004] NSWCCA 162 at [73]. However, the absence of evidence does not necessarily mean there should be no discount: Weber v R at [67]. For example, where authorities have rejected and not used the assistance, a judge may still give some discount provided they are satisfied the proffered assistance was truthful and to give effect to the rationale for encouraging assistance: Alchikh v R [2007] NSWCCA 345 at [25].

In the past, sentencing cases adopted an arithmetic approach to discount for past assistance and a plea of guilty. In McKinley v R [2022] NSWCCA 14 (MacFarlan J) the Court of Criminal Appeal criticised the arithmetic approach to assistance stating at [49]:

The … arithmetic view probably does not withstand later authority criticising an arithmetic approach to sentencing. Consistency in this area, like others, must be determined by the consistent application of sentencing principles. The principles applicable to determining assistance, which it is unnecessary to repeat or summarise, were discussed more fully by this Court in R v XX.

Macfarlan J also said in McKinley at [56]:

ultimately the test that must be utilised depends upon the fulfilment of the purpose of the administration of justice. The reduction needs to be sufficiently significant that it will encourage those persons who have committed crimes to come forward and confess the crime, notwithstanding that the police are unaware of either the crime or the perpetrators of the crime.

Where an offender pleads guilty and also co-operates with authorities, a combined discount can be given, or alternatively quantities for the utilitarian value of the plea quantified and quantities for the past cooperation with authorities identified: Weber v R [2020] NSWCCA 103 at [68]; cf R v Sukkar [2006] NSWCCA 92.

Future assistance

Section 16AC(1)–(2) provides, where a court reduces the sentence imposed because a federal offender has undertaken to provide future assistance, 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 resentencing an offender who has failed to comply with the undertaking. Section 21E was the predecessor to s 16AC and the case law in relation to the former provision remains relevant. application of the former provision was discussed in DPP (Cth) v Couper [2013] VSCA 72 at [141]–[146].

In Mason (a pseudonym) v R [2023] VSCA 75, the Court at [44]–[60] considered the approach to discounting a sentence for future cooperation pursuant to s 16AC, stating:

Where a person has cooperated with law enforcement authorities and given an undertaking of the kind contemplated by s 16AC, that matter must, by force of s 16A, be taken into account by the judge when imposing the sentence. In most cases the effect of doing so will be to reduce the sentence that, hypothetically, would have been imposed had there not been cooperation of that kind. Almost inevitably, where this occurs the non-parole period will be lower than would have been imposed had there not been cooperation. In other words, the cooperation will produce a consequence for both the head sentence and the non-parole period.

There may be cases, although if they exist they surely must be rare, where the cooperation has an effect on the sentence but not the non-parole period. It follows that usually the impact will be on both aspects of the sentence. On the other hand, there may be cases, again we think rare, where the judge reduces the non-parole period but the cooperation has no discernible impact on the head sentence.

Where a sentence has ‘been reduced’ by reason of cooperation, s 16AC requires the judge to specify what would have been the sentence or non-parole period in the event that there had been no cooperation.

In our view the better construction of s 16AC … is that if there has been an impact on both the head sentence and the non-parole period (which will be the usual case) the judge must specify how each element had been effected. That is the judge should specify what the head sentence would have been and what the non-parole period would have been.

This construction is fortified by s 16AC(4). Where there is a failure to honour the undertaking in whole or in part, an appeal may be brought and the appellate court may have to resentence. In doing so s 16AC(4) contemplates that the appellate court will or may reinstate the sentence that would have been imposed. At the least, these matters would inform the appellate court’s task should a ground of appeal succeed and resentencing be required”

In Dagher v R [2017] NSWCCA 258, Adamson J (with Leeming JA and Johnson J agreeing) stated that 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: [8].

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].

Failure to comply with undertaking

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

Under s 16AC(4)(a), where an offender fails entirely to co-operate after receiving a reduced sentence on the basis of promised co-operation, the court on appeal must substitute the sentence or non-parole period that would have been imposed but for the promised co-operation. Section 16AC(4)(b) provides that, where there is a partial failure 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).

Specific deterrence: s 16A(2)(j)

The court is required to consider the deterrent effect the sentence may have on the federal offender: s 16A(2)(j). There can be many reasons why specific deterrence assumes greater relevance in the sentencing exercise or is otherwise of less relevance. It may have greater relevance if the federal offender has committed the offence before: Veen v The Queen (No 2) (1988) 164 CLR 465, 477. It may have less relevance because an offender’s evidence suggests the process of charging, conviction and/or pre-sentence custody, has deterred them from repeat behaviour. Mental health conditions may also moderate or elevate the weight to be given to specific deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]. For further discussion of specific deterrence under NSW law, see [2-240] To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b). For further discussion of the impact of a mental health or cognitive impairment on specific deterrence under NSW law, see Protection of society and dangerousness at [10-460] Mental health or cognitive impairment.

General deterrence: s 16A(2)(ja)

Section 16A(2)(ja) legislatively endorses the need to consider general deterrence.

General deterrence may be an important consideration in respect of particular classes of offences, for example, in the more serious cases of sustained and deliberate fraud (Kovacevic v Mills [2000] SASC 106 at [43] approved in Totaan v R [2022] NSWCCA 75 at [99]), or child sex exploitation offending such as child abuse material offences (Lazarus v R [2023] NSWCCA 214 at [76], [78] (Cavanagh J, with Ierace J agreeing)).

General deterrence may assume less weight in a sentencing exercise where a federal offender adduces evidence of a mental condition which was causally related to the offending in a material way, the rationale being that the particular offender is not an appropriate offender of which to make an example, as compared to a highly morally culpable offender: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].

Need for adequate punishment: s 16A(2)(k)

This factor requires the court to ensure the person is adequately punished for the offence. The word “punishment” in this context has been held to be synonymous with retribution, which is a purpose of sentencing: Azari v R [2021] NSWCCA 199 at [57]. Particular regard may be paid to the objective seriousness of the offending and general deterrence when determining whether a person is “adequately punished” for the offence (see for example, R v Manuel [2020] WASCA 189; 285 A Crim R 563 at [92]).

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

This factor involves consideration of prior convictions, but also character and antecedents generally. “Antecedents” is not solely a reference to convictions but can include all aspects of an offender’s background, both favourable and unfavourable. For example, in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [34]–[35], [60]–[61] bankruptcy was considered an antecedent (and a factor of hardship).

The weight to be attached to good character or the lack of a criminal record may vary depending on the type of offence. For example, the lack of a criminal record may have less significance for a drug trafficking offence than for other types of offences: R v Leroy [1984] 2 NSWLR 441. In R v Leroy, the offender 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.

In white collar offences, such as those against the Corporations Act 2001 (Cth), “limited weight” is attached to prior good character because it is normally the factor that places the offender in the position that enables them to commit the offence: R v Gent [2005] NSWCCA 370 at [47], [52]–[59]; R v Rivkin (2004) 59 NSWLR 284 at [410]; R v Boughen [2012] NSWCCA 17 at [73]; Eakin v R [2020] NSWCCA 294 at [38]. See Character, antecedents, age, means and physical or mental condition of the person — s 16A(2)(m) at [20-065] Types of Commonwealth fraud.

In Nguyen v R [2016] NSWCCA 5 at [29], the Court of Criminal Appeal held the sentencing judge did not err in finding that the offender was not a person of good character because he had deliberately given false evidence, despite his lack of prior convictions.

A federal offender’s subjective material provided to address s 16A(2)(m) may overlap with, or inform, the weight to be given to other factors in s 16A(2) such as specific deterrence and general deterrence. For example, a mental condition may make an offender more dangerous to the community suggesting specific deterrence needs to be given greater weight: see DPP (Cth) v De La Rosa at [77] and R v Israil [2002] NSWCCA 255 at [24].

Sentencing assessment reports or psychological/psychiatric reports may be tendered as evidence of a federal offender’s physical or mental condition. A mental condition may be relevant to the moral culpability of the offender and/or the objective seriousness of the offence. The two concepts are separate but related (depending on the condition and factual circumstances): TM v R [2023] NSWCCA 185 at [55]; DS v R (2022) 109 NSWLR 82 at [77]; R v Eaton [2023] NSWCCA 125 at [45]; Camilleri v R [2023] NSWCCA 106 at [135]. Care must be taken not to double count for the same factor: Williams v R [2022] NSWCCA 15 at [131].

Where a mental condition is relied upon to reduce an offender’s moral culpability, it may impact on the weight attached to other sentencing factors (such as specific deterrence, denunciation or adequate punishment for the offending), although it does not of itself necessarily warrant reduction in the sentence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177] (and the cases cited therein). See further discussion of the case law at [10-460] Mental health or cognitive impairment.

Care must be taken not to double count breach of trust as an aggravating factor and to give good character little weight. In Merhi v R [2019] NSWCCA 322, the judge found the offending was aggravated because of the abuse of trust formed from his previous employment as a Customs Officer which helped facilitate the offence. It was an error for the judge to also find the offender’s employment limited the weight to be given to prior good character, in effect, by dismissing good character as a relevant mitigating factor: Merhi v R at [6], [51], [55], [57].

Youth will ordinarily be a factor of significance in the sentencing exercise, but the circumstances of the case may reduce the weight to be given to it. The relevance of youth to the sentencing exercise was set out in KT v R [2008] NSWCCA 51 at [22]–[26]; see also CW v R [2022] NSWCCA 50. For further discussion see [10-440] Youth.

Customary law or cultural practice: s 16A(2A)

Section 16A(2A) provides that customary law and cultural practice are not to be taken into account in mitigating or aggravating the seriousness of criminal behaviour, except as relevant to s 16A(2)(ma) (see below).

Standing in community used to aid commission of offence: s 16A(2)(ma)

Section 16A(2)(ma) applies to federal offenders charged with, or convicted of, an offence from 20 July 2020: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), s 2; Sch 8[6]. The section requires consideration of whether the person’s standing in the community was used to aid the commission of the offence and, if so, is taken to aggravate the offence’s seriousness.

The prohibition in s 16A(2A) against taking into account any form of customary law or cultural practice as a reason to aggravate the seriousness of the criminal behaviour does not apply if a person’s standing in the community aided the commission of the offence.

Prospects of rehabilitation: s 16A(2)(n)

The prospects of rehabilitation are a mandatory consideration for the court: Sigalla v R [2021] NSWCCA 22 at [143]. An acknowledgement of wrongdoing may be a significant element in rehabilitation: Sigalla v R at [143]. However, while the absence of true remorse may reduce the weight that can be given to prospects of rehabilitation, it does not necessarily nullify them: Sigalla v R at [143], [147]–[148]. Remorse is not a prerequisite to an assessment that an offender has some prospect of rehabilitation: Sigalla v R at [143], [147]–[148].

Additionally, where an offence is reflective of an offender’s character or the offender has an untreated mental condition relating to the offending, or which is causally connected in some way to the offending, the court is not likely to find the offender has good prospects of rehabilitation in the absence of treatment: Young v R [2021] SASCA 51 at [31]–[34].

When sentencing for a “Commonwealth child sex offence” (defined in s 3), s 16A(2AAA) provides the court must have regard to the objective of rehabilitating the offender, by considering treatment options. This may impact on the length of a sentence of imprisonment or non-parole period to include sufficient time for the offender to undertake a rehabilitation program.

The Explanatory Memorandum to the amending legislation, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 at [255] to [258] states:

[255] This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing Commonwealth child sex offenders. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity.

[256] This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program”

The Court of Criminal Appeal in Darke v R [2022] NSWCCA 52 found it an error not to consider this factor when sentencing for child sex offences: [35]–[36].

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

Section 16A(2)(p) requires the court to take into account the probable effect of a sentence on an offender’s family or dependents, and the hardship contemplated by the provision need not be exceptional: Totaan v R [2022] NSWCCA 75 (5 judge-bench) at [81]–[83] overruling R v Sinclair (1990) 51 A Crim R 418 and the cases which followed, including those of the Court of Criminal Appeal.

“Family” is defined in ss 16(1), 16A(4) and includes a de facto partner, a child of the victim, or anyone else who would be a member of the person’s family if the de facto partner or child is taken to be a member of the person’s family: s 16A(4).

The meaning under s 16A(2)(p) of the word “probable” was considered by the South Australian Court of Criminal Appeal in R v Berlinsky [2005] SASC 316. 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.

[16-030] Penalties that may be imposed

There are various options available within the Crimes Act 1914 (Cth) for the sentencing of federal offenders. Generally, a court can sentence a federal offender as follows:

  • Discharge without proceeding to conviction (s 19B);

  • Fine (as provided by the offence provision);

  • Conditional release forthwith on recognizance without conviction (s 20(1)(a)); or

  • A term of imprisonment (s 20(1)(b)):

    • With immediate release, or release after a specified time, on recognizance with or without conditions.

    • If the total sentence does not exceed three years, the court must make a recognizance release order (subject to s 19AC(3), (4)) for that sentence (s 19AC(1)).

    • If the total sentence exceeds three years, the court must fix a non-parole period (subject to s 19AB(3)) for the sentence (s 19AB(1)).

Sentencing options from State law may be available: s 20AB (see Additional sentencing alternatives: s 20AB below, and for a detailed discussion of the NSW sentencing options, see [3-500] Community-based orders generally.

Sample orders for various Commonwealth penalties are included in the Local Court Bench Book at [18-100].

Discharge without conviction

Section 19B(1) provides a court can dismiss the charge or discharge the offender without proceeding to conviction (with or without conditions), under paras (c) and (d) respectively, if it is inexpedient to inflict any punishment having regard to the character, antecedents, age, health or mental condition of the person (s 19B(1)(b)(i)), the extent (if any) to which the offence is of a “trivial nature” (s 19B(1)(b)(ii)), or the extent (if any) to which the offence was committed under “extenuating circumstances” (s 19B(1)(b)(iii)).

Any condition that an offender be of good behaviour may not exceed three years: s 19B(1)(d)(i). Reparation may be ordered under s 19B(1)(d)(ii) as can supervision for a period not exceeding two years under s 19B(1)(d)(iii).

The court cannot take into account customary cultural practice as a reason for excusing or justifying the offence, or which aggravates the seriousness of the behaviour: s 19B(1A).

Before making the order, the court is required to explain or cause to be explained to the offender the purpose of the order and the consequences that may follow if the order is breached: s 19B(2).

The application of s 19B(1) involves a two-stage inquiry: Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [10]. The first is the identification of a factor or factors of the character specified in subparas (i), (ii) and (iii) of s 19B(1)(b), and the second is the determination that, having regard to that factor or factors, it is inexpedient to inflict any punishment, or to reach the other conclusions for which s 19B(1) provides: Commissioner of Taxation v Baffsky at [10]. The scope of considerations relevant to the exercise of the power in s 19B(1) encompass each of the matters identified in s 16A(2), which arise at the second stage of the inquiry: Commissioner of Taxation v Baffsky at [15].

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.

In Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282 at [33]–[37] the Court held a community service order could not be imposed as a condition of an order under s 19B as it would conflict with State laws, noting s 20AB provides no basis for imposing a community service order on any person who has not been convicted.

Fine

The maximum penalty for a federal offence may include the imposition of a fine (ss 20B(5), 20AB(4)) equating to the number of penalty units specified for the offence, or as otherwise provided. Section 4AA defines the amount for one penalty unit.

Section 16C(1) provides that, before imposing a fine, the court is required to consider the financial circumstances of the offender, although, s 16C(2) also provides that nothing prevents the court from imposing a fine because the offender’s financial circumstances cannot be ascertained. The fact that an offender’s financial circumstances must be taken into account does not dictate the fine to be imposed: Mahdi Jahandideh v R [2014] NSWCCA 178 at [15]. That is, financial capacity to pay is relevant but not decisive: Darter v Diden (2006) 94 SASR 505 at [30].

In Soerensen v The Queen [2020] WASCA 114 at [127], the Western Australian Court of Appeal held that the fact the corporate offender was in liquidation did not prevent the imposition of a fine which was said to also have a general deterrent effect (even though it could not be recovered).

Conditional release of offender after conviction and without passing sentence: s 20(1)(a)

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 and the conditional release can include conditions such as to be of good behaviour (but for a period not exceeding 5 years) (s 20(1)(a)(i)); to make such reparation or restitution or pay such compensation or costs as the court specifies in the order (s 20(1)(a)(ii)), and/or comply with any other conditions not exceeding 2 years that the court thinks fit to specify (s 20(1)(a)(iv)).

A condition that the person pay to the Commonwealth such pecuniary penalty as the court dictates, not being more than the specific maximum penalty for the offence, may also be imposed: s 20(1)(a)(iii).

If supervision conditions are ordered, the court must, pursuant to s 20(1A), state that the federal offender will not travel interstate or overseas without the written permission of the probation officer. The purpose and effect of the order and consequences of its breach must be explained to the offender: s 20(2).

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.

Sample orders for various Commonwealth penalties are included in the Local Court Bench Book at [18-100].

Recognizance release order, forthwith or with a minimum term of imprisonment of 3 years or less: ss 19AC, 20(1)(b)

The court may convict and sentence a federal offender to imprisonment to be released on recognizance with or without conditions pursuant to s 20(1)(b). A recognizance is only available where a person is convicted of a federal offence, or two or more federal offences in the same sitting, and the total sentence does not exceed 3 years imprisonment and when imposed, the offender is not already serving, or subject to, a federal sentence: ss 19AC(1), 20(1). The court may order the federal offender be released on recognizance forthwith upon giving security, with or without surety, with or without conditions, or after serving a minimum term of imprisonment: s 20(1)(a), (b). If a recognizance release order includes a good behaviour condition, it must not exceed 5 years (s 20(1)(a)(i)) but may extend beyond the period of imprisonment ordered under s 20(1)(b): Johnsson v R [2007] NSWCCA 192 at [30] citing R v Smith [2004] QCA 417 at [9].

The minimum period must reflect the minimum time that justice requires the applicant must serve having regard to all the circumstances of the offences; there is no prescribed ratio: see Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525. Where the total sentence of imprisonment does not exceed 6 months, the court is not required to make a recognizance release order: s 19AC(3). Alternatively, the court can decline to make a recognizance release order if satisfied it is not appropriate to do so having regard to the nature and circumstances of the offence and the offender’s antecedents, or the offender is expected to be serving a State or Territory sentence at the end of the federal sentence: s 19AC(4). If the court adopts this approach, it must state its reasons for not imposing a recognizance release order: s 19AC(5).

For a “Commonwealth child sex offence” (defined in s 3) committed on or after 23 June 2020, there is a presumption the offender will serve a minimum period of imprisonment before release to recognizance unless the court is satisfied there are “exceptional circumstances”: s 20(1)(b)(ii), (iii). In such cases, s 20(1B) specifies the conditions which must be made as part of the order. “Exceptional circumstances” in s 20(1)(b)(ii) is not defined. By analogy, in the Penalties and Sentences Act 1992 (Qld), s 9 provides that when sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years of age, the offender must serve an actual term of imprisonment unless there are exceptional circumstances. In R v GAW [2015] QCA 166, the Queensland Court of Appeal at [54] applied the reasoning in R v Tootell; ex parte Attorney General (Qld) [2012] QCA 273 that the intention of the phrase “exceptional circumstances” read in its statutory context was to:

make it the usual case that those who commit sexual offences against children will serve actual imprisonment. And, while that intent was not to be subverted by, for example, an over-readiness to regard as exceptional any circumstances peculiar to an offender’s case, it was not the case that a combination of circumstances which would not individually be unusual can never be judged extraordinary.

Quoting R v Tootell at [24] the Queensland Court of Appeal in R v GAW stated at [54]:

… there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.

Sample orders for various Commonwealth penalties are included in the Local Court Bench Book at [18-100].

Imprisonment exceeding 3 years with non-parole period: ss 19AB

Pursuant to s 19AB(1), where the court convicts and sentences a person of a federal offence, or two more federal offences in the same sitting, and the total sentence of imprisonment exceeds 3 years, the court may convict and sentence a federal offender to imprisonment with a non-parole period and the balance of the term on parole.

Alternatively, the court can decline to fix a non-parole period if satisfied it is not appropriate to do so having regard to the nature and circumstances of the offence and the offender’s antecedents, or if the offender is expected to be serving a State or Territory sentence at the end of the federal sentence: s 19AB(3). If the court adopts this approach, it must state its reasons for not doing so and enter those reasons in the records of the court: s 19AB(4).

There is no prescribed ratio between the non-parole period and parole period, and therefore “special circumstances” are not required to displace a particular ratio. The minimum period must reflect the minimum time that justice requires the offender must serve having regard to all the circumstances of the offences: see Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525.

Sample orders for various Commonwealth penalties are included in the Local Court Bench Book at [18-100].

Sentencing for certain offences:

  • For a “terrorism offence” (defined in s 3), an offence against Div 80 Criminal Code, or an offence against ss 91.1(1), 91.2(1) Criminal Code, s 19AG provides for a minimum non-parole period.

  • For certain child sex offences, s 16AAA prescribes mandatory minimum penalties.

  • For second or subsequent convictions for certain child sex offences, s 16AAB prescribes mandatory minimum penalties.

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 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 they are convicted of a federal offence and the commencement of the sentence for the instant (federal) offence.

Determining the level of accumulative or concurrency in the structure of the ultimate disposition is a matter within the discretion of the sentencing judge, but ought to be applied principally: see for example, Holt v R (Cth) [2021] NSWCCA 14 at [74].

The common law principles, regarding structuring sentences cumulatively or concurrently that have developed for sentencing state offenders apply when sentencing federal offenders: Holt v R (Cth) at [75] endorsing the principles in Cahyadi v R [2007] NSWCCA 1 at [27]. Howie J in Cahyadi v R at [27] stated:

In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

In R v Hausman [2022] NSWCCA 24 at [106] the Court of Criminal Appeal when considering multiple sentences for State and Federal offences stated:

While it might be said that the High Court in Johnson and other decisions of this Court which have followed it …have considered that the preferred or conventional approach in applying totality principles is to determine the degree to which the individual sentences should be concurrent, partly concurrent or wholly accumulated (or a notional assessment of those considerations when an aggregate sentence is imposed), the ultimate question is whether in application of totality principles the ultimate and effective sentence adequately and fairly encompasses the totality of the criminality so as to arrive at a sentence which also satisfies the principle of proportionality.

Section 19(5)–(7) contain additional requirements when an offender is being sentenced for a Commonwealth child sex offence. In summary, there is a presumption that sentences of imprisonment for child sex offences are entirely cumulative. However, s 19(6), (7) provide that, the court may, with reasons, impose a sentence in a different manner if it would result in sentences that are of a severity appropriate in all the circumstances. This suggests s 19(6) does not unduly fetter the sentencing exercise, and principles of totality still apply: Mertell v R [2022] ACTCA 69 at [18].

Additional sentencing alternatives: s 20AB

Pursuant to s 20AB, additional sentences or orders under State or Territory law are available if they are listed in s 20AB(1AA), or are similar to a sentence or order listed in s 20AB(1AA) (s 20AB(1)(b)), or are prescribed under cl 6 Crimes Regulations 1990 (Cth) (s 20AB(1)(c)). In CDPP v Evans [2022] FCAFC 182 at [12], the Federal Court stated:

It is readily apparent that s 20AB of the Crimes Act was intended to provide a court with additional sentencing options in respect of federal offenders by empowering it to pass certain types of sentences or make certain types of orders which were available under applicable laws of participating states and territories. There is nothing in the text or context of either ss 20 or 20AB which is suggestive of any legislative intention that the availability of the additional sentencing options in s 20AB would somehow exclude or limit the types of orders that the sentencing court could otherwise lawfully make under s 20(1) of the Crimes Act.

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

In NSW, applying s 20AB, additional sentencing options may include intensive correction orders (ICOs) and community correction orders (CCOs) under ss 7, 8 Crimes (Sentencing Procedure) Act respectively. If such sentences are being considered, then any statutory requirements, limitations or prescriptions pursuant to the Crimes (Sentencing Procedure) Act 1999 apply. This is to ensure the State laws are applied consistently to federal offenders: s 20AB(3).

There is no reference in s 20AB or cl 6 Crimes Regulations to a sentencing option of deferral of sentence (akin to that provided for in s 11 Crimes (Sentencing Procedure) Act) and, accordingly, is not available when sentencing federal offenders.

If the court is considering an ICO, Part 5 of the Crimes (Sentencing Procedure) Act 1999 applies. Therefore, when considering whether to impose an ICO for a federal offender, the court must engage with the assessment required in s 66(2) of the Crimes (Sentencing Procedure) Act: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3. Pursuant to s 66(3) of the Crimes (Sentencing Procedure) Act, when deciding whether to order an ICO the court must consider the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act: Chan v R [2023] NSWCCA 206 at [99]–[116]. In Chan v R, N Adams J (with Kirk JA and Rothman J agreeing) noted the “significant textual differences” between the purpose in s 3A(d) of the Crimes (Sentencing Procedure) Act which is “to promote the rehabilitation of the offender” and s 16A(2)(n) which lists as a factor the offender’s “prospect of rehabilitation” Further, pursuant to s 67(1) of the Crimes (Sentencing Procedure) Act 1999, an ICO is unavailable for some Commonwealth offences including a terrorism offence (defined in s 3) or a “prescribed sexual offence” which includes certain federal offences pursuant to the definition in s 67.

For further detailed discussion, see Intensive correction orders (ICOs) (alternative to full-time imprisonment) at [3-600]ff and particularly Federal offences at [3-680].

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 an order under s 19B(1) or s 20(1).

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

(i) 

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

(ii) 

take no action: s 20A(5)(a).

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

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

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

Discharge or variation of a recognizance

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).

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.

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

Section 20AC does not authorise the court to amend or revoke the order when the offender has a reasonable excuse for failing to comply with it. The options in s 20AC only apply when the offender lacks a reasonable excuse. This situation was illustrated in R v Rivkin [2003] NSWSC 447 where the offender was convicted of the federal offence of insider trading and sentenced to 9 months imprisonment, to be served by way of periodic detention. When the offender 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 the offender to serve the eight remaining weekends of his periodic detention in one 16-day block.

[16-035] Relevance of decisions of other State and Territory courts

See also the extensive discussion concerning the issue of consistency, the use of other cases and the use of statistics in Objective Factors at common law at [10-020]ff and at [10-024]ff.

Sentencing principles

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

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

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.

Prior to The Queen v Pham, 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]. Further, Hili v The Queen at [57] was applied in The Queen v Pham at [18], [36].

Achieving consistency in sentencing

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.

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.

In Hili v The Queen 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) 253 CLR 58 at [40], [41].

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

I see no reason why, in the absence of a pattern of sentencing for the federal offence, some guidance could not have been obtained from the many cases decided under the State legislation. Although, in Pham, the High Court rejected the proposition that a State court sentencing federal offenders should sentence in accordance with the sentencing practice of that State to the exclusion of sentencing practices in other Australian jurisdiction, there is nothing in the judgment of the plurality that prevents reference to sentences imposed in respect of comparable offences under State law. Particularly is that necessary where, as the Crown here asserted, there was no relevant pattern of sentencing in respect of the Code offence.

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

The idea that sentences for Commonwealth offences should be equated with similar State offences for the purposes of achieving consistency is wrong as a matter of principle. An approach that seeks consistency with similar State offences would create inevitable problems. The equivalent State offences in each jurisdiction may have differing maximum penalties and may attract differing ranges of sentences.

Use of information about sentences in other cases

The High Court has held Simpson J’s approach in DPP (Cth) v De La Rosa at [303]–[305] accurately identified the proper use of information about sentences that have been passed in other cases: Hili v The Queen at [54]; Barbaro v The Queen (2014) 253 CLR 58 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; and

  • 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 (2001) 207 CLR 584 at [59]; Barbaro v The Queen at [41]; The Queen v Pham at [29].

Having regard to comparable cases can assist in identifying the relevant sentencing principles, and the range of available sentences: The Queen v Pham at [29].

[16-040] Sentencing for multiple offences

Aggregate sentences

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 …

R v Bibaoui [1997] 2 VR 600 held that s 4K(3) was only concerned with summary offences and the words “information, complaint or summons” in the subsection did not embrace “on 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.

Where multiple offences are being dealt with on indictment, Pearce v The Queen (1998) 194 CLR 610 may be applied: Thorn v R [2009] NSWCCA 294 at [47]. A judge sentencing an offender for multiple federal offences may also impose an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999. The power to do so does not derive from s 20AB: Watson v R [2020] NSWCCA 215 at [25]. 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]; Kannis v R [2020] NSWCCA 79 at [10].

An aggregate sentence cannot be imposed for a combination of Commonwealth and State offences: Sheu v R [2018] NSWCCA 86 at [26]. Separate aggregate sentences must be imposed: Fasciale v R (2010) 30 VR 643 at [27].

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

Totality has application for multiple offences. See Cumulative, partly cumulative or concurrent sentences of imprisonment: s 19 at [16-030] Sentences of imprisonment above.

Mixture of Commonwealth and State offences

Setting a non-parole period where there is a mixture of State and Commonwealth offences may pose difficulties for a court. There must be separate aggregate sentences imposed (see above at Aggregate sentences).

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] NSWCCA 1 at [40].

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 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.

A court cannot fix a single non-parole period or make a recognizance release order for both a federal sentence of imprisonment and a State/Territory sentence of imprisonment: s 19AJ.

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.

[16-045] Remissions

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): ss 19AA(2) and (4). New South Wales does not allow remissions.

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] 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. Section 19ALA contains a non-exhaustive list of the matters which may be considered by the Attorney-General in making a parole decision.

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

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: s 19AP(3) and (4). Release on licence may be granted whether or not a non-parole period has been fixed, or a recognizance release order has been made, and whether or not the non-parole period or pre-release period has expired. Two examples of circumstances in which early release may be granted are when an offender requires medical treatment that cannot be provided in the prison system and when an offender has provided assistance to law enforcement authorities, but this was not taken into account at sentence.

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. There is no limit on the period of supervision. “Supervision period” is defined in s 16(1) by reference to the time between a person’s release on parole or licence and when either the relevant order, or nominated period of supervision, expires.

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.

[16-055] Revocation of parole or licence

A federal offender on parole or licence (conditional release) is still serving their sentence until the parole or licence period ends: s 19APB(1)(a). If an offender fails to comply with the conditions of their release the Attorney General may revoke their parole or licence: s 19AU. There will be an automatic revocation of an offender’s parole or licence, if the offender on conditional release commits an offence resulting in the imposition of a sentence of more than 3 months’ imprisonment: s 19AQ(1)–(2).

Because there is no federal equivalent of the NSW parole board, a court determines how much of the outstanding sentence the federal offender is liable to serve and fix a new non-parole period (or decline to do so): s 19AQ(3)–(4). This does not involve “re-sentencing” the offender for the outstanding sentence: Nweke v R (No 2) [2020] NSWCCA 227 at [23].

The provisions do not apply to suspended sentences: s 19AQ(5).

Revocation of parole or licence by Attorney-General

The Attorney-General may revoke parole or a licence where a federal offender fails to comply with their conditions, or there are reasonable grounds for suspecting that the offender has failed to comply: s 19AU(1).

A person who is arrested (with or without warrant) after 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: s 19AV(3). The magistrate must direct the person be detained in prison for the unserved part of the sentence: s 19AW. This is calculated in accordance with NSW laws with an offender being taken to have served their sentence from release on parole or licence until its revocation therefore taking clean street time into account: s 19AA(1)–(3); see Crimes (Administration of Sentences) Act 1999, ss 171, 254 and 255.

Automatic revocation of parole or licence

A federal parole order or licence is automatically revoked when an offender commits a further federal, State or Territory offence (new offence) on conditional release for which they are sentenced to a term of imprisonment of more than 3 months: s 19AQ. This includes an aggregate sentence of more than 3 months but not a suspended sentence: s 19AQ(1)–(2), (5). Parole will be automatically revoked even if the sentence has expired, so long as the offence which attracted a sentence of at least 3 months imprisonment was committed while the offender was on conditional release: s 19APB(2).

When sentencing the offender for the new offence, the court will generally deal with the outstanding sentence by:

1. 

Determining when the parole order or licence was revoked (s 19AQ(1)–(3));

2. 

Determining how much of the sentence the person is liable to serve (s 19AQ(4));

3. 

Imposing a new non-parole period for the outstanding sentence (s 19AR) (the court cannot impose a recognizance release order); and

4. 

Issuing a warrant for the offender’s imprisonment for the unserved part of the outstanding sentence (s 19AS).

When determining how much of the outstanding sentence the offender is liable to serve, s 19AQ(4)(b) provides the court may, where appropriate, take into account the person’s good behaviour between conditional release and revocation (clean street period). The earlier version of s 19AQ which applies to parole or licences revoked before 20 July 2020, when read together with s 19AA(2) also requires the clean street period to be taken into account: Nweke v R [2020] NSWCCA 153 at [75]–[77].

When sentencing the offender for the new offence/s, the court must fix a single non-parole period for all outstanding and new federal offences: s 19AR(1). A non-parole period for any new State or Territory offences committed while the offender was on conditional liberty must be fixed separately: ss 19AJ, 19AR(3). A court may decline to set a non-parole period but must provide reasons: s 19AR(4)–(5).

Section 19AS(1)(e) provides an offender “must begin to serve the unserved part of the outstanding sentence… on the day that the new sentence is… imposed” and the court is not able to backdate a sentence. Where an offender is entitled to the benefit of pre-sentence custody, the court’s inability to backdate the sentence means it is “not possible to impose a sentence that does not involve some distortion of the common law and statutory principles that govern the sentencing task”: Nweke v R (No 2) [2020] NSWCCA 227 at [41]. Instead, courts should make allowance for pre-sentence custody while providing “a transparent process of reasoning” and ensure the sentence structure is “not distorted so as to exceed or fall short of what would otherwise have been imposed”: at [41]. One option is to reduce the total effective sentence while an alternative option is to backdate the sentence for the new offences to reflect the pre-sentence custody relating to the original offences. Neither approach is wrong or wholly satisfactory: Nweke v R (No 2) at [35], [39]–[41].

[16-060] 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. However, it does not preclude the application of federal sentencing laws and considerations in Pt IB of the Crimes Act (Cth).

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.

If the child is tried or punished for a federal offence in accordance with NSW laws, key provisions of the Children (Criminal Proceedings) Act 1987 are engaged, such as the principles in s 6, the procedure in s 31 and the penalties in s 33.

[16-065] 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.

[16-070] 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 Divs 8 and 9) will be discussed here. Specific alternatives are available to the court instead of passing sentence.

Summary jurisdiction: s 20BQ

In the summary jurisdiction, if a federal offender is suffering from a mental illness within the meaning of the civil law of the State or Territory, or is suffering from an intellectual disability, and the court considers it would be “more appropriate” to deal with the offender within s 20BQ, the Court can dismiss the charge and discharge the offender conditionally or unconditionally into the care of a responsible person. See discussion in Local Court Bench Book at [18-140] Persons suffering from mental illness or intellectual disability.

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).