Part IB Crimes Act 1914 (Cth) sets out procedural requirements and penalty options for sentencing offenders who commit Commonwealth offences.
However, Pt IB is not a code. In DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 387, the NSW Court of Criminal Appeal found that Pt IB “glosses over” and “in some ways it exacerbates” the difficult policy choices involved. For instance, the court asked at 375:
“Is the principle to be that federal offenders should be treated, in respect of their federal offences, as equally as possible throughout Australia, wherever their offence occurred? Or, out of recognition that they are housed side by side with State offenders in State prisons (and often also upon sentences following conviction of connected State offences), should their punishment be assimilated, approximately, with that of State prisoners?”
The High Court in Putland v The Queen (2004) 218 CLR 174 also rejected the “proposition that Pt IB ‘covered a field’ as an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences”: per Gummow and Heydon JJ at [53]; compare Gleeson CJ at [12].
The Australian Law Reform Commission (ALRC) undertook a review of Pt IB to determine, according to the terms of reference, whether it is:
“… an appropriate, effective and efficient mechanism for the sentencing, imprisonment, administration and release of federal offenders, and what, if any, changes are desirable.”
The ALRC released a report: Same Crime, Same Time: Sentencing of Federal Offenders, ALRC Report 103, April 2006, at <www.alrc.gov.au/inquiries/title/alrc103/index.html>, accessed 12 November 2010. The recommendations of the report have not yet been implemented, according to the ALRC website.
Note: The terms Commonwealth offences and federal offences are used interchangeably below. The main interpretation section in the Crimes Act 1914, s 3, defines “Commonwealth offence” to mean (except in Part IC) “an offence against a law of the Commonwealth”; while for the purposes of Pt IB, s 16 defines “federal offence” as “an offence against the law of the Commonwealth”.
[16-002] Relevance of decisions of other State and Territory courts
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 construction of Commonwealth criminal legislation — including, the Crimes Act 1914 (Cth) (and the general sentencing principle set out in Pt IB), Criminal Code (Cth), Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), Financial Transaction Reports Act 1988 (Cth) — is subject to this principle.
The SA Court of Criminal Appeal in R v Toe (2010) 106 SASR 203, adopted Spigelman CJ’s analysis of the word “import” in s 300.2 Criminal Code (Cth) in the NSW Court of Criminal Appeal case of R v Campbell (2008) 73 NSWLR 272. See also R v JS (2007) 175 A Crim R 108 per Spigelman CJ at [87]; and R v NZ (2005) 63 NSWLR 628 at [155]–[166].
The principle also applies to common law (sentencing) principles: CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [50]; R v NZ at [165]. See also Tillman v AG (NSW) (2007) 70 NSWLR 448 per Giles JA and Ipp JA at [105]:
“Commonwealth legislation, uniform national legislation and the common law have obvious claims to national certainty and predictability. The first and third are truly nation-wide, the secondly is effectively nation-wide, and there should be consistent decision-making throughout Australia notwithstanding the existence of separate legal jurisdictions. Perpetuation of egregious error is countered by departure from the prior decision if persuaded that it is plainly wrong, but there is for the most part social and economic unity within Australia calling for comity (in the sense described above) between the appellate courts of the separate jurisdictions.”
Some sentencing principles emanate from the common law. There is only one common law in Australia: Lipohar v The Queen (1999) 200 CLR 485 at [45]–[46]. Courts apply the principle of comity in the application of the common law. In R v Gent (2005) 162 A Crim R 29 at [29], Johnson J said that when construing and applying Commonwealth legislation, the court applied “a rule of comity with respect to decisions of intermediate appellate courts of other States dealing with the same legislation”. The comity principle was also referred to and applied by the Vic Court of Appeal in DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21].
Achieving consistency in sentencing
The administration of criminal justice should be systematically fair. This “involves, amongst other things, reasonable consistency”: Wong v The Queen (2001) 207 CLR 584 at Gleeson CJ at [6].
As the ALRC noted in its report, Same Crime, Same Time: Sentencing of Federal Offenders, there is a potential for Commonwealth offenders to receive different sentences for the same offence, depending on the jurisdiction in which they are sentenced because State and Territory courts will apply their own laws in relation to procedure and have alternative sentencing options available to them: at [3.1]. This is a consequence of the application of s 68 Judiciary Act 1903 (Cth) which applies State and Territory procedural laws to federal prosecutions in State and Territory courts. The procedure for victim impact statements, pre-sentence reports and the manner in which the totality principle is applied can differ. In Putland v The Queen (2004) 218 CLR 174 at [7], the High Court held that s 68 has no operation where the sentencing provision is “complete on its face”, citing The Queen v Gee (2003) 212 CLR 230 at [62], as it was held to be in the case of s 20BQ Crimes Act 1914 (diverting persons suffering a mental illness or intellectual disability): Kelly v Saadat-Taleb (2008) 72 NSWLR 305 at [43]–[46].
It should be noted that s 20C Crimes Act 1914 provides that children and young persons may be tried and punished for federal offences in accordance with the law of the State or Territory in which they were charged or convicted.
In NSW, consistency in sentencing has been the subject of discussion in a number of recent appellate decisions and while the discussion has occurred in relation to sentencing for drug offences, the same principles apply to Commonwealth offences generally.
The High Court has stressed the importance of a consistent approach by the courts to sentencing for similar offences: DPP (Cth) v De La Rosa [2010] NSWCCA 194. In De La Rosa, McClellan CJ at CL said at [193].
“It is a mistake to assume that the Court should confine its consideration to New South Wales decisions when considering Commonwealth offences. State courts must endeavour to achieve consistency in sentencing patterns.”
This approach was affirmed by Allsop P at [71].
It is apparent from the discussion of the relevant sentencing principles for child pornography offences in P Mizzi, T Gotsis and P Poletti, Sentencing offenders convicted of child pornography and child abuse material offences, Research Monograph 34, Judicial Commission of NSW, Sydney, 2010, that there is, to a large extent, a nationally consistent approach to sentencing for such matters at least in terms of the general sentencing principles which are applied. See also DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21].
In R v Nguyen [2010] NSWCCA 238, Johnson J (Macfarlan JA and RA Hulme J agreeing) referred to the Director of Public Prosecution’s practice of providing a schedule of national comparative cases to assist intermediate appellate courts and sentencing courts in cases involving drug offences. Such schedules according to Johnson J at [104]:
“… served to promote consistency where sentences for federal offences of that type are passed in a range of courts throughout the States and Territories of Australia”.
However, Johnson J added the caveat at [106]:
“… but care remains necessary in the use of case schedules given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]”.
In DPP (Cth) v De La Rosa, McClellan CJ at CL used a national schedule of cases “to take a principled rather than ‘results-driven’ approach to the analysis” : at [202]. Justice Simpson said that schedule did not “establish inconsistency to a level that might be of concern”: at [293]. Her Honour at [295]–[296] detected from the outlines of the cases:
“… some regional variation. The pattern of sentencing in some States appears to be heavier than that in others. That raises the issue of consistency. Plainly, consistency is desirable in sentencing”.
Her Honour also raised the issue of consistency between sentences imposed for Commonwealth offences and similar, or even parallel, State offences at [297]–[298]:
“Both state and federal governments have legislated in respect of drug offences, some of them very similar, even parallel. It may seem odd if, in respect of comparable crimes, an offender sentenced in, say, NSW, under federal law was treated markedly differently from an offender sentenced in NSW under State law … in my view, consistency, while a desirable goal, has more than one aspect.”
This issue was raised again in R v Cheung [2010] NSWCCA 244. The court held that it is open to a court when dealing with an offence under s 305.3(1) Criminal Code (Cth) (manufacturing a commercial quantity of a controlled drug (amphetamine)), to seek guidance from the long established State offence of manufacturing drugs under the Drug Misuse and Trafficking Act 1985 (NSW), especially where the legislation creating the Criminal Code (Cth) offence is recent, and little examined jurisprudentially: R v Cheung at [131]. To confine the exercise to one or the other offence would be to deprive the sentencing court of a valuable resource and to risk inconsistency: R v Cheung at [131].
In The Queen v Olbrich (1999) 199 CLR 270, the High Court addressed the question of fact finding for Commonwealth offences. The majority adopted the Victorian decision of R v Storey [1998] 1 VR 359 at 369, which stated that a sentencing judge:
“… may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities”. [Emphasis in original.]
The majority in The Queen v Olbrich said at [24]:
“… we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous”. [Emphasis in original.]
The majority further stated at [25]:
“… it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)”.
[16-010] General sentencing principles applicable
Division 2 Pt IB Crimes Act 1914 is headed “General Sentencing Principles”. Section 16A states:
“(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a)the nature and circumstances of the offence;
(b)other offences (if any) that are required or permitted to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)the personal circumstances of any victim of the offence;
(e)any injury, loss or damage resulting from the offence;
(f)the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa)the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g)if the person has pleaded guilty to the charge in respect of the offence — that fact;
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j)the deterrent effect that any sentence or order under consideration may have on the person;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n)the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
(2A) However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for:
(a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b) aggravating the seriousness of the criminal behaviour to which the offence relates.
(2B) In subsection (2A):
criminal behaviour includes:
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(3)Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.”
In Wong v The Queen (2001) 207 CLR 584 at [133], Kirby J stated that there is an:
“… express requirement imposed on the judge … to conform to the requirements of s 16A of the Crimes Act 1914. That section expresses a number of matters to which a court must have regard when passing sentence. Necessarily, in any appeal against a sentence so imposed, the same considerations must apply in the appellate court”. [Emphasis in original.]
Sentence of a “severity appropriate”: s 16A(1)
Section 16A(1) provides that a court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a “severity appropriate in all the circumstances of the offence”. However, s 16A(1) does not stand alone and should be read in conjunction with s 16A(2). In Wong v The Queen, Gaudron, Gummow and Hayne JJ (in a joint judgment) stated at [71]:
“Standing alone, the reference to imposing ‘a sentence…of a severity appropriate in all the circumstances of the offence’ might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender or the offender’s prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account.”
Purposes of sentencing in s 16A(2): deterrence, punishment, rehabilitation
There is no distinct statement of the purposes of sentencing in the Crimes Act 1914, unlike, for example, s 3A Crimes (Sentencing Procedure) Act 1999 (NSW). However, s 16A of the Commonwealth Act includes deterrence, punishment and rehabilitation in the list of matters to which the court is to have regard in passing sentence: ss 16A(2)(j), (k) and (n).
Deterrence is only recognised by s 16A(2)(j) in the form of the deterrent effect that the sentence “may have on the person”. This type of deterrence, known as personal or specific deterrence, aims to discourage the particular offender from committing the offence again. It is different to general deterrence, which aims to discourage other potential offenders from committing the offence. Although general deterrence is omitted from s 16A(2)(j), courts are still required to take this factor into account.
In Putland v The Queen (2004) 218 CLR 174 at [12], Gleeson CJ said, with regard to deterrence under Pt IB:
“In particular, it makes no reference to general deterrence, a matter so obviously relevant to sentencing that the statement of matters to which regard must be had is manifestly incomplete.”
In R v Paull (1990) 20 NSWLR 427 at 434, Hunt J in the NSW Supreme Court observed that s 16A:
“… happens to omit any reference to the one factor which is generally accepted as being the main purpose of punishment, to which all of the usual subjective considerations are necessarily subsidiary — namely, general deterrence: Radich [1954] NZLR 86 at 87 and Rushby [1977] 1 NSWLR 594 at 597–598. The draftsman has, however, made the checklist subject to the ‘addition of any other matters’ … General deterrence must obviously still be taken into account in determining the sentence to be passed”.
In DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 378, the NSW Court of Criminal Appeal held:
“… s 16A(1) imposes on the court the duty, which is its primary obligation, to ensure that the sentence or order ‘is of a severity appropriate in all the circumstances of the offence’. It is by this duty that the general principles of sentencing law are imported into the function of a court imposing a sentence on a Federal offender convicted of the offence. What will be ‘appropriate’ will depend, in part, upon a consideration of fundamental notions, such as that of general deterrence.
The list of particular considerations in s 16A(2) must be read as subject to the primary obligation of the court stated in s 16A(1). All that s 16A(2) requires is that the court should ‘take into account’ the listed matters. … However, the opening words of s 16A(2) must be noticed. They state that the matters there listed are to be taken into account ‘in addition to any other matters’. These words make it plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters. One other such relevant matter is clearly the general deterrent effect of the sentence”.
List of factors under s 16A(2) is not exhaustive
The factors listed under s 16A(2) are not categorised into aggravating or mitigating factors, unlike s 21A Crimes (Sentencing Procedure) Act 1999 (NSW). Nor is the list exhaustive, as already discussed above in the context of the omission of general deterrence. This is reinforced by the explicit statement at the beginning of s 16A(2): “In addition to any other matters …”. This statement, together with the words “of a severity appropriate in all the circumstances of the offence” in s 16A(1) denote that common law principles apply to sentencing federal offenders: Johnson v The Queen (2004) 78 ALJR 616 per Gummow, Callinan and Heydon JJ at [15].
Exhaustive reference to the factors in s 16A is unnecessary
In R v Ferrer-Esis (1991) 55 A Crim R 231 at 237–238, the NSW Court of Criminal Appeal confirmed that the sentencing judge is not required to refer to every factor under s 16A:
“It should be said that that legislation only requires the sentencing judge to take those matters into account; it does not require judges always to refer to each of them when explaining the sentence imposed. Indeed, the act of sentencing is to a large extent incapable of being fitted into such a straightjacket, and in most cases it is unnecessary for the judge to expose the precise reasoning by which the ultimate sentence has been reached: Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. It is only where the judge has formed a particular view in relation to one or more of these items which would not otherwise be apparent in the circumstances of the case that reference should be made to the particular items in the judge’s remarks on sentence, so that no erroneous conclusion would otherwise be drawn in relation to those matters.”
“Relevant and known to the court”
Section 16A(2) states that “the court must take into account such of the following matters as are relevant and known to the court”. The concept of “relevant and known to the court” was examined by the High Court in Weininger v The Queen (2003) 212 CLR 629. In a joint judgment, Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [21]:
“The use of the phrase ‘known to the court’, rather than ‘proved in evidence’, or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase ‘known to the court’ should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.”
Taking other offences into account: ss 16A(2)(b) and 16BA
Section 16A(2)(b) allows any other offences (as required or permitted) to be taken into account at sentencing. Similarly, s 16BA allows the court, with the consent of the prosecutor, to take into account other federal offences to which an offender has pleaded guilty. Indictable offences can be taken into account as long as the court has jurisdiction to sentence a person for such an offence: s 16BA(3A).
The offender does not have to be “convicted” of the additional federal offences for them to be taken into account. Section 16BA(1)(b) only requires that the person “is believed to have committed” the additional federal offences. However, the text of s 16BA(1) goes on to conclude:
“… the court may, with the consent of the prosecutor and before passing sentence on the person, ask him whether he admits his guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him for the offence or offences of which he has been convicted”. [Emphasis added.]
The result, therefore, is similar to s 33(2) Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that the court may take a further offence into account when sentencing for the principal offence if: the offender admits guilt to the further offence; and the offender wants the court to take the further offence into account when dealing with the principal offence; and if, in all of the circumstances, the court considers it appropriate to do so.
In Assafiri v R [2007] NSWCCA 159, the applicant pleaded guilty to four Commonwealth fraud offences, with 19 similar offences taken into account under s 16BA. The sentencing judge did not indicate which of the offences on the indictment the s 16BA offences were attached. The NSW Court of Criminal Appeal found that the judge appeared to have taken the additional offences into account in relation to all of the four offences on the indictment. Justice Howie stated at [9]:
“… it cannot have been the intention of the legislature that more than one sentence could be increased by taking into account the same offences. Obviously that would result in double counting the matters being taken into account. This might not be of practical significance when the sentences are being served concurrently. But it would clearly be unfair to do so when some or all of the sentences are being served cumulatively as was the case here”.
The form on which additional offences are listed under s 16BA is Form 1 of Sch 3 Crimes Regulations 1990 (Cth).
Section 16A(2)(g) provides that the sentencing court must take into account the fact that an offender pleaded guilty. This is listed separately to contrition at s 16A(2)(f), because a plea of guilty does not necessarily indicate contrition.
While Pt IB does not require the discount to be quantified or the judge to give reasons for the amount of the discount, the High Court in Markarian v The Queen (2005) 228 CLR 357 confirmed at [24] that it is not an error to quantify a discount for a guilty plea.
The applicant in Cahyadi v R (2007) 168 A Crim R 41 pleaded guilty to two Commonwealth offences and one State offence, with additional offences taken into account. The sentencing judge specified a discount of 20 per cent only in relation to the State offence. However, it was evident that the judge took the plea into account on all of the offences, as the judge referred to “a willingness to facilitate the course of justice” which is a description of the value of the guilty plea from Cameron v The Queen (2002) 209 CLR 339. Justice Howie criticised the sentencing judge’s approach in Cahyadi at [34]:
“I cannot see the logic in such approach and I do not believe that it is warranted by anything said in the High Court in Cameron v The Queen (2002) 209 CLR 339. Markarian v The Queen (2005) 79 ALJR 1048, which concerned sentencing for Commonwealth offences, makes it quite clear that it is legitimate for a sentencing judge to indicate a percentage discount for a plea of guilty or assistance to authorities, see per Gleeson CJ, Gummow, Hayne and Callinan JJ at [24].”
The range of discount nominated by the NSW Court of Criminal Appeal in the guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383 has been found to be relevant to Commonwealth offences. For example, in R v Bugeja [2001] NSWCCA 196, Hodgson JA (with whom James and Adams JJ agreed on this point) said at [28]:
“The range of discount suggested by Thomson and Houlton on this utilitarian basis is ten to twenty-five per cent. Although that range is not expressed as applying to Commonwealth offences in general terms, it seems to me that it is a reasonable range to adopt.”
R v Bugeja was applied in R v Simon (2003) 142 A Crim R 166 at [19]; R v Otto (2005) 157 A Crim R 525 at [69]; and Morgan v R [2007] NSWCCA 8 at [21].
In Charkawi v R [2008] NSWCCA 159, the sentencing judge quantified a discount (of 10 per cent), following the approach in R v Bugeja, but did not specify the notional starting point for the undiscounted sentence, which is a practice encouraged by the Court of Criminal Appeal in decisions including: R v Waqa (No 2) (2005) 156 A Crim R 454, R v Franklin [2005] NSWCCA 24, and R v Lynn [2004] NSWCCA 222. In rejecting the argument that the sentencing judge in Charkawi had erred in the application of the discount, Price J stated at [17]:
“Neither the omission by a sentencing Judge to identify an undiscounted starting point nor the inability to calculate a neat starting point for a sentence will necessarily lead to the conclusion that the Judge has simply paid lip service to the discount for a plea which the Judge has specified. Sentencing is not merely arithmetical. The encouragement of transparency does not confine sentencing to a precise mathematical exercise. An ‘instinctive synthesis’ approach has been recognised in the High Court in AB v The Queen [1999] HCA 46; Johnson v The Queen [2004] HCA 15.”
Where an offender pleads guilty and also assists the authorities, a combined discount should be given: R v Sukkar (2006) 172 A Crim R 151. The appropriate range for such a combined discount is generally between 20–50 per cent, with 50 per cent involving assistance of a very high order: R v Sukkar at [54]; R v SC [2008] NSWCCA 29 at [49]. Those cases were both Crown appeals in which the combined discount granted by the sentencing judge was found to be excessive. In Sukkar at [56], the combined discount of 45 per cent was reduced to 35 per cent on appeal, while in SC the combined discount of 50 per cent resulted in a manifestly inadequate sentence, but the court exercised its discretion not to intervene: at [53], [55].
The strength of the Crown case is an irrelevant factor in determining the utilitarian value of a plea of guilty and is relevant only to the evaluation of remorse: R v Otto (2005) 157 A Crim R 525 at [81], where the offences were against Commonwealth law, citing R v Sutton [2004] NSWCCA 225 at [12].
However, the strength of the Crown case can have relevance to the plea in a Commonwealth matter. The Court of Criminal Appeal held in Danial v R [2008] NSWCCA 15 per James J at [27]–[28]:
“It is clearly established that in sentencing an offender for a New South Wales offence the strength of the Crown case against the offender is irrelevant to the determination of any discount for the utilitarian value for the plea of guilty. See R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 415–416 (136–137), and many subsequent cases.
However, the applicant was being sentenced, not for a State offence, but for a Commonwealth offence. In sentencing for a Commonwealth offence the appropriate factor to be considered by the sentencing judge is not the utilitarian value of the plea of guilty but the offender’s willingness to facilitate the course of justice. See Cameron v The Queen (2002) 209 CLR 339. In assessing the willingness of an offender to facilitate the course of justice the strength of the Crown case against the offender can be a relevant consideration. In Tyler v Regina; R v Chalmers [2007] NSWCCA 247 Simpson J, with the concurrence of the other members of the Court, said at par 114:
‘Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable.’”
The principle that the appropriate test is not the utilitarian value of the plea for a Commonwealth offence was stated in Cameron v The Queen (2002) 209 CLR 339 by Gaudron, Gummow and Callinan JJ at [14]:
“Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”
Justice Howie, writing extra-curially, confirmed in “Sentencing Discounts: Are they Worth the Effort?” (2008) 8(4) TJR 473 at 475:
“Even though the strength of the Crown case is not a consideration when applying the guideline [in R v Thomson and Houlton (2000) 49 NSWLR 383] to State offences because the discount is based upon the utilitarian value of the plea, the strength of the Crown case is relevant in Commonwealth offences because the discount is based upon a willingness to facilitate the course of justice.”
For a further discussion of utilitarian value, see N Bruni, “The Utilitarian Value of the Guilty Plea” (2004) 11(1) Criminal Law News 98.
Co-operation with law enforcement agencies: ss 16A(2)(h) and 21E
Under s 16A(2)(h), a sentencing court must take into account the degree to which a federal offender has co-operated with law enforcement agencies in the investigation of the offence or other offences.
Section 21E(1) provides that, where a court reduces the sentence imposed because a federal offender has undertaken to co-operate in future with law enforcement agencies, the court must state that the sentence is being reduced for that reason and the sentence that would have applied otherwise. This requirement assists an appellate court in re-sentencing an offender who has failed to comply with the undertaking.
The NSW Court of Criminal Appeal differentiated between s 16A(2)(h) and s 21E(1) in R v Vo [2006] NSWCCA 165 at [36]. Section 16A(2)(h) relates to past co-operation whereas s 21E involves prospective co-operation. The two bases for a discount are distinct and should not be confused: Vo at [37], citing R v Gladkowski (2000) 115 A Crim R 446, in which the Queensland Court of Appeal held at [11] that s 16A(2)(h):
“… includes co-operation in the form of self-incrimination, and also co-operation already given to law enforcement agencies in relation to their offences up to the time of the sentence. Co-operation of those kinds has no part to play in s 21E”.
A judge who gives a combined reduction for past and future co-operation rather than separately addressing future co-operation, fails to comply with s 21E: 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 in accordance with s 21E: Vo at [43]; R v Tae at [20], [32].
Section 21E(2) entitles the Director of Public Prosecutions (DPP) to appeal against the sentence when the offender fails, without reasonable excuse, to comply with the undertaking. Although the section is ambiguously worded, it is for the court to make its own determination whether an offender’s failure to co-operate is without “reasonable excuse”, rather than the question being determined by the DPP: R v YZ (1999) 162 ALR 265 at [25], [29], [44].
Under s 21E(3)(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 21E(3)(b) provides that, where the offender partially fails to co-operate, the court may substitute such a sentence or non-parole period not exceeding that which could be imposed under s 21E(3)(a). The court in Vo stated at [38]:
“The purpose of s 21E(3)(a) or (b) is not to punish the offender for failing to cooperate but rather to restore the sentence which would have been imposed if the offer of cooperation had not been made … [T]he additional sentence should so far as the appeal court is able reflect an increase in the sentence which reflects the extent to which the offered cooperation has not been forthcoming.”
Although s 21E refers only to a “sentence” and a “non-parole period”, the Court of Appeal of Victoria has found that it does apply to the reduction of a recognizance release order: DPP (Cth) v Haunga (2001) 4 VR 285.
Unlike discounting for future assistance under s 21E, which requires the judge to specify the sentence before and after the discount, quantification is not required in relation to assistance which has been supplied. The NSW Court of Criminal Appeal in R v Gallagher (1991) 23 NSWLR 220 held that a sentencing judge is not obliged to specify a discrete, precisely quantified discount for past assistance, distinct from other subjective or mitigating circumstances. Chief Justice Gleeson said at 228:
“It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.”
After referring to the requirement to specify the reduction for future co-operation under s 21E, Gleeson CJ stated at 230:
“… I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so … Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by ‘tariffs’ derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice”.
However, in some cases, specifying a separate discount for assistance to the authorities may be justified. In R v El Hani [2004] NSWCCA 162, Howie J pointed out at [70]:
“… in the present case his Honour found that there was no remorse and that the applicant had not acknowledged, even in evidence, that what he had done was wrong. His Honour concluded that the applicant ‘might well be rehabilitated’. In those circumstances, which will be relatively rare, it was not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the purely utilitarian value of the plea”.
The range of discount normally allowed for assistance to the authorities has been held to be 20–50 per cent: R v El Hani at [71]; R v Sukkar (2006) 172 A Crim R 151 at [5]; compare R v Cartwright (1989) 17 NSWLR 243 at 256.
Relevant considerations in assessing the extent of the discount to be given to federal offenders include the effectiveness of the assistance and its value to the authorities: R v El Hani; R v Barrientos [1999] NSWCCA 1. In El Hani, the court found at [73] that it was within the sentencing judge’s discretion to determine that a discount of 12.5 per cent:
“… was appropriate for what was, in effect, very limited intelligence provided to the police about the present and past criminality of his co-offenders”.
The discount for assistance already given is for assistance that is accepted and used. In Alchikh v R [2007] NSWCCA 345, the court held at [25]:
“The value of that assistance, and the discount to be allowed, are to be determined on objective and pragmatic grounds. If the authorities reject the proffered assistance, and it is not used, the prisoner will have given no assistance in the result and will not be entitled to any discount on that basis. In such a case the prisoner may be entitled to a greater discount for his plea of guilty but only if the sentencing Judge is able to find on the civil onus that his proffered assistance was honest and truthful.”
The weight to be attached to prior good character may vary depending on the type of offence. In R v Leroy (1984) 2 NSWLR 441, the NSW Court of Criminal Appeal found that the lack of a criminal record will have less significance for a drug trafficking offence than for some other fields of crime. In R v Leroy, the defendant was convicted of being knowingly concerned in the importation of cocaine, contrary to s 233B Customs Act 1901 (Cth). Chief Justice Street stated at 446–447:
“Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.”
The approach to character in R v Leroy has been applied in other federal drug importation cases in response to the argument that a lack of priors must be taken into account as part of character and antecedents under s 16A(2)(m) Crimes Act 1914. The absence of a prior record is a matter to which relatively little weight can be given in such cases, although it is not completely irrelevant as a subjective circumstance: R v Barrientos [1999] NSWCCA 1 at [52]–[57]; R v Paliwala (2005) 153 A Crim R 451 at [20]–[26].
In white collar offences, such as those against the Corporations Act 2001 (Cth), less weight is attached to prior good character because it is normally the factor that places the defendant in the position that enables him or her to commit the offence: R v Rivkin (2004) 59 NSWLR 284 at [410]; R v Adler [2005] NSWSC 274 at [51]; R v Williams (2005) 152 A Crim R 548 at [61]; R v IR Hall (No 2) [2005] NSWSC 890 at [101].
The NSW Court of Criminal Appeal observed in R v Gent (2005) 162 A Crim R 29 at [61] that:
“… there is no closed category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character”.
The court pointed out at [63] that it is a common feature of the federal offence of importing child pornography (and the State offence of possessing child pornography) that the offender is otherwise of good character, is in good employment, and of sound reputation: R v Liddington (1997) 97 A Crim R 400; R v Jones (1999) 108 A Crim R 50; R v Assheton (2002) 132 A Crim R 237; R v C: Ex p DPP (Cth) [2004] QCA 469. Justice Johnson in Gent concluded at [64] that there was:
“… foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography”.
However, this issue was addressed again, and more directly, in Mouscas v R [2008] NSWCCA 181 at [37], which involved a State child pornography offence. The court concluded that it was legitimate for a sentencing court to give less weight to prior good character as a mitigating factor in child pornography offences. This aspect of that judgment was approved in the context of Commonwealth child pornography offences by the Victorian Court of Appeal in DPP (Cth) v D’Alessandro [2010] VSCA 60 at [26], [27].
Cultural background and customary law: ss 16A(2)(m) and 16A(2A)
The Crimes Amendment (Bail and Sentencing) Act 2006 removed the reference in s 16A(2)(m) to “cultural background”, which could be taken into account at sentence along with other subjective features listed in that subsection (character, antecedents, age, means and physical or mental condition). The reason for its deletion was expressed by the then Attorney-General, the Hon Philip Ruddock MP, in the Second Reading Speech to the Bill, Commonwealth of Australia, House of Representatives, Parliamentary Debates, 28 November 2006, p 18 at p 19:
“Criminal behaviour can never, in any form, be excused, justified, authorised, required or rendered less serious because of customary law or cultural practice … The Australian government firmly rejects the idea that an offender’s cultural background should automatically be considered, when a court is sentencing an offender, so as to mitigate the sentence imposed.”
To the same ends, s 16A(2A) was inserted to specifically provide that cultural practices are not to be taken into account in mitigating or aggravating the seriousness of criminal behaviour.
The removal of “cultural background” from s 16A was not without controversy. Professor Michael Dodson argues that there should be a legislative provision requiring courts to have regard to any relevant matters connected with an offender’s cultural background at sentence, including Aboriginal customary law: “Customary law and the sentencing of Indigenous offenders” (2008) 20(5) JOB 37 at 38–39. The ALRC, in its report on sentencing, had earlier supported the retention of “cultural background” in s 16A: Same crime, same time: sentencing of federal offenders, Report No 103, April 2006, at [29.45].
Probable effect of sentence on offender’s family or dependants: s 16A(2)(p)
The requirement under s 16A(2)(p) to take into account the “probable effect” upon an offender’s family or dependants of any sentence under consideration, does not represent a change from the common law, namely, that the probable effect must be “exceptional”: R v Sinclair (1990) 51 A Crim R 418. The WA Court of Criminal Appeal found at 431 that the sentencing judge in that case incorrectly interpreted the effect of s 16A(2)(p) by taking the view that it had changed the common law. Similarly the NSW Court of Criminal Appeal has held that s 16A(2)(p) must be construed consistently with the common law position that hardship must be exceptional before it is given substantial weight: R v Togias (2001) 127 A Crim R 23 at [13]–[17]. (The authority of Togias has been confirmed in NSW and some other States despite the ACT Court of Appeal departing from it: see references in R v Le [2006] NSWCCA 136 at [25].)
In R v Hinton (2002) 134 A Crim R 286, Howie J stated at [31]:
“It should be emphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed.”
Circumstances were held to be not exceptional in R v Capper [2000] NSWCCA 63, where the incarceration of the appellant caused his children (aged 10 and 12 years), of whom he had sole care, to become wards of the State and to reside with foster parents. But exceptional circumstances were found in R v Aller [2004] NSWCCA 378, in which a Crown appeal was dismissed against a 77-year-old woman who had sole care of her seriously disabled 40-year-old son.
In the Crown appeal of R v Nguyen (2006) 166 A Crim R 124, the sentencing judge was found to have erred by allowing a substantial reduction in the respondent’s sentence on the basis of family hardship pursuant to s 16A(2)(p), despite making a finding that the circumstances in the case were not exceptional: at [13]. While cases such as R v X [2004] NSWCCA 93 and R v Girard [2004] NSWCCA 170 correctly decided that hardship to an offender’s family could be taken into account as part of the general subjective circumstances, hardship cannot be used to justify any substantial reduction unless the hardship is truly exceptional: R v Nguyen at [27].
In R v El Hani [2004] NSWCCA 162, the court held that the sentencing judge erred in finding that it was only possible to mitigate the sentence for hardship caused to the applicant’s wife and children by reason of the applicant’s assistance to the authorities if the circumstances were exceptional and extraordinary. Justice Howie said at [58]:
“It should be noted that s 16A(2)(p) is only concerned with the impact of the sentence upon the offender’s family; that is, the impact of the offender being imprisoned for a specific term, or at all. The provision, and the limit placed upon it, is not concerned with some other relevant consideration arising in the course of sentencing the offender that has some bearing upon his or her family and may impact upon the sentence to be imposed. In particular, there is no principle that limits the court’s consideration of the effect upon the offender’s family of the fact that the offender has co-operated with the investigating or prosecuting authorities.”
The meaning under s 16A(2)(p) of the word “probable”, in the context of the “probable effect that any sentence … would have on any of the person’s family or dependants”, was considered by the SA Court of Criminal Appeal in R v Berlinsky [2005] SASC 316. Two judges made observations on the word “probable”. Justice Bleby stated at [42]:
“… in the context of s 16A of the Crimes Act I consider that the effect to be considered is that which is more probable than not or more likely to occur than not. If a lesser standard were required, it is likely that the drafter would have used the word ‘possible’ rather than ‘probable’”.
Justice Gray seemed to take a broader view at [58]:
“In the context of s 16A(2)(p), a provision obviously intended by the legislature to enable the Court to take into account a wide range of circumstances and eventualities, the term ‘probable’ is correctly interpreted as including events that are possible, in the sense of being credible or having the appearance of truth, that is, events that are plausible outcomes, not merely fanciful postulations. Such an interpretation provides consistency of approach when sentencing.”
A number of provisions in Pt IB require the court to explain to the offender particular sentencing orders. For example, s 17A(2) provides that, when a court imposes a sentence of imprisonment, the court shall state the reasons why no other sentence is appropriate. The court must also explain the purpose and consequences of:
- setting a non-parole period when imposing a sentence of imprisonment: s 16F
- discharging a person without proceeding to a conviction: s 19B(2)
- ordering a person’s conditional release on a good behaviour bond: s 20(2), or
- selecting a sentencing alternative available under State law, for example, community service or intensive correction orders: s 20AB(2).
The difficulty of creating guideline judgments for Commonwealth offences was highlighted by the decision in Wong v The Queen (2001) 207 CLR 584. The High Court ruled (by majority) that the guideline judgment delivered by the NSW Court of Criminal Appeal on the importation of heroin and cocaine exceeded its jurisdiction. The NSW guideline prescribed a table of sentencing ranges to be applied in future cases. The High Court reasoned that the numerical nature of the guideline judgment intruded on the factors listed under s 16A Crimes Act 1914. Justices Gaudron, Gummow and Hayne stated at [72]:
“… while s 16A takes the form it now does, it would be wrong to produce some numerical guideline system of a kind similar to that adopted in some jurisdictions in the United States under which presumptive sentences are fixed by reference to a classification of the gravity of an offence and the seriousness of the offender’s previous criminal history. To do so would obviously depart from the legislative command of Pt IB of the Commonwealth Crimes Act if only because it fastens upon only some of the factors that are mentioned in the Act. Yet that is what the Court of Criminal Appeal’s tabulation of sentences does. It offers a grid against which future sentences are to be judged and it is a grid which is founded entirely on gravity of the offence as measured only by the weight of narcotic concerned”.
Chief Justice Gleeson said at [31]:
“I agree with the contention of the appellants that, making due allowance for all the qualifications with which the guidelines were accompanied, there is a substantial risk that they may result in an approach to sentencing which is inconsistent with the requirements of s 16A of the Crimes Act 1914 … The effect they will have, is to constrain the exercise of sentencing discretion. This is a risky undertaking when there is a federal statute which spells out in detail the matters to be taken into account by a sentencing judge. The statute is important both for what it says and for what it does not say.”
Justice Kirby, referring to the list of matters under s 16A(2), observed at [134]:
“To superimpose upon that list highly specific requirements expressed in terms of anticipated outcomes defined by reference only to the weight of narcotic substances cuts across the scheme of the individualised and complex assessment of relevant considerations contemplated by s 16A(2). This inconsistency is specially objectionable because of the holding that the overall parameters of the offence in question are defined by reference to the objective quantity of the drug imported.”
In R v Paliwala (2005) 153 A Crim R 451 at [27], the court maintained that it was appropriate at sentence to refer to the range of sentences discussed in R v Wong and Leung (1999) 48 NSWLR 340 and this was reiterated by the court in R v Nguyen [2010] NSWCCA 238 at [72] where Johnson J said:
“… the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s. 16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12], R v Bezan at 438 [34]–[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67–68 [65]–[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40]”.
However, in R v Cheung [2010] NSWCCA 244, as part of a differently constituted bench, Simpson J concluded at [90] that “… in light of the criticisms made by the High Court … the proposition that the Wong and Leung guideline sentences continue to operate as ‘a useful guide’ cannot withstand scrutiny”.
Prerogative of mercy: ss 21D and 85ZR–85ZS
Section 21D confirms that nothing in Pt IB affects the prerogative of mercy that exists under s 61 of the Australian Constitution. The Governor-General may exercise the prerogative of mercy, on the advice of the Executive Council, to pardon or remit any sentence imposed on a federal offender.
When a person has been granted a pardon for a Commonwealth offence because they were wrongly convicted, the person is to be regarded throughout Australia as never having been convicted of the offence: ss 85ZR–85ZS.
[16-020] Non-custodial sentencing options
Section 17A provides that a judge shall not pass a sentence of imprisonment on any person for a federal offence, unless the judge has considered all other available sentences and is satisfied that no other sentence is appropriate. What follows is commentary about the non-custodial sentencing options available for federal offences.
Discharge of offender without proceeding to conviction: s 19B
Two types of orders are available under s 19B where a court is satisfied that a charge is proved: dismissal of the charge (s 19B(1)(c)); and conditional discharge (s 19B(1)(d)).
In determining whether to make such an order, the court is to have regard to the factors listed under s 19B(1)(b):
(i) the character, antecedents, age, health or mental condition of the person
(ii) the extent to which the offence is trivial
(iii) the extent to which the offence was committed under extenuating circumstances.
The matters under s 16A(2) to which the court must have regard when passing sentence (nature and circumstances of the offence, injury or damage caused, contrition, co-operation and so on) are also relevant to a consideration of s 19B: Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at [15], [29].
Reflecting on the matters under s 19B(1)(b), Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 stated (at 276):
“The Act speaks of the court exercising the power it confers ‘having regard to’ the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.”
The wording of s 19B(1)(b)(i) was amended by the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth), which commenced on 13 December 2006, to remove “cultural background” from the list of factors. This deletion was reinforced by inserting s 19B(1A) to provide that the court must not take into account under s 19B(1) any form of customary law or cultural practice as a reason for excusing, justifying, lessening or aggravating the seriousness of the criminal behaviour to which the offence relates.
The word “antecedents” in s 19B(1)(b)(i) has a wide meaning, including all aspects, favourable and unfavourable, of an offender’s personal, family, employment and vocational circumstances: Commissioner of Taxation v Baffsky at [25]–[29]; Jones v Morley (1981) 29 SASR 57 at 63–64.
Section 19B(1)(b)(ii) requires a finding to be made that the offence is of a “trivial” nature before a defendant can be discharged without recording a conviction: Shillabeer v Stra [2007] SASC 274 at [12]. This decision was an appeal against the order of a magistrate who discharged the respondent after applying the criteria under State law for not recording a conviction, rather than the Commonwealth criteria under s 19B. Allowing the appeal, Debelle J in the SA Supreme Court held that, as the magistrate determined the offences were “indeed serious” (not trivial) a conviction had to be recorded: at [13].
The presence of any “extenuating circumstances” surrounding the commission of the offence, pursuant to s 19B(1)(b)(iii), requires a link between the circumstance said to be extenuating and the commission of the offence: Commissioner of Taxation v Baffsky at [47].
The fact that the offender is subject to adverse consequences (for example, legal and social consequences) if a conviction is recorded is a relevant consideration: Commissioner of Taxation v Baffsky at [38]; R v Ingrassia (1997) 41 NSWLR 447 at 449.
Section 19B(1)(d) provides for the conditional discharge of a person without proceeding to conviction. The court can discharge the person with or without sureties, by recognizance or otherwise. The conditions of the discharge include that the offender will:
- be of good behaviour
- make such reparation or restitution or pay such compensation or costs as is stipulated in the order, and
- comply with any other conditions the court thinks fit to specify.
The time limit for the condition of good behaviour under s 19B(1)(d) is currently 3 years, while the time limit for other conditions set by the court is 2 years. (By contrast, the maximum period of a good behaviour bond attached to a conditional release order under s 20(1) is 5 years.)
In Keys v West (2006) 65 NSWLR 668, a magistrate convicted the defendant of a social security offence in his absence, and issued a bench warrant to bring him before the court for sentence (in accordance with s 75A Justices Act 1902 (NSW), now found at s 202 Criminal Procedure Act 1986 (NSW)). Later, a different magistrate discharged the defendant pursuant to s 19B(1)(d) upon entering a recognizance. The Commonwealth DPP applied unsuccessfully to the second magistrate for an annulment of the sentence on the basis that the defendant had previously been convicted of the offence and therefore could not be discharged without conviction. The magistrate refused the application, reasoning that the recording or finding of an offence (pursuant to s 75A Justices Act) as proven for the purposes of issuing a warrant did not preclude a court from subsequently dealing with the matter by not recording a conviction: at [16]. On appeal, Hall J found at [56]:
“The conviction made and recorded … constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, the determination did not constitute a conviction in the sense of a final disposition of the proceedings.”
It was therefore open to the magistrate at a later date to exercise the power to discharge the defendant under s 19B(1)(d) upon entering a recognizance: at [56].
Conditional release of offenders after conviction: s 20
Section 20(1)(a) provides that, where a court convicts a person of a federal offence, the court may order the conditional release of the person without passing sentence. The person must give security that he or she will comply with the conditions of release. These are the same as for s 19B(1)(d); namely, that the person will:
- be of good behaviour (but for a period not exceeding 5 years);
- make such reparation or restitution or pay such compensation or costs as the court specifies in the order; and
- comply with any other conditions the court thinks fit to specify.
There is also an additional condition that the person shall pay to the Commonwealth such pecuniary penalty as the court dictates.
The court must still consider the matters listed under s 16A(2) in determining whether to conditionally release a person after conviction.
Nothing prohibits a judge, when making an order under s 20(1)(a), from imposing a good behaviour bond that extends beyond the period of imprisonment imposed under the order: R v Smith [2004] QCA 417 at [9].
Section 20 does not set out conditions that may be imposed on a federal offender who is conditionally released, to the same degree of specificity as some of the State and Territory sentencing legislation on recognizances/bonds. For example, in NSW, s 95(a) Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates as a condition of a good behaviour bond that the offender must appear before court if called upon at any time during the term of the bond. Section 95(c) precludes the court from ordering a person to perform community service work or make any form of payment as a condition of a good behaviour bond.
Failure to comply with condition of discharge or conditional release: s 20A
Section 20A sets out the consequences of failing to comply with a condition of discharge without conviction under s 19B(1) or conditional release after conviction under s 20(1).
Where a person has been conditionally discharged under s 19B(1) and has failed to comply with a condition of the order without reasonable excuse, the court may:
(i) revoke the order, convict the person of the offence, and resentence the person, or
(ii) take no action: s 20A(5)(a).
An additional option exists for a person who has been conditionally released under s 20(1) but has failed to comply with a condition of the order without reasonable excuse. The court may impose a fine not exceeding 10 penalty units: s 20A(5)(b).
In DPP (Cth) v Seymour [2009] NSWSC 555, Simpson J concluded that s 20A does not permit a magistrate to set aside a duly executed conviction and substitute an order under s 20BQ: at [8]–[9]. Her Honour then said at [10] that the conviction can only be set aside by a proper appeal process.
Recognizance release order/suspended sentence
A recognizance release order is defined by s 16(1) Crimes Act 1914 as an order made under s 20(1)(b). It is analogous to a suspended sentence because the court sentences the offender to prison but directs that the person be released upon giving security (as referred to in s 20(1)(a)), either forthwith or after the offender has served a specified period of imprisonment.
Where a court sentences an offender to imprisonment for one or more federal offences, and the aggregate sentence does not exceed 3 years, a court must make a recognizance release order, unless the court is satisfied that it is not appropriate to do so, having regard to the nature of the offence/s and the antecedents of the person: s 19AC(1).
Where a court sentences an offender to imprisonment for one or more offences and the aggregate sentence exceeds 3 years, the court must either set a non-parole period or make a recognizance release order (but may decline to do either if satisfied it is not appropriate to do so): s 19AB(1).
A recognizance (either made under ss 19B(1) or 20(1)) can be varied or discharged: s 20AA. Examples of variations include:
- extending or reducing the duration of the recognizance (within the limits allowed under s 20AA(4))
- inserting additional conditions
- reducing the amount of compensation
- altering the manner in which reparation is to be made: s 20AA(3).
Breach of a recognizance release order without reasonable excuse may result in the court: imposing a monetary penalty not exceeding $1000; extending the period of supervision to a period not greater than 5 years; revoking the order and imposing an alternative sentencing option under s 20AB; revoking the order and imprisoning the person for that part of the sentence they had not served at the time of release from custody; or taking no action: s 20A(5)(c).
Reparation for offences: s 21B
Where a person is convicted of a federal offence or is discharged under s 19B the court may, in addition to the penalty imposed on the person, order the offender to make reparation by way of monetary payment or otherwise, for any loss suffered or expense incurred by the Commonwealth by reason of the offence: s 21B(1)(c). The court may also order the offender to make reparation to any person, in the same terms, for any loss suffered by the person as a direct result of the offence: s 21B(1)(d).
Section 21B(2) clarifies that a person is not to be imprisoned for failure to pay the amount required under the reparation order.
Additional sentencing alternatives: s 20AB
Sentencing alternatives under State or Territory law are available if prescribed under s 20AB Crimes Act 1914 or cl 6 Crimes Regulations 1990 (Cth). Consequently, options that are not covered by the Act or the Regulation are not available.
The additional sentencing options pertaining to NSW are community service (s 20AB(1)), intensive correction orders (s 20AB(1) and cl 6(fa)) and home detention (cl 6(g)). As there is no reference in s 20AB or cl 6 to deferral of sentence (s 11 bond in NSW), non-association orders or place restriction orders, these options cannot be used for Commonwealth offences, despite being available in NSW for State offences.
Although a “suspended sentence” is not referred to by that name in Pt IB, an approximate equivalent is available. Such an order is known as a “recognizance release order” and has the effect of immediately or partially suspending a prison sentence. Section 20(1)(b) provides that a court may sentence a federal offender to a term of imprisonment but may direct that the person be released forthwith, or after serving a specified amount of time, upon giving security of compliance with certain conditions. Further details are outlined above in Recognizance release order/suspended sentence.
Where an alternative sentencing order is made under s 20AB, the laws of the State or Territory governing that sentence apply “so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth”: s 20AB(3).
Failure to comply with sentencing alternative under s 20AB
Section 20AC outlines the procedure when an offender fails to comply with a sentencing alternative made under s 20AB. The court — if satisfied that the offender has, without reasonable cause or excuse, failed to comply with the sentence or order or any requirements related to it — may impose on the offender a pecuniary penalty not exceeding 10 penalty units; revoke the alternative sentence and re-sentence the offender; or take no action: s 20AC(6).
Section 20AC does not authorise the court to amend or revoke the order when the offender has a reasonable excuse for experiencing problems with compliance. The options in s 20AC only apply when the offender lacks a reasonable excuse. This situation was illustrated by the case of Rene Rivkin, who was convicted of the federal offence of insider trading and sentenced to 9 months imprisonment, to be served by way of periodic detention: R v Rivkin (2003) 198 ALR 400. When Rivkin had difficulty complying with periodic detention, for medical and psychiatric reasons, a leave of absence was sought from the Commissioner of Corrective Services (NSW). In the absence of a judicial option, the problem was dealt with by the Commissioner agreeing to allow Rivkin to serve the 8 remaining weekends of his periodic detention in one 16-day block. [See newspaper reports for example, Editorial, “Rivkin is just one of many”, The Sydney Morning Herald, 5 February 2004; Kate McClymont, “Rivkin deal means sentence will be served in a fortnight”, The Sydney Morning Herald, 23 September 2004.]
Generally, there is no procedure under Pt IB allowing the review of an alternative sentencing order, such as a community service order/intensive correction order, where it is no longer feasible for the offender to continue.
The court must take into account the financial circumstances of an offender before imposing a fine for a federal offence: s 16C. This is intended to reduce the likelihood of imprisonment for fine defaulters: Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989, Senate copy.
Where a federal offence is punishable by imprisonment only, a fine may be imposed instead of, or in addition to, imprisonment unless the contrary intention appears. The statutory formula for calculating the number of penalty units appears at s 4B(2). The basic principle is that the maximum penalty, expressed in months, is multiplied by five.
State and Territory laws relating to the enforcement or recovery of fines apply to federal offenders, to the extent that they are not inconsistent with Commonwealth law: s 15A. In NSW, the relevant provisions are under Pt 4 Fines Act 1996. One modification made by Commonwealth law is that only a court is empowered to impose a penalty on a federal offender who fails to pay a fine, even where the State or Territory allows an authority other than a court to impose a penalty in this situation: s 15A(1AA).
[16-035] Sentencing for multiple summary offences: s 4K
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 …”.
In R v Bibaoui [1997] 2 VR 600, the Vic Court of Appeal held that s 4K(3) was only concerned with summary offences and the words “information, complaint or summons” in the subsection did not embrace an indictment. Offences on indictment were covered by the application of s 68 Judiciary Act 1903 (Cth), which picked up the provisions of State legislation with regard to the procedures for the trial of indictable offences. The High Court in Putland v The Queen (2004) 218 CLR 174 confirmed that R v Bibaoui had been correctly decided: per Gleeson CJ at [9], Gummow and Heydon JJ at [46], Kirby J at [86]. Where multiple offences are being dealt with on indictment, the proper approach to sentencing is to apply Pearce v The Queen (1998) 194 CLR 610 and sentence for each offence individually and then determine whether those sentences should be concurrent or cumulative in order to address the principle of totality: Thorn v R (2009) 198 A Crim R 135 at [47]. This approach does not preclude the grouping of some offences.
[16-040] Sentences of imprisonment
Restrictions on imposing prison sentences: ss 17A and 17B
The principle of prison as a last resort is embodied in s 17A(1) Crimes Act 1914:
“A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.”
Reasons must be given when a court imposes a sentence of imprisonment. Section 17A(2) provides that the court:
“(a) shall state the reasons for its decision that no other sentence is appropriate; and
(b) shall cause those reasons to be entered in the records of the court.”
In R v Winchester (1992) 58 A Crim R 345 at 348, the NSW Court of Criminal Appeal found that the sentencing judge failed to comply with s 17A. The judge imposed a sentence of imprisonment on the applicant, who was convicted of social security fraud but had not previously been sentenced to imprisonment, without giving reasons for being satisfied that no other sentence was appropriate.
Limitations apply to the imposition of prison sentences for certain minor offences, such as destroying or damaging Commonwealth property under s 29 Crimes Act 1914, and theft, receiving and fraud offences under the Criminal Code (Cth). Section 17B(1) states that a court is not to pass a sentence of imprisonment for the offences specified where the offence relates to “property, money or both, whose total value is not more than $2,000” and the offender has not previously been sentenced to imprisonment for any federal, State or Territory offence, unless the court is satisfied that there are exceptional circumstances.
Commencement of sentence: s 16E
Section 16E(1) provides that the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that jurisdiction for a federal offence in the same way as it applies to a person who is sentenced for a State or Territory offence.
The Crimes (Sentencing Procedure) Act 1999 (NSW) provides it is mandatory for the court to take into account any time the offender has spent in custody in relation to the offence: ss 24(a) and 47(3). Courts exercising the sentencing discretion under s 16E(1) should adopt practices already established in respect of sentencing for State matters: Assafiri v R [2007] NSWCCA 159 at [11]. Although there is no legislative requirement in NSW to backdate a sentence, the NSW Court of Criminal Appeal has repeatedly held that it is preferable to take into account pre-sentence custody by backdating the sentence: R v Newman & Simpson (2004) 145 A Crim R 361; R v Youkhana [2005] NSWCCA 231.
In Assafiri v R, the court confirmed that the judge did not err by backdating the sentence to take into account the period of pre-sentence custody served by the applicant who had been released on bail after serving some time in custody. Justice Howie stated at [11]:
“The normal and preferred practice in sentencing for State matters, where an offender has been in custody for some time before being released to bail, is to backdate the sentence for a period equal to the period served in custody notwithstanding that the offender may have been on bail for the period up until sentence is pronounced: see R v Newman & Simpson (2004) 145 A Crim R 361. This practice should be adopted pursuant to s 16E(1) of the Crimes Act (Cth) that provides that the law of this State relating to the commencement of sentences applies to a person sentenced for a Federal offence.”
Making allowance for time spent on bail may require backdating the sentence to a date when the offender was not necessarily in custody, but it is the total length of pre-sentence custody that dictates the relevant commencement date: R v Zeng [2008] NSWCCA 183 at [76].
For further discussion of NSW law, see Court to take other matters into account (including pre-sentence custody) at [12-500].
Cumulative, partly cumulative or concurrent sentences of imprisonment: s 19
Section 19(1) addresses the situation where a person who is convicted of a federal offence is, at the time of that conviction, serving or subject to one or more federal, State or Territory sentences. The court must, when imposing the sentence for the present federal offence, direct when the federal sentence commences, but so that:
“(a) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b) if a non-parole period applies in respect of any State or Territory sentences — the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.”
The intention of s 19 is to ensure that there is no gap between the end of a sentence which an offender is serving at the time he or she is convicted of a federal offence and the commencement of the sentence for the instant (federal) offence.
The Qld Court of Appeal in R v Dobie (2004) 145 A Crim R 472 at [19] confirmed that:
“It may be noted that s 19(1)(b) speaks in the present tense: ‘applies’. Thus it requires for its operation the existence of a non-parole period applying in respect of a State or Territory sentence at the time when a federal sentence is being imposed.”
In other words, if the State non-parole period has concluded by the time the offender is sentenced for the federal offence, s 19 has no application.
Detention of offender in State or Territory prison: ss 18 and 19A
Section 18 provides that where, under State or Territory law, a convicted person may be imprisoned in a particular kind or class of prison, a person convicted of an offence against the law of the Commonwealth may, in corresponding cases, be imprisoned in the kind or class of prison appropriate to the circumstances.
Section 19A provides that a federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State/Territory, may be detained in any prison in that jurisdiction and may be removed from one prison to another prison as if the person were detained as a State/Territory offender.
[16-050] Fixing non-parole periods and recognizance release orders
When court must fix non-parole period or make recognizance release order: ss 19AB and 19AC
When a court imposes on a federal offender a sentence exceeding 3 years (or sentences in aggregate that exceed 3 years), including a federal life sentence, the court must either fix a single non-parole period in respect of the sentence(s) or make a recognizance release order: s 19AB.
When a court imposes on a federal offender a sentence of 3 years or less (or sentences in aggregate that do not exceed 3 years) the court must make a recognizance release order in respect of the instant sentence(s) and must not fix a non-parole period: s 19AC.
However, ss 19AB(3) and 19AC(4) allow the court to decline to comply with the above requirements if, having regard to the nature and circumstances of the offence(s) concerned and to the antecedents of the person, the court is satisfied that the designated orders under ss 19AB and 19AC are not appropriate. Furthermore, a recognizance release order is not required to be made for a federal sentence of 6 months or less: s 19AC(3).
If the court fails to fix, or properly fix, the non-parole period or to make a recognizance release order as required, there is provision under s 19AH for the Attorney-General, the Director of Public Prosecutions, or the offender to apply to the court for it to do so.
Proportion of non-parole period to head sentence
Apart from the stipulation of “minimum non-parole offences”, discussed below, Pt IB Crimes Act 1914 does not provide a statutory ratio for the non-parole period as a proportion of the head sentence.
In practice, non-parole periods for federal offences are commonly set between 60 and 66 per cent of the head sentence: R v Bernier (1998) 102 A Crim R 44 at 49; R v Jones & Hili [2010] NSWCCA 108 at [39] quoting R v Ruha [2010] QCA 10 with approval. Justice Rothman J said in Jones & Hili at [40]:
“Ultimately, whatever ‘norm’ is utilised, the task of the sentencing court is to fix and impose a sentence that appropriately fulfils the goals of punishment, deterrence (general and specific), retribution and reform.”
In R v Sweet (2001) 125 A Crim R 341 at [38], the NSW Court of Criminal Appeal found that:
“While a non-parole period of seventy-five per cent will be infrequent, and indeed perhaps rare, it is not impermissible, let alone itself indicative of error.”
A ratio of 78 per cent between the effective non-parole period and the head sentence survived appellate scrutiny in Studman v R (2007) 175 A Crim R 143 and Bick v R [2006] NSWCCA 408. In each case the court found that no lesser sentence was warranted in law. In Studman, the court reasoned that the overall sentence and the effective non-parole period were lenient. While an important function of a non-parole period is the rehabilitation of the offender, it must also mark the offender’s criminality by reflecting considerations of punishment and deterrence, and a lesser non-parole period would not serve those functions: at [39]. Similarly, the court in Bick found that the non-parole period appropriately reflected the seriousness of the applicant’s criminality and the importance of general deterrence: at [23].
However, in Murphy v R [2007] NSWCCA 18 at [25], the court allowed the appeal on the ground that the sentencing judge erred in setting a non-parole period with a ratio of 69 per cent to the head sentence. The non-parole period should have been shorter, to reflect the judge’s positive findings on the applicant’s prospects of rehabilitation and the “normal” range referred to in Bernier’s case.
In Jones & Hili, the court acknowledged the “norm” for non-parole periods, but Rothman J added at [40]:
“It is difficult to imagine, in circumstances where … a sentencing judge has come to the conclusion that a sentence of imprisonment is appropriate (and therefore that no other sentence is appropriate), that a mandatory term of imprisonment of less than 60% would be warranted, other than in special circumstances. For any serious offence, any lesser mandatory period of imprisonment would not seem properly to reflect the criminality of the conduct, except in special circumstances.”
In the circumstances of that case, the court accepted at [44] that there could be special circumstances justifying the fixing of a non-parole period as low as 50 per cent, but no lower.
Mixture of Commonwealth and State offences
Ordinarily it is appropriate to apply the Commonwealth practice so far as the overall non-parole period is concerned where there is a mixture of State and Commonwealth offences and a Commonwealth offence is the most serious: Cahyadi v R (2007) 168 A Crim R 41 at [40]. In Cahyadi the applicant pleaded guilty to two Commonwealth offences and one State offence, with additional offences taken into account. A Commonwealth offence attracted the longest sentence, but the judge adopted the format used in NSW by first nominating the non-parole period and then the balance of term: s 44 Crimes (Sentencing Procedure) Act 1999 (NSW). By making the Commonwealth sentences partially cumulative on the State offence, the total effective non-parole period became 75 per cent of the aggregate term, reflecting the NSW statutory ratio. The aggregate sentence was also expressed in the NSW format of non-parole period, followed by balance of term.
Justice Howie said at [38]:
“… the most serious offence was a Commonwealth crime and the activity was generally in contravention of Commonwealth law. It was only incidental that the applicant also offended against State laws. It seems to me in such a situation to be unfair to sentence by complying with the more severe State regime under s 44, where the statutory ratio is 75 per cent, rather than by adopting the practice for determining the non-parole period for Commonwealth offences, where the ratio is 60 to 66 per cent”.
Minimum non-parole periods for terrorism offences: s 19AG
Minimum non-parole periods were introduced by the Anti-Terrorism Act 2004 (Cth) for certain offences; namely, treachery, terrorism, treason and espionage: s 19AG(1).
The minimum non-parole period is to be at least three-quarters of the sentence of imprisonment, although the court retains the discretion to impose a longer non-parole period, if considered appropriate in the circumstances: s 19AG(2).
Totality principle when previous sentence to be served: ss 16B, 19AD and 19AE
The totality principle, in the sense of taking into account other sentences to be served, is recognised in ss 16B, 19AD and 19AE Crimes Act 1914.
In sentencing a person convicted of a federal offence, the court must have regard to any outstanding sentence imposed on the offender by another court for a federal, State or Territory offence: s 16B(1). The court must also take into account any sentence that the person is liable to serve because of the revocation of a parole order made or licence granted: s 16B(2).
When a court imposes a federal sentence on an offender who is serving a non-parole period for an existing federal sentence, the court must, in fixing the non-parole period, consider the existing non-parole period, the nature and circumstances of the offence concerned, and the antecedents of the person: s 19AD. The same principle applies under s 19AE to offenders who are already subject to an existing recognizance release order.
Options that the court may take are set out by ss 19AD and 19AE; namely, it may:
- make an order confirming the existing non-parole period or recognizance release order
- fix a new single non-parole period or recognizance release order in respect of all federal sentences that the offender is to serve or complete
- cancel the existing non-parole period/recognizance release order and decline to set a new one, where the court decides that a non-parole period or recognizance release order is not appropriate.
It should also be noted that a court may not fix a single non-parole period or make a recognizance release order for both a federal sentence of imprisonment and a State/Territory sentence of imprisonment: s 19AJ.
Possible deportation is no impediment to fixing non-parole period: s 19AK
Section 19AK clearly states that a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia. Cases touching on this topic include: The Queen v Shrestha (1991) 173 CLR 48 and DPP (Cth) v El Karhani (1990) 21 NSWLR 370.
Section 16G Crimes Act 1914 was repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth). The repeal applies to all federal sentences imposed after 16 January 2003, irrespective of when the offence was committed.
Section 16G required a court imposing a federal sentence to adjust the sentence if it was to be served in a State or Territory that did not have remissions. NSW was one such State, as remissions were abolished as part of the “truth in sentencing” reforms under the Sentencing Act 1989 (NSW).
It was generally regarded that the adjustment of a federal sentence to allow for the absence of remissions resulted in a reduction of the sentence by one-third: R v Paull (1990) 20 NSWLR 427 at 431. However, in R v Budiman (1998) 102 A Crim R 411, the NSW Court of Criminal Appeal observed at 415 that it is not “invariably or inevitably the case that a one-third allowance should be given”.
The repeal of s 16G followed the abolition of remissions in most States and Territories. Although it was anticipated that the length of federal sentences would increase, the NSW Court of Criminal Appeal rejected the notion that sentences should be automatically increased by a mathematical amount. An adjustment should not be made “by the use of a mathematical formula or a fixed percentage”: R v SC [2008] NSWCCA 29 at [34]; R v Chea [2008] NSWCCA 78 at [42].
In R v Paliwala (2005) 153 A Crim R 451, James J stated at [39]–[41]:
“While there has been some disagreement about some aspects of the effect of the repeal of [s] 16G on sentences for Commonwealth offences, there has been general agreement in decisions of this court that the repeal of s 16G is likely to result in an increase in sentences, as compared with sentences imposed before the repeal of the section.
In Bezan [(2004) 147 A Crim R 430] Wood CJ at CL said at paragraph 18:
‘The effect of the decisions in Studenikin [(2004) 60 NSWLR 1], Dujeu [(2004) 146 A Crim R 121] and Mas Rivadavia [(2004) 61 NSWLR 63] is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount.’
There is likely to be an increase in sentencing patterns as a result of the repeal of s 16G for the simple reason that, while s 16G was in force, a sentencing court in New South Wales was obliged to adjust downwards the sentence it would otherwise have imposed for a Commonwealth offence in order to take into account the absence of remissions in this State, whereas, since the repeal of s 16G, a sentencing court is no longer directed, or authorised, to make such a downwards adjustment to what it considers to be the appropriate sentence. As a result of the repeal of s 16G, the range of sentences for couriers of a midlevel traffickable quantity of drugs will be higher than six to nine years, although sentences should not be arrived at by applying any specific multiplier.”
In R v Kevenaar (2004) 148 A Crim R 155, the sentencing judge erred by adopting an approach inconsistent with R v Studenikin (2004) 60 NSWLR 1 and instead attempted to impose a sentence which was “consistent with the pattern of sentencing for similar offences by similar offenders in the period leading up to this change in the law”: at [40]. Rather, the pattern of sentences imposed after the repeal of s 16G can be expected to accord with the length of the sentences in the earlier cases prior to the application of the s 16G discount, and the pre-discount amount is often stated in the case law: at [46]. A national schedule of sentences outlined in R v Lee [2007] NSWCCA 234 at [36] shows that head sentences in drug importation cases since the repeal of s 16G, where the offender is a key organiser but not at the pinnacle of the organisation, have generally been over 20 years, with a number of offenders receiving life imprisonment. While noting the care that needed to be taken in the use of national schedules, in R v Nguyen [2010] NSWCCA 238 at [104]–[107], the court confirmed that the updated schedule prepared for that appeal supported the analysis in Lee.
Current provision on remissions: s 19AA
Pursuant to s 19AA(1), any remissions that are provided on the term of sentence to State or Territory offenders by the State or Territory in which the federal offender serves their sentence of imprisonment also apply to federal sentences. However, a State or Territory law that enables the remission or reduction of a non-parole period of a State or Territory prison sentence does not apply to a federal sentence (unless the remission or reduction is due to industrial action by prison warders). As already stated, NSW does not allow remissions.
[16-070] Conditional release on parole or licence
The function of directing release on parole or licence resides with the Attorney-General (Cth) (or departmental delegate). The Attorney-General also retains other important decision-making powers, such as revoking parole and amending the conditions attached to it. By contrast, the court’s role is to determine the length of the sentence and of any non-parole period.
Automatic release on parole: s 19AL(1)
If a federal offender has been sentenced to more than 3 years but less than 10 years imprisonment, the Attorney-General must direct that the offender be released on parole at the end of the non-parole period, unless the prisoner is still serving a State or Territory sentence when the federal non-parole period expires: s 19AL(1). In other words, for this category of sentences, release on parole is effectively automatic.
The threshold of 3 years reflects the requirements for setting non-parole periods: see [16-050].
The maximum parole period for an offender released on parole under s 19AL (where the person has not been given a federal life sentence) is 5 years, pursuant to the definition of “parole period” in s 16.
Discretionary release on parole: s 19AL(2)
When the federal sentence (or aggregate of federal sentences) is 10 years or more, or is a federal life sentence, and a non-parole period has been fixed, the Attorney-General directs whether or not the offender is to be released on parole at the end of the non-parole period: s 19AL(2).
Discretionary release on licence: s 19AP
Release on licence is another form of conditional release of a federal offender. An offender, or someone acting on their behalf, must apply to the Attorney-General for such an order: s 19AP(2). The application must specify the exceptional circumstances relied upon, and the Attorney-General must be satisfied that those exceptional circumstances exist to justify the grant of the licence: ss 19AP(3) and (4). Release on licence may be granted by the Attorney-General whether or not a non-parole period has been fixed, or a recognizance release order has been made, and whether or not the non-parole period or pre-release period has expired. Two examples of circumstances in which early release may be granted are when an offender requires medical treatment that cannot be provided in the prison system and when an offender has provided assistance to law enforcement authorities but this was not taken into account at sentence.
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.
Supervision following release on parole/licence is intended to reduce the risk of reoffending and to assist the offender in reintegrating into the community. The maximum period of supervision is 3 years, as stated in the definition of “supervision period” under s 16(1).
Parole order where offender is serving State sentence: s 19AM
Section 19AM confirms that an offender is not to be released on parole for a federal offence if the offender is serving (or is to serve) a State or Territory sentence.
Revocation of parole or licence
A federal parole order or licence is revoked automatically when a federal offender who is released on parole or licence commits a further federal, State or Territory offence during the parole period and is sentenced to a term of imprisonment of more than 3 months: s 19AQ.
In addition, the Attorney-General may revoke the parole order/licence where a federal offender fails to comply with conditions attached to the order, or there are reasonable grounds for suspecting that the offender has failed to comply: s 19AU.
A person who is arrested (with or without warrant) when their parole or licence is revoked by the Attorney-General must, as soon as practicable, be brought before a magistrate in the State or Territory where they were arrested. The magistrate must direct that the person be detained in prison for the unserved part of the sentence: s 19AW. Similarly, a court imposing a sentence for an offence committed during parole must issue a warrant authorising the person to be detained in prison for the unserved part of the “outstanding” sentence: s 19AS.
[16-080] Children and young offenders
Section 20C Crimes Act 1914 provides that children and young persons may be tried and punished for federal offences in accordance with the law of the State or Territory in which they were charged or convicted. This enables the States and Territories to apply their respective juvenile justice regimes.
There is no definition of “child” or “young person” under the Crimes Act 1914. The definition used in the respective State or Territory is generally adopted, which may result in discrepancies in the treatment received between jurisdictions.
Diversionary options for dealing with young offenders are available to some degree under s 20C. The section allows a child who is “charged with or convicted of” a federal offence to be “tried, punished or otherwise dealt with” as if the offence was a State or Territory offence. The words “otherwise dealt with” are sufficiently broad to encompass many diversionary programs. However, the child must be charged or convicted first, which is often not a characteristic of pre-court diversionary options.
The power of a body to hear and determine federal offences must also be ascertained. Federal jurisdiction is invested in State and Territory courts of summary jurisdiction, including Children’s Courts, pursuant to s 39 Judiciary Act 1903 (Cth). But s 39 restricts jurisdiction to “courts”, which may not necessarily cover all alternative schemes.
[16-090] Victim impact statements and pre-sentence reports
Section 68 Judiciary Act 1903 (Cth) applies State and Territory procedural laws to federal prosecutions in State and Territory courts. Therefore, victim impact statements and pre-sentence reports can be tendered pursuant to the power under s 68. See Victims and victim impact statements at [12-820]–[12-830].
Pre-sentence reports may be useful to alert the court to the “physical or mental condition” of the offender, as a matter the court should take into account under s 16A(2)(m) in passing sentence, or for the purpose of considering the orders available for sentencing persons with an intellectual disability or mental illness under Div 9 of Pt IB Crimes Act 1914. For further details see [16-110].
[16-100] Imposing restrictions on passports at sentence
Section 22 authorises a court that passes a “relevant sentence” or makes a “relevant order” with regard to a person convicted of a “serious drug offence”, or other prescribed offence against the Commonwealth, to surrender possession of their Australian passport or refrain from applying for an Australian passport.
A serious drug offence means an offence involving or relating to controlled substances and punishable by a maximum penalty of 2 years imprisonment or more: s 22(7). The other offences currently prescribed under cl 6AA Crimes Regulations 1990 (Cth) are indictable passport offences.
“Relevant sentence” is defined by s 22(7) as a sentence of imprisonment, other than a suspended sentence, or sentencing alternatives available pursuant to s 20AB (for example, community service, intensive correction orders and home detention for offenders sentenced in NSW). “Relevant order” refers to remanding a person in custody or on bail, suspending the sentence upon entering a recognizance, or ordering a conditional release.
[16-110] Offenders with mental illness or intellectual disability
Divisions 6–9 of Pt IB cover unfitness to be tried and other issues relating to mental illness. Only the provisions relevant to sentencing (under Div 9) will be examined here. Specific alternatives are available to the court instead of passing sentence.
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).
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