Tuesday, March 29, 2011
Tuesday, March 15, 2011
TO ALL MEMBERS OF PARLIAMENT. WE THE BRITISH PEOPLE HEREBY SERVE NOTICE ON YOU ALL.
The pdf below is a brilliant synopsis of the reality facing Britain and indeed humanity as a whole. It is time to let the traitors in Parliament know we know and will not stand for it no more. It is also there chance to redeem themselves and start to serve us the people instead of there own interest and those who would enslave us all.
I urge all members of the Kent Freedom Movement to read and then send copies to your respective MP's.
Insist on getting answers to ALL the points raised. If no satisfactory answers are forthcoming visit them at a public surgery (film it if possible) and again serve public notice on them and demand answers to these most relevant questions.
Any queries please do not hesitate to get in touch.
Kent Freedom Movement
To_all_politicians_final_draft.pdf
http://www.europarl.europa.eu/members/public/geoSearch.do;jsessionid=50F6E51D0275A7C2377045FF0081B2F7.node1%29
A friendly but firm warning to all politicians concerning this Statement:
We the people hereby Serve Notice, under Common Law, to all elected politicians, of all parties in Great Britain, that failure to take action to restore the British people’s Sovereignty, and to overturn the treason and criminality that has occurred and is occurring at the highest levels in this counrty, will lead to charges of being personally complicit in this treason and criminality and therefore liable to prosecution under Common Law.
A STATEMENT EXPOSING
THE POLITICAL TREASON AND CRIMINALITY CURRENTLY BEING CARRIED OUT ON THE LAW-ABIDING PEOPLE OF THE BRITISH ISLES.
We, the British people, now KNOW what is being done unlawfully in our name and are now taking back our country from the highly-placed traitors and criminals by using the precedence of Common Law over Parliamentary Statutes and by carrying out effective and peaceful actions under our ancient right to Lawful Rebellion under Article 61 of Magna Carta 1215.
This is a definitive Statement made by the Common Law-abiding people of the British Isles directed at every democratically-elected man and woman at every level of the present British political system. Failure by any such elected representative to act decisively in response to this Statement of Exposure could potentially result in prosecution under Common Law for knowingly sanctioning acts of treason, fraud, conspiracy to deceive and complicity in shameful crimes such as the abuse of children. Politicians found on examination of their record to be directly involved in such treason and criminal acts will receive severe custodial sentences. Ignorance will be less than ever a defence – all the prima facie evidence is there for elected representatives and ordinary people to see and charge sheets against key individuals are currently being drawn up to start the judicial process under Common Law to put an end to this establishment-led treason and criminality.
It is clear, beyond all reasonable doubt and with evidence that would stand up in any properly-conducted court of law, that an influential network of rogue British politicians across the parties is unlawfully involved in carrying out the hidden strategies and agendas of a centuries-old, secretive and criminal global elite who are seeking the imposition of unlawful global governance on the unsuspecting peoples of the world. Known broadly by researchers as the New World Order (NWO) - though some refer to them as the Illuminati or Zionists (please note that this does not mean Judaism) - the modus operandi of these powerful traitors and criminals is now clear for all to see.
Only a complete fool, or someone who is complicit at some level with what is really going on, would deny the existence of such a global elite network. The Committee of 300, the Bilderberg Group, the Trilateral Commission, the Council on Foreign Relations, the Club of Rome, to name but just a few of this network's component institutions, are where powerful international bankers, politicians, industrialists, media moguls and members of traditional bloodline royal and aristocratic families meet in secret behind closed doors to draw up their
criminal strategies and agendas for achieving global government on their terms. Detailed instructions are then passed down to their subservient and compartmentalised national networks of influential politicians, industrialists, campaigning groups, charities and key individuals in trusted positions who then continue with their own treasonous and criminal work in seeking to undermine even further the very fabric, infrastructure and integrity of the country they are supposedly serving. Not surprisingly, any detailed research and investigation into people involved in this network, or into the network itself, often results in flat denial, ridicule and even threats.
There are currently six major areas of public and political concern where this ‘hidden hand’ of the New World Order has unlawfully involved itself with the affairs and well being of the British people:
1. Banking, the National Debt and the Budget Deficit
Using deception and what can only be described as criminality on a scale virtually incomprehensible to any fair-minded and law-abiding citizen, the House of Rothschild, along with other related bloodline banking families such as the Rockefellers and the Warburgs, have over the past three centuries manoeuvred into place a far-reaching and all-powerful banking and business empire, with one aim and one aim only, to break down and destroy traditional society in favour of a New World Order based on wealth and power rather than on merit, virtue and ‘the common weal’. This they have achieved by variously setting up controlled Central Banks, by funding and encouraging both sides in major wars, by the creation and use of fractional reserve banking and by grooming compliant and treacherous politicians of all political persuasions to support them. Whole countries and peoples have been plunged into massive debt through the loaning out of enormous amounts of money that doesn’t exist whilst at the same time exorbitant amounts of interest are charged on this invisible and non-existent money. For the Rothschilds – the main driving force behind the criminal New World Order – debt, quite simply, equals control and servitude. As Mayer Amschel Rothschild said in 1838 “Permit me to issue and control the money of a nation and I care not who makes its laws”.
In other words, the enormous national debt and budget deficit currently threatening the well-being of the British nation and resulting in the huge defence cutbacks which will give us the smallest navy for our seafaring island since Henry VIII, have been brought about by mass-deception and totally unlawful means. According to the Chancellor, George Osborne, a Rothschild puppet and attendee of three Bilderberg Group meetings (along with his mentor Ken Clarke who belongs to the inner sanctum of the Bilderbergers), the interest alone to these devious and criminal bankers is costing Britain £125 million a day……or nearly £45 billion a year! What wealthy and industrious country in its right mind would allow itself to be forced to borrow money which doesn’t actually exist from bankers and then pay exorbitant amounts of interest on it? It defies all logic, it is insanity…..but not to the traitors in parliament who have sold out Britain’s future to the criminals of the New World Order.
However, the solution is very simple! Under Common Law, the national debt and budget deficit, not to mention the people’s debts of personal loans and mortgages, having been arrived at by the use of criminal and treacherous deception can for this reason be dismissed and written off completely, leaving the British economy and the British people in an excellent and totally healthy position with no financial cutbacks needed. In future, the nationalised Bank of England (once it has been cleansed and cleared of all of its secretive dealings such as the mysterious Bank of England Nominees Ltd) will create interest free money based on the common wealth, repeat common wealth, of the British nation. The criminal bankers will be squeezed into oblivion with
the ringleaders (the House of Rothschild), if they are stupid enough to remain in this country, being arrested and put on trial under Common Law.
2. The European Union and British Sovereignty
On the 10th August 1944, at the Maison Rouge Hotel in Strasbourg, a group of senior Nazi officials and industrialists, realising that the defeat of the Third Reich by the Allies was almost inevitable, came up with the idea of a Fourth Reich based around the long term formation of a new, centrally-controlled, economic European community. This was the blueprint for today’s EU and the same fascist mindset, the NWO, is in the driving-seat as its protagonists seek to create other Superstate Unions including the proposed North American Union involving the USA, Canada and Mexico.
The British people, back in 1975, were given the opportunity of a referendum to decide whether or not they wanted to be a part of the European Economic Community. To the majority of the electorate this was a simple, benign case of furthering British trade and economic activity with Europe. No one voting then, apart from those close to the secretive tentacles of the NWO, could possibly believe that within three decades there would be a full-scale sovereignty grab by the unelected and unaccountable European Commission, supported by treasonous British politicians from all parties, who were happy to betray their country’s sovereignty to this NWO creation – a creation that is emulating the old Soviet Union where the EU Parliament is a toothless talking-shop, whilst the real power lies with this unelected and unaccountable Commission which, in turn, is answerable to the House of Rothschild and the Committee of 300.
Particularly upsetting to the British people is the fact that their trusted Sovereign, Queen Elizabeth II, who swore at her Coronation to uphold British ‘laws and customs’ (Common Law) and the Sovereignty of the British Isles, has broken that solemn and binding Coronation Oath when she gave Royal Assent in 2009 to the unlawful pretended Statute which gave effect to the Lisbon Treaty and which then allowed foreign potentates of the European Union to issue directives and regulations which her officials then impose as if they had the authority of Parliament. From that moment Great Britain unlawfully changed from being a constitutional monarchy with all its safeguards to being a tyranny.
Equally disturbing, the British Parliament has a self-evident duty to protect the British people and their sovereignty from unlawful attack by ensuring that our defences are adequately equipped and funded to see off any envisaged threat from a foreign power or source. As a direct result of the entirely unlawful budget deficit and national debt, the British armed forces are being reduced to unsustainable levels (not helped by fighting an unlawful war in Afghanistan) which will directly compromise Britain's ability to defend itself without calling upon the outside help of other countries’ armed forces. This is a deliberate policy to ensure that Great Britain is forced and compelled to become an integral member of the EU Elite Defence Group (as proposed by France's President Sarkozy), the EU Military Staff, and the EU Military Committee. This is treason at its worst and now the Lisbon Treaty has been ratified, there is now a ‘legal’, but not ‘lawful’, open door to have foreign troops on our streets should the circumstances be considered serious enough by the NWO globalists. The House of Commons should hold their heads in collective shame!
Over the last twenty years there has been a further assault on our national and public life through the imposition of a genetically-modified new breed of senior administrators, to be ready for the day when Britain is no longer a sovereign country but an Orwellian police-state/subdivision of the EU Superstate. Based around the rogue so-called ‘charity’ Common Purpose which dispenses so-called leadership training courses and in turn networks closely
with other charities and 'think-tanks' such as the sinister Fabian Society with its slowly, slowly ‘wolf-in-sheep’s-clothing’ agenda to bring about the NWO dream of totalitarian world socialism, this cancerous entity sucks in and reprocesses unsuspecting people in public service, deliberately targeting those with personal character flaws such as Narcissistic Personality Disorder (NPD)......with all of them eventually becoming the brainwashed victims of advanced neuro-linguistic programming (NLP). These so-called Common Purpose ‘Graduates’ are then set loose to disrupt traditional working patterns and cause mayhem in public service departments throughout the length and breadth of the land.
The evidence for this latest sinister trend is now overwhelming (http://www.cpexposed.com) and thousands of Common Purpose 'Graduates' can be found in influential positions in the police, judiciary, government agencies, local government, the NHS and especially the mainstream media (there are hundreds in the BBC alone, many acting as 'gatekeepers' to prevent the real truth from going out on air). In local government, many genuine and well meaning local Councillors are finding themselves emasculated as Councils up and down the land have been bulldozed into accepting highly-paid Chief Executives (many on salaries more than the Prime Minister) lording over streamlined, fast-tracking 'Cabinets' which can ignore at will the wishes of the local people.
All of this, of course, is by very careful design and the high level traitors within the House of Commons, who deliberately and effectively frustrated democratic attempts to have a Referendum on the Lisbon Treaty, are openly defying the clear will of the British people who do not want to see the creation of a Soviet-style totalitarian EU Superstate. This ‘totalitarian tiptoe’ has to be stopped and the good news is that the people are now waking up to this treason and all is far from lost. Because Britain’s sovereignty has been severely affected by criminal deception and treasonous activities, a simple resort to Common Law through the highest courts in the land can overturn completely everything that has been done since we joined the EEC/EU and can, at the same time, annul our membership of the EU. It really is as simple as that!
3. Climate Change, the Green Agenda and Eugenics
Yes, there is climate change happening.....as there has been for millions of years. But Man-made Global Warming or Anthropogenic Global Warming (AGW) is nothing but a monstrous scam perpetrated by the NWO through its so-called ‘green think-tank’, The Club of Rome. Mainstream politics and the media continue to promote this discredited science despite increasing opposition from tens of thousands of decent and honest scientists who know, in the words of Professor David Bellamy, that it is all “bad science”. Before the Coalition starts voting through yet more Carbon Taxes and green restrictions on industry, this simple question should be asked by all MPs - why does Al Gore, chief protagonist and mouthpiece of AGW and who stands personally to become a billionaire with his carbon trading schemes, refuse point blank to take up Viscount Monkton’s challenge to a live debate on American television to argue the science behind man-made global warming? The answer is really simple….he’s afraid, very afraid!
After the University of East Anglia’s ‘Climategate’ emails and the debacle at Copenhagen, Gore knows only too well that ordinary people will not buy into this rubbish any more, especially as CO2 is a benign gas that actually FOLLOWS temperature increases. The evidence is now completely damning. Take, for instance, the famous ‘hockey stick’ graph used to promote the case for AGW – quite deliberately, the proponents of man-made global warming had left out the Early Medieval Warming Period as this would have made a complete mockery of their ‘scientific’ case that the industrial activities of 20th century man had triggered the greenhouse effect. They also cannot explain the clear scientific evidence
that the other planets in our Solar System are also displaying new temperature fluctuations, but people with common sense think it might just have something to do with that word ‘Solar’.
This whole scam is simply about advancing the NWO agenda to tax people more and to impose ever tighter control over them, not to mention the power it gives the UN and the EU to excessively control and regulate industry. Apart from green fanatics and stooges for the NWO, no right- minded and sensible people believe anything that comes from the Inter-governmental Panel on Climate Change (IPCC), especially as it has now been successfully exposed by Viscount Monkton and others as being a political rather than a scientific body.
This article below reveals very well this growing scientific backlash against the proponents of AGW and how genuine and honest scientists are attempting to regain the moral high ground: http://blogs.telegraph.co.uk/news/jamesdelingpole/100058265/us-physics-professor-global-warming-is-the-greatest-and-most-successful-pseudoscientific-fraud-i-have-seen-in-my-long-life/
Related to all of this, there is also a very sinister undertone now coming from the ‘dark’ green movement which must be tackled head on. There is much about conservation and green human scale politics and economics that can be applauded and indeed carried out. But today, behind the friendly, benign image of ‘the Greens’, there is a much more sinister and darker mask that must be exposed. This is the United Nations’ 1992 plan of action for worldwide ‘sustainable development’ called Agenda 21 – a complete extreme socialist agenda which can only be described as fascism on a truly global scale.
In carrying out this Agenda 21, the collective mindset of the New World Order wants to see the global population reduced considerably by whatever means available. A very small number of extremist, but influential ‘scientists’ and ‘environmentalists’ such as James Lovelock, Pentti Linkola and Austin Pianka, backed up by powerful people like Bill Gates, Ted Turner and David Rockefeller, not to mention the agencies of the UN, are now openly advocating their support for a Malthusian-style cull of the ‘useless eaters’ of the planet, claiming that the world’s population of 6.8 billion is having a tremendously negative effect upon the planet and its ecosystems. They want to see a Planetary Regime (global governance) where, as Lovelock stated in a recent interview in the Guardian, “democracy must be put on hold”. These dangerous and fascist views are being absorbed by impressionable young people who have been brainwashed by the lies and bad science put out by the leaders of the green movement, and their dangerous influence in the classroom must be removed immediately. And one simple fact proves this. If you took 6 billion people and put them four to a house, with each house on a quarter acre of land, you could fit them all in Alaska and still have room to spare. The world’s population is not, repeat not, a problem.
However, in fairness, it must be said that the Greens are absolutely correct when it comes to their opposition to Genetically Modified Crops and Foodstuffs and their encouragement for all things natural and organic. As part of this planned dramatic reduction of the world’s population, the NWO, using the little known and what appears on the surface to be benign Codex Alimentarius or Food Code, is seeking full government and corporate control, especially for the benefit of the pharmaceutical industry, of both our local and global food production at the expense of diversity, safety and natural health remedies. It must be exposed and stopped in its tracks.
Indeed, the whole of the pharmaceutical industry must be urgently reviewed - along with the British Medical Association and leading medical research charities such as Cancer Research UK - as there is now overwhelming evidence to show that the medical profession as a whole is completely bias in favour of profit-led pharmaceutical medicine
at the expense of so-called ‘Alternative Medicine’ which many proponents believe is safer, cheaper and much more effective. It is essential that there is a level playing field on which to test the efficacy of ALL possible medical cures – pharmaceutical or otherwise.
4. The War on Terror
Creating a ‘clash of civilisations’ between the West and Islam has been a long-term goal of the New World Order and its aficionados. To create fear amongst the democratic peoples of the world, especially in America, has also been high on their list as they sought to ‘legitimately’ assemble the controlling and surveillance infrastructure of the quasi-Orwellian police state needed to enforce their vision of the future. Sometimes, when seeking a way to advance their appalling globalist agenda, the NWO will use what is called ‘Problem – Reaction – Solution’. That is, they create a major Problem in the first place, they then make sure the ‘right’ Reaction comes from the people, and then they provide the ‘popular’ Solution which was part of their agenda all along but which the people would not have agreed to had the Problem not been triggered in the first place. When it comes to the ‘Problem’, usually it is something sudden, dramatic and decisive that generates a huge amount of fear and anger in the affected nation.
The favourite mechanism for triggering a ‘Problem’ is a False Flag event whereby something dramatic happens which is immediately blamed on your enemy or rival, but was in fact carried out by covert elements of your own side. History is riddled with such events such as Hitler burning down the Reichstag and blaming it on the Communists; the Israeli attack on the USS Liberty to make it look as if the Egyptians had attacked American forces; and the Gulf of Tonkin incident where the American destroyer Maddox was supposedly attacked twice by three North Vietnamese torpedo boats but which in fact never happened.
In the words of past masters of the New World Order agenda, the Nazis: "The bigger the lie, the more it will be believed" (Joseph Goebbels) and “If you tell a big enough lie and tell it frequently enough, it will be believed” (Adolf Hitler)
The War on Terror, which has claimed the lives of hundreds of thousands of innocent Iraqis and Afghans and which is still claiming the lives of British soldiers in war-torn Afghanistan, was triggered by the dreadful events of the morning of 11th September, 2001. As far as the British political establishment and mass media are concerned, the official account of 9/11 is to be completely believed and anyone contradicting any part of the official narrative must simply be a misguided and deranged conspiracy theorist. This position, however, is now completely untenable. Airline pilots, architects, politicians, retired military officers and even some of the survivors themselves have gone public to state that they can no longer accept the official account as put forward by the Bush administration. And the physical and scientific evidence supports their concerns and doubts.
Take the Twin Towers for instance. Both came down at almost free-fall speed with no resistance being offered at all by the undamaged sections of the buildings. Also, the debris pile was considerably smaller than what would have been expected; many of the massive vertical steel girders holding up the buildings simply disintegrated into nothing as they fell. Burning aviation fuel alone cannot possibly cause this degree of damage – it cannot reach the temperatures required to distress steel to the point of collapse. In fact, no steel-framed building anywhere in the world has ever been completely destroyed because of fire….except Buildings 1, 2 and 7 at the World Trade Center. In other words, the official story of how the WTC towers came down is patently not true.
The same goes for the account of what damaged the Pentagon on 9/11; it is completely inconsistent with what you would expect from a crashing airliner. In fact the debris-field at the impact area is a joke – where are the wheels, the titanium engines and the wings? There are, quite literally, hundreds of problems with the official account of 9/11 which lead to the inevitable conclusion that this was a major False Flag event, artificially generated by the NWO to advance its plan for global domination. A few years back, the BBC documentary series The Power of Nightmares successfully exposed the fact that al Qaeda is no more than a contrived network of terrorists controlled by the Western and Israeli Zionist Rothschild intelligence services. It is also widely believed by nearly all researchers that not only is Osama Bin Laden dead (Benazir Bhutto, shortly before she was assassinated, stated in an interview with Sir David Frost that Bin Laden had actually been murdered) but that he has been dead for quite some years already and was definitely not the mastermind behind the 9/11 attacks.
As this short video shows, the 9/11 Truth Movement is growing globally in stature and in effectiveness. http://www.youtube.com/watch?v=3h-LwOkSbog. Also, there are now many websites representing professional people who want to get to the truth about what really happened: http://www.pilotsfor911truth.org (airline pilots), http://www.ae911truth.org (architects and engineers), http://www.militaryofficersfor911truth.org (military officers), http://mp911truth.org (medical professionals), and http://firefightersfor911truth.org (fire fighters).
British politicians who have consistently refused to look at the evidence presented to them by the UK 9/11 Truth Movement must now be challenged to explain their inexcusable inaction, especially as British troops will remain in harm’s way in Afghanistan as long as the official account of 9/11 is believed. And as long as the War on Terror is allowed to continue, rogue pro-NWO elements amongst the key intelligence agencies and special-forces around the world will continue to covertly carry out further criminal and treasonous False Flag attacks to keep the momentum of the long-term NWO agenda moving forward.
5. Common Law v Parliamentary Statutes – Lawful Rebellion
At this point in time there are still many people unaware of what is really going on in their name, who naively believe they are born free and trust that the rule of law will always protect them throughout their lives. If only this were true! Fortunately, thanks to the recent detailed work of researchers and experts on the British Constitution and Common Law, the real picture involving massive deception, entrapment and enslavement is now emerging. Once this truth becomes widely known, this House of Cards, so cleverly devised and set up over the centuries by those who seek to control the British people unlawfully, will simply collapse, and with it this conspiracy by the neo-Nazi global elite with their dreams of world government on their terms.
Magna Carta, the Great Charter of 1215, stands for freedom….freedom for all. It ensures that the British people enjoy absolute and unassailable Sovereignty within our land and that no one, without exception, is above Common Law. Common Law is the Law of the Land – if you harm somebody, cause loss to somebody, commit a breach of the peace or conduct your affairs with mischief, you will come under Common Law jurisdiction where your peers, through the jury system (Court de Jure) will decide your innocence or guilt. It is about principles, customs, precedents and established practices, not to mention good old-fashioned common sense – very simple and very effective.
However, over the centuries, the ruling political elite of the land (precursors to the out-and-out criminals driving today's New World Order agenda), using deception on a massive scale,
have gradually created this new entity known as Statute Rules by passing Acts of Parliament, effectively overruling the British people’s traditional freedoms and paving the way for the complete loss of our national Sovereignty with the advent of the European Union Superstate.
What are Statutes? A Statute is a ‘legislated rule of society given the force of law by the consent of the governed’ (Black's Law Dictionary, revised 4th edition). Please note where it says ‘by the consent of the governed’ – this means that a Statute cannot impact on the sovereignty of an individual should that individual not give his or her consent to abide by the jurisdiction of that particular rule. However, in fairness, it must be said that Statutes are meant in principle to be instruments for the general betterment of society. They establish the rules and regulations for the benign control of that society. Unfortunately, those with duplicitous agendas have ensured that Statutes have turned into tools of repression by becoming unwieldy, intrusive, oppressive, onerous and fundamentally unfair. Speed cameras, parking tickets, rubbish bins with their lids slightly open at one end of the spectrum, right through to ‘anti-terrorism’ legislation being used by councils and the police to harass innocent people, not to mention the hundreds of ‘laws’ coming in from the European Union Superstate.
Currently, especially after the planned surge of thousands of new Statutes under the previous Blair/Brown administrations (both puppets to the NWO), Parliamentary Statutes or Rules of Society are being voted into existence as a direct result of politicians who have either sold their souls to the Orwellian aims of the New World Order, or who simply accept the instructions of their leaders and party whips without question in order to climb their own ‘greasy poles’ to a ‘successful’ political career. Of course, the finished Statute is given a veneer of respectability and gravitas to make it seem like a proper ‘law’ for the 'benefit of the people', but the bottom line is, it is just a Statute or Rule of Society, whose authority or jurisdiction people can individually decide whether or not they wish to comply with or stand under. Common Law is the ultimate protective shield for the British people and it can trump any Statute it wishes – it is supreme and applies to everyone without exception…….but the rogue politicians and judiciary do not want the British people to know this. They, instead, want to remove the fundamental rights of the British people and place them in commercial servitude to the corporate state, to the European Union…..and ultimately, to the New World Order.
These treasonous politicians and rogue elements within the judiciary are crudely attempting to bludgeon the British people into accepting Corpus Juris, the embryo of a future European Criminal Code. This would mean the British people giving up their ancient rights to Habeas Corpus and to accept without a whimper the European system of Justice where you are ‘guilty’ until proved ‘innocent’ and where you can be imprisoned for weeks, possibly even months without any evidence being produced against you.
This unlawful legal control system that has been set up by the political elite, the judiciary and the Law Society (with their unfathomable 'legalese' which is primarily designed to keep the bulk of the population in complete ignorance of what's happening), along with the corporate and banking sectors, is now starting to be challenged by those who understand the complete supremacy of Common Law over Statute Rules. Recently, we have seen the spectacle of Judges and Magistrates fleeing from their own courts when challenged by ordinary decent lay people as to whether or not they are acting under their solemn oaths of office when judging a case involving a breach of a Statute Rule (speeding offence, non-payment of the unlawful Council Tax etc. etc.). These solemn oaths only refer to upholding the Common Law and not to the rules of Society. People are now rapidly waking up as to how this massive deception and extremely profitable fraud works and it won’t be long before these unlawful de facto courts become paralysed with the people taking back the actual courts in the name of Common Law and real justice.
Under Lawful Rebellion, demands will be made by the people to establish Common Law Courts (Court de Jure), presided over by Common Law Judges with properly sworn in juries and backed up by solicitors and barristers who have turned their backs on the Law Society and its fraudulent dealings. Likewise, again under Lawful Rebellion, good and honest senior police officers will be asked to take back their police stations and Constabularies on behalf of Common Law, whilst all those other senior police officers who are Common Purpose Graduates and who are known to be politically motivated or are members of Secret Societies will be suspended from duty and subjected to fair and open Common Law hearings to investigate their suitability to remain in post.
Another part to this unlawful control system is the corporatisation of every aspect of British life and the massive deception being practiced on every living sovereign being in the British Isles. In Great Britain, when a baby is born, the parents are ordered by the State to have the birth registered – failure to do so results in a fine (Statute Rule). What the parents don’t realise is that by registering their baby, they are in effect surrendering their ‘ownership’ of the baby to the Corporate State and their child has now become a ‘corporation’ within ‘UK plc’. (The same applies to registering a car with the DVLA – the owner is no longer ‘the owner’ but is now merely ‘the keeper’). At the time of registering a baby, a ‘legal fiction’ is then created with the same name and this legal fiction will be used for all correspondence and transactions concerning banking, legal matters, taxation and Statute rules. A ‘person’ has thus been created but it is not a living, breathing human being with a soul, but is simply a legal fiction used to conduct business in this imaginary and controlling corporate world – a corporate world set up by the criminal elite where the government, political parties, the police, local government and every aspect to organized life are registered and recognised as corporate businesses to be run by Statute Rules and not by Common Law.
6. The Abuse of Children – Establishment Paedophilia
The evidence which proves that treason has taken, and is taking place at the highest levels by politicians from all parties, is overwhelming. However, one aspect of this conspiracy to destroy the sovereignty and the very fabric of the British nation is just so appalling and so disgusting that it has shocked to the core everyone who has come into contact with the evidence. Acts of treason by people holding positions of authority and trust is one thing, the abuse and rape of little children is quite another. Researchers at first couldn’t quite believe what they were uncovering, but now there is absolutely no doubt that a very small number of senior politicians, members of the judiciary, and people holding positions of trust and authority in the police, the social services, the media and the legal and medical professions are either actually involved with paedophile rings harming and abusing young children, or they are actively engaged in cover-ups to prevent this dreadful truth from ever getting out there into the public arena.
Every elected member in the House of Commons, the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly as well as the Judiciary and the Constabularies of England, Wales, Scotland and Northern Ireland are hereby served Notice that the decent law-abiding people of Great Britain and Northern Ireland will not rest until all the perpetrators and protectors of these disgusting crimes are brought to justice under Common Law.
It is clear from information coming in from other countries, such as Belgium, that some of the most senior proponents and advocates of the so-called New World Order are directly involved in this sexual abuse of children. Researchers have discovered compelling evidence that in some cases this actually involves children being used in Satanic, dark energy rituals where they sometimes pay the ultimate price. It is certainly true that the police all over the world
know of tens of thousands of children going missing never to be heard of again. This is all just so appalling that it is hard to come to terms with what is being discovered.
To illustrate just how truly appalling things are, in Great Britain, or in Scotland to be more precise, a high profile case of a well connected paedophile ring based in Aberdeen, who sexually abused a girl with Down’s Syndrome, has caused a furore on the internet whilst the mainstream media and rogue elements within the Scottish government, judiciary and police have entered into a criminal pact to suppress the truth from ever coming out. Go to www.holliedemandsjustice.org to get the full story. This is just one case that illustrates how children are being harmed and how the mainstream news media look the other way with their Common Purpose ‘gatekeepers’ or editors making sure the truth never gets out. Give the people ‘X Factor’, Wayne Rooney and Lady Gaga, but never give them the truth!
Another very disturbing aspect to this child abuse are the actions of some rogue social workers who, using the unacceptable secrecy of the Family Courts where corrupted or seriously misguided members of the judiciary commit dreadful acts of injustice, have orchestrated forced adoptions and overseen happy children being taken away from loving parents. In a small number of these quite appalling cases it is clear that these actions by rogue social workers are part of a cover up to protect the guilty parties involved with this establishment paedophilia. In most cases, however, it is all about the meeting of Government targets and the generating of large sums of money for a small number of people at the expense of children’s happiness and parental love and security.
Well known and high profile journalist and author, Christopher Booker - a sceptic of Man-made Global Warming and the European Union and who has repeatedly written about forced adoptions and the secrecy of the Family Courts - writing in The Sunday Telegraph on 31st October 2010, has exposed facts which the establishment abusers of children would rather remain hidden. Entitled Child protection: MPs must act on the scandal of seized children - Britain's child protection system is off the rails, and only the politicians who built it can fix it, Christopher Booker writes:
“Britain's social workers took a beating again last week. On the orders of the children's minister, Tim Loughton, full versions of two harrowing case reviews of the Baby P tragedy were published. They found fault not only with Haringey's social workers but with lawyers, the police and health professionals, Under pressure from social workers, reviews of two similar cases in Yorkshire are still being kept under wraps. Meanwhile, an Ofsted report found that 119 children died or suffered serious injury last year through social workers' failure to intervene.
Still largely hidden from view, however, is that other scandal, in its way just as disturbing, in which the failure of our child protection system is the very opposite: the seizure of thousands of children a year from loving homes, for no good reason.
In recent months, as I have followed dozens of these cases and been briefed on many more by such experts as John Hemming, the MP who runs the Justice for Families campaign, and Ian Josephs, the former councillor who has helped hundreds of families through his Forced Adoption website, a startlingly consistent picture has emerged. What follows is not based on exceptional cases but on the typical workings of a system which has gone horrifyingly off the rails.
For parents who fall foul of this system, often on no more evidence than malicious hearsay, the first shock is to find themselves treated like dangerous criminals. To seize children, social workers seem able to enlist the unquestioning support of the police, who arrive mob-handed,
six or eight at a time, beating down doors, tearing babies from their mothers' arms, holding parents in custody for up to 36 hours while their children are removed into foster care.
The parents must then wrestle with a Kafka-esque system rigged against them in every way. They find themselves in courts where every normal principle of British justice has been stood on its head. Social workers may give written evidence to a judge which the parents aren't allowed to see. The most outrageous hearsay evidence may be accepted by the court without the parents even being allowed to cross-examine on it.
A key part is played by evidence from supposed "experts", psychiatrists or paediatricians who may be paid up to £35,000 for their reports, and who receive regular work from the social workers involved. Parents are forbidden to call their own independent experts to challenge a case made against them. They are, all too often, pressured into being represented by lawyers who, again, work regularly for the council, who fail to put their case and who turn out to be just part of the same system.
Parents may be forbidden to testify on their own behalf, but must listen for hours, even days, to everyone else involved – including their own lawyers – putting what amounts to a case for the prosecution. The guardian appointed to represent the interests of the child may never have met the child and merely endorses whatever the social workers say.
Not surprisingly, these bizarre practices are so geared to the interests of a corrupted system that, in the latest year for which we have figures (2008), of 7,340 applications for care orders made by social workers, only 20 were refused.
Meanwhile, the children themselves are handed over to foster homes, which receive £400 a week or £20,000 a year for each child, and where many are intensely unhappy and not infrequently abused. Foster carers and social workers routinely conspire to tell bewildered children that their parents neither love them nor want them back. Children and parents meet at rigorously supervised "contact sessions", where any expression of affection or attempt to discuss why the children have been taken from home may be punished by termination of the session or denial of further contact.
The purpose of all this, funded by hundreds of millions of pounds of public money, is partly to keep in being the vast fostering industry, run by dozens of agencies, often owned by ex-social workers, which also receive £20,000 a year for each child they place. Of course, there are many good and responsible foster parents, but statistics show that children in care do very much worse on almost every count, from health to performance in school, than children living with their birth parents.
Another purpose of the system is to ensure that as many children as possible are adopted (at a cost of £36,000 per placement), in accordance with Tony Blair's personal commitment a decade ago that the target for adoptions in Britain should rise by 40 per cent. Councils are still receiving millions of pounds a year for meeting adoption targets.
Yet virtually none of this reaches the outside world because the system is hidden behind an almost impenetrable veil of secrecy. The nominal reason for this is to protect the identity and interests of the children, but secrecy has been so extended that its real aim is to protect the system itself and all those who do so well out of it.
Parents are forbidden to talk to the media or even to their MPs about the injustice they are suffering. Several times in recent months, councils have sought injunctions to prohibit me reporting anything at all about a case, even though no person or even the council itself would
be identified. More than once, parents have been threatened with contempt of court and prison if they talk to me or anyone else about how they are being treated.
Very occasionally a judge or senior lawyer breaks ranks by speaking out against such abuse of state power, as when one Court of Appeal judge recently compared the conduct of a council's social workers to what went on in "Stalin's Russia or Mao's China". But in general this cruel, dishonest and venal system continues on its way, hidden from view, accountable to nobody but itself.
The only people in a position to reform this system fundamentally are those who set it up in the first place under the 1989 Children Act – the politicians. But they have, with one or two shining exceptions – notably John Hemming – walked away from the Frankenstein's monster that Parliament created. It is now up to them to support Mr Hemming and all those horribly maltreated families who are campaigning for one of the most outrageous scandals in Britain today to be brought to an end”.
Final Conclusion: A Tsunami is rolling in on British politics!
“There is one thing stronger than all the armies in the world, and that is an idea whose time has come.” Victor Hugo
Everyday, more and more people are waking up and experiencing that sudden realisation and idea that they are being unlawfully controlled and herded by a tiny international network of powerful and evil psychopaths and by the political, economic and legal systems they have created. An open and honest mind, without vested interests and greed, can see what is happening and it certainly doesn’t require a genius to see how all the dots are connected.
As a result, British politics is about to be hit by the biggest rebellion since the signing of Magna Carta in 1215. The genie is now well and truly out of the bottle - the hard Truth is there for all good and decent people to see. Truth - that will stand up in Common Law Courts and expose the criminals and traitors! Truth – that will sweep away fear and restore real happiness to all families! Truth - that will release the British nation and its people from all of their unlawful debts and sweep away the criminal banking and financial system created by the Rothschilds! Truth - that will restore Britain’s Sovereignty! Truth – that will stop the War on Terror and will get the troops home from Afghanistan! Truth – that will bring an end to the lies about so-called Man-made Global Warming and to the politics of Eugenics! Truth – that will trigger an abrupt end to the criminal aspirations of the New World Order and which will release all the peoples of the world from the clutches of debt, poverty and injustice! Truth – that will see the release of suppressed science, technologies and medical cures (Tesla and Free Energy, Rife and Cancer Cures to name but two)! And Truth – that will stop the sexual abuse and murder of little children by organised establishment-led paedophilia!
With a ‘manifesto’ like that coming towards them like a tsunami, the British politicians now have a very simple choice. On the one side you have the practicing of politics that leads to debt, enslavement, murder, paedophilia and the ultimate pursuit of unlawful global governance........on the other side you have the exposure of truth that will give the British people real freedom, security and happiness – it's really that simple! The political parties are all completely irrelevant – they have all been compromised and are all ultimately controlled by the same secretive power base and mindset that makes up the New World Order.
What is coming to replace conventional politics is a Movement – a Movement not based around leaders, hierarchies, power bases and vested interests. But a Movement that will be forged by Common Law, wisdom, decency, humility and truth; a Movement that harnesses happiness, love and real freedom. Once the process of dismantling the systems of control, fear and suppressed truths is completed (with the precedence of Common Law in situ to protect the people from any possible resulting violent unrest and criminality), the British people will then come together in a new spirit of openness and freedom never seen before to explore how they wish to live their lives in the future.
This IS the future and it’s coming fast. There is absolutely no grey area for politicians to prevaricate and hide in - no fence or wall to sit on. The choice is simply this. Side with the British people, who number in their tens of millions, and become active in exposing and defeating the New World Order with its matrix of fear and control.......or face the wrath of the British people as they successfully apply age-old and supreme Common Law against those who have betrayed them and whose ringleaders number no more than a few hundred at most. The politicians of all parties have been warned – it’s now their call! Will they do the decent thing…...or will they experience trials by Common Law and suffer the consequences! The choice is theirs and they only have a very short time in which to make their decisions.
Research and campaigning websites for more information:
www.ukcolumn.org www.thebcgroup.org.uk www.davidicke.com www.fmotl.com
www.holliedemandsjustice.org www.wholetruthcoalition.org www.tpuc.org
www.lawfulrebellion.org www.checktheevidence.co.uk
Tuesday, March 8, 2011
THE COMMON LAW COURTS OF AUSTRALIA
PROCLAMATION:
With the UNDERSTANDING that the COMMONWEALTH of AUSTRALIA is a COMMON LAW JURISDICTION, the PEOPLE claim the inalienable RIGHT to TRIAL BY JURY so that “No free man shall be taken indeed imprisoned, either dispossessed, or outlawed, or exiled, or in any manner destroyed, nor pass over him, nor send over him, except by means of the legal judgment of his own equals indeed the law of the land.” and “To no one will we sell, to no one will we deny or delay right or justice.” (Magna Carta 1215).
..... is the introduction to the leaflet prepared and being printed for the meeting at the Parramatta Leagues Club on Friday the 15th of April, 2011, to launch COMMON LAW COURTS in Australia. Attached to this email is the artwork for the double-sided printing of an A4 page which, when folded, becomes a 4 page leaflet. Word of this occasion must be broadcast across the nation to every Free Man ...... and I ask that the leaflet be printed off and multiple copies made to be spread far and wide.
No longer in Australia are the words, "For we are young and free" of "Advance Australia Fair", true. In fact, Truth, Justice, Freedom and Democracy have been extinguished by the Banks and the Judges because our "laws and liberties" have "subverted and extirpated" (Bill of Rights 1689). Our Courts are no longer our Courts ..... and Common Law has been replaced with Admiralty Law .... and "In the place of justice, wickedness is there" (Ecclesiastes 3: 16).
The creation of COMMON LAW COURTS is essential, if we are to restore and then preserve the principles of Right and Justice.
I will be giving updates on the meeting at the Parramatta Leagues Club, as the time draws closer.
UPDATED: PROTESTORS STORM COURT AND 'ARREST' JUDGE IN CHAOTIC SCENES
By Stephanie Cureton
HUNDREDS of anti-establishment protestors stormed a Wirral court today and "arrested" a judge.
In chaotic scenes, police rescued Judge Michael Peake from their clutches and escorted him safely from the building.
Protestors from the public gallery charged at Mr Peake to make a civil arrest chanting “arrest that judge”.
Police scrambled over court benches to control the near-riot and one protestor shouted “seal the court.”
Another sat in the judge’s chair at the head of the court and declared Mr Hayes as “released”.
Around 600 chanting demonstrators massed around the County Court in Birkenhead.
Deafening cheers and chants could be heard from the crowd outside and protestors used mobile phones to film arrests being made.
Roads were blockaded and dozens of police officers deployed to keep order.
A stand-off followed with several demonstrators staging a sit-down protest in front of police vehicles, refusing to let them pass.
Six arrests were made - two for assaulting officers.
The protestors were from the anti-establishment "British Constitution Group."
The demonstration was sparked when one of the prominent voices in the BCG, Wirral man Roger Hayes, faced a hearing for non-payment of council tax.
In 1997, Mr Hayes, a former member of UKIP, stood for election in Wallasey representing the Referendum Party against sitting Labour MP Angela Eagle. He polled 1,490 votes and finished fourth.
As he emerged from the court surrounded by his supporters, Mr Hayes said: "The judges are breaking the law in their own courts.
"I asked him (Mr Peake) if he was serving under his oath of office.
"I asked three times for him to confirm this and he refused.
"So I civilly arrested the judge and I called upon some people in the court to assist me in this.
"They were acting lawfully and the police should not have arrested them."
The hearing was abandoned and will need to be re-arranged at a date to be fixed.
Raymond Saintclair, who organised the Birkenhead protest, said: "Today was day-one.
"This is going to happen again and again and again.
"We have sent a message to this court as one nation and one voice until change comes."
The BCG's main aim is a rallying call for "lawful rebellion."
Leaflets handed out by the crowd said: "We, the British People have a right to govern ourselves.
"That right has been subjugated as a consequence of acts of treason having been committed by the collective political establishment, aided and abetted by corrupt segments of the judiciary, the police, the Church and the civil service."
A Merseyside Police spokesman said six men, whose ages range from 20 to 41, were arrested - two for assaulting officers and four for breach of peace and obstructing police.
They have been taken to police stations around Wirral where they will be questioned.
A statement from the force said: "Officers are committed to facilitating peaceful protests but will not tolerate criminal behaviour, disorder or anti-social behaviour during any demonstrations within Merseyside."
Wirral Council leader, Cllr Jeff Green, said: "Have these people given any thought to what happens to the likes of Sure Start, public libraries or other services that people depend on? Not many people like paying tax but we accept the need for tax.
"I am disappointed that this case has been adjourned, but in the light of the events that took place, understand the court’s decision.
"However, before anyone else gets any ideas about not paying their Council Tax, let me assure everyone that Wirral Council is stepping up its activity to ensure that everyone pays their fair share. Nobody is above the law."
© Copyright 2001-2011 Newsquest Media Group
http://www.wirralglobe.co.uk
AUSTRALIA ACTS (REQUEST) BILL 1999 N.S.W
* Assented on 09/06/1999 - Act No 11 of 1999 (No. 70, 18/06/99).
Long Title
An Act to request the amendment of the Australia Acts in connection with proposed constitutional arrangements to establish the Commonwealth of Australia as a republic.
Explanatory Notes
b99-027-p02.pdf
Australia Acts (Request) Bill 1999
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
If the proposed Commonwealth Bill called the Constitution Alteration (Establishment of Republic) 1999 is passed by the Commonwealth Parliament and approved by the Australian people at a referendum in accordance with section 128 of the Commonwealth Constitution, each State will need to give consideration as to whether it should sever its links with the Crown.
A number of constitutional commentators think that section 7 of the Australia Act 1986 of the Commonwealth and of the Australia Act 1986 of the Parliament of the United Kingdom poses an impediment to a State adopting republican constitutional arrangements. Section 7 deals with the powers and functions of the Queen and the Governor in respect of a State. It is therefore desirable that section 7 be amended to ensure it will not preclude a State from severing its links with the Crown.
Under section 15 (1) of the Australia Acts, those Acts may be amended by the Commonwealth Parliament at the request or with the concurrence of each State Parliament, and, subject to section 15 (3) of the Australia Acts, only in that manner.
The object of this Bill is to request the Commonwealth Parliament under section 15 (1) of the Australia Acts to enact an Act to amend section 7 of those Acts so that section 7 will not prevent a State from severing its links with the Crown. The terms of the Act requested to be enacted are set out in the Schedule to this Bill.
Similar requesting legislation has been or is anticipated to be introduced in the Parliament of each other State.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act and its purpose.
Clause 2 provides for the commencement of the proposed Act on the day after the day on which the proposed Constitution Alteration (Establishment of Republic) 1999 of the Commonwealth receives the Royal Assent. This will ensure that, if the Republic Bill is defeated at the referendum, the proposed Act will have no operation and no power will be conferred on the Commonwealth Parliament.
Clause 3 provides that the Parliament of the State requests the enactment by the Parliament of the Commonwealth of an Act in, or substantially in, the terms set out in the Schedule.
Schedule—Australia Acts Amendment Act 1999 of the Commonwealth
The proposed Commonwealth Bill is set out in this Schedule. It contains the following provisions:
Clause 1 of the proposed Commonwealth Bill sets out the citation of the proposed Commonwealth Act.
Clause 2 of the proposed Commonwealth Bill provides for the commencement of the proposed Commonwealth Act on a day to be fixed by Proclamation. That day cannot be before the proposed Constitution Alteration (Establishment of Republic) 1999 of the Commonwealth receives the Royal Assent. Consequently, if the Republic Bill is defeated at the referendum, the proposed Commonwealth Act would never commence.
Clause 3 of the proposed Commonwealth Bill is a formal provision giving effect to the Schedules to the proposed Commonwealth Act.
Schedule 1 to the proposed Commonwealth Bill sets out the amendment to section 7 of the Australia Act 1986 of the Commonwealth. Two new subsections are added at the end of the existing section 7. Section 7 (6) empowers a State Parliament to make a law providing that the preceding subsections do not apply to the State. Section 7 (7) provides that, when such a law comes into effect, section 7 ceases to apply to the State.
Schedule 2 to the proposed Commonwealth Bill sets out an identical amendment to section 7 of the Australia Act 1986 of the Parliament of the United Kingdom.
Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.
SENTENCING COMMONWEALTH OFFENDERS
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).