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Part IB: Sentencing of Federal Offenders

Part IB: Sentencing of Federal Offenders

1. Overview

In Wong v The Queen [2001] HCA 64 , [71] Gaudron, Gummow and Hayne JJ emphasised that judges sentencing federal offenders must give effect to the legislative command of Pt IB of the Crimes Act 1914 (Cth). See also R v Walters [2001] NSWSC 640, where Sully J remarked that a federal offender is:

to be sentenced in conformity with the detailed sentencing scheme for which provision is made in Pt 1B [now Pt IB] of the Crimes Act 1914 (Cth).

However, Pt IB is not a comprehensive scheme listing all the principles that may govern the sentencing of a convicted federal offender. Some sections in Pt IB expressly pick up and apply the sentencing law of the State or Territory in which the federal offender is sentenced. For example s 16E of the Crimes Act 1914 (Cth) states:

Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies toa person who is sentenced in that State or Territory fora federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence. [See further Commencement of Federal Sentences]

Part IB of the Crimes Act 1914 (Cth) is not a code: DPP (Cth) v El Karhani (1990) 21 NSWLR 370 cited in Putland v R [2004] HCA 8, [12]. It does not oust the common law and is not a comprehensive statement of all principles relevant to the sentencing of federal offenders.

2. Definition of a ‘federal offender’

A ‘federal offender‘ is defined by s 16(1) of the Crimes Act 1914 (Cth) as someone who has been convicted of a ‘federal offence’.

Section 16(1)

“federal offence” means an offence against the law of the Commonwealth “federal offender” means a person convicted of a federal offence. “federal sentence” means a sentence imposed for a federal offence.

3. Div 2: General Sentencing Principles

This section was last reviewed on 21 August 2014

Division 2 of Part IB of the Crimes Act 1914 (Cth) is titled ‘General Sentencing Principles’. There are seven sections contained within this Division. Sections 16A, 16B, 16C and 16D are mandatory sentencing principles that a court sentencing a federal offender must consider when passing sentence. Section 16AA relates to matters that cannot be taken into account by a court sentencing for Northern Territory offences. Section 16AB relates to Victim Impact Statements. Section 16BA sets out the procedural scheme for taking other federal offences into account.

3.1 Section 16A

Section 16A sets out matters a court is required to have regard when passing sentence.

  • Section 16A(1)  provides that ‘…a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’. See further: Sentencing Factors.
  • Section 16A(2)  provides a non-exhaustive list of sentencing factors a court must take into account in sentencing. The section does not specify which of these factors are aggravating or mitigating factors. To the extent that the listed matters are ‘relevant and known’ to the court, it is mandatory for the court to take these factors into account in sentencing. See further: Sentencing Factors.
  • Section 16A(2A) prohibits a court from taking customary law or cultural practice into account to either mitigate or aggravate the seriousness of criminal behaviour under a federal offence. See further Indigenous Offenders and Cultural Background.
  • Section 16A(2AA) provides that s 16A(2A) does not apply in relation to certain offences. See further: Cultural Background.
  • Section 16A(2B) provides a definition of ‘criminal behaviour’ for the purposes of s 16A(2A).
  • Section 16A(3) provides that a court, in determining whether a non-custodial sentence or order is appropriate, 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. See further Sentencing Factors.
  • Section 16A(4) sets out who is taken to be a member of a person’s family for the purposes of Part IB. See further: Victim Impact Statements.

3.2 Section 16B

Section 16B is the legislative recognition of the Totality Principle. The section requires a court to have regard to any sentence already imposed or liable to be served by the federal offender. See further: Totality Principle.

3.3 Section 16C

Section 16C requires a court to take into account the financial circumstances of a federal offender before imposing a fine. See further: Fines.

3.4 Section 16D

Section 16D(1) prohibits a court from imposing any form of corporal punishment for a federal offence and more broadly, in sub-s (2), the Act provides that ‘a person serving a federal sentence must not be subjected to any form of corporal punishment’.

3.5 Section 16AA

Section 16AA prohibits a court from taking customary law or cultural practice into account to either mitigate or aggravate the seriousness of criminal behaviour when sentencing for an offence against a law of the Northern Territory. See further: Cultural Background.

3.6 Section 16AB

Section 16AB sets out certain matters relating to Victim Impact Statements which have been made known to the court as described in s 16A(2)(ea). See further: Victim Impact Statements.

3.7 Section 16BA

Section 16BA permits a court, in passing sentence on a person convicted of a federal offence, to take other offences into account and sets out the federal scheme that governs this process. See further: Taking into Account Other Offences.

3.8 Additional general sentencing principles

The rule against double punishment and the one transaction principle are two common law general sentencing principles. See further: Double Punishment and One Transaction Rule.

Unlike the totality principle in s 16B, these two principles are not expressly set out in Division 2 of Part IB. However the rule against double punishment and the one transaction principle are important sentencing principles that apply to the sentencing of federal offenders.

4. Trends in federal sentencing

The number of federal offenders in custody has not increased dramatically over the last 17 years. On 1 July 1989 federal offenders accounted for 517 of the 12, 429 persons in prison.1 On 1 May 2006 the number had increased to 672 federal offenders in custody.2

In 1989, The Minister for Justice Senator Tate noted that federal offenders tended to be importers of drugs or person who had committed fraud against the Commonwealth, in particular tax and social security fraud.3 The range of offences against the Commonwealth has expanded in recent years. As at 2006, offences against the Commonwealth include terrorism, people trafficking, sexual servitude and slavery, cybercrime, breaches of aviation safety and exploitation of fisheries resources. While fraud on the Commonwealth and the importation of drugs remain two of the most commonly prosecuted offences by the Commonwealth DPP, other offences include ‘money laundering, offences against corporate law, people smuggling, sexual servitude, and terrorism.’4 Despite the low numbers of federal offenders in custody, 98% of the cases prosecuted by the Commonwealth DPP in both 2004 and 2005 resulted in a conviction.5  A high proportion of these were a result of a guilty plea by the federal offenders:

Guilty pleas of those convicted of summary offences95%
Guilty pleas of those convicted of indictable offences78%
(Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [1.56])
  1. Commonwealth, Parliamentary Debates, Senate, 19 December 1989, 4791 (M.C. Tate, Minister for Justice)[]
  2. Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [1.62][]
  3. Commonwealth, Parliamentary Debates, Senate, 19 December 1989, 4791 (M.C. Tate, Minister for Justice).[]
  4. Commonwealth Director of Public Prosecutions, Annual Report 2004-2005 (2005) 1.[]
  5.  Commonwealth Director of Public Prosecutions, Annual Report 2004-2005 (2005) 27.[]
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