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Taking Into Account Other Offences

Recent cases alert
Cluett v The Queen [2019] WASCA 111 — offender’s autism spectrum disorder was a contributing factor to offending, reduces both offender’s moral culpability and significance of general deterrence as sentencing consideration
R v Lelikan (No 5) [2019] NSWSC 494 — offender’s moral culpability will be significantly reduced where informal membership of terrorist organisation innately connected to personal trauma and intergenerational persecution.
*Guidance from these cases has not yet been incorporated into the commentary

Recent legislative amendments
The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) inserts a new s 16A(2)(ma) which provides that if a person’s standing in the community was used to aid in the commission of offence, the court is to take into account that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.
*Guidance from this amendment has not yet been incorporated into the commentary

1. Overview

Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their antecedents:

Section 16A

(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:

(m) the character, antecedents, age, means and physical or mental condition of the person

2. Meaning of Antecedents

‘Antecedents’ has been interpreted broadly by sentencing courts.1

Commissioner of Taxation v Baffsky [2001] NSWCCA 332 concerned an application
to discharge without conviction under s 19B of the Crimes Act 1914 (Cth). In relation to the term ‘antecedents’ in s 19B(1)(b), Spigelman CJ at [27] (Simpson J and Einfeld AJ agreeing) endorsed the following statement from Jones v Morley (1981) 29 SASR 57:

The word ‘antecedents’ is ‘as wide as can be conceived’; R v Vallett [[1951] 1 All ER 231], per Lord Goddard CJ at p232. It’s certainly wide enough to include all aspects, favourable and unfavourable, of an offender’s background, past life, personal, family, social, employment and vocational circumstances, and of his current way of life and its inter-action with the lives and welfare of others.2

For further discussion of s 19B, see Options Without Proceeding to Conviction.

Courts have considered an offender’s antecedents to include prior criminal convictions.3

Past civil proceedings brought by ASIC against an offender were considered relevant to assessing that offender’s character and antecedents: R v Hall (No 2) [2005] NSWSC 890, [101] (Kirby J).

The Australian Law Reform Commission in the Same Crime, Same Time: Sentencing of Federal Offenders Report (2006) stated that ‘antecedents’ is a broad term encompassing relevant facts and circumstances of the offender’s history and background as well as the offender’s antecedent criminal history.4

In Veen v The Queen (No 2) [1988] HCA 14, the majority commented at [14]:

The antecedent criminal history is relevant, however, to show whether the offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. … It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind (emphasis added).5

2.1 Distinguishing ‘character’ from ‘antecedents’

 In Weininger v The Queen [2003] HCA 14 Kirby J, in dissent, distinguished ‘character’ from ‘antecedents’ in reference to s 16A(2)(m). Kirby J observed at [58]–[59]:

The terms of par (m) also make it clear that “character” and “antecedents” are viewed by the Parliament, as by the common law, as separate considerations. Each of them is relevant to sentencing. “Antecedents” refers to any past criminal conviction, agreed or proved. Of course, past criminal convictions may also be relevant to a court’s assessment of the “character” of the person being sentenced. However, for a very long time, the absence (or existence) of prior convictions and the fact that a person is a first offender have been regarded as separate and special considerations in sentencing. The absence of prior convictions (quite apart from issues of character) will usually attract more lenient punishment. In part, it recognises the fact that a first offender’s lapse may be treated as exceptional, atypical and out of character. In part, it also reflects the experience of the criminal justice system that many of those who come before courts for sentencing are repeat offenders who, for that reason, must be treated more seriously because they have been repeatedly shown to be in breach of the law and have repeatedly obliged the mobilisation of the agencies established by society to defend it from crime.

A first offender may, or may not, otherwise have a good character. He or she may simply have been lucky in not having been apprehended before. But this fact does not justify disregard for the separate consideration of a first offender’s status as such, apart from any consideration of the character of that offender. The express differentiation between the two concepts in s 16A(2)(m) makes this point abundantly plain (emphasis added).

If a sentencing judge considers an offender’s antecedent criminal history of little relevance, those prior offences should not then be relied on to establish bad character.6

In Pfeiffer v The Queen [2009] NSWCCA 145, McClellan CJ at CL (Simpson and Buddin JJ agreeing), considered the sentencing judge to have erred in characterising the offender to be of bad character for reason of several minor offences that were otherwise ‘given little if no weight.’ McClellan CJ at CL noted at [18]:

The applicant submitted, in my opinion correctly, that if his Honour concluded that the prior offences were stale and of no consequence then the appropriate conclusion was that the applicant was otherwise a person of good character.

Similarly in R v Alqudsi [2016] NSWSC 1227, where the offender committed offences contrary to the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), the absence of criminal history tendered by the Crown entitled the offender to be treated as having good character. Adamson J held at [109]:

In 2006 he worked as a security instructor for two organisations. The offender gave evidence that he was charged with corruption, as a result of which he was given a suspended sentence, and dismissed from his employment. This does not appear on the criminal history tendered by the Crown and I do not take it into account. The offender’s criminal history (which includes convictions for driving offences and making/furnishing a false statement) is not significant. But for the offending conduct for which he is to be sentenced, he is entitled to be treated as otherwise of good character (emphasis added).7

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3. Operation of s 16A(2)(m)

Section 16A(2)(m) states that evidence of antecedents that is relevant and known to the court must be taken into account.

The rules of evidence do not govern the receipt of information concerning antecedents at sentencing. In Weininger v The Queen  [2003] HCA 14 a majority of the High Court noted at [21] that:

[T]he 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.8

The nature of a particular offence committed is a consideration in determining the weight attributed to antecedents. In state sentencing case Munda v Western Australia [2013] HCA 38, the offender was charged with manslaughter of his de facto spouse. The Court recognised that the offender was exposed to alcohol fuelled violence from a young age and had a long history of alcohol and cannabis abuse. The majority accepted these personal circumstances and the offender’s antecedents must be given proper regard.

3.1 Timing of charged prior convictions

Leniency for a first time offender will not be granted where the sentencing judge erroneously found no prior convictions. In DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42, was an appeal against sentence where the offender had committed tax offences. The plurality noted at [133] that when considering s 16A(2)(m), the sentencing judge:

[L]imited her consideration to “prior convictions” during the time of the offending and disregarded the tax offences because he was not convicted until sentencing, at a time well after the jury had returned their verdicts and after the proceeds of crime offence had been completed.

The plurality noted this gave an unduly restrictive reading to s 16A(2)(m): [133]. The court held at [71]:

[A]lthough the judge relied upon the lack of a prior criminal record as entitling the respondent to “the leniency associated with a first-time offender,” leniency does not apply to all of the offences committed by a serial offender merely because, when the last offence was committed, he had not been convicted for any earlier offence. Quite apart from the convictions for failing to lodge tax returns, the fact that the convictions involved repeated offences of dishonesty over seven years disentitled the respondent to any leniency in respect of the later offences. The earlier offences were proved beyond reasonable doubt by the jury verdicts (footnotes omitted; emphasis added).

3.2 Systematic deprivation and alcohol abuse

Systemic deprivation and alcohol abuse is a relevant factor when considering an offender’s character and antecedents. In state sentencing case Bugmy v The Queen [2013] HCA 37, the High Court held at [43]:

Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.9

The Court also remarked at [44]:

An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.10

3.3 Home detention bail

Nicholson J (Parker and Lovell JJ agreeing) held in R v Hudson [2016] SASCFC 60 that while the factors under s 16A(2) do not expressly mention home detention bail already served by the offender, the concept of antecedents is broad enough to take this into account. The plurality stated at [16]–[17]:

Section 16A(2) of the Crimes Act 1914 (Cth) is to the effect that, when determining sentence for a federal offence, “the court must take into account such of the following matters as are relevant and known to the court”. Thereafter, in subparagraphs (a) to (p), various matters are listed. The specified matters represent an array of considerations similar to those set out in section 10 of the Criminal Law (Sentencing) Act 1988. Like section 10, there is no express mention of time spent on home detention bail. However, section 16A(2)(m) does identify as a matter the court must take into account:

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

The consideration in (m) embraces an offender’s personal circumstances. In particular, the notion of “antecedents” is broad enough to pick up any period spent on home detention bail.

Furthermore, there is no express prohibition in theCrimes Act 1914 to the taking of time spent on home detention bail into account, just as there is no express prohibition in the Criminal Law (Sentencing) Act 1988. The opening words of section 16A(2) are important in this respect: “In addition to any other matters, the court must take into account…”. These opening words leave room for the operation of common law rules relating to sentencing that are not inconsistent with other provisions of the Crimes Act 1914. In addition, section 16A(2A) lists specific matters that are not to be taken into account further reinforcing the conclusion that section 16A(2) is not exhaustive of the matters that may be taken into account (emphasis added).

3.4 Child exploitation offences

In the child exploitation case of R v Howe [2017] QCA 7, Douglas J (Fraser JA and Philippides JA agreeing) noted that the following wide range of factors were antecedents of the offender. At [5]–[7]:

The applicant’s antecedents:

The applicant was born on 10 September 1986 and was 23 to 24 years at the time of count 1, 27 years old at the time of counts 2 to 5, 28 years old at the time of count 6 and 29 at the time of sentence. He had a minor and irrelevant criminal history. He lived with his mother and grandmother, acting as their carer and had little previous employment.

In October 2010 he shut down a child pornography site, feeling tormented and guilty, thus indicating a wish to stop further offending at that stage. He told a clinical psychologist that he became obsessed with a child pornography internet site for the social involvement it provided him and had to maintain his downloading of child pornography material to maintain those social contacts. He had struggled with his sexuality in his teenage years and was abused in an earlier relationship with a man.

He has sought treatment since being charged and had undertaken 17 treatment sessions with a psychologist since September 2014. The opinion of that psychologist was also that he participated in the child pornography forums more for the social interactions they provided and less so for the need to seek out child pornography material actively himself. That psychologist also expressed the view that he presented with a serious and very high risk of self-harm which would be particularly heightened if he were to be imprisoned.

3.5 Drug offences

Where an offender is convicted of a drug importation offence, the offender’s past drug use may be a relevant antecedent. In application of Veen (No 2), Refshauge JA and Gilmour J held in R v Harrington [2016] ACTCA 10 at [117]–[119]:

The respondent’s personal cocaine use, taken together with the offence of trafficking in cocaine, as the Director submits, demonstrates that the offence of attempting to possess cocaine was not an uncharacteristic aberration. The respondent was addicted to cocaine and was prepared to bring cocaine into the country illegally for his own use and to profit by further trafficking.

Accordingly, the respondent, in these circumstances, should not have attracted a significant discount for prior good character upon either of the sentences.11

See further: Character.

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  1. Queensland has defined an offender’s antecedents as encompassing the offender’s personal circumstances. See, eg, R v Melrose [2016] QCA 202, [11]; R v Massey [2015] QCA 254, [2]; R v SCI; Ex parte Attorney-General (QLD) [2015] QCA 39, [5]–[9]; R v Handlen [2015] QCA 292; [74].[]
  2. See also Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33.[]
  3. See eg Veen v The Queen (No 2) [1988] HCA 14, [14].[]
  4. The Australian Law Reform Commission in the Same Crime, Same Time: Sentencing of Federal Offenders Report (2006) [6.52].[]
  5. Veen (No 2) was applied in the federal sentencing case R v Harrington [2016] ACTCA 10, [117–119] (Refshauge J and Gilmour J) where the offender’s antecedent criminal history was held to diminish the discount otherwise given to prior good character. See further: Character.[]
  6. Pfeiffer v The Queen [2009] NSWCCA 145.[]
  7. See also R v Sigalla [2017] NSWSC 52, [102] (Sigalla J).[]
  8. Considered in Van Der Baan v R [2012] NSWCCA 5 at [32]–[33] and R v Kreutzer [2013] SASCFC 130. See generally Owens v Young [2013] NTSC 49.[]
  9. Affirmed in state sentencing case R v Nelson [2016] NSWCCA 130 where Fagan J held at [106], Bugmy ‘is authority for a sentencing judge to have regard to any proven aspect of deprivation or dysfunction in an offender’s background which may have compromised his capacity to mature and learn from experience.’ See also state sentencing cases, Ingrey v The Queen [2016] NSWCCA 31, [39] (Hoeben CJ at CL, Adams and Fullerton JJ agreeing); R v Swan; R v Kimura (No 2) [2016] NSWSC 1819, [68] (N Adams J); R v Kelly [2016] ACTSC 281, [29] (Refshauge J). Considered in R v Grose [2014] SASCFC 42, [39] (Gray J, Sulan and Nicholson JJ agreeing). Distinguished in state sentencing case Daniels v The Queen [2016] NSWCCA 35, [36, 38].[]
  10. Applied in state sentencing case, Ingrey v The Queen [2016] NSWCCA 31, [41] (Hoeben CJ at CL, Adams and Fullerton JJ agreeing).[]
  11. See also R v Harrington [2016] ACTCA 10, [59] (Murrel CJ).[]
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