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Nature and Circumstances of the Offence

Nature and Circumstances of the Offence

The content on this page was last reviewed on 27 October 2016.

Recent cases alert
Masri v The King [2023] NSWCCA 266 — where the offending has been assisted by undercover law enforcement, the offender’s culpability as to the ‘core’ of the offence is relevant, and so may not be impacted by law enforcement activity if offender was not led into offending.
R v Doherty [2019] NSWDC 515 — while an aid and abet an attempted drug possession offence, offender’s moral culpability can be measured by their understanding that Co-offender 1 was using them to secure the importation of something illegal and that Co-offender 2 was taking the primary risk by collecting and transporting the consignment
The Queen v Ware [2019] TASCA — the family to which garlic, a member of the Allium family belongs, is a known host for a serious plant pathogen known as “Xyella fastidiosa”, a disease not present in Australia but native to United States and Canada where the garlic was imported from — sentencing judge accepted disease had not been detected in garlic bulbils, but the law reflects the fact that the risk exists, based upon expert assessment — the only way to manage this risk is through enforcement of laws offender breached
R v Ralston [2019] ACTSC 236 — any grooming offence is serious, although due to limitation sentencing judge found on offending (offending related to 2 messages) it must follow that objective seriousness of the offence must be regarded as below medium
R v Hraichie (No 3) [2019] NSWSC 973 — preparatory terrorist act intended to kill police officers considered a ‘very grave crime’, even where target group does not include ‘random members of the public’.
R v Shoma [2019] VSC 367 — bringing large kitchen knife from Bangladesh and carrying out terrorism offence within 8 days of arriving in Australia demonstrates seriousness of offending.
R v Cowley [2017] ACTSC 213 — use of carriage service to transmit indecent communications offence has increased seriousness where victim 12 year old daughter of offender’s relative as offending conduct may have long-term effects on child.
R v Mohamed [2016] VSC 581 — objective seriousness of preparatory foreign incursion offences not to be ascertained by reference to preparatory terrorism offences.
Truong v The Queen [2016] VSCA 228 — total amount dealt with in money laundering offences is not the sole factor in assessing objective seriousness.
R v Alqudsi [2016] NSWSC 1227 — subsequent increase in maximum penalty has no bearing on sentences to be imposed where offences took place before amendments.
Soyke v The Queen [2016] NSWCCA 112 — the absence of harm to victims does not preclude the offending from being serious.
*Guidance from these cases has not yet been incorporated into the commentary

Recent legislative amendments
Sentencing for certain child sexual abuse offences:
The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) inserts new ss 272.30(1), 471.29A and 474.29AA into the Criminal Code (Cth) which provide that when sentencing offenders for offences to which those sections apply, the court must take into account the age and maturity of the person in relation to whom the offence was committed, if that person was under 10, that fact as aggravating the seriousness of the criminal behaviour, and the number of people involved in the commission of the offence. The court need only take into account those matters so far as it is known to the court, and in relation to age, maturity and the number of people involved, so far as it is relevant.
*Guidance from this amendment has not yet been incorporated into the commentary

1. Overview

Section 16A(2)(a) provides that a court must take into account the nature and circumstances of the offence, as relevant and known to the court:

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:

(a)  the nature and circumstances of the offence

The factors discussed on this page have been considered relevant to assessing the nature and circumstances of federal offences. However, this commentary is not exhaustive of all the factors which may be relevant to the nature and circumstances of a federal offence. For further resources, see Publications.

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2. Maximum Penalty

The seriousness of an offence for the purposes of s 16A(1) and s 16A(2)(a) is to be determined by taking into account the statutory maximum penalty.1

In Tector v The Queen [2008] NSWCCA 151, the Court noted in relation to s 16A at [103]:

The evaluation of the criminality of an offence is for the sentencing judge to determine upon the relevant evidence in relation to the crime. This requires the court to assess the seriousness of the offence. The maximum penalty for an offence may operate as a yardstick and may, in relation to certain offences, assume particular significance.

The High Court considered the significance of statutory maxima in Markarian v The Queen [2005] HCA 25. The majority of Gleeson CJ, Gummow, Hayne and Callinan JJ stated at [30]–[31]:

Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance.

It follows that careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before court at the time; and thirdly, because in that regard, they do provide, taken and balanced with all of the other relevant factors, a yardstick …

However, in Elias v The Queen; Issa v The Queen [2013] HCA 31, the High Court qualified the statement in Markarian v The Queen [2005] HCA 25 at [27], stating that:

The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature’s assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the “worst case”. As explained in Markarian v The Queen, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination. As also explained in Markarian, in some instances – as where the maximum sentence was fixed at a very high level in the 19th century – reference to it may be of little relevance. As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted (emphasis added).

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3. Mandatory Minimum Penalty

In Bahar v The Queen [2011] WASCA 249, the Court considered the interaction of statutory minimum penalties for offences against the Migration Act 1985 (Cth) with s 16A of the Crimes Act 1914. The Court held that mandatory maximum and minimum penalties reflect the seriousness of an offence for the purpose of s 16A and inform the proportionality assessment.2

 McLure P (Martin CJ and Mazza J agreeing) stated at [54]:

The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the “just and appropriate” sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a “just and appropriate” sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied (emphasis added).

And further at [58]:

Where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate (emphasis added).

The Court in Bahar rejected the approach taken in the earlier Northern Territory case of The Queen v Pot, Wetangky and Lande3 by which a court was to firstly determine the appropriate penalty in accordance with general sentencing principles. If that produced a result below the mandatory minimum, the mandatory minimum was to be imposed. Bahar v The Queen [2011] WASCA 249 has subsequently been followed in New South Wales, Queensland, Victoria and the Northern Territory.4

In Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v The Queen [2013] NSWCCA 23, the Court held that to follow the approach in The Queen v Pot, Wetangky and Lande3 would undermine the principle of equal justice. This is because cases involving offending of different seriousness would thereby be given the same penalty.5

In the Victorian case of DPP (Cth) v Haidari [2013] VSCA 149, the Court found that the imposition of a minimum sentencing regime modifies the application of the principles in s 16A, stating at [42]:

[A]lthough the imposition of a minimum sentencing regime does not oust either the sentencing principles of the common law or the accommodation of those principles effected by s16A of the Crimes Act 1914 (Cth),  it necessarily modifies both.  Thus while ‘the common law principles relating to, inter alia, general deterrence, totality and parity apply to the sentencing of federal offenders’, minimum sentences may, especially when considerations of totality also apply, affect the sentencing court’s approach to mitigating circumstances.  The objective circumstances against which the gravity of people smuggling crimes is to be judged include, as an essential element, the fact that Parliament requires the imposition of minimum penalties for those offences.

The High Court considered a challenge to the mandatory minimum provisions imposed by s 233C(1) of the Migration Act 1985 (Cth) in Magaming v The Queen [2013] HCA 40. In dismissing the appeal, the majority of French CJ, Hayne, Crennan, Kiefel And Bell JJ commented at [47]–[48]:

In very many cases, sentencing an offender will require the exercise of a discretion about what form of punishment is to be imposed and how heavy a penalty should be imposed.  But that discretion is not unbounded.  Its exercise is always hedged about by both statutory requirements and applicable judge made principles.  Sentencing an offender must always be undertaken according to law.

In Markarian v The Queen, the plurality observed that “[l]egislatures do not enact maximum available sentences as mere formalities.  Judges need sentencing yardsticks.”  The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.

Whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. Thus, in Bahar v The Queen [2011] WASCA 249, the Court dismissed the Crown appeal against sentence, noting that the offenders had limited education, lived in impoverished circumstances, offended by reason of financial imperative, were easy prey to people smuggling organizers and were at the bottom of the smuggling hierarchy.6

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4. Culpability

Professor Freiberg explains that where an offender has a low degree of moral culpability for an offence, this will tend to reduce the objective seriousness of the offence. Conversely, a high degree of culpability will tend to increase its seriousness.7

Professor Von Hirsch has described culpability as follows:

 Culpability refers to the factors of intent, motive and circumstances that determine how much the offender should be held accountable for his act. Culpability, in turn, affects the assessment of harm. The consequences that should be considered in gauging the harmfulness of an act should be those that can fairly be attributed to the actor’s choice.8

In Agius v The Queen [2015] NSWCCA 200, the Court noted that the fact that the offender had ‘promoted the fraudulent scheme,’ ‘took a key role’ in its day-to-day implementation and ‘provided a means by which the fraud could be committed’9 contributed to his high degree of culpability.


An offender’s culpability may be reduced where they suffer from a mental condition: see Mental Condition.

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5. Substance abuse

There is no clear or established approach to the relevance of substance abuse at sentence.11

 The general rule is that the effects of voluntarily consumed alcohol or drugs are not regarded as mitigating the seriousness of the offence.12

However, courts have recognised exceptions to this general rule. Intoxication from drugs or alcohol may mitigate a crime because the offender has, by reason of that intoxication behaved in a manner that is ‘out of character’ and therefore their moral culpability for the offending is lessened.13

 However, the scope of the ‘out of character’ exception is narrow.14

In Hasan v The Queen [2010] VSCA 352, the Court reviewed the law regarding intoxication as a sentencing consideration,15  and stated at [21], [33]–[34]:

As will appear, courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability. An ‘out of character’ exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol.

It seems clear enough, however, that the circumstances must be quite exceptional before intoxication at the time of offending can mitigate the offender’s moral culpability.

On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her. Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender’s drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance.

Intoxication may increase the seriousness of an offence where it is not ‘out of character’ for the offender to be intoxicated and the offender was aware of the effect alcohol may have on their conduct.16

It has been accepted that where an offender’s alcohol abuse is a result of their deprived childhood background, this may be taken into account as a mitigating factor.17

For example, in Bugmy v The Queen [2013] HCA 37, the Court stated at [40]:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

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6. Addiction

6.1 Drug and Alcohol Addiction

Courts have generally held that drug or alcohol addiction, of itself, is not a mitigating factor.18

 As Doyle CJ has noted, ‘to treat drug addiction as a routine mitigating circumstance when sentencing an offender would conflict with attempts made through the criminal law and other means to deal with unlawful trading in drugs and drug addiction’.19

In R v Henry [1999] NSWCCA 111, Wood CJ laid down a number of general principles relating to the relevance of drug addiction at sentence. The principles from Henry have been considered applicable to alcohol addiction.20

 Wood CJ stated at [273] that the fact that an offence is committed to satisfy a drug addiction may be taken into account as a factor relevant to the objective criminality of an offence in so far as it throws light on:

(i) the impulsivity of the offence and the extent of any planning for it;

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act (citations omitted, emphasis added).

In Nguyen v The Queen [2011] VSCA 32, Maxwell P (Redlich JA agreeing) held that the sentencing judge had not erred in declining to treat the offender’s drug addiction as mitigating, stating at [89]:

Nor was it an error for his Honour to decline to treat as a mitigating circumstance Pom’s vulnerability by reason of his addiction to drugs and to gambling. His active participation, and recruitment of others to assist, reveal him to have been a person quite able to reason effectively, plan strategically and operate efficiently in pursuit of the financial reward which he was seeking in order to meet his own particular needs. There was nothing in the material before the Court to suggest that his knowing involvement in this major drug importation was other than a calculated decision of the kind which attracts a full measure of criminal responsibility.

In R v Henry [1999] NSWCCA 111, Wood CJ also noted at [273] that drug addiction may be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword;

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery, or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the “cross roads” (citations omitted).

Drug addiction will be more likely to be considered in mitigation where there is evidence that it was not a result of free will.21

 This may occur where, for example, an offender is introduced to drugs at a very young age.

In El-Ahmad v The Queen [2015] NSWCCA 65, in considering drug supply offences contrary to the Drug Misuse and Trafficking Act 1985 (NSW), the Court noted at [73]:

The applicant has a number of features of her subjective case that demanded some amelioration of her sentence. Counsel pointed to her “really parlous start to life”, undergoing an arranged marriage at the age of 13 to a close relative who was physically and verbally abusive and introduced her to drugs. Although her drug addiction cannot be regarded in any way as an excuse for her crimes the fact that it had its origins in such circumstances in her teenage years is of some significance: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273](c) (Wood CJ at CL).

In R v Henry [1999] NSWCCA 111, Wood CJ noted that addiction may be a ‘two-edged sword’ when considered in relation to prospects of recidivism and rehabilitation.22

A court must take into account the prospects of rehabilitation,23 and an offender whose addiction is treated may have a lower risk of recidivism in the long term.24

However, it has been recognised that drug addiction may be a ‘counter-indication’ to prospects of rehabilitation. As Doyle CJ noted in R v Proom [2003] SASC 88 at [50]:

Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.

In some circumstances, substance addiction could increase the relative seriousness of the offence. In Beckerton v The Queen [2011] VSCA 107, Weinberg JA (Ashley JA agreeing) noted at [44]:

There are, in my opinion, some circumstances in which it can fairly be said that a past history of drug addiction not only does not mitigate an offence such as trafficking, but may be viewed as a factor that worsens the applicant’s level of culpability.  I have in mind the admittedly unusual case of an offender who, having been an addict for much of his or her adult life, and therefore fully appreciates the devastating consequences that addiction can have, then overcomes his or her habit, and subsequently decides to sell drugs purely for profit, and out of a sense of greed.  In such a case, comments such as ‘so much the worse is your offending’ may be entirely apt.

However, the Court considered problematic the sentencing judge’s statement that the applicant’s offending was ‘so much the worse’ because of her past experience with drugs, and her knowledge of the harm they did to those who used them. This was considered problematic because the applicant was still addicted to drugs throughout the period that she engaged in trafficking.25

6.2 Gambling Addiction

Where a crime is not committed for gain but to satisfy a gambling addiction, moral culpability may be reduced.26

The weight to be attached to a gambling addiction will vary according to the circumstances of the case. In R v Grossi [2008] VSCA 51, Redlich JA (Vincent and Neave JJA agreeing) articulated six primary reasons why gambling addictions are unlikely to be mitigating at [56]:

Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence.

Secondly, it will frequently be the case that crimesassociated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder.

Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning.

Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence.

Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction. This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession.

Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct (emphasis added; formatting added).27

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7. Premeditation or planning

An offence will be considered more objectively serious where it involves a large degree of premeditation or planning.28

 Crimes involving considerable planning may be more difficult to detect.29

 They are also considered a more appropriate vehicle for deterrence, as the offender has turned their mind to the risks and benefits of their offending.30

In Minehan v The Queen [2010] NSWCCA 140, the Court, in considering offences involving child exploitation, stated at [94]–[95]

Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

In R v Li [2010] NSWCCA 125, the Court considered the principles relevant to determining the objective seriousness of money laundering offences under pt 10.2 of the Criminal Code 1995 (Cth). Barr AJ (Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreeing) noted at [41]:

Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important (emphasis added).31

In considering the objective seriousness of offences of tax evasion the ‘degree of planning and premeditation’ has been considered relevant.32

The level of planning involved in the importation of drugs has been considered particularly relevant to the objective seriousness of the offence. For example, in R v Majeric [2001] VSCA 15, Chernov JA (Callaway and Buchanan JJA agreeing) in considering an appeal against sentence for drug importation contrary to former s 233B(1) of the Customs Act 1901 (Cth) stated at [38]:

[C]ondign punishment is called for in relation to this offence. The criminal enterprise in this case was carefully planned by the applicant over a considerable period to ensure its success. He did all the planning and work necessary to have the consignment transported to Australia and to have it cleared through Customs. In order to minimise the risk of the authorities connecting the shipment with him, the applicant effectively imported the goods in the name of a company with which he had no relevant association. The applicant must have known what would befall him if he were caught and convicted of the offence. Yet he pressed on notwithstanding the risk, no doubt believing that, through his organisational skills, he would outwit the authorities and that the reward at the end of the enterprise justified the taking of the risk.

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8. Motive

An offender’s motive for committing an offence is relevant to determining the objective seriousness of the offence at sentence.33

 For example, where an offence is committed for financial gain, it is likely to be considered more objectively serious than a crime committed out of need or altruism.34

For example, in DPP (Cth) v KMD [2015] VSCA 255, the Court noted that the offender’s motivation for trafficking heroin was ‘purely financial’ and it followed that his culpability was ‘very high’.35

In R v Nguyen [2010] NSWCCA 238, in setting out general principles applicable to sentencing for federal drug offenders, Johnson J (RA Hulme J and MacFarlan JA agreeing) stated at [72]

As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425150 A Crim R 271 at 297 [104]R v Lee at [32]

The Court in Nguyen v The Queen [2011] VSCA 32, further noted that the fact that the offender needs money to pay off a debt does not necessarily operate to reduce culpability.36

8.1 Non-exculpatory duress

Where an offender commits a crime whilst acting under duress which falls short of a complete defence to the charge, that duress is capable of being a mitigating factor at sentence.37

This form of duress relates to the offender’s motivation and forms part of the ‘circumstances’ of the offence.38

The fact that the jury has rejected the defence of duress does not mean that threats or other conduct falling short of the defence, cannot be taken into account on sentence.39

 However, a careful and close assessment of evidence adduced to support such a claim should be made.40

For example, such a ‘close assessment’ was necessary in Tiknius v The Queen [2011] NSWCCA 215,  where the offender was convicted of drug importation and made claims concerning the alleged conduct of persons in another country. Those persons were said to have held a gun to his head and made threats to rape his girlfriend in Lithuania.41

An offender may discharge the onus42 and satisfy the Court that a factual finding should be made that the offender’s involvement in the offence was affected by duress. However, it will remain for the Court to determine what weight should be given to that factor on sentence.43


In Tiknius v The Queen [2011] NSWCCA 215, the court noted that this will involve consideration of the ‘form and duration of the offender’s criminal conduct, the nature of the threats made and consideration of opportunities which were available to the offender to report the matter to relevant authorities.’43

In assessing the weight to be given to general deterrence, the policy considerations underlying the law of duress must be kept in mind.44

This includes the reasonableness of the person’s failure to report the criminal intimidation to the police and seek police protection.45

 General deterrence will also have a ‘very substantial role’ in cases were non-exculpatory duress is relied on.46

This is because it can operate as a ‘counter-threat’ to criminal intimidation by the duressor.47

In relation to drug importation, the ‘grooming and pressuring of persons to become involved'48 is common, and those targeted often have submissive or compliant personalities.49

 General deterrence therefore operates not only to dissuade offenders from succumbing to intimidation, but also to discourage duressors from continuing to intimidate.50

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9. Entrapment

The circumstances in which an offender enters into a criminal enterprise are relevant to sentence.51

An offender’s culpability may be diminished where their criminal behaviour is partly attributable to inducement by law enforcement agencies.52

 In DPP (Cth) v Haidari [2013] VSCA 149, Harper JA (Weinberg and Priest JJA agreeing) stated at [32]:

If there is a real likelihood that, in the absence of police inducement, the offender would not have committed the crime, leniency may well be indicated. In the words of Badgery-Parker J in R v Taouk [(1993) 65 A Crim R 387, 404]:

… when it comes to sentence, the question is … whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime], and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability (emphasis added).

In answering this question Courts have ‘distinguished between (on the one hand) those who had been encouraged by the police to do what they otherwise would not have done, and (on the other) those who were in engaged in the criminal behaviour in question as part of their ongoing business.’53

It may also be necessary to take into consideration the fact that an offender convicted as a result of entrapment will not have caused harm. For example, in DPP (Cth) v Haidari [2013] VSCA 149 the offender was convicted of people smuggling as a result of a police ‘sting’ operation where there were no actual non-citizens whose proposed entry into Australia the offender intended to facilitate.  Harper JA (Weinberg and Priest JJA) agreeing stated at [37]:

It is also necessary to take into consideration the fact that the respondent’s offending put no one at risk; and that factor, when properly taken into account, diminishes the respondent’s culpability. As Hulme J said in R v DW:

‘[A]bsent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated into the community, in no way mitigates the subjective criminality of the offender. However, if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending [[2012] NSWCCA 66, [117]]’.

However, in relation to offences involving child exploitation, Courts have noted that although an offence will be considered more serious where an actual child is involved,54 the absence of a victim will not mitigate the offence.

In R v Fuller [2010] NSWCCA 192, the Court considered the situation of an offender convicted of using a carriage service to procure a person under 16 years of age contrary to s 474.26 of the Criminal Code 1995 (Cth), where the victim was a fictitious online identity created by police. McClellan CJ (Hislop J and Barr AJ agreeing) noted at [35]:

The sentencing judge identified the lack of an actual victim as a mitigating factor. Although an offence may be more serious when communication is made with an actual child and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons for sexual purposes. Although the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it (emphasis added).55

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10. Degree of participation

An offender’s role in a criminal enterprise is a relevant factor in determining their culpability.56

 An offender who has played a leading role will be considered more culpable than an offender who has played a lesser role.57

For example, in relation to drug importation offences, offenders who are low in the drug hierarchy, such as couriers, are generally considered less culpable than those at a higher level. In Tyler v The Queen [2007] NSWCCA 247, Simpson J explained the rationale for this at [79]–[80]:

Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy — in a drug importation conspiracy, without couriers, no drug could or would be imported — they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward.

By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived.

In Pham v The Queen [2012] VSCA 101, Redlich JA noted at [4]:

[I]t will be useful in some circumstances to distinguish the positions occupied by offenders within a hierarchical criminal organization as a means of determining the offender’s level of culpability.  For example a courier will generally attract a more lenient sentence than a principal within a criminal drug hierarchy.  The characterization of an offender’s position may not always illuminate and may sometimes obscure the actual level of criminality of the offender assessed by reference to his conduct.  Where the evidence establishes the acts performed by the offender and their position within the criminal organization, the offender’s criminality is to be assessed by a consideration of both the actions of the offender and the role he occupies within the organization (emphasis added).

In R v Pham [2015] HCA 39, the plurality reinforced that the characterisation of an importer as a ‘courier’ ‘must not be allowed to obscure the assessment of what the offender … [has] done’,58 citing R v Olbrich [1999] HCA 54, where the Court stated at [19]:

[I]t is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.59

There may often be a paucity of evidence about an offender’s role, particularly in cases involving drug importation.60 In Pham v The Queen [2012] VSCA 101, Redlich JA commented on this situation, stating at [5]:

It will often be difficult to categorise the role of the offender within the criminal enterprise or to determine his role relative to others.  The focus must then be upon the degree of criminality of the acts performed and their importance in accomplishing the organisation’s criminal purpose.  When dealing with a number of offenders whose positions within the enterprise are difficult to identify or are closely aligned, the need will arise to identify the features of each offender’s conduct  that justify the imposition of the sentences, whether they are the same or different, which have been imposed on each co-offender (emphasis added).

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11. Breach of Trust

A finding that an offence was committed in breach of trust is generally considered a ‘seriously aggravating factor’ at sentence.61

 In Suleman v The Queen [2009] NSWCCA 70, Howie J (McClellan CJ at CL and Hislop J agreeing) described the concept of a position of trust at common law at [22]–[23]:

The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to “a position of trust”. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. The position of trust may reside in only one of the persons, such as between parent and child. But there may be situations where each stands in a position of trust to the other. The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship.

The position of trust recognised by the common law does not arise simply from a subjective state of mind of one of the members of the relationship. It is not enough that for some reason or another the victim trusted the offender not to act in a particular way: that state of mind might be irrational or without foundation. On the other hand a position of trust can arise irrespective of the state of mind of the victim, for example because the victim is a child or mentally disabled. But the offender would know, or should have known, that he or she is in a position of trust with respect to the victim (emphasis added).62

In R v JK [2015] ACTSC 140, it was considered an aggravating factor that the offending involved a ‘significant breach of trust’ where the offender was a Commonwealth public servant convicted of misusing a Commonwealth credit card contrary to s 60 (1) of the Financial Management and Accountability Act 1997 (Cth).63

In R v Fysh (No 4) [2012] NSWSC 1587,  in relation to offences of insider trading contrary s 1043A(1)(c) and s 1311(1)(a) of the Corporations Act 2001 (Cth), McCallum J noted that ‘where an offender possesses inside information through their employment, their breach of trust is a significant factor.’64

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12. Profits from offence

The amount of profit obtained, or sought to be obtained by the offender is a relevant factor in determining their culpability. For example, in relation to offences involving tax evasion65 in DPP (Cth) v Gregory [2011] VSCA 145, the Court stated at [41]:

The size of the benefit obtained by an offender from the commission of the offence is a relevant sentencing factor even if ‘benefit’ is not an element of the offence as it may have a significant bearing on the moral culpability of the offender or on the need for deterrence.

In relation to drug importation, Courts have held that the greater the received or expected profit, the heavier the punishment.66

In Wong v The Queen [2001] HCA 64, Gaudron, Gummow and Hayne JJ stated at [64]:

In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed (emphasis added).

Note: Section 16A(2)(f)(i) expressly states that a court must take into account the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence. See further: Contrition and Reparation.

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13. Status of Offender

The fact that an offender occupies a position in which they have sworn to uphold the law will tend to increase the seriousness of the offence, such as where the offender is a legal practitioner,67 police officer,68 judicial officer69 or minister.

In Einfeld v The Queen [2010] NSWCCA 87, Basten JA (RS Hulme and Latham JJ agreeing) rejected a submission that the offender’s status and experience as a former barrister and judicial officer were irrelevant to offences of perjury and perverting the course of justice.70

 The Court stated at [81]:

[I]t is beyond question that for a senior legal practitioner and former judge of a superior court to commit offences against the administration of justice is apt to give rise to public disquiet about the integrity of the judicial system. These were offences to which the present status of, and the offices formerly held by, the applicant were of great significance (emphasis added).

The Court further stated that the offender’s status ‘permitted him to appreciate fully the seriousness of the offences’.71

 He therefore understood the ‘significance accorded to such conduct by the law and the heightened seriousness of offences when committed by a person with the applicant’s background and experience’.71

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  1. Bahar v The Queen [2011] WASCA 249, [45] (McLure P, Martin CJ and Mazza J agreeing).[]
  2. Bahar v The Queen [2011] WASCA 249, [58]–[59] (McLure P, Martin CJ and Mazza J agreeing).[]
  3. (unreported, Supreme Court, NT, Riley CJ, 18 January 2011).[][]
  4. DPP (Cth) v Haidari [2013] VSCA 149, [43] (Weinberg J, Harper and Priest JJA agreeing); Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R [2013] NSWCCA 23, [42]–[45] (Allsop P, Bathurst CJ, McClellan CJ at CL, Hall and Bellew JJ agreeing); R v Karabi [2012] QCA 47, [35] (Muir JA, Fraser and Chesterman JJA agreeing); R v Latif; ex parte Cth DPP [2012] QCA 278, [20]–[22] (Fraser JA, Gotterson JA and Mullins J agreeing); Chenhall v Mosel [2013] NTSC 19, [79] (Southwood J). But see Dui Kol v The Queen [2015] NSWCCA 150, [11]–[16] (Adams J), [27]–[30] (McCallum J).[]
  5. Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R [2013] NSWCCA 23, [45] (Allsop P, Bathurst CJ, McClellan CJ at CL, Hall and Bellew JJ agreeing).[]
  6. Bahar v The Queen [2011] WASCA 249, [61]–[64] (McLure P, Martin CJ and Mazza J agreeing). See also DPP (Cth) v Haidari [2013] VSCA 149, [26] (Weinberg J, Harper and Priest JJA agreeing) where the Crown appeal against sentence was dismissed. The Court considered that the offender’s mitigating circumstances of having put no lives at risk, entering Australia impoverished and uneducated, proffering an early guilty plea and offering assistance to authorities were such that the offending fell within the least serious category for which the mandatory minimum was appropriate.[]
  7. See Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 281.[]
  8. A von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang, 1986) 64–5 quoted in Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 280.[]
  9. Agius v The Queen [2015] NSWCCA 200, [1101] (Bathurst CJ, R A Hulme and Bellew JJ agreeing).[]
  10. Agius v The Queen [2015] NSWCCA 200, [1103] (Bathurst CJ, R A Hulme and Bellew JJ agreeing).[]
  11. See Kukovec v The Queen [2014] NSWCCA 308, [30].[]
  12. R v Rosenberger (1994) 76 A Crim R 1; Damiani v Western Australia [2006] WASCA 47, [2] (Roberts-Smith J); Hasan v The Queen [2010] VSCA 352, [20]–[22] (Maxwell P, Redlich and Harper JJA). See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 299.[]
  13. Hasan v The Queen [2010] VSCA 352, [20]–[22] (Maxwell P, Redlich and Harper JJA); R v GWM [2012] NSWCCA 240, [82] (Johnson J, McCllellan CJ and Bellew J agreeing); Wheeler v Police [2013] SASC 80, [40]–[41] (White J).[]
  14. Hasan v The Queen [2010] VSCA 352, [20]–[22] (Maxwell P, Redlich and Harper JJA); R v GWM [2012] NSWCCA 240, [82] (Johnson J, McCllellan CJ and Bellew J agreeing).[]
  15. Hasan v The Queen [2010] VSCA 352, [21].[]
  16. Mendes v The Queen [2012] NSWCCA 103, [75] (Davies J, Whealy JA and Schmidt J agreeing); Ward v The Queen [2013] NSWCCA 46, [227] (McClellan JA, Latham and Adamson JJ agreeing).[]
  17. R v Fernando (1992) 76 A Crim R 58, 62–3 (Wood J) cited with apparent approval in Bugmy v The Queen [2013] HCA 37, [38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).  []
  18. R v Henry [1999] NSWCCA 111, [197] (Spigelman CJ), [273]–[274] (Wood CJ); R v Koumis [2008] VSCA 84, [53], R v Proom [2003] SASC 88, [52] (Doyle CJ); Lam v The Queen [2015] NSWCCA 87, [49] (Schmidt J, Meagher JA and Bellew J agreeing).[]
  19. R v Proom [2003] SASC 88, [47]. See also R v Henry [1999] NSWCCA 111, [206] (Spigelman CJ).[]
  20. R v Killen [2005] NSWCCA 17, [17] (Hidden J, James and Bell JJ agreeing). See also Damiani v Western Australia [2006] WASCA 47, [2] (Roberts-Smith JA).[]
  21. See Damiani v Western Australia [2006] WASCA 47, [2] (Roberts-Smith J).[]
  22. R v Henry [1999] NSWCCA 111, [273].[]
  23. Crimes Act 1914 (Cth) s 16A(2)(n).[]
  24. See R v De Groot Van Embden [2003] NSWCCA 156,  [82] (Carruthers JA, Spigelman CJ agreeing); Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 307.[]
  25. Beckerton v The Queen [2011] VSCA 107, [42]. See also Nguyen v The Queen [2011] VSCA 32, [90] Maxwell P (Redlich JA agreeing).[]
  26. R v West [2015] ACTSC 134, [62] (Refshauge J); DPP (Cth) v Golic [2014] VSCA 355, [36] (Neave, Whelan and Beach JJA).[]
  27. See also DPP (Cth) v Golic [2014] VSCA 355, [36] (Neave, Whelan and Beach JJA).[]
  28. See DPP (Cth) v Gregory [2011] VSCA 145, [54].[]
  29. See, eg, R v Cottrell (1989) 42 A Crim R 31, 34.[]
  30. See R v Tait (1979) 46 FLR 386, 399.[]
  31. See also Adegoke v The Queen [2013] NSWCCA 193, [51].[]
  32. See, eg, R v Sakovits [2013] NSWSC 464,  [32] (Hall J); DPP (Cth) v Gregory [2011] VSCA 145, [54].[]
  33. Tiknius v The Queen [2011] NSWCCA 215, [43] (Johnson J, Tobias AJA and Hall J agreeing).[]
  34. DPP (Cth) v De La Rosa [2010] NSWCCA 194, [261] (McClellan CJ at CL).[]
  35. DPP (Cth) v KMD [2015] VSCA 255, [34]–[35] (Maxwell P, Weinberg and Beach JJA).[]
  36. Citing DPP (Cth) v De La Rosa [2010] NSWCCA 194, [261] (McClellan CJ at CL).[]
  37. Tiknius v The Queen [2011] NSWCCA 215, [32] (Johnson J, Tobias AJA and Hall J agreeing).[]
  38. Tiknius v The Queen [2011] NSWCCA 215, [42] (Johnson J, Tobias AJA and Hall J agreeing).[]
  39. R v Oblach [2005] NSWCCA 440, [69]–[70] (Spigelman CJ, Sully and Hulme JJ); Tiknius v The Queen [2011] NSWCCA 215, [37] (Johnson J, Tobias AJA and Hall J agreeing).[]
  40. Tiknius v The Queen [2011] NSWCCA 215, [46] (Johnson J, Tobias AJA and Hall J agreeing).[]
  41. Tiknius v The Queen [2011] NSWCCA 215, [45] (Johnson J, Tobias AJA and Hall J agreeing).[]
  42. See R v Olbrich [1999] HCA 54,  [26]–[27] (Gleeson CJ, Gaudron, Hayne And Callinan JJ). See further Standard of Proof. []
  43. Tiknius v The Queen [2011] NSWCCA 215, [49] (Johnson J, Tobias AJA and Hall J agreeing).[][]
  44. Tiknius v The Queen [2011] NSWCCA 215, [50] (Johnson J, Tobias AJA and Hall J agreeing).[]
  45. See, eg, Taiapa v The Queen [2009] HCA 53, [31] ( French CJ, Heydon, Crennan, Kiefel and Bell JJ) citing R v Brown (1986) 43 SASR 33, 40 (King CJ).[]
  46. Tiknius v The Queen [2011] NSWCCA 215, [51] (Johnson J, Tobias AJA and Hall J agreeing).[]
  47. Tiknius v The Queen [2011] NSWCCA 215, [52] (Johnson J, Tobias AJA and Hall J agreeing) citing R v Roach [2005] VSCA 162, [15] (Callaway JA, Ormiston and Charles JJA agreeing).[]
  48. Le v The Queen [2006] NSWCCA 136, [32] (Latham J, McColl JA agreeing); R v Huynh [2008] NSWCCA 16, [11] (Grove J, McClellan CJ at CL and Fullerton J agreeing).[]
  49. Le v The Queen [2006] NSWCCA 136, [32] (Latham J, McColl JA agreeing); Tiknius v The Queen [2011] NSWCCA 215, [51] (Johnson J, Tobias AJA and Hall J agreeing).[]
  50. Tiknius v The Queen [2011] NSWCCA 215, [52] (Johnson J, Tobias AJA and Hall J agreeing) quoting R v Z [2005] UKHL 22, [70] (Baroness Hale of Richmond).[]
  51. DPP (Cth) v Haidari [2013] VSCA 149, [31] (Harper JA, Weinberg and Priest JJA agreeing) citing Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999) 250 [3.618].[]
  52. DPP (Cth) v Haidari [2013] VSCA 149, [31] (Harper JA, Weinberg and Priest JJA agreeing) citing R v Taouk (1993) 65 A Crim R 387, 404 (Badgery-Parker J).[]
  53. DPP (Cth) v Haidari [2013] VSCA 149, [31] (Harper JA, Weinberg and Priest JJA agreeing) quoting R v N [1999] NSWCCA 187, [43] (Adams J).[]
  54. Adamson v The Queen [2015] VSCA 194, [25].[]
  55. See also R v Gajjar [2008] VSCA 268, [45]. []
  56. See Pham v The Queen [2012] VSCA 101, [4] (Redlich JA).[]
  57. Pham v The Queen [2012] VSCA 101, [4] (Redlich JA); R v Nguyen; R v Pham [2010] NSWCCA 238, [72].[]
  58. R v Pham [2015] HCA 39, [34] (French CJ, Keane and Nettle JJ).[]
  59. R v Olbrich [1999] HCA 54, [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ agreeing).[]
  60. See Judicial Commission of New South Wales, ‘Sentencing Commonwealth Drug Offenders’ (Research Monograph No 38, Judicial Commission of New South Wales, June 2014) 33.[]
  61. Suleman v The Queen [2009] NSWCCA 70, [28] (Howie J, McClellan CJ at CL and Hislop J agreeing). See also R v Monaghan [2014] ACTSC 278, [11]; R v De Silva [2011] NSWSC 243, [61].[]
  62. See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 325–6.[]
  63. See also R v Zerafa [2013] NSWCCA 222, [99].[]
  64. R v Fysh (No 4) [2012] NSWSC 1587, [42].[]
  65. Contrary to former s 29D of the Crimes Act 1914 (Cth) and s 135.4(5) of the Criminal Code Act 1995 (Cth).[]
  66. See, eg, DPP (Cth) v De La Rosa [2010] NSWCCA 194, [267].[]
  67. See R v Fraser [2005] VSCA 147, [29] (Batt JA, Chernov and Vincent JJA agreeing).[]
  68. See R v Wright (No 2) [1968] VR 174.[]
  69. Einfeld v The Queen [2010] NSWCCA 87, [79]–[84] (Basten JA, RS Hulme and Latham JJ agreeing).[]
  70. Contrary to ss 327 and 319 of the Crimes Act 1900 (NSW).[]
  71. Einfeld v The Queen [2010] NSWCCA 87, [83].[][]
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