General Sentencing Principles
- Multiple or Continuing Offences
- Double Punishment
- Part IB: Sentencing of Federal Offenders
- Taking into Account Other Offences
- Victim of the Offence
- One Transaction Rule
- Section 16A
- Sentencing Factors
- Totality Principle
- Nature and Circumstances of the Offence
- Physical Condition
- Injury, Loss or Damage
- Consistency in Federal Sentencing
- Mental Condition
- The Impact of COVID-19 on Federal Sentencing
- Offender’s Family and Dependants
- Failure to Comply with Order or Obligation
- Course of Conduct
- Hardship to the Offender
- Contrition and Reparation
- Cultural Background
- Guilty Plea
- Adequacy of Punishment
Sentencing Options and Procedures
- Additional Sentencing Alternatives
- Breach of Conditional Release Bonds After Conviction
- Commencement of Federal Sentences
- Cumulative and Concurrent Sentences
- Conditional Release Orders After Conviction
- Hospital Orders
- Custodial Sentence
- Summary Disposition for Mental Illness
- Non Parole Period and Recognizance Release Orders
- Release on Parole or Licence
- Pre-Release Schemes and Leave of Absence
- Program Probation Orders
- Psychiatric Probation Orders
- Options without Proceeding to Conviction
- Table of Options
- Victim Impact Statements
- Sentencing Methodology
- Particular Sentencing Circumstances
- Ancillary Orders
The content on this page was last reviewed on 7 February 2022
Section 16A(2)(n) requires a court to take into account various factors personal to the offender including their prospects of rehabilitation.
(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:
(n) the prospect of rehabilitation of the person
Courts consider several different factors when assessing an offender’s prospects of rehabilitation. Common considerations include:
- criminal record;
- conduct between offending and sentence;
- whether the offender has engaged in treatment;
- education; and
- support networks/relationships
2. Rehabilitation and Protection of the Community
The purpose of rehabilitation is to reform the offender and encourage the offender not to re-offend.1
[R]ehabilitation has as its purpose the remodelling of a person’s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen.
[E]very offender is in need of rehabilitation. Some may need greater assistance than others. It has been commonplace to speak of “paying your debt” to society. That phrase, in colloquial parlance, captures the essence of rehabilitation, enabling the offender to re-establish him or herself as an honourable member of the community (emphasis added).
The Court cited the following comment of King CJ in Vartzokas v Zanker (1989) 51 SASR 277 at :
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen.2
Successful rehabilitation enhances community protection. In Yardley v Betts (1979) 22 SASR 108, King CJ stated at :
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced (emphasis added).3
For example, in R v Philpot  ACTSC 96, Murrell CJ imposed a sentence of 19 months imprisonment for an offender convicted of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code (Cth). In deciding that the offender should be released immediately on recognizance, Murrell CJ took into account the fact that the offender had sought treatment and was continuing to engage with health professionals, with the support of family and friends. Murrell CJ stated at :
In considering the manner in which that sentence should be served, I pay full regard to the objective seriousness of the matter but when I look at the purposes of sentencing I find that the community will be best protected if the offender continues with the rehabilitation that he is currently undergoing (emphasis added).
3. Rehabilitation is of equal application
In Vartzokas v Zanker (1989) 51 SASR 277, King CJ explained at :
Rehabilitation … is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. … Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound process for rehabilitation… (emphasis added).4
In R v Boulden  NSWSC 1274, the offender pleaded guilty to being privy to the fraudulent altering of the books of a company contrary to s 590(1)(c)(iii) of the Corporations Act 2001 (Cth) and was found to have been ‘fully and entirely rehabilitated’.5
The offender in R v Williams  NSWSC 315 was charged with authorising the issue of a prospectus, lodged with a material omission and making and/or authorising a statement which the offender knew was misleading. Wood CJ held that the offender had ‘excellent’ prospects for rehabilitation.6
Courts have observed that the prospects of rehabilitation of white collar offenders are generally high.7
4. Operation of s16(2AAA)
(2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a) when making an order–to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non-parole period–to include sufficient time for the person to undertake a rehabilitation program.
In R v Hartley-Kennett  ACTSC 88, Burns J observed at :
Reference to the explanatory statement to the Bill which introduced that section suggests that it is directed towards ensuring, in appropriate cases, that an offender has sufficient time in custody to complete a sex offender program before their release. The explanatory statement suggests that the recommended time for undertaking such a program in custody is 18 months. In my opinion, the present offence does not call for or justify a sentence of 18 months in full-time imprisonment. I will instead impose conditions about rehabilitation and treatment options (emphasis added).
5. Prospects of Rehabilitation
Various factors appear to influence the weight given to an offender’s prospects of rehabilitation in the formulation of a sentence. These include the offender’s character, criminal record, conduct between offending and sentence, youth, treatment, education and support networks/relationships.
In the state sentencing case of Elyard v The Queen  NSWCCA 43, Basten JA broadly set out the types of material a court will examine to assess an offender’s prospects of rehabilitation under common law sentencing principles at :
In assessing prospects of rehabilitation, the Court will generally have access to material falling within one or more of the following categories:
(a) evidence of past conduct and behaviour of the offender;
(b) professional opinions, taking into account past conduct and behaviour and expressing views as to future prospects, and
(c) at least in some cases, the opinions and expressions of intention of the offender himself or herself.
Courts have noted that while prospects may change, rehabilitation is to be assessed at the time of sentencing.9
In Alou v The Queen  NSWCCA 231, the offender argued on appeal that the sentencing judge was not entitled to sentence him on the basis that he had ‘grim’ or ‘bleak’ prospects of rehabilitation. Bathurst CJ (Price and Adams JJ agreeing) stated at :
The criticism of the reasoning of the sentencing judge was that his Honour had no material on which to conclude that the position would remain the same on what on any view would be a very lengthy sentence. That may be so, even though there was no evidence that there would be any change. However, that does not mean that the sentencing judge is not obliged to make an assessment of the prospects of rehabilitation on the evidence before him (emphasis added).
An offender’s character is a listed sentencing factor in s 16A(2)(m) of the Crimes Act 1914 (Cth). ‘Character’ may also be relevant in examining an offender’s prospects of rehabilitation.
Good or bad character can influence the weight given to an offender’s prospects of rehabilitation, depending on the circumstances of the case. Factors such as the offender’s prior public service and good standing amongst family or a religious community may be influential.
For example, in R v Zapata  VSC 486, the offender was charged with conspiracy to import a commercial quantity of cocaine contrary to s 233B(1)(ab) of the Customs Act 1901 (Cth) and a state offence. The Court accepted that the offender’s prospects of rehabilitation were very good, as evidenced by his past behaviour, especially his responsible attitude to his family and the community.10
In the federal drug case of R v Harrington  ACTCA 10, Murrell CJ stated at  that:
A person of prior good character deserves credit for living a generally positive lifestyle. In the context of past good character, it is usually possible to characterise an offence as being out of character. Past good character often suggests that an offender has good prospects of rehabilitation. While a long-standing drug addict cannot claim to be a person of prior good character in every respect, such a person may nevertheless be of good character in some respects. A person’s drug addiction may serve to explain how someone of otherwise good character has come to commit offences: for example, that it is not just a case of desire to make a commercial profit (emphasis added).
Prior good character is given less weight in child exploitation cases. Price J (Walton J agreeing) stated in DPP (Cth) v Beattie  NSWCCA 301 at  that:
Evidence of efforts made towards rehabilitation is important in the exercise of the sentencing discretion: s 16A(2) of the Crimes Act 1914 (Cth). However, it should not be given undue focus at the expense of other legitimate and important sentencing considerations including general deterrence and denunciation: Booth at . As in child pornography cases, less weight is given to prior good character as a mitigating factor (emphasis added).
5.2 Criminal Record
An offender’s criminal record may be relevant in measuring their prospects of rehabilitation, as well as being an independent sentencing factor by virtue of s 16A(2)(m) of the Crimes Act 1914 (Cth).
The likelihood that offenders will successfully rehabilitate themselves might be inferred from their criminal record, depending on the circumstances of the case. For example, the sentencing judge in Afiouny v The Queen  NSWCCA 23 was ‘concerned that the [offender’s] previous offending was of a similar kind’, so the offender’s prospects of rehabilitation were viewed ‘as somewhat guarded’.11
5.2.1 Repeat offenders
An offender’s prospects of rehabilitation may be considered to be low where they have a past history of recidivism.
In R v Holzberger  QCA 258, the offender sought leave to appeal the sentence imposed on the grounds that insufficient weight was given to his efforts to rehabilitate. The Court of Appeal noted that the offender had a significant criminal history and concluded at  that:
The judge was entitled to consider that those efforts of rehabilitation must be treated with some circumspection in the light of his persistent past recidivism.
Conversely in R v Hunt  NSWCCA 482, the lenient sentence granted to a 43 year old involved in serious repeat fraud was upheld. The Court of Appeal explored the notion of ‘wishful thinking’ and the process of evaluating rehabilitative prospects. Spigelman CJ (Dunford and Buddin JJ agreeing) dismissed the Crown appeal. The Court held at –:
[S]cepticism is often justified and the Court must avoid what Dunford J has described as “wishful thinking” in R v Govinden  NSWCCA 118; (1999) 106 A Crim R 314. In a judgment with which James J and Smart AJ agreed, his Honour said at :
“Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person standing for sentence is `at the cross-roads’, `has seen in the error of his ways’, `is at the turning point in his life’, or `has excellent prospects of rehabilitation’. Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity and the Court should be astute to recognise them.”
What Dunford J referred to as “wishful thinking”, I have referred to as the “triumph of hope over experience”. The idea is the same. I agree with his Honour. There are cases where persons have indicated a determination to change their previous life, which included a life of crime.
In this case the evidence of holding down a responsible job for 18 months, together with the evidence of success in drug rehabilitation, the significance of support from a close family, and his own responsibility for a young teenage daughter, are such as to indicate that this is a case in which a conclusion of this character is warranted.
5.2.2 First time offenders
Rehabilitation assumes particular importance in the case of first time offenders, and offenders who have not developed ‘settled criminal habits’.12
In Yardley v Betts (1979) 22 SASR 108, King CJ stated at –:
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits
[P]ublic concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations … The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so (emphasis added).13
For example, the offender in R v Jiao  NSWCCA 95 was convicted of dealing with money that it was reasonable to suspect was the proceeds of crime. The Court noted at  that the offender’s prospects of rehabilitation were good as it was her first offence and there was ‘no record of any other criminal behaviour on her part’.
5.3 Conduct between offending and sentence
An offender’s behaviour between offending and being sentenced may be relevant to measuring their prospects of rehabilitation. Courts have considered that an offender’s behaviour post offending is indicative of their prospects for rehabilitation. For example, in ACCC v Chubb Security Australia  FCA 1750, Bennett J stated at :
Section 16A(2)(n) of the Crimes Act requires consideration of the prospects of rehabilitation. … To my mind, that involves, inter alia, a consideration of corrective steps taken after the offences had been discovered.14
Courts have been reluctant to impose a sentence that will interfere with a rehabilitative process that has commenced after the commission of the offence.15
In the child exploitation material case of R v Freedman  NSWCCA 201, Bellew J (with Longergan J agreeing) accepted there would be some interruption to the offender’s rehabilitation if given a full time custodial sentence though the Court ultimately found that a term of imprisonment was still required.16
In Duncan v The Queen (1983) 9 A Crim R 354, 356, the Court stated:
[W]here, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.17
In the federal case of Director of Public Prosecutions (Cth) v Garside  VSCA 74, the offender had been on a community corrections order for over 6 months, had nearly completely the required 300 hours of voluntary work and had been found suitable for sex offence programs.18
Redlich and Beach JJA stated at  that:
The public interest will not be best served by removing the respondent from civil society and now imposing on him a term of imprisonment that will potentially disrupt his current rehabilitation which has been underway for a period in excess of seven months (emphasis added).
In the state sentencing case of R v McGaffin  SASCFC 22, the offender was convicted of the possession of child pornography at the age of 22. The offender had developed an addiction to viewing child pornography after first viewing such material at the age of 11. The Court found the offender had ‘actively addressed his problem by participating in a prolonged course of psychological treatment’ and held that it would be ‘inappropriate’ to impose a sentence ‘which would detract from that recovery’.19
Similarly, courts have been reluctant to impose a custodial sentence where doing so may undermine the offender’s employment prospects and familial relationships, when the offender has otherwise promising prospects of rehabilitation.20
In Whyte v DPP (Cth)  SASC 310, Doyle CJ noted at  that:
Ms Whyte is a woman of good character, whose prospects of rehabilitation are good. I am influenced by the fact that she has already obtained new employment, and is likely to lose that employment if imprisoned.
A similar approach has been taken where a custodial sentence may affect the ability of refugees to establish themselves in their place of asylum, though this has not been seen as frequently in recent years.21
See further Deportation
5.3.1 Rehabilitation while imprisoned: the “model prisoner”
Courts have taken into account that the offender has acted as the “model prisoner” while on remand. For example, in R v Lam  NSWCCA 162 at –, Sheller JA (Hidden J and Carruthers JA agreeing) emphasised evidence of rehabilitation when resentencing the applicant. There was evidence that the applicant was of ‘excellent behaviour’, had ‘worked in areas of a sensitive nature’, was ‘selected as one of eight inmates to participate in an alcohol and other drugs peer support programme’ and was enrolled in various courses. This indicated that:
[T]he applicant has prospects of rehabilitation which he is striving to achieve and will benefit from a longer period of parole.22
5.3.2 Relevance of restitution or reparation
The fact that an offender has made reparation for injuries, loss or damage suffered as a result of their offence may be relevant in measuring their prospects of rehabilitation, as well as being a listed federal sentencing factor: s 16A(2)(f)(i) of the Crimes Act 1914 (Cth).
Restitution or reparation payments may in some circumstances indicate the offender feels remorse or contrition, suggesting that there are good prospects of rehabilitation.23
For example, in R v Robertson (1984) 115 LSJS 51, King CJ stated at 53:
The [reparation] is important in another way because it shows that the appellant has made use of the time which he has had since he has been on bail to rehabilitate himself by working, and working hard, and making good use of the money which he has earned for the benefit of those whose money he had taken. This augurs well for his rehabilitation and gives this Court some ground for extending a leniency to him … (footnotes omitted).24
King CJ’s comments were applied in the federal sentencing case of Twigden v Centrelink  SASC 154. Gray J stated at :
[T]he defendant’s offer of reparation may be characterised as late, it is still relevant and significant. The fact of full restitution demonstrates that the defendant has accepted responsibility for her actions and her willingness to make amends. That acceptance of responsibility further indicates the progress made by the defendant in her rehabilitation. Furthermore, the reparation is significant as it recompenses in full the loss suffered by Centrelink (emphasis added).
Rehabilitation is a principal consideration in the sentencing of young offenders both at common law and under the Crimes Act 1914 (Cth).25
In Hoang v The Queen  VSCA 86, Priest and McLeish JJA stated this is because ‘a youthful offender may be more amenable to rehabilitation than a more mature offender’ and that ‘incarceration in an adult prison is calculated to impede, rather than advance, a youthful offender’s rehabilitation’.26
This is a longstanding principle. For example, in Lahey v Sanderson  Tas SR 17, Bunbury CJ stated at :
The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has … been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed …27
Similarly, in the oft-cited case of R v Mills  VSC 241, Batt JA (Phillips CJ and Charles JA agreeing) stated:
In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.) (emphasis added).
and further clarified these common law principles at –:
[C]ourts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending…
[C]ourts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community (footnotes omitted; emphasis added).
In Bergman v The Queen  VSCA 148, Maxwell P and Kaye JA (McLeish JA agreeing) stated at :
For the reasons we have given, the applicant’s moral culpability was significantly reduced by reason of his disadvantaged upbringing and his youth. Those considerations in turn made his rehabilitation a matter of the highest importance. Otherwise the cycle of offending will almost certainly continue, to the great detriment of the community and of the applicant himself.
For the definition of “youth”, see further Age.
5.4.1 Rehabilitation and seriousness of the criminality
The importance of rehabilitation of youthful offenders may diminish where the offence is of a very serious nature.29
For example, in the state sentencing case of DPP v Lawrence  VSCA 154, Batt JA noted at :
With an offence as serious as intentionally causing serious injury … the offender’s youthfulness and rehabilitation, achieved and prospective … were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations … particularly where … the perpetrator has been given previous chances to control his aggressive habits (emphasis added).
Good prospects of rehabilitation may be given less weight where the offence is of a sufficiently serious nature to warrant emphasising general and specific deterrence. In R v Kassir  NSWCCA 88, the Court allowed an appeal against the sentence imposed for aiding and abetting the importation of a commercial quantity of a border controlled drug, contrary to s 307(1) of the Criminal Code (Cth) . Bathurst CJ (Fullerton and Hulme JJ) noted at :
The offence which carried a maximum term of life imprisonment was said to be within the mid-range of seriousness. It involved setting up a process which enabled a very significant quantity of drugs to be imported into the country, the release of which into the community would have serious consequences. Notwithstanding the respondent’s good character and prospects of rehabilitation, considerations of general and specific deterrence demand that a more substantial sentence be imposed (emphasis added).
5.5 Terrorism Offences
Terrorism offences are an example of where the prospects of the offender’s rehabilitation are ‘given substantially less weight than in other forms of offending’ due to the seriousness of offending.30
Price J in Lodhi v The Queen  NSWCCA 360 stated at  that:
Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.31
In Director of Public Prosecutions (Cth) v MHK  VSCA 157, the 17 year old offender pleaded guilty to the offence of doing acts in preparation for, or planning, a terrorist act contrary to s 101.6(1) of the Criminal Code (Cth). Warren CJ, Weinberg and Kaye JJA found that rehabilitation will carry less significance where the offender lacks contrition about the terrorist offence and where the rehabilitation was undergone in an environment where the offender was sheltered from the kinds of influences that initially impelled him to engage in the offending conduct.32
Evidence that the offender has not changed their fundamentalist views significantly weakens the offender’s prospects of rehabilitation.33
In the absence of evidence of contrition and de‑radicalisation, positive indications of an offender’s prospects that may arise from their family support, youth or prior good character may not be given much weight.34
Warren CJ, Weinberg and Kaye JJA stated in DPP (Cth) v Besim  VSCA 158 at  that:
We also reiterate that entirely separate from general deterrence, sentencing for terrorist offences must give full weight to protection of the community, including by way of incapacitation of the offender. This was not a case in which the sentencing judge could properly have regarded rehabilitation as some form of assurance of community protection, since there was no basis for any finding that the respondent had changed his views (emphasis added).35
[T]he question whether an offender has withdrawn from the beliefs which motivated his terrorist offence has consistently been treated as centrally important to determining prospects of rehabilitation, the need to protect the community and, hence, the appropriate level of sentence.
In his conversations with the undercover operatives the offender repeatedly referred to an “obligation” to carry out an attack and spoke of killing unbelievers as a duty of his religion, as he understands it. It is now submitted on his behalf that he has taken steps towards rehabilitation and is willing to continue this. That cannot be judged without ascertaining where the ideas came from and considering what evidence there may be that he has rejected those sources. For the Court to have any confidence in his rehabilitation there would at least have to be evidence that he has opened his mind to disavowal of those verses of the Quran which he said provided his “motivation” for religious violence. The question is, can he be persuaded to a view of his religion which is compatible with civilised conduct in a community of mixed faiths and which involves respect for the existing framework of democratic government in this country? (footnotes omitted; emphasis added).
Admissions may not contribute to a positive finding of prospects of rehabilitation if the admissions were made because the offender was proud of their conduct.36
An offender’s prospects of rehabilitation may also be assessed as limited where an offender acts deceptively or manipulatively. In R v Khan (No 11)  NSWSC 594, the offender was sentenced for engaging in a terrorist act contrary to s 101.1(1) of the Criminal Code (Cth). Bellew J noted at –:
Necessarily, the offender’s prospects of rehabilitation are dependent, in large measure, upon a complete and unconditional abandonment of the ideology he held when he attacked Mr Greenhalgh. I am unable to accept the submission that the offender has reached the point where he is substantially rehabilitated…
If the offender maintains his current stated mindset, then his prospects of rehabilitation may be favourable. However, I am not persuaded that he will do so. At its highest, his evidence should be regarded as some preliminary indication of a stepping away from his previously held beliefs. For the same reasons, and whilst the offender’s expressions of contrition were unequivocal, I remain sceptical about their veracity. Time will tell whether they prove to be genuine. In any event, and although issues of rehabilitation require consideration, they are to be afforded less weight in matters of this nature (emphasis added).
In R v Alou (No 4)  NSWSC 221, the offender was sentenced to one count of aiding, abetting, counselling or procuring the commission of a terrorist act contrary to ss 11.2(1) and 101.1(1) of the Criminal Code (Cth). Johnson J noted at , –:
The Offender refused to stand at the commencement and conclusion of each court session during the hearing. Senior Counsel for the Offender informed the Court that his client was adopting this stance because of his religious beliefs…The point of this, of course, is not any personal concern that I may have as a Judge. Rather, the issue is whether the Offender, as an Australian citizen who was before one of the Courts of the land, was prepared to take a step which all members of the community are expected to do as a mark of their acceptance of the law applying in our democratic society through one of the arms of government, the judicial branch. The Offender has an entrenched approach which extends to his attitude towards the Courts. A mindset of that type does not assist the Offender with respect to prospects of rehabilitation. (emphasis added)
However, Morrison JA (McMurdo JA and Bond J agreeing) held in R v Succarieh; R v Succarieh; Ex parte DPP (Cth)  QCA 85 that an absence of renunciation does not necessarily adversely affect prospects of rehabilitation. Morrison JA stated at  that:
I should not be taken as accepting the proposition (advanced by the Crown) that absent a renunciation of the previous views, that prospects of rehabilitation were adversely affected. As was put in oral submissions, one would really look to see whether fundamentalist religious views had been ameliorated to the point where it was recognised that they could no longer govern one’s obedience to local domestic law. That, in effect, is what Mr Succarieh said in his letter to the learned sentencing judge (emphasis added).
5.6 Corporate Offenders
Courts have considered corporate offenders’ future prospects of rehabilitation. In CDPP v Wallenius Wilhemsen Ocean As  FCA 52, the Federal Court sentenced an offender for one count of giving effect to a cartel provision offence contrary to s 44ZZRG(1) (now s 45AG(1)) of the Competition and Consumer Act 2010 (Cth). Wigney J noted at :
It may be accepted that WWO has taken relevant steps towards rehabilitating itself, or has at the very least demonstrated reasonable prospects of rehabilitation. There is unchallenged evidence that since its offending behaviour was detected, WWO has established training programs, and implemented other changes, systems and practices with a view to preventing any re-offending. To that extent, at least, it has demonstrated a desire to change its corporate compliance culture. It has endeavoured to re-model its corporate thinking and behaviour so that it may re-establish itself as a good corporate citizen.38
5.7 Whether Offender has Engaged in Treatment
An offender’s future prospects of rehabilitation may be improved by treatment. This may include treatment to address drug and alcohol dependence, gambling addiction, or mental illness.
5.7.1 Drug and alcohol dependence
A court may consider an offender’s prospects of rehabilitation to be high where the offender has sought treatment for drug and alcohol dependence. An offender whose addiction has been treated may have a lower risk of recidivism in the long-term.39” target=”_blank” rel=”noopener” title=”R v Marcus  VSCA 155,”>R v Marcus  VSCA 155,  (Winneke P, Batt and Nettle JA agreeing).[/ref]
For example, in 40” target=”_blank” rel=”noopener” title=”R v Marcus  VSCA 155″>R v Marcus  VSCA 155, the offender was considered to have good prospects of rehabilitation as, among other mitigating factors, he had successfully rid himself of cocaine dependence.41
Similarly in R v De Groot Van Embden  NSWCCA 156, Carruthers JA considered the offender’s prospects of rehabilitation were good as there was evidence he had taken steps to overcome his drug and alcohol abuse.42
The sentencing judge in Chen v The Queen  NSWCCA 157 concluded at  that:Chen v The Queen  NSWCCA 157 concluded at  that:
[T]he applicant’s prospects of rehabilitation were “above average”, due to the presence of an intimate partner, future employment, support from his parents, the absence of an extensive criminal history, the proposition that the applicant was not anti-social (no doubt apart from his repeated offending with regard to prohibited drugs), and the view that his offending could be “explained by some psychological factors and a substance use disorder, which are treatable” (emphasis added).
However, it has been recognised that drug addiction may be a ‘counter-indication’ to prospects of rehabilitation. As Doyle CJ noted in the state sentencing case of R v Proom  SASC 88, at :
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.
5.7.2 Gambling addiction
In R v Berry  VSCA 60, the offender had good prospects for rehabilitation as he had voluntarily broken his gambling addiction, and then ceased to offend, and continued to abstain from gambling between his detection and conviction.43
5.7.3 Mental illness
Treatment for mental illness is relevant to an offender’s prospects of rehabilitation. For example, it may bear favourably on prospects of rehabilitation where an offender has demonstrated a commitment to taking medication to control the effects of their mental illness.45
In R v Black  ACTSC 4, the offender consented to psychiatric hospitalisation if they became unwell and unable to make decisions due to mental illness, as well as consenting to medication regime administered via depot injection. In referring to the report of the forensic psychologist, Loukas-Karlsson J noted:
The psychologist reported the offender’s engagement as meaningful and suggest the offender to understand that avoiding further decline in his mental health and associated risk of reoffending depended largely on his continued treatment and medication for his diagnosed condition… The offender’s treatment with his psychologist was referred to as ongoing. The offender’s motivation for treatment was suggested to be focused on limiting his likelihood of further offending via maintaining his current treatment regime.46
5.7.4 Child exploitation
The fact that an offender has sought, or has indicated a willingness to participate in, treatment in relation to offending involving child exploitation has been taken into account as evidence of prospects of rehabilitation.47
The fact that an offender has not sought treatment or does not demonstrate awareness of the seriousness of their actions has been taken into account as evidence of poor prospects of rehabilitation.48
For example, in R v Harvey  ACTSC 393 the Court sentenced a 22 year old first-time offender for child exploitation offences, including one count of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth). Walmsley AJ noted the opinions of a forensic psychiatrist and a psychologist who had seen the offender, and stated at :
That the offender pleaded guilty and assisted the police when they spoke to him at his home and subsequently submitted himself to examination by a forensic psychiatrist and ongoing treatment by a psychologist, suggests to me that the offender has reasonably good prospects of rehabilitation.
In Chenhall v The Queen  VSCA 175, the Court resentenced a second-time offender for child exploitation offences who had entered a residential drug treatment facility for 14 months and commenced a sex offender treatment program. The Court noted at , :
[E]ncouraging the applicant’s rehabilitation remains relevant to this resentencing exercise, and indeed the long-term protection of the community from this applicant requires attention to this aspect. It cannot be gainsaid that the applicant has made apparently sincere and protracted efforts to rehabilitate, although this is far from complete, and he remains a ‘high risk of recidivism’… Whilst the residential rehabilitation program was largely directed to the applicant’s drug dependency, treating that was an intrinsic part of his overall rehabilitation.
In R v Porte  NSWCCA 174, the Court cautioned against undue focus on treatment when sentencing for offences involving child exploitation. Johnson J (Leeming JA and Beech-Jones J agreeing) stated at :
A common feature on sentence for this class of offence is the tender of material (and often substantial material) concerning steps taken with respect to counselling and treatment in aid of rehabilitation. Evidence of this type is important to the exercise of the sentencing discretion: s.16A(2)(n) Crimes Act 1914 (Cth); s.21A(3)(h) Crimes (Sentencing Procedure) Act 1999 (NSW). However, it is important to keep in mind the further observations of Simpson J in R v Booth  NSWCCA 89 at :
“Examination of the Remarks on Sentence satisfies me that undue focus was placed upon the respondent’s need for counselling at the expense of other legitimate and important sentencing considerations. While I do not dissent from the importance of achievingR v Logue  ACTSC 115 prevention of further offences by such means, it is not the only matter to be considered. As I have made clear, the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. So also is denunciation of those who engage in this callous and predatory crime.”49
Pure clinical assessments of risk have helped to shape judicial views on the likelihood or possibility of rehabilitation.
For example, in R v Grehan  QCA 42, the Court considered a Crown appeal against sentences imposed for child exploitation offences, including one count of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth). The Court referred to the views of a clinical psychologist on the offender’s prospects of rehabilitation, stating at :
Mr Hatzipetrou [the clinical psychologist] had this to say with respect to the applicant’s prospect of rehabilitation:
“(The applicant) presented with insight into the seriousness of these actions and appeared motivated to continue to address these deviant behaviours and thought processes. He will benefit from participation in … programs and treatments. … the risk of recidivism is likely to be reduced. … (the applicant) possesses the intellectual capacity and moral reasoning to benefit from the recommended treatment strategies. Coupled with the ongoing employment or structured day activity, these steps may provide protective factors against future offending. … He has access to a network of social supports and participates in treatment for sexual deviant behaviour and mental illness. … these present … significant protective factors. … (the applicant) demonstrated appropriate remorse … and … appeared to be highly distressed about the potential impact of the offences upon his family. Importantly, (the applicant) appeared to be disappointed and remorseful about his own behaviour and he appeared to make a significant commitment to changing his behaviour.”50
Courts have also considered, though not necessarily accepted, pure actuarial risk assessments when determining an offender’s prospects of rehabilitation. In addition, courts have considered ‘structured professional judgment, a different type of risk assessment often used by psychologists and psychiatrists. This allows the clinician to qualify the risk estimates produced as a result of the actuarial scoring. These final adjustments are based on clinical assessments of the assessed individuals via a clinical interview.
In the following examples it is unclear whether the Court is relying on a pure actuarial risk assessment or ‘structured professional judgment’, but it is clear that pure clinical judgment is not being used. In R v De Leeuw  NSWCCA 183, the Court considered an appeal against sentences imposed for child exploitation offences, including three counts of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth). Johnson J (Ward JA and Garling J agreeing) noted at :
An actuarial risk assessment indicated that the Respondent was a low/medium risk of reoffending. The presentence report and ICO [Intensive Correction Order] assessment report indicated that consultation with a Department of Corrective Services psychologist suggested that the Respondent fell into the low-risk category of reoffending. Dr Nielssen expressed a similar opinion.
In Fedele v The Queen  NSWCCA 286, the Court allowed an appeal against sentences imposed for child exploitation offences, including one count of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth). Hidden J (Davies J agreeing) noted the offender’s strong prospects of rehabilitation and directed that the substituted sentences be served by way of an Intensive Correction Order.51
In assessing the prospects of rehabilitation, the Court considered a risk assessment, referring to both static factors (factors that do not vary over time and context, e.g. past history of offending) and dynamic factors (factors that vary over time and context, e.g. available social support) that indicated the offender had a low risk of re-offending at –:
Mr Sheehan, well-known and respected in the area of forensic psychology, considered the danger of the applicant re-offending by reference to static and dynamic risk factors and concluded that he “has almost none of the characteristics associated with re-offending as identified in the literature.”
In a supplementary report Mr Sheehan recorded that the applicant had attended 8 treatment sessions between May and July 2015. It is sufficient to say that he concluded that the applicant had “participated well in the treatment process, particularly given that he had only 8 sessions to cover a broad range of difficult issues.” Mr Sheehan continued:
“He has made a positive start to his treatment journey, and would appear to have a solid grasp on the range of behaviours that have contributed as background factors to the index offences. In my expert opinion, all evidence suggests that Mr Fedele’s risk of re-offending is low” (emphasis added).
In R v Barber  ACTSC 78, Murrell CJ cautioned against overreliance on pure actuarial risk assessments and structured professional judgment assessments, stating at :
While an offender’s prospects for rehabilitation are always a very relevant consideration, for offending of this type, it is difficult to reliably assess prospects. Risk level was assessed by Ms Bollinger and by the author of the pre-sentence report, but I do not place substantial weight on those assessments, as such assessments are notoriously unreliable. In this case, the fact that the offender committed further offences while on conditional liberty suggests that his prospects of rehabilitation are quite uncertain. On the other hand, he would appear to be an intelligent person who, contrary to comments made in some of the reports, does display significant insight into his situation. He fully appreciates that his conduct is morally wrong, and he has sought and is willing to accept treatment. (emphasis added)
5.7.5 Success of treatment/Relapse
An offender may be given credit for efforts to obtain treatment, even though that treatment has been unsuccessful. For example in R v Thorn  ACTSC 218, the offender was treated as having good prospects of rehabilitation where whilst on bail, he had undergone treatment and then suffered a minor relapse. Murrell CJ stated that she was ‘not overly concerned about the relapse’ in circumstances where the offender had taken important steps towards rehabilitation and demonstrated an ability to remain drug free for a number of years in the past.52
5.7.6 Sentence cannot be prolonged to encourage treatment
In sentencing, the punishment in the particular case should be proportionate to the offence. It is not open to the Court to punish an offender more, because he is ill, and because it is considered to be for his own benefit to try to cure him. The gravity of the offence must be the first and paramount consideration.
Similarly, a court cannot increase the length of the non-parole period on the basis that the offender will benefit from treatment in prison. In Muldrock v The Queen  HCA 39, the High Court stated at :
It was an error [for the Court of Criminal Appeal] to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in full-time custody. Full-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody. Furthermore, the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will continue to be offered during the term of the sentence (footnotes omitted).
Education may improve an offender’s prospects of rehabilitation.
Courts have given credit for efforts to obtain:
- English language education54
- High school education55
- tertiary education56
- postgraduate qualifications57
For example, McCallum J (Bathurst CJ and Hoeben CJ agreeing) found the offender in Voronov v The Queen  NSWCCA 241 to be ‘a good prisoner’ at  as:
He has undertaken a number of courses whilst in prison including commencing the HSC (it is not clear from the records whether that has yet been completed successfully). He has incurred no adverse reports and is described favourably in the case notes. As submitted on the applicant’s behalf, that material suggests that the applicant has good prospects of rehabilitation (emphasis added).
5.9 Support Networks/Relationships
A court may consider the offender’s familial network or support networks in examining their prospects of rehabilitation.
For example, in R v Pham  NSWCCA 314,  Hall J of the New South Wales Court of Criminal Appeal commented that the defendant enjoyed reasonable prospects of rehabilitation, particularly with the support of his family. Similarly in Speer v The Queen  NSWCCA 118, the support of the offender’s family was relevant in determining the offender’s prospects of rehabilitation.58
In R v Constant  SASCFC 87, motherhood had significant weight for the offender prospects of rehabilitation. Nicholson, Lovell and Hinton JJ held at ,  that:
The applicant’s rehabilitation, in the main has been achieved through motherhood and, in our view, the Judge failed to consider the impact of removal of her newborn on that continuing rehabilitation.
[I]t is harsh at any time to separate a newborn child and its mother, but here where motherhood has proven to be the avenue through which rehabilitation has been achieved and in all likelihood will be maintained, it is not only all the more harsh but counterintuitive.
5.10 Impact of Delay
Courts have accepted that delay not attributable to the offender can interrupt their rehabilitation. In Aboud v The Queen  NSWCCA 140, Harrison J (with MacFarlan JA and Johnson J agreeing) stated at  that:
What is more to the point is whether or not Mr Aboud was during that time left in a state of what has been called “uncertain suspense”. That expression originally derives from the remarks of Street CJ in R v Todd  2 NSWLR 517at 519F and referred to by Bellew J in Sabra v R  NSWCCA 38 at  as follows:
“Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given to such delay in the sentencing process will obviously be greater” (emphasis added).
6. Rehabilitative Sanctions
Rehabilitation is an important consideration in determining the length of a non-parole period. In Deakin v The Queen  HCA 31, the High Court stated at :
The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.59
A judge may impose a sentence with a rehabilitative purpose by fixing a lower non-parole period than would otherwise be imposed. In R v Houston  VicSC 486, Starke J stated at 399:
However, when one turns to the rehabilitation of the prisoner himself which is always, of course, a matter of concern for the court, it seems to me that one can give relief to a prisoner who appears genuinely to be endeavouring to rehabilitate himself by fixing a shorter period as the minimum term than the one that might otherwise have been imposed (emphasis added).
In Lam v The Queen  WASCA 114, McLure P (Buss and Newnes JJA agreeing) stated at :
[B]ecause a non-parole period is a mitigation of punishment in favour of rehabilitation, positive sentencing factors in favour of rehabilitation in a particular case can reduce not only the length of the head sentence but also lower the proportion that the non-parole period bears to the head sentence.
For example, in Lam v The Queen  NSWCCA 87, the sentencing judge had noted that a longer than usual period of supervision after release was justified by the ‘significant need for rehabilitation … with the support of the Probation and Parole Service, as well as ongoing psychological guidance, if he was not to relapse into further offending’.60
However, as noted in Lam v The Queen  WASCA 114, :
There is a limit below which the non-parole period cannot go. It cannot be reduced below the minimum that the justice of the case requires in order to satisfy all of the other sentencing objectives, including punishment, retribution and general deterrence.
- R v Bugeja  NSWCCA 196,  (Adams J).
- See also R v Valentini  FCA 133 where the Court remarked that rehabilitation attempts to ensure the sentence imposed will be consistent ‘with the offender’s returning to society as a contributing member’.
- Applied in the federal sentencing case of Kovacevic v Mills  SASC 106,  (Doyle CJ, Mullighan, Bieby and Martin JJ).
- Cited with approval in the federal sentencing decisions of Tuncks v Chief Executive Officer of Customs  SASC 408,  (White J); R v Pogson  NSWCCA 225,  (McClellan CJ at CL and Johnson J).
- R v Boulden  NSWSC 1274,  (Whealy J).
- R v Williams  NSWSC 315,  (Wood CJ at CL).
- See, eg, R v Fodera  NSWSC 1194, .
- R v Houweling  NSWDC 293, ; CDPP v Prowse  VCC 1761, .
- R v Hraichie (No 3)  NSWSC 973, .
- See also R v Cohen  VSC 309 (young Jewish man convicted of importing a trafficable quantity of heroin whose religious background and military service were relevant to his prospects of rehabilitation).
- Afiouny v The Queen  NSWCCA 23, .
- Kovacevic v Mills  SASC 106,  (Doyle CJ, Mullighan, Bleby and Martin JJ). See, eg, R v Campos  NSWCCA 339,  (per James J, Meagher JA and Kirby J agreeing).
- Applied in the federal sentencing case of Kovacevic v Mills  SASC 106,  (Doyle CJ, Mullighan, Bleby and Martin JJ).
- Justice Bennett noted favourably that after the commission of the offence, Chubb Security had taken positive steps to improve compliance procedures and compensate those harmed by its criminal behaviour. New systems and a culture of compliance demonstrated that Chubb Security had rehabilitated itself. See ACCC v Chubb Security Australia  FCA 1750, .
- Duncan v The Queen (1983) 9 A Crim R 354, 356.
- R v Freeman  NSWCCA 201, .
- The offender in Duncan v The Queen (1983) 9 A Crim R 354 was convicted of 14 offences against the Bankruptcy Act 1966 (Cth) after a three year delay in bringing the charges, despite authorities being aware that the appellant had committed the offences around the time of their commission. The offender had re-established himself in the interim period and incurred financial liabilities which could not be met if imprisoned. See also Scook v The Queen  WASCA 114,  (McLure JA),  (Buss JA).
- Director of Public Prosecutions (Cth) v Garside  VSCA 74, .
- R v McGaffin  SASCFC 22, . See also Green v Police  SASC 119,  (Nicholson J).
- See Kovacevic v Mills  SASC 106,  (Doyle CJ, Mullighan, Bleby and Martin JJ).
- See Elder v Said  SASC 286 (Gray J); Elder v Shojaee  SASC 285 (Gray J); Shillabeer v Hussain  SASC 198 (Gray J).
- R v Lam  NSWCCA 162, . See also R v Simon  NSWCCA 147, – (Sheller JA); R v Roche  WACA 4,  (Murray ACJ).
- R v Robertson (1984) 115 LSJS 51.
- Applied in the federal sentencing cases of Kovacevic v Mills  SASC 106,  (Doyle CJ, Mullighan, Bleby and Martin JJ); Twigden v Centrelink  SASC 154, – (Gray J).
- See, eg, R v Evans  NTCCA 9,; R v Campos  NSWCCA 339, ; R v Lawson (1997) 98 A Crim R 463, – (Hunt CJ at CL) for emphasis on rehabilitation in the federal context.
- Hoang v The Queen  VSCA 86, ; IM v The Queen  NSWCCA 107, .
- Applied in the federal sentencing case of R v Lovi  QCA 24, . See also R v Mills  VSC 241.
- See also R v Curtis  ACTSC 291.
- Azzopardi v The Queen  VSCA 372, (Redlich JA, Coghlan and Macaulay JJA); IE v The Queen  NSWCCA 70,  (Latham J, Spigelman CJ and Hulme J agreeing).
- Director of Public Prosecutions (Cth) v MHK  VSCA 157, .
- Affirmed in Director of Public Prosecutions (Cth) v MHK  VSCA 157, ; DPP (Cth) v Besim  VSCA 158, .
- Director of Public Prosecutions (Cth) v MHK  VSCA 157, .
- R v Elmir (No 3)  NSWSC 1040,–; Atai v The Queen  NSWCCA 302 .
- R v Dakkak  NSWSC 1806,  (Hamill J).
- R v Mohamed  VSC 498, – (Tinney J). See also R v Brookman  VSC 367 ,  (Dixon J) (foreign incursion offence).
- R v Shoma  VSC 367,  (Taylor J).
- See also R v Dirani (No 34)  NSWSC 1005, – (Johnson J); R v Azari (No 12)  NSWSC 314,  (Adams J); R v Dirani (No 34)  NSWSC 1005, – (Johnson J).
- See also CDPP v Kawasaki Kisen Kaisha Ltd  FCA 1170, ; CDPP v Nippon Yusen Kabushiki Kaisha  FCA 876, .
- R v Marcus  VSCA 155,  (Winneke P, Batt and Nettle JA agreeing).
- R v De Groot Van Embden  NSWCCA 156,, . See also R v Thorn  ACTSC 218, –,  (Murrell CJ); R v Tang  3 VR 508 (Tadgell and Batt JJA, Vincent AJA).
- R v Berry  VSCA 60,  (Habersberger AJA, Vincent and Nettle JA agreeing). See also R v Perkins  VSCA 132,  (Phillips JA).
- DPP (Cth) v Golic  VSCA 355,  (Neave, Whelan and Beach JJA).
- R v JK  ACTSC 140, , ,  (Burns J). See also the state sentencing cases of R v Aggelidis  VSC 445; R v Oznek  VSC 192.
- See also DPP (Cth) v Boyles  VSCA 267, .
- R v Black  ACTSC 4, .
- R v KB  ACTSC 136,  (Loukas-Karlsson J); R v Johnston  ACTSC 46,  (Mossop J); DPP (Cth) v Gorniakowski  VCC 743, ; R v Champness  ACTSC 277, .
- See, eg, Baden v The Queen  NSWCCA 23,  (Bell P) (Walton and Johnson JJ agreeing); DPP v Gardiner  VCC 681,  (Lyon J).
- See also R v De Leeuw  NSWCCA 183,  (Johnson J, Ward JA and Garling J agreeing); R v Logue  ACTSC 115,  (Elkaim J).
- Fedele v The Queen  NSWCCA 286,  (Hidden J, Davies J agreeing).
- See also R v De Leeuw  NSWCCA 183,  (Johnson J, Ward JA and Garling J agreeing).
- R v Thorn  ACTSC 218, . See also Burman v Commonwealth Services Delivery Agency  SASC 224, (Gray J).
- Affirmed in the state sentencing case Boulton v The Queen  VSCA 342 .
- R v Tang  3 VR 508 (Tadgell, Batt JA, Vincent AJA).
- Voronov v The Queen  NSWCCA 241, ; IM v The Queen  NSWCCA 107, .
- McPherson v Commonwealth Services Delivery Agency  SASC 187, ; R v Zapata  VSC 486.
- R v Simon  NSWCCA 147, – (Sheller JA, Hidden and Carruthers AJ agreeing).
- See also Burman v Commonwealth Delivery Agency  SASC 224, ; Atanackovic v The Queen  VSCA 136, ; R v Honeyman  ACTSC 2, , ,  (Penfold J).
- Applied in the federal sentencing case of Hili v The Queen; Jones v The Queen  HCA 45,  (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
- Lam v The Queen  NSWCCA 87,  (Schmidt J, Meagher JA and Bellew J agreeing). The finding of the sentencing judge was not disturbed on appeal.