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Part IB: Sentencing of Federal Offenders

The content on this page was last reviewed on 4 May 2012.

1. Overview

In Wong v The Queen [2001] HCA 64 , [71] Gaudron, Gummow and Hayne JJ emphasised that judges sentencing federal offenders must give effect to the legislative command of Pt IB of the Crimes Act 1914 (Cth).

See also R v Walters [2001] NSWSC 640, where Sully J remarked that a federal offender is:

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

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

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

1.1 Not a code

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

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2. Definition of a ‘federal offender’

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

Section 16(1)

“federal offence” means an offence against the law of the Commonwealth

“federal offender” means a person convicted of a federal offence.

“federal sentence” means a sentence imposed for a federal offence.

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3. Trends in federal sentencing

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

In 1989, The Minister for Justice Senator Tate noted that federal offenders tended to be importers of drugs or person who had committed fraud against the Commonwealth, in particular tax and social security fraud.3

The range of offences against the Commonwealth has expanded in recent years. As at 2006, offences against the Commonwealth include terrorism, people trafficking, sexual servitude and slavery, cybercrime, breaches of aviation safety and exploitation of fisheries resources.

While fraud on the Commonwealth and the importation of drugs remain two of the most commonly prosecuted offences by the Commonwealth DPP, other offences include ‘money laundering, offences against corporate law, people smuggling, sexual servitude, and terrorism.’ 4

Despite the low numbers of federal offenders in custody, 98% of the cases prosecuted by the Commonwealth DPP in both 2004 and 2005 resulted in a conviction.5  A high proportion of these were a result of a guilty plea by the federal offenders:

Guilty pleas of those convicted of summary offences 95%
Guilty pleas of those convicted of indictable offences 78%

(Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [1.56]).

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