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General Sentencing Principles

The content on this page was last reviewed on 21 August 2014.

Recent legislative amendments
Minimum penalties: The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) inserts a new s 16AAA which prescribes mandatory minimum penalties for the child sexual abuse offences contrary to the Criminal Code (Cth) ss 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.10, 272.11, 272.18, 272.19, 272.7, 471.22, 474.23A, 474.24A, 474.25A, 474.25A(1), 474.25A(2), 474.25B.

It also inserts s 16AAB, which prescribes minimum penalties for a second or subsequent child sexual abuse offence, and s 16AAC which provides for circumstances in which a court may impose a sentence of less than the prescribed mandatory minimum.
*Guidance from this amendment has not yet been incorporated into the commentary

1. Overview

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

1.1 Section 16A

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

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

1.2 Section 16B

Section 16B is the legislative recognition of the Totality Principle. The section requires a court to have regard to any sentence already imposed or liable to be served by the federal offender.5

1.3 Section 16C

Section 16C requires a court to take into account the financial circumstances of a federal offender before imposing a fine.6

1.4 Section 16D

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

1.5 Section 16AA

1.5 Section 16AA

Section 16AA prohibits a court from taking customary law or cultural practice into account to either mitigate or aggravate the seriousness of criminal behaviour when sentencing for an offence against a law of the Northern Territory.3

1.6 Section 16AB

Section 16AB sets out certain matters relating to Victim Impact Statements which have been made known to the court as described in s 16A(2)(ea).4

1.7 Section 16BA

Section 16BA allows a court, in passing sentence on a person convicted of a federal offence, to take other offences into account and sets out the federal scheme that governs this process.7

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2. Additional general sentencing principles

The rule against double punishment and the one transaction principle are two common law general sentencing principles.8 Unlike the totality principle in s 16B, these two principles are not expressly set out in Division 2 of the Crimes Act 1914 (Cth). However the rule against double punishment and the one transaction principle are important sentencing principles that apply to the sentencing of federal offenders.

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  1. For CSD commentary, see Sentencing Factors.   
  2. For CSD commentary, see Indigenous Offenders and Cultural Background. 
  3. For CSD commentary, see Cultural Background.  
  4. For CSD commentary, see Victim Impact Statements.  
  5. For CSD commentary, see Totality Principle. 
  6. For CSD commentary, see Fines. 
  7. For CSD commentary, see Taking into Account Other Offences. 
  8. For CSD commentary, see Double Punishment and One Transaction Rule.