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Welcome to the COMMONWEALTH SENTENCING DATABASE

Sentencing Factors

The content on this page was last reviewed on 20 October 2014.

Recent cases alert
Zaky v The Queen [2017] NSWCCA 141 — misstatement of maximum penalty by sentencing judge not a material error requiring resentence.
DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42 — application of Bui v DPP (Cth) [2012] HCA 1 where not open to the court to treat ‘double jeopardy’ as a relevant consideration when resentencing for a federal offence.
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.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Section 16A of the Crimes Act 1914 (Cth) sets out matters to which the court is to have regard when passing sentence upon a federal offender.

In Wong v The Queen [2001] HCA 64, Gaudron, Gummow and Hayne JJ commented on the operation of ss 16A(1) and (2) of the Crimes Act 1914 (Cth). Their Honours said at [71]:

The sentencer must, therefore, “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”: s 16A(1). Standing alone, the reference to imposing “a sentence … of a severity appropriate in all the circumstances of the offence” might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender or the offender’s prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only “the nature and circumstances of the offence” but also matters such as the degree to which the offender has shown contrition, the offender’s “character, antecedents, cultural background [now repealed], age, means and physical or mental condition” and “the need to ensure that the person is adequately punished for the offence”. What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence (emphasis added).

2. Section 16A and common law sentencing principles

In DPP (Cth) v El Karhani (1990) 51 A Crim R 123 Kirby P, Campbell and Newman JJ remarked at 130:

[s] 16A(1) imposes on the Court the duty, which is its primary obligation, to ensure that the sentence or order “is of a severity appropriate in all the circumstances of the offence”.It is by this duty that the general principles of sentencing law are imported into the function of a court imposing a sentence on a federal offender convicted of the offence. What will be “appropriate” will depend, in part, upon a consideration of fundamental notions, such as that of general deterrence.

Note: prior to November 2015, general deterrence was not specifically recognised in s 16A. 1 General deterrence is now listed as a relevant factor in s 16A(2)(ja).

In Johnson v The Queen [2004] HCA 15, Gummow, Callinan and Heydon JJ noted at [15]:

That common law principles may apply follows from the use of the words “of a severity appropriate in all the circumstances of the offence … ” in s 16A(1) and of the introductory words “In addition to any other matters … ” to s 16A(2) of the Act.

In Bui v DPP (Cth) [2012] HCA 1 the High Court again noted that  s 16A accommodated a number of common law sentencing principles, stating at [18]:

Section 16A applies of its own force to the sentencing of persons convicted of offences against Commonwealth laws. In Johnson v The Queen and in Hili v The Queen it was observed that, on its proper construction, s 16A accommodates the application of some common law principles of sentencing. The section has been held to accommodate principles of general deterrence [Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 378], proportionality [Wong v The Queen [2001] HCA 64], and totality [Johnson v The Queen [2004] HCA 15] …

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3. Principle of double jeopardy not accommodated within s 16A

In Bui v DPP (Cth) [2012] HCA 1 the High Court held that s 16A does not accommodate the principle of double jeopardy in relation to a successful Commonwealth appeal against a federal sentence. The Court held at [19]–[20]:

Section 16A does not accommodate the “principle” which the appellant seeks to introduce

 

Moreover, the terms of s 16A, in particular those of sub-s (2), are addressed to matters affecting sentencing which are to be applied by all courts exercising federal jurisdiction upon sentencing… No warrant is therefore provided for interpreting s 16A as encompassing concepts addressed only to an appellant court, such as notions derived from the rule against double jeopardy.

The Court further stated at [29]:

The “principle” of double jeopardy relied upon by the appellant is not accommodated by the sentencing provisions of s 16A …

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4. Application of s 16A(1)

4.1 Proportionality

Section 16A(1) provides:

Section 16A(1)

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Section 16A(1) is a statutory reflection of the common law principle of proportionality. 2In Bahar v The Queen [2011] WASCA 249 McLure P (Martin CJ and Mazza J agreeing) noted that the principle of proportionality is reflected in both s 16A(1) and s 16A(2)(a). 3 The principle of proportionality is also reflected in s 16A(2)(k). 4 See further Adequacy of Punishment.

In Barbaro v The Queen [2014] HCA 2, Gageler J noted at [52]:

Section 16A(1) of the Crimes Act 1914 (Cth) (“the Act”) requires a court sentencing a person for a federal offence to “impose a sentence … that is of a severity appropriate in all the circumstances of the offence”.  That statutory language reflects the “basic principle of sentencing law” that a sentence “should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances” [Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HCA 33] … (emphasis in original).

See further Nature and Circumstances of the Offence.

Proportionality is considered to be the primary aim of sentencing: Veen v The Queen [No 2] [1988] HCA 14. The principle defines the bounds of the outer limits of punishment. In Veen, Deane J stated at [2]:

It is only within the outer limit of what represents proportionate punishment for the actual crime that the interplay of other relevant favourable and unfavourable factors … will point to what is the appropriate sentence in the circumstances of the particular case.

Proportionality operates to restrain sentences not only sentences that are too severe, but also those that are too light. 5 Crown appeals against sentence have been successful on this basis. 6

4.1.1 Objective seriousness of the offence

The outer limits of a sentence depend on the gravity of the offence in light of its objective circumstances. 7 A court must make a ‘real assessment of the objective criminality of the offending’. 8 For example, in DPP (Cth) v Northcote [2014] NSWCCA 26 the Court found that the sentencing Judge had ‘failed to accord to this serious instance of offending any proper assessment of it at all. He did not discuss it beyond simply recording the facts’. 9

In DPP (Cth) v Northcote [2014] NSWCCA 26 the Court considered the objective seriousness of the offending as ‘prime’ among the matters in s 16A. 10 Garling J (Hoeben CJ and Hulme AJ agreeing) stated at [75]–[76]:

It is clear that unless due regard is paid to the gravity of the offence viewed objectively, there can be no proper attention to the principle that there needs be a reasonable proportionality between a sentence and the circumstances of the crime: R v Geddes [1936] 36 SR (NSW) 554 at 556 per Jordan CJ; R v Dodd (1991) 57 A Crim R 349 at 354.

 

In Dodd, the Court consisting of Gleeson CJ, Lee CJ at CL and Hunt J, said:

“… making due allowance for all relevant considerations, there ought be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place.”

4.2 Relevance of the maximum sentence

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. 11

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:

[T]he 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).

4.3 Relevance of any mandatory minimum sentence

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. 12 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 Lande 13 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. 14

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 Lande 15 would undermine the principle of equal justice. This is because cases involving offending of different seriousness would thereby be given the same penalty. 16

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. 17

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5. Application of s 16A(2)

Section 16A(2) of the Crimes Act 1914 (Cth) provides a non-exhaustive list of sentencing factors a court must take into account in sentencing, in addition to any other matters. Unlike sentencing acts adopted in some Australian states and territories, the federal act does not specify which of these factors are aggravating or mitigating factors. 18

5.1 ‘In addition to any other matters’

In DPP (Cth) v El Karhani (1990) 51 A Crim R 123, 130–131 the Court commented on the phrase ‘In addition to any other matters’ and stated:

[T]he opening words of s 16A(2) must be noticed. They state that the matters there listed are to be taken into account “in addition to any other matters”. These words make it plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters. 19

5.2 ‘Known to the court’

In the case of R v Olbrich [1999] HCA 54, [54] Kirby J remarked:

The reference to the matters “known to the court” amounts to a recognition by the Parliament of the varying contexts in which facts will be made known to the court. Relevant to a trial before a judge alone, the nature and circumstances of the offence, will only become “known to the court” to the extent that the accused admits, and the court receives, evidence and other materials or to the extent that the prosecution or the accused prove the facts relevant to “the nature and circumstances of the offence”. To the extent that facts so relevant are disputed, they must be proved by the party bearing the applicable burden of proof and to the standard of proof applicable to that party.

5.2.1 Burden of proof

There is no general burden of proof in sentencing hearings. The majority noted in R v Olbrich [1999] HCA 54 at [25]:

Reference to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings.

However, the majority went on to state that where a particular party seeks to have the sentencing judge take a matter into account when passing sentence, it will be for that party to bring the matter to the attention of the judge. 20

If the prosecution seeks to have the sentencing judge take a matter into account, it is for the prosecution to bring the matter to the attention of the judge and, if necessary, call evidence about it.

Similarly, if the offender seeks to have the sentencing judge take a matter into account, it is for the offender to bring the matter to the attention of the judge and, if necessary, call evidence about it.

5.2.2 Standard of proof

The phrase ‘known to the court’ was discussed by the High Court in Weininger v The Queen [2003] HCA 14. The plurality of Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [21]:

The use of the phrase ‘known to the court’, rather than ‘proved in evidence’, or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase ‘known to the court’ should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.

In R v Storey [1996] VSC 75 the Victorian Supreme Court distinguished between the standard of proof for factors that were adverse to the accused, and those that worked in favour of the accused. It was held that the sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. However, the judge may take into account circumstances in favour of the accused if those circumstances are proved on the balance of probabilities. 21

The principle put forward in R v Storey [1996] VSC 75 was adopted by the High Court in R v Olbrich [1999] HCA 54. 22

5.3 Not every factor can be classified as either mitigating or aggravating

In Weininger v The Queen [2003] HCA 14 the plurality noted that not every matter brought before a sentencing judge can be classified as either aggravating or mitigating.  The plurality stated at [22]:

Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

And at [24]:

It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot.

5.4 De Simoni Principle

A sentencing judge cannot take into account circumstances of aggravation where such circumstances would support a conviction for a more serious offence: R v De Simoni [1981] HCA 31, [8] (Gibbs CJ). 23

While a sentencing judge is entitled to consider all the conduct of the accused, including that which would aggravate the offence, circumstances of aggravation which would have warranted a conviction for a more serious offence cannot be taken into account when imposing a sentence.

An offence carrying a higher maximum penalty, or a mandatory minimum penalty (where the less serious offence does not carry a mandatory minimum, or carries a lower mandatory minimum) is considered a ‘more serious offence’: see Magaming v The Queen [2013] HCA 40 [16] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Rodriguez v The Queen [2013] VSCA 216, [26] (Warren CJ and Redlich JA); Hector v The Queen [2003] NSWCCA 196, [18]–[20] (O’Keefe J, James J and Sheller JA agreeing).

In Elias v The Queen; Issa v The Queen [2013] HCA 31 the High Court cited the De Simoni principle with approval, stating at [25]:

The starting point in any consideration of the imposition of criminal punishment must be that it is imposed for the offence for which the offender has been convicted.

5.5 Availability of a less punitive offence is not a mitigating factor

In Elias v The Queen; Issa v The Queen [2013] HCA 31 the High Court rejected the ‘Liang principle’. This principle had required a sentencing judge to take into account as a mitigating factor that there was a less punitive offence on which the prosecution could have proceeded which was ‘as appropriate or even more appropriate’ 24 on the facts than the offence for which the offender was convicted.

In rejecting the Liang principle, the High Court stated that it had no application under the common law of sentencing, stating at [37]:

There is no warrant under the common law of sentencing for a judge to take into account the lesser maximum penalty for an offence for which the offender could have been, but had not been, convicted.

5.6 Non-exhaustive list of sentencing factors

For further commentary on the matters listed in s 16A(2) click on the links below:

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; [commentary]

 

(b) other offences (if any) that are required or permitted to be taken into account; [commentary]

 

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character–that course of conduct; [commentary]

 

(d) the personal circumstances of any victim of the offence; [commentary]

 

(e) any injury, loss or damage resulting from the offence; [commentary]

 

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence–any victim impact statement for the victim; [commentary]

 

(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner; [commentary]

 

(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; [commentary]

 

(g) if the person has pleaded guilty to the charge in respect of the offence–that fact; [commentary]

 

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences; [commentary]

 

(j) the deterrent effect that any sentence or order under consideration may have on the person; [commentary]

 

(k) the need to ensure that the person is adequately punished for the offence; [commentary]

 

(m) the character, antecedents, age, means and physical or mental condition of the person; [commentary for each of the following: character; antecedents; age; physical condition, mental condition]

 

(n) the prospect of rehabilitation of the person; [commentary]

 

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. [commentary]

5.7 Exhaustive reference to 16A factors not necessary

It is not necessary for a sentencing judge to explicitly refer to all of the factors in s 16A when imposing a sentence. In R v Ferrer-Esis (1991) 55 A Crim R 231 Hunt CJ (Gleeson CJ and Lee CJ at CL agreeing) stated at 237–238:

It should be said that that legislation [s 16A of the Crimes Act 1914 (Cth)] only requires the sentencing judge to take those matters into account; it does not require judges always to refer to each of them when explaining the sentence imposed. Indeed, the act of sentencing is to a large extent incapable of being fitted into such a straightjacket, and in most cases it is unnecessary for the judge to expose the precise reasoning by which the ultimate sentence has been reached: Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. It is only where the judge has formed a particular view in relation to one or more of these items which would not otherwise be apparent in the circumstances of the case that reference should be made to the particular items in the judge’s remarks on sentence, so that no erroneous conclusion would otherwise be drawn in relation to those matters.

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6. Customary law or cultural practice not relevant

Section 16A(2A) of the Crimes Act 1914 (Cth) 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. ‘Criminal behaviour’ is defined in s 16A(2B).

For further commentary see Cultural Background. See also Indigenous Offenders.

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7. Application of s 16A(3)

The court must also have regard to s 16A(3):

Section 16A(3)

Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court 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.

There is conflicting authority on the application of s 16A(3).

On one view s 16A(3) applies to sentencing options other than imprisonment and is directed to the conditions imposed on the accused under such sentences or orders.  The Australian Law Reform Commission has noted that on its face, s 16A(3) appears to apply to sentencing options other than imprisonment. 25

The Explanatory Memorandum also states:

Subsection (3) gives further guidance to the courts in considering whether to impose an order under sections 19B, 20 and 20AB instead of imprisonment as the appropriate punishment. 26

In De Hollander v The Queen [2012] WASC 127 the Court indicated that s 16A(3) only applied where a condition is placed on the individual (such as being of good behaviour, 27 making reparation, restitution or paying compensation, 28paying a pecuniary penalty, 29 under a sentence other than one of imprisonment. Buss JA (McLure P and Mazza JA agreeing) stated at [92]:

In the present case, s 16A(3) was not a relevant matter of substance. When his Honour made the recognizance release order he did not impose any of the conditions specified in s 20(1)(a) beyond ordering that the appellant must be of good behaviour for the balance of the terms of imprisonment after her release upon recognizance.

In R v Ruha , Ruha & Harris; ex parte Cth DPP [2010] QCA 10 the Queensland Supreme Court also adopted this approach, considering s 16A(3) in the context  of conditions that could be imposed under a recognizance release order by having regard to the effects of a failure to comply with such conditions. 30

Contrary to the interpretation in other jurisdictions, in New South Wales this section has been read as requiring a court to take into account the conditions that may be imposed on the accused under a sentence of imprisonment. 31 For example, in R v Keir [2004] NSWCCA 106 the Court made reference to s 16A(3) in allowing an appeal against sentence, where the sentencing Judge has imposed a sentence of imprisonment on the basis that the offender would serve the sentence in a jail hospital. The Court found that the offender had in fact been required to serve the sentence in a maximum security cell, meaning that the sentence to be served was materially different from that which the sentencing judge envisaged she was imposing. 32 The Court stated at [80]:

Our decision does not involve the court in exercising a form of supervisory function in relation to the applicant’s circumstances of confinement. Rather it concerns an appropriate review of the nature and circumstances of the sentence which the court understood that it was passing in the light of what has actually transpired. That is an important consideration because s 16(3) [sic] of the Crimes Act (Cth) requires a court in determining an appropriate sentence to “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” (emphasis added).

For consideration of hardship to offenders, see Hardship to the Offender.

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Notes:

  1. See Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) sch 7.
  2. Wong v The Queen [2001] HCA 64, [71] (Gaudron, Gummow, Hayne). See also Jopar v The Queen [2013] VSCA 83, [15] (Weinberg JA); Habib Urahman v Semrad [2012] NTSC 95, [47]–[49] (Southwood J); Lodhi v The Queen [2007] NSWCCA 360, [80]–[82] (Spigelman CJ); Bahar v The Queen [2011] WASCA 249, [44]–[45] (McLure P, Martin CJ and Mazza J agreeing).
  3. Bahar v The Queen [2011] WASCA 249, [45] (McLure P, Martin CJ and Mazza J agreeing).
  4. R v Salcedo [2004] NSWCCA 430, [59] (McColl JA, Levine and Hidden JJ agreeing).
  5. R v Dodd (1991) 57 A Crim R 349. See also R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999) 221.
  6. See, eg, DPP (Cth) v Northcote [2014] NSWCCA 26.
  7. Hoare v The Queen [1989] HCA 33, [7] (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
  8. DPP (Cth) v Northcote [2014] NSWCCA 26, [83] (Garling J, Hoeben CJ and Hulme AJ agreeing).
  9. DPP (Cth) v Northcote [2014] NSWCCA 26, [83] (Garling J, Hoeben CJ and Hulme AJ agreeing).
  10. DPP (Cth) v Northcote [2014] NSWCCA 26, [74] (Garling J, Hoeben CJ and Hulme AJ agreeing).
  11. Bahar v The Queen [2011] WASCA 249, [45] (McLure P, Martin CJ and Mazza J agreeing).
  12. Bahar v The Queen [2011] WASCA 249, [58]–[59] (McLure P, Martin CJ and Mazza J agreeing).
  13. (unreported, Supreme Court, NT, Riley CJ, 18 January 2011).
  14. 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).
  15. (unreported, Supreme Court, NT, Riley CJ, 18 January 2011)
  16. 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).
  17. 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.
  18. See, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.
  19. The statement in El Karhani was approved by the High Court in Putland v The Queen [2004] HCA 8, [12] (Gleeson CJ), [53] (Gummow and Heydon JJ, Callinan J agreeing).
  20. R v Olbrich [1999] HCA 54, [24] (Gleeson CJ, Gaudron, Hayne And Callinan JJ).
  21. R v Storey [1996] VSC 75, [42] (Winneke P, Brooking and Hayne JJA and Southwell AJA).
  22. See also Weininger v The Queen [2003] HCA 14, [18] (Gleeson CJ, Mchugh, Gummow And Hayne JJ). For recent application see, eg, Larkin v The Queen [2012] WASCA 238, [51] (Buss JA, Martin CJ and Newnes JA agreeing).
  23. The principle in De Simoni was cited with approval by the High Court in R v Olbrich [1999] HCA 54 [18] (Gleeson CJ, Gaudron, Hayne And Callinan JJ). For recent application see Rodriguez v The Queen [2013] VSCA 216, [20]–[30] (Warren CJ and Redlich JA).
  24. Elias v The Queen; Issa v The Queen [2013] HCA 31, [13].
  25. Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [7.23].
  26. Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 7.
  27. Crimes Act 1914 (Cth) ss 20(1)(a)(i),19B(1)(d)(i).
  28. Crimes Act 1914 (Cth) ss 20(1)(a)(ii),19B(1)(d)(ii).
  29. Crimes Act 1914 (Cth) s 20(1)(a)(iii).
  30. R v Ruha , Ruha & Harris; ex parte Cth DPP [2010] QCA 10, [37]–[38] (Keane and Fraser JJA, Atkinson J).
  31. R v Besodi [2002] NSWCCA 452, [67] (Carruthers JA, Mathews AJ and Simpson J agreeing); R v Walters [2001] NSWSC 640, [48] (Sully J); R v Nikolovska [2009] NSWDC 291, [60] (Nicholson SC DCJ); R v Basri, Okonwo and Madubuko [2009] NSWDC 398, [92]–[93] (Nicholson SC DCJ);  R v G.P [2010] NSWDC 300, [95] (Nicholson SC DCJ); R v Vincent [2010] NSWDC 302, [86] (Nicholson SC DCJ).
  32. R v Keir [2004] NSWCCA 106, [68] (Dunford, Greg James and Buddin JJ).