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Course of Conduct

The content on this page was last reviewed on 24 February 2017.

Recent cases alert
DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 — course of conduct considered to be encompassed by ‘rolled-up charge’.
R v Choi; R v Pereira [2017] SASCFC 54 — sentencing judge in error by stating there was a clear inference from the circumstances of this offending that it was not the first time the offender had committed such an offence.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Section 16A(2)(c) provides that a sentencing court must take into account whether the offence forms part of a course of criminal conduct:

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:

 

(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;

There is judicial uncertainty as to whether s 16A(2)(c) refers to any or all of the following:

  • Uncharged criminal conduct, including conduct that is:
    • Proven beyond reasonable doubt at sentence, or
    • Admitted by the offender at sentence; 1 or
  • Charged and convicted criminal conduct; or
  • Representative charges; 2 or
  • The totality principle.

It appears that the majority of courts have proceeded on the basis that s 16A(2)(c) refers to other charged and convicted criminal conduct. The fact that an offender has committed a number of offences increases the objective seriousness of each.

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2. Uncharged criminal conduct

In Weininger v The Queen [2003] HCA 14, the High Court considered the meaning of the term ‘course of conduct’ in s 16A(2)(c). The sentencing judge had noted that evidence establishing the offender’s prior participation in cocaine importation meant he could not be treated ‘as a first offender with the attendant leniency that that status usually attracts’. 3

Gleeson CJ, McHugh, Gummow and Hayne JJ held that the sentencing judge had not impermissibly sentenced the offender for uncharged offences. Rather, it was held at [29]:

[I]t is evident that the primary judge was doing no more than expressing a conclusion that the absence of prior convictions did not, as ordinarily would be the case, demonstrate absence of prior criminal behaviour. That is, the primary judge concluded from the evidence before her, that what was known of the character and antecedents of the appellant did not show that these offences were the first criminal conduct in which he was engaged … [h]er Honour treated what was known of the appellant’s character antecedents as neither working in his favour nor against him.

Kirby J held that the section did not allow uncharged criminal acts to be taken into account, reasoning that s 16A(2)(c) was an attempt to express the totality principle at [56]–[57]:

It is clear that the “offences” referred to in pars (b) and (c) are those offences of which the person has been convicted and for which he or she stands for sentence. This is clear from the context. It is confirmed by par (k) which refers to “the need to ensure that the person is adequately punished for the offence”. Punishment should not be imposed by a court for something other than an “offence” of which the person is convicted. At least it should not happen without the full consent of the prisoner, publicly stated.

 

Where other circumstances may be taken into account in sentencing, they are expressly referred to in pars (b) and (c). To take other offences into account it is necessary that that course should be “required” or “permitted”. Otherwise, the only offence for which the person should be sentenced is the one before the court in relation to which the offender has been charged and convicted. Nor does par (c) expand this notion to permit uncharged “criminal acts” to be taken into account in sentencing. That paragraph is an attempt to express in the language of the Crimes Act  the totality principle, reflected in decisions of this Court (citations omitted; emphasis added).

However, Callinan J held that this same statutory context indicated that s 16A(2)(c) referred to uncharged offences from previous conduct, stating at [112]:

It is necessary at this point to draw attention to the differences in language between pars (b) and (c) of sub-s 2. The fact that the former provision refers to “other offences” and the latter to a “course of conduct” provides a basis for distinguishing between them, and for taking into account under the latter, relevant conduct, albeit that it might involve criminal acts which in turn might not have resulted in charged and established, (by verdict or plea) facts constituting other offences (emphasis added).

2.1 Uncharged conduct as denying the existence of mitigating circumstances

Subsequent consideration of Weininger v The Queen [2003] HCA 14 has interpreted the majority decision as suggesting that while uncharged conduct cannot be used to impose a greater sentence, it can be used to deny leniency that may otherwise be possible. 4 This is because an offence cannot be regarded as aggravated by conduct for which the offender has not been charged or convicted, as to do so would breach the principle in R v De Simoni [1981] HCA 31. 5 See further De Simoni Principle.

In R v Bukvic [2010] SASC 195, the Court considered an appeal against sentence where the sentencing judge rejected the offender’s submission that the offence for which he was to be sentenced was an isolated instance of drug offending. The judge found that it was ‘probable’ that the appellant had acted as a drug courier on flights which he had taken on three prior occasions. White J (Doyle CJ agreeing) held that there was no error on the part of the sentencing judge, and concluded at [41]:

The fact that the uncharged conduct could not be used so as to lead to the imposition of a greater sentence did not preclude it being used to deny the appellant any leniency which may otherwise have been possible. On the contrary, it was open to the Judge to deny him leniency on that basis.

White J (Doyle CJ agreeing) held that Bray CJ’s statement of principle in R v Reiner (1974) 8 SASR 102, 105 applied to s 16A(2)(c). 6 Bray CJ had stated in R v Reiner (1974) 8 SASR 102 at 105:

[T]he learned Judge was entitled to take into account the context and the surrounding circumstances of the crime and in particular it was permissible, relevant and important for him to know whether the act charged was an isolated offence or whether it was only, to use the metaphor often adopted, the tip of an iceberg. The surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence but the commission of other crimes not asked to be taken into account under the procedure just mentioned cannot be used in order to increase what would otherwise be a proper sentence. As I have said on another occasion, the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time-honoured distinction for all of that (emphasis added).

In R v Tran & Tran [2011] SASCFC 153, the Court considered an appeal against sentences imposed for state offences. The Criminal Law (Sentencing) Act 1988 (SA) similarly requires a court to take into account whether the offence forms part of a ‘course of conduct’. 7 The Court held that the provision requires the court to take into account the ‘context and surrounding circumstances’ of the offence, but stated that uncharged offences cannot be considered an aggravating factor. 8 Gray J (Sulan and David JJ agreeing) summarised the principles at [28]–[30]:

The following may be accepted as established; the context and surrounding circumstances include a consideration of whether the act charged is isolated or forms part of an ongoing course of conduct; the offence for which a defendant is to be sentenced may take its colour from, and its character is affected by, the context in which it was committed; a sentencing Judge is entitled to take into account the context and the surrounding circumstances of a crime; the context and surrounding circumstances may be bought [sic] to account in considering whether to extend leniency so as to reduce what would otherwise be a proper sentence; the commission of other crimes not asked by a defendant to be taken into account cannot be used to increase what would otherwise be a proper sentence and a defendant is not to be punished for conduct which is said to be criminal unless the defendant is charged with a relevant offence and has the opportunity to defend the charge.

 

When uncharged acts are of a similar character to the offence for which the defendant is to be sentenced, they may have relevance to several sentencing considerations that do not amount to matters of aggravation. For example; to militate against leniency on the basis of the offence being isolated or an aberration; to consider the importance of personal deterrence in the sentencing process; to indicate the defendant’s moral culpability; to assess the defendant’s prospects of rehabilitation; to diminish the importance of a lack of prior convictions when such offending has been occurring for some length of time; and finally, as part of the defendant’s “character and antecedents” pursuant to section 10 of the Sentencing Act. These matters are relevant to sentencing as they may indicate that a defendant has had time to reflect on his offending and yet has determined to proceed with the subject offence; has engaged in the subject offending in an organised and planned manner; intends to continue with the offending; or was motivated by greed.

 

These considerations are all matters relevant to the assessment of personal deterrence, prospects of rehabilitation and the protection of the community. As such, they are relevant to the determination of the appropriate sentence for the offence and for the particular defendant. They are factors that may lead to the imposition of a more severe sentence than might have otherwise been imposed. It does not follow, however, that the sentence to be imposed will be increased beyond that which is proportionate to the offence for which the defendant is to be sentenced. It does not follow that the defendant is being sentenced for uncharged acts (emphasis added).

Similarly, in Savvas v The Queen [1995] HCA 29, the offender was convicted of conspiring to import a quantity of heroin and conspiring to supply that heroin. The Court held the sentencing judge did not breach the principle in R v De Simoni [1981] HCA 31 by taking into account that the heroin was, in fact, imported and distributed and that the offender ‘was involved in those events’. 9 Deane, Dawson, Toohey, Gaudron and McHugh JJ stated at [20]:

A finding of guilt by the jury that there was a conspiracy as alleged by the Crown necessarily involved, as has already been stated, an agreement by the appellant with others to import large quantities of heroin and thereafter to distribute it. In assessing … “the degree of criminality involved in the appellant’s participation in the conspiracy”, Hunt J [the sentencing judge] was entitled to have regard to the part the appellant played. A permissible, perhaps the only, way in which his Honour could do that was by considering the number of importations and supplies of heroin in which the appellant was involved (citations omitted).

In Einfeld v The Queen [2010] NSWCCA 87, Basten JA held that the principle in R v De Simoni [1981] HCA 31 was not breached where the fact that the offender had made a prior false statement was taken into account when sentencing for a later offence of perjury. The prior false statement was taken into account to infer that there was a course of ‘planned criminal activity’. 10 Basten JA stated at [146]:

[A] course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.

Basten JA’s dicta was applied by a Full Court of the Federal Court in Ly v The Queen [2014] FCAFC 175. The Court held that evidence of uncharged copyright offences could be taken into account to ‘put the offending in its proper context, namely that it was part of a commercial enterprise’. 11 The Court held that the sentencing judge had not impermissibly treated that conduct as an aggravating factor, stating at [93]:

[I]t is clear that his Honour was well aware that he was constrained to sentence the applicant only in respect of the offences to which he had pleaded guilty and regard was to be had to other represented offending conduct only to the extent that it precluded other potentially mitigating circumstances (such as a claim that the offences were isolated) and revealed the wider circumstantial context.

2.1.1 Whether uncharged conduct can be aggravating if proven beyond reasonable doubt

There is inconsistencty as to whether uncharged criminal conduct can be treated as an aggravating factor at sentence. In Weininger v The Queen [2003] HCA 14, Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [31]:

[I]t may well have been open to the sentencing judge to conclude beyond reasonable doubt that the appellant had previously been knowingly concerned in the importation of cocaine …. [s]uch a conclusion would have entitled the primary judge to take it into account as a matter warranting the imposition of a heavier sentence than might otherwise have been imposed.

In R v Bukvic [2010] SASC 195, White J (Doyle CJ agreeing) held that this statement meant that uncharged conduct could be taken into account to increase the sentence that may otherwise have been imposed, but only in circumstances where this conduct is included in an agreed statement of facts and the sentencing judge is satisfied of its occurrence beyond reasonable doubt. 12 However, Kourakis J disagreed, stating at [73]:

The higher sentence imposed on an offender with a criminal past is not the result of the imposition of an additional quantum of punishment for the earlier offending. It simply reflects the different penalty point at which the competing sentencing considerations of rehabilitation, punishment and deterrence are balanced in his or her case relative to offenders with different antecedent circumstances. In my respectful opinion, it is that point which is made in the passage from the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen cited by White J which observes that Weininger’s other offending would have warranted “the imposition of a heavier sentence than might otherwise have been imposed”. I do not read the passage as authority for the proposition that a higher sentence can be imposed than is warranted by the totality of the circumstances, including the reduced prospect for rehabilitation which can be inferred from the other offending, simply because the defendant has agreed in a statement of fact used for the purpose of sentencing that he has committed another offence (citations omitted; emphasis added) …

In R v Tran & Tran [2011] SASCFC 153, the Court considered the decision in Bukvic and held that a sentencing judge must be satisfied beyond reasonable doubt that the uncharged conduct occurred, but that it is not necessary that the conduct is admitted by the accused in an agreed statement of facts. 13 However, the Court held even where proved beyond reasonable doubt it was not to be considered an aggravating factor. Gray J (Sulan and David JJ agreeing) concluded at [40]:

The defendants were not to be sentenced for offences other than those charged. The defendants were not to be sentenced on the basis that their crimes were aggravated by other criminal conduct. However, the circumstances surrounding the defendants’ offending suggested an involvement in heroin beyond the one transaction of trafficking. The Court was entitled to have regard to these surrounding circumstances when considering issues of personal deterrence, rehabilitation and the protection of the community. The surrounding circumstances formed the context in which the offending for which the defendants were convicted took place (emphasis added).

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3. Charged offences forming a course of conduct

3.1 Multiple offences as an aggravating factor

Courts have also interpreted s 16A(2)(c) as indicating that the presence of multiple charged and convicted offences that form a ‘course of conduct’ is an aggravating factor at sentence.

For example, in R v Host [2015] WASCA 23, Buss JA (Mazza JA and McLure P agreeing) referred to s 16A(2)(c) and stated at [45]:

[A]lthough separate counts were included in the indictment, the offending involved a continuous and repetitive course of conduct. The respondent’s criminality was not isolated or opportunistic. It involved planning and premeditation; in particular, a system of planned, deliberate, repeated and dishonest claims with the object of obtaining substantial sums of money from the ATO for his own benefit (emphasis added).

Similarly, in Soyke v The Queen [2016] NSWCCA 112, Schmidt J (Basten JA and Wilson J agreeing) dismissed an appeal against sentences imposed for computer hacking offences contrary to s 477 of the Commonwealth Criminal Code, noting that the ‘course of conduct which he had pursued over a period of time’, among other circumstances of aggravation, made a custodial sentence appropriate. 14

Courts have suggested a course of criminal conduct may increase the seriousness of the offence by demonstrating the offender is a repeat offender. In CEO of Customs v Lin [2007] WASC 314,  Templeman J stated at [105]:

[16A(2)(c)] requires account to be taken of the course of conduct, 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 is certainly the case here. Each offence is necessarily more serious than the offence which preceded it because the first defendant became a repeat offender to an ever-increasing extent. There is every reason to assume that the first defendant would have continued his course of conduct … (emphasis added).

A similar approach was adopted in CEO of Customs v Coulton [2005] NSWSC 869, where Simpson J observed at [33]:

[I]t is of some significance that the defendant was, by the time of the second and third importations, a repeat offender. That, in itself, modifies any expectation of leniency he might otherwise have harboured. It is a factor relevant to be taken into account pursuant to s 16A(2)(c) of the Crimes Act (emphasis added).

However, in CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199, Fullerton J suggested that where the offences were planned contemporaneously, each offence would not be treated as progressively more serious. Her Honour stated at [55]:

[O]n the assumption that each shipment [in Coulton] was planned separately, a course of repeat offending is indicated. In the present case however, the importation of shipments 2, 3 and 4 appear to have been planned contemporaneously, with the shipments arriving in Australia within days of each other. In these circumstances the characterisation of the defendant as a “repeat offender” warranting the imposition of progressively heavier penalties for each of the four shipments is not appropriate (emphasis added).

Nevertheless, Fullerton J considered that the shipments constituted a ‘co-ordinated course of conduct’ was ‘a matter that will be taken into account in the imposition of penalties as provided for in s 16A(2)(c).15

Courts have also suggested that a course of multiple convicted offences increases the seriousness of the offence in suggesting they were planned or pre-meditated rather than spontaneous or impulsive: Burbridge v The Queen [2016] NSWCCA 128, [25] (Rothman J); R v Fysh (No 4) [2012] NSWSC 1587, [50] (McCallum J).

In R v Sakovits [2013] NSWSC 464, Hall J found that two offences forming a tax avoidance scheme was a single course of conduct under s 16A(2)(c). Hall J considered that this was ‘to be taken into account, not as an aggravating factor that increases the sentence to be imposed, but as indicating that the conduct was not an isolated incident’. 16

A similar approach was applied in R v Cameron; R v Simonds (Unreported, Supreme Court of South Australia, King CJ, Duggan and Debelle JJ, 19 July 1993), where both offenders were convicted of multiple Commonwealth fraud offences occurring over a number of years. King CJ stated at [11]:

In the case of both of these respondents the offending amounted to a systematic, deliberate and sustained fraud over a substantial period of time. The fraud involved planning and sustained implementation.  The offenders, it is true, have no other convictions but that is of little significance when one is faced with such a sustained course of conduct of a criminal nature.  This was not a case of a person with no prior convictions succumbing to temptation and being entitled, therefore, to rely upon the previous good record to secure the leniency of the court.  Both of these offenders not only engaged upon a deliberate course of fraudulent conduct, but persisted in it over a long period of time (emphasis added).

In R v Boughen; R v Cameron [2012] NSWCCA 17, Simpson J cited the statement of King CJ above and noted at [100]:

[The head sentence] was in respect of offences perpetrated by a continuous and repeated course of conduct over a seven year period, involving tax evasion in large amounts. These were not offences that, once begun, proceeded of their own momentum. On each occasion that the respondents paid a fraudulent invoice, and on each occasion that they received the return of their payments designated as loans, and on each occasion that they signed income tax returns containing the fraudulent information, they acted consciously in perpetuation of the frauds (emphasis added).

3.1.1 Meaning of ‘same or similar character’

In R v Pratten (No 12) [2014] NSWSC 396, Rothman J held that a course of conduct existed where the ‘nature and quality of the acts did not differ substantially’. 17 The offender had been convicted of seven counts of obtaining a financial advantage by deception contrary to s 134.1 of the Commonwealth Criminal Code. Rothman J explained the basis on which he found the offences formed a ‘course of conduct’ at [11]–[13]:

The conduct that gives rise to these seven offences arises out of one continuing course of conduct (see s 16A(2)(c) of the Act), being the arrangements for business affairs and receipt of income of Mr Pratten. That this is one continuing course of conduct is evidenced by two prime examples.

 

First, apart from the identity of the trust accounts that were the source of payments to Mr Pratten, the Crown case depended on a consistent approach to the receipt (and payment) of money without regard to any suggested change from one year to another.

 

Secondly, Mr Pratten’s tax returns, which form the basis for the Crown’s allegations of dishonesty, deception and financial advantage, were lodged on three occasions: two of them in August 2005; one of them in June 2006; and four of them in September 2009 (emphasis added).

In ACCC v Santo Pennisi [2007] FCA 2100, the defendant sold adulterated fuel in contravention of the Trade Practices Act 1974 (Cth). The offence occurred over a period of almost three years in various geographical locations in northern New South Wales and constituted 28 separate offences. These offences were considered to be a ‘series of criminal acts of the same or a similar character.’ 18

3.1.2 Circumstances in which multiple offences will constitute a course of conduct

Consideration of whether a series of criminal acts forms a single course of conduct has been framed as looking to whether the offences form a ‘continuing’ course of conduct. 19

In R v Agius; R v Zerafa [2012] NSWSC 978, it was held that the filing of false income tax returns for a period of 7 years (in the case of Mr Zerafa) and 10 years (in the case of Mr Agius) was a single course of conduct. 20

In R v Miles [2015] ACTSC 162, Rares J held that four taxation offences which spanned a period of six months were to be considered a single course of conduct. 21

In the federal sentencing decision of R v Ferguson [2015] ACTSC 363, the offender was charged with six separate offences of accessing, transmitting and possessing child pornography which occurred over a period of 12 months. The offences were considered ‘part of a continuing course of conduct’. 22

In R v Sigalla [2017] NSWSC 52, Adamson J considered 24 counts of dishonestly using the position as director to gain a benefit for the offender or a third party contrary to s 184(2)(a) of the Corporations Act 2001 (Cth). At [78]:

[I] regard the conduct underlying counts 1-3 as a single course of conduct which came about as a result of the offender procuring a commission for himself and Mr Falconer for the Oasis capital raising, to which they were not entitled. I also consider it appropriate to regard the conduct underlying counts 4, 6 and 7 as a single course of conduct as each count comprised an advance to Mr O’Donnell for the same purpose.

3.1.3 Circumstances not constituting a course of conduct

In R v Allred [2015] ACTSC 327, Refshauge ACJ held that the single offence of obtaining a financial advantage by deception did not form a ‘course of conduct’, although the offender continued to receive benefits to which he was not entitled for 22 months. Refshauge ACJ stated at [51]:

The offending occurred when Mr Allred dishonestly answered a review form. That was a single occasion. Nevertheless he continued to work and to receive benefits for 22 months. The execution of the search warrant resulted in the seizure of documents which clearly showed that Mr Allred had received an open document which would have alerted him to his compensation and his income. He continued to receive the benefits and that can be construed as a course of conduct; see for example, Gunes v Pearson (1996) 89 A Crim R 297 at 307. On the other hand, this is, to a large extent, dealt with in addressing the nature and circumstances of the offence rather than, in its own right, being a course of conduct such as would be constituted by regularly answering such forms dishonestly or supplying an illegal drug over time (emphasis added).

Adamson J held in R v Sigalla [2017] NSWSC 52 that 18 of the 24 offences contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) were not a single course of conduct as ‘each offence was a discrete act with its own separate criminality.’ 23

In R v Fysh (No 4) [2012] NSWSC 1587, McCallum J accepted the offender’s submission that two offences of insider trading occurring on two consecutive days did not form a ‘course of conduct’. McCallum J stated at [50]:

I do not consider that the overall seriousness of the offending is exacerbated by the fact that the shares were purchased in two separate parcels. I accept, as submitted on behalf of the offender, that the offending does not amount to an ongoing course of conduct. However, as the circumstances I have recited will reveal, the offender’s decision to acquire the shares was made over a lengthy period during which he received a body of inside information from different sources at different times. Accordingly, the seriousness of the offences must be considered on the basis that their planning was well considered (emphasis added).

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4. Totality Principle

In Weininger v The Queen [2003] HCA 14, [57] Kirby J held that s 16A(2)(c)  was a statutory expression of the principle of totality. In Putland v The Queen [2004] HCA 8, Gummow and Heydon JJ also suggested that s 16A(2)(c) reflects the principle of totality, stating at [54]:

Reference was made in argument to par (c) of s 16A(2) of the Crimes Act. This provision perhaps reflects what earlier had been said by Brennan J in Ryan v The Queen:

 

“When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted.”

Some sentencing judges have regarded  s 16A(2)(c) as an expression of the totality principle. 24 However, the Australian Law Reform Commission has stated that the totality principle ‘is not the main or exclusive purpose of paragraph (c), nor should the paragraph be construed in this way.’ 25 See further: Totality Principle

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5. Representative charges

There is uncertainty as to whether s 16A(2)(c) allows a court to take into account ‘representative charges’, and whether these representative charges can be taken into account as a matter of aggravation.

5.1 Meaning of representative charges

In the state sentencing case of R v D [1997] SASC 6350, Doyle CJ defined representative charges as when a Court:

[S]entences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour.

5.2 Whether s 16A(2)(c) reflects representative charges

The Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) at [6.65] recommended that s 16A(2)(c) be redrafted to clarify its meaning and scope. The ALRC considered that one relevant aspect of the term ‘course of conduct’ was the use of representative charges, stating at [6.66]:

The second factor concerns the use of representative charges. In this case, the relevant sentencing factor is: where the offender has pleaded guilty to charges and has acknowledged that they are representative of criminality comprising uncharged conduct as well as the charged offences – the course of conduct comprising that criminality (emphasis added).

In R v JCW [2000] NSWCCA 209, Spigelman CJ stated at [19] that a statutory mechanism for taking into account ‘representative charges’ is provided by s 16BA of the Crimes Act 1914 (Cth).   Spigelman CJ suggested that admissions of uncharged offences by an offender should not be taken into account by way of aggravation unless the statutory procedure under s 16BA is followed, but did not consider it necessary to decide the issue. 26

Whether s 16A(2)(c) refers to offences taken into account pursuant to s 16BA is unclear. Section 16A(2)(b) expressly lists as a relevant sentencing factor ‘other offences (if any) that are required or permitted to be taken into account’. See Taking into Account Other Offences.

In R v Bukvic [2010] SASC 195, Kourakis J held that reading s 16A(2)(c) in conjunction with s 16A(2)(b) does not suggest that uncharged offences may be taken into account pursuant to s 16A(2)(c). Kourakis J stated at [82]:

In my respectful opinion, it is difficult enough to justify the practice of taking offences into account by reference to settled sentencing principles; the exception should not be extended to include uncharged offences “represented” by the charged offences or other conduct incidentally disclosed in the course of sentencing.

 

Section 16A(2) of the Crimes Act 1914 (Cth) (the Act) should not be construed in a way which would radically change the nature of the judicial power to punish on the conviction for an offence. Rather, s 16A(2)(b) of the Act should be understood as a legislative adoption of the common law practice of taking offences into account. Section 16A(2)(c) of the Act should be construed, consistently with the common law, to recognise that there is less scope for rehabilitation and a greater need for deterrence where the offences of which the offender has been convicted form part of a course of conduct. There is, I think, real doubt about the power of the Commonwealth to extend the judicial power to punish beyond sentencing for the particular offence of which there has been a conviction (emphasis added).

In summary, there is inconsistency in relation to federal sentences. However, it is clear from the authorities considering sentencing for state offences that if representative counts are to be taken into account, those counts must be clearly particularised and expressly admitted by the offender: Kingswell v The Queen [1985] HCA 72, [33] (Brennan J). For example, in R v CJK [2009] VSCA 58, the Victorian Court of Appeal stated at [38]:

A representative count is achieved by the accused agreeing with the prosecution that in order to reduce the number of charges faced, there will be a plea of guilty to a count which is representative of other uncharged acts. The consent to the representative count must be express and unequivocal (emphasis added; citations omitted).

5.3 Whether representative charges can be taken into account as an aggravating factor

There is disagreement between the Court of Appeal of the Supreme Court of Victoria and the Court of Criminal Appeal of the Supreme Court of New South Wales in relation to whether uncharged conduct can be taken into account not only to reject a claim to mitigation, but also as an aggravating circumstance: Ly v The Queen [2014] FCAFC 175, [80] (Kenny, Bennet and Wigney JJ).

In R v CJK [2009] VSCA 58, the Victorian Court of Appeal considered an appeal against sentences imposed for Victorian state offences. The Court held that when sentencing for an offence that involves representative charges, a higher sentence may be imposed than would otherwise be the case. Warren CJ (Vincent and Neave JJA agreeing) stated at [58]:

[I]t is appropriate to be cautious about the use of terms such as aggravating in sentencing. I do not consider that representative counts should be seen as aggravating per se; nor should the representative nature lead to an inappropriate sentence. However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only ‘colloquially’. However, it would be desirable to avoid the expression in the context of sentencing on a representative count (emphasis added).

However, in R v JCW [2000] NSWCCA 209, a case involving New South Wales state offences, Spigelman CJ suggested that representative counts could not be taken into account as an aggravating circumstance. 27

The issue was considered again in Giles v The Queen [2009] NSWCCA 308. Basten JA accepted that it was appropriate to take a ‘course of conduct’, including uncharged offences into account, where that conduct was admitted by the offender. 28 Basten JA considered that consideration of the uncharged conduct could increase the sentence to be imposed, stating at [67]–[68]:

The fact, which is not in dispute, that the applicant committed numerous additional offences, similar to those charged, is relevant to his state of mind in committing the offences charged, his motive, his sense (or absence of sense) of wrongdoing at the time, his willingness to control inappropriate urges for sexual gratification, the effects on the complainant of his conduct and by way of explanation of the fact that the conduct went undetected for a significant period.

 

[T]he fact that they constituted part of an on-going course of conduct places them in the higher range, although certainly not in the worst category of cases.

RS Hulme J disagreed with Basten JA, stating at [86]:

While such conduct is relevant to deny the leniency that might be afforded if the conduct charged were regarded as an aberration or isolated, in light of what has been said in those authorities and others I see no basis for qualifying the basic approach by regarding the uncharged conduct as relevant to subjective features of an offender and thereby inspiring a higher sentence. I see no grounds for regarding the “surrounding circumstances” or the fact that the offences charged were only some of those committed by the Applicant as a reason for imposing penalties higher than otherwise appropriate (emphasis added).

Johnson J did not consider it necessary to decide as the issue was not subject to detailed submissions. 29

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Notes:

  1. In Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006), the Commission recommended that s 16A(2)(c) be redrafted to ‘provide greater clarity and to eliminate confusion about its meaning and scope.’: at [6.65].
  2. Where a court sentences an offender for a limited number of offences on the basis that those offences are part of a wider pattern of conduct. See Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [6.62].
  3. Weininger v The Queen [2003] HCA 14,  [28].
  4. See further R v Tran & Tran [2011] SASCFC 153, [28]–[29] (Gray J, Sulan and David JJ agreeing).
  5. R v De Simoni [1981] HCA 31, [8] (Gibbs CJ). See also R v Bukvic [2010] SASC 195, [38] (White J and Doyle CJ), [68] (Kourakis J); Weininger v The Queen [2003] HCA 14, [68] (Kirby J).
  6. R v Bukvic [2010] SASC 195, [41]. White J (Doyle CJ agreeing) stated: ‘[I]n this State the position is that described by Bray CJ in Reiner, by Duggan J in Godfrey and by Doyle CJ in R v D. That position is derived from the common law … I do not understand either s 16A of the Crimes Act or the joint reasons in Weininger to require any different approach’: at [48].
  7. Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(c).
  8. R v Tran & Tran [2011] SASCFC 153, [28] (Gray J, Sulan and David JJ agreeing). See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 158.
  9. Savvas v The Queen [1995] HCA 29, [7].
  10. Einfeld v The Queen [2010] NSWCCA 87, [141].
  11. Ly v The Queen [2014] FCAFC 175, [93] (Kenny, Bennett and Wigney JJ).
  12. R v Bukvic [2010] SASC 195, [39] (White J, Doyle CJ agreeing).
  13. R v Tran & Tran [2011] SASCFC 153, [34] (Gray J, Sulan and David JJ agreeing).
  14. Soyke v The Queen [2016] NSWCCA 112, [69].
  15. CEO of the Australian Customs Service v Nabhan [2009] NSWSC 199. [58].
  16. R v Sakovits [2013] NSWSC 464, [39].
  17. R v Pratten (No 12) [2014] NSWSC 396, [43].
  18. ACCC v Santo Pennisi [2007] FCA 2100, [40].
  19. R v Pratten (No 12) [2014] NSWSC 396, [43].
  20. R v Agius; R v Zerafa [2012] NSWSC 978, [62].
  21. R v Miles [2015] ACTSC 162, [70].
  22. R v Ferguson [2015] ACTSC 363, [51] (Murrell CJ).
  23. R v Sigalla [2017] NSWSC 52, [79].
  24. See, eg, R v Thomson [2016] NSWCCA 56, [46]; R v Xiao [2016] NSWSC 240, [111]; R v Baldock [2010] WASCA 170, [166]; R v Alqudsi [2016] NSWSC 1227[84] where s 16A(2)(c) was regarded as an expression of the totality principle.
  25. Australian Law Reform Commission, Sentencing of Federal Offenders, Discussion Paper No 70 (2005) [6.93].
  26. It was not necessary to decide because there was ‘an admission of the general nature of the relationship’ between the offender and his daughter but that admission did not extend to any ‘specific allegations’. Spigelman CJ concluded that such a general admission was only appropriate to reject a claim to mitigation, not as a circumstance of aggravation: R v JCW [2000] NSWCCA 209, [66].
  27. R v JCW [2000] NSWCCA 209, [68].
  28. Giles v The Queen [2009] NSWCCA 308, [66].
  29. Giles v The Queen [2009] NSWCCA 308, [103]­–[104].