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Deterrence

The content on this page was last reviewed on 3 July 2019.

Recent cases alert
DPP v Mardirian [2019] VCC 1551 — general deterrence very important to maintain integrity of bankruptcy law without which there would be serious public disadvantage of various economic, commercial and social kinds — sentence must send signal to those under state of bankruptcy to be conscientious in dealings with creditors.
R v Elmir (No 3) [2019] NSWSC 1040 — specific deterrence must be given considerable weight in terrorism offences where offender has not renounced the extreme views and beliefs that motivated offending.
Cluett v The Queen [2019] WASCA 111 — offender’s autism spectrum disorder was a contributing factor to offending, reduces both offender’s moral culpability and significance of general deterrence as sentencing consideration

1. Overview

When sentencing federal offenders courts should consider specific and general deterrence. 1 Specific deterrence aims to dissuade the particular individual from committing further offences by imposing sanctions which demonstrate the adverse consequences of criminal activity. General deterrence, in contrast, aims to deter the general population from committing similar offences by instilling the fear of incurring similar sanctions. 2

Specific deterrence is listed as a sentencing factor in s 16A(2)(j) and general deterrence is listed in s 16A(2)(ja) of the Crimes Act 1914 (Cth). Prior to November 2015, general deterrence was not listed in s 16A(2), 3  however courts have held that general deterrence was a relevant factor in sentencing federal offenders under the common law. 4

2. Specific Deterrence

Section 16A(2)(j) of the Crimes Act 1914 (Cth) states that:

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:

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

A broad approach to specific deterrence was adopted by Simpson J in Comptroller General of Customs v Parker (No 3) [2006] NSWSC 1269, where her Honour stated at [21] that:

[I]t was also argued that specific deterrence is not an issue. This, it was said, was because the defendant’s conduct was committed as a result of his holding a licence issued under the Customs Act, something he is unlikely ever to be granted again. Thus, he will not have the opportunity to engage in this particular conduct, and so specific deterrence can be put to one side. In my opinion that approach takes too narrow a view of specific deterrence as one of the considerations relevant to sentence. Specific deterrence goes further than deterring the offender from repeating precisely the conduct the subject of the offence or conviction. It has a broader purpose. It is also to deter the particular offender from engaging in any other form of dishonesty; in this case, particularly, dishonesty relevant to the revenue (emphasis added).

The weight to be given to specific deterrence will vary according to the circumstances of the case.

2.1 Where specific deterrence may carry less weight

2.1.1 Mental Health Condition and Mental Impairment

Specific deterrence may carry less weight where the offender is suffering from a mental health condition. This is because specific deterrence may be more difficult to achieve where the offender is affected by a serious mental illness. 5

In the state sentencing case of R v Verdins [2007] VSCA 102, the Court held that specific deterrence may be moderated or eliminated as a sentencing consideration when the offender suffers from a mental impairment. Maxwell P, Buchanan and Vincent JJA stated at [32]:

Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 6

Similar remarks were made in the federal sentencing case of Thompson v The Queen [2005] WASCA 223, Steytler P (McLure JA agreeing) noted at [54]:

As to personal [specific] deterrence … much depends upon the nature and effect of the illness. The notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment, and, where the illness affects the person’s ability to make that analysis, there is no justification for affording that consideration the same measure of significance as it might have in the case of a well person. 7

Specific deterrence will not be afforded less weight due to an offender’s mental health condition where the offender knows that their conduct is unlawful. In Dennis v The Queen [2017] VSCA 251, Kyrou and Hanson JJA stated at [118] that:

In our opinion, Verdins limb 4 was not satisfied in the present case. Although the appellant’s neuropsychological condition made it difficult for him to learn from his mistakes, as he knew that his offending conduct was unlawful and could result in a lengthy prison sentence, it could not be said that his condition prevented him from exercising a choice between engaging in the conduct and abstaining from it. Mr Jackson specifically found that the appellant did not have a disorder of impulse control or a condition that made him disinhibited. This expert evidence, coupled with the judge’s assessment that the risk of the appellant reoffending was ‘moderate to high’, meant that specific deterrence did not warrant any moderation on account of the appellant’s mental impairment (citations omitted, emphasis added). 8


2.1.2 White collar crimes

Specific deterrence will generally carry less weight in relation to white-collar offences. 9

In R v Fodera [2007] NSWSC 1194, [27], Latham J cited the following observations of the Victorian Court of Criminal Appeal in DPP v Bulfin [1998] 4 VR 114:

Discovery and punishment make it unlikely that the white collar criminal will reoffend, not least because the offender will probably never again be given the opportunity to do so. In these circumstances specific deterrence will often not feature largely in sentencing consideration, and the prospects of rehabilitation will generally be very high (emphasis added). 10

2.1.3 Corporations

Courts have also considered steps taken by corporate entities after conviction but before sentence in assessing specific deterrence. In the cartel conduct case of DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, Wigney J stated at [274] that:

It is essentially common ground that specific deterrence is not a significant consideration in the particular facts and circumstances of this matter. That is because the evidence clearly shows that NYK [the offender] has already taken extensive steps to not only change its corporate culture, but also establish structures, systems and processes to ensure that there is minimal risk of a similar cartel offence being committed in the future (emphasis added).

2.1.4 Elderly offenders

In R v Issakidis [2018] NSWSC 378, the Court made comments that suggest that specific deterrence will carry less weight where the offender is of an advanced age, irrespective of the type of offence committed. Harrison J stated at [74]–[75] that:

It was contended by the Crown that although Mr Issakidis  will be further advanced in age when he is released from prison, the sentences imposed on him should encompass some element of specific deterrence, given that he has failed to acknowledge any wrongdoing in his actions and that he may have an opportunity to re-enter the business world upon his release and offend again.

As superficially and theoretically attractive as that argument may appear, I have no expectation, to a degree approaching certainty, that Mr Issakidis will be attracted to, or involved in, any similar criminal activity upon his eventual release from custody. There is in my view any number of obvious reasons for this. First, Mr Issakidis will be of an advanced age. Secondly, his considerable health problems, to which reference appears elsewhere in these remarks, are likely in differing ways to a greater or lesser extent to have an adverse effect upon his motivations and physical abilities. Thirdly, having regard to the depredations of the custodial setting, it would be surprising if Mr Issakidis were prepared to risk any further time there. I note in this last respect that Mr Issakidis attempted to take his own life in the shadow of his originally scheduled sentencing proceedings. The awful prospect of imprisonment for a man of his age, having experienced a full and prosperous life and enjoyed the apparent benefits of social recognition, is difficult to overestimate (emphasis added). 11

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3. General Deterrence 

Section 16A(2)(ja) of the Crimes Act 1914 (Cth) states that:

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:

(ja)  the deterrent effect that any sentence or order under consideration may have on other persons

Section 16A(2)(ja)  was added as a listed factor in November 2015 by Schedule 7 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). 12

In Aitchison v The Queen [2015] VSCA 348, the Court held that the introduction of s 16A(2)(ja) does not change the existing law, but rather serves to clarify it. The offender argued that the express inclusion of general deterrence implied that it was not previously a relevant consideration in sentencing federal offenders. Santamaria JA (Whelan JA agreeing) rejected the submission, stating at [69]:

The further submission in relation to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) should be rejected.  The point of the amendment was to clarify the law, not to change it.  General deterrence has long been a fundamental aspect of sentencing such that clear language would be necessary to exclude it as a sentencing principle.  Parliament did not intend to change the law.  Rather, the point of the amendment was to overcome arguments about the proper interpretation of s 16A(2) such as that advanced by the applicant in this case … in enacting the amendment, Parliament did not intend to introduce something which it considered was not already there (emphasis added).

The weight to be given to general deterrence will vary according to the circumstances of the case.

3.1 Where general deterrence may carry less weight

3.1.1 Mental Health Condition and Mental Impairment

While general deterrence is always a relevant consideration, it may carry less weight where an offender is suffering from a mental health condition or mental impairment. 13

For example, in DPP (Cth) v De La Rosa [2010] NSWCCA 194, McClellan CJ at CL noted at [177]:

It [a mental condition] may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. 14

The High Court reaffirmed this principle in Muldrock v The Queen [2011] HCA 39, a state sentencing case. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ noted that it is a ‘well recognised’ sentencing principle that general deterrence should often be given very little weight when sentencing an offender suffering from a mental health condition, because such an offender is not an appropriate medium for making an example to others. 15

Courts have held that addictions are recognised as mental health conditions, and can, in certain circumstances, reduce the importance of general deterrence. 16 In R v Jafari [2017] NSWCCA 152, Basten JA (Johnson and Davies JJ agreeing) stated at [93] that:

[A] better understanding as to the susceptibility of an individual to addictive behaviour and a better understanding of the changes to personality and indeed the physical symptoms which can accompany addictive behaviour may satisfy a court in a particular case that the offence is not one which provides an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response. In any event, the circumstances set out above indicate that the sentencing judge was correct not to rely on the fact that the offence arose out of a gambling addiction as a basis for leniency.

In R v Verdins [2007] VSCA 102, the Court commented on the considerations to be taken into account in determining the weight to be given to general deterrence in the sentencing of an offender with a mental health condition. The Court stated at [32]:

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

An offender may not be an appropriate vehicle for general deterrence even where the mental health condition has supervened since the commission of the offence. 17

3.1.1.1 Effect of Mental Health Condition where offender acts with knowledge of gravity of offending

Where the offender acts with knowledge of both what is being done and the gravity of their conduct, the importance of general deterrence will not be greatly affected.

In the federal sentencing case R v Z [2006] NSWCCA 342, [70] Beazley JA (Howie J agreeing) quoted with approval a statement from the state sentencing case of R v Wiskich [2000] SASC 64, [62] (Martin J):

A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct … if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration … (emphasis added).

3.1.2 Youthful offenders

In some cases ‘age’ may affect the weight given to deterrence. For youthful offenders, rehabilitation may be the dominant consideration in sentencing. In the state case LAL v The Queen [2007] NSWSC 445, McClellan CJ summarised the approach of the law to the sentencing of young offenders stating at [33] that:

The law recognises that when sentencing young offenders considerations of punishment and general deterrence should generally be regarded as subordinate to the need to foster rehabilitation. However, this principle will have less weight where the offending behaviour is such that the young person has conducted themself in a way that an adult does. When extreme violence has been used or the crime otherwise exhibits activities normally associated with an adult the need to protect the community may mean that deterrence and retribution must be given greater weight than might otherwise be the case. Age will be less of a consideration as offenders approach the age of 18 (emphasis added). 18

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3.2 Where general deterrence may carry greater weight

At common law, the circumstances of the offence may increase the weight given to general deterrence. In general, courts have given greater emphasis to general deterrence in cases involving planning, a breach of trust, vulnerable victims, where the offending is difficult to detect and where the offending is motivated by greed.

3.2.1 Cases involving breach of trust in a commercial context

Courts have emphasised the importance of general deterrence in circumstances where the criminal conduct has involved a serious breach of trust. 19

In R v Pantano (1990) 49 A Crim R 328, Wood J noted at 330:

The commercial world expects executives and employees in positions of trust … to conform to exacting standards of honesty … Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences. 20

In Higgins v The Queen [2006] NSWCCA 38, the offender was convicted of dishonest conduct contrary to s 1041G of the Corporations Act 2001 (Cth) and fraudulent misappropriation contrary to s 178A of the Crimes Act 1900 (NSW). In dismissing an appeal against a sentence of 8 years imprisonment with a 5 year non-parole period, Spigelman CJ noted at [13]:

Of particular significance is the gross breach of trust involved both directly to each investor for whom he was an adviser and by purporting to act with the authority of a financial corporation in whom the investors would also have trust. The element of general deterrence is entitled to considerable weight in white collar crimes involving a breach of trust … (citations omitted). 21

3.2.2 White collar crimes

Courts have emphasised the importance of general deterrence as a sentencing factor in sentencing offenders convicted of certain white-collar crimes. 22

In DPP (Cth) v Gregory [2011] VSCA 145, the offender pleaded guilty to three charges related to a tax fraud conspiracy. In upholding an appeal against the inadequacy of the imposed sentence, Warren CJ, Redlich JA and Ross AJA stated at [53]:

In seeking to ensure that proportionate sentences are imposed the courts have consistently emphasised that general deterrence is a particularly significant sentencing consideration in white collar crime … Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration (emphasis added). 23

In Kim v The Queen [2016] VSCA 238, when dismissing an appeal against sentences related to money laundering and dealing with proceeds of crime Redlich, Santamaria and McLeish JJA at [62] referred to ‘the usual requirement that general deterrence be emphasised in sentencing for offences against div 400 [Commonwealth Criminal Code (money laundering offences)]’.

In R v Curtis (No 3) [2016] NSWSC 866, when sentencing an offender for conspiracy to commit insider trading offences McCallum J held that general deterrence was one of the primary considerations in sentencing. McCallum J stated at [51] that:

[T]he efficacy of punishment as a deterrent to others has been doubted in some contexts; to a degree, I share those doubts. In my view, however, punishment by a sentence of imprisonment has real bite as a deterrent to others in the case of white-collar crime. White-collar crime is a field in which, perhaps more than any other, offending is often a choice freely made by well-educated people from privileged backgrounds, prompted by greed rather than the more pernicious influences of poverty, mental illness or addiction that grip other communities. The threat of being sent to gaol, provided it is perceived as a real threat and not one judges will hesitate to enforce, is likely to operate as a powerful deterrent to men and women of business (emphasis added).

3.2.3 Corporations

In DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, Wigney J found at [271] that general deterrence ‘is a significant consideration in sentencing for cartel related offences’. Wigney J set out a number of reasons for that proposition when he stated at [272]–[273] that:

[C]artel conduct is notoriously difficult to detect, investigate and prosecute. It often involves large and sophisticated corporate offenders who can deploy their considerable resources and position to minimise the risk of detection. It is generally accepted that general deterrence is a weighty consideration in sentencing for offences which are difficult to detect and investigate … The importance of general deterrence has also been accepted in imposing penalties for anti-competitive conduct in the civil penalty context …

Second, cartel conduct is an essentially economic or commercial crime that generally involves the offender weighing up whether the benefit or profit from the conduct is likely to outweigh the risks of detection and penalisation. Sentences imposed for such offences should be set so that others who may engage in such a weighing exercise will come to appreciate that the risks are likely to outweigh the benefits: that the likely penalty will be such that it could not be regarded as an acceptable cost of doing business … (citations omitted).

3.2.4 Protected class of victim

General deterrence may be given greater weight if the offence was committed against a protected class of victim. This reflects the common law’s tendency to protect particular classes of persons.

For example, in the state sentencing case of Attorney-General v Thamm (1991) 57 SASR 83, a case concerning unlawful threats made against four Family Court justices, offences contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA), Legoe and Millhouse JJ and Zelling AJ noted at [17] that:

[T]he respondent’s state of mind and the need for deterrence are very important factors in sentencing offenders in respect of these types of offences… These offences were part of a calculated plan. They go to the fundamental basis of the Rule of Law and the administration of justice by judicial officers properly protected from threats to themselves or their families. The offences clearly called for a firm and deterrent sentence (emphasis added).

Similar principles have been applied in relation to child exploitation offences, given the vulnerability of child victims. 24

3.2.4.1 Child exploitation

In sentencing offenders for offences involving child exploitation, general deterrence is considered to be of ‘paramount importance’. 25

In Kaye v The Queen [2004] WASCA 227, the applicant was convicted of offering to assist a person to engage in an act of indecency on a person under the age of 16 outside Australia, contrary to s 50DB(1) of the Crimes Act 1914 (Cth). McLure J noted at [66]:

General deterrence is a weighty factor when dealing with offences relating to sexual conduct with children: Bell v R [2001] WASCA 40. Thus, the penalty should reflect the need for general deterrence, reinforced by the practical difficulties of detection because the acts of child molestation occur overseas.

In Phinthong v The Queen [2011] WASCA 192 the applicant was convicted of importing items of child pornography contrary to s 233BAB(5) of the Customs Act 1901 (Cth).  Mazza J (Buss JA and McLure P agreeing) stated at [24]:

Whether an offender is sentenced under State or Federal Law, the sentencing principles, where an offender is found in possession of child pornography or importing child pornography, are the same … [S]uch offences are not victimless crimes.  Those who are prepared to possess or import it help fuel the demand for it, and in that way encourage the corruption and exploitation of children.  In order to protect children, deterrence is the paramount sentencing consideration (emphasis added).

In R v Freedman [2017] NSWCCA 201, Bellew J (Lonergan J agreeing) reaffirmed the principle that general deterrence is the primary sentencing consideration in child exploitation offences in holding that the imposition of an Intensive Correction Order failed to satisfy this requirement. The offender pleaded guilty to one count of using a carriage service to access child exploitation material contrary to s 474.19(1) of the Commonwealth Criminal Code and one state charge relating to possession of child exploitation material and had been sentenced to an Intensive Correction Order at first instance. Bellew J stated at [89] that:

Whilst an Intensive Correction Order represents a substantial punishment, it is nevertheless one which reflects a significant degree of leniency, simply because it does not involve immediate incarceration … The degree of leniency inherent in the Intensive Correction Order imposed by his Honour in each case failed to satisfy the requirement to have regard to general deterrence, to the point where the importance of that factor on sentence was allowed “to slip through, almost without a trace”… (citations omitted, emphasis added). 26

In DPP (Cth) v Beattie [2017] NSWCCA 301 the offender pleaded guilty to 21 counts of causing a child to engage in sexual intercourse in the presence of the offender contrary to s 272.8(2) and one count contrary to s 272.9(2) of the Commonwealth Criminal Code as well as a state offence relating to possession of child abuse material. Price J (Walton J agreeing, Basten JA agreeing on this point) allowed a Crown appeal against sentence partly on the ground that the sentencing judge had failed to adequately consider the importance of general deterrence. Price J (Walton J agreeing, Basten JA agreeing on this point) stated at [129]–[131] that:

The need for general deterrence is of high importance. In Booth, Simpson J explained at [41] that child pornography could not come into existence without exploitation and abuse of children, who often come from disadvantaged countries that lack resources to provide adequate child protection mechanisms. The same may be said for offences against ss 272.8(2) and 272.9(2) of the Code.

An additional consideration that heightens the need for general deterrence is the difficulty in detecting this class of offending. The Internet provides anonymity for an offender in Australia who can commit the offence via a third party located overseas. The offender can conduct and watch in real-time the sexual abuse of children in a foreign country. Unlike child pornography cases, the offence can be committed without a recording being made of the sexual offence.

Evidence of efforts made towards rehabilitation is important in the exercise of the sentencing discretion … 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 [47]. As in child pornography cases, less weight is given to prior good character as a mitigating factor (emphasis added).

 3.2.4.2 Family violence

Similar remarks have been made in cases involving offences committed against an offender’s former partner. In Hayes v The Queen [2017] VSCA 285, a case concerning a mix of commonwealth and state offences against the offender’s former partner, (Kaye JA and T Forrest AJA) stated at [51] that:

Finally, as noted, the judge accepted that because of his intellectual impairment, the appellant was less suitable as a vehicle for general deterrence. Ordinarily, in cases involving actions of the kind carried out by the appellant towards his ex-partner, general deterrence is a factor which is given substantial weight. Based on the matters contained in Mr Ball’s report, the judge was, in our view, correct in determining that, in this case, the appellant was not a suitable medium for general deterrence, so that the weight to be given to that sentencing function should be appropriately modified (citations omitted, emphasis added).

3.2.5 Serious drug offences

General deterrence is given primary importance in sentencing offender’s convicted of serious drug offences. 27  In Wong v The Queen [2001] HCA 64, the offenders were convicted of being knowingly concerned in the importation of heroin. The High Court noted that the difficulty of detecting such offences ‘suggests that deterrence is to be given chief weight in the sentencing task’. 28

In R v Nguyen; R v Pham [2010] NSWCCA 238, the Court set out a number of general sentencing principles concerning serious drug offences. In relation to the importance of general deterrence, Johnson J (Macfarlan JA and RA Hulme JJ agreeing) noted at [72]:

[T]he difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the QueenLeung v The Queen [[2001] HCA 64] at 607–608 [64];

… the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment …

 … involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served … (citations omitted).

Similar cases have referred to the fact that offenders reap substantial financial reward from this type of offending, elevating the importance of general deterrence. 29

General deterrence may be of even greater significance where the offender has abused a position of trust to commit a serious drug offence. In R v Nikolovska [2010] NSWCCA 169, the offender had used her position as an airline employee to import a marketable quantity of cocaine. The Court noted that ‘general deterrence had a particular relevance in the context of Ms Nikolovska’s offence, by reason of her breach of trust’. 30

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3.2.6 Fraud on the Commonwealth

General deterrence may be given greater weight as a sentencing factor in relation to offences involving fraud on the Commonwealth.

3.2.6.1 Tax Fraud

The principle of general deterrence assumes considerable significance in the determination of an appropriate sentence for tax fraud offences. 31

In DPP (Cth) v Gregory [2011] VSCA 145 the offender was a solicitor convicted of conspiring in a scheme to evade taxation. Warren CJ, Redlich JA and Ross AJA noted at [53] that:

In the case of taxation offences general deterrence is also given special emphasis in order to protect the revenue as such crimes are not particularly easy to detect and if undetected may produce great rewards. ‘Deterrence looms large’ as the present process of self assessment reposes on the taxpayer a heavy duty of honesty.

These remarks were cited with approval by the NSW Court of Criminal Appeal in Milne v The Queen [2012] 24, [296]–[297]. The offender had been convicted of various tax fraud related offences including money laundering and dishonestly obtaining an advantage from the Commonwealth. The Court stated at [297] that:

We agree with these observations, as we do with the general observations throughout the Victorian Court of Appeal’s decision [in DPP (Cth) v Gregory] emphasising the need for sentences for tax fraud to reflect denunciation, general and personal deterrence. The imposition of firm custodial sentences in instances of serious white collar crime is required to ensure that an offender will not return to his or her criminal ways, and that others who are minded to commit tax fraud offences will be deterred from so doing. There is a high community expectation that serious tax fraud will be properly punished and offenders, no matter their business acumen and high status in the commercial world, will be dealt with sternly and appropriately. 32

3.2.6.2 Social Security Fraud

General deterrence may be given greater weight in cases involving social security fraud offences. 33

In R v Purdon (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, McInerney and Donovan AJ, 27 March 1997), the rationale for this principle was explained as follows:

[T]he offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payments of benefits and therefore hardship to those whose need is urgent. It also reflects a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these …

However, a court must still consider all the relevant circumstances of the offender in determining the appropriate sentence. In Kovacevic v Mills [2000] SASC 106, the Court noted at [43]:

In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered (emphasis added).

3.2.6.3 Other Frauds

General deterrence may be given greater weight in cases involving serious and sustained fraud against the Commonwealth.

For example, in El Rakhawy v The Queen [2011] WASCA 209, the Court considered an appeal against sentence by a doctor convicted of eleven counts of dishonestly obtaining a gain from Medicare, contrary to s 135.1 of the Commonwealth Criminal Code. Hall J (Buss JA and McLure P agreeing) stated at [36]:

In any event, it is well established that offences involving serious dishonesty committed over a period of time and involving substantial sums of money will ordinarily result in a term of immediate imprisonment. This is because in such cases the weight to be given to general deterrence is increased and that given to personal factors is reduced … (emphasis added).

3.2.7 Terrorism

Courts have paid particular attention to common law sentencing considerations when sentencing terrorism offenders, including general and specific deterrence. For further commentary on how terrorism offences are sentenced, see Sentencing of Terrorism Offenders.

The rationale for the importance of general deterrence in terrorism offences was explained in R v Alou (No 4) [2018] NSWSC 221. Johnson J stated at [276] that:

The Court must have regard to general deterrence: s.16A(2)(ja). A very strong element of general deterrence is required in sentencing for terrorist offences. Even more so in a case such as this where the terrorist offence has caused death and thus actual harm to the community. It is of critical importance that Courts send a message to persons who are prepared to carry out violent acts such as this that such conduct will not be tolerated and will be met by severe punishment (emphasis added). 34

Similarly, the role of general deterrence extends to ensuring public confidence of the justice system is maintained. 35

The Victorian Court of Appeal considered the role of general deterrence where the offender committed a preparatory terrorism offence, with the intention that the offender himself be killed during the course of the attack. The Court held in DPP (Cth) v Besim [2017] VSCA 158 at [112]:

[T]he fact that the respondent indicated an intention to himself be killed during the course of the Anzac Day terror attack in no way reduces the importance of general deterrence as a sentencing consideration. 36

3.2.8 Integrity of the passport system

General deterrence may be given greater weight in relation to offences that undermine the integrity of the Australian passport system. 37

In Lee v Phelan [2004] ACTSC 28, the offender was convicted of making a false statement contrary to s 10(1) of the Passports Act 1938 (Cth). Connelly J stated at [8]:

It seems to me that in the case of offences which go to the integrity of the Australian passport system, general deterrence is of particular importance.

3.2.9 People Smuggling Offences

General deterrence may be given greater weight in relation to offences involving people smuggling. 38

In the people smuggling case R v Karabi [2012] QCA 47, Muir JA (Chesterman and Fraser JJA agreeing), in rejecting an application for leave to appeal against sentence, stated at [21]:

The role of general deterrence in cases of this kind cannot be doubted. People trafficking: threatens the orderly administration of immigration laws; imposes a financial burden on the Australian public; necessitates the deployment of military, customs and other governmental resources; encourages official corruption in other nations and exploits and imperils the health and lives of those carried, or attempted to be carried, into Australia. 39

However some Courts have emphasised that while general deterrence is significant, it is still one of many factors that a court must take into account. 40 For example, in Jopar v The Queen [2013] VSCA 83, Harper JA noted at [44]–[45]:

[I]t is commonplace to say that general deterrence is an important factor, one which a court must take into account when sentencing for an offence against s 233A of the Migration Act. But, equally, it must be tempered by other sentencing principles with a legitimate place in the process of instinctive synthesis which occurs in any particular sentencing exercise.

The degree of criminality of some who are guilty of an offence against s 233A of the Migration Act may be small. Desperately poor citizens of developing countries, with little or no knowledge of the true purpose of a voyage which they agree to join as crew, and with little or no ability to extract themselves when fully informed of that purpose, will not necessarily be appropriate instruments for a demonstration of the importance of general deterrence in combating the evils of the people smuggling trade (emphasis added).

3.2.10 Illegal fishing

General deterrence may be given greater weight in relation to illegal fishing offences. 41

In Haruma v McCarthy [2008] NTSC 18, Southwood J noted at [34], [36]:

The importance of general deterrence in the protection of the Australian Fishing Zone is well recognized, particularly where substantial profits can be made by persons engaged in the commercial fishing industry: Yusup v R [2005] NTCCA 19; Mackay v Diman [1999] NTSC 96. I accept the respondent’s submissions that courts have continually reinforced the need for deterrent penalties in order to protect Australian fisheries from foreign fishing boats.

Personal and general deterrence are matters to which significant weight should be given in cases such as this. 42

3.2.11 Planning

General deterrence has been given greater weight where the offence is well planned and premeditated. 43

In R v Cappadona [2001] NSWCCA 194 the offender was convicted of defrauding the Australian Taxation Office in the sum of $3.5 million contrary to s 29D (since repealed) of the Crimes Act 1914 (Cth). The Court of Appeal considered the high degree of premeditation and planning persuasive when it stated at [29]–[30] that:

The offences committed … involved a systematic fraud over a period in excess of five years. In an attempt to avoid detection [the offender] created fake business records and when the frauds were uncovered, provided false information and documentation to the Australian Taxation Office in an attempt to avoid detection. The frauds involved a very large sum of revenue – at least $3.5 million.

… [T]his evidences very serious criminal conduct by [the offender]. Although this is not an offence of the most grave category, even after making allowance for the favourable matters identified by the trial judge, a custodial sentence was required. Only a custodial sentence can achieve the objective of general deterrence for this type of fraud … (emphasis added). 44

3.2.12 Aircraft Offences

General deterrence may be given greater weight in cases involving aircraft offences.

In R v Crumpton [2016] NSWCCA 261, the Court allowed a Crown appeal against sentence for offences relating to operating a private aircraft in a manner reckless as to endanger life and another person. Davies J ( Beazley P and Garling J agreeing) stated at [59]–[60] that:

In my opinion, general deterrence is a significant matter where an offence is committed in relation to the flying of an aircraft. Unlike drivers of motor vehicles who make up most of the adult population, pilots of aircraft are a small group in society. Contrary to the submission of the Respondent when seeking to adduce the further evidence, the smaller rather than the larger group is more likely to be deterred from offending. Aircraft accidents in this country are relatively rare because of the high standard of training and regulation. …

Punishment of those who commit offences involving flying aircraft is calculated to come to the attention of the relatively small group of persons involved in doing so in the community. Analogy in that regard with the effect of general deterrence on white collar crime is not misplaced for some of the reasons that have been offered in cases such as insider trading and associated market offences: DPP (Cth) v Gregory (emphasis added).

 These remarks were referred to by prosecutors in R v Jones [2019] QDC 79, where the offender pleaded guilty to five counts of flying a commercial aircraft without an Australian commercial pilot’s licence and creating a false commonwealth document (namely a commercial pilot’s licence). In respect to that submission, Smith DCJA stated in Jones at [80] that:

As to the flying without a licence charges I consider deterrence is an important sentencing consideration here. CASA [Civil Aviation Safety Authority] is charged with safety of our airways and it is crucial that people be appropriately licensed when flying aircraft (emphasis added).

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Notes:

  1. Specific deterrence is also referred to as personal deterrence by some judicial officers and commentators.
  2. Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006), [4.6]–[4.11]; A Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 251; Kate Warner, Sentencing in Tasmania (2nd ed, 2002) [3.206].
  3. See Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth).
  4. R v El Karhani (1990) 97 ALR 373, 380; R v Paull (1990) 20 NSWLR 427, 434; R v Sinclair (1990) 51 A Crim R 418; Tapper v The Queen (1992) 111 ALR 347, 351–2; Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [93]Putland v The Queen [2004] HCA 8, [12]; R v Fodera [2007] NSWSC 1242, [7].
  5. See R v Tsiaras [1996] 1 VR 398, 400: R v Z [2006] NSWCCA 342, [48] (Beazley JA, Howie J agreeing); Guerrero v Dickson [2013] WASC 246, [28] (Hall J); Twigden v Centrelink [2010] SASC 154, [46] (Gray J); Tramontano v The Queen [2002] NTCCA 4, [56] (Riley J, Martin CJ agreeing). For further commentary, see Mental Condition.
  6. The principles from Verdins have been frequently applied in the federal context. See, eg, Edwards v The Queen [2013] VSCA 188, [9], [31] (Osborn JA, Nettle and Coghlan JJA agreeing); R v Kent  [2009] VSC 375, [41], Wheeler v The Queen (No 2) [2010] WASCA 105, [6] (McLure P, Newnes JA agreeing); Melham v The Queen [2011] NSWCCA 121, [57]–[60] (Garling J, Johnson J and Macfarlan JA agreeing); Agostino v Cleaves [2010] ACTSC 19, [53]–[56] (Refshauge J).
  7. See also Du Randt v The Queen [2008] NSWCCA 121, [24]–[37]. Similar observations were made in R v Cowley [2017] ACTSC 213, [48] when Mossop J stated that ‘In the light of the evidence I consider that the need for specific deterrence is minimal. The circumstances in which the offending conduct took place were out of the ordinary for the … offender associated with a decline in his mental health and an increase in his alcohol consumption.’
  8. For further commentary on the application of Verdins, see 5.1 Mental Condition as a mitigating factor. See also DPP (Cth) v Beattie [2017] NSWCCA 301, where the Court held at [205], if there is evidence that the condition means the offender is likely to re-offend, specific deterrence may carry more weight.
  9. Specific deterrence may carry greater weight in tax fraud cases in certain circumstances, see Milne v The Queen [2012] NSWCCA 24, [297]. See also Dickson v The Queen [2016] NSWCCA 105, [212] (Schmidt and Wilson JJ, Macfarlan JA agreeing).
  10. See also R v Johnson [2014] VSC 175, [87] (Macauley J). This decision was appealed and the appeal dismissed by the Court of Appeal in Johnson v The Queen [2014] VSCA 286.
  11. See also R v Hall (No 2) [2005] NSWSC 890, [118]; R v Loiterton [2005] NSWSC 905,  [188]. But see the broad approach taken to specific deterrence in Comptroller-General of Customs v Parker (No 3) [2006] NSWSC 1269, [21] (Simpson J), described above.
  12. The amendment operates from 27 November 2015 whether the person is convicted before, at or after that date. See Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) sch 7.
  13. Thompson v The Queen [2005] WASCA 223, [55].
  14. See also R v Tsiaras [1996] 1 VR 398, 400 where the court noted ‘[A] prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence’. R v Tsiaras was cited in Thompson v The Queen [2005] WASCA 223, [52]. DPP (Cth) v De La Rosa [2010] NSWCCA 194, was applied in the federal sentencing case of Ching v The Queen [2018] NSWCCA 101, [14], [25] when Adamson J (Basten JA and Johnson J agreeing) found that there was no error in the way the sentencing judge considered how the offender’s major depressive illness reduced the importance of general deterrence.
  15. Muldrock v The Queen [2011] HCA 39, [53]–[54], quoting R v Mooney (unreported, Victorian Court of Criminal Appeal, 21 June 1978) 5.
  16. See further, Hayes v The Queen [2017] VSCA 285, [51].
  17. R v Tsiaras [1996] 1 VR 398, 400 cited in Thompson v The Queen [2005] WASCA 223, [52]. This principle has also been applied in several terrorism sentencing decisions, including R v Sharrouf [2009] NSWSC 1002, [62]; R v Taleb (No 5) [2019] NSWSC 720, [59]; R v Bayda; R v Namoa (No 8) [2019] NSWSC 24, [117].
  18. See further, Rehabilitation and Age.
  19. See, eg, R v Pantano (1990) 49 A Crim R 328, 330; R v Fodera [2007] NSWSC 1194, [59]; Bell v The Queen [2008] NSWCCA 206, [18]–[19].
  20. See also 3.3.2 White Collar Crimes.
  21. See also R v Pantano (1990) 49 A Crim R 328, 330; R v Adler [2005] NSWSC 274, [47] (Dunford J); DPP (Cth) v Gaw [2006] VSCA 51, [11] (Callaway JA, Eames and Ashley JJA agreeing); DPP (Cth) v Page [2006] VSCA 224, [37] (Eames JA, Vincent and Redlich JJA agreeing); R v Fodera [2007] NSWSC 1194, [59] (Bell J); R v Lo [2007] NSWSC 105, [49]–[50] (McClellan CJ at CL); Bell v The Queen [2008] NSWCCA 206, [18]–[19] (Price J,  Barr J and McClellan CJ at CL agreeing).
  22. See, eg, R v Zhu [2013] NSWSC 127, [12] (Hall J).
  23. Similar remarks were made in Samarakoon v The Queen [2018] VSCA 119, [99]–[100] (Beach and Niall JJA) in relation to taxation offences that are ‘not easy to detect and, if undetected, may produce great rewards’. See also R v Thorn [2016] ACTSC 217, [104]–[105] (Refshauge J); R v Issakidis [2018] NSWSC 378, [83] (Harrison J).
  24. For example, in Phinthong v The Queen [2011] WASCA 192, [24] Mazza J (Buss JA and McLure P agreeing) referred to the need to protect children when outlining that deterrence is the paramount sentencing consideration in child exploitation offences.
  25. R v Wicks [2005] NSWCCA 409, [39] (McClellan CJ at CL, Adams and Hoeben JJ agreeing).
  26. In this case, Leeming JA (in dissent) agreed with Bellew J that error had been established, but would have refused the appeal in the exercise of the Court’s residual discretion given the delay by the Director in appealing the sentence see [15]–[42]. See also R v Cowley [2017] ACTSC 213, [48] (Mossop J). For further on Intensive Correction Orders, see Additional Sentencing Alternatives.
  27. See, eg, R v Schofield [2003] NSWCCA 3, [162] (Carruthers AJ, Heydon JA agreeing); Kauwenberghs v The Queen [2008] NSWCCA 98, [110] (Fullerton J, Beazley JA and Hall J agreeing); R v Lau [2009] WASCA 99, [42]–[44] (Wheeler JA, Owen and Miller JA agreeing). See also R v Burtt [2018] SASCFC 5, [61] (Parker J, Kourakis CJ and Stanley J agreeing).
  28. Wong v The Queen [2001] HCA 64, [64].
  29. See, eg, DPP v Masanage [2017] VSCA 204, [140]. In Masange the DPP’s appeal was dismissed under the Court’s residual discretion.
  30. R v Nikolovska [2010] NSWCCA 169, [57] (Kirby, Beazley JA and Johnson J agreeing). See also Judicial Commission of New South Wales, ‘Sentencing Commonwealth Drug Offenders’ (Research Monograph No 38, Judicial Commission of New South Wales, June 2014) 26.
  31. See, eg, R v Stitt (1998) 102 A Crim R 428 (Dunford J, Beazley JA and Wood CJ agreeing); R v Cappadona [2001] NSWCCA 194, [13] (McClellan J, Stein JA and Foster AJA agreeing); DPP (Cth) v Goldberg [2001] VSCA 107, [51] (Vincent JA, Winneke P and Batt JA agreeing); R v Caradonna [2000] NSWCCA 398, [22] (Dunford J, Wood CJ at CL and Carruthers AJ agreeing); R v Boughen [2012] NSWCCA 17, [66]–[91] (Simpson J, Hislop and Latham JJ agreeing).
  32. See also Dickson v The Queen [2016] NSWCCA 105, [212] (Schmidt and Wilson JJ, Macfarlan JA agreeing).
  33. See, eg, Director of Public Prosecutions (Cth) v Reynolds [1999] VSCA 22 4, [19]–[21] (Batt JA, Tadgell and Callaway JJA agreeing); Kovacevic v Mills [2000] SASC 106,[37]–[45] (Doyle CJ, Mullighan, Bleby and Martin JJ); DPP (Cth) v Milne [2001] VSCA 93, [13] (Winneke ACJ, Ormiston and Buchanan JJA agreeing); R v Aller [2004] NSWCCA 378, [7] (Campbell AJ, Hulme and Buddin JJ agreeing); R v Brewer [2004] ACTCA 10, [12]–[18] (Gray, Connolly and Gyles JJ); R v Hurst; Ex parte Director of Public Prosecutions (Cth) [2005] QCA 25; Harding v Moreland [2006] WASC 8, [28]–[30] (Hasluck J);  Pennington v McLean [2008] TASSC 4, [10]–[12] (Underwood CJ).
  34. See also R v Atai (No 2) [2018] NSWSC 1797, [377].
  35. R v Alqudsi [2016] NSWSC 1227, [98] (Adamson J) citing Markarian v The Queen [2005] HCA 25[82] (McHugh J).
  36. See also, DPP (Cth) v MHK [2017] VSCA 157, [53].
  37. See, eg, Grahame v Singh [2010] SASC 306, [22]–[25] (Doyle CJ); Lee v Phelan [2004] ACTSC 28, [8] (Connelly J).
  38. R v Feng Lin [2001] NSWCCA 7, [3] (Mason P); [73] (Carruthers AJ, Hidden J agreeing); Ilam v Dando [1999] WASCA 129, [12]–[14] (McKechnie J); R v Karabi[2012] QCA 47, [21] (Muir JA, Chesterman and Fraser JJA agreeing),  R v Latif, ex parte Cth DPP [2012] QCA 278, [27]–[28] (Fraser JA, Gotterson JA and Mullins J agreeing);  Jopar v The Queen [2013] VSCA 83, [2]–[7] (Weinberg JA), [90]–[91] (Priest JA); Bifel v The Queen [2013] VSCA 82, [3] (Harper JA); [36] (Priest JA, Weinberg JA agreeing); R v Rakiba [2014] ACTSC 373, [14]–[18] (Refshauge J).
  39. Muir JA’s comments were made in relation to an appeal against sentence imposed for aggravated people smuggling, which carries a minimum term of 5 years imprisonment: Migration Act 1958 (Cth) ss 233C, 236B. In  Jopar v The Queen [2013] VSCA 83, [7]–[8] Weinberg JA cited Mur JA’s comments and noted that while the comment was directed towards the aggravated form the offence, ‘the view that general deterrence is important in cases of people smuggling seems to be me to be applicable as well to the lesser offence under s 233A(1).’
  40. See, eg, Jopar v The Queen [2013] VSCA 83, [44]–[45] (Harper JA), [91] (Priest JA); Bifel v The Queen [2013] VSCA 82, [3]–[5] (Harper JA).
  41. See, eg, R v Zainudin [2005] NTSC 14, [13].
  42. The decision was adjusted on appeal to backdate the sentences imposed at first instance. The appeal did not concern general deterrence see Alimudin v McCarthy [2008] NTCA 7.
  43. See, eg, R v Temmingh [2005] NSWCCA 26, [20], [25] (Hoeben J); R v Liddell [2000] VSCA 37, [74] (Coldrey AJA). The role of general deterrence has also been considered in preparatory terrorism offences, see 3.2 Assessing preparatory offences. See further, Nature and Circumstances of the Offence.
  44. See also Sentencing Terrorism Offenders 3.2 Assessing preparatory offences.