Skip to content

Welcome to the COMMONWEALTH SENTENCING DATABASE

Deterrence

The content on this page was last reviewed on 08 March 2016.


Recent cases alert 

DPP (Cth) v Beattie [2017] NSWCCA 301 — in engaging child in sexual acts offences, heightened need for specific deterrence due to offender’s paraphilic disorder.
R v Freedman [2017] NSWCCA 201 — degree of leniency inherent in ICO failed to satisfy requirement to have regard to general deterrence in child exploitation offence.
DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 — general deterrence significant sentencing consideration for cartel related offences because cartel conduct notoriously difficult to detect, investigate and prosecute, and sentences imposed for such offences should be set so that likely penalty will be such that it could not be regarded as acceptable cost of doing business.
R v Cowley [2017] ACTSC 213 — importance of general deterrence increased by ubiquity of internet and social media and difficulty in detecting offending conduct in use of carriage service to transmit indecent communications offence.
DPP (Cth) v MHK
[2017] VSCA 157
— distinguished Benbrika v The Queen [2010] VSCA 281 where no such sentences would have been imposed today having regard to scourge of modern terrorism and development of sentencing principles.
R v Crumpton [2016] NSWCCA 261 — general deterrence significant consideration in relation to offences involving the reckless operation of aircraft.
Kim v The Queen [2016] VSCA 238 — general deterrence to be given significant weight in money laundering offences contrary to div 400 of the Commonwealth Criminal Code.
R v Besim [2016] VSC 537 — general deterrence remains important sentencing consideration despite being hard to achieve in terrorism cases.
R v Curtis (No 3) [2016] NSWSC 866 — primacy of general deterrence for white-collar offences and need to dispel any perception that white collar offenders treated more favourably.
*Guidance from these cases has not yet been incorporated into the commentary

1.  Overview

In sentencing a federal offender regard should be had to both specific and general deterrence. Specific deterrence aims to dissuade the individual offender from committing further offences by imposing sanctions which demonstrate the adverse consequences of criminal activity. General deterrence aims to deter prospective offenders by instilling the fear of incurring similar sanctions. 1

Specific deterrence is identified in s 16A(2)(j) and general deterrence is identified in s 16A(2)(ja) of the Crimes Act 1914 (Cth). Prior to November 2015, general deterrence was not specifically recognised in s 16A(2), 2 however courts had repeatedly stated that general deterrence was a relevant factor in sentencing federal offenders. 3

Return to Top

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, [21]:

…it 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).

2.1 Where specific deterrence may carry less weight

2.1.1 Mental Health Condition

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 and is often ‘not worth pursuing’ where the offender is affected by a serious mental illness. 4

In R v Verdins [2007] VSCA 102, the Court held that specific deterrence may be either 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. 5

In Thompson v The Queen [2005] WASCA 223, Steytler P (McLure JA agreeing) noted at [54] that:

…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. 6

2.1.2 White collar crimes

Specific deterrence may carry less weight in relation to certain white-collar offences.

In R v Fodera [2007] NSWSC 1194, [27], Latham J cited as apposite 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. 7

Specific deterrence was deemed unnecessary in sentencing several persons convicted of offences under the Corporations Act 2001 (Cth) where those offenders were aged in their late sixties had already received lengthy bans from managing a corporation: R v Hall (No 2) [2005] NSWSC 890, [118]; R v Loiterton [2005] NSWSC 905,  [188]. 8

Return to Top

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

Prior to November 2015, there was no reference to general deterrence in s 16A(2). However, courts had repeatedly stated that general deterrence was a relevant consideration in sentencing federal offenders. 9 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). 10 The Explanatory Memorandum states:

… there is no reference in the Act to general deterrence to others as a sentencing principle. This omission has caused judicial concern as it is regarded as an important sentencing factor and is specifically included in most State or Territory legislation. While the list in subsection 16A(2) is non-exhaustive, introducing general deterrence into the Crimes Act will remove the need for courts to read in` general deterrence as a sentencing factor, thereby aligning the Act with comparable State and Territory sentencing legislation and further ensuring the application of relevant and consistent sentencing factors. 11

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).

3.1 Where general deterrence may carry less weight

3.1.1 Mental Health Condition

While general deterrence is always a relevant consideration, it may carry less weight where an offender is suffering from a mental health condition: Thompson v The Queen [2005] WASCA 223, [55].

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.

In R v Tsiaras [1996] 1 VR 398, the court noted at 400 that:

…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. 12

The High Court recently reaffirmed this principle in Muldrock v The Queen [2011 HCA 39, an appeal against a sentence imposed for a state offence. 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. 13

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 said 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.

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 R v Z [2006] NSWCCA 342, Beazley JA (Howie J agreeing) cited R v Wiskich [2000] SASC 64, [62] at [70]:

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…

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: R v Tsiaras [1996] 1 VR 398, 400 cited in Thompson v The Queen [2005] WASCA 223, [52].

Return to Top

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 LAL v R PN [2007] NSWSC 445, McClellan CJ summarised the approach of the law to the sentencing of young offenders:

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).

See further Rehabilitation and Age.

Return to Top

3.2 General deterrence and specific circumstances

At common law, the circumstances of the offence may affect the weight given to general deterrence. Some specific circumstances have been identified and discussed below.

3.2.1 Breach of trust

Courts have emphasised the importance of general deterrence as a sentencing factor in circumstances where the criminal conduct of executives or employees has involved a serious breach of trust. 14

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. 15

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 eight years imprisonment with a non-parole period of five years, 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 (see eg R v Glenister [1980] 2 NSLWR 597; R v Pantano (1990) 49 A Crim R 328 at 330). 16

Return to Top

3.2.2 White collar crimes

Courts have emphasised the importance of general deterrence as a sentencing factor in sentencing offenders convicted of white-collar crimes. 17

For example, in DPP (Cth) v Gregory [2011] VSCA 145, 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.

Return to Top

3.2.3 Class of victim

General deterrence may be given greater weight than might otherwise be the case 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 Attorney-General (Cth) v Thamm (1991) 57 SASR 83, [18] a case dealing with unlawful threats made against a judicial officer, Legoe and Millhouse JJ and Zelling AJ noted at [17] that:

…the 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).

Return to Top

3.2.4 Child exploitation

In sentencing offenders for offences involving child exploitation, general deterrence is considered to be of ‘paramount importance’. 18

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).

Return to Top

3.2.5 Drugs

General deterrence is given primary importance in sentencing for serious drug offences. 19 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’. 20

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: R v Chen and Ors [2002] NSWCCA 174;130 A Crim R 300 at 382—383 [286]R v Stanbouli [2003] NSWCCA 355141 A Crim R 531 at 552—553 [114];
… involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4105 A Crim R 474 at 476 [6];

General deterrence may be of particular 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’. 21

Return to Top

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 taxation fraud. 22

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]:

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.

Return to Top

3.2.6.2 Social Security Fraud

General deterrence may be given greater weight in cases involving social security fraud offences. 23

In R v Purdon [1996] NSWCCA 60659 (Unreported, Hunt CJ at CL, McInerney and Donovan AJ, 27 March 1997), the rationale for this principle was explained as follows:

…the 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).

Extraordinary circumstances may take a particular case outside the normal approach and in those circumstances general deterrence may not play such a important role: R v Gentz [1999] NSWCCA 285 (Newman J, Simpson and Hidden JJ agreeing).

Return to Top

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).

Return to Top

3.2.7 Terrorism

General deterrence needs to be carefully considered in light of the particular circumstances of the case. In some cases involving terrorism general deterrence has been given greater weight. 24 However, in other cases it is seen as less significant, and protection of the community has been emphasized. 25

In R v Roche [2005] WASCA 4, Murray ACJ stated at [24] that in cases of terrorism courts must impose a sentence:

…which would be a strong deterrent to others who might be tempted to allow themselves to be involved in such an activity.

In R v Lodhi [2006] NSWSC 691, Whealy J explained the rationale for this principle at [91]—[92]:

The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. 26

Whealy J’s comments were cited with approval on appeal in Lodhi v The Queen [2007] NSWCCA 360 by Price J. However, Spigelman CJ suggested that deterrence might be entitled to less weight ‘whenever it appears that the force of ideological or religious motivation is such that deterrence is unlikely to work’. 27

In Lodhi v The Queen [2007] NSWCCA 360, Spigelman CJ suggested that in such a context, the protection of the community would be entitled to greater weight. 28 He stated at [88]:

The crimes under consideration in the present case, in which the conduct must occur with the “intention of advancing a political, religious or ideological cause” (Div 100.1) [Commonwealth Criminal Code], together with the findings of fact made by Whealy J, suggest that deterrence is of less significance than usual. In such a context, the element of protection of the community is entitled to greater weight than may otherwise be appropriate (emphasis added).

Spigelman CJ’s observations were applied in Fattal v The Queen [2013] VSCA 276 in considering an appeal against sentences imposed for conspiring to do acts in preparation for, or planning, a terrorist attack contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code.

In Fattal v The Queen [2013] VSCA 276,  the sentencing judge had noted that while the issue of general deterrence was ‘of importance, it must be tempered by the realisation … that people committed to terrorism and martyrdom … are highly unlikely to be deterred by the incarceration of others.’ 29 In dismissing the Crown’s submission that the sentencing judge undervalued the importance of general deterrence, Buchanan AP, Nettle and Tate JJA stated at [231]:

We are not persuaded that her Honour erred in diminishing the weight to be given to general deterrence in a case such as this… [I]t was recognised by Spigelman CJ in Lodhi that people who are prepared to commit these types of offences, which may involve suicide as a form of martyrdom, are unlikely to be deterred by harsh sentences of imprisonment. Her Honour also recognised that where general deterrence is reduced, the protection of the community is very significant, as is specific deterrence.

However, the sentencing judge in R v Fattal [2011] VSC 681, in contrast to the Victorian Court of Appeal, had also noted that ‘[i]rrespective of whether or not it will work, it is still a necessary factor to ensure that people understand crimes of this nature attract significant penalties, and lengthy periods of sitting, unhappily in a prison cell.’ 30

On a different occasion the Victorian Court of Appeal stated that general deterrence is of ‘vital importance’ in sentencing offenders for terrorism offences: Benbrika v The Queen [2010] VSCA 281, [557] (Maxwell P, Nettle and Weinberg JJA).

Return to Top

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. 31

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.

Return to Top

3.2.9 People Smuggling

General deterrence may be given greater weight in relation to offences involving people smuggling. 32

In 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. 33

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. 34

For example, in Jopar v The Queen [2013] VSCA 83, Harper JA noted at [44]—[45]:

… it 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).

Return to Top

3.2.10 Illegal fishing

General deterrence may be given greater weight in relation to illegal fishing offences. 35

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.

Return to Top

3.2.11 Planning

General deterrence has been given greater weight in circumstances where the offence is well planned and premeditated. 36

In R v Cappadona [2001] NSWCCA 194, [13] 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, noting that it involved systematic fraud over a period of more than five years. In an attempt to avoid detection, the offender created fake business records and provided false documentation to the Australian Taxation Office. The court concluded:

…this evidences very serious criminal conduct by Tom Cappadona. 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)

Return to Top

 

Notes:

  1.  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].
  2.  See Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). 
  3.  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].
  4.  Citing 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).
  5. 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).
  6. See also Du Randt v The Queen [2008] NSWCCA 121, [24]—[37].
  7.  See also R v Johnson [2014] VSC 175, [87] (Macauley J).
  8.  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. 
  9.  DPP (Cth) 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—352; Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [93]Putland v The Queen [2004] HCA 8, [12]; R v Fodera [2007] NSWSC 1242, [7].
  10.  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. 
  11.  Explanatory Memorandum, House of Representatives, Crimes Amendment (Powers, Offences and Other Measures) Bill 2015, 67.
  12.  Cited in Thompson v The Queen [2005] WASCA 223, [52].
  13.  Muldrock v The Queen [2011] HCA 39, [53]—[54], quoting R v Mooney (unreported, Victorian Court of Criminal Appeal, 21 June 1978) 5.
  14.  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].
  15.  See also 3.3.2 White Collar Crimes. 
  16.  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).
  17.  See, eg, R v Zhu [2013] NSWSC 127, [12] (Hall J).
  18.  R v Wicks [2005] NSWCCA 409, [39] (McClellan CJ at CL, Adams and Hoeben JJ agreeing).
  19.  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).
  20.  Wong v The Queen [2001] HCA 64, [64].
  21.  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.
  22.  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).
  23.  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).
  24.  See, eg, R v Lodhi [2006] NSWSC 691, [91]—[92] (Whealy J), approved in Lodhi v The Queen [2007] NSWCCA 360, [273] (Price J); DPP (Cth) v Thomas [2006] VSC 120, [14] (Cummins J); R v Touma [2008] NSWSC 175, [73] (Whealy J); R v Mulahalilovic [2009] NSWSC 1010, [42] (Whealy J); Benbrika v The Queen [2010] VSCA 281, [557] (Maxwell P, Nettle and Weinberg JJA); Khazaal v The Queen [2011] NSWCCA 129, [162]—[167] (McClellan JA), approved in Khazaal v The Queen (No 2) [2013] NSWCCA 140, [36]—[43] (McCallum J).
  25.  See, eg, Lodhi v The Queen [2007] NSWCCA 360, [88] (Spigelman CJ); Fattal v The Queen [2013] VSCA 276, [231] (Buchanan AP, Nettle and Tate JJA).
  26.  See also R v Mallah [2005] NSWSC 317, [78]—[82] (Wood CJ at CL).
  27.  Lodhi v The Queen [2007] NSWCCA 360, [87] (Spigelman CJ).
  28.  Lodhi v The Queen [2007] NSWCCA 360, [88] (Spigelman CJ).
  29.  R v Fattal [2011] VSC 681, [84] (King J).
  30.  R v Fattal [2011] VSC 681, [84] (King J).
  31.  See, eg, Grahame v Singh [2010] SASC 306, [22]—[25] (Doyle CJ); Lee v Phelan [2004] ACTSC 28, [8] (Connelly J).
  32.  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 281, [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).
  33.  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).’
  34.  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).  
  35.  See, eg, R v Zainudin [2005] NTSC 14, [13].
  36.  See, eg, R v Temmingh [2005] NSWCCA 261, [20], [25] (Hoeben J); R v Liddell [2000] VSCA 37, [74] (Coldrey AJA).