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Taking into Account Other Offences

The content on this page was last reviewed on 24 April 2018.

1. Overview

Two sections in the Crimes Act 1914 (Cth) govern taking other offences into account in federal sentencing: s 16A(2)(b) and s 16BA.

1.1 Section 16A(2)(b)

Section 16A(2) is a general sentencing provision that contains a list of matters a court must take into account, where relevant and known, when passing a federal sentence. Subsection (b) of this list provides that a court must take into account ‘other offences (if any) that are required or permitted to be taken into account‘.

1.2 Section 16BA

The procedural scheme for taking other offences into account under federal sentencing is set out in s 16BA. In Putland v The Queen [2004] HCA 8, Gummow and Heydon JJ stated at [56]:

Section 16BA provides a procedure whereby in certain circumstances in passing sentence for convictions the court may take into account offences in respect of which guilt is admitted but there has been no trial.

Under s 16BA a court sentencing a federal offender may only take other federal offences or prescribed offences against the law of an external Territory into account. A court cannot take state offences into account under s 16BA.

2. Application of s 16BA

Section 16BA consists of twelve subsections which set out the conditions that must be satisfied and the consequences of taking other offences into account.

This scheme prescribes a procedure through which ‘Parliament intends to limit the taking into account of other offences … to those cases in which the [federal] procedure is observed’. 1

2.1 Overview of federal procedural scheme

A court may take other offences into account in passing a federal sentence under s 16BA(2) where the conditions set out in s 16BA(1) are met:

(1)  Where a person is convicted of a federal offence or federal offences, 2 and the court before which the person is convicted is satisfied that:

 

(a)  there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section; 3

 

(b)  the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, 4 which the person convicted is believed to have committed; 5

 

(c)  the document has been signed:

(i)  by the Director of Public Prosecutions;

(ii)  for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or

(iii)  by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;

and by the person convicted;

 

(d)  a copy of the document has been given to the person; and

 

(e)  in all the circumstances it is proper to do so; 6

the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted. 7

The Court must also have jurisdiction to try the offences in order to take the offences into account. 8

The sentence that is imposed by the court cannot exceed the maximum penalty that the court would have been empowered to impose had no additional offences been taken into account: s 16BA(4). See below 3.1.4 Penalty must not exceed maximum penalty for the offence of which the person is convicted

Once the offences have been taken into account, the court must certify upon the ‘Form 1′ document filed in the court the federal offence/s of which the person has been convicted and the offence/s admitted to that have been taken into account. The effect of this is that further proceedings are then prohibited from being brought in relation to the admitted offences unless the conviction for the federal offence or federal offences is quashed or set aside: s 16BA(8). See below 3.3 Further or later proceedings.

2.2 Other offences only to be taken into account once

The court must not take into account the other offence(s) prescribed pursuant to s 16BA into account in relation to more than one of the offence(s) for which the offender is being sentenced. That is, more than one sentence cannot be increased by taking into account the sameForm 1’ offence(s). 9

In Assafiri v R [2007] NSWCCA 159, Howie J (Basten JA and Grove J agreeing) held at [9]:

Although the terms of s 16BA might suggest that matters can be taken into account when sentencing for more than one Federal offence, it cannot have been the intention of the legislature that more than one sentence could be increased by taking into account the same offences. Obviously that would result in double counting the matters being taken into account. This might not be of practical significance when the sentences are being served concurrently. But it would clearly be unfair to do so when some or all of the sentences are being served cumwas the case here.  … [T]he form pursuant to s 16BA should refer to only one offence, being that to which the matters taken into account should apply. 10

2.3 Judicial discretion

The sentencing court has discretion as to whether or not it will permit all or any of the federal offences to be taken into account under s 16BA.

The court must be satisfied that all of the statutory requirements have been complied with. 11 This includes a requirement that the court is satisfied that ‘in all the circumstances it is proper’ to take the listed offences into account. 12  Moreover, s 16BA(2) provides ‘the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.’

2.3.1 Judicial comments on exercising the discretion

In DPP v Ip [2005] ACTCA 24, the Australian Capital Territory Court of Appeal noted at [47] that: ‘[t]he judicial discretion should be actively and carefully considered’.

A court exercises a wide discretion over whether it may be proper, in all the circumstances, to take the other offences into account. For example, in R v Holland [2002] WASCA 265, the court found that it was appropriate to take 190 federal offences related to a sophisticated tax fraud scheme into account under s 16BA. 13

Established judicial practice favours taking into account offences which are of the same kind and gravity as the principal offence for which the offender has been convicted. 14

2.3.2 The exercise of discretion and serious offences

There is no prohibition on a court sentencing a federal offender from using this provision to take serious federal offences into account. 15 While some state and territory sentencing legislation expressly prohibits a court from taking into account offences punishable by life imprisonment, 16 the Crimes Act 1914 (Cth) does not contain an express prohibition. 17

Nonetheless, a court may determine that it is not proper to take a serious federal offence into account where in the circumstances those offences should be separately investigated and prosecuted. 18

2.3.3 Consideration of the rationale may assist in exercising discretion

Consideration of the rationale for taking offences into account may assist the court in determining whether it is proper to take the offences into account in the circumstances of each case. The NSW Court of Appeal observed that two public benefits have been consistently raised in relation to taking other offences into account. In Attorney General’s Application [2002] NSWCCA 518, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said at [63]–[64] that:

First, the opportunity for an offender to emerge from the sentence for the primary offence with a clean slate promotes the objective of rehabilitation … Secondly, there is a utilitarian value in the admission of guilt which may save resources for law enforcement agencies, particularly where investigations are continuing …

On issues that arise that are not in the public’s interest, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) continued at [65], [67] stating that:

Law enforcement agencies and even courts may receive a perceived organisational benefit from increased disposal rates, but such institutional advantages should not be confused with the public interest.

[67] By the reason of express statutory power, a sentencing judge must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences. There will be cases in which, for example, the administration of justice could be bought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow, or artificial basis.

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3. Consequences of Taking Other Federal Offences into Account

Section 16BA sets out the consequences for the offender of having other federal offences taken into account. There are restrictions upon the sentencing court with regard to how it may take other offences into account and the effect that this may have on the sentence imposed.

3.1 Penalty

The penalty imposed for the convicted federal offence may be increased as a result of taking other offences into account and having regard to the offender’s overall culpability.

In Attorney General’s Application [2002] NSWCCA 518, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) set out general principles applicable to taking other state offences into account. Subsequent case law in NSW has held that these general principles should be complied with in the sentencing of Commonwealth offenders. 19 Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) stated in Attorney General’s Application [2002] NSWCCA 518, at [41]–[44]:

In Barton [[2001] NSWCCA 63] at [64], in a passage subsequently referred to in R v AEM Snr at [81] and R v Perese at [81], I made some observations which I repeat.

 

The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

 

I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge … The important point is that the focus throughout must be on sentencing for the primary offence.

 

The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences (emphasis added).

3.1.1 Penalty imposed for primary offence only

The ACT Court of Appeal cited Attorney General’s Application [2002] NSWCCA 518 in DPP v Ip [2005] ACTCA 24, while commenting on the operation of s 16BA of the Crimes Act 1914 (Cth). The Court stated at [49] that:

Where the sentencer decides to take the listed matter into account, the matter must really and substantially, that is to say fully, be taken into account, even though, as Attorney General’s Application [2002] NSWCCA 518 makes clear, it is only the principal offence (and only its maximum available sentence) in relation to which sentence is being passed.

See also R v Segal [2006] NSWSC 621 where the offender pleaded guilty to four offences against s 31 of the Financial Transaction Reports Act 1988 (Cth) and admitted guilt in relation to a further five offences under s 16BA of the Crimes Act 1914 (Cth). In his remarks on sentence Hidden J stated at [13] that:

In dealing with the four offences on the indictment, I must have regard to the criminality disclosed by the additional offences on the form under s16BA of the Crimes Act (emphasis added).

In Zangana v The Queen [2015] NSWCCA 102, Hoeben CJ at CL (Adams J and McCallum J agreeing in separate judgments) stated at [101] that taking admitted offences into account under s 16BA may warrant an adjustment with the cumulation of offences that the offender is being sentenced for:

While the existence of an underlying theme and unifying factor would justify a considerable element of concurrency, the separate nature and elements of each group of offences would in normal circumstances have involved some cumulation of the sentences. This is particularly so in respect to counts 1 and 2 in relation to which the four matters on the schedules needed to be taken into account pursuant to s16BA of the Crimes Act 1914 (Cth). There should, at the very least, have been some differentiation between the sentence imposed for counts 1 and 2 and the sentences imposed in respect of the other counts (emphasis added).

In Le v The Queen [2017] NSWCCA 26, Hoeben CJ at CL (Walton and Latham JJ agreeing) stated at [53]–[56]:

While the language employed by his Honour was infelicitous, no error of principle actually occurred. While his Honour’s remarks made express reference to giving greater weight to personal deterrence and retribution “for the serious offence to be dealt with pursuant to s 16BA”, his Honour was doing no more than attempting to provide reasons regarding the effect of the admitted offence on the sentencing exercise as a whole … It is plain from the sentencing remarks, read as a whole, that the sentencing judge was always aware that he was sentencing the applicant only for the primary offence and not punishing the applicant for the admitted offence (emphasis added).

3.1.2 Change in penalty derives from weight given to sentencing factors

Cases subsequent to Attorney General’s Application [2002] NSWCCA 518 have supported the approach of Spigelman CJ at [42]–[44], that s 16BA may give rise to an increased penalty because the offences taken into account under s 16BA indicate that greater weight should be given to other sentencing factors.

In Le v The Queen [2017] NSWCCA 26, Hoeben CJ at CL (Walton and Latham JJ agreeing) stated at [58]–[59] that:

The [s 16BA] admitted offence occurred several weeks before the primary offence …

The applicant’s repeated trafficking in controlled drugs for financial reward meant that greater weight was to be given to deterrence and retribution when sentencing him for the primary offence. Such an approach meant that it was open to his Honour to impose a sentence that was longer than the sentence which would have been imposed had the primary offence stood alone (emphasis added).

However in R v Khaja (No 5) [2018] NSWSC 238, the serious nature of the primary offence meant that greater weight was not given to other sentencing factors. Fagan J stated at [129], [131] that:

[U]pon full consideration of the facts surrounding his attempt to travel to Syria to take part in hostilities there I do not consider that the circumstances warrant a higher penalty for the primary terrorism planning offence than that which would have been appropriate if the latter [primary] offence stood alone.

[131] I consider that the criminality of the terrorism planning offence comprehends that of the admitted [s 16BA] foreign incursion offence to a degree which does not warrant increase of the sentence above what would have been imposed if s 16BA had not been engaged. When the foreign incursion offence is taken into account it does not indicate that any greater influence should be accorded to personal deterrence, retribution, denunciation or any other factor in fixing the sentence for the primary terrorism planning count (emphasis added). 20

3.1.3 Penalty where serious offences are taken into account

In R v Nguyen [2010] NSWCCA 238, Johnson J (Macfarlan JA and Hulme J agreeing) commented on taking offences carrying a maximum penalty of life imprisonment into account, stating at [118] that:

Where an offence carrying a maximum penalty of life imprisonment is included on a s.16BA schedule, it is ordinarily necessary for the sentencing court to reflect in the sentence imposed for the primary offence that a most serious offence has been taken into account, with the expectation that a significant additional increment will result in the sentence.

3.1.4 Penalty must not exceed maximum penalty for the offence of which the person is convicted

When determining the sentence to be passed for the convicted offence, the court takes the other admitted offences ‘into account’. The court cannot impose a separate sentence for these offences. 21 Accordingly, the sentence imposed must not exceed the maximum penalty for the offence of which the person is convicted: s 16BA(4). 22

Note: As a Court is only permitted to take the other offence(s) into account once, the maximum penalty which can be imposed must not exceed the maximum for the particular offence under which the s 16BA offence(s) are taken into account. 23

3.2 Additional orders

The court may make orders in relation to the offences taken into account, ‘with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court’ of those offences (s 16BA(5)). Subsection 5 is limited to the types of orders listed. The section specifically provides that the court ‘shall not otherwise impose any separate punishment for the offence[s]’.

The federal offender is granted a right to appeal orders made under sub-s (5):  s 16BA(6). And an order under sub-s (5) lapses if the conviction for the federal offence or federal offences is quashed or set aside: s 16BA(7).

3.3 Further or later proceedings

For other offences to be taken into account the person must admit guilt in respect of these offences: ss 16BA(1) and (2). However, sub-s (9) ensures that such admissions are not admissible in any proceedings in respect of any offence(s) listed on the ‘Form 1′ document.

Subsection (10) more broadly, prohibits an offence taken into account under s 16BA from being regarded for any purpose as an offence of which the person has been convicted.

Reference may be made or evidence given of the fact that an offence was taken into account. This may occur in or in relation to any criminal proceeding, where the law allows reference to be made or evidence to be given of the fact that the person was convicted of the federal offence and the law would similarly have allowed this to occur for the other offences had the person been convicted of these offences: see s 16BA(11).

Section 16BA(12) then provides: ‘[t]he fact that an offence was taken into account… may be proved in the same manner as the conviction… in relation to which it was taken into account may be proved.’

Once the court has certified the ‘Form 1′ document further proceedings are prohibited from being brought in relation to the admitted offences unless the conviction for the federal offence or federal offences is quashed or set aside: s 16BA(8).

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4. Operation of State and Territory schemes alongside the Federal scheme

Most States and Territories have statutory provisions allowing other offences to be taken into account in sentencing. 24

In Adams v The State of Western Australia [2014] WASCA 191, the court considered whether s 68 of the Judiciary Act 1903 (Cth) ‘picked up and applied’ ss 31–3 of the Sentencing Act 1995 (WA). Mazza JA explained the application of the state scheme at [143]:

The s 32 notice procedure enables a superior court, that is, either the Supreme Court or the District Court, when sentencing an offender for an offence on indictment (the original offence) to sentence that offender for a charge pending in a court of summary jurisdiction, whether indictable or simple, for which a sentence is yet to be imposed. If the pending charge is indictable, an indictment is not required. If the pending charge is a simple offence, the superior court is invested with jurisdiction to deal with it.

The offender had originally requested the Supreme Court to consider 12 pending charges including one federal charge. This request was granted and the offender sentenced. The offender subsequently appealed arguing that s 16BA ‘covered the field’ and as such offences contrary to the Commonwealth Criminal Code could not be considered by a superior court under ss 31–3 of the Sentencing Act 1995 (WA). The court held that the State scheme could operate alongside the Commonwealth scheme. Buss JA (Newnes JA agreeing, Mazza JA agreeing in separate judgment) stated at [53] that:

[N]o Commonwealth law expressly or impliedly makes contrary provision to s 31, s 32 and s 33, and there is no Commonwealth legislative scheme dealing with the subject matter of those provisions which is complete upon its face and has left no room for the operation of s 31, s 32 and s 33. As I have explained, the subject matter and procedure dealt with by s 16BA of the Commonwealth Crimes Act is materially different from the subject matter and procedure dealt with by s 31, s 32 and s 33. Similarly, s 4J of the Commonwealth Crimes Act and s 31, s 32 and s 33 have different areas of operation. All sets of provisions work harmoniously together. Nothing in any Commonwealth law renders the procedure in s 31, s 32 and s 33 inapplicable to a federal offence.

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Notes:

  1. McMillan v Bierwirth (1987) 79 ALR 661, 665 (Johnston J). Johnston J’s remarks were directed towards an earlier version of s 16BA in the Crimes Act 1914 (Cth)with the introduction of Part IB it was renumbered: Putland v The Queen [2004] HCA 8, [56]. See also Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 152.
  2. An offence which is proved but then dismissed or discharged under s 19B does not constitute a convicted federal offence for the purposes of s 16BA: See R v Boulos (1988) 37 A Crim R 461, 464; Dreezer v Duvnjak [1996] TASSC 160, [22]–[27]. Federal offence’ is ‘an offence against the law of the Commonwealth’: s 16(1).
  3. The prescribed form is Form 1′ located in Crimes Regulations 1990 (Cth) sch 3: Crimes Regulations 1990 (Cth) reg 3.
  4. There are currently no offences against the law of an external Territory prescribed in the Crimes Regulations 1990 (Cth).
  5. There is no requirement for the person to have been charged with those offences: see Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 148.
  6. See below 2.3 Judicial Discretion.
  7. An admission of guilt made under and for the purpose of s 16BA is not admissible in evidence in any later related proceedings: s 16BA(9) (see below: 3.3 Further or Later Proceedings).
  8. A court cannot take an indictable offence into account under s 16BA if it would not have jurisdiction to try the offence, regardless of the wishes of the prosecutor and defendant:  s 16BA(3). However, s 16BA(3) ‘does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence’: s 16BA(3A).
  9. Assafiri v R [2007] NSWCCA 159,[8]–[9] Howie J (Basten JA and Grove J agreeing). But see the approach of Sully J in R v Walters [2001] NSWSC 640, [33]: ‘I propose to bring these matters to account, not in a precisely quantified calculation, but by regarding them in a more general way as adding to the overall culpability of the prisoner; and by structuring the sentences to be passed for the ten indicted offences in a way that reflects the combined overall culpability of those ten offences and of the five additional matters’.
  10. This approach has been applied in a number of subsequent cases, see R v Lamella [2014] NSWCCA 122; R v Chan [2010] VSC 312; R v Lee [2013] WASCA 216; Interville Technology Pty Ltd v DPP (Cth) [2009] FCA 481.
  11. Crimes Act 1914 (Cth) 16BA(1).
  12. Crimes Act 1914 (Cth) 16BA(1)(e).
  13. See R v Holland [2002] WASCA 265, [3].
  14. See R v White [1981] 28 SASR 9, 11–12; Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, [51]–[56], [67] (‘Attorney General’s Application’).
  15. See, eg, DPP v Ip [2005] ACTCA 24 where an offence carrying a maximum penalty of five years imprisonment was taken into account by the Court under s 16BA; R v Nguyen [2010] NSWCCA 238, where an offence carrying a maximum penalty of life imprisonment was taken into account by the Court under s 16BA.
  16. See Crimes (Sentencing Procedure) Act 1999 (NSW) s 33(4)(b); Crimes (Sentencing) Act 2005 (ACT) s 55(2). See further Sentencing Act 1991 (Vic) s 100(1)(a); Sentencing Act 1995 (NT) s 107(1)(a); Sentencing Act 1997 (Tas) s 89(1)(a) which prohibit offences of treason or murder from being taken into account.
  17. R v Nguyen [2010] NSWCCA 238, [117] (Johnson J, Macfarlan JA and Hulme J agreeing).
  18. Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 152. See further the discussion of this issue in Attorney General’s Application [2002] NSWCCA 518.
  19. See, eg, R v Nguyen [2010] NSWCCA 238, [72] where Johnson J (Macfarlan JA and Hulme J agreeing) stated ‘insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s 16BA Crimes Act 1914 (Cth), it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General’s Application [2002] NSWCCA 518. See also R v Poynder [2007] NSWCCA 157, [28] (James J, Rothman and Harrison JJ agreeing); R v Lamella [2014] NSWCCA 122, [48] (Price J, Garling and Bellew JJ agreeing); R v Dennison [2011] NSWCCA 114, [49]–[52] (Schmidt J, McCallum J and Whealy JA agreeing); DPP (Cth) v KMD [2015] VSCA 255, [82] (Maxwell P, Weinberg and Beach JJA);  Le v The Queen [2017] NSWCCA 26, [49] (Hoeben CJ at CL, Walton and Latham JJ agreeing); R v Khaja (No 5) [2018] NSWSC 238, [129] (Fagan J), citing Le v The Queen [2017] NSWCCA 26; Soyke v the Queen [2016] NSWCCA 112, [67] (Schmidt J, Basten JA and Wilson J agreeing).
  20. But see Le v The Queen [2017] NSWCCA 26, [60] (Hoeben CJ at CL, Walton and Latham JJ agreeing) where the primary offence was not considered to ‘comprehend and reflect’ the criminality of the 16BA offence.
  21. See further R v Lam [2002] NSWCCA 190 where the NSW Court of Criminal Appeal considered whether separate sentences had been imposed in respect of offences taken into account.
  22. R v Berlinsky [2005] SASC 316, [15] (Doyle CJ).
  23. See, eg, Interville Technology Pty Ltd v DPP (Cth) [2009] FCA 481, [13] (Jacobson J).
  24. See, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) s 33, Sentencing Act 1991 (Vic) s 100, Penalties and Sentences Act 1992 (Qld) s 189,Crimes (Sentencing) Act 2005 (ACT) s 57, Sentencing Act 1995 (NT) s 107, Sentencing Act 1997 (Tas) s 89; Sentencing Act 1995 (WA) ss 31–3.