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Welcome to the COMMONWEALTH SENTENCING DATABASE

Updates to Principles & Practice Commentary

This area provides a quick guide to recent updates to recent legislative changes to the federal sentencing regime and updates to pages in the Federal Sentencing Database.

This area is updated by NJCA researchers on a monthly basis.

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Recent Updates to Commentary

  • November 2018 —

    Victim of the Offence

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    updated to include commentary on Adamson v The Queen [2015] VSCA 194 and Soyke v The Queen [2016] NSWCCA 112 which discussed where a presumption of harm to the victim of the offence will extend and Merrill (a Pseudonym) v The Queen [2018] VSCA 62 and Clarkson v The Queen [2011] VSCA 157 which discussed how the presumption can be rebutted
  • More
    updated to include commentary on Johnson v The Queen [2004] HCA 15 which discussed how s 19 interacts with other sentencing factors including totality, double punishment and the one transaction rule; commentary on the effect of the incorrect application of s 19 was also added, this included discussion of Edwin v The Queen [2014] ACTCA 47, Roncevic v Boxx [2015] ACTSC 53, R v TW (No 2) [2014] ACTCA 37 and Street v Tasmania Police [2016] TASSCA 52
  • More
    updated to include commentary on Adams v Western Australia [2014] WASCA 191 which considered whether s 16BA ‘covered the field’ so as to exclude a similar scheme in Western Australia; Zangana v The Queen [2015] NSWCCA 102 which discussed that other offences considered under s 16BA might affect concurrency of primary offences; and Le v The Queen [2017] NSWCCA 26 and R v Khaja (No 5) [2018] NSWSC 238 which discussed that other offences considered under s 16BA would only affect the sentence for the primary offence by the effect they have on sentencing factors
  • More
    updated to include discussion of the pre-trial and ongoing disclosure obligations under s 23CD(1) of the Federal Court of Australia Act 1976 (Cth) and the respective State or Territory legislation
  • May 2018 —

    Deportation

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    updated to include commentary on R v Asaad [2017] QCA 108R v Mohamed [2016] VSC 581 and R v UE [2016] QCA 58 where hardship to offender from likely deportation was taken into account and commentary on R v Schelvis; R v Hildebrand [2016] QCA 294 where hardship to offender not taken into account as prospect of deportation was entirely speculative
  • April 2018 —

    Guilty Plea

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    updated to include commentary on Xiao v The Queen [2018] NSWCCA 4 where the NSWCCA adopted the objective approach when sentencing federal offenders allowing the utilitarian value of a guilty plea to be considered by NSW courts and R v Lee [2018] ASTSC 21 and R v Simonetti [2018] ACTSC 31 where the ACTSC applied the subjective approach and held that the utilitarian value of a plea could not be taken into account when sentencing federal offenders
  • March 2018 —

    Mercy

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    updated to include commentary on Jasmin v The Queen [2017] WASCA 122 and the application of state statutory referral schemes for the royal prerogative of mercy
  • More
    updated to include commentary on R v Russell aka Hugill [2015] ACTSC 360 and Huynh v Commonwealth Services Delivery Agency [2014] SASC 143 where the courts have found similar facts or circumstances under s 4K and commentary on Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA 413 where the court found that s 4K is not available for civil penalties
  • January 2018 —

    Injury, Loss or Damage

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    new page on injury, loss or damage incorporating commentary on cases where there is no identifiable victim and intangible loss may have been suffered and providing commentary on the interaction between injury, loss and damage and s 320 of the Proceeds of Crime Act 2002 (Cth)
  • More
    updated to include commentary on DPP (Cth) v Mahamat-Abdelgader [2017] NSWSC 1102 where the court must be satisfied that the offender suffers from a mental illness at the time of the hearing rather than at the time of the offence
  • November 2017 —

    Contrition and Reparation

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    updated to include commentary on factors which may affect weight given to an offender’s displays of contrition, and new commentary on R v Host [2015] WASCA 23 where payments made pursuant to orders under the Proceeds of Crime Act 2002 (Cth) cannot be taken into account as reparation illustrating contrition due to their involuntary nature
  • October 2017 —

    Adequacy of Punishment

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    updated to include commentary on DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, where penalties imposed in other jurisdictions may be relevant when assessing adequacy of punishment imposed on an offender, and cases where general and specific deterrence is relevant to the assessment of adequacy of punishment
  • September 2017 —

    Physical Condition

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    updated to include new cases on the ‘Smith’ principle where an offender’s physical condition may be a mitigating factor where imprisonment will be a greater burden on the offender as a result of their physical condition, or where there is a high risk imprisonment will have a grave impact on their health
  • More
    updated to include new cases on extenuating circumstances, circumstances where offending not considered trivial and circumstances where the need for general deterrence may override factors in s 19B requiring that a conviction order is imposed
  • July 2017 —

    Character

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    pdated to include new cases on categories of offences where good character may carry less weight and new commentary on circumstances where good character may carry less weight such as offending over an extended period of time, where good character has provided the opportunity to offend, and where the need for general deterrence is strong
  • July 2017 —

    Antecedents

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    new page on content and scope of offender’s antecedents as separate from offender’s character, including consideration of timing of charged prior convictions, systematic deprivation and alcohol abuse, whether the offender has served home detention bail, the relevance of child exploitation material in relation to child exploitation offences, and relevance of prior illicit drug use in relation to drug importation offences
  • June 2017 —

    Victim Impact Statements

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    updated to include commentary on the use of victim impact statements under comparable state and territory sentencing regimes
  • May 2017 —

    Mental Condition

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    updated to include commentary on new sentencing cases incorporating the Verdins principles where an offender’s mental condition may be taken into account as a mitigating factor
  • April 2017 —

    Guilty Plea

    More
    updated to include commentary on whether a discount for a guilty plea is given on the subjective basis of the offender’s willingness to facilitate the course of justice or the objective basis of the utilitarian benefit of a guilty plea
  • March 2017 —

    Course of Conduct

    More
    updated to include commentary on judicial inconsistency surrounding s 16A(2)(c) on whether a course of conduct refers only to uncharged criminal conduct, charged criminal conduct, representative charges, or the totality principle
  • February 2017 —

    Reparation Orders

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    updated to include commentary on courts exercising discretion to impose a reparation order, including the relevance of offender’s financial circumstances, reparation orders and co-offenders, and considerations when ordering reparation as a condition of discharge or release
  • January 2017 —

    Corporations

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    updated to include commentary on Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA 413 where court held s 4K does not apply to civil pecuniary penalty provisions of the Fair Work Act 2009 (Cth)
  • October 2016 —

    Hardship to the offender 

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    updated to include commentary on hardship to the offender caused by the effect of the sentence on the offender’s dependants and the non-application of the ‘exceptional circumstances’ test relevant to s 16A(2)(p) to consideration of such hardship
  • More
    updated to include commentary on the divergent approach of ACT courts to the ‘exceptional circumstances’ test in R v Weir [2015] ACTSC 394 and DPP (Cth) v Ip [2005] ACTCA 24, the relevance of international instruments to consideration of s 16A(2)(p), principles relevant to sentencing breastfeeding mothers and consideration of hardship to dependants as a result of co-operation
  • More
    updated to include commentary on factors relevant to assessing the nature and circumstances of federal offences, including drug, alcohol and gambling addictions, premeditation, planning, motive, non-exculpatory duress, entrapment, the offender’s degree of participation, the profits from the offence and whether the offence involved a breach of trust
  • More
    updated to include amendments to the Crimes Act 1914 (Cth) inserting new s 20(1A), the application of Dimech v Watts [2016] ACTSC 221 resolving that community service cannot be made a condition of release under s 20 and new commentary on factors to be taken into account when imposing a recognizance release order
  • More
    updated to include amendments to the Crimes Act 1914 (Cth) which updated the list of state and territory sentencing options available to federal offenders and to include new commentary on principles relevant to imposing Intensive Correction Orders, Community Correction Orders and Intensive Supervision Orders, including the application of Antanackovic v The Queen [2015] VSCA and R v Porte [2015] NSWCCA 174

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