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Custodial Sentence

The content on this page was last reviewed on 14 April 2016.

Related Links:
Hardship to the Offender
Sentencing Factors

Recent cases alert
DPP (Cth) v El Sabsabi [2017] VSCA 160 — passing of custodial sentence on first charge does not mandate a term of imprisonment be required for second charge.
Cavuoto v Reis [2017] ACTSC 235 — correct reading of general proposition in R v Hampson [2011] QCA 132 that custodial term generally imposed only in cases where offender’s conduct is threatening or causes fear.
DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42 — imposition of $10,000 fine in face of deliberate breach of order made by Supreme Court judge demonstrates inappropriate degree of leniency as custodial sentence usually necessary.
R v Allan; Ex parte DPP (Cth) [2016] QCA 270  — offences of abuse of public office and receiving a bribe call for significant term of actual imprisonment save in exceptional circumstances.
DPP (Cth) v Garside [2016] VSCA 74 — courts must be careful not to impose a standard of ‘exceptional circumstances’ to sentencing an offender to non-custodial sentences for child exploitation offences as that standard is not prescribed by statute.
R v Honeyman [2016] ACTSC 2 — NSW Court of Criminal Appeal decisions do not require immediate custodial sentence irrespective of the objective seriousness of the offence. 
*Guidance from these cases has not yet been incorporated into the commentary

1. Imprisonment is a sentence of last resort

A court shall not pass a sentence of imprisonment for a federal offence unless the court is satisfied no other sentence is appropriate in all the circumstances of the case: s 17A(1). This is reflective of the common law principle that imprisonment is a sentence of last resort. 1

However, this applies subject to any contrary intention in the law creating the offence: s 17A(4).

When a court does pass a sentence of imprisonment for a federal offence the court must state the reasons for its decision that no other sentence is appropriate, and enter those reasons into the records of the court: s 17A(2).).

In determining the length of a sentence of imprisonment, the Court must have regard to other periods of imprisonment liable to be served: Crimes Act 1914 (Cth) s 16B. See further Totality Principle and Release on Parole or Licence.

Other circumstances may affect the imposition of a sentence of imprisonment on an offender. See further Sentencing Factors.

1.1 Mandatory minimum terms of imprisonment

Mandatory minimum terms of imprisonment may be prescribed under some federal legislation. 2 Where a mandatory minimum is prescribed by federal legislation, this is inconsistent with s 17A and the requirement to impose a mandatory minimum prevails over s 17A. 3 See further: Mandatory minimum sentences.

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2. Restrictions for certain minor offences

Under s 17B of the Crimes Act 1914 (Cth), a sentence of imprisonment can only be imposed for certain minor offences (‘Section 17B offences’) if the court is satisfied that there are exceptional circumstances that warrant it. ‘Exceptional circumstances’ is not defined in the Crimes Act 1914 (Cth).

‘Section 17B offences’ are offences where all of the following occur:

  • the offence relates to property, money or both whose total value is not more than $2000; and
  • the person has not previously been sentenced to imprisonment for any federal, state or territory offence; and
  • the offence is against one of the following:
Commonwealth Criminal CodeSection 131.1 Theft
Section 132.1 Receiving stolen property
Section 132.6 Making off without payment
Section 132.7 Going equipped for theft or a property offence
Section 134.1 Obtaining property by deception
Section 134.2 Obtaining a financial advantage by deception
Section 135.1 General dishonesty: obtaining a gain; causing a loss; influencing a Commonwealth public official
Section 135.2 Obtaining financial advantage
Section 135.4 Conspiracy to defraud
Section 145.4 Falsification of documents etc.
Section 145.5 Giving information derived from false or misleading documents
Crimes Act 1914 (Cth)Section 29 Destroying or damaging Commonwealth property

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3. Hard labour

Where imprisonment is imposed for a federal offence it may be imposed either with or without hard labour unless the contrary intention appears in the law: s 18(1). 4

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4. Location and class of prison

Section 19A provides that federal prisoners may be imprisoned in any State or Territory prison in the jurisdiction in which they are sentenced.

Section 18(2) seeks to treat federal offenders in the same manner as state and territory offenders in terms of the class of prison in which they are imprisoned.

Where the law of a state or territory provides that a convicted person may be imprisoned in a particular kind or class of prison, a person convicted for similar offences against the Commonwealth may, ‘in corresponding cases’, also be imprisoned in that particular kind or class of prison, as appropriate to the circumstances: s 18(2).

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5. Non-Parole Periods and Recognizance Release Orders

Under s 19AB(1) of the Crimes Act 1914 (Cth) where a court imposes a federal sentence of imprisonment that exceeds 3 years, the court must fix a single non-parole period. Where a court imposes a federal sentence of imprisonment that does not exceed 3 years, the court must fix a single recognizance release order (unless the sentence is less than 6 months).

The following table sets out the provisions relevant to fixing non-parole periods and recognizance release orders.

Non-parole periods & Recognizance release orders 
Non-parole period
Circumstances where a non-parole period must be fixedss 19AB, 19AG
Offenders already subject to a non-parole periods 19AD
Recognizance release order
Circumstances where recognizance release order must be fixed s 19AC
Offenders already subject to a recognizance release orders 19AE

See further Non Parole Period & Recognizance Release Orders.

Note: A court may be required in certain circumstances to set a non-parole period under s 19AB when setting a default period of imprisonment for non-payment of fines: see further Fines.

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6. Sentencing Practices and Priori Statements

There has been an emerging practice where appellate courts make statements indicating that a particular type of offence will ‘ordinarily’ result in the imposition of an immediate term of imprisonment, even where alternative sentencing options exist (such as a suspended sentence). Such statements have been made in the Commonwealth context in relation to offences involving fraud, child exploitation, drug importation and people smuggling (discussed below).

Professor Freiberg has commented on the difficulties associated with statements that imprisonment will ‘ordinarily’ result from particular types of offences.  Professor Freiberg states:

A priori statements of this kind are considered to be problematic because courts are obliged to consider all the relevant circumstances of the offence and the offender in order to determine whether a custodial sentence is deserved in any particular case. 5

However, in R v Gajjar [2008] VSCA 268 the Court considered a submission on behalf of the offender that there was no basis for a court to state that those who commit offences involving the online exploitation of children should ‘ordinarily expect to receive a term of immediate imprisonment’. 6 The Court noted that statements of this kind are often made in relation to certain classes of offences, and stated at [64]:

There is nothing in the appellant’s point that it is wrong to lay down, as a general principle, that ordinarily one can expect to receive a term of immediate imprisonment in cases of this type. Appellate courts often make statements of that kind in an effort to give guidance to sentencing judges.

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6.1 Sentencing judge must consider all the relevant circumstances before imposing a sentence of imprisonment

Statements that a particular offence type will ‘ordinarily’ result in a custodial sentence reflect current sentencing practice but do not amount to a legal principle or rule.

Courts have noted that a sentencing judge does not commit an error of law by failing to expressly analyse whether an offender’s circumstances are sufficiently ‘exceptional’ to warrant the imposition of a sentence other than immediate imprisonment. 7 A sentencing judge will fall into error by merely asserting that immediate imprisonment is appropriate unless ‘exceptional circumstances’ exist, as the circumstances of the matter, viewed as a whole, must inform the exercise of the sentencing discretion. 8 As Crispin J observed in Cruse v Treminio [2001] ACTSC 59, [6] statements that a particular offence will ‘ordinarily’ result in a custodial sentence:

…should not be seen as the adoption of legal rules which, in effect, reverse the principle that a sentence of imprisonment should be imposed only when no other penalty would be adequate, and cast some onus onto offenders to demonstrate that their circumstances are sufficiently unusual to merit a description such as “exceptional” or “very special”.  It is true that lenient sentences should not be imposed if they do not reflect a just response to the criminal conduct of offenders.  It is also true that in cases of deliberate and sustained fraud imprisonment is likely to be required and the scope for leniency may be limited.  However, where leniency is warranted, it should not be withheld merely because it might also be warranted in other cases.  Neither justice nor mercy should be rationed. 9

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6.2 Social security fraud

Courts have held that in the case of ‘deliberate and sustained’ 10 fraud upon the social security system, a custodial sentence will ordinarily be imposed. 11 The rationale expressed by Courts for this practice is that cases of social security fraud are easy to commit but hard to detect and that the sentence must therefore have sufficient deterrent value. 12

However, a Court must consider all the relevant circumstances of the offender in deciding that a sentence of imprisonment is the only appropriate sentence. In R v Brewer [2004] ACTCA 10, [14], Gray, Connolly and Gyless JJ stated:

The formulation adopted by the New South Wales Court of Appeal that “special”, or even “very special” circumstances must be shown to justify anything other than an immediate custodial sentence, could lead to error if it were taken to mean that a non-custodial sentence would only be appropriate in circumstances that were mathematically unusual, and a sentencing magistrate or judge would err if they refused to look at the individual circumstances of the offender beyond finding that those circumstances were not unique or unusual.

In Kovacevic v Mills [2000] SASC 106 Doyle CJ, Mullighan, Bleby and Martin JJ provided a summary of the sentencing approach relevant to social security fraud. The Court stated at [40]-[45]:

In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ [sustained and deliberate fraud on the social security system over a period of time], an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O’Sullivan  [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski  (1982) 30 SASR 212 at 212-213.

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. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.

There is one further thing that should be said. While imprisonment is likely to be required, it is preferable not to say that a case must be exceptional before a different approach is taken. For example, some offenders in this area are persons whose circumstances are extremely difficult, indeed distressing. An offender might be virtually destitute, with dependents to support. An offender might act as a result of domestic pressures that few people could withstand. That might be a circumstance, coupled with other circumstances, that warrants a more merciful approach in imposing sentence, even though it is a circumstance which is not wholly exceptional, because it tends to recur with this type of offending. It is for that reason that it is safer to say that imprisonment is the starting point, rather than that the case must exhibit exceptional features before a court can properly refrain from making an order for imprisonment. In saying this we do not intend to undermine our earlier statement that in cases of sustained and deliberate fraud, imprisonment is likely to be required (emphasis added).

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6.3 Serious tax fraud

In cases of serious tax fraud, courts have held that sentences of imprisonment will ordinarily be imposed. For example, in DPP (Cth) v Gregory [2011] VSCA 145 the Court stated at [54]:

In many if not most cases, imprisonment will be the only sentencing option for serious tax fraud in the absence of powerful mitigating circumstances: R v Whitnall [1993] FCA 271; (1993) 42 FCR 512; Nguyen and Phan [1997] 1 VR 386; DPP v Carter [1998] 4 VR 601; Schwabegger [1998] 4 VR 649, 654; DPP v Thomas [1998] 3 VR 188, 200.

In R v Boughen [2012] NSWCCA 17, Simpson J (Hislop and Latham JJ agreeing) stated that tax fraud belongs in the same class of offending as social security fraud, 13 and that ‘appellate courts have consistently insisted that tax evasion offences ought to attract significantly deterrent sentences’. 14 However, the Court noted that the application of the principles expounded by appellate courts in relation to serious fraud has been ‘somewhat less rigorous’ 15 in tax fraud cases than in cases of social security fraud, and stated:

In contrast to “white collar criminals” social security fraud is usually committed by those who have access to the social security system. They are, by definition, almost universally less privileged, less prosperous, less educated, in possession of fewer resources, intellectual and otherwise. That is the sort of thing the SA Court of Criminal Appeal had in mind in [47] of Kovacevic [[2000] SASC 106] extracted above. But in social security cases the courts have shown less reticence in imposing severe sentences than they have in tax fraud cases. 16

The community cannot afford for judges to be squeamish about discharging their duty, however personally painful it may sometimes be. To fail to sentence middle class offenders commensurately with social security offenders risks bringing the administration of justice into disrepute as perpetrating class bias. 17

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6.4 Fraud against the Commonwealth

In cases involving serious and sustained fraud against the Commonwealth, courts have held that a sentence of imprisonment will ordinarily be imposed. 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:  R v Baldock [2010] WASCA 170; (2010) 203 A Crim R 214 [145] and Magdi v The State of Western Australia [2010] WASCA 234 [38].

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6.5 Drug importation

Courts have emphasised that in cases of drug importation, ‘stern punishment will be warranted in almost every case’: R v Nguyen; R v Pham [2010] NSWCCA 238, [72]  (Johnson J, Macfarlan J and Hulme JJ agreeing). For example, in R v Wong & Leung [1999] NSWCCA 420 the offenders were convicted of being knowingly concerned in the importation of heroin. Spigelman CJ noted that ‘non-custodial sentences for this offence must be restricted to truly exceptional cases’. 18 On appeal, the High Court stated in Wong v The Queen [2001] HCA 64 at [64]:

In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case.

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6.6 Child exploitation

In cases of child exploitation, courts have held that sentences of imprisonment will ordinarily be imposed. For example, in R v Gajjar [2008] VSCA 268 the court considered an appeal against a sentence imposed for using a carriage service to procure a person under 16 years of age, contrary to s 474.26(1) of the Commonwealth Criminal Code. The court stated that it was appropriate in such cases to give paramount consideration to the principle of general deterrence, with the necessary consequence that less weight will be attached to other mitigating factors. 19

The Court in Gajjar accepted the reasoning of Steytler P in Western Australia v Collier [2007] WASCA 250 where the Court considered three charges of using electronic communication with intent to procure a child whom the offender believed to be under 13 to engage in sexual activity, against the law of Western Australia. The Court in R v Gajjar [2008] VSCA 268 stated at [61]-[63]:

In Collier, the Crown appeal succeeded. The respondent was ordered to serve an actual term of imprisonment. Steytler P explained:

“It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography … there is a paramount public interest in protecting children from sexual abuse.”: [2007] WASCA 250; (2007) 178 A Crim R 310, [43].

It was submitted on behalf of the appellant that this Court should not follow the reasoning in Collier. In particular, it was submitted that there was no basis for saying that those who commit offences of this kind should “ordinarily expect to receive a term of immediate imprisonment”.

We are not persuaded that Collier misstates the principles that govern sentencing for offences of this nature. The judgment is a recent, and carefully considered, intermediate appellate court decision in which those principles are fully canvassed. The reasoning is entitled to respect and should in our view be accepted. 20

Similar reasoning was applied in Phinthong v The Queen [2011] WASCA 192 involving offences 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.  Ordinarily, a sentence of immediate imprisonment would be imposed.  This is because such 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:  R v Liddington (1997) 18 WAR 394; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50; Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237; Furber v The Queen [2008] WASCA 233; Hill v The State of Western Australia [2009] WASCA 4; Ponniah v The Queen [2011] WASCA 105; and Smit v The State of Western Australia [2011] WASCA 124.

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6.7 People smuggling offences

In Jopar v The Queen [2013] VSCA 83 the Victorian Court of Appeal observed that when sentencing offenders convicted of ‘people smuggling’ offences, there may be no realistic alternative to imposing a sentence of imprisonment.

In Jopar, Weinberg JA noted that offenders in such cases are often impecunious and likely to be deported immediately if not imprisoned. (There is conflicting authority on the relevance of the prospect of deportation to imposing an appropriate sentence: see further Deportation).

As such, sentencing options such as fines, release upon a bond, and release on recognizance would ‘lack deterrent value, and could not, as a practical matter, be enforced.’ 21 Weinberg JA went on to note at [15]-[18]:

Because there are so few sentencing options that can realistically be invoked by sentencing judges when dealing with offenders such as the applicant, the task of sentencing them is particularly difficult.  On the one hand, the law requires that any sentence be ‘of a severity appropriate in all the circumstances of the offence’.  That suggests that any sentence must be proportionate to the gravity of the offending.  If, however, there are no realistic sentencing options available, apart from immediate imprisonment, the judge is put in an invidious position.  It may be that nothing other than such a term of imprisonment can ever have sufficient deterrent effect.  To that extent, sentencing in this area may involve constraints that are not present elsewhere.

I should nonetheless make it clear that, in my view, it is quite wrong to say in absolute terms that an offender dealt with under s 233A(1) must be sentenced to a term of actual imprisonment.  The very fact that the legislature has allowed for a fine to be imposed for an offence under that section, as an alternative to imprisonment, makes that obvious.  It may be that, in a particular case, a combination of mitigating factors, which might, hypothetically, include youth, possible Verdins considerations, and perhaps a willingness on the part of the offender to give evidence against others, could justify a non-custodial disposition.  That would be so despite the practical difficulties associated with such an outcome.

In my opinion, it will ordinarily be necessary, in a case such as the present, to impose an actual custodial term.  Without making too much of the point, people smuggling is a serious matter, and must be dealt with as such.  General deterrence is important, and cannot realistically be achieved without at least some measure of imprisonment (footnotes omitted; emphasis added).

However, Weinberg JA emphasised that this should not be viewed as an ‘absolute rule’, 22 and Priest JA noted that general deterrence is just one of the many factors to be taken into account, stating ‘it would be quite wrong to think that a sentence of imprisonment must always be imposed for an offence under s 233A.’ 23

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Notes:

  1.  See, eg, R v Vasin (1985) 39 SASR 45, 48 where White J stated ‘Section 17A of the Crimes Act enjoins the Court not to imprison if other available forms of punishment will suffice. It reflects a well-established and normally-observed sentencing principle.’ See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 729.  
  2.  See, eg, Migration Act 1958 (Cth) ss 236B,233B,233C,234A. 
  3.  Bahar v The Queen [2011] WASCA 249, [53] (McLure P, Martin CJ and Mazza J agreeing).  
  4.  The Australian Law Reform Commission recommends the abolition of hard labour as a federal sentencing option in order to strengthen Australia’s commitments to its obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.137]-[7.139]. Hard labour is not defined in the Crimes Act 1914 (Cth). See also R v Hargraves & Stoten [2010] QSC 188, [53] (Fryberg J).
  5.  Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 731.
  6.  R v Gajjar [2008] VSCA 268,[86].
  7.  See, eg, R v Al Aicach [2006] QCA 157, [45] (Keane J).  
  8.  Rigby v Moreland [2005] WASC 150, [37] (Hasluck J).
  9.  Cited with approval in R v Brewer [2004] ACTCA 10, [14] (Gray, Connolly and Gyles JJ).
  10.  Kovacevic v Mills [2000] SASC 106, [39] (Doyle CJ, Mullighan, Bleby and Martin JJ).
  11.  See, eg, Kovacevic v Mills [2000] SASC 106, [37]-[45]; R v Purdon (unreported, Court of Criminal Appeal, NSW, No 60659 of 1996, 27 March 1997); R v Aller [2004] NSWCCA 378, [7]  (Campbell AJ, Buddin and Hulme JJ agreeing); Director of Public Prosecutions (Cth) v Reynolds [1999] VSCA 224, [19]-[21];  DPP (Cth) v Milne [2001] VSCA 93, [13];  R v Hurst; Ex parte Director of Public Prosecutions (Cth) [2005] QCA 25; Pennington v McLean [2008] TASSC 4, [10]-[12]; Harding v Moreland [2006] WASC 8, [28]-[30];  R v Brewer [2004] ACTCA 10, [12]-[18].
  12.  See, eg, R v Hurst; Ex parte Director of Public Prosecutions (Cth) [2005] QCA 25; R v Purdon (unreported, Court of Criminal Appeal, NSW, Full Court, No 60659 of 1996, 27 March 1997). But see R v Newton [2010] QCA 101, where Atkinson J (Holmes JA agreeing) stated at [32]-[33]: ‘offending of the kind committed by the applicant in this case is no longer as difficult to detect as it once was. As the protocol recognises, the likelihood of detection has a significant deterrent effect. Moreover, as the respondent submitted, the need for deterrence should be appropriately balanced against circumstances pertaining to an offender.’
  13.  R v Boughen [2012] NSWCCA 17, [59].
  14.  R v Boughen [2012] NSWCCA 17, [59].
  15.  R v Boughen [2012] NSWCCA 17, [66].  
  16.  R v Boughen [2012] NSWCCA 17, [76] (Simpson J, Hislop and Latham JJ agreeing).
  17.  R v Boughen [2012] NSWCCA 17, [96] (Simpson J, Hislop and Latham JJ agreeing).  
  18.  R v Wong & Leung [1999] NSWCCA 420,  [104] (Mason P, Simpson, Sperling and Barr JJ agreeing).
  19.  R v Gajjar [2008] VSCA 268, [28] (Maxwell P, Nettle and Weinberg JJA).
  20.  See also R v Leask [2013] WASCA 243, [92] (Mazza JA, Buss and Newnes JJA agreeing). But see the comments made in the child exploitation case of R v Nahlous [2013] NSWCCA 90, [72] (Adamson J, Hoeben CJ and Davies J agreeing).  
  21.  Jopar v The Queen [2013] VSCA 83, [10]-[11] (Weinberg JA). But see the comments of Harper JA in Bifel v The Queen [2013] VSCA 82, [4]-[5] that ‘injustice would result were general deterrence to so overwhelm other sentencing principles that a particular sentence became disproportionately rather than proportionately harsh when measured against the degree of criminality of which the offender is guilty. There is, it seems to me, a danger that in people smuggling cases offenders with but a minor involvement, and with a commensurately minor measure of criminality, might be sentenced in circumstances in which general deterrence is given greater weight than is warranted by the seriousness of the offending conduct’.
  22.  Jopar v The Queen [2013] VSCA 83, [19] (Weinberg JA).  
  23.  Jopar v The Queen [2013] VSCA 83, [91] (Priest JA).