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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 12 October 2020 —

    DPP v Jirjees [2020] VCC 1637 — bribery of public official — nature and circumstances — mental condition — antecedents — rehabilitation

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    sentence — bribery of Commonwealth public official — nature and circumstances — s 16A(2)(a) — offence is by its nature serious offence — Australian border security depends on integrity of Customs officers who are sentinels of system — bribery and corruption of public officials is an anathema to rule of law and good government — bribe proposed as part of wider plan of criminal conduct — offender proposed ongoing illicit relationship where Commonwealth official would become integral player in proposed serious ongoing criminal conduct — crime was entirely financially motivated — with proposed imports of over 200 kg of tobacco per week offender sought to evade between approximately $218,000 to $270,000 in excise duty per week — offender planned meeting with official and chose target with whom they were familiar — offender chose to exploit what they believed was a friendship with official — no money or benefit was actually paid or even specified — offender did not propose follow-up meeting or undertake follow-up contact — offender did not engage in proposed wider criminal conduct of evading excise duty — moral culpability is high — no one else involved in scheme — sentencing judge did not accept that moral culpability was in any way influenced by offender’s upbringing or by any misunderstanding that corruption and bribery is necessary part of everyday life in Australia — after issue of four infringement notices in relation to applicable duties offender was not dissuaded from further conduct attempting to avoid payment of applicable duties in future importing of tobacco — mental condition — s 16A(2)(g) — offender did not qualify as meeting criteria for PTSD but did present with significant features of PTSD — offender’s cognitive and adaptive functioning is within range of mild to borderline intellectual disability — antecedents — s 16A(2)(m) — sentencing judge cannot ignore personal circumstances background and upbringing though these matters play much lesser role in sentencing consideration — rehabilitation — s 16A(2)(n) — very good prospects of rehabilitation — offender has solid work history and solid pro-social support of family — determination displayed to get to Australia to make better life for themselves — offender had worked hard through adversity to achieve better life — offender sentenced to 20 months’ imprisonment to be served via recognisance release order
  • 9 October 2020 —

    DPP v Tran (Thi Thuy Tam) [2020] VCC 1631 — drug importation offence — nature and circumstances — guilty plea — contrition — antecedents — rehabilitation — parity

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    sentence — trafficking commercial quantity of border controlled drug contrary to Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — offender collected tickets (one kilogram lots) of heroin three times delivered them to buyers collected payment for them and delivered cash for payment of heroin for Tran — offender was also involved in providing 1 ounce sample of heroin to potential buyer — quantity of drugs was substantial — wholesale value of 3 tickets of heroin was around $600,000 — quantity of drugs trafficked was 1.56 times commercial quantity — offender engaged in commercial activity which involved repeated acts of trafficking — offender played integral role in enterprise — as Tran’s trusted offender had an important position in hierarchy — Tran shared syndicate’s supply and pricing information with offender and trusted offender to collect and deliver substantial qualities of drugs and cash — offender knew Tran was operating large scale drug importation and trafficking business — offending involved cover meetings to collect the heroin coordinate sale and to deliver drugs and collect cash — offender has no explanation for involvement other than to say they were helping their friend — there are no extenuating circumstances — common sense explanation is offender did so for opportunity to share in substantial profits — guilty plea — s 16A(2)(g) — early guilty plea has significant utilitarian value — positive response to time in custody is evidence of remorse — contrition — s 16A(2)(f) — degree of remorse is qualified by false denials and evasive answers to police and efforts to play down offending and implausible contention they were paid only $50 each time for involvement — antecedents — s 16A(2)(m) — prior convictions for drug related offending are relevant — explanation given by offender is highly improbable — while weight attached to convictions is to be reduced because of passage of time offender’s attempt to again understate involvement is relevant to assessment of remorse and prospects of rehabilitation — rehabilitation — s 16A(2)(n) — taking into account creditable progress in custody towards reformation and desire to be good mother prospects of rehabilitation considered reasonable — parity — co-offender Zainal’s offending was more serious — Zainal able to point to genuine extenuating circumstances which explained desperate need for money — co-offender Goh’s offending was less serious — Goh’s progress to reformation in prison was exceptional — offender sentenced to 10 years’ and 6 months imprisonment with 7 year non-parole period — s 6AAA — but for plea of guilty offender would have been sentenced to 13 years’ 6 months imprisonment with 9 year and 6 month non-parole period    
  • 7 October 2020 —

    R v Davison [2020] ACTSC 272 — child exploitation offences — nature and circumstances — mental condition — contrition — general deterrence — guilty plea

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    sentence — possessing or controlling child abuse material contrary to s 474.22A of Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — no suggestion of distribution of material or any profit being obtained from it — number of images is significant as is nature of content — not clear for how long material was possessed — objective seriousness of offending is at about medium objective seriousness — mental condition — s 16A(2)(m) — offender suffers from major depressive disorder and ongoing anxiety — offender takes antidepressants — according to report by psychologist offender would be ill-equipped to deal with social challenges of incarceration — contrition — s 16A(2)(f) — offender does not believe they have done anything illegal but pleaded guilty on legal advice — offender apparently expressed belief that actions had not caused any negative impact — general deterrence — s 16(2)(ja) — cases like this call out for significant sentences — all persons must be discouraged from fulfilling sexual needs through images of children — children are not pawns or playthings for sexual gratification of adults — it is difficult to express more abhorrence than in respect of crimes involving children their manipulation and their degradation — guilty plea — s 16A(2)(g) — offender entitled to discount from plea of guilty — appropriate discount is 25% — offender sentenced to 9 months’ imprisonment to be released after serving period of 3 months upon recognisance release order
  • 2 October 2020 —

    Assie v The Queen [2020] NSWCCA 249 — dishonesty offences — nature and circumstances — parity — contrition — hardship to offender — general deterrence

     

     

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    appeal against sentence — conspiring with four other persons with intention of dishonestly causing loss to Commonwealth contrary to s 135.4(3) of Commonwealth Criminal Code — dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime contrary to s 400.9(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ imprisonment with 3 year and 3 month non-parole period — nature and circumstances — s 16A(2)(a) — sections of Centrelink claims forms were completed by offender and husband in support of false claims for carer payments — four customers were introduced to offender and husband and carried out role as customers of welfare fraud and co-conspirators in conspiracy — conspiracy was sophisticated — those involved were committed to achieving fraud on Commonwealth — neither offender nor husband were deterred from commitment to achieving objective by seizure of large amount of cash during conspiracy — offender was equally culpable with husband and both were architects of fraudulent scheme even if in early stages of conspiracy husband played more dominant role — offender’s role was central to achieving perpetration of welfare fraud and sole motivation was greed — offender received at least $11,000 for role in conspiracy — sentencing judge accepted that having been married to first cousin by arrangement at age of 18 would have been productive of significant power imbalance in marriage — offender’s limited formal education meant they relied on husband for designing formal aspects of scheme and operation — parity — different and more limited roles played by customers in conspiracy by agreeing to utilise services offender and husband offered as facilitators and organisers of welfare fraud — unlike offender each co-conspirator entered early plea of guilty and two of them had additional discount applied for assistance to authorities — despite evidence of family violence sentencing judge satisfied that offender exercised choice in involving themselves in conspiracy evident from fact that offender continued offending behaviour after husband’s death — hardship to the offender — s 16A(2)(m) — offender’s experience of full time custody as woman in her 60s with concerns for three intellectually disabled children who remain in offender’s care would make experience as sentenced prisoner more onerous — general deterrence — s 16A(2)(ja) — essential that aggregate sentence reflect need for general deterrence — sentence neither unreasonable nor plainly unjust — nothing in case is even faintly suggestive that offender suffered any injustice in sentencing process — leave to appeal refused — appeal dismissed
  • 21 September 2020 —

    R v Yavuz (No 2) [2020] ACTSC 248 — drug importation offence — nature and circumstances — mental condition — character — antecedents — guilty plea — contrition — parity — COVID-19

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    sentence — jointly importing a commercial quantity of a border-controlled drug offence contrary to s 307.1(1) and s 11.2A of Commonwealth Criminal Code — offence relates to 1771g of pure MDMA — nature and circumstances — s 16A(2)(a) — during offending period offender was in custody for unrelated but similar offending — Jabal provided funding to offender at least some of which was used to finance importations — offender was involved in joint commission to import at least commercial quantity of prohibited drug into Australia from about July 2017 — offender was aware of identity and role of overseas provider of consignments — offender was common link between Poulakis and Omari and Jabal — offender facilitated communication and degree of cooperation — offender was aware of decision to use ANU campus as delivery address — offender tasked Omari with communicating to Jabal that he wanted to recover $50,000 — offender’s authority and influence were such that Jabal immediately complied with demand for money —offender expected and received regular updates about status of second consignment — role of offender must be regarded as significant — offender not aware of precise quantity being imported but that they were involved in joint enterprise to import at least a commercial quantity — character — s 16A(2)(m) — six character references provided — it is not immediately apparent how statement of impeccable character from first reference squares with previous offending — references taken into account on sentence — prospects of rehabilitation must remain guarded at this time — antecedents — s 16A(2)(m) — offender actively participated in joint commission to import border-controlled drug while serving substantial term of imprisonment for multiple offences of similar but less serious nature — commission of offence while in custody or on conditional liberty is an aggravating feature on sentence — prior convictions demonstrate that present offence is not aberration or isolated offence — offending was motivated by financial gain — offender was involved in importation of drugs for profit — double counting must be avoided — guilty plea — s 16A(2)(g) — until recently in ACT offenders were not entitled to any discount on sentence for the utilitarian benefit of plea — amended s 16A(2)(g) puts beyond doubt that utilitarian benefit must be taken into account — co-offenders entered pleas at broadly same time as offender and pleas had similar utilitarian value — offender made severance application on day trial was scheduled to begin — plea although not entered at early opportunity had significant utilitarian benefit in that it prevented need to expend significant resources on lengthy trial — 15% discount allowed — contrition — s 16A(2)(f) — hearsay statements or statements made by offender which are not supported by offender giving sworn evidence should be treated with considerable caution — courts do not simply disregard evidence of remorse if offender does not go into witness box and give evidence — sentencing judge noted the remorse expressed in letter by offender — sentencing judge did not ascribe significant weight to the remorse — parity — Poulakis and Yavuz involvement in importation was more significant than that of Omari or Jabal — offender directed activities of syndicate — while there is broad equivalence in terms of hierarchy and role as between Poulakis and offender, offender had somewhat greater role in directional type behaviour — COVID-19 — it is necessary in individual case to take into account both health consequences and social consequences — AMC is managing health risks appropriately at this stage — no evidence before Court that offender is in high-risk category in relation to physical health consequences — social consequences are nevertheless of significance — while availability of limited social visits lessens social consequences of COVID-19 they do remain constrained and may well be suspended again — there is additional hardship attached to imprisonment due to COVID-19 pandemic — offender sentenced to 8 years’ and 6 months imprisonment with 5 year and 1 month non-parole period

Recent Updates to Commentary View All

  • February 2020 —

    Deportation 

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    updated to include commentary on when there is sufficient evidence of offender’s prospects of deportation and hardship to the offender, including DPP (Cth) v Ooi [2019] VCC 156 and R v Shoma [2019] VSC 367
  • November 2019 —

    General Sentencing Principles

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    up to date commentary on general sentencing principles contained in Division 2 of Part IB of the Crimes Act 1914 (Cth) and at common law
  • October 2019 —

    Hospital Orders

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    up to date commentary on where a hospital order may be made, what a hospital order must specify and the discharge of hospital orders
  • September 2019 —

    Co-operation

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    updated to include commentary on nature and extent of assistance attracting a discount, including DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
  • August 2019 —

    Deterrence

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    updated to include commentary on new federal sentencing cases relating to the interaction between general and specific deterrence and offenders with certain mental conditions, and the role of general deterrence in sentencing terrorism, white collar crime, and protected classes of victims offences

Recent Legislative Amendments View All

  • 7 December 2016 —

    Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) — amends Crimes Act 1914 (Cth)

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    court to explain sentence — inserts note into s 16F(1) — when sentencing an offender for an offence referred to in paragraph 105A.3(1)(a) of the Commonwealth Criminal Code the court must warn the offender about continuing detention orders under s 105A.23 of the Commonwealth Criminal Code
  • 27 November 2015 —

    Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) — amends Crimes Act 1914 (Cth)

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    — general deterrence — inserts new s 16A(2)(ja) — court to have regard to the deterrent effect that any sentence or order under consideration may have on other persons — Commentary on this amendment has been incorporated into the database, see Deterrence   — co-operation — repeals s 21E — inserts new s 16AC — court can reduce sentence, order or non-parole period in recognition of undertaking to co-operate with law enforcement agencies — DPP given new right to appeal where offender has not co-operated in accordance with undertaking when offender’s sentence has expired — Commentary on this amendment has been incorporated into the database, see Co-operation   — non-parole periods and recognizance release orders — repeals and replaces s 19AB — removes option for court to make a recognizance release order where the sentence imposed exceeds three years — inserts new s 19AB(2)–(3) — court can decline to set a non-parole period or fix a recognizance release order where offender expected to be serving a State or Territory sentence immediately after the end of the federal sentence — Commentary on this amendment has been incorporated into the database, see Non Parole Period and Recognizance Release Orders   — rectification of errors — inserts new s 19AHA — sets out powers of court to correct Commonwealth sentencing orders which contain technical errors, defects of form, or ambiguity — Commentary on this amendment has been incorporated into the database, see Non Parole Period and Recognizance Release Orders   — release on licence — inserts new s 19AP(4A) — matters to which the Attorney-General may have regard when deciding whether to grant a licence — extensive co-operation not already taken into account at sentence — serious medical treatment required — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence   — parole — inserts new s 19AKA — purposes of parole are protection of the community, rehabilitation of the offender and reintegration of the offender into the community — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence   — parole orders — inserts new s 19ALA — matters to which the Attorney-General may have regard when considering whether to make or refuse to make a parole order — inserts new s 19AL(4)–(6) — clarifies application of s 19AL when Attorney-General making parole orders for joint Commonwealth and State offenders — inserts new s 19AL(3A) — provides criteria for considering applications for early release on parole — repeals s 19AP(8)–(9) — inserts new s 19APA — expands power of Attorney-General to amend parole orders and licences — Commentary on this amendment has been incorporated into the database, see Release on Parole or Licence   — conditional release — inserts new s 20(1A) — requires court to specify that where a person is subject to the supervision of a probation officer they will not travel interstate or overseas without the probation officers written permission — Commentary on this amendment has been incorporated into the database, see Conditional Release Orders After Conviction   — alternative sentencing options — repeals s 20AB(1) — inserts new s 20AB(1) — updates list of types of orders as alternatives to imprisonment that should be available for federal offenders — clarifies courts power to pass a similar sentence or order to the named orders — Commentary on this amendment has been incorporated into the database, see Additional Sentencing Alternatives

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