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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 21 December 2021 —

    Lee v R [2021] NSWCCA 318 — drug importation offences — appeal against sentence — parity

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    The offender was sentenced following a plea of guilty to 1 count of trafficking in a commercial quantity of a controlled drug contrary to s 302.2(1) of the Commonwealth Criminal Code and 1 count of attempting to possess an unlawfully imported commercial quantity of a border controlled drug contrary to s 307.5(1). Count 1 related to 19,056.3g of pure methamphetamine and Count 2 related to 41,706.7 of pure methamphetamine. The original sentence imposed 13 years and 3 months imprisonment with a 7 year and 1 month non-parole period. The offender appealed firstly on the basis that they were more exposed to investigative attention and therefore at a lower level of the hierarchy and secondly on the basis of a justifiable sense of grievance between the sentence imposed on them and the sentence imposed on co-offenders.   Parity: The first ground submits that the explanation for the failure to allow sufficient distinction is explained by the failure of the sentencing judge to take into account the greater risk of investigative attention suffered by the offender. The second ground asserts a justifiable sense of grievance. The mere fact that the Court may have set the relativity between two co-offenders differently from the sentencing judge is in and of itself insufficient ot warrant intervention by the Court. The offender received a sentence that is approximately 83.5% of the sentence imposed on the co-offender. The exposure of the offender would have inevitably led to the exposure of the co-offender such that the exposure on which the offender relies was not such as to highlight the different roles of the offender and co-offender.   Leave to appeal granted. Appeal dismissed.
  • 16 December 2021 —

    Spinks v Director of Public Prosecutions (Cth) [2021] NSWCCA 308 — drug importation — appeal against sentence — age — mental condition

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    The offender was sentenced following a plea of guilty to 1 count of importing a marketable quantity of a border controlled drug contrary to s 307.2 of the Commonwealth Criminal Code. Original sentence imposed 3 years imprisonment with an 18 month non-parole period. The offence related to 90.74g of pure MDMA. The offender appealed on the basis that the sentencing judge failed to take into account the offender’s youth, rehabilitation, prior good character and substance abuse disorder, that the sentencing judge concluded that general deterrence be given great weight, and that the sentence was manifestly excessive.  

    Age: Offender was aged 18 at time of offending. There is no doubt that the sentencing judge gave genuine and proper consideration to a number of aspects of the personal circumstances of the offender. The sentencing judge noted that the offender was bullied at school and developed a level of social anxiety which led to drug use. The offender was otherwise of good character and has no prior criminal convictions. It is correct to say that an addiction to unlawful drugs is no justification for further offending. The fact that the element of choice and use of cocaine and MDMA commenced whilst they were still in high school is consistent with a choice made at a time of immaturity and impulsivity. The leniency which is to be accorded to a youthful offender with no prior convictions must extend to the sentence imposed as well as the minimum custodial term. The sentencing judge erred in failing to apply accepted principle in that way.  

    Mental Condition: Psychologist found that offender had substance abuse disorder. There was a tension between that finding and the finding of the sentencing judge that the offender was completely able to give up drugs when it suited him to do so. The issue as to substance abuse disorder should have been given weight in considering the issues in relation to youth and immaturity but was not a mitigating factor in its own right.  

    Leave to appeal granted. Original sentence set aside. Offender re-sentenced to 2 years 3 months imprisonment with a 15 month non-parole period.
  • 16 December 2021 —

    DPP v Kousari-Rad & Anor [2021] VCC 2085 — dishonesty offences — sentence — nature and circumstances — guilty plea

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    Mahin was sentenced following pleas of guilty to 2 counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Commonwealth Criminal Code. Daryoush was sentenced following pleading guilty to 1 count of dishonestly obtaining a financial advantage by deception from a Commonwealth identity contrary to s 134.2(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances; During period of offending Mahin was in receipt of Newstart Allowance and Carers payment. Daryoush was initially granted the Age Pension on 3 July 2011 and received it continuously during period of offending. The statements of income and assets with Centrelink did not list any real estate assets besides the home in which they both lived. Neither sought to revise the information in those statements following subsequent purchase of the Glen Waverley property. Mahin made multiple false declarations that omitted the purchase of the Glen Waverley property. This was an intentional act with the purpose of deceiving the Department into believing asset holdings remained unchanged throughout the period of offending. Mahin received $32,648.67 in Newstart payments to which they were not entitled. Mahin received $66,398.86 in Carer Payments to which they were not entitled. Daryoush received $89,682.34 in Age Pension payments to which they were not entitled. Omission was clearly deliberate, premeditated and spanned a significant time period, approximately 7 and a half years. Offending only ceased once offenders became aware that ownership of property was detected and investigated by Centrelink.  

    Guilty Plea: Pleas were entered at earliest available opportunity. An offender pleading guilty during the pandemic ought ordinarily receive a palpable amelioration. Such discount is less significant in this case because it is clear that the offender’s entered their pleas of guilty in response to the clear strength of the prosecution. It is no open to the offenders to buy their way out of punishment by prior full repayment of debt prior to the issue of charges. That factor is not decisive. Financial position was such that offender’s had ready availability of resources sufficient to completely discharge social security debts.  

    Both offenders sentenced to 20 months imprisonment to be released forthwith on recognisance.
  • 14 December 2021 —

    R v Harrison; Ex parte Director of Public Prosecutions (Cth) [2021] QCA 279 — child exploitation offences — appeal against sentence — nature and circumstances — manifest inadequacy — totality

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    The offender was sentenced following pleas of guilty to 1 count of persistent sexual abuse of a child outside Australia contrary to s 272.11(1), 1 count of use of a carriage service to cause child pornography material to be transmitted to self, contrary to s 474.19(1), 1 count of using a carriage service to transmit child pornography material contrary to s 474.19(1), 1 count of encouraging an offence against Division 272 of the Code contrary to s 272.19. All offences were contrary to the Commonwealth Criminal Code. Offender sentenced for additional state offences. The original sentence imposed 6 years and 6 months imprisonment with a 2 year and 6 month non-parole period. The Crown appealed on the basis that the total effective sentence and the non-parole period were manifestly inadequate.  

    Nature and Circumstances: An orthodox approach to whether an individual sentence is manifestly excessive or inadequate is to examine it having regard to the maximum sentence for the offence, the gravity of the offending conduct on the scale of seriousness and the personal circumstances of the offender. The facts and circumstances of count 1 show a serious example of an offence of its type. The offender travelled to the Philippines with the intention of engaging in sexual behaviour with a child, engaged in three separate acts of sexual penetration, paid the victim a small sum of money at the conclusion of each act, exploited the victim who was by reason of their age and economic circumstances, was vulnerable to the offender’s predations, planned the offending and engaged in highly sexualised and graphic communication.  

    Totality: A sentence of 6 years imprisonment for Count 1 was not so law as to be unjust or unreasonable. However, a sentence of 6 years and 6 months imprisonment does not adequately reflect the offender’s overall criminality. The term of 6 years and 6 months infringes the totality principle. Each of the offences involved offending of a different kind to count 1. Even if the global sentence of 6 years and 6 imprisonment stands, a non-parole period of 38% of the total sentence does not properly reflect the substantial seriousness of the overall offending and has the effect of undermining the sentencing objectives of proper punishment and the need to provide general deterrence.  

    Appeal allowed. Original sentence set aside. Offender re-sentenced to 8 years imprisonment with a 5 year non-parole period.
  • 13 December 2021 —

    DPP (Cth) v Anderson [2021] VCC 2014 — child exploitation offences — sentence — nature and circumstances — rehabilitation — conditional release orders

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.

    Nature and Circumstances: There were a relatively small number of images accessed sporadically. Material was purely for offenders own purposes and not for sale or distribution and offender did not stand to make any financial gain. When downloaded there were many images on one file, such that there was not a constant downloading of material. The material which was procured fell into Categories 1 and 2 of the Interpol scale. This is serious disturbing imagery.

    Rehabilitation: Offender resigned position with Australian Border Force. Prospects of rehabilitation are reasonably positive. Offender has previously engaged with mental health practitioners and recognises the need for such treatment. Offender has impressive work history. Offender is obviously intelligent and does not suffer from any substance abuse or have any cognitive difficulties which would impede rehabilitation.

    Conditional Release Orders: Section 20(1)(b)(iii) stipulates that a person convicted of a Commonwealth child sex offence be jailed immediately unless the Court is satisfied that exceptional circumstances exist. Counsel for offender said that past history of being sexually abused and psychological injury suffered during period of offending amount to exceptional circumstances. The factors necessary to support a finding of exceptional circumstances do not exist in this case.

    Offender sentenced to 2 years and 6 months imprisonment to be released on recognisance after 5 months.    

Recent Updates to Commentary View All

  • October 2021 —

    Release on Parole or Licence

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    page updated to reflect amendments introduced by Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth) and Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) and the relevant recent case law.
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    new page created on sentencing considerations for importation offences including general importation offences, animal and plant smuggling offences and people smuggling offences, including commentary on the general sentencing principles for importation offences and matters specific to Customs Act and Biosecurity Act offences.
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    new page created on sentencing considerations for drug importation offences, including commentary on assessing the objective seriousness of the offending and an explanation of the “quantity-based penalty regime”, the nature and circumstances of the offending (including the offender’s role, sophistication of the offending, profit motive, and the harm to the community) and how drug importation offences relate to other considerations such as deterrence, guilty plea, mental condition and drug addiction.
  • August 2021 —

    Character

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    update to reflect the introduction of s 16A(2)(ma) and the effect of prior good character on white collar offences
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    new page created on sentencing considerations for child exploitation offences, including commentary on how the types and elements of child exploitation offences are relevant to the court’s assessment of objective seriousness of the offence and moral culpability of the offender, and how child exploitation offences relate to other considerations such as mandatory minimum sentences, mitigating factors and general sentencing principles

Recent Legislative Amendments View All

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    Amendments to Crimes Act 1914 (Cth)  

    Minimum penalties: The amending Act inserts a new s 16AAA which prescribes mandatory minimum penalties for the child sexual abuse offences contrary to the Criminal Code (Cth) ss 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.10, 272.11, 272.18, 272.19, 272.7, 471.22, 474.23A, 474.24A, 474.25A, 474.25A(1), 474.25A(2), 474.25B.  

    It also inserts s 16AAB, which prescribes minimum penalties for a second or subsequent child sexual abuse offence, and s 16AAC which provides for circumstances in which a court may impose a sentence of less than the prescribed mandatory minimum.  

    Guilty plea: The amending Act repeals and replaces s 16A(2)(g) to provide that a court is required to take into account the fact the offender pleaded guilty, the timing of the plea and the degree to which the guilty plea and timing of plea resulted in any benefit to the community, or any victim of, or witness to, the offence.  

    Character: The amending Act inserts a new s 16A(2)(ma) which provides that if a person’s standing in the community was used to aid in the commission of offence, the court is to take into account that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.  

    Rehabilitation: The amending Act inserts a new s 16A(2AAA) which states that in determining sentence for a Commonwealth child sex offence, the court must have regard to the objective of rehabilitating the person, including taking into account where appropriate whether to impose any conditions about rehabilitation or treatment options, or including sufficient time for the person to undertake a rehabilitation program in the length of sentence or non-parole period. The term “Commonwealth child sex offence” is defined in s 3.  

    Cumulative sentences: The amending act inserts a new s 19(5)–(7) which provides additional requirements for the commencement of sentences for Commonwealth child sex offences. The new provisions provide that an order for the commencement of a federal sentence must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is or has been imposed for another Commonwealth or State or Territory registrable child sex offence. Section 19(6) provides that this requirement does not apply where the court is satisfied the sentence would still be of a severity appropriate in all the circumstances and s 19(7) imposes a requirement for reasons.  

    Conditional release orders: The amending Act repeals and replaces 20(1)(b) to provide that a Court cannot release an offender convicted of a Commonwealth child sex offence immediately upon a recognizance release order unless there are exceptional circumstances.  

    The amending Act inserts a new s 20(1B) to require a court making a recognizance release order for a child sex offender to attach certain conditions to the order. The new sub-section states that if at least one of the offences is Commonwealth child sex offence, the court must specify the conditions that the person will, during the specified period, be subject to supervision of probation officer, obey all reasonable directions of probation officer, not travel interstate or overseas without written permission of probation officer and undertake such treatment or rehabilitation programs that the probation officer reasonably directs.  

    Release on parole or licence: The amending Act repeals and replaces s 19AQ to introduce a new regime for the calculation of “clean street time” where a parole order or licence order is revoked. The amending Act makes consequential amendments to ss 19AA, 19APB, 19AS and 19AT.  

    The amending Act repeals and replace ss 19AR(1)-(3) with new ss 19AR(1)-(3) which remove the option previously available to a court of setting a recognizance release order if a person had their parole or licence revoked under s 19AQ.  

    It also inserts a new s 19AR(4)(b) which provides that a court may decline to fix a non-parole period if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence.  

    Revocation of parole order: the amending Act inserts a new s 19AU(3)(ba) which provides that the Attorney-General can revoke a parole order or licence without giving notice required under s 19AU(2) in circumstances where in the opinion of the Attorney-General, it is necessary to revoke the parole order or licence without giving notice to the person to ensure the safety and protection of the community or of another person.  

    Release on parole or licence: The amending Act amends s 19AW(2) to provide that if a prescribed authority cannot complete a hearing under s 19AW(1) immediately and issue a warrant for detention, they must issue a warrant for the person to be remanded in custody pending completion of the hearing.  

     
    Amendments to Criminal Code (Cth)  

    Increased penalties: This legislation increases penalties for offences contrary to the following provisions of the Criminal Code (Cth): ss 272.8, 272.9, 272.10, 272.11, 272.15, 272.18, 272.19, 273.7, 471.22, 471.25, 471.26, 474.24A, 474.25A, 474.25B, 474.27, 474.27A.  

    Sentencing for certain child sexual abuse offences: The amending Act inserts new ss 272.30(1), 471.29A and 474.29AA which provide that when sentencing offenders for offences to which those sections apply, the court must take into account the age and maturity of the person in relation to whom the offence was committed, if that person was under 10, that fact as aggravating the seriousness of the criminal behaviour, and the number of people involved in the commission of the offence. The court need only take into account those matters so far as it is known to the court, and in relation to age, maturity and the number of people involved, so far as it is relevant.
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    Amendments to Crimes Act 1914 (Cth)

    Parole order for terrorism offenders: The Amending Act inserts s 19ALB which states that the Attorney-General must not make a parole order unless satisfied that there are exceptional circumstances justifying that order, in relation to: (a) terrorism offenders; (b) persons subject to a control order within the meaning of Part 5.3 of the Criminal Code (Cth); and (c) persons who the Attorney-General is satisfied have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.

    Section 19ALB(3) requires the Attorney-General to take into account the protection of the community and the best interests of the person when determining whether exceptional circumstances exist in respect of a person under 18 years of age.

    Non-parole periods for terrorist offenders: The Amending Act amends section 19AG by inserting a new s 19AG(4A)-(4B) to require a court, when sentencing a terrorist offender who is under the age of 18 years, to fix a non-parole period of three quarters of the head sentence as provided for in subsection 19AG(2) unless the court is satisfied that exceptional circumstances exist to justify a shorter non-parole period. In determining whether exceptional circumstances exist, the court must have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration.

  • 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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