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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 4 October 2019 —

    Alou v The Queen [2019] NSWCCA 231 — terrorism offence — rehabilitation — deterrence — age — non-parole period

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    appeal against sentence — aiding, abetting, counselling or procuring the commission of a terrorist act offence contrary to ss 11.2 and 101.1(1) of Commonwealth Criminal Code — original sentence imposed 44 years’ imprisonment with a 33 year non-parole period — rehabilitation — s 16A(2)(n) — sentencing judge not in error by sentencing offender on basis that offender was danger to the community and had ‘grim’ or ‘bleak’ prospects of rehabilitation — sentencing judge not in error by concluding that prospects of rehabilitation would remain poor during ‘very lengthy sentence’ — absence of evidence that there will be any change in prospects of rehabilitation does not mean sentencing judge not obliged to make assessment of prospects of rehabilitation — consideration of Bugmy v The Queen [1990] HCA 18 — Bugmy not authority for proposition that assessment of prospects of rehabilitation cannot be made in circumstances of lengthy head sentence — deterrence — s 16A(2)(ja) — age — s 16A(2)(m) — offender aged 18 years at time of offending — clear authority that significance of punishment, deterrence and community protection means that mitigating factors such as youth and prospects of rehabilitation are given less weight when sentencing for terrorism offences — youth remains relevant factor but will be given less weight in light of seriousness of terrorism offence and in absence of causal link between offender’s age and offence — fact that offender was radicalised at age 17 does not lead to conclusion of causal link between the offence and offender’s youth so as to reduce offender’s moral culpability — continuing detention scheme — sentencing judge not in error by not taking into account as a mitigating factor existence of continuing detention scheme for high risk terrorist offenders that may or may not exist at expiration of sentence — non-parole period — s 19AG — sentencing judge not in error by mechanically fixing the non-parole period rather than determining non-parole period through discretion and fixing it subject to s 19AG — obligation to impose minimum non-parole period in s 19AG(2) does not preclude court from fixing greater non-parole period — s 19AG(3) does allow court when fixing a life sentence to impose a minimum non-parole period which is less than what would be required for a determinate sentence greater than 30 years — imposition of a life sentence simply for the purpose of attracting minimum non-parole period of 22.5 years would be an error of sentencing discretion — nothing incompatible with exercise of judicial power for court to determine non-parole period with regard to statutory requirements — leave to appeal granted — appeal dismissed
  • 3 October 2019 —

    R v Suttle [2019] NSWDC 538 — child exploitation offences — nature and circumstances of the offence — victim impact statements — guilty plea — rehabilitation — general deterrence — specific deterrence

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    sentence — 6 counts of use of carriage service to send indecent material to person under 16 years offence contrary to s 474.27A(1) of Commonwealth Criminal Code — 17 counts of state child exploitation offences — nature and circumstances of the offence — s 16A(2)(a) — offending occurred over 2 year period — for an adult to first lie about their age then form an online/Snapchat friendship with children with intention of requesting sex from them is a serious crime — victim of the offence — it should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury from any child sexual assault offence — guilty plea — s 16A(2)(g) — offender will get full benefit generally allowed for early plea, facilitation of the course of justice and acceptance of responsibility — it is important to recognise that none of the young victims had to give evidence in court — rehabilitation — s 16A(2)(n) — sentencing judge confident offender can with help be restored to normal community life — offender has strong pro-social supports in the community and will benefit from assistance while on parole — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — offender and others must by the harshness of custodial punishment learn the consequences of sexual offending against children — social media networks offer many advantages but they can be misused and innocence exploited — offender was knowingly taking advantage of children, lied to them about who offender was and motivation was purely selfish — offender only though of themselves and their own sexual gratification — sentence — total sentence imposed 7 years’ and 11 months imprisonment with a 4 year and 11 month non-parole period
  • 25 September 2019 —

    DPP v Mardirian [2019] VCC 1551 — bankruptcy offences — nature and circumstances of the offence — antecedents — guilty plea — contrition — rehabilitation — delay

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    sentence — 3 charges of being an undischarged bankrupt and obtaining loans of more than $3,000 without advising the lender that you were an undischarged bankrupt offences contrary to s 269(1)(a) of the Bankruptcy Act 1966 (Cth) — offences relate to loans of $955,000, $900,000 and $560,000 respectively — a similar offence relating to a loan of $17,000 was taken into account pursuant to s 16BA — nature and circumstances of the offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — criminal record of multiple counts of obtaining property by deception in 2002 and 2019, the latter for which offender currently serving sentence of 3 years with a 2 year non-parole period — whilst strictly not prior conviction, relevant to offender’s moral culpability for this offending — offending occurred during offender’s fourth bankruptcy, so offender fully aware of obligations towards creditors as a bankrupt — total quantum makes offending serious — enhancing seriousness is that it involved a large amount of money and personal vulnerability on the part of the victim, and breach of trust arising out of victim’s personal relationship with offender — further aggravating features of offending are that offender used bank account in name of someone else to accept deposits and motivation for offending was nothing but greed — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — relatively late plea given matter was listed for trial before plea offer was made and matter was subject of contested committal, but some utilitarian benefit in the plea as obviated the need for a trial — guilty plea also some evidence of remorse — hard to see any real empathy towards victim here, but sentencing judge did take it into account — rehabilitation — s 16A(2)(n) — delay — delay has meant no offending since these offences and thus enhances offender’s prospects of rehabilitation — offences hanging over offender for a lengthy period — given assessment of moral culpability, sentencing judge regarded prospects of rehabilitation as being guarded, particularly given prior convictions — totality — while sentencing judge accepted 3 offences involved a single course of conduct, they also involved a number of individual transactions within that period and offending occurred over lengthy period — separate offending should be reflected in some cumulation between the individual accounts — sentencing judge had regard to current sentence and considerations of totality, looking at criminality involved in overall offending, stepped back and applied principles of parsimony and proportionality in fixing total overall effective sentence — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — general deterrence very important to maintain integrity of bankruptcy law without which there would be serious public disadvantage of various economic, commercial and social kinds — sentence must send signal to those under state of bankruptcy to be conscientious in dealings with creditors — specific deterrence also relevant due to prior offending — sentence imposed 3 years’ and 9 months imprisonment with a 2 year and 6 month non-parole period — reparation order of outstanding amount of $1,796,241.58 to victim
  • 20 September 2019 —

    R v Doherty [2019] NSWDC 515 — drug importation — guilty plea — nature and circumstances of the offence — mental condition

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    sentence — aided and abetted an attempted possession of a commercial quantity of a prohibited drug offence contrary to ss 307.5, 11.1 and 11.2 of Commonwealth Criminal Code — offence related to 3,771.5g of pure methylamphetamine — two other co-offenders — guilty plea — s 16A(2)(g) — otherwise appropriate sentence will be reduced by 25% to take into account the cooperation and facilitation of the course of justice implicit in offender’s guilty plea — nature and circumstances of the offence — 16A(2)(a) — offender willing to assist if necessary but played only a limited hands on role — while this is an aid and abet an attempted possession offence, offender’s moral culpability can be measured by their understanding that Co-offender 1 was using them to secure the importation of something illegal and that Co-offender 2 was taking the primary risk by collecting and transporting the consignment — cannot be inferred offender expected some cash reward but impossible to accept offender did not expect some benefit from assisting co-offenders — sentencing judge prepared to accept offender awed by Co-offender 1’s wealth and apparent financial success and that they were psychologically vulnerable to requests by such a person for help, offender was not an innocent dupe — mental condition — s 16A(2)(m) — sentencing judge prepared to accept offender has had number of psychological problems for which offender has benefited from counselling and treatment — to an extent they may have predisposed offender to accepting whatever it was that Co-offender 1 offered them or offender thought they might gain from helping them — offender may have been vulnerable to a flawed thinking process but that does not significantly reduce offender’s moral culpability nor do offender’s psychological conditions make offender less of an appropriate vehicle for specific and general deterrence — sentence imposed 6 years’ imprisonment with a 3 year non-parole period
  • 10 September 2019 —

    The Queen v Ware [2019] TASSC — smuggling offences — nature and circumstances of the offence — general deterrence — specific deterrence — guilty plea — rehabilitation — co-operation

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    sentence — 3 counts of aggravated illegal importation of plants offence contrary to s 67(3) of the Quarantine Act 1908 (Cth), and 7 counts of importing conditionally non-prohibited goods offence contrary to s 186(4) of the Biosecurity Act 2015 (Cth) — offences related to 2,186 garlic bulbils — nature and circumstances of the offence — s 16A(2)(a) — the family to which garlic, a member of the Allium family belongs, is a known host for a serious plant pathogen known as “Xyella fastidiosa”, a disease not present in Australia but native to United States and Canada where the garlic was imported from — garlic also host for number of exotic pathogens and pests — numerous unwanted exotic insects known to be present in the United States and Canada, which are not ordinarily found in Australia — sentencing judge accepted disease had not been detected in garlic bulbils, but the law reflects the fact that the risk exists, based upon expert assessment — the only way to manage this risk is through enforcement of laws offender breached — for a modest financial advantage, offender prepared to engage in course of conduct which created risk to all agricultural activity in Australia — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — sentencing judge regarded need for general deterrence as particularly important aspect of sentencing exercise in this case — did not ignore the need for specific deterrence in the face of protracted course of conduct — conduct ceased because offender was caught, not because offender thought better of what they were doing — guilty plea — s 16A(2)(g) — sentencing judge prepared to accept the plea was entered at relatively early stage after resolution of technical matters, but sentencing judge did not accept plea made at earliest opportunity — some utilitarian benefit accrues in consequence of offender’s plea, given 10% discount — guilty plea can be evidence of remorse — when guilty plea considered in context of remorse, it is appropriate to have regard to the strength of the Crown case — there was some recognition of the inevitable in offender’s plea — rehabilitation — s 16A(2)(n) — co-operation — s 16A(2)(h) — admissions made by offender during interview and offender co-operated with authorities — held in high regard by peers, evidenced by leadership role in industry body — suffered significant loss of reputation, relevant for rehabilitation that will influence offender’s future conduct and discourage further offender — sentence imposed 11 months’ imprisonment, released on recognizance after 2 months for $2,000 and ordered to be of good behaviour for 3 years

Recent Updates to Commentary View All

  • 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
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    new page created on sentencing considerations for terrorism offences, including commentary on the purposes of sentencing for terrorism offences, how the types and elements of terrorism offences are relevant to the court’s assessment of objective seriousness of the offence and moral culpability of the offender, and how terrorism offences relate to other considerations such as mitigating factors and imposing sentences
  • June 2019 —

    Guilty Plea

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    updated to reflect changes to the treatment of guilty plea as a federal sentencing factor in the ACT, NSW and Tasmania and additional commentary added discussing how the  strength of crown case impacts the utilitarian value of a plea
  • May 2019 —

    Cultural Background

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    updated to expand section 3.5 to include commentary on Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301, page also updated to reflect modern layout

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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