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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 24 September 2021 —

    Garcia-Godos v The Queen [2021] NSWCCA 229 — drug importation offences — appeal against sentence — guilty plea — Xiao error — parity — nature and circumstances

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    The offender was sentenced following pleas of guilty to 1 count of importing a commercial quantity of a border-controlled drug and 1 count of conspiring with others to deal with money in excess of $100,000 contrary to ss 11.5(1) and 400.4(1). Drug importation offence related to 34kg of pure cocaine. Additional offences taken into account pursuant to s 16BA. The offender appealed on the grounds that the sentencing judge failed to take into account the utilitarian value of the plea, the sentencing process miscarried as the sentencing judge asked for the views of the Crown as to the bounds of available sentences and erred by applying a principle that in cases of drug importation subjective factors must play a lesser role.  

    Guilty Plea: Sentencing judgment was handed down prior to decision in Xiao. Offender was not given a discount for utilitarian value of guilty plea. Simpson AJA doubted that misstatement of principle having no impact on the exercise of the sentencing discretion should result in the re-examination of that discretion by the Court. Absent the Crown’s concession that the Court was required to proceed to re-exercise the sentencing discretion, Simpson AJA would have been inclined to reject ground 1 of the proposed appeal.  

    Parity: Offender submitted that principles in Barbaro prevented the Crown from making any submission on parity which indicated that a particular sentence would infringe the principle of parity. The sentencing judge wanted guidance from the Crown as to the available range or appropriateness of a particular sentence. The Crown’s refusal to answer the question directly demonstrated the Crown’s awareness of the Barbaro principles and a determination not to breach them. The Crown’s negative answer as to whether a sentence was within range was part of the Crown’s submissions on parity. The Crown is both entitled and obliged to draw the sentencing judge’s attention to comparable cases.  

    Nature and Circumstances: Sentencing judge quoted Karan stating that subjective factors must play a lesser role. It was common ground that the word ‘must ‘was an error as in Karan it was actually said that such factors play a lesser role.  

    Extension of time granted. Leave to appeal granted. Appeal dismissed.
  • 23 September 2021 —

    R v O’Brien [2021] NSWDC 504 — drug importation offences — nature and circumstances — cooperation — antecedents — mental condition — rehabilitation

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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 307.21(1) of the Commonwealth Criminal Code. Offence related to 446.61 grams of pure gamma-butrolactone. Offender sentenced for additional state offences.  

    Nature and Circumstances: GBL was purchased online using personal details and credit card for less than $50. Offender engaged in unsophisticated offending of an amount less than half the commercial quantity of GBL. Offender was not participating in criminal syndicate but was acting of own accord and any financial benefit they were to receive by sharing the product with friends was likely to be minimal. Offending was at the lowest end of the range.  

    Cooperation: Offender submitted they assisted law enforcement agencies in the investigation of the offence by making admissions. Offender told police they purchased the consignment for use as paint remover. Degree of cooperation is not to be given great weight.   Antecedents: Offender’s formative years have been marked by exposure to domestic violence and child sexual abuse. Notwithstanding working successfully as a nurse and in sales, those are matters which are relevant to diminishing culpable offending. Offender’s criminal history is reflective of history of drug and alcohol abuse. This history disentitles the offender to leniency in sentencing, although leniency has previously been a feature with numerous section 9 bonds being imposed to be of good behaviour.  

    Mental Condition: Drug use was maladaptive coping mechanism. However, offender’s mental health was not accepted to be causative of current offending. Offending was result of ongoing drug abuse and association with other persons involved in the drug milieu.  

    Rehabilitation: Offender has engaged positively with treatment regime since January 2021 and has had nil positive drug detection results. This is compelling evidence that they have advanced their rehabilitation, have insight and self-awareness into their offending and if continued, will have reasonable prospects of rehabilitation. The salutary effect of arrest and imprisonment warrants a more positive assessment of risk of reoffending than that in the SAR.  

    Offender sentenced to 18 month community corrections order.
  • 14 September 2021 —

    DPP v Merton (A pseudonym) [2021] VCC 1324 — carriage service offence — sentence — victim of offence — mental condition — antecedents — guilty plea — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to harass contrary to s 474.17(1) of the Commonwealth Criminal Code. Offender was sentenced to additional state offences.

    Victim of Offence: Victim’s statement detailed the profound effect the offending had on themselves and their children. The offender’s actions not only had a physical impact on the victim but ongoing emotional and psychological damage. Consideration of impact on the victims cannot swamp the sentencing process.

    Mental Condition: Offender met the criteria for a severe personality disorder with borderline patterns, persistent depressive disorder and stimulant use disorder. Offender’s moral culpability was reduced by reason of their borderline personality disorder substantially impacting their ability to think through and reason. Verdins limbs 1, 3 and 5 applied. The extent of reduction in moral culpability was limited somewhat by the impact drug use had on the offender’s behaviour. Offender’s personality impairment, depressive disorder and ongoing pandemic restrictions would make imprisonment more burdensome.

    Antecedents: Offender had concerning and substantial prior criminal history from a young age including extensive interstate priors and similar offending. Offender’s unstable and disadvantaged childhood was taken into account to reduce their moral culpability. Offender endured a childhood of emotional neglect, exposure to violence, physical abuse and sexual abuse. Offender had an unstable education and was drawn to alcohol abuse by age 13 and cannabis use by age 14. Degree of personal culpability to be attached to offending must appropriately be moderated.

    Guilty Plea: Plea was entered at the earliest reasonable opportunity and is of substantial utilitarian value as the offender saved the time and resources that would otherwise have been expended on contested proceedings. Avoidance of multiple trials carried significant weight in relation to current pandemic restrictions and sparing witnesses the inconvenience and undoubted stress involved in giving evidence at trial. Plea was consistent with offender’s self-awareness and genuine remorse for their offending.

    Rehabilitation: Offender’s criminal history has seen the offender sentenced to periods of imprisonment on 11 occasions since 2002. Present offending was committed whilst on parole and in breach of a Community Corrections Order. Offending suggests that the offender has a limited capacity to appropriately regulate their behaviour, especially when under the influence of drugs. Offender posed a high risk of re-offending and has poor prospects of rehabilitation, though successful engagement with treatment in the future is possible.

    Offender sentenced to 6 months imprisonment for carriage service offence. Total sentence 4 years and 4 months imprisonment with a 3 year and 3 month non-parole period.
  • 10 September 2021 —

    DPP (Cth) v Roberts [2021] NSWDC 472 — dishonesty offences — nature and circumstances — antecedents — mental condition — contrition — family and dependents

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    The offender was sentencing following a plea of guilty to dishonestly obtaining a financial advantage from the Commonwealth contrary to s 134.2(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: There is no suggestion of any assumed identity. Offending related to $125,432.49 in overpayments of the carer’s pension from the Department of Social Security over a period of nearly six- and one-half years. The offender deliberately and consistently over a number of years misstated their income to the relevant authority. The offending conduct only stopped when there was a data match. The offender did not stop the offending conduct of their own volition. The offending is marginally above mid-range. To be towards the upper end in the range of seriousness it would have to involve greater sums of money and matters such as false identities.  

    Antecedents: Offender is indigenous and grew up with adoptive parents. Offender’s adoptive mother was physically abusive. The factors of the offender’s upbringing go to enliven the Bugmy factors, reducing the moral culpability of the offending. The Bugmy factors should not be given excessive weight or overwhelm the seriousness of the offending.  

    Mental Condition: Offender has often gambled away pay. Generally addiction to either gambling or drugs will not mitigate penalty.  

    Contrition: Offender has not repaid full amount. Although offender is entitled to consideration for contrition the weight given to that is not as great as it would be if the whole of the amount defrauded had been repaid.  

    Family and Dependents: Offender is a carer for their sister who suffers from significant number of health issues. Offender attends to all domestic duties and assists their sister with daily living. There will be some adverse effect on offender’s sister if the offender goes to custody. The issue is whether the needs of the offender’s sister reach the very high standard of exceptional. Although it goes close to the hardship that the offender’s sister would suffer it does not meet the standard of exceptional that is required by the authorities. The issue of hardship goes to the issue of the ratio between actual time in custody and total sentence.  

    Offender sentenced to 3 years imprisonment to be released on recognisance after 10 months.
  • 9 September 2021 —

    R v Jacques [2021] SASCA 94 — drug trafficking offence — money laundering offences — appeal against sentence — manifest inadequacy — nature and circumstances — guilty plea — cumulative and concurrent sentences

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    The offender was sentenced following pleas of guilty to 1 count of trafficking in a controlling drug contrary to s 302.4(1) of the Commonwealth Criminal Code, 1 count of dealing with money valued at $100,000 or more, where there is a risk that it will become an instrument of crime, contrary to s 400.4(2) of the Commonwealth Criminal Code and 1 count of dealing with the proceeds of indictable crime valued at $10,000 or more contrary to s 400.6(1) of the Commonwealth Criminal Code. Offending involved 3.419 kilograms of pure methylamphetamine. Original sentence imposed 3 years imprisonment and a 9 month non-parole period. Crown appealed on the basis that the head sentence and non-parole period were manifestly inadequate.

    Nature and Circumstances: Offender operated their own trafficking enterprise and was not answerable to anyone in a hierarchy of a drug trafficking business. Though a third party supplied the offender with the drugs and a customer base, for all intents and purposes they ran their own business. Offending was part of an ongoing commercial enterprise which went beyond funding the offender’s addiction. While there was scope to impose a relatively lenient non-parole period, the circumstances of offending and offender’s previous criminal history required a sentence that continued to place weight on personal deterrence and the seriousness of offending. Non-parole period of just below 25% was not justifiable.

    Guilty Plea: Sentencing judge gave extremely high discounts of 33% and 35% for money laundering offences despite the offender’s pleas of guilty being considerably delayed. Offender was arrested in August 2018 and entered not guilty pleas in September 2019 before pleading guilty on 30 September 2020.

    Cumulative and Concurrent Sentences: Original sentence for money laundering offences were to be served wholly concurrently. While both offences related to the offender’s involvement in drug trafficking, this was a relatively high level of abstraction. They were separate and distinct instances of offending warranting cumulative sentences.

    Leave to appeal granted. Appeal allowed. Offender resentenced to 6 years and 9 months imprisonment with a 4 year non-parole period. 15% discount granted for the offender’s pleas of guilty.

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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