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Welcome to the COMMONWEALTH SENTENCING DATABASE

Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 16 August 2019 —

    R v Elmir (No 3) [2019] NSWSC 1040 — preparatory foreign incursion offence — nature and circumstances of the offence — rehabilitation — contrition — guilty plea — specific deterrence

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    sentence — committed acts in preparation for incursion into foreign country for the purpose of engaging in hostile activities offence contrary to s 119.1 of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — connected to offender in R v EB [2018] NSWSC 201 — slightly below mid-range objective seriousness — offender undertook serious steps in commission of offence — preparatory acts involved travelling to Turkey, living at Islamic State safe house, acquiring military equipment, making contacts to enter into Syria, and seeking EB’s financial help to further offender’s objectives — fact that offender travelled to Turkey after impulsively leaving family while travelling in Dubai had limited mitigating effect as remained in Turkey for 2 month period — nothing to suggest that offender would not have pressed ahead with intention to enter Syria had offender not had ‘falling out’ with people at IS safe house — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — affirmed R v Ghazzawy [2017] NSWSC 474 where offender’s renunciation of extreme ideological views bears directly upon assessment of prospects of rehabilitation — fact that offender did not give evidence at sentencing hearing or sign affidavit affects considerations of contrition, rehabilitation and community protection — fact that offender did not have access to formal rehabilitation or de-radicalisation programs, attempted to ‘explain away the behaviour of IS’, and left IS safe house due to considering Islamic beliefs of occupants not as ‘pure’ or ‘rigorous’ as offender’s own does not support finding that offender renounced extremist views — fact that offender declined to stand during sentencing hearing does not support conclusion that offender renounced extremist views as ‘sufficiently known that some persons holding extremist Islamic views’ refuse to stand in court — guilty plea — s 16A(2)(g) — offender pleaded guilty at latest possible time against strong Crown case — plea has some utilitarian value and facilitates the course of justice — offender entitled to 10% discount — specific deterrence — s 16A(2)(j) — specific deterrence must be given considerable weight where court not satisfied offender has renounced extreme views and beliefs — sentence — imposed 5 years’ and 5 months imprisonment with a 4 year and 1 month non-parole period
  • 9 August 2019 —

    R v Dirani (No 34) [2019] NSWSC 1005 — conspiracy preparatory terrorism offence — objective seriousness — rehabilitation — contrition

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    sentence — conspiracy to do acts in preparation of a terrorist act offence contrary to ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — offender committed acts in conspiracy with offender in R v Alou (No 4) [2018] NSWSC 221 in relation to shooting of Curtis Cheng terrorist act — offending high level of objective seriousness — significant degree of planning in conspiracy — offender played significant part to progress conspiracy and party to conspiracy for extended period — offender provided emotional, religious, ideological, financial and practical support — offender aware of planning for terrorist attack and did not seek to withdraw from conspiracy — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — onus lies on offender to demonstrate genuine move away from ‘heavily radicalised and extremist views to an approach or belief system which points in a different direction’ — claim that reading of the victim impact statement produced ‘watershed moment’ in offender’s thinking unable to be accepted as mitigating factor as not tested by cross-examination — offender continuing to refuse to stand in court proceedings demonstrates offender has not moved away from extremist beliefs which motivated commission of offence — significant risk that offender would act again as a supporter, sympathiser or conspirator — co-operation — s 16A(2)(h) — offender’s co-operation in relation to facilitating the course of justice will only be demonstrated where offender takes additional steps beyond the ordinary requirements of a criminal trial — sentence — imposed 28 years’ imprisonment with a 21 year non-parole period
  • 9 August 2019 —

    R v Pan [2019] NSWDC 407 — possessing counterfeit money — specific deterrence — general deterrence — contrition — guilty plea — deportation

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    sentence — possessing counterfeit money (not excepted counterfeit coin) offence contrary to s 9(1)(a) of Crimes (Currency) Act 1981 (Cth) — specific deterrence — s 16A(2)(j) —  general deterrence — s 16A(2)(ja) — counterfeit money undermines confidence in integrity of Australian currency, which ordinary people rely on to conduct day-to-day transactions — sentencing judge noted offender kept counterfeit notes out of circulation — because offender has no insight into criminality of their behaviour, personal deterrence has some limited role to play — it is expected in gaming industry for some associates to ‘swindle’ by playing with counterfeit money — if offender continues to gamble, no reason to think offender would not come across further counterfeit currency — contrition — s 16A(2)(f) — guilty plea — s 16A(2)(g) — plea was entered on first day of trial, 5% discount allowed for utilitarian value of offender’s plea in the context — deportation — prospects of deportation is not a mitigating factor in sentencing  — sentence — 2 year conditional release order
  • 2 August 2019 —

    R v Hraichie (No 3) [2019] NSWSC 973 — preparatory terrorism offence — nature and circumstances of the offence — guilty plea

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    sentence — preparatory terrorist act offence contrary to s 101.6 of Commonwealth Criminal Code — offender committed acts in preparation for or planning terror attacks on Australian law enforcement officers in support of Islamic State — three additional state offences relating to serious acts of violence or threatened violence — mental condition — s 16A(2)(m) — no evidence that offender subject to mental illness or mental condition — nature and circumstances of the offence — s 16A(2)(a) — serious example of preparatory conduct — offending conducted over extended period of time and in four different stages — offending conducted while offender on parole or in custody — fact that terrorist act intended to kill police officers remains ‘very grave crime’, even where target group does not include ‘random members of the public’ — co-operation with authorities — s 16A(2)(h) — offender’s admissions to authorities made because ‘he was proud of his criminal acts’ — admissions do not reflect remorse or self-interest — reason for making admissions does not disqualify offender from discount, but will only be entitled to modest discount — contrition — s 16A(2)(f) — offender did not give evidence and not subject to cross-examination — second-hand expressions of contrition and remorse directed toward offender’s mother carry no weight in circumstances where statement cannot be tested and made against offender’s background of deeply entrenched views and beliefs — age — s 16A(2)(m) — offender aged 19 years at time of offence — offender’s youth does not provide significant mitigation on sentence due to gravity, variety and circumstances of offending — no causal link between offender’s age and criminal conduct — sentence — imposed 20 years’ imprisonment with 15 year non-parole period for preparatory terrorism offence — total effective sentence of 34 years’ imprisonment with 29 year non-parole period
  • 2 August 2019 —

    R v Freeman [2019] QCA 150 — attempted drug possession — hardship — manifest excess — guilty plea — delay

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    leave to appeal against sentence — attempting to possess a marketable quantity of a border controlled drug, and failing to comply with an order to assist access offence — original sentence imposed 4 years’ and 6 months imprisonment with a 2 year and 6 month non-parole period — offences relate to 383.6 grams of 3, 4-methylenedioxyethcathinone — hardship manifest excess — loss of offender’s contribution to a home-based family business and its financial consequences to the family are not dissimilar to the financial consequences which would be suffered by an inability to undertake part-time or full-time employment as a result of imprisonment — offender’s wife’s poor state of health and her inability to carry on the baking business on her own without offender’s assistance with heavy lifting and transportation — hardship to offender and wife was taken into account by sentencing judge and sentence imposed was not manifestly excessive because insufficient weight was attached to the matter — even if additional evidence admitted, not manifestly excessive — guilty plea — s 16A(2)(g) — delay — delay of 3 years provided offender with benefit of being at liberty — during that time, no indication prepared to plead guilty — matter set for trial on number of occasions — guilty pleas came very late and compelled by strength of prosecution case — sentence — leave to appeal against sentence denied

Recent Updates to Commentary View All

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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
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    updated to reflect changes to which state pre-release permit schemes are prescribed under reg 5 of the Crimes Regulations 1990 (Cth) and to better reflect the various ways in which federal offenders may be released from custody under s 19AZD while serving a sentence of imprisonment
  • March 2019 —

    Age

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    updated to include commentary on recent cases DPP (CTH) v MHK[2017] VSCA 157R v Khaja (No 5)[2018] NSWSC 238 and R v Khalid[2017] NSWSC 1365 considering treatment of youthful terrorism and violent offenders; Younan v The Queen[2016] NSWCCA 248 outlining treatment of youthful offenders committing sophisticated crimes; also includes state sentencing practices of young offenders as they can be applied by 20C and discussion of definition of ‘youthful’

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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