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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 17 June 2022 —

    R v Zoghbi [2022] NSWDC 219 — dishonesty offence — sentence —  nature and circumstances — contrition — extra-curial punishment

    The offender was sentenced following a conviction to 1 count of conspiring with the intention of dishonestly obtaining a gain from a Commonwealth entity contrary to s 135.4(1) of the Commonwealth Criminal Code.

    Nature and Circumstances: Offending is properly to be described as a ‘grave instance’ of conspiring to defraud the Commonwealth. The actual loss in terms of monies paid by the Commonwealth was $19.25 million. The conspiracy itself, defrauding the Commonwealth under the Pharmaceutical Benefits Scheme, was ongoing for more than 12 months. An additional number of claims had already been prepared and were intended to be submitted and the criminal scheme was likely to have continued but for unanticipated intervention. Offender used their position of trust and knowledge of the operational procedures and systems of the Pharmaceutical Benefits Scheme to give effect to the conspiracy.  Offending falls well above a mid-range of objective seriousness and approaches the most grave instances of such offending.

    Contrition: Offender is remorseful for the position in which they have placed their family and themself by their actions. However, they continue to deny any complicity in the conspiracy. It has been advanced on behalf of the offender that they intentionally retained funds within the bank accounts of either the pharmaceutical practice or their own with the intention that they were preserving such funds to the advantage of the Commonwealth. Any such motive is not accepted. Offender was at that time motivated by self-preservation.

    Extra-Curial Punishment: Loss of career and professional reputation is capable of amounting to a form of extra-curial punishment. However, offender’s professional position as a pharmacist provided the opportunity and facilitated their ability to commit the offence. The loss of their professional career is the inevitable result of their breaches of trust as a pharmacist. Whilst to be taken into account, it carries little weight in an appropriate determination of a proper sentence.

    Offender sentenced to 6 years and 4 months imprisonment with a non-parole period of 4 years.
  • 15 June 2022 —

    The Queen v Avanteos Investments Ltd [2022] VCC 869 — corporate offences — sentence — nature and circumstances — cooperation — contrition — general deterrence

    The offender was sentenced following pleas of guilty to 18 counts of not ensuring defective disclosure notified to distributor contrary to s 102J(1) of the Corporations Act 2001 (Cth).

    Nature and Circumstances: Over an approximately 28-month period, offender  was aware that its disclosure documents contained misleading statements and omitted information about its practice of continuing to deduct and remit fees from its members’ accounts following the death of the member. Despite offender knowing of the defect and it being clearly practicable to have taken reasonable steps to remedy the defect, they continued to charge fees after being informed of an investor’s death and did so for some 28 months, resulting in 499 deceased members having fees deducted from their accounts. In all the circumstances, the offending can only be described as a very serious failure of corporate governance and an example of a financial corporation putting its own interests above those of its investors in breach of the law. In all the circumstances it is a serious example of corporate offending and the company’s culpability is relatively high.

    Cooperation: Offender self-reported to ASIC and APRA, pursuant to its obligations under the Act. Once an investigation had commenced, offender produced relevant documents without resistance and without claiming any privileges. Offender continued to consult with ASIC as to its remediation methodology in relation to the affected victims by providing regular updates on the status of the remediation program.

    Contrition: ASIC will seek the costs of the investigation from the offender which are in the order of $1.3 million. The fact that the offender  is willing to pay the ASIC costs is further demonstration of the company’s acceptance of responsibility and its contrition. The parties agree this is a matter to be taken into account in arriving at the appropriate penalty.

    General Deterrence: General deterrence is the paramount sentencing consideration in this instance. The failure to correct the defect for some 28 months calls for a penalty that sends a message to the market that this kind of procrastination will not be tolerated, particularly in a trusted and well-resourced company that was a subsidiary of one of Australia’s largest banks. While the conduct of the company was not pursued as a matter of strategy, offending nonetheless represents a high level of objective gravity and general deterrence must weigh heavily in the sentencing calculus.

    Offender sentenced to a fine of $1,710,000. If not for the plea of guilty offender would have been fined $2,700,000.
  • 14 June 2022 —

    R v LL [2022] NSWDC 208 — carriage service offences — sentence — nature and circumstances — guilty plea — contrition — hardship

    The offender was sentenced following a conviction to 1 count of using a carriage service to transmit a communication with someone under 16 years of age with the intention of procuring the recipient to engage in sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code and plea of guilty to 1 count of using a carriage service to transmit material, the material being child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code. Offender sentenced for additional state offence.

    Nature and Circumstances: With respect to count 1, the victim was a real child but not a particularly young child at 15 years. Age difference of some 34 years is significant. Although offender was well aware of the illegality of their conduct, it is also clear from the messages that any sexual activity would not occur until the victim was of consenting age (16). The offender was persistent, and the number of messages was significant, as was the highly sexualised nature of the conduct. Although the messages were intense they went over a period of only slightly over a week. Offender and the victim were well known to each other and had met in innocent circumstances a number of times. Offending is within the mid-range of seriousness. With respect to count 2, while the description of sexual activity is detailed and graphic, the communications include the written description with no photograph or the like. There was no transmission of images of either photographs or drawings or cartoon type images. Offending is below mid-range but not towards the lower end of the range.

    Guilty Plea: Offender pleaded guilty to count 2 on the day of the trial. The jury was required to return a verdict of guilty to that count and the Crown was required to put evidence before the jury in relation to that count. There was very little benefit to the community or the victim or any witnesses. The utilitarian value of the plea is 5%. There can be no consideration or discount for any plea of guilty in respect of count 1.

    Contrition: Offender has shown remorse and no doubt was genuine in their expressions of contrition. Offender accepted they had caused the victim ‘so much stress’ and what they did was ‘horrible’. Offender accepted they breached the trust they had with the victim’s family. There is nothing particularly unusual or exceptional for offenders to express remorse in circumstances where the matter went to trial. Offender’s contrition is a matter in mitigation. Offender is afforded some, although not considerable, consideration for their cooperation with law enforcement activities.

    Hardship: The house in which the offender lives with their two daughters is unencumbered. Offender has discussed with their daughters the prospect of them continuing to live in the house by themselves if they go into full time custody. Offender has deposited $20,000 in each daughter’s bank account. One of the girls is anorexic and the other twin has consulted a paediatrician who diagnosed probably autism spectrum disorder. When asked under cross-examination as to why the offender had not made arrangements for the care of their daughters earlier, offender maintained they thought they had a sufficient network in place. Evidence makes it clear that the impact of any sentence of full-time custody on the offender’s children will be significant indeed. It would be entirely unsatisfactory to have two 16-year-old girls, both of whom have their particular issues, living by themselves, essentially without supervision. If the offender is sentenced to full-time custody it may well be that the girls would have to live with their father. That also has its own issues noting the victim and their family live in the same small town as the girls’ father.

    Offender sentenced to 3 years imprisonment to be released in 18 months upon entering recognizance in the amount of $1,000 to be of good behaviour for 3 years.
  • 8 June 2022 —

    DPP v Alimic [2022] VCC 819 — dishonesty offences — sentence — nature and circumstances — guilty plea — delay — s 19B

    The offender was sentenced following pleas of guilty to 5 counts of producing false or misleading documents, 2 counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity and 2 counts of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to the Commonwealth Criminal Code.

    Nature and Circumstances: Offender lodged 5 false Medicare claims supported by tax invoices which had been fabricated and contained false information as to anaesthetic services provided. Offender dishonestly obtained $13,322 from Medicare and attempted to dishonestly obtain a further $9,103. While offending occurred over a very short period and in circumstances where the offender reported their conduct to Medicare, it cannot be considered to be trivial. The amount of money dishonestly obtained or sought to be dishonestly obtained totalled over $20,000 and is a significant sum of money. Money dishonestly obtained has not been repaid.

    Guilty Plea: Offender alerted authorities to their own criminal conduct, which may have gone unnoticed in the absence of the offender taking that action. Plea was entered at the earliest opportunity and has significant utilitarian value. Plea, especially considered in light of the offender’s unsolicited reporting of their offending and extensive admissions in their record of interview, is both indicative of genuine remorse and a willingness to facilitate the course of justice. Substantial discount is warranted.

    Delay: Offending was five and a half years ago. Offender has undergone a lengthy period of rehabilitation and suffered a considerable burden of having this matter hanging over their head for an extended period of time. Offender’s mental health has suffered as a result of awaiting the outcome of these legal proceedings.

    Offender released without proceeding to conviction, upon entering a good behaviour bond in the sum of $500 for a period of 9 months. S 19B of Crimes Act 1914 (Cth) satisfied given offender’s guilty plea, cooperation, contrition, delay, the absence of any prior or subsequent criminal history and 109 days spent on remand, which is a significantly punitive period far exceeding any penalty which might otherwise have been imposed.
  • 3 June 2022 —

    The Queen v Sackl [2022] VCC 796 — dishonesty offences — sentence — nature and circumstances — contrition — delay — rehabilitation — hardship — family and dependants

    The offender was sentenced following pleas of guilty to 10 counts of delivering false or misleading information relating to a non-citizen contrary to s 234(1)(c) of the Migration Act 1958 (Cth) and 3 counts of presenting a false or forged document contrary to s 234(1)(a) of the Migration Act 1958 (Cth).

    Nature and Circumstances: Offending was of a type that could undermine the integrity of this system. False information was provided in the course of offender conducting a business where they stood to gain financially from the filing of visa applications. Offending was beyond mere inadvertence or incompetence. Offender had concealed the involvement of their companies in the application process, which in turn shielded them from regulatory scrutiny. Offender was the Managing Director and CEO of both companies and  personally culpable for the false information provided to the applicants in the documents. It is significant that the dishonesty on this point was repeated on multiple occasions over the course of about 5 months. Overall, offender’s conduct was repeatedly and significantly below the standard of integrity required of those providing information pursuant to visa applications.

    Contrition: When first interviewed by police, offender conceded that they knew that the representation on the forms was false. They did, however, diminish the gravity of this conduct by describing it as something done naughtily. Offender provided the Court with a letter of apology which is genuine in its sentiments. Offender has some remorse for their actions.

    Delay: The matter has been the subject of extraordinary delay. Offending concluded in early 2013 and offender was charged in 2017. Offender has had the spectre of these charges hanging over them since their interview more than 8 years ago. This delay was inordinate and is a punishment in itself. The delay also means that offender’s good behaviour over a long period subsequent to the offending becomes a very significant matter in mitigation.

    Rehabilitation: Offender has no prior or subsequent convictions or findings of guilt. They were relatively youthful at the time of the offending. The offending ceased well before any police involvement. Offender is in the process of seeking to re-establish themself after their period of bankruptcy finishes. Offender’s prospects of rehabilitation are very good.

    Hardship: The finding of guilt on these charges will have the effect of disqualifying offender from being a director of a company for a significant period. This inevitable outcome will hinder offender’s business prospects and represents a form of extra-curial punishment. It was not contended that hardship to offender’s family, in particularly their four children under 10, amounted to ‘exceptional’ hardship such as to make it a permissible consideration in accordance with Victorian law as expressed in Markovic v The Queen. The Court could not apply Totaan v The Queen for this reason.

    Offender was sentenced to a Community Corrections Order for 3 years with a special condition of performing 250 hours of community work.

Recent Updates to Commentary View All

  • February 2022 —


    updated to reflect the introduction of s 16(2AAA) and the relevant recent case law.
  • October 2021 —

    Release on Parole or Licence

    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.
  • More
    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.
  • More
    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 —


    update to reflect the introduction of s 16A(2)(ma) and the effect of prior good character on white collar offences

Recent Legislative Amendments View All

  • More
    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.
  • More
    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)

    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)

    — 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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