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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 14 February 2019 —

    R v Gillett [2019] ACTSC 30 — abuse of public office offence — contrition — character — delay — guilty plea — co-operation

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    sentence — abuse of public office offence contrary to s 142.2(1) of Commonwealth Criminal Code contrition — s 16A(2)(f) — sentencing judge accepted offender was remorseful as offender made full admissions to offences within hours of being initially investigated and pleaded guilty at earliest opportunity — offender accepts accountability for offence, and is embarrassed and ashamed by actions — character — s 16A(2)(M) — sentencing judge did not accord significant weight to offender’s otherwise good character as offence is frequently committed by those of otherwise good character — delay — offending occurred between August 2008 and March 2009 but not detected until 2016 — take into account only period of 18 months delay between offender in November 2016 making full admissions to his conduct and being summonsed before Court in June 2018 — no significant discount for delay between 2008-9 and 2016 given that delay was result of offending behaviour being kept hidden by offender, despite offender being required to report any misconduct — guilty plea — s 16A(2)(g) — discount of 25% is appropriate in light of offender’s willingness to facilitate course of justice — co-operation — s 16A(2)(h) — prosecution submitted past co-operation with overseas authorities may be considered by court under s 16A(2) as one of “any other matter[s]” — previous proceedings adjourned to allow offender to travel to United States to provide assistance to US Department of Justice in person in connection with ongoing prosecutions in a US Navy bribery matter — sentencing judge takes this past co-operation into account on sentence — offender gave undertaking in Court to attend and give evidence at any trial in the United States if subpoenaed and to co-operate in that process — sentencing judge gave a 15% discount in relation to undertaking to provide future co-operation — sentence — offender’s plea of guilty, remorse, suitability for an ICO, excellent prospects for rehabilitation and assistance to authorities point in direction other than imprisonment served by full time custody — sentence impose 23 months of imprisonment to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT) by way of s 20AB(1AA)(a)(ix) of Commonwealth Criminal Code — additional condition that offender perform 150 hours of community service within 23 months
  • 13 February 2019 —

    DPP v Nguyen [2019] VCC 108 — attempted drug possession — hardship — objective seriousness — general deterrence — rehabilitation

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    sentence — attempting to possess commercial quantity of unlawfully imported border-controlled drug — offence relates to 22.277 kilograms of pure methamphetamine — hardship — argued that offender’s mother’s diabetes, elevated blood pressure and depression should be taken into account by court in determining exceptional circumstances — no actual medical evidence tendered about mother’s medical condition and mother continued to perform role of chief cook at the family restaurant — evidence in relation to family restaurant falls short of meeting high test of exceptional hardship — also relied upon offender’s wife’s endometriosis condition — sentencing judge considered this to be somewhat vague support for proposition of exceptional hardship — for offender to rely upon hardship that imprisonment creates for people other than offender is an appeal for mercy — legal authorities make it plain that court’s discretion to exercise mercy on that basis should only be exercised in exceptional circumstances because imprisoning a person will usually adversely impact on that person’s family — the law recognises that if lenience is given to an offender because of family hardship that results in the guilty offender benefitting so that their innocent family will not be so adversely affected — this means that an equally guilty offender who does not have a family in need would unjustly receive a less lenient sentence — objective seriousness — seriousness of this offending — illicit drugs are a scourge on our society — detrimental to health of users and relationship of users with family and community — scourge of illicit drugs is responsible for a huge toll financially and very significant adverse impact on welfare of whole community — general deterrence — s 16A(2)(ja) — courts have repeatedly emphasised difficulty in detecting importation of illicit drugs and the great social harm they cause mean that principal emphasis in sentencing should be upon deterrence and punishment — rehabilitation — s 16A(2)(n) — offender apparently overcame substance abuse disorder since arrest and overcame problem gambling disorder by 2015 — taken together with intelligence, demonstrated capacity for high work and strong family support, sentencing judge considers good prospects of rehabilitation — continued to maintain innocence in spite of jury verdict, so not remorseful — convicted and sentenced to 10 years’ imprisonment with 6 year and 10 month non-parole period
  • 12 February 2019 —

    R v Edwards [2019] QCA 15 — child exploitation offence — manifest excess — objective seriousness — antecedents

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    leave to appeal against sentence — using a carriage service to access child pornography material offence contrary to s 474.19(1) of Commonwealth Criminal Code — original sentence imposed 15 months’ imprisonment with release on $500 recognizance after serving 2 months, on condition that subject to probation for 2 years — manifest excessobjective seriousness — sentence not manifestly excessive merely if markedly different from other sentences in other cases — necessary to demonstrate that difference is such that there must have been a misapplication of principle or that sentence is “unreasonable or plainly unjust” — no single correct sentence in any particular case — bulk of images, stories and videos fall into Category 6 of animated cartoons or drawings — central argument was that viewing or accessing Category 6 material was essentially a “victimless crime” because no real children were used in depicting them — wrong to categorise as victimless crime — capacity of child exploitation material, even that which does not depict real children, to affect community goes beyond tendency to normalise exploitative sexual activity involving children or stimulate potential participants in it — serves to fuel demand for such material, whether or not it involves real children — its impact may well be to normalise it with recipients or to encourage recipients to take a step further, moving from cartoon world or anime world to that of real world involving real children — the state of advancement in technology over last 20 years reveals inappropriateness of assuming a Category 6 image, cartoon or video is somehow distinctly different from other categories — where once such material was restricted to series of drawings which when moved sequentially and quickly produced moving images, now there is sophisticated Computer Generated Imagery technology, which produces life like images and completely realistic movements — CETS scales are non-legislated scales which are adopted because they are a useful tool, but which should not serve to alter the meaning of statutory text — material is either child exploitation material, or it is not — once it is found to be child exploitation material and an offence is committed, the court must sentence according to established sentencing principles — the scales assist but cannot overwhelm the assessment of the nature of the material as part of assessing the objective seriousness of the conduct — antecedents — s 16A(2)(m) — sentencing judge correct to consider offender’s employment as an AFP officer as an aggravating but not overwhelming factor — offender should not be treated as a “technical” AFP officer just because oath was taken when offender was protective services officer — to take that approach is to demean the oath and make community’s reliance upon sworn officers of the law dependant on individual foibles — sentence imposed not demonstrated to be manifestly excessive — leave to appeal refused
  • 31 January 2019 —

    R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 — terrorist offences — antecedents — rehabilitation — objective seriousness — general deterrence — assistance to authorities

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    sentence — conspiracy to do acts in preparation for a terrorist act or acts offence contrary to s 101.6(1) of Commonwealth Criminal Code — two co-offenders both charged with conspiracy offence following police investigation into text messages and other intercepted communications — antecedents — s 16A(2)(m) — rehabilitation — s 16A(2)(n) — Offender 1 turned to Christianity while isolated in custody — insufficient evidence to be satisfied on balance of probabilities that conversion is meaningful — not necessary that Offender 1 should convert to another religion in order to renounce the fanaticism which was inherent in the offence — Offender 1 gave evidence that they have abandoned Islam altogether because they ceased to believe in Allah’s command of violence — Offender 1 does not consider the religion as a whole can be separated from that concept — no reason to doubt Offender 1 holds these views sincerely — Offender 2 informed correctional staff they had renounced Islam altogether and reverted to Christianity — unnecessary to determine with what degree of sincerity Offender 2 has reverted to Christianity — sentencing judge satisfied Offender 2 no longer accepts command of Allah for Islamic domination by violence — Offender 2’s evidence that belief in jihadism was a childish phase from which they have matured is supported by surrounding circumstances — Offender 2 has not studied Islamic scriptures with sufficient thoroughness or understanding to have acquired from them a deeply embedded intellectual belief in duty of religious warfare — sentencing judge found Offender 2 drawn into jihadism at a superficial level — Offender 2 at 18 was highly susceptible to militant Islamic brainwashing — educational difficulties and anger during school years necessarily led to a degree of isolation compounded by their lack of involvement in the workforce since leaving school — most would balk at a doctrine of purported instruction from a deity to kill people who do not share one’s religious beliefs — Offender 2 lacked the intellectual strength to bring reason and humanity to prevail against this outrageous concept — objective seriousness — s 16A(2)(a) — gravity which Parliament regards this offence indicated by maximum penalty of life imprisonment — several aspects of offence contribute to inherent degree of seriousness — first, all terrorism offences have propensity to cause generalised insecurity in the community — secondly, where ideological cause sought to be advanced is that of Islam, crime involves an intention to intimidate Australia public and/or Commonwealth or State governments, with the objective of destabilising existing constitutional order — thirdly, any individual terrorism offence by which the ideology of Islam is sought to be advanced is a manifestation of what has become a persistent disruption of peace and security in this country — notwithstanding features which make offences of this nature in general very serious, the particular instance before the Court has elements which greatly reduce is objective gravity — the scale of an intended attack is an important consideration in determining the objective seriousness of an offence against ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code — conspiracy had no defined objective and was not developing in intensity of planning or in specification of objective — the duration of conspiracy is relevant to its objective seriousness — where a conspiracy is in existence for only two weeks, where its first objective is abandoned and a replacement is conceived in only the vaguest terms, these factors support an assessment of a relatively low order of seriousness — overall this conspiracy was at the lower end of the wide range of possible gravity of an offence of this type — Offender 1’s criminality was greater because initiative came from them and they exercised a degree of influence over Offender 2 — general deterrence — s 16A(2)(ja) — although the many individual Islamic terrorists who have been dealt with by the courts have not all acted in concert with each other, their separate offences have been unified by the perpetrators’ adherence to a single religious ideology which has the object of breaking down democratic government and replacing it with Islamic rule — this number of convicted Islamic terrorists whose offences span 15 years, all inspired by the same ideology and with the same objective, constitutes a significant phenomenon — this is to be taken into account in fixing a sentence which provides general deterrence — sentencing judge found both offenders genuine in their renunciation of fanatical beliefs reducing the need for general and specific deterrence —assistance to authorities — ss 16A(2)(h) and 16A — Offender 1 provided assistance to authorities and undertaken to cooperate in other proceedings — Offender 1’s cooperation with authorities has already made their conditions of custody more onerous than those of most prisoners and will continue until release — taking all considerations into account sentencing judge reduced by 20% sentence which would otherwise be imposed — 15% attributed to future assistance — Offender 2’s compliance with police request does not warrant specification of a particular discount but sentencing judge treated it as reinforcing expressions of contribution and confirming progress in rehabilitation — sentences imposed — Offender 1’s sentence to commence from date of arrest, the whole period on remand to count — Offender 2’s sentence should be accumulated by 1 month on sentence offender has served for refusing to answer questions in the Australian Crime Commission — Offender 1’s sentence imposed 4 years’ imprisonment with a 3 year non-parole period — per s 105A.23(1) warned that application may be made for continuing detention order — Offender 2’s sentence imposed 3 years’ imprisonment with a 2 year and 10 month non-parole period — warned that application may be made for continuing detention order
  • 21 December 2018 —

    Baladjam v The Queen [2018] NSWCCA 304 — preparation for terrorist act offences — parity — manifest excess — guilty plea — co-operation

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    appeal against sentence — one count of doing an act, namely made enquiries about and acquired quantities of firearm ammunition, in preparation for a terrorist act or acts and one count of doing an act, namely made enquiries about and acquired quantities of chemicals in preparation for a terrorist act or acts offences contrary to s 101.6(1) of Commonwealth Criminal Code, one count of possessing a thing, namely a collection of documents, including electronic documents, images, videos and audio files, connected with preparation for a terrorist act or acts, knowing of that connection and one count of possessing a thing, namely a collection of items, including two loaded hand guns, 5 litres of battery acid, 5 litres of hydrochloric acid and telephone handset under false name, connected with preparation for a terrorist act or acts, knowing of that connection offences contrary to s 101.4(1) of Commonwealth Criminal Code — original sentence imposed 18 years’ and 8 months imprisonment with a 14 year non-parole period — parity — while offender and Touma were initially charged with same offence, the acts said to constitute offences for which they were actually charged and sentenced were discrete and no suggestion they were acting in concert — acts charged not connected — Green made it clear principle can apply between co-offenders when charged with different offences, plurality did not state it applied to situation where persons are charged with similar offences arising out of different criminal acts — fact that offenders initially charged as being part of same conspiracy irrelevant when that charge not pressed and no common activities alleged — not to say consistency of sentencing in similar cases is not of importance — manifest excess — offender sought to rely on “additional” evidence in support of argument that sentencing judge underestimated harshness of conditions — evidence does not establish that sentencing judge failed to appreciate conditions of incarceration as they existed at time of sentence, but that conditions have changed — does not fall in R v Smith principle, irrelevant and should be rejected — intervention for manifest excess warranted only when difference in view is such that in all circumstances appellate court concludes misapplication of principle — assessment of gravity of offence was not based on use to which ammunition could be put — while sentence undoubtedly severe, crimes themselves were very serious — ammunition and chemicals obtained for purpose of terrorist act which, while not intended to kill people, was calculated to damage property, endanger life and cause disruption and fear in the community in pursuit of extremist beliefs — acts warrant severe punishment — guilty plea — s 16A(2)(g) — co-operation — s 16A(2)(h) — sentencing judge justified in only allowing combined discount of 15% for both guilty plea and assistance to authorities — discount reflects plea made extremely late and assistance extremely limited — leave granted to appeal out of time — appeal dismissed  

Recent Updates to Commentary View All

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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