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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 24 December 2019 —

    Merhi v The Queen [2019] NSWCCA 322 — bribery of public official, importation of tobacco and proceeds of crime offences — nature and circumstances of the offence — character — guilty plea — hardship to the offender — specific deterrence — general deterrence

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    appeal against sentence — bribery of a public official offence contrary to s 141.1(1) of Commonwealth Criminal Code, aid and abet the importation of tobacco products knowing of an intent to defraud the revenue offence contrary to s 11.2(1) of Commonwealth Criminal Code and s 233BABAD(1) of Customs Act 1901 (Cth), dealing in proceeds of a crime greater than $100,000 offence contrary to s 400.4(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ and 6 months imprisonment with a 3 year and 3 month non-parole period — nature and circumstance of the offence — s 16A(2)(a) — no principle or precedent which limits finding of breach of trust to offences which happen during period when offender is employed in position of trust or authority — clear offender used information and knowledge gained whilst employed at Australian Border Force as part of process in working with co-offender as well as associates of syndicate to ensure illegal importation went undetected — important that not only current employees but also former employees can be trusted with information gained through their employment — bearing in mind ongoing obligations of confidentiality ordinarily imposed upon persons in position of authority and trust even after employment ceases, it might be surprising if misuse of such confidential information for criminal purposes after cessation of employment did not involve abuse of trust such as to constitute an aggravating factor — character — s 16A(2)(m) — sentencing judge took into account general deterrence as significant factor and had regard to offender’s breach of trust as aggravating factor — in then reducing significance of prior good character based on the same factor, sentencing judge may have erred in considering that a mitigating factor, which would otherwise be available under s 16A(2)(m) should be given little weight — in some circumstances good character should be given less weight, particularly if offender used good character to gain position of trust so as to enable offence to be committed — different situation arises where offender has not obtained position of trust with specific purpose of committing offence and demonstrated prior good character over long period of time whilst so employed — to not have regard to offender’s prior good character may be viewed as form of double-counting — re-sentence — guilty plea — s 16A(2)(g) — offender entitled to 25% discount for utilitarian value of plea of guilty — hardship to the offender — likelihood that experience in prison will be more onerous because of their former employment — specific deterrence general deterrence — specific deterrence of less significance in the context of offending than general deterrence — sentence imposed 4 years’ and 6 months imprisonment with a 2 year and 6 month non-parole period
  • 23 December 2019 —

    Heng v The Queen [2019] NSWCCA 317 — drug importation offence — manifest excess — guilty plea

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of Commonwealth Criminal Code — offence relates to 73.8kg of pure methylamphetamine — additional aiding and abetting the manufacture of a commercial quantity of a border controlled drug offence contrary to ss 11.2(1) and 305.3(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — original sentence imposed 23 years’ and 9 months imprisonment with a 15 year and 9 month non-parole period — manifest excess guilty plea— s 16A(2)(g) — sentencing judge not obliged to state quantum of guilty plea discount and absence of judge doing so did not constitute error — offender submitted fact offence committed whilst on conditional liberty relating to earlier drug offence should have had less impact on setting of sentence than might otherwise be the case because result of further offending was that offender served a year of earlier sentence in custody when they would otherwise have been on parole — this does not mean commission of subject offence whilst on parole not aggravating feature — matters that supported substantial sentence imposed included significant weight of drug and considerably significant wholesale and street value, offender’s knowledge of large quantity of drugs involved, directing of and crucial role in criminal enterprise, profit motive, involvement in significant planning and organisation of enterprise and offender’s subjective circumstances did not provide significant assistance to offender — neither review of sentence imposed in other cases nor any other matter indicates manifest excess — application of extension of time granted — leave to appeal against sentence granted — appeal against sentence dismissed
  • 17 December 2019 —

    R v Khayat; R v Khayat (No 14) [2019] NSWSC 1817 — conspiracy preparatory terrorism offence — nature and circumstances of the offence — objective seriousness — injury, loss or damage — co-operation — antecedents — deportation — taking into account other offences — rehabilitation

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    sentence — conspiring with each other and others to do acts in preparation for, or planning, a terrorist act (or acts) offence contrary to s 11.5(1) and 101.6(1) of Commonwealth Criminal Code — relevant terrorist acts involved the use of improvised explosive device and/or improvised chemical dispersal device — nature and circumstances of the offence — s 16A(2)(a) — although Co-offender 1 communicated with conspirators overseas about the subject matters of the conspiracy and received instructions from them as to various acts, Co-offender 2 also played important role as English language skills and technological ability were superior to Co-offender 1’s, making Co-offender 2 able to perform important tasks — Co-offender 1 more culpable than Co-offender 2 because involvement, measured by time spent, amount of communication with overseas conspirators and nature and extent of tasks performed was greater — objective seriousness — that no one suffered physical injury or killed as a result of this conspiracy does not make it anything other than extremely serious — the conspiracy plainly envisaged that a large number of people would be killed — scale of intended impact adds significantly to gravity of offence — both offenders played a highly significant role in Australia, taking delivery of the bomb and doing what was asked of them — although offenders did not initiate conspiracy, they carried out instructions to advance its purposes in Australia — objective seriousness of offence very high for each offender — co-operation — s 16A(2)(h) — Co-offender 1’s volunteered details in police interviews were “valuable” — while co-operation motivated by hope they would be treated more leniently as consequence, offender’s self-interested motive does not undermine utility of co-operation — Co-offender 2’s police interview answers were strategic and it became apparent they were dissembling to try to save themselves — no co-operation taken into account in Co-offender 2’s favour apart from co-operation in conduct of the trials — efficient conduct by offenders’ legal representation and substantial admissions enabled Crown to put its case in clear and efficient manner — both offenders entitled to have co-operation during the trial taken into account in their favour — antecedents — s 16A(2)(m) — Co-offender 1’s age of 52 and ill-health are matters to be taken into account since they might die in gaol and if they survive, will have a shorter time after their release  — deportation — both offenders have been convicted and sentenced for life by a military court in Lebanon for this offence — sentencing judge bound by decisions of the Court of Criminal Appeal to the effect that, at least in cases such as the present, the prospect of deportation is irrelevant to the sentencing discretion including for Commonwealth offences — even if it were relevant, not clear what difference it would make to the sentence — taking into account other offences — s 16A(2)(b) — sentencing judge did not accept submission that provisions in Crimes Act which require sentencing judges to take into account other sentences apply to sentences imposed by foreign courts in absentia, particularly where prospect that offender will be deported to jurisdiction where foreign sentence imposed depends on executive act in local jurisdiction — rehabilitation — s 16A(2)(n) — Co-offender 1 will probably be loath to jeopardise benefits of family life and liberty in Australia by entering into conspiracy upon his eventual release — Co-offender 2 has come to know of dire consequences of becoming involved in terrorist crime — each offender has some prospects of rehabilitation — sentence — sentence imposed 40 years’ imprisonment with a 30 year non-parole period for Co-offender 1 and imposed 36 years’ imprisonment with a 27 year non-parole period for Co-offender 2
  • 12 December 2019 —

    ZZ v The Queen [2019] NSWCCA 286 — drug importation — co-operation

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    appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offending relates to 824.4g of pure cocaine — original sentence imposed 5 years’ imprisonment with a 3 year and 2 month non-parole period — co-operation — s 16A(2)(h) — sentencing judge did not accept offender provided ‘any useful information’ to authorities, no further reduction to sentence for assistance was given —  it is accepted that offender was not entirely forthcoming with arresting officers as to details of recruitment process and matters relevant to the recruiter — however, no dispute offender provided considerably more detail in interview with German police and prosecuting officials — at time of sentencing, no basis upon which the information could have been assessed as no assessment had been made by German authorities, it was not even known if details offender gave about recruiter were true — they are now known to be true — offender has been shown to be entitled to a reduction of sentence on account of their co-operation with law enforcement authorities in their interview, even in circumstances where value of co-operation was not appreciated until after offender sentenced — re-sentence — appeal judge satisfied in context of statutory guidepost of 25 years imprisonment as maximum penalty for offence, sentence of 6 years’ and 8 months as starting point (same as sentencing judge) is an appropriate sentence — sentence reduced by 35% on account of offender’s guilty plea, remorse, and co-operation with law enforcement agencies — original sentence quashed — offender resentenced 4 years’ and 4 months imprisonment with a 2 year and 9 month non-parole period
  • 29 November 2019 —

    The Queen v Abbas, Chaarani & Mohamed [2019] VSC 775 — conspiracy preparatory terrorism offence — nature and circumstances of the offence — parity — guilty plea — rehabilitation — contrition — totality

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    sentence — conspiring to do acts in preparation for or planning a terrorist act offence contrary to ss 11.5(1) and 101.6(1) of Commonwealth Criminal Code — 3 co-offenders — nature and circumstances of the offence — s 16A(2)(a) — Co-offender 1 joined conspiracy comparatively late — during 3 weeks of involvement, not as active as Co-offenders 2 or 3, but still involved in 3 significant events of the testing of an IED, accompanying co-offenders for purchasing of hydrogen peroxide which could be used to make TATP and accompanying co-offenders for reconnaissance of possible location for imminent terrorist attack — Co-offenders 2 and 3 active players in conspiracy over entire 2 month period — upper range example of objective seriousness for several reasons — preparatory acts were done in contemplation of mass slaughter to occur in heart of Melbourne at time of particular significance to many Australians, Christmastime — Co-offender 1 will receive lesser sentence than co-conspirators because of lesser role in conspiracy, only actively involved for a couple of days of the last 3 weeks of the conspiracy and contribution to preparations and planning for a terrorist act was of limited significance, but not insignificant or fleeting — given nature of this conspiracy, Co-offender 1’s offending also an upper range example of the offence — parity guilty plea — s 16A(2)(g) — rehabilitation — s 16A(2)(n) — 4th member of conspiracy sentenced separately pleaded guilty and was sentenced to 24 years’ imprisonment with a 20 year non-parole period — Co-offender 1 does not get benefit of significant discount for having pleaded guilty at the earliest reasonable opportunity but Co-offenders 2 and 3 do get benefit of having given evidence at plea hearing publicly renouncing IS and violent jihad and benefit of having finally admitted guilt during testimony — these two developments support a finding in Co-offender 2 and 3’s favour, on the balance of probabilities, that both are genuinely on the path of de-radicalisation — this finding does not entitle offenders to same discount they would have received if they had pleaded guilty at earliest reasonable opportunity — Co-offender 1 has reasonable prospects of rehabilitation — contrition — s 16A(2)(f)(ii) — Co-offenders 2 and 3 have shown contrition and made some reparation for offence by giving evidence and publicly renouncing IS and violent jihad — totality — Co-offenders 2 and 3 currently undergoing sentence for others offences of attempting to engage in a terrorist act and engaging in a terrorist act, with both co-offenders sentenced to 22 years’ imprisonment with a 17 year non-parole period — sentencing judge accepted there should be substantial concurrency having regard to principle of totality and avoiding ‘crushing sentences’, but there must necessarily be cumulation too — current offence much more serious than earlier terrorist offences — sentence — 22 years’ imprisonment imposed on Co-offender 1, with a 16 year and 6 month non-parole period — 26 years’ imprisonment imposed on Co-offenders 2 and 3, with 16 years of those 26 years to be cumulative on existing sentence (total effective sentence of 38 years) with a 28 year and 6 month non-parole period

Recent Updates to Commentary View All

  • November 2019 —

    General Sentencing Principles

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    up to date commentary on general sentencing principles contained in Division 2 of Part IB of the Crimes Act 1914 (Cth) and at common law
  • October 2019 —

    Hospital Orders

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    up to date commentary on where a hospital order may be made, what a hospital order must specify and the discharge of hospital orders
  • September 2019 —

    Co-operation

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    updated to include commentary on nature and extent of assistance attracting a discount, including DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
  • August 2019 —

    Deterrence

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    updated to include commentary on new federal sentencing cases relating to the interaction between general and specific deterrence and offenders with certain mental conditions, and the role of general deterrence in sentencing terrorism, white collar crime, and protected classes of victims offences
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    new page created on sentencing considerations for terrorism offences, including commentary on the purposes of sentencing for terrorism offences, how the types and elements of terrorism offences are relevant to the court’s assessment of objective seriousness of the offence and moral culpability of the offender, and how terrorism offences relate to other considerations such as mitigating factors and imposing sentences

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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