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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 9 July 2021 —

    DPP (Cth) v Halbisch [2021] NSWDC 306 — child exploitation offences — sentence — nature and circumstances — victim of offence

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    The offender was sentenced following a plea of guilty to 1 count of using a carriage service to transmit communications to the recipient, a person under the age of 16, with the intention of procuring the recipient to engage in sexual activity with them contrary to s 474.26(1) of the Commonwealth Criminal Code. Additional offence taken into account pursuant to s 16BA.  

    Nature and Circumstances: The victim was 7 years of age at the time of offending. Nothing indicates that the offender was aware of the precise age of the child. However, victim sent photographs of her bed and trampoline. It must have been apparent to the offender that he was communicating with a young child. The age difference between offender and victim is almost 20 years. The communications relevant to the offence occurred over a period of about 20 minutes but included persistent requests by the offender including instructions as to what to do. The requests were sexually explicit. Procuring matter is at mid-range of seriousness but in the lower half of the mid-range.  

    Victim of Offence: Commonwealth relied on victim’s mother’s statement because of young age of victim. Although victim was able to give own statement, it is relevant where the victim is so young to have a parent or guardian also indicate the harm that is caused by the offending. Clearly offending has had long lasting, significant and very adverse effect on the victim. Victim has Autism Spectrum Disorder, but the offender was not aware of that. Victim is hyper vigilant since offending. Noting absence of any medical or mental health professional’s report, there is little further to be made of contents of victim impact statements.  

    Offender sentenced to 3 years and 9 months imprisonment with a 2 year and 3-month non-parole period.
  • 25 June 2021 —

    R v Payne-Moore [2021] ACTSC 125 — child exploitation offences — sentence — nature and circumstances — extra-curial punishment

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service to possess or control child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: The content of the child abuse material possessed is graphic, violent and reflects a very high level of depravity and depicts real child victims. There are an estimated 75 to 100 victims depicted in the material. Neither the possession or access offences were for the purpose of sale, further distribution or profit. Offender possessed material over three and a half months.  

    Extra-Curial Punishment: It follows from the requirement that such offences attract significant community denunciation and general deterrence that the ordinary opprobrium flowing from detection, charging and conviction cannot warrant mitigation. A reasonable degree of community disgust and denunciation accords with the Court’s primary sentencing purposes and it would be erroneous to offset natural consequence by diminishing the sentence. Retributive assault is the paradigm example of extra-curial punishment. Offender was assaulted by an unknown woman throwing hot wax over the offender in a public bar.  

    Offender sentenced to 15 months imprisonment to be released on recognisance after 4 months imprisonment.
  • 24 June 2021 —

    R v Amson [2021] NSWDC 280 — child exploitation offences — sentence  — nature and circumstances  — contrition  — antecedents  — rehabilitation

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    The offender was sentenced following a plea of guilty to using a carriage service to groom a person they believed to be under 16 years of age contrary to s 474.27(1) of the Commonwealth Criminal Code.  

    Nature and Circumstances: Offence may be less objectively serious when the communication is to a fictitious person than a child. Contact was initiated by the police and not offender’s actively messaging, communicating or attempting to befriend persons. The circumstances where the undercover police operative initiated contact, in some not all instances or engaged in manifestly flirtatious conduct, effectively bringing out offender’s latest sexual interest in children, does not materially reduce the seriousness of the offending. Although efforts were made by offender to conceal offending, they were not particularly sophisticated, the nature of future sexual activity was rather oblique and there was no applicable previous relationship of trust between offender and believed victim.  

    Contrition: Offender said that they accepted full responsibility on at least three occasions, but other times adhered to an account given to third persons to the effect that although offender recognised offending was serious, it was explicable to not thinking of the consequences. Offender could not explain multiple indications within communications where they asked victim to delete records of conversations. Offender said that although they may have indicated desire to meet, they had no real intention to meet. This significantly diminished credibility as a witness. Remorse is only limited.  

    Antecedents: Offender has lengthy criminal history, including that of sexual offending and exploitation of children. Record of offences is stretched out during their adult years. It is the record of a person with close familiarity with criminal justice system which may help explain nature of some of the evidence and view expressed by psychologist of a tendency to say things which they think an interlocutor might want to hear. Prior offending indicates that instant offending was not uncharacteristic aberration but rather betokened a continued attitude of disobedience of the law.  

    Rehabilitation: Corrections identified offender’s risk of offending to be high. The officer had formed a provisional view of offender’s likelihood of re-offending, read the psychologist’s view and thereafter upgraded assessment of risk of re-offending. Corrections officer would have given weight to specialised knowledge of psychologist. The weight to be accorded to revised view is not materially diminished simply because officer did not expressly specify how content of psychologist’s report influenced her.  

    Offender sentenced to 3 years and 2 months imprisonment with a 2-year, 2 month and 19 day non-parole period.
  • 23 June 2021 —

    Olivares v The Queen [2021] NSWCCA 126 — drug importation offences — appeal against sentence — guilty plea — Xiao error — cooperation

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    The offender was sentenced following pleas of guilty to 1 count of trafficking in a substance, the substance being a controlled drug namely methamphetamine and the quantity trafficked being a commercial quantity contrary to s 302.2(1) of the Commonwealth Criminal Code, and 1 count of dealing with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime, the value being less than $100,000, contrary to s 400.9(1A) of the Commonwealth Criminal Code. The original sentence imposed 15 years imprisonment with a 9 year and 6 month non-parole period. The offender appealed on the basis that the sentencing judge failed to give a discount for the utilitarian value of the offender’s plea of guilty.  

    Guilty Plea and Cooperation: Offender is entitled to a discount on sentence having regard to utilitarian value of guilty plea. Plea was not early and only a 10% discount is allowed. Offender provided assistance to authorities and is entitled to a further discount of 5%. Offender provided considerable cooperation to police immediately prior to, during and after arrest. Offender informed police that there were packages in the bathroom ceiling so that police may uncover them. Offender provided extensive information as to circumstances of involvement and process and mechanics by which they were supposed to be passing on the drugs.  

    Appeal allowed. Sentence quashed. Offender sentenced to 11 years and 6 months imprisonment with a 6 year and 11 month non-parole period.
  • 18 June 2021 —

    Chenhall v The Queen [2021] VSCA 175 — child exploitation offences — appeal against sentence — guilty plea — manifest excess

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    The offender was sentenced following pleas of guilty to 1 count of transmitting indecent communications to a person under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to cause child pornography material to be transmitted to themselves contrary to s 474.19(1) of the Commonwealth Criminal Code and 1 count of using carriage service to transmit child pornography contrary to s 474.19(1). Offender sentenced for additional State offences. Original sentence imposed 5 years and 6 months imprisonment with a 4 year non-parole period. The offender appealed on the grounds that the sentencing judge erred in finding there was no greater utilitarian value in guilty plea due to COVID-19, and that the sentence was manifestly excessive.  

    Guilty Plea: Sentencing judge was specifically asked to attribute greater weight to plea of guilty due to COVID-19 and declined to do so. Judge erred in so declining. Plea, entered during the pandemic, did its bit to ease the trial backlog, and the offender, who was on bail submitted themselves to more onerous conditions than would otherwise have been the case. Had a greater utilitarian benefit been allowed, it would have provided some incentive to others in a similar position to offender to plead guilty with the concomitant benefit to a justice system under great pressure.  

    Leave to appeal granted. Appeal allowed. Offender sentenced to 5 years imprisonment with a 3 year and 6 month non-parole period.

Recent Updates to Commentary View All

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.
  • 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)

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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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