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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 5 May 2022 —

    Tartaglia v The Queen [2022] SASCA 41 — drug importation offence — appeal against sentence — manifest excess

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    The offender was sentenced following a conviction of 1 count of importing a commercial quantity of a border controlled drug contrary to ss 307.1(1) and 11.2A(1) of the Commonwealth Criminal Code. Original sentence imposed 12 years and 2 months imprisonment with a non-parole period of 8 years and 8 months. Offender appealed on the ground that the sentence was manifestly excessive.

    Manifest Excess: Trial judge adopted the same notional starting points for the offender and their co-offender. It was not necessary for the trial judge to make any findings as to whether the offender committed an act of participation in the commission of as regardless, they were equally liable for the conduct committed by the co-offender. Trial judge was also correct in finding there was little to distinguish the offender and co-offender’s circumstances. Both had significant criminal antecedents and had previously served sentences of imprisonment yet were not deterred from reoffending. There was a sound basis for the trial judge adopting the same notional head sentence and non-parole period for both offenders. Offending involved a vast amount of methamphetamine concealed in the consignment with a street value between $4 and $7 million. Offending was sophisticated and an intricately planned operation. Amount and value of importation meant general deterrence needed to feature strongly in the sentence. There was limited scope for leniency and a clear need for personal deterrence given the offender’s significant antecedents and limited prospects of rehabilitation as they reoffended shortly after being released on parole. Whilst it might be said to be a heavy sentence, it was not manifestly excessive.

    Leave to appeal allowed. Appeal dismissed.
  • 24 April 2022 —

    R v McCall [2022] NSWDC 78 — carriage service offences — sentence — nature and circumstances — antecedents — mental condition — guilty plea

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    The offender was sentenced following pleas of guilty to 1 count of using a carriage service in preparation for procuring or planning to procure a person under 16 years of age to engage in sexual activity contrary to s 474.25C of the Commonwealth Criminal Code, 2 counts of using a carriage service to transmit a communication to another person under 16 with intent of making it easier to procure that person to engage in sexual activity and being a person with a prior conviction for a child sexual abuse offence contrary to s 474.27(1) Commonwealth Criminal Code and 1 count of transmitting, making available, publishing, distributing, advertising or promoting material using a carriage service where the material is child abuse material and the person has prior convictions regarding child sexual abuse offences contrary to s 474.22(1) of the Commonwealth Criminal Code. Offender was sentenced for additional state offences.

    Nature and Circumstances: The harm done to child victims of carriage service or cybersex offences can be no less serious than in-person offences. Communications in s 475.25C offence took place over 2 and a half months. Offender targeted each child because of their age. Each communication was relatively brief, but offender did persist with some contacts in trying to re-establish communication. Many features which make such offences very serious were absent. Each of the s 474.27(1) offences were more seriousness. Not only was a pretence used to gain the child’s trust, but offender soon turned the chats to explicit sexual topics. Each chat was extensive, extending over two hours, with the sole purpose of the offender’s sexual gratification. Material in s 474.22(1) offence set out significant sexual activity involving a very young, if imagined, child and their family. Offender’s purpose seemed to be for their and their online friend’s own prurient benefit, but the communications transmitted displayed no planning, organisation or sophistication. Though others might not be likely to view it, there remained obvious potential for its recipient to disseminate it.

    Antecedents: Offender’s record demonstrates that the offending is not an uncharacteristic aberration and continuing disobedience towards the law. Offender was sentenced for child sexual abuse offences in 2011 and breaches of child protection orders and possession of child pornography in 2019.

    Mental Condition: Even as a child, offender had long-standing behavioural issues. Forensic psychologist diagnosed offender with Asperger’s Syndrome and noted offending occurred in the context of the offender’s long-term history of Autism Spectrum Disorder (ASD), Attention Deficit and Hyperactivity Disorder (ADHD), poor mental health and low self-esteem. It is accepted the offender’s mental condition has impacted them throughout their life. While it is not suggested the offender’s underlying conditions were directly causative, they have and continue to have an impact on them, including that prison will weigh more heavily and that their rehabilitation will be problematic. There is need for some understanding, as while the offender clearly knew what they were doing was wrong, they had little capacity to make rational and moral decisions. While offender’s moral culpability can be reduced, their repeated offending and lifelong diagnosis mean greater weight must be placed on community protection.

    Guilty Plea: A reduction of 25% should be granted for the utilitarian value of the offender’s pleas of guilty. However, where minimum sentences must be fixed the reduction is subject to ss 16AAC(2) and (3) of the Crimes Act (Cth). In relation to use of carriage service to transmit communication offences, s 16AAC(2) and (3) puts a limit on the percentage reduction of 25% which would otherwise have been allowed. The permitted reduction is tied to the minimum sentence, which in this case is of four years, a reduction of 20%.

    Offender sentenced to 5 years and 9 months imprisonment with a non-parole period of 3 years and 3 months.
  • 20 April 2022 —

    DPP (Cth) v El Masri [2022] VCC 549 — tobacco importation offence — sentence — nature and circumstances — family and dependants — delay — rehabilitation

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    The offender was sentenced following a plea of guilty to 1 count of importing tobacco products with the intention of defrauding the revenue contrary to s 233BABAD(1) of the Customs Act 1901 (Cth).

    Nature and Circumstances: While offending was not highly sophisticated and offender was not a principal in the importation, in the sense of being an organising mind or the person to receive profits directly from the sale of the cigarettes, offender had a managerial role in relation to the container once it arrived in Australia. Amount of duty evaded, $8,648,983.64, and number of cigarettes imported, $10,714,000, was extremely large. Offending is a large-scale example of this sort of offending. Offending involved planning, premeditation, organisation and the deployment of resources.

    Family and Dependants: Hardship to offender’s family was taken into account as mitigating factors. Offender has 2 children with serious medical conditions, offender’s wife will be left caring for 6 children, offender has responsibility to look after their mother and there will be significant financial hardship relating to a $200,000 mortgage still owing on the family home. Offender personally runs and maintains three businesses and has an essential role in the material, logistical and emotional support of their immediate and extended family.

    Delay: Delay of 3 years since being arrested and charged has caused the offender stress and anxiety, particularly knowing a period of imprisonment was looming, that they would be leaving their wife and children in an invidious financial position and concerned about the health of their children and mother.

    Rehabilitation: Offender has good prospects for rehabilitation. Offender has responsibilities to their children and has every reason to avoid further offending. Offender has taken responsibility for offending through their guilty plea and has no history of prior convictions. General deterrence is a paramount factor but in this case the discount for offender’s guilty plea must be significant as it avoided a complicated trial. Offender’s first sentence of imprisonment will weigh extremely heavily on them in their circumstances.

    Offender sentenced to 3 years imprisonment to be released after 18 months upon entering a recognisance release order of $2,000 for a period of 18 months.
  • 12 April 2022 —

    Jung v The Queen [2022] VSCA 68 — proceeds of crime offence — appeal against sentence — nature and circumstances

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    The offender was sentenced following a plea of guilty to 1 count of dealing with money or property reasonably suspected of being proceeds of crime contrary to s 400.9(1) of the Commonwealth Criminal Code. Additional federal offence was taken into account pursuant to s 16BA. Original sentence imposed 21 months imprisonment, to be released after 9 months on recognisance and a good behaviour bond. Offender appealed on grounds that the sentencing judge erred in assessing the objective seriousness of offending, in synthesising the impact offending may have had on the offender’s wife and that the sentence was manifestly excessive.  

    Nature and Circumstances: Sentencing judge assessed offending ‘as being in the mid-range’. Sentencing judge used the offender’s failure to provide an explanation for their offending to elevate offending from the lower end of the spectrum of seriousness to the mid-range of seriousness. Sentencing judge was not entitled to drawn an inference as to the seriousness of offending based on the offender’s silence on the issue.  

    Leave to appeal granted. Appeal allowed. Offender resentenced to 10 months imprisonment, to be released on a recognizance release order after 4 months.
  • 11 April 2022 —

    Totaan v The Queen [2022] NSWCCA 75 — dishonesty offences — appeal against sentence — family and dependants — hardship — s 16A(2)(p)

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    The offender was sentenced following a plea of guilty to 2 counts of obtaining a financial advantage by deception from the Commonwealth contrary to s 134.2(1) of the Commonwealth Criminal Code. Additional dishonesty offence was taken into account pursuant to s 16BA. Original sentence imposed 4 years imprisonment with a non-parole period of 2 years and a reparation order in the sum of $112,999.96. Offender appealed sentence of imprisonment on the ground that the sentencing judge had erred in not taking into account hardship to the offender’s dependents because they did not consider exceptional hardship to be established.

    Family and Dependants: Decisions holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependent where the circumstances of hardship satisfy the epithet ‘exceptional’ are ‘plainly wrong’ and should not be followed. There is no textual support for the requirement that exceptional circumstances be shown before hardship to family members or dependants may be taken into account, or given any specified weight, either in the language and structure of s 16A itself or in the Crimes Act 1914 (Cth) more generally. It would be most odd if the legislature, in enacting s 16A(2)(p) in the plain language in which that provision appears, intended that it be read and understood, by reason of a pre-existing common law position, in a way that was different from and more limited than that suggested by the words in fact used. The ‘requirement’ to demonstrate ‘exceptional hardship’, as grafted on to s 16A(2)(p), runs contrary to the language of the subsection, which provides that the probable effect of the sentence on family members and dependents ‘must’ be taken into account. The gloss that has been placed on the interpretation of s 16A(2)(p) should be removed. Section 16A(2)(p) should be applied according to its terms.

    Leave to appeal granted. Appeal allowed. For Count 1, offender resentenced to 1 and a half years imprisonment commencing on 12 March 2021. For Count 3, taking into account the s 16BA offence, offender resentenced to 2 and a half years imprisonment commencing on 12 September 2021. Offender to be released immediately on recognizance to be of good behaviour for 1 year and 11 months and upon posting security in the sum of $10.

Recent Updates to Commentary View All

  • February 2022 —

    Rehabilitation

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

    Release on Parole or Licence

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    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.
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    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.
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    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 —

    Character

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    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

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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.
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    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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