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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 9 July 2020 —

    Nweke v The Queen [2020] NSWCCA 153 — drug importation offence — non-parole period — nature and circumstances of the offence — contrition — co-operation — character — specific deterrence — rehabilitation

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    appeal against sentence — conspiracy with persons unknown to import a commercial quantity of a border controlled drug offence contrary to s 11.5(1) and s 307.1(1) of the Commonwealth Criminal Code — offence relates to 2.514 kilos of pure cocaine — original sentence imposed 13 years’ and 9 months imprisonment with a 10 year and 6 month non-parole period — non-parole period — s 19AQ(1) — sentence partially accumulated on balance of earlier sentence imposed for previous drug importation offence — offender sentenced in 2007 for aiding and abetting importation of trafficable quantity of border controlled drug — sentence imposed 10 years’ imprisonment with a 6 year and 6 month non-parole period — present offence committed whilst offender on parole for earlier offence — by force of s 19AQ(1) parole order in respect of that sentence was taken to have been revoked upon imposition of sentence for the present matter — unserved part of earlier sentence was 3 years’ and 6 months — sentencing judge construed s 19AQ(5) to mean that offender was liable to serve whole of that term — if offender’s submission, that s 19AQ(5) has no operation where sentencing for further offence occurs after expiry of earlier parole period because that subsection does not refer to s 19AQ(2), is correct, the result would be inconsistent with that s 19APB provides — s 19APB expressly picks up circumstances in the present case where offender is not sentenced until after earlier parole period has expired — result is that s 19APB(1) applies, and offender is taken to be still under sentence and not to have served that part of the sentence that remained to be served at the beginning of the parole period — s 19AQ(5) is subject to the operation of s 19AA(2) — s 19AA qualifies the prima facie harshness of s 19AQ(5) by enabling offender to receive a credit in respect of period spent on parole up to date of commission of further offence — sentencing judge did not consider that s 19AQ(5) was subject to s 19AA(2) and in that way failed to give credit for “clean street time” — proper approach is that offenders against criminal law of Commonwealth are entitled to credit for “clean street time” whilst on parole — offender’s “clean street time” was 2 years’, 5 months and 27 days — period offender was required to serve by reason of the breach of that parole was 12 months and 2 days, not the whole of the parole period earlier imposed of 3 years’ and 6 months — re-sentence — belief of learned sentencing judge that offender “owed” 3 years’ and 6 months of balance of parole, when in fact there were only 12 months remaining to be served, necessarily calls for substantive re-consideration of head sentence imposed for this conspiracy — not only because new head sentence was partly cumulative on balance of parole, but also because sentencing judge, in accordance with Commonwealth sentencing regime, imposed a new, single non-parole period that encompassed both bases of incarceration — nature and circumstances of the offence — s 16A(2)(a) — role of offender was undoubtedly significant — failed conspiracy was founded upon heartless manipulation of an innocent agent — contrition — s 16A(2)(f)(ii) — expressions of remorse placed before sentencing judge — in light of plea of not guilty and failure of offender to enter witness box in proceedings on sentence, sentencing judge did not give those expressions great weight — efficiency — in light of highly efficient way in which trial focused on single issue, discount of 5% applied — character — s 16A(2)(m) — important evidence on sentence of criminal record of offender along with intertwined history of incarceration in prisons and detention in immigration detention centres — except for period of some months in 2012 and early 2013, offender has not been at liberty for period of more than 15 years — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — weighing against the quantity of cocaine not far beyond the statutory “cut-off point” relating to commercial quantity of substance was brazenness of committing offence of this gravity inside detention centre, fact offender was not only on parole but also for same kind of offence, patently high moral culpability of offender, obviously important role to be played by specific deterrence and necessarily guarded finding about prospect of rehabilitation — sentence — imposed 13 years’ and 3 months imprisonment with a 8 year and 6 month non-parole period
  • 8 July 2020 —

    Kabir v The Queen [2020] NSWCCA 139 — tax offences — victim impact statements — offender’s family and dependants — character — contrition

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    appeal against sentence — dealing with proceeds of crime in respect of money or property the value of which was $50,000 or more offence contrary to s 400.5(1) of the Commonwealth Criminal Code, obtaining financial advantage by deception from a Commonwealth entity offence contrary to s 134.2(1) of the Commonwealth Criminal Code — additional dishonestly causing a risk of loss to a Commonwealth entity offence contrary to s 135.1(5) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — offences relate to $51,692.97, $22,475.18 and $16,814.73 respectively — original sentence imposed 5 years’ imprisonment with a 3 year non-parole period — victim impact statements — s 16A(2)(ea) — open to sentencing judge to have been satisfied giver of impact statement was properly to be regarded as a victim for the purposes of s 16AAA of the Crimes Act — as such, s 16A(2) required sentencing judge to take their victim impact statement into account — by victim’s own account, they have suffered harm and relates that harm to the offence committed by offender for commission of which it is apparent victim was recruited and manipulated — sentencing judge’s implicit conclusion that giver of statement was a victim or that their statement was a victim impact statement are entirely uncontroversial — offender’s family and dependants — s 16A(2)(p) — sentencing judge’s remarks make it clear they did take account of hardship to offender’s family — offender did not contend that sentencing judge failed to give it sufficient weight or emphasis — unsurprising having regard to the fact that, absent a demonstrable House v The King error, sentencing judge’s discretionary consideration of matters arguably amounting to hardship is unassailable — character — s 16A(2)(m) — apparent from any fair reading of sentencing judge’s remarks that they were singularly unimpressed with character evidence upon which offender relied — clearly of the view that statements of praise from relatives and colleagues and accompanying expressions of disbelief that offending even occurred at all were effectively in tension with fact and extent of offending — that is so particularly having regard to considerable degree of detailed planning involved carried out at several layers of detail over a relatively extended period — loss of opportunity to make better submission not to be confused with loss of opportunity to make any submission — offender not denied procedural fairness, sentencing judge entitled to proceed as they did — contrition — s 16A(2)(f)(ii) — sentencing judge unambiguously indicated that they were not prepared to act upon second-hand expressions of remorse, particularly in circumstances where offender did not themselves choose to give evidence about it — offender cannot demonstrate sentencing judge’s finding that offender was not remorseful was erroneous — appeal dismissed
  • 19 June 2020 —

    Burton v The Queen [2020] NSWCCA 127 — child exploitation offences — nature and circumstances of the offence — manifest excess

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    appeal against sentence — use carriage service to transmit child pornography material offence contrary to s 474.19(1) of the Commonwealth Criminal Code — additional State offence — additional use carriage service to transmit indecent material to persons under the age of 16 years offence contrary to s 474.27A(1) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — original sentence imposed 21 months imprisonment with a 12 month non-parole period — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge well aware no child victims of offence of Count 1 but nevertheless concluded it was a mid-range offence — in doing so appears sentencing judge clearly considered other matters informing that question were sufficient to support their conclusion — sentencing judge patently concerned with highly inappropriate and sexualised content of written material produced by offender — must be remembered that offence is committed by transmission of material that qualifies as child exploitation material — seriousness of offence of transmission is necessarily informed by nature and content of material itself — that is something sentencing judge clearly directed their attention — offender used explicit language to describe sexual acts between themselves and children — sentencing judge must be taken, in accordance with authority, to have understood importance of attaching possibility of dissemination of this written material to vulnerable recipients or those susceptible to acts in the ways the offender described — not satisfied sentencing judge’s assessment of objective seriousness of Count 1 has been shown to be erroneous — manifest excess — do not accept sentencing judge’s sentences were manifestly excessive — characterisation of Count 1 as offence falling within mid-range of objective seriousness is in tension with sentence actually imposed for that count but in a way actually favoured offender — sentencing judge obviously took account of offender’s strong subjective case and of opinions from medical specialists dealing with their psychiatric condition and their commendable attempts to overcome it — sentences imposed by sentencing judge were not erroneously severe — appeal dismissed
  • 9 June 2020 —

    R v Faber [2020] SASCFC 49 — drug importation — manifest inadequacy — nature and circumstances of the offence — character — rehabilitation — specific deterrence — general deterrence — double jeopardy

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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, trafficking a controlled drug offence contrary to s 302.4(1) of the Commonwealth Criminal Code — offending relates to 390.8g of pure MDMA and 44.8g of pure ketamine respectively — original sentence imposed 4 years’, 2 months and 13 days with a 16 month non-parole period — manifest inadequacy — sentence imposed for importation offence is at lower end of available range — when compared with cases in the schedule, I am of the view that the head sentence of 3 years’ and 9 months for importation offence is not so low as to be manifestly inadequate — it is when non-parole period of 16 months is considered against total head sentence comprising of concurrent sentences for importation offence and possession offence that question of whether sentence falls outside range of sentences available to the sentencing judge arises, 30% of resulting head sentence — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge found that offender engaged in minor way in the sale of illicit drugs prior to committing the importation offence and that none of the usual indicia of trafficking were present in their home — character — s 16A(2)(m) — offender is a first-time offender — rehabilitation — s 16A(2)(n) — offender removed themselves from drug use after their arrest and has good prospects for rehabilitation — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — must be acknowledged quantity of MDMA imported and offender’s principal role in facilitating and taking delivery of it required a significant sentence reflecting need for personal and general deterrence — appeal judge of opinion that whilst there were matters personal to offender that may justify a lower non-parole period, the non-parole period imposed was manifestly inadequate — double jeopardy — in determining whether to grant Director permission to appeal, court must have regard to circumstances that will produce an injustice if appeal is allowed — over 3 years since offender arrested — they were employed up until taken into custody, removed themselves from drug use whilst on bail, served 5.5 months of immediate custodial sentence expecting to be eligible for parole in about 10 months or considered for early release on home detention — these matters must be considered by court in exercise of residual discretion — appeal judge acknowledged public policy considerations for granting permission to appeal, not satisfied that these considerations outweigh countervailing public interest in protecting persons from double jeopardy — permission to appeal refused
  • 9 June 2020 —

    Waterstone v The Queen [2020] NSWCCA 117 — child exploitation offences — non-parole period — nature and circumstances of the offence — rehabilitation — character

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    appeal against sentence — 4 counts of using a carriage service to offend offence contrary to s 474.17(1) of Commonwealth Criminal Code — additional State offences — original sentenced imposed 3 years’ and 1 month imprisonment — non-parole period — no non-period period considered — error established as sentencing judge did not explain why they considered an effective fixed sentence of 3 years and 1 month without release on parole and/or a recognizance was warranted in this matter — justifying such a course on the basis of length of individual sentences and fact offences were both State and Commonwealth offences did not explain why such a long sentence without parole for a sex offender assessed as having a medium to low risk of re-offending was warranted — do not consider position of offender’s counsel before sentencing judge to preclude intervention of this court, error having been established — nature and circumstances of the offence — s 16A(2)(a) — question of whether sentencing judge erred in finding regarding objective seriousness is question of whether the finding was open — not element of offence under s 474.17 that victim is a child nor that conduct is of sexual nature — this makes offender’s conduct of sending offensive texts of their penis to their stepdaughter a serious example of an offence under this section — appeal judge found no error in sentencing judge’s finding that such conduct was highly offensive — satisfied it was open to sentencing judge to make findings of objective seriousness that they did — re-sentence —— offender not shown any remorse, demonstrated audacious and arrogant attitude towards victim, offending was not isolated and spanned over number of years and victim impact statement showed profound impact of offending on victim — rehabilitation — s 16A(2)(n) — character — s 16A(2)(m) — unable to find good prospects of rehabilitation or unlikely to offend — although applicant was of previous good character, their pattern of repeat offending took place over period of time — mitigate the sentence on account of two significant assaults in custody which constitutes a degree of extra-curial punishment — imposed total effective sentence of 2 years’ and 3 months imprisonment to then by released by way of recognizance order to be of good behaviour for 11 months

Recent Updates to Commentary View All

  • February 2020 —

    Deportation 

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    updated to include commentary on when there is sufficient evidence of offender’s prospects of deportation and hardship to the offender, including DPP (Cth) v Ooi [2019] VCC 156 and R v Shoma [2019] VSC 367
  • 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

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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