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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 24 October 2019 —

    Kyuldzhiev v The Queen [2019] WASCA 162 — drug importation — nature and circumstances of the offence

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of the Commonwealth Criminal Code — offence relates to 23.7kg of pure methamphetamine — original sentence imposed 13 years’ imprisonment, with a 9 year and 6 month non-parole period — nature and circumstances of the offence — the nature, quantity, purity, source and value of the drugs concerned are highly relevant to assessing the objective seriousness of federal drug offences — necessary to bear in mind that often those involved in drug importation will know nothing about what they are dealing with except that it is a quantity of an illicit substance — it follows there will be many cases where a sentencing judge will be more concerned to identify the level of offender’s criminality by looking to state of offender’s knowledge about importation in which they were involved — leave to appeal refused — appeal dismissed
  • 8 October 2019 —

    DPP v Korras [2019] VCC 1681 — tax fraud — nature and circumstances of the offence — general deterrence — guilty plea — character — contrition — reparation  specific deterrence — rehabilitation — delay — hardship

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    sentence — dishonestly causing a loss or risk to the Commonwealth knowing or believing that the loss would occur or that there was a substantial risk of the loss occurring offence contrary to s 131.1(5) of Commonwealth Criminal Code — offence relates to $85,638 of tax evaded — nature and circumstances of the offence — s 16A(2)(a) — offender not instigator of scheme but knew what was happening and turned a blind eye to it — while this lessens moral culpability to some extent, offender was joint owner of company and in position to stop offending conduct which lasted more than 3 years — modestly serious example of this offence and offender’s moral culpability is high — general deterrence — s 16A(2)(ja) — general deterrence and denunciation are prime considerations in respect of this offence — courts have significant responsibility to protect integrity of revenue system by imposing punishment for deliberate and sustained fraud to deter others — tax fraud has many harmful, but often hidden, social consequences, is difficult to detect and if undetected the rewards can be great — crimes not victimless because burden of fraud falls on whole Australian community — guilty plea — s 16A(2)(g) — plea entered at first reasonable forensic opportunity and plea has significant utilitarian benefit in light of the likely length and complexity of any trial — it also indicates an acceptance by offender of responsibility for offending conduct and a willingness to facilitate the course of justice —— character — s 16A(2)(m) — contrition — s 16A(2)(f) — reparation — s 16A(2)(f)(i) — offender of relevantly prior good character, worked hard to provide for family and contributed to community in number of ways — offender sentenced on the basis that offender is truly remorseful for offending — also evident by fact offender has made full restitution to the ATO — specific deterrence — s 16A(2)(j) — rehabilitation — sentencing judge accepted offender learnt salutary lesson from investigation, charging and legal process of this matter — accordingly, sentencing judge gave no weight to specific deterrence or protection of community in sentencing, and assessed prospects of rehabilitation as being very good — delay — delay in finalising proceedings through no fault of offender, with matter hanging over offender’s head for some time this delay caused degree of stress and anxiety to offender — hardship — s 16A(2)(p) — offender’s care of handicapped mother not such as to constitute exceptional circumstances of type sufficient to enliven s 16A(2)(p), however sentencing judge accepted any sentence of imprisonment by reason of offender’s mother’s ill health would weigh heavily on offender in a custodial environment — sentence imposed 2 years’ and 6 months imprisonment, offender released immediately on recognisance release order and a $10,000 fine — s 6AAA — sentencing judge would have imposed sentence of 3 years’ and 6 months imprisonment with a 2 year non-parole period and a $12,500 fine but for offender’s plea of guilty
  • 7 October 2019 —

    DPP v Olczyk [2019] VCC 1641 — drug offences — nature and circumstances of the offence — delay — rehabilitation — contrition — guilty plea — general deterrence

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    sentence — importing a commercial quantity of a border controlled drug, trafficking a marketable quantity of a controlled drug, attempting to manufacture a controlled drug, possession of a controlled drug, failure to comply with an order under s 3LA(2) — state firearm offence — Charge 1 relates to 629.9g of pure MDMA, Charge 2 relates to ‘no less than 100g MDMA’, Charge 4 relates to 330.3g of pure MDMA — nature and circumstances of the offence — s 16A(2)(a) — offending very serious, involved in a sophisticated scheme to import, and traffick MDMA and manufacture MDA — level of sophistication and complexity in offending was high — offender not mastermind or driving force in importation, having more of an ‘hands on’ role — offender doing this for financial gain — conduct deliberate, sustained and ‘not uncomplicated’ — sentencing judge not satisfied on basis of probabilities of drugs being in any way instrumental in offending — delay — close to 3 years between arrest and sentence, offender sentenced 22 months after they were arraigned and pleaded guilty — delay here of significant mitigatory value, offender left in a state of uncertain suspense and status as remand prisoner made the service of that time more onerous owing to limitations upon courses and programs, and ‘just the plain fact of there being no light at the end of the tunnel’ — in course of delay, offender taken steps along path to rehabilitation — rehabilitation — s 16A(2)(n) —  contrition — s 16A(2)(f) — offender has strong or positive prospects of rehabilitation — offender undoubtedly ‘leapt in down at the deep end’ with offending of this magnitude, but offender came to crime late in life and with no past proven criminality — offender took responsibility and did not seek to blame anyone other than themselves — offender has used time in custody usefully doing courses and programs and been drug free — sentencing judge prepared to find offender felt remorse for their crimes — guilty plea — s 16A(2)(g) —guilty plea at early stage, taking responsibility for crimes and facilitated the course of justice, and the community has been spared the time, cost and effort of a trial up in the court, and it would have been a trial of real complexity — general deterrence — s 16A(2)(j) — general deterrence is the primary sentencing purpose, in relation to drug offences in particular — message must be sent that life altering sentences await those who chose to import or traffick drugs — sentence — imposed 9 years’ and 8 months imprisonment with a 4 year and 10 month non-parole period, with 1048 days having already been served — s 6AAA — s 6AAA statement is artificial in this sense, as had offender not pleaded guilty there would not have been guilty plea discount as well as no remorse on display and less favourable rehabilitation prospects — this case should not be used in other cases to demonstrate type of sentences generally open for importation of commercial quantity of border controlled drug — combination of factors which produced highly unusual outcome — had offender not pleaded guilty, would have been sentenced to 15 years’ and 6 months imprisonment, with an 11 year and 6 month non-parole period
  • 4 October 2019 —

    Alou v The Queen [2019] NSWCCA 231 — terrorism offence — rehabilitation — deterrence — age — non-parole period

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    appeal against sentence — aiding, abetting, counselling or procuring the commission of a terrorist act offence contrary to ss 11.2 and 101.1(1) of Commonwealth Criminal Code — original sentence imposed 44 years’ imprisonment with a 33 year non-parole period — rehabilitation — s 16A(2)(n) — sentencing judge not in error by sentencing offender on basis that offender was danger to the community and had ‘grim’ or ‘bleak’ prospects of rehabilitation — sentencing judge not in error by concluding that prospects of rehabilitation would remain poor during ‘very lengthy sentence’ — absence of evidence that there will be any change in prospects of rehabilitation does not mean sentencing judge not obliged to make assessment of prospects of rehabilitation — consideration of Bugmy v The Queen [1990] HCA 18 — Bugmy not authority for proposition that assessment of prospects of rehabilitation cannot be made in circumstances of lengthy head sentence — deterrence — s 16A(2)(ja) — age — s 16A(2)(m) — offender aged 18 years at time of offending — clear authority that significance of punishment, deterrence and community protection means that mitigating factors such as youth and prospects of rehabilitation are given less weight when sentencing for terrorism offences — youth remains relevant factor but will be given less weight in light of seriousness of terrorism offence and in absence of causal link between offender’s age and offence — fact that offender was radicalised at age 17 does not lead to conclusion of causal link between the offence and offender’s youth so as to reduce offender’s moral culpability — continuing detention scheme — sentencing judge not in error by not taking into account as a mitigating factor existence of continuing detention scheme for high risk terrorist offenders that may or may not exist at expiration of sentence — non-parole period — s 19AG — sentencing judge not in error by mechanically fixing the non-parole period rather than determining non-parole period through discretion and fixing it subject to s 19AG — obligation to impose minimum non-parole period in s 19AG(2) does not preclude court from fixing greater non-parole period — s 19AG(3) does allow court when fixing a life sentence to impose a minimum non-parole period which is less than what would be required for a determinate sentence greater than 30 years — imposition of a life sentence simply for the purpose of attracting minimum non-parole period of 22.5 years would be an error of sentencing discretion — nothing incompatible with exercise of judicial power for court to determine non-parole period with regard to statutory requirements — leave to appeal granted — appeal dismissed
  • 3 October 2019 —

    R v Suttle [2019] NSWDC 538 — child exploitation offences — nature and circumstances of the offence — victim impact statements — guilty plea — rehabilitation — general deterrence — specific deterrence

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    sentence — 6 counts of use of carriage service to send indecent material to person under 16 years offence contrary to s 474.27A(1) of Commonwealth Criminal Code — 17 counts of state child exploitation offences — nature and circumstances of the offence — s 16A(2)(a) — offending occurred over 2 year period — for an adult to first lie about their age then form an online/Snapchat friendship with children with intention of requesting sex from them is a serious crime — victim of the offence — it should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury from any child sexual assault offence — guilty plea — s 16A(2)(g) — offender will get full benefit generally allowed for early plea, facilitation of the course of justice and acceptance of responsibility — it is important to recognise that none of the young victims had to give evidence in court — rehabilitation — s 16A(2)(n) — sentencing judge confident offender can with help be restored to normal community life — offender has strong pro-social supports in the community and will benefit from assistance while on parole — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — offender and others must by the harshness of custodial punishment learn the consequences of sexual offending against children — social media networks offer many advantages but they can be misused and innocence exploited — offender was knowingly taking advantage of children, lied to them about who offender was and motivation was purely selfish — offender only though of themselves and their own sexual gratification — sentence — total sentence imposed 7 years’ and 11 months imprisonment with a 4 year and 11 month non-parole period

Recent Updates to Commentary View All

  • 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
  • June 2019 —

    Guilty Plea

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    updated to reflect changes to the treatment of guilty plea as a federal sentencing factor in the ACT, NSW and Tasmania and additional commentary added discussing how the  strength of crown case impacts the utilitarian value of a plea
  • May 2019 —

    Cultural Background

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    updated to expand section 3.5 to include commentary on Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301, page also updated to reflect modern layout

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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