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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 29 March 2019 —

    R v Azari (No 12) [2019] NSWSC 314 — terrorism offence — nature and circumstances of offence — objective seriousness — age — delay — contrition — rehabilitation — s 16BA — general deterrence

    sentence — attempting to make money available to terrorist organisation offence contrary to ss 11.1(1) and 102.6(1) of Commonwealth Criminal Code — act in preparation for, or planning, a terrorist act or acts offence contrary to s 101.6(1) of Commonwealth Criminal Code — funding offence related to $US9000 — nature and circumstances of offence — s 16A(2)(a) — telephone conversation with most senior Australian Islamic State member in Syria — contents of phone call included discussion of role that offender and others would play in series of public executions planned to be conducted in Australia — offender’s role with terrorist organisation as intermediary relevant to court’s assessment of nature and seriousness of offending — distinguished from most other acts of terrorism where “lone wolves” are usually radicalised online with no direct contact with Islamic State — objective seriousness — depth and extent of radicalisation of offender relevant factor in assessing objective gravity of planning offence — gravity of offence below mid-range as no evidence offender accessed any extremist material online and no evidence that offender had taken pledge of allegiance to Islamic State — age — s 16A(2)(m) — offender 20 years of age at time of arrest — youth will be given less weight due to seriousness of terrorism offences and absence of any causal link between offender’s age and criminal conduct — contrition — s 16A(2)(f) — contrition not shown as offender admitted he engaged in conduct knowing it was a crime  — offender argued religious obligations made Australian law subordinate — rehabilitation — s 16A(2)(n) — prospects of rehabilitation not established as no evidence offender renounced extremist views — offender’s refusal to stand in court does not suggest that offender has disavowed extremist views held at time of offences — taking into account other offences — s 16BA — two further counts of attempting to make money available to terrorist organisation offences contrary to s 102.6(1) of Commonwealth Criminal Code taken into account — amount totalling $6000 — general deterrence — s 16A(2)(ja) — general deterrence significant factor for these offences — community protection of paramount importance in terrorism sentencing due to fact that offences involve threat or use of violence as means to intimidate community or government, notwithstanding not explicitly listed in s 16A(2) — sentence — 25% discount for guilty plea for funding offence — period of 2 years’ concurrence between both sentences — sentence imposed 18 years’ imprisonment with a 13 year and 6 month non-parole period
  • 27 February 2019 —

    R v Roulston [2019] NSWDC 28 — child exploitation offence — objective seriousness — co-operation — rehabilitation

    sentence — use of carriage service to groom a person under age of 16 years offence contrary to s 474.27(1) of Commonwealth Criminal Code — additional offence of use of carriage service to send indecent material to a person under 16 years of age pursuant to s 474.27A of Commonwealth Criminal Code taken into account on sentence — objective seriousness — offending occurred over short period of time — unsophisticated planning in that offender utilised own Facebook social media account — ceased contact of own accord — objective seriousness of offending towards lower range — conduct still constituted serious offending — transmitting indecent material does increase objective seriousness of offending and must amount to some accumulation on sentence — co-operation — s 16A(2)(h) — offender ceased conduct of own accord and did not respond when urged to do so when contacted by AOI — offender made certain admissions in interview following arrest — sentencing judge found offender cooperated with Law Enforcement Agencies in the face of overwhelming case — rehabilitation — s 16A(2)(n) — offender unable to articulate true reason for criminal offending and court must therefore be guarded in assessing whether offender has good prospects of rehabilitation — while offender assessed as low-average risk of sexual recidivism, little reliance can be placed on that assessment in absence of offender’s acknowledge of sexual interest in children, clearly evident in communications with AOI — any findings to rehabilitation would have to be somewhat guarded, however it would warrant them being given a substantial period of supervision in the community — sentence — sentence imposed 15 months’ imprisonment and a recognisance release order for 15 months after imprisonment
  • 18 February 2019 —

    DPP (Cth) v Ooi [2019] VCC 156 — drug importation offence — offender’s family and dependants — deportation

    sentence — importing a marketable quantity of a border-controlled drug, namely heroin offence contrary to s 307.2(1) of Commonwealth Criminal Code — offence related to importation of 244 grams of pure heroin — offender part of syndicate with two other co-offenders — offender’s family and dependants — s 16A(2)(p) — offender’s wife is primary carer of all three children with only one relative in Australia who lives in Queensland — wife able to work part time when her mother assists her — mother lives in Vietnam and travels to Australia on a tourist visa but only able to stay for up to 3 months because of visa restrictions — sentencing judge took into account effect on offender of hardship caused to others by reason of offender’s imprisonment and imprisonment will be more burdensome for offender because of anguish offender will suffer at being unable to care for their family — deportation — having regard to offender’s migration status a term of imprisonment greater than 12 months will mean that offender will face mandatory cancellation of their visa with prospect of deportation being a real likelihood — whilst it is accepted that the court cannot speculate about whether the Minister will revoke the cancellation order, the real prospect of deportation is a relevant sentencing consideration on the basis of the additional anxiety that offender will suffer whilst undergoing term of imprisonment due to the existence of the risk of deportation — sentence imposed 3 years’ imprisonment to be released on a recognisance release order after serving 2 years
  • 14 February 2019 —

    R v Gillett [2019] ACTSC 30 — abuse of public office offence — contrition — character — delay — guilty plea — co-operation

    sentence — abuse of public office offence contrary to s 142.2(1) of Commonwealth Criminal Code contrition — s 16A(2)(f) — sentencing judge accepted offender was remorseful as offender made full admissions to offences within hours of being initially investigated and pleaded guilty at earliest opportunity — offender accepts accountability for offence, and is embarrassed and ashamed by actions — character — s 16A(2)(M) — sentencing judge did not accord significant weight to offender’s otherwise good character as offence is frequently committed by those of otherwise good character — delay — offending occurred between August 2008 and March 2009 but not detected until 2016 — take into account only period of 18 months delay between offender in November 2016 making full admissions to his conduct and being summonsed before Court in June 2018 — no significant discount for delay between 2008-9 and 2016 given that delay was result of offending behaviour being kept hidden by offender, despite offender being required to report any misconduct — guilty plea — s 16A(2)(g) — discount of 25% is appropriate in light of offender’s willingness to facilitate course of justice — co-operation — s 16A(2)(h) — prosecution submitted past co-operation with overseas authorities may be considered by court under s 16A(2) as one of “any other matter[s]” — previous proceedings adjourned to allow offender to travel to United States to provide assistance to US Department of Justice in person in connection with ongoing prosecutions in a US Navy bribery matter — sentencing judge takes this past co-operation into account on sentence — offender gave undertaking in Court to attend and give evidence at any trial in the United States if subpoenaed and to co-operate in that process — sentencing judge gave a 15% discount in relation to undertaking to provide future co-operation — sentence — offender’s plea of guilty, remorse, suitability for an ICO, excellent prospects for rehabilitation and assistance to authorities point in direction other than imprisonment served by full time custody — sentence impose 23 months of imprisonment to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT) by way of s 20AB(1AA)(a)(ix) of Commonwealth Criminal Code — additional condition that offender perform 150 hours of community service within 23 months
  • 13 February 2019 —

    DPP v Nguyen [2019] VCC 108 — attempted drug possession — hardship — objective seriousness — general deterrence — rehabilitation

    sentence — attempting to possess commercial quantity of unlawfully imported border-controlled drug — offence relates to 22.277 kilograms of pure methamphetamine — hardship — argued that offender’s mother’s diabetes, elevated blood pressure and depression should be taken into account by court in determining exceptional circumstances — no actual medical evidence tendered about mother’s medical condition and mother continued to perform role of chief cook at the family restaurant — evidence in relation to family restaurant falls short of meeting high test of exceptional hardship — also relied upon offender’s wife’s endometriosis condition — sentencing judge considered this to be somewhat vague support for proposition of exceptional hardship — for offender to rely upon hardship that imprisonment creates for people other than offender is an appeal for mercy — legal authorities make it plain that court’s discretion to exercise mercy on that basis should only be exercised in exceptional circumstances because imprisoning a person will usually adversely impact on that person’s family — the law recognises that if lenience is given to an offender because of family hardship that results in the guilty offender benefitting so that their innocent family will not be so adversely affected — this means that an equally guilty offender who does not have a family in need would unjustly receive a less lenient sentence — objective seriousness — seriousness of this offending — illicit drugs are a scourge on our society — detrimental to health of users and relationship of users with family and community — scourge of illicit drugs is responsible for a huge toll financially and very significant adverse impact on welfare of whole community — general deterrence — s 16A(2)(ja) — courts have repeatedly emphasised difficulty in detecting importation of illicit drugs and the great social harm they cause mean that principal emphasis in sentencing should be upon deterrence and punishment — rehabilitation — s 16A(2)(n) — offender apparently overcame substance abuse disorder since arrest and overcame problem gambling disorder by 2015 — taken together with intelligence, demonstrated capacity for high work and strong family support, sentencing judge considers good prospects of rehabilitation — continued to maintain innocence in spite of jury verdict, so not remorseful — convicted and sentenced to 10 years’ imprisonment with 6 year and 10 month non-parole period

Recent Updates to Commentary View All

Recent Legislative Amendments View All

  • 7 December 2016 —

    Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) — amends Crimes Act 1914 (Cth)

    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)

    — 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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