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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 11 December 2018 —

    R v HG [2018] NSWSC 1849 — terrorist offence — objective seriousness — contrition — specific deterrence — age — rehabilitation

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    sentence — acts in preparation for, or planning, a terrorist act or acts offence contrary to s 101.6(1) of Commonwealth Criminal Codeobjective seriousness — actions were directed to putting into practice, with meticulous precision and attention to detail, the exhortations to go out and inflict terror and harm upon community — this kind of offending will always incorporate some degree of planning — sourcing extremist propaganda which provided instructions as how terrorist attack could be carried out using such weapons — concealing those weapons, ensuring clothing available for disguise, and taking steps to avoid detection — offending was simplistic, generally unsophisticated — none of that means offending not serious, had real capacity to inflict significant and immediate harm — offending mid-range of objective seriousness — contrition — s 16A(2)(f) — no evidence to suggest offender is contrite — finding consistent with offender’s protestations of innocence — fact that offender displays no contrition for offending is not an aggravating factor — simply means offender does not gain mitigatory benefit — specific deterrence — s 16A(2)(j) — bearing in mind offender’s ideology strong need for sentence to reflect considerations of specific deterrence — age — s 16A(2)(m) — offender’s age of particular significance — offender was 16 years and 5 months old at time of offence and 18 years old at time of sentencing — must not and do not view offender’s presentation in witness box as reflecting offender’s level of maturity at time of offending — unable to accept submission that offender was naive 16 year old whose immaturity was contributing factor to offending — offender deliberately sourced and posted extremist material which advocated violence — followed instructions to the letter, purchased weapons, carried camouflage gear, took steps to not be traced — conduct of that nature is the antithesis of naivety — offending involved considerable degree of forethought, intelligence and guile — deep and unstinting motivation to act upon and put into effect, the irrational, immoral and heinous advice propounded in extremist propaganda issued by Islamic State — rehabilitation — s 16A(2)(n) — although offender’s prospects of rehabilitation remain a relevant consideration on sentence, assume less significance than might be the case because of nature of offending — successful rehabilitation of offender found guilty of offence such as this is necessarily dependent upon offender renouncing extremist views — if sentencing court satisfied offender renounced extremist views, prospects of rehabilitation will be greater and constitute matter for court to make appropriate allowance — if court not satisfied, offender’s prospects of rehabilitation will be less optimistic — offender had previously moderated views, then reverted back to extremist stance — putting it at its highest, suggest that tentative steps have been taken by offender to move away from previously held extremist ideology — express conclusion with considerable caution — sentence imposed 16 years’ imprisonment with 12 year non-parole period — sentencing judge satisfied special circumstances within meaning of s 19(4)(c) of Children (Criminal Proceedings) Act 1987 (NSW) exist — pursuant to s 19(1), ordered that sentence imposed upon offender be served as a juvenile offender up to offender attaining age of 21 years — sentencing judge warned offender that application may be made for continuing detention order requiring offender to be detained after completion of sentence  
  • 6 December 2018 —

    CDPP v Boillot [2018] VSC 739 — foreign bribery offence — objective seriousness — parity — delay — guilty plea — general deterrence

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    sentence — conspiring to offer a bribe to a foreign public official offence contrary to ss 11.5(1) and 70.2(1) of Commonwealth Criminal Code — multiple co-offenders to this and related bribes already sentenced — objective seriousness — serious example of offence — conduct sophisticated, carefully orchestrated and concealed — offender actively and centrally involved in conspiracy for over 2 years — amount of commission paid substantial — parity — participated in conspiracy to promote employer’s business in corporate culture where that was expected — does not excuse conduct, but means moral culpability less than other offenders who conspired purely for financial gain — delay — substantial delay between offender being charged and plea of guilty — offender acted in efficient and economical fashion and did not contribute to delay — courts have long recognised that prospect of sentence hanging over one’s head during period of delay can be punishment in itself — period of delay has unique features which did not apply to other accused — offender unable to leave Australia — offender unable to see children, grandchildren during this period — all co-offenders subject to regular obligations to report to police as condition of bail, others free to live with their families — offender living in state of limbo for past 7 years uncertain and anxious to when offender would be able to return home and resume life — guilty plea — s 16A(2)(g) — substantial utilitarian value — possible that, as result of High Court’s findings about illegality of some actions of AFP and Australian Crime Commission, offender may have been successful in seeking exclusion of evidence or stay of charge — by pleading guilty, offender spared community time and cost of trial — general deterrence — s 16A(2)(ja) — general deterrence and denunciation are usually very important sentencing considerations involving “white collar” crime — offences usually hard to detect — often committed by persons with prior good character and reputation — courts generally place great weight on need to deter others from engaging in similar conduct — sentencing judge in no way suggesting suspended sentences should be treated as norm for offences under foreign bribery provisions — these conspiracies and subsequent prosecutions have number of quite particular features unlikely to be replicated — offender sentenced to 2 years’ and 6 months imprisonment to be released immediately on recognisance, on condition that offender be of good behaviour for 2 years
  • 28 November 2018 —

    Kuo v The Queen; Huang v The Queen; Shih v The Queen [2018] NSWCCA 270 — drug offence — guilty plea — nature of circumstances of offence — objective seriousness — parity

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    appeal against sentence by three co-offenders heard by same court, fourth co-offender not subject of appeal — each charged with attempting to possess an unlawfully imported substance, the substance being a border controlled drug, namely methamphetamine offence contrary to s 307.5(1) of Commonwealth Criminal Code — offences related to attempted possession of 142kgs of methamphetamine — original sentence imposed 27 years’ imprisonment with 18 year non-parole period for Offender 3, and 22 years’ imprisonment with 14 year and 6 month non-parole period for Offenders 1 and 2 — Offender 1 — guilty plea — s 16A(2)(g) — sentencing judge did not take into account utilitarian value of guilty plea — late plea after fully contested committal proceedings — even when one takes into account utilitarian value, discount for plea would be modest, about 10 to 15 percent — nature and circumstances of offence — s 16A(2)(a) — objective seriousness — difficulty to find guidance as to how to deal with particular facts which involve large importation of prohibited drug — offending by Offender 1 would be well above mid-range of offending, but certainly not approaching the worst category of offending — Offender 1 was not a principal, albeit an important member of drug importation syndicate — danger in a matter of this kind is that sentencing judge, to some extent, can be overwhelmed by sheer quantity of drug sought to be imported — lesser sentence warranted in law for Offender 1 — Offender 2 — parity — similar position in hierarchy of drug enterprise as Offender 1 — overall sentence of fourth co-offender exceeded sentence imposed on Offender 2, because fourth co-offender found guilty of two additional offences — sentence seems to have resulted from sentencing judge’s assessment of hierarchy that involved Offender 3 at apex and fourth co-offender at the bottom — fourth co-offender’s role was considerably more significant than that of Offenders 1 and 2 — fourth co-offender was at top of Australian hierarchy — taking that matter into account and also the other matters in relation to Offender 1, consider that a lesser sentence is warranted in law for Offender 2 — Offender 3 — guilty plea — s 16A(2)(g) — sentencing judge erred in failing to take account utilitarian value of guilty plea — necessary for court to exercise afresh sentencing discretion — unnecessary to come to any firm conclusion in relation to ground asserting manifest excess other than to say the court would, in circumstances of this case, have imposed a sentence significantly lower than imposed on Offender 1 — unnecessary to come to any final conclusion in relation to ground asserting disparity — good deal of merit in Offender 3’s case — bear in mind sentence imposed on fourth co-offender and that to be imposed on Offenders 1 and 2 — taking into account Offender 3’s role in importation, magnitude of importation, particular personal circumstances including likely hardship in custody, absence of any serious criminal history and guarded assessment that Offender 3 had some prospects for rehabilitation upon deportation at end of very long sentence — Offenders 1 and 2 resentenced to 19 years’ imprisonment with 12 year non-parole period — Offender 3 resentenced to 22 years’ imprisonment with 14 year non-parole period
  • 23 November 2018 —

    R v Atai (No. 2) [2018] NSWSC 1797 — terrorist offences — objective seriousness — contrition — rehabilitation — guilty plea — parity — specific deterrence — general deterrence

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    sentence — one count of aiding, abetting, counselling or procuring commission of offence by another, namely engagement in terrorist act (Count 1) and two counts of intentionally collecting funds for or on behalf of an organisation, Islamic State, knowing organization was a terrorist organisation (Counts 2 and 3) offences contrary to ss 11.2 and 101.1, and s 102.6(1) of Commonwealth Criminal Code respectively — other offence of intentionally being a member of terrorist organisation, Islamic State, knowing that organisation was a terrorist organisation offence contrary to s 102.3(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — offences related to offenders role in killing of Curtis Cheng by Farhad in 2015 (Count 1) and extended to organisation of funding and support for Islamic State in Syria (Counts 2 and 3) — objective seriousness — Count 1 had degree of planning involved (although plot itself not especially sophisticated) and offender heavily committed to carrying out terrorist act —  planning occupied more than 4 weeks and offender involved regularly throughout that period — offender deeply radicalised and supporter of violent jihad and Islamic State before, during and after commission of Count 1 — offender aware of depth of radicalisation of 15 year old Farhad and acted in way which reinforced co-offender’s indoctrination – took no steps to dissuade Farhad from carrying terrorist act nor intervene with Farhad’s parents or brother for purpose of saving Farhad and stopping terrorist act, knowing full well vulnerability of 15 year old — these factors aggravate gravity of first offence — objective seriousness substantial although it does not reach level of Alou’s offence — offence extremely serious and higher end of scale of seriousness for offence — factors which bear upon objective gravity of Count 2 offences under s 102.6(1) include amount of funds involved, identity of terrorist organisation and conduct of offender — terrorist organisation was Islamic State, a terrorist organisation of the worst type — substantial objective gravity — offender engaged in elaborate steps over lengthy period to facilitate planned transfer of funds to assist Islamic State — displayed expertise in this area which (if put into effect) would provide substantial assistance to terrorist organisation — Count 3 committed against background of offender’s commission of Counts 1 and 2 — served to demonstrate depth of commitment to criminal cause of Islamic State — these aspects magnify offender’s criminality in Count 3 — fact that no prospect in Count 3 that funds would actually reach Islamic State, so that actual harm would not be caused, does not provide assistance to offender on sentence — broad analogy with sentencing for drug supply offences where drugs will not reach public because drugs are supplied to undercover operatives — although fact that funds did not actually reach Islamic State is factor taken into account on sentence, a primary consideration remains that offender intended to make funds available to Islamic State and that it was no act of his that resulted in this not happening — contrition — s 16A(2)(f) — rehabilitation — s 16A(2)(n) — offender stated no longer supported Islamic State — maintains support for Taliban and other organisations and expresses a willingness to travel overseas to act as a foreign fighter — supports Jabhat al-Nusra which is a prescribed terrorist organisation — offender prepared to give evidence and face cross-examination to move some (perhaps small) distance from Islamic State assisted offender to an extent on sentence — offender’s expression of regret for killing of Mr Cheng somewhat lukewarm — at the same time, expression of a fulsome apology would itself have been of doubtful credibility at that point — Courts must exercise caution in assessing genuineness of claims that holder of extremist views is prepared to move away from them, especially when claim made at sentencing hearing — in public interest for persons who have committed terrorist offences to seek to engage in process which has capacity to assist offender to alter thought processes to comply with laws of society — no prior criminal history indicates that offender’s prospects of rehabilitation are tied closely to alteration in belief system — additional letter withdrawing of apology to victim’s family and maintenance of extremist views supportive of violent jihad operates to neutralise almost entirely the factors which operated in offender’s favour — offender not to be punished further for course taken, but deprived of several mitigating factors which would otherwise have operated in favour on sentence — no evidence of contrition or remorse or development of insight into offending and harm done to individuals and Australian community — offender remains attached to  violent jihad which bears upon issues of specific deterrence and protection of community and prospects of rehabilitation — offender’s prospects of rehabilitation not favourable and risk of reoffending significant — guilty plea — s 16A(2)(g) — offender’s pleas entered at very late stage — reason for delay in pleading guilty is irrelevant because, by delaying pleas and entering into plea bargaining, offender obtained forensic advantage which reduced, to an extent, the number and seriousness of charges — reduced utilitarian benefit flowing from late pleas of guilty — allow 10% discount for utilitarian value of offender’s pleas of guilty — parity — in sentencing offender on Count 1, court should keep in mind parity principle by reference to sentence imposed on Alou — objective gravity of Alou’s offence was significantly greater than offender — offender’s recent change of approach moves his position closer to that of Alou in areas of contrition, remorse and prospects of rehabilitation — specific deterrence — s 16A(2)(j) — whilst primary focus must be on Count 1, Court should give greater weight to need for specific deterrence which admitted offence signifies and also to community’s entitlement to extract retribution in form of punishment for admitted offence — offender’s preparedness to move to an extent from his extremist views has given away to clear adherence to those views — specific deterrence must play significant role on sentence — general deterrence — s 16A(2)(ja) — very strong element of general deterrence is required in sentencing for terrorist offences — even more so where terrorist offence caused death and actual harm to community — critical importance that courts send message to persons who are prepared to assist or carry out terrorist acts that such conduct will not be tolerated and will be met by severe punishment — general deterrence significant factor on sentence for Counts 2 and 3 as well — necessary for sentences for these offences to operate as deterrent to others from providing financial support to terrorist organisations such as Islamic State — effect aggregate sentence imposed 38 years’ imprisonment with 28 year and 6 month non-parole period
  • 23 November 2018 —

    Wong v The Queen [2018] NSWCCA 263 — importing border controlled drug — guilty plea — manifest excess

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    appeal against sentence — importing a commercial quantity of a border controlled drug offence contrary to s 307.1(1) of Commonwealth Criminal Code — offence related to 787g of pure methamphetamine — one other offence taken into account pursuant to s 16BA — original sentence imposed 6 years’ and 9 months imprisonment with 3 year and 9 month non-parole period — guilty plea — s 16A(2)(g) — sentencing judge did not refer to s 16A(2)(g) or specifically refer to offender’s early plea of guilty or to any mitigation of sentence to take account that plea — failure to expressly refer to plea and any discount on sentence allowed to reflect its value to justice system does not necessarily demonstrate failure to take plea into account — clear from sentencing proceedings that sentencing judge aware that applicant had acknowledged guilt at early stage and entered guilty plea to principal offence — equally clear that sentencing judge understood that full recognition of benefit to criminal justice system of early plea should be extended to offender — always preferable for sentencing judge to specifically refer to early plea and quantify discount on sentence, failure to do so does not necessarily establish error — manifest excess — starting point for considering whether sentence is manifestly excessive is the maximum penalty specified for the offence; here, life imprisonment — indicator of how seriously community regards importation of controlled drugs, and seriousness with which courts are obliged to treat such crimes — sentencing judge’s task was to have regard to that statutory guidepost and relevant principles of sentencing law, to take into account the offence on a schedule before the court, to give weight to offender’s personal circumstances, and arrive at sentence that did justice to community and offender — that is a discretionary exercise — sentencing judge allowed offender benefit of all positive features of subjective case and varied ratio of sentence considerably in offender’s favour — sentence imposed was a modest one — leave to appeal granted — appeal dismissed

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)

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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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