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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 16 November 2020 —

    R v Manuel [2020] WASCA 189 — firearm importation offences — nature and circumstances — victims of offence — contrition — cooperation — physical condition

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    appeal against sentence — 2 counts of engaging in conduct that constitutes an offence under a firearm law in course of trade or commerce among States contrary to s 260.2(1) of Commonwealth Criminal Code — 1 count of intentionally sending quantity of firearms from NSW to WA in course of trade or commerce among States contrary to s 360.3(1) of Commonwealth Criminal Code — original sentence imposed 5 years’ and 6 months imprisonment with a 3 year non-parole period — nature and circumstances — s 16 A(2)(a) — offender acquired and disposed of 87 firearms — police have been unable to locate 82 firearms — firearms can be used repeatedly and remain lasting threat to public safety — handguns had large magazine capacity — most of handguns were semiautomatic which increases risk of harm — although offender was initially reluctant to become involved and it was necessary for offender to be encouraged and persuaded no unlawful pressure threats or intimidation were brought to bear on offender — offender became willingly involved because of financial inducements — offender was aware there was potential for considerable profit to be made and for firearms to be on sold unlawfully to people involved in criminal activity — offender deliberately abused licensing system and pretended to be legitimate firearms dealer — offending occurred over extended period — offender only ceased offending when authorities became aware of activities — victims of offence — s 16(A)(2)(d) — members of Australian community including police officers who may be adversely affected by unlawful use by criminals of 82 firearms that have been unable to be located were potentially impacted by offending — cooperation — s 16A(2)(h) — offender did not cooperate with police — when offender volunteered to make statement it contained significant number of lies — offender refused to disclose identity of persons to whom handguns had been distributed — physical condition — s 16A(2)(m) — offender suffers from number of medical conditions but it is not apparent that conditions cannot be adequately monitored and treated within a custodial setting — re-sentence — each original sentence was not merely at or towards lower end of sentencing outcome open on proper exercise of discretion — each individual sentence was substantially less than outcome that was properly open — leave to appeal granted — original sentence quashed — offender re-sentenced to 7 years’ and 6 months imprisonment with a 5 year non-parole period  
  • 13 November 2020 —

    Cadzow v The Queen [2020] SASCFC 108 — exporting goods offences — nature and circumstances — contrition — cooperation — rehabilitation

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    appeal against sentence — 14 counts of procuring conduct of person to commit offence of preparation of prescribed goods for export at unregistered establishment offence contrary to s 8A(1) of Export Control Act 1982 (Cth) — 1 count of preparing prescribed goods for export at unregistered establishment contrary to s 8A(1) of Export Control Act 1982 (Cth) — 1 count of attempting to export prescribed goods in contravention of specified conditions ore restrictions contrary to s 8(3)(1) of Export Control Act 1982 (Cth) — 14 counts of exporting prescribed goods with false trade descriptions contrary to s 15(1)(b) of Export Control Act 1982 (Cth) — 1 count of exporting prescribed goods using OECD labels containing false trade descriptions contrary to s 15 of Export Control Act 1982 (Cth) — original sentence imposed 4 years’ and 3 months imprisonment with 1 year and 10 month non-parole period — nature and circumstances — s 16(A)(2)(a) — offences relates to lucerne seed — procurement and preparation offences with respect to 15 consignments — Eckert’s farm was licensed to treat Lucerne seed but not registered establishment for re-bagging and labelling — offender sentenced on basis that offences were not committed intentionally — offender held mistaken belief that Eckert’s did not need to be registered — offender was reckless in this regard — recklessness that actuated offending constituted single course of conduct — offender signed commercial invoices containing false descriptions — offender applied labels designed to leverage off the quality of genuine OECD labels — offences are serious — offences exist to protect existence and reputation of Australia’s trade market — 5 year penalties are designed to cover broad range of conduct that may well vary considerably in seriousness — contrition — s 16A(2)(f) — offender was contrite and remorseful and has shown genuine insight into offending and accepted responsibility for actions — cooperation — s 16A(2)(h) — offender has been cooperative with investigation — offender emphasised that cooperation extended to disclosing preparation offences of which investigators had previously been unaware — rehabilitation — s 16A(2)(n) — delay of 4 and a half years between date of last offence and date of sentence — offender had rehabilitated themselves or was well advanced in rehabilitation — this is powerful consideration against imposing period of imprisonment such as would jeopardise rehabilitation — comprehensive rehabilitation when taken with contrition and cooperation renders head sentence manifestly excessive — leave to appeal granted — original sentence quashed — offender resentenced to 1 year and 6 months imprisonment to be released on recognisance after 12 months  
  • 13 November 2020 —

    CDPP v Harper [2020] VCC 1786 — child exploitation offences — victims of offence — general deterrence — nature and circumstances — specific deterrence — hardship to offender — guilty plea — COVID-19 — rehabilitation — contrition

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    sentence — 2 counts of using carriage service to transmit child pornography contrary to Commonwealth Criminal Code — additional state offences — victims of offence — s 16(A)(2)(d) — trade and exchange of child abuse material supports industry founded on exploitation of children by depraved minority of adults — exploits vulnerability and innocence of children — offender has exploited children by participating in use and circulation of materials — offender did so as part of own fantasy and desire for sexual gratification — general deterrence — s 16A(2)(ja) — sentence imposed must deter others from becoming involved in possession, viewing and transmission of child abuse material — sentence must denounce offending on behalf of community and protect other children from becoming victims — nature and circumstances — s 16A(2)(a) — offending spans period of just over 4 years — conversations occurred repeatedly and regularly over period of 6 months — creation of text dialogue around pictures and videos of young children was at times particularly degrading, graphic and concerning — dialogue around incest themes has potential to inspire or support such behaviour and is inherently dangerous — serious offences as they directly reflect trade in materials and creation of demand for it — significant overlap between charges — all 3 Commonwealth offences occurred within single conversations — production of child abuse material relates to text conversations and not in any way being involved in creation of images or videos — material transmitted by offender of lesser volume than received and generally of a less serious nature — specific deterrence — s 16A(2)(j) while committing offences offender held position of General Manager within Victorian Correctional system — community expects persons in such roles to be of highest integrity — hardship to offender — while not meeting high standard of exceptional hardship loss of income and ongoing limitations are relevant to considerations — sentencing judge took into account extra curial punishment of publicity and loss of employment as well as involvement of DHHS — time in custody will be difficult — offender likely to serve sentence in protective custody — risk of negative treatment by other prisoners some of whom may have been under offender’s supervision — risk of negative treatment from custodial officers who feel offender has betrayed former role — upon arrest online group emerged focussed on offender with distinct level of vitriol in exchanges — guilty plea — s 16A(2)(g) — offender pleaded guilty from outset — in context of COVID-19 pandemic plea carries particular weight — it was open to offender to take course which would have seen them remain on bail for considerable period of time — offender entitled to discount in sentencing for prompt resolution of matter in those circumstances — COVID-19 — offender entered custody during pandemic which meant immediate period of isolation — it is unclear for how long restrictions will last however prisons will likely be some of last places where restrictions will ease — rehabilitation — s 16A(2)(n) — after being bailed offender sought treatment with psychologist — despite seeing psychologist for over 12 months offender has not started sex offender treatment — offender is still at start of rehabilitation journey — sentencing judge cautious in accepting assessment of being at low risk of reoffending given that offender has not engaged with psychologist in discussion around offending — further psychological risk assessment is also cautiously accepted — offender claimed to psychologist to have no sexual interest in child pornography — claims are difficult to reconcile with online conversations and admissions — psychologist seems to have accepted claim that any interest in this type of material is gone — offender has minimised offending — claims are more likely part of positive impression management due to difficulties in acknowledging negative aspects — positive prospects for rehabilitation — contrition — s 16A(2)(f) — sentencing judge did not accept explanation that this was intellectual pursuit — claim does not explain why offender saved hundreds of images — offender may have unwittingly created narrative which does not confront true motivations admitted in interview — offender claims to not have considered that they were causing harm to young and vulnerable people — offender has now expressed abhorrence and self-loathing at offending — offender sentenced to 4 years’ imprisonment for Commonwealth offences to be released on recognisance after serving 14 months — total effective State term of 3 years’ and 5 months — 12 months cumulation of Commonwealth offences on State offences — offender will simultaneously be subject to State parole and Commonwealth recognisance — s 6AAA — but for pleas of guilty global sentence imposed would have been one of 5 years’ and 8 months imprisonment with 4 year and 5 month non-parole period      
  • 13 November 2020 —

    Tran v The Queen [2020] VSCA 284 — drug trafficking offences — nature and circumstances — guilty plea — rehabilitation

     

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    appeal against sentence — 1 count of dealing with money being $100,000 or more, reasonably suspected of being proceeds of crime contrary to s 400.9(1) of Commonwealth Criminal Code — 2 counts of dealing with money being less than $100,000 reasonably suspected of being proceeds of crime contrary to s 400.9(1A) of Commonwealth Criminal Code — 1 count of trafficking in trafficable quantity of controlled substance contrary to s 302.4(1) Commonwealth Criminal Code — 2 counts of possessing controlled drug contrary to s 308.1(1) Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment with offender to be released on recognisance release order after 2 years — antecedents — s 16A(2)(m) — offender has number of prior convictions including 3 for trafficking heroin in 1995, 1996 and 2001 — nature and circumstances — s 16A(2)(a) — sentencing judge described charges 1-3 as serious examples of serious offences — sentencing judge accepted there was no evidence offender received benefit from transaction amounting to charge 1 — offending occurred in context of loss of employment and of broken relationship which led offender to relapse into drug use — prior convictions suggest offender has long suffered from heroin addiction — sentence on charge 1 is not wholly outside of appropriate range although might be seen to be towards top of range — given offender’s prior convictions for trafficking heroin sentence on charge 4 was remarkably lenient — guilty plea — s 16A(2)(g) — offender pleaded guilty at earliest opportunity — offender was entitled to reduction in sentence — offender was remorseful for offending — prior to execution of search warrant offender requested to speak to police and assisted with search and provided access to some devices — rehabilitation — s 16A(2)(n) — although offender had remained drug free for 14 years relapse suggested that predictions about use of drugs must remain guarded — prospects of rehabilitation assessed as guarded — notwithstanding perceived difficulties with individual sentences and cumulation total effective sentence and recognisance release order properly reflected offender’s criminality — leave to appeal against sentence refused
  • 11 November 2020 —

    R v WE (No 19) [2020] NSWSC 1569 — terrorism offences — nature and circumstances — general deterrence — specific deterrence — contrition — age — rehabilitation — parity

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    sentence — preparing for or planning for terrorist act involving use of bladed weapon that was or were to be done with intention of advancing political, religious or ideological cause offence contrary to ss 101.6 and 11.2A of Commonwealth Criminal Code nature and circumstances — s 16A(2)(a) — offending was not spontaneous — whilst number of acts in which offender engaged took place on 12 October 2016 activities in days leading up to that cannot be ignored — activities included acquisition of two MTech knives and use of computer to access large quantity of extremist material — co-offenders discussed commission of terrorist attack in mosque bathroom — backpack in offender’s possession carried knives which were to be used in attack as well as handwritten note which directed that those who do not pledge allegiance to ISIS will not find themselves in paradise when they die — offender has been found guilty of preparatory acts — sentencing judge satisfied that terrorist attack was imminent — offender motivated by extremist, perverted and corrupt ideology — offender asserted that extremist material relied upon at trial constituted ‘Islamaphobic manipulation’ — effect of submission was that material was used in alarmist fashion not properly representative of its totality — these propositions are not accepted — evidence was adduced to establish that offender subscribed to violent ideology — presence of benign content on devices does not alter fact that offender accessed and stored large amount of extremist material — objective seriousness of offending falls around mid-range — general deterrence — s 16(A)(2)(ja) — in circumstances where protection of community, punishment of offender and denunciation and deterrence are dominant, subjective circumstances of offender will necessarily be given less weight — substantial sentences are warranted for offending even though force of ideological or religious motivation may mean that deterrence is unlikely to be effective — specific deterrence — s 16A(2)(j) — where offender has not resiled from entrenched extreme ideology significantly heavy sentence will be required to protect the community — contrition — s 16A(2)(f) — offender has not given sworn evidence and has not otherwise demonstrated any remorse or contrition for offending — age — s 16A(2)(m) — offender was 16 years old at time of offending — seriousness of offence is relevant to weight that can be given to youth of offender — does not mean that youth is not important but retribution and deterrence cannot in a case as serious as present give way entirely or even substantially to interests of rehabilitation — where immaturity is significant contributing factor to offence it may fairly be said that criminality involved is less than would be in case of adult of more mature years — offender was close to adulthood — greater weight may be given to retribution — no evidence which supports existence of causal connection between immaturity and offending — rehabilitation — s 16A(2)(n) — in passing sentence for most serious terrorist offences object will be to punish, deter and incapacitate such that rehabilitation is likely to play minor if any part — some evidence points positively towards offender’s prospects of rehabilitation — offender has obtained HSC and engaged in other rehabilitative courses — there have been occasions where offender’s behaviour in custody had posed threat to order and security of centre — offender embarked on hunger strike — even if rehabilitation courses were available sentencing judge could have no confidence that offender would engage in them — successful rehabilitation depends at least in part on offender renouncing any previously held extremist views — offender’s prospects of rehabilitation are poor — sentencing judge guarded about likelihood of reoffending — parity — positions of offender and HG essentially indistinguishable in terms of objective seriousness of offending — HG purchased knives but offender paid for them — HG made statements to police which may support conclusion that HG’s views are more extreme and criminality is greater — it is necessary to balance those against offender’s travel to El-Arish and accessing of extremist material — mere fact that HG accessed and held more extremist material of greater objective seriousness does not lead to conclusion that offender’s extremist beliefs were any less entrenched — findings as to respective prospects of rehabilitation, relevance of youth and need for deterrence are essentially same — offender sentenced to 16 years’ imprisonment with 12 year 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)

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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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