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Recent Cases, Commentary and Amendments

Recent Federal Cases View All

  • 18 December 2020 —

    R v Dakkak [2020] NSWSC 1806 — terrorism offences — nature and circumstances — rehabilitation — hardship to offender

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    The offender was sentenced following a plea of guilty to two counts of associating with terrorist organisations contrary to s 102.8(1) of the Commonwealth Criminal Code.

    Nature and Circumstances: This case falls below the putative mid-range of objective seriousness but is substantially more serious than cases that would fall at the bottom of the range. The offender’s association with members of the terrorist group were not fleeting and spanned many months from March 2018 to July 2019. There is clear evidence of offender’s radicalisation and this was a substantial part of their motivation to associate with people they knew to be members of a terrorist organisation. The terrorist organisation is notorious for engaging in barbaric and egregious abuses of human rights and offender expressed opinions that some of these tactics were justified. Each of the people who the offender associated with was a ‘member’ of IS rather than someone directing the activities of the organisation.

    Rehabilitation: It is difficult to assess the offender’s prospects of rehabilitation. The offender remains committed to strict form of Islam, however that is no crime and does not of itself suggest that offender will involve themselves in criminal activities in the future. Offender has strong support in the community. There is no evidence that offender has been de-radicalised. Offender has not been eligible to participation in the prison’s de-radicalisation programmes because he was not a sentenced prisoner. Given offender’s youth, prior good character and family support, sentencing judge found offender has some prospects of rehabilitation. In the absence of evidence of contrition and de-radicalisation, rehabilitation cannot be given much weight.

    Hardship to Offender: Gaol where offender has been in custody is largely used to house offenders charged with terrorism offences. The wisdom of placing young offender with no previous record on remand in such an institution is questionable but not something over which the Court has any control. Offender has already spent 18 months in gaol in very onerous conditions. Sentencing judge was satisfied that this was sufficient punishment.

    Offender sentenced to 18 months’ imprisonment with a 14 month non-parole period.
  • 17 December 2020 —

     Tham v R [2020] NSWCCA 338 — fraud offences — nature and circumstances

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    The offender was sentenced following a plea of guilty of 1 count of dishonestly obtaining an Australian travel document contrary to s 35 of the Australian Passports Act 2005 (Cth), 1 count of making a false or misleading statement in connection with an application for an Australian passport contrary to s 29 Australian Passports Act 2005 (Cth), 2 counts of obtaining financial advantage by deception, contrary to s 134.2(1) Commonwealth Criminal Code. The financial advantage offences relate to $41,887.74 and $61,985.48 respectively. The original sentence imposed 6 years and 9 months’ imprisonment with a 4 year non-parole period.  The offender appealed on the basis that the sentencing judge erred in considering the objective seriousness of the social security fraud offences.  

    Nature and Circumstances: The offender purported to satisfy eligibility criteria for benefits on the basis that they resided in Australia and were an Australian citizen. The offender’s presence in Australia had been unlawful on and from the time that they arrived in 1986. Offending reflected significant level of planning and sophistication. Offender’s status as an unlawful non-citizen was inextricably linked to the offending and plainly relevant to an assessment of objective seriousness. The financial advantage offences resulted in offender fraudulently obtaining a significant amount, namely $103,873.22, occurred over extended period, namely 6 years and 3 months, was premeditated and sophisticated and only ceased when the offender was arrested. Offending involved significant breach of trust. Those who claim social security benefits are often in such genuine and urgent need of assistance that there is no time to undertake an investigation of the veracity of information. The price of avoiding hardship to genuine claimants by granting them speedy relief is the risk of abuse by those who are not genuine. The Government relies upon and trusts the honesty of those who make applications for monetary benefits and the veracity of information provided.  

    The appeal was unsuccessful. Appeal to leave was granted and the appeal was dismissed.
  • 17 December 2020 —

     R v Gould [2020] NSWDC 831 — dishonesty offences — nature and circumstances — injury — general deterrence — character — rehabilitation — extra-curial punishment

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    The offender was sentenced following conviction at trial of 1 count of attempting to pervert the course of justice contrary to s 43(1) Crimes Act 1914 (Cth).  

    Nature and Circumstances: The offending is objectively very serious. The offending took over place over an extended period. Borgas was sent version of Q&A document and offender coached Borgas via Skype sessions. The offender instructed Borgas not only what to say, but on how to give evidence. A puppet was exactly what Borgas was to the offender. The offender had perfect insight into what they were asking Borgas to do. The offender sought to control the testimony of Borgas by a sustained period of coaching him to give evidence that suited the offender’s interests. The offending was extremely sophisticated. The offender’s motivation for engaging in this conduct was to avoid Taxpayers’ from paying a large tax liability to the ATO. The offender was the ultimate beneficial owner of the companies and personally stood to benefit from avoiding tax.  

    Injury, Loss or Damage: Given it was a failed attempt to pervert the course of justice, there is no demonstrable loss or damage resulting. Sentencing judge rejected the submission that the absence of any loss or damage mitigates the objective seriousness of the offending. The very nature of the offence means that justice was achieved, notwithstanding the dishonest attempts by the offender to deceive the Court so as to subvert the process. Offender should not benefit by the fact that their attempt failed.  

    General Deterrence: Offender’s attempt to pervert course of justice, if successful, would have affected the whole community because of the implications for the administration of justice and because of the avoidance of payment of tax.  

    Character and Antecedents: Offender is person without a criminal record, with a demonstrated habit of contributing profitably to the community. Offender is entitled a finding of prior good character and any leniency which may flow. Sentencing judge declined to find offender suffered personal vulnerabilities or that they were prone to poor decision making and poor boundaries professionally. The evidence establishes that the offender enjoyed great professional success.  

    Rehabilitation: Offender does not have insight into offending and denies it. While it is the offender’s right to maintain their innocence, the lack of insight into the offending is a matter which bears upon the prospects of rehabilitation. If offender ever accepts responsibility for offending, the prospects of rehabilitation may be considered good. The offender’s prospects of success or rehabilitation can only be assessed as guarded.  

    Extra-Curial Punishment: Media reporting would represent a form, albeit to a minimal degree, of extra-curial punishment. It is difficult to dissect the various proceedings to determine the extent to which they have caused the offender to suffer extra-curial punishment. Offender said that their employees continue to manage their business, and that upon release they will recommence work as a financial advisor.  

    Offender was sentenced to 3 years and 4 months’ imprisonment with a 1 year 8 month non-parole period.
  • 17 December 2020 —

    R v Arnould [2020] ACTSC 345 — child exploitation offences — nature and circumstances — contrition

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    The offender was convicted following a plea of guilty of one count of possessing or controlling child abuse material contrary to s 474.22A Commonwealth Criminal Code and one count of using a carriage service for child abuse material contrary to s 474.22 Commonwealth Criminal Code.

    Nature and Circumstances: No distribution or profit was made from the material. A good deal of material is Category 4 and the children are very young. Even if all images were in Category 1, offending would remain serious. Offences are categorised as about medium objective seriousness.

    Contrition: There is cogent evidence that offender has recognised their misdeeds and taken positive steps by seeking and continuing with treatment to address offending. This is not enough to keep the offender out of prison. Images and use for sexual gratification are such an overwhelming influence on sentencing process that sentencing judge was not prepared to divert from the course taken in other cases.

    Offender sentenced to 9 months’ imprisonment to be released on recognisance release order after 3 months.
  • 14 December 2020 —

    CDPP v Grant [2020] VCC 2066 — child exploitation offences — nature and circumstances — general deterrence

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    The offender was convicted following a plea of guilty to 1 charge of using a carriage service to solicit child pornography material, 2 charges of obtaining child pornography material outside Australia, 7 charges of obtaining child abuse material outside Australia, 1 charge of an aggravated offence, 1 charge of distributing child abuse material outside Australia and 1 charge of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to the Commonwealth Criminal Code. Two further instances of the same offending taken into account per s 16AB.

    Nature and Circumstances: The period of time, from May to December 2019, is an indication of seriousness. Offender used their time and location overseas to prey upon children and exploited their vulnerability, not only as children but as children in poverty or need of economic help. The power imbalance was very marked. Offender was an active participant in market for child pornography, a market which encourages production of such material, and therefore the exploitation and violation of the children. Offending is represented by 13 separate charges. There were 12 different child victims of the overseas offending. Offender paid the children and engaged them in sexual conversation.

    General Deterrence: The community has a real interest in knowing that those who exploit children in grave and harmful manner will be punished severely and that others may learn that such offending will attract a harsh sentence. The need to protect children overseas from Australian travellers is another sad but necessary aspect of general deterrence.

    Offender sentenced to 5 years’ imprisonment with a 3 year non-parole period.      

Recent Updates to Commentary View All

  • January 2021 —

    Remissions

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    updated to include the repeal of then s 19AG as well as the availability of remissions in some Australian jurisdictions
  • January 2021 —

    Program Probation Orders

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    updated to include a new section “Program Probation Orders and State or Territory Sentencing Provisions for Intellectually Disabled Offenders”, considering the cases of The Queen v Cone (a pseudonym) [2019] VCC 2241 and DPP (Cth) v Cameron [2020] VCC 1506
  • January 2021 —

    Mercy

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    updated to include the case of Attorney-General (Cth) v Ogawa [2020] FCAFC 180 and the language that ought to be used to describe the “royal prerogative”
  • October 2020 —

    Psychiatric Probation Orders

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    up to date commentary on when a psychiatric probation order may be made, what an order must specify, breach and enforcement of orders as well as the right to appeal
  • October 2020 —

    Mental Condition

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    updated to include new sections on delay and deterrence as well as the treatment of mental condition in regards to specific offence types, including terrorism and child exploitation offences

Recent Legislative Amendments View All

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    Amendments to Crimes Act 1914 (Cth)  

    Minimum penalties: The amending Act inserts a new s 16AAA which prescribes mandatory minimum penalties for the child sexual abuse offences contrary to the Criminal Code (Cth) ss 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.10, 272.11, 272.18, 272.19, 272.7, 471.22, 474.23A, 474.24A, 474.25A, 474.25A(1), 474.25A(2), 474.25B.  

    It also inserts s 16AAB, which prescribes minimum penalties for a second or subsequent child sexual abuse offence, and s 16AAC which provides for circumstances in which a court may impose a sentence of less than the prescribed mandatory minimum.  

    Guilty plea: The amending Act repeals and replaces s 16A(2)(g) to provide that a court is required to take into account the fact the offender pleaded guilty, the timing of the plea and the degree to which the guilty plea and timing of plea resulted in any benefit to the community, or any victim of, or witness to, the offence.  

    Character: The amending Act inserts a new s 16A(2)(ma) which provides that if a person’s standing in the community was used to aid in the commission of offence, the court is to take into account that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.  

    Rehabilitation: The amending Act inserts a new s 16A(2AAA) which states that in determining sentence for a Commonwealth child sex offence, the court must have regard to the objective of rehabilitating the person, including taking into account where appropriate whether to impose any conditions about rehabilitation or treatment options, or including sufficient time for the person to undertake a rehabilitation program in the length of sentence or non-parole period. The term “Commonwealth child sex offence” is defined in s 3.  

    Cumulative sentences: The amending act inserts a new s 19(5)–(7) which provides additional requirements for the commencement of sentences for Commonwealth child sex offences. The new provisions provide that an order for the commencement of a federal sentence must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is or has been imposed for another Commonwealth or State or Territory registrable child sex offence. Section 19(6) provides that this requirement does not apply where the court is satisfied the sentence would still be of a severity appropriate in all the circumstances and s 19(7) imposes a requirement for reasons.  

    Conditional release orders: The amending Act repeals and replaces 20(1)(b) to provide that a Court cannot release an offender convicted of a Commonwealth child sex offence immediately upon a recognizance release order unless there are exceptional circumstances.  

    The amending Act inserts a new s 20(1B) to require a court making a recognizance release order for a child sex offender to attach certain conditions to the order. The new sub-section states that if at least one of the offences is Commonwealth child sex offence, the court must specify the conditions that the person will, during the specified period, be subject to supervision of probation officer, obey all reasonable directions of probation officer, not travel interstate or overseas without written permission of probation officer and undertake such treatment or rehabilitation programs that the probation officer reasonably directs.  

    Release on parole or licence: The amending Act repeals and replaces s 19AQ to introduce a new regime for the calculation of “clean street time” where a parole order or licence order is revoked. The amending Act makes consequential amendments to ss 19AA, 19APB, 19AS and 19AT.  

    The amending Act repeals and replace ss 19AR(1)-(3) with new ss 19AR(1)-(3) which remove the option previously available to a court of setting a recognizance release order if a person had their parole or licence revoked under s 19AQ.  

    It also inserts a new s 19AR(4)(b) which provides that a court may decline to fix a non-parole period if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence.  

    Revocation of parole order: the amending Act inserts a new s 19AU(3)(ba) which provides that the Attorney-General can revoke a parole order or licence without giving notice required under s 19AU(2) in circumstances where in the opinion of the Attorney-General, it is necessary to revoke the parole order or licence without giving notice to the person to ensure the safety and protection of the community or of another person.  

    Release on parole or licence: The amending Act amends s 19AW(2) to provide that if a prescribed authority cannot complete a hearing under s 19AW(1) immediately and issue a warrant for detention, they must issue a warrant for the person to be remanded in custody pending completion of the hearing.  

     
    Amendments to Criminal Code (Cth)  

    Increased penalties: This legislation increases penalties for offences contrary to the following provisions of the Criminal Code (Cth): ss 272.8, 272.9, 272.10, 272.11, 272.15, 272.18, 272.19, 273.7, 471.22, 471.25, 471.26, 474.24A, 474.25A, 474.25B, 474.27, 474.27A.  

    Sentencing for certain child sexual abuse offences: The amending Act inserts new ss 272.30(1), 471.29A and 474.29AA which provide that when sentencing offenders for offences to which those sections apply, the court must take into account the age and maturity of the person in relation to whom the offence was committed, if that person was under 10, that fact as aggravating the seriousness of the criminal behaviour, and the number of people involved in the commission of the offence. The court need only take into account those matters so far as it is known to the court, and in relation to age, maturity and the number of people involved, so far as it is relevant.
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    Amendments to Crimes Act 1914 (Cth)

    Parole order for terrorism offenders: The Amending Act inserts s 19ALB which states that the Attorney-General must not make a parole order unless satisfied that there are exceptional circumstances justifying that order, in relation to: (a) terrorism offenders; (b) persons subject to a control order within the meaning of Part 5.3 of the Criminal Code (Cth); and (c) persons who the Attorney-General is satisfied have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.

    Section 19ALB(3) requires the Attorney-General to take into account the protection of the community and the best interests of the person when determining whether exceptional circumstances exist in respect of a person under 18 years of age.

    Non-parole periods for terrorist offenders: The Amending Act amends section 19AG by inserting a new s 19AG(4A)-(4B) to require a court, when sentencing a terrorist offender who is under the age of 18 years, to fix a non-parole period of three quarters of the head sentence as provided for in subsection 19AG(2) unless the court is satisfied that exceptional circumstances exist to justify a shorter non-parole period. In determining whether exceptional circumstances exist, the court must have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration.

  • 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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