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Recent Federal Cases


October 24, 2023 R v Corbett; DPP v Corbett [2023] VCC 1935 — child exploitation offences — sentence — nature and circumstances — guilty plea — antecedents

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 3 counts of engaging in sexual intercourse with a child under 16 years outside Australia contrary to s 272.8(1) of the Commonwealth Criminal Code. Additional child exploitation offences were taken into account under s 16BA of the Crimes Act 1914. Offender also sentenced for state child exploitation offences.

Nature and Circumstances: Count 1 concerns 2 incidents of sexual intercourse with an 11-year-old boy. Count 2 concerns an incident of sexual intercourse with a 12-year-old boy. Count 3 involves 2 occasions where offender engaged in sexual intercourse with a 9-year-old boy. Offender paid the victims for their sexual servitude. Offender used the children as objects to be bought and sold for a pittance; this is the most heinous aspect of their behaviour. Offender involved themselves with a procurer whom they paid. Offender did not subject any of the children to additional cruelty or physical harm, and aside from photographing one victim, did not record their abuse. Offending was objectively serious and offender’s moral culpability is high.

Guilty Plea: Offender pleaded guilty at a directions hearing and offered to plead guilty as early as May 2022. Offender is entitled to a significant discount by virtue of their plea. However, offender’s plea is not accompanied by any remorse on their part. Offender has offered no explanation of their offending and no material has been tendered containing any expressions of remorse.

Antecedents: Offender is now 61, but was aged 55 when they committed the offences. Offender has a criminal record with a relevant prior criminal conviction for gross indecency with a male person under 16 from 1995. Offender has a longstanding attraction to boys and have committed serious sexual offences spanning several decades.

Offender sentenced to 11 years imprisonment with a non-parole period of 8 years for Commonwealth offending.

November 13, 2023 Chaarani v The King [2023] VSCA 275 — terrorism offences — appeal against sentence — family and dependants — Totaan error — co-offender resentenced on appeal — parity

See full judgment: Austlii.

The offender was sentenced following conviction for  1 count of attempting to engage in a terrorist attack contrary to ss 11.1(1) and 101.1(1) of the Commonwealth Criminal Code and 1 count of jointly engaging in a terrorist act contrary to ss 11.2A(1) and 101.1(1) of the Commonwealth Criminal Code. Offender was subsequently sentenced following another conviction for 1 count of conspiring to do an act or acts in preparation for or planning a terrorist attack contrary to ss 11.5(1) and 101.6(1) of the Commonwealth Criminal Code. The total effective sentence imposed in respect of all offending was 38 years imprisonment with a non-parole period of 28 years and 6 months. The offender appealed against both sentences on the grounds that the sentencing judge failed to take into account family hardship (first sentence) and that the second sentence was manifestly excessive based on the sentencing judge’s failure to take into account family hardship and their reliance on the impugned first sentence when setting a commencement date for the sentence.

Parity: The Crown conceded that there was very little to distinguish the offender’s sentence from co-offender Mohammed who succeeded in appealing his sentence for similar offending. The effect of family hardship on the sentencing discretion is at best marginal. There being no significant difference between the circumstances of offender and those of Mohamed, the effect of family hardship on the ultimate sentencing disposition is ultimately wrapped up in the question of parity. There is very little to distinguish between offender and Mohamed in terms of the seriousness of their offending, their roles in the offending, prospects of rehabilitation, and the impact of their necessarily long incarceration on their families. The second sentence must be modified to reduce the period of cumulation on the first sentence from 16 years to 10 years.

Family and Dependants: As there is no reasonable prospect that a less severe sentence would be imposed in respect of the first sentence, the extension of time that has been sought to appeal against it will be refused.
Orders: Leave to appeal against the first sentence denied. Leave to appeal against the second sentence granted. Offender resentenced to a new global total effective sentence of 32 years imprisonment with a non-parole period of 24 years.

November 17, 2023 DPP v Torbert [2023] ACTSC 332 — breach of s 3LA order — sentence — guilty plea — nature and circumstances — mental condition — rehabilitation

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of failing to comply with a s 3LA order contrary to s 3LA(6) of the Crimes Act 1914. Offender also sentenced for territory property, drug, and violence offences.

Guilty Plea: Offender pleaded guilty on the first day the matter was listed for trial. This was a very late plea indeed, and the prosecution case was a strong one. Nonetheless, the plea did have a utilitarian benefit.

Nature and Circumstances: Offender’s decision to not comply with the order is unexplained by any evidence. Although police were able to gain access to offender’s mobile phone without offender’s help, that does not mean that the offence was not serious.

Mental Condition: Offender has been diagnosed with paranoid schizophrenia, an antisocial personality disorder, and ADHD. There is no evidence to sugges any causal connection between offender’s mental condition and their offending, so their moral culpability is not diminished by the conditions from which they suffer. On the other hand, offender’s time in custody will be harder than would otherwise have been the case.

Rehabilitation: Offender has a reasonably lengthy criminal history involving offences of violence for which they have been sentenced to imprisonment, and possession of weapons amongst other matters. It is notable however that their last offence of violence was committed in 2014, almost 10 years ago. Community corrections assess offender as having a medium risk of reoffending, their risk factors including substance use, unemployment, and mental health. It certainly could not be said that offender has good prospects of rehabilitation and is unlikely to offend again in the future.

Offender sentenced to 4 months imprisonment for the Commonwealth offence.

October 27, 2023 Masri v R [2023] NSWCCA 266 — tobacco importation offence — appeal against sentence — moral culpability — quantum of duty evaded — involvement of undercover operatives — no loss to revenue

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of possessing goods, being tobacco  products, with the knowledge that the goods were imported with intent to defraud the revenue contrary to s 233BABAD(2) of the Customs Act 1901 and 1 count of importing goods, being tobacco products, with intent to defraud the revenue contrary to s 233BABAD(1) of the Customs Act 1901. Offending related to 6,248 kilograms of molasses tobacco and 9.5 million cigarettes. Offender sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months. The offender appealed on the grounds that the sentencing judge erred in failing to conclude that offender’s moral culpability was reduced due to the involvement of the authorities in the importation process and that the sentencing judge erred in their consideration of the duty and GST evaded as a result of the offence.

Moral Culpability: During the period of offending, undercover operatives met with offender and co-offenders and participated in the acts and events constituting the offences. Australian authorities had carried out all the physical steps required to effect the importation. Offender submitted that the sentencing judge erred in finding that offender’s willingness to engage in the offence meant that their moral culpability was not reduced by the conduct of authorities. Given that tobacco importation is not itself prohibited, the core of the offence lay in the intent to defraud the revenue. That intent was held by offender, not the authorities. In all the circumstances it was open to the sentencing judge to not be satisfied that the conduct of the authorities had led offender to commit the importation. Ground 1 not upheld.

Quantum of Revenue Defrauded: The sentencing judge adopted the figures for unpaid duty and GST that had been provided in the prosecutor’s written submissions, rather than the figures in the Agreed Statement of Facts. The difference was not material to the gravity of offending in either count. It was not accurate to speak of offender as having ‘participated in the evasion’ of that component of the unpaid revenue that related to the molasses tobacco or to speak of that component having not been ‘repaid’. The evasion of the customs duty and GST on the molasses tobacco was effected by the person who imported the product, not offender. However, the quantum payable on the molasses tobacco and that which had not been repaid was a relevant measure of the magnitude and gravity of offender’s possession. Offender submitted that, as the cigarettes were under the authority of Australian authorities throughout, they were never destined to reach customers. By offender’s plea, offender was the importer and the owner. By arranging to obtain possession without having made an import declaration, offender sought to evade their obligation to pay the duty and GST at the point of entry for home consumption. However, the sentencing judge regarded the offending as aggravated by a consideration that it cost the Commonwealth a loss of revenue of $14,736,300. That was not an accurate construction. Leave is granted with respect to this ground. However, no lesser sentence is warranted.

Orders: Leave to appeal granted. Appeal dismissed.

October 26, 2023 R v Baraket [2023] NSWDC 455 — dishonesty offences — bankruptcy — sentence — nature and circumstances — mental condition — rehabilitation

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 8 counts of making false claims in proceedings with intent to defraud contrary to s 263(1)(d)(i) of the Bankruptcy Act 1966 (Cth).

Nature and Circumstances: Offender falsified payslips and made false representations to avoid paying their agreed contribution from their pay to their bankrupt estate. By falsely claiming the value of commissions, offender prevented the contribution of $91,158.42. Offender has repaid the required contribution. The offences involved some planning and were premeditated, but were not sophisticated and were easily detected.

Mental Condition: Offender has suffered from hypo-manic symptoms of an undiagnosed mental health impairment, leading to increased risk-taking behaviours and poor judgement, and has relied on cocaine use as a maladaptive coping strategy. There is a causal connection between offender’s risk aversion and poor judgment to their offences. In all the circumstances, their mental condition has reduced offender’s moral culpability to some extent.

Rehabilitation: Offender presents a low risk of reoffending. Offender has accepted responsibility for their actions, repaid the money and expressed remorse. THey are genuinely contrite. Offender has good prospects of rehabilitation. Offender has good insight into the contribution that their drug use has made to their poor choices, has ongoing employment and stable accommodation provided by a loving and supportive family. Offender requires treatment for both mental conditions and substance use to eliminate any risk of reoffending.

Offender sentenced to 2 years imprisonment to be served by way of an intensive corrections order.

October 20, 2023 CDPP v Radford [2023] VCC 1907 — carriage service offences — sentence — nature and circumstances — rehabilitation — antecedents — mental condition — minimum sentence

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to groom a person believed to be under 16 years of age contrary to s 474.27(1) of the Commonwealth Criminal Code, and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Offender also sentenced for a state sex offender reporting obligation offence.

Nature and Circumstances: The solicitation count is a relatively low level example of the offence as it was confined to a single day and 2 conversations. The transmission offence concerns the transmission of 4 image files and 22 video files. The images and videos exchanged are shocking. There is no suggestion that offender stood to profit. It is still lower level offending relative to much of what the courts see. The possession offence concerned 2,542 child abuse material files. While the quantum is far from the largest that comes before the Court, it is significant. 122 of the files were Category 1 and the remaining 2,420 were Category 2. The material in the files is abhorrent. This is assessed as low to mid-range. The grooming offence is a low to moderate example of the offence.

Rehabilitation: Offender has insight beyond the consequences of their actions to themselves and their loved ones; they speak of their time in custody together with their new medication as giving them ‘the capacity to finally think of children in a paternal way, as opposed to sexually’. Offender expresses a degree of contrition for their offending. Offender pleaded guilty at the first reasonable opportunity. Offender has provided considerable assistance to the authorities above and beyond their guilty plea. Although prospects of rehabilitation must make way for the overwhelming force of general deterrence, that is not to say that the steps taken towards rehabilitation should not be taken into account. Regard is had to the programs offender has completed during their time in custody, some of which include programs aimed at managing their mental health.

Antecedents: Offender was 23 years old at the time of offending and is now 25 years old. Offender has a relevant but not extensive criminal history. Offender was previously convicted and sentenced on 6 counts of indecent treatment of a child under 16 years. These matters make it necessary that specific deterrence assume significant weight in determining offender’s sentence.

Mental Condition: Psychologist diagnoses offender with borderline personality disorder, attention deficit hyperactivity disorder, generalised anxiety disorder, and alcohol use disorder. Psychologist opined that offender’s sexual abuse by their father would have significantly influenced the development of deviant sexual preferences and unstable mental health. Limbs 1, 3, and 5 of Verdins are enlivened. Offender’s moral blameworthiness is reduced, as is the need for general deterrence in sentencing them. THe impact of the prison environment is also taken into account.

Minimum Sentence: As offender has previously been convicted in respect of registrable child sex offences, the effect of Crimes Act 1914 s 16AAB is that the court must impose a minimum sentence of four years imprisonment in respect of the federal counts. In assessing any reduction to this minimum under s 16AAC, the approach taken is to assess all relevant considerations except the guilty plea and cooperation, then apply s 16AAC to determine if further reductions are needed to move below the prescribed minimum. Offender’s cooperation was meaningful.

Offender sentenced to 4 years and 9 months imprisonment with a non-parole period of 2 years and 5 months.

October 18, 2023 CDPP v Strepelias [2023] VCC 1898 — dishonesty offences — sentence — nature and circumstances — antecedents — mental condition — rehabilitation — totality

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 2 counts of dishonestly causing a loss to a Commonwealth entity contrary to s 135.1(5) of the Commonwealth Criminal Code.

Nature and Circumstances: Between May and July 2018, offender accessed the accounts of 50 NDIS participants to create false payment requests for services that offender’s company has purportedly provided to those participants. In reality, none of the participants has requested the services purportedly provided, and offender did not provide any services. The total amount of the fraud perpetrated on the NDIA by reason of offender’s conduct is $191,159.71. Offending affected vulnerable members of the community and represents serious offending.

Antecedents: Offender has a relevant criminal history stemming from frauds they helped perpetrate against the Queensland Government from 2016 to 2018. Offender pleaded guilty to 4 counts of fraud and was sentenced by the District Court of Queensland to a term of 5 years imprisonment to be suspended after serving 9 months.

Mental Condition: Offender has longstanding mental health issues and has sought professional help since 2012. Psychiatrist diagnosed offender with schizophreniform disorder and major depressive disorder. Psychiatrist is of the view that at the time of offending, offender’s mental state would have diminished their decision-making facilities and their anxiety would have made it harder to resist the pressure and influence others were exerting on them. Offender has a history of psychiatric admissions starting in 2016. The evidence does not support the application of Verdins principles 5 and 6 in this instance.

Rehabilitation: Offender’s plea of guilty was entered at the earliest reasonable opportunity without the need for a contested committal. Further, offender provided $94,030.98 as part restitution. Although offender has had sporadic issues with alcohol and drug use, they have been able to achieve a level of stability in recent years. Whilst in custody, offender took steps to retrain by earning a Major Training Certificate II in Resources and INfrastructure Work Preparation. Offender was assessed by QUeensland Correction Services as having a low risk of further general re-offending. In the circumstances, offender’s prospects of rehabilitation are very strong.

Totality: Offender served 9 months imprisonment in QUeensland. As this matter was unable to be dealt with while offender was serving that sentence, offender submitted that weight should be given to the fact that they were thereby deprived of any concurrency between the two sentenced. Further, the offences in QUeensland were of a similar nature and were committed closely in time to this matter. The principle of totality is relevant.

Offender sentenced to 2 years and 9 months imprisonment to be released immediately on recognizance of $5,000 to be of good behaviour for 3 years.

October 17, 2023 DPP v Beitner [2023] VCC 1893 — dishonesty offences — sentence — nature and circumstances — physical condition — mental condition — contrition

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 2 counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2 of the Commonwealth Criminal Code

Nature and Circumstances: Offender was a medical practitioner registered with Medicare. Offender submitted 212 false bulk billed claim batches for rebates to Medicare relating to the provision of 5,108 medical services to 330 individual patients between January 2011 and February 2016. In total, offender obtained $318,435.35 in Medicare benefits to which they were not entitled.

Physical Condition: Offender contracted type II diabetes 20 years ago. That illness is controlled with diet and medication; however offender has physically deteriorated such that they now walk with a slow, shuffling, stooped gait. Offender suffered a serious heart attack in 2018. Offender remains at risk of further such episodes because of their chronic health condition and a genetic predisposition. Offender also suffers from angina which is treated by daily glyceryl patches. In 2019 offender was diagnosed with aggressive high-grade bladder cancer and underwent resection and was treated with immunotherapy. The side effects of this treatment have been severe and resulted in offender being bedridden for many months. Offender also suffers from multi-joint pain which is acute in their shoulder. The level of pain has been debilitating. It is likely the result of rheumatoid arthritis. Offender’s physical health is critically compromised and would be unlikely to be effectively managed in custody.

Mental Condition: Offender was assessed by neurologists and a consultant forensic psychiatrist as suffering severe cognitive decline. It is consistent with the medical assessments that offender suffers from major neurocognitive disorder (dementia) due to Alzheimer’s disease and a major depressive episode of moderate severity. The second, fifth, and sixth principles in Verdins are engaged in the circumstances.

Contrition: Offender has made full reparation of the loss to the Commonwealth. Although not necessarily decisive, the fact of full reparation is a very significant mitigating feature. Offender’s plea of guilty demonstrated an acceptance of responsibility and a clear willingness to facilitate the course of justice. The utilitarian benefits of the plea were very substantial. Although the plea was not entered until early this year, the complexity of the matter, the impact of the pandemic, and the various ongoing negotiations which led to a reduction in the charges and the quantum alleged, justifies proceeding on the basis that the plea was entered as soon as it was reasonably practicable.

The offender was sentenced to 3 years imprisonment to be released immediately on recognizance of $3,000 to be of good behaviour for 18 months.

October 20, 2023 R v Chintagunta [2023] NSWDC 439 — proceeds of crime offences — sentence — nature and circumstances — rehabilitation

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 2 counts of dealing with money or other property valued at $10,000 or more that was, and was believed to be, proceeds of indictable crime contrary to s 400.6(1)(b)(i) of the Commonwealth Criminal Code. Commonwealth proceeds of crime offence taken into account pursuant to s 16BA of the Crimes Act 1914.

Nature and Circumstances: Offender was at a lower level in the hierarchy of the criminal organisation perpetrating a telecommunications scam in which victims were persuaded to provide personal details, bankcards, identification and PIN numbers which were then collected by the offender. Offender’s role in facilitating the laundering of the money was integral to the operation. The amount of money involved was more than three times the threshold amount of $10,000 for the offence pursuant to s 400.6(1). Crime was carried out for financial gain. Financial gain to the offender was minimal in light of the overarching criminal operation. Offending was objectively serious, falling just below the mid-range for an offence pursuant to s 400.6(1)(b)(i).

Rehabilitation: Offender has shown contrition both in statements to a psychologist and in a letter of apology to the court. Offender pleaded guilty at the earliest opportunity and has demonstrated remorse for their offending conduct. Offender is at a low risk of recidivism and has good prospects of rehabilitation. 

Offender sentenced to 18 months of imprisonment to be released immediately on recognizance of $500.

October 17, 2023 DPP v Gale [2023] ACTSC 297 — carriage service offence — sentence — nature and circumstances — antecedents

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of using a carriage service to menace, contrary to s 474.17 of the Commonwealth Criminal Code. Offender also sentenced for state stalking and assault offences.

Nature and Circumstances: Offending occurred whilst offender was on conditional liberty as a result of a grant of bail following their arrest relating to an aggravated choking offence. Offending involved an inferred threat of violence against the victim. That threat arose out of a dispute about the recovery of offender’s property from the victim. It is below the mid-range of objective seriousness for such an offence.

Antecedents: Offender’s past involves a history in which there were no good male role models. Instead, offender’s father provided a role model involving violence against women and unlawful conduct. Offender’s parents both abused alcohol. Offender’s mother abused marijuana. Their father abused a range of other drugs. Offender was introduced to drugs as a child. The offender diagnosed with Post-Traumatic Stress Disorder and substance misuse disorder. The denial of positive role models and the presence of dysfunctional role models will have undoubtedly affected the offender and reduce, to some extent, their moral culpability. Those aspects of offender’s upbringing may also increase the need for specific deterrence and the need for protection of the community.

Offender sentenced to 56 months of imprisonment with a non-parole period of 28 months.

October 17, 2023 DPP (Cth) v Beitner [2023] VCC 1893 — fraud offences — sentence — nature and circumstances — physical and mental condition

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 2 counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity by submitting false claims to Medicare Australia for medical services which were not provided.

Nature and Circumstances: Offending related to 212 false bulk billed claim batches for rebates to Medicare. The claims related to the provision of 5,108 medical services to 330 individual patients between 31 January 2011 and 28 February 2016. In total offender obtained $318,435.35 in Medicare benefits to which they were not entitled. This is serious offending. The amount of the fraud, however, has been fully recovered. 

Physical and Mental Condition: Offender is 78 and a half years of age. Offender was diagnosed with type II diabetes 20 years ago. The condition is controlled with diet and medications however offender has, over these years, physically deteriorated. Offender suffered a serious heart attack in May 2018 for which they were hospitalised. In 2019 offender was diagnosed with aggressive high-grade bladder cancer and underwent resection surgery and treated with immunotherapy. Offender’s physical health is critically compromised and would be unlikely to be effectively managed in custody. Offender is diagnosed with dementia and major depressive disorder. The second, fifth and sixth principles in Verdins are engaged.

Offender sentenced to 3 years of imprisonment to be released immediately on recognizance of $3,000.

October 13, 2023 DPP v Ryan [2023] VCC 1871 — fraud offences — sentence — nature and circumstances — hardship

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 2 counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity.

Nature and Circumstances: Count 1 involved the claiming of false Medicare benefits totalling $81,228.20. In addition, count 2 involved offender making a further 13 false claims relating to 49 professional services and 16 bulk bill incentive payments in the total sum of $2,370.80. Those claims were not paid by Medicare. None of the money that was obtained as a result of the activity the subject of Charge 1 has been repaid. Offending involved a very considerable degree of planning, a very considerable degree of analysis and care to obtain and mis-use records of medical practitioners and of a very large number of patients who were entitled to their privacy. Offender exploited their position of trust in an extraordinary and sustained way for a little over a year.

Hardship: Offender meets the diagnoses of complex post-traumatic stress disorder and persistent depressive disorder. Those conditions are likely to make offender’s period of incarceration more onerous than for a person who did not have those conditions. There is a real risk that offender’s mental health will deteriorate further during their period of incarceration. Offender has an ovarian cyst. The fact that offender will have to go through surgery in less than ideal circumstances whilst in custody and that pain management may not be as well regulated as offender would ordinarily receive in the community. All of that goes to increase the burden on offender of the term of imprisonment.

Offender sentenced to 31 months of imprisonment to be released on recognisance of $2,500 after 12 months.

October 13, 2023 R v Cui [2023] NSWDC 422 — carriage service offences — sentence — nature and circumstances — contrition — mental condition

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to groom a person under 16 years for sexual activity contrary to s 474.27(1) of the Commonwealth Criminal Code, and 1 count of using carriage service to transmit indecent material to person under 16 years contrary to s 474.27A(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender engaged in two separate online conversations with people who he believed to be under the age of 16. The fact that the “victim” in the matter was not a real child does not make the offence any less morally reprehensible nor does it amount to a mitigating factor. Offender’s motivation in engaging in the offending conversation, and their disregard for the age of the victim was that they were but manifestations of fantasies that were never intended to be acted upon. Offending falls towards the lower end of the range of objective seriousness and offender’s moral culpability is not high.

Contrition: There is evidence of both contrition and a level of cooperation with law enforcement authorities in the form of offender’s guilty plea, admission to police upon arrest, provision of passwords to devices and admissions made during the course of a recorded interview. Offender’s endeavours to get medical help to treat their underlying mental health conditions is objective proof of real remorse, contrition and insight. Offender’s prospects of full rehabilitation are high and the corresponding prospect of them reoffending is low.

Mental Condition: At the time of the offending, offender suffered from a major depressive illness. There is a connection between the offender’s mental health condition at the time of the offending. Offending was some form of attempt, (albeit subconsciously) to self-medicate for offender’s mental condition. To put it simply the offending would not have occurred but for the offender’s mental health. Sentencing judge therefore satisfied that there were ‘exceptional circumstances’ that rebut the presumption of imprisonment for a Commonwealth child sex offence.

Offender sentenced to 1 year imprisonment to be released immediately on recognizance of $1.00.

October 13, 2023 Elmir v The King [2023] NSWCCA 260 — drug importation offence — appeal against sentence — parity

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. Offending related to 737.55 kilograms of pure MDMA, 107.64 kilograms of pure cocaine, and 12.04 kilograms of pure methamphetamine. Original sentence imposed 24 years imprisonment with a non-parole period of 14 years. Offender appealed on the ground that they have a justifiable sense of grievance arising from the disparity between the sentence imposed on them and that imposed upon co-offender.

Parity: Co-offender’s sentence was reduced from 30 years of imprisonment to 25 years of imprisonment on appeal. The Crown submits that a reduction to co-offender’s sentence, including the reduction of 3 years to the indicative sentence with respect to the common offence, would not, if left to stand, engender a justifiable sense of grievance in offender. The submission should be rejected. It is difficult to see how, after a proper consideration of parity at first instance, the differentiation resulting from the sentence imposed on co-offender on appeal could be explained to offender without them harbouring a sense of unfairness. 

Leave to appeal granted. Appeal allowed. Offender resentenced to 20 years of imprisonment with a non-parole period of 12 years.

October 6, 2023 Nguyen v R [2023] NSWCCA 240 — proceeds of crime offence — appeal against sentence — nature and circumstances — parity — rectification of error under s 191AHA

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of recklessly dealing in proceeds of crime contrary to s 400.3(2A)(d) of the Commonwealth Criminal Code. Original sentence imposed 2 years and 6 months of imprisonment, with offender to be released on recognizance after 1 year and 3 months. Offender appealed on the grounds that the sentencing judge erred in assessing the objective gravity of the offence, that offender has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Giang, and that the sentencing judge erred in varying the sentence imposed upon offender pursuant to s 19AHA of the Crimes Act 1914.

Nature and Circumstances: Offender submitted that the sentencing judge erred in concluding that the offending “was not something just done to assist someone at the last minute” by erroneously relying upon the applicant’s attendance at the George Street premises on occasions prior to the date of the offence. It was entirely within the role of the sentencing judge to draw inferences from the facts, subject only to the requirement to be satisfied of matters adverse to offender beyond reasonable doubt, and matters in their favour on the balance of probabilities. Sentencing judge did not err in the conclusion they reached that the offending was not something done to assist someone at the last minute. Ground 1 rejected.

Parity: In circumstances where the same judge sentenced both offenders, where the judge gave express consideration to the issue of parity, where the sentence for the co-offender was very lenient but the sentencing judge provided some reasons for that leniency, offender does not have a justifiable sense of grievance. The difference between the two sentences cannot be described as gross, marked, or glaring. The statement by the sentencing judge that parity was limited was nothing other than a statement of the obvious in the circumstances. Their Honour was not saying that they would not give appropriate consideration to the issue of parity, only that the differences between the co-offenders meant that the sentence given to one offender was not likely to bear much relationship to the sentence given to the other offender. Ground 2 rejected.

Rectification of Error Under s 19AHA: Offender spent 13 days in custody before being released to bail. Sentencing judge only credited offender for 3 days of pre-sentence custody in original sentence. Both parties consented for this error to be corrected. They sent a letter to the sentencing judge requesting for this to be done, also directing that offender be released after 1 year and 3 months on recognisance “to be of good behaviour for a period of three years”. Reference to the 3 year good behaviour period was an error. The sentencing judge varied the sentencing order they had made in accordance with the letter. Neither party picked up the error in relation to the 3 year period. The applicant submitted that what the sentencing judge did on 15 February 2023 was to increase the severity of the sentence in reliance on s 19AHA of the Crimes Act. That is not what occurred. The sentencing judge was correcting, pursuant to s 19AHA(3), the error they had made in relation to pre-sentence custody by varying the commencement date for the sentence. What then occurred was a further error by the sentencing judge (without fault on their part) in providing for a recognizance release order for 3 years. The error made by the sentencing judge is amenable to correction under s 19AHA(3). The Court of Criminal Appeal does not have power under that section to correct an error made by another court. Ground rejected.

Leave to appeal granted. Appeal dismissed.

October 6, 2023 R v Hoch (No 2) [2023] QCA 200 — dishonesty offences — aviation offences — appeal against sentence — acquittal on one ground — manifest excess

See full judgment: Austlii.

The offender was sentenced following conviction for 4 counts of flying aircraft as pilot in command without a licence contrary to s 20AB of the Civil Aviation Act 1988 (Cth) and 5 counts of operating an aircraft in contravention of s 27 of the Civil Aviation Act contrary to s 29 of the Civil Aviation Act. Offender also sentenced for 3 state dishonesty offences. Offender originally sentenced for 1 count of general dishonesty contrary to s 135.1 of the Commonwealth Criminal Code but the offender successfully appealed against conviction on this ground. Original sentence (excluding the offence the subject of the conviction appeal) was 3 years and 6 months imprisonment. Following the successful appeal against the Commonwealth dishonesty offence, the offender appealed against the remaining sentence on the ground that the sentencing judge would have set an earlier release date for the state dishonesty offences, and so commensurate changes should be made to the commencement date and good behaviour periods for the Commonwealth aviation offences.

Commencement and Recognizance Release: Offender’s primary submission was that the sentencing judge would not have taken the course of suspending the sentence on the state offences at later than the halfway point of the base sentence but for the need to impose an appropriate punishment for count 2. That means that, with the quashing of the conviction on count 2, the reason for fixing that date no longer applies and the date for commencement of the Commonwealth aviation offences should be earlier. Offender also sought to substitute 3 years for 4 in the recognizance release order as the period for which the applicant must be of good behaviour, on the basis that would better reflect the relationship between the period and the longest Commonwealth sentences. The point at which offender is released from custody must reflect the fact that the overall notional sentence for all the offending must be less without the quashed count which was, in fact, the most serious of the fraud offences with which offender was charged. The period during which the recognizance release order operates should relate to the length of the sentences imposed for the aviation offences. That period should be reduced.

Orders: Leave to appeal granted. Appeal allowed. Sentenced varied such that the sentences for the state fraud offences is suspended after the offender has served a period of 18 months imprisonment. The commencement date for each of the sentences imposed on the Commonwealth aviation counts is adjusted. The recognizance release order good behaviour period is shortened from 4 years to 3 years.

October 6, 2023 R v Elwdah [2023] NSWDC 416 — carriage service offence — sentence — nature and circumstances — rehabilitation

See full judgment: Austlii.

Offender was sentenced following a plea of guilty to 1 count of using a carriage service to transmit a communication to a recipient, with the intention of making it easier to procure a child believed to be under 16 years of age to engage in sexual activity contrary to s 474.27AA(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender participated in five online conversations with a person whom they believed to be a 40 year old woman who had a 9 year old daughter. In terms of its objective seriousness for an offence of its kind, the offence is slightly below a mid-range offence. A significant aggravating factor is that the intended victim of the offending was under 10 years of age.

Rehabilitation: Offender denied having a sexual interest in persons under the age of 18 years. Sentencing judge satisfied, beyond reasonable doubt that offender has a sexual interest in pre-pubescent female children. Offender does not display genuine remorse, not least because they have not fully accepted the criminality of their conduct. Offender’s prospects of rehabilitation are guarded.

Offender sentenced to 3 years of imprisonment to be released after 12 months on recognizance of $500.

October 6, 2023 Dib v The King [2023] NSWCCA 243 — drug importation offence — appeal against sentence — commencement — pre-sentence custody not referable to offence — parity — manifest excess

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. Original sentence imposed 18 years and 2 months imprisonment with a non-parole period of 12 years. Offender appealed on the grounds that the sentencing judge failed to credit pre-sentence custody, that the sentencing judge erred in assessing parity, and that the sentence was manifestly excessive.

Commencement of Sentence: Ground concerns the period which offender spent in custody following conviction for offences for which they were subsequently acquitted. The sentencing judge calculated the total period of custody not referable to any conviction to be ‘in the order of 5 ½ years’. In NSW, offenders will not be given quantified reductions in sentence to take account of periods in custody other than those referable to the offence for which sentence is to be imposed. On one reading, Crimes Act 1914 s 16E(1) might pick up a law of a state or territory that required or permitted a court to recognise time wrongly served in custody by the offender in relation to unrelated offending. However, there is in NSW no such statute. If offender had established that a ‘practice’ existed in Victoria, or other states and territories, of the kind for which they contend, the Court would be confronted with the choice of conflicting practices to follow and apply. A relevant practice has not been established. Ground rejected.

Parity: At sentence, the indicative starting point for co-offender if sentenced separately for the conspiracy offence was imprisonment for 28 years. After resentence, the starting point was 24 years. The result is that, notwithstanding that the sentencing judge found offender was less culpable, the head sentence to which offender is subject is 2 months longer. Both offenders were personally invested in the importation, performed crucial physical acts, and were entrusted to make decisions. Ibrahim undertook less ‘hands on’ tasks than offender but played a slightly more serious role. Ibrahim occupied a slightly higher position in the organisation. Given that no issue has been taken with the relativity assessed by the sentencing judge between the culpability of Ibrahim and that of offender, it seems reasonable that offender is left with a justifiable sense of grievance. Ground upheld.

Manifest Excess: For an offence of conspiracy to import a commercial quantity of MDMA, a maximum sentence of life imprisonment is prescribed. A commercial quantity of MDMA is constituted by half a kilogram. The quantity of pure MDMA the subject of offence is 594.43 kilograms — almost 1,200 times the quantity necessary to expose them to a sentence of life imprisonment. One relevant consideration in this case is that offender has previously served a term of imprisonment for drug offences. The broadly comparable cases provided by the Crown to the sentencing judge do not indicate that a starting point of 26 years was manifestly excessive. Ground rejected.

Leave to appeal allowed. Appeal on ground 2 allowed. Offender resentenced to 15 years and 7 months imprisonment with a non-parole period of 10 years and 4 months.

September 22, 2023 R v Tertsis [2023] NSWDC 442 — tobacco importation offence — sentence — nature and circumstances — contrition

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of importing tobacco with intention of defrauding the revenue contrary to s 233BABAD(1) of the Customs Act 1901 (Cth). Offending related to 16 million cigarettes with a customs duty of $17,904,800.

Nature and Circumstances: Offender was not an architect or instigator or significant beneficiary of the plan. Offender was subject to the direction of others who had a more senior role than them. However, offender played an important and trusted facilitating role. Offender had clear knowledge, well before the first shipment and throughout the process of the second shipment, that the true intention was to import tobacco products with the intention of defrauding the revenue. While offender may not have known the exact quantity of cigarettes or the exact amount of duty avoided, they knew that there was a very large quantity and that the duty sought to be avoided would also be very large. There was a degree of sophistication to offending by reason of the use of companies, multiple bank accounts and false documents. It cannot be said that the offending was only part of a small-scale or short term operation. Offending falls comfortably within the mid-range of objective seriousness.

Contrition: Although offender has pleaded guilty to the offence, there appears to have been a fairly strong case against them, and so their plea of guilty is not much more than an acceptance of the inevitable. The Sentencing Assessment Report notes that offender expressed some insight into the harm that unvetted tobacco might have involved, if it had gone into the community. However, offender also tried to minimise their role and knowledge when speaking to the author of the Sentencing Assessment Report, claiming ignorance of what was in the container. On the other hand, offender is supported by a letter from the Chaplain at Bathurst Correctional Centre, which says they wish to amend their life and not return to prison. On balance, there is some, although limited, contrition.

Offender sentenced to 3 years and 3 months of imprisonment with a non-parole period of 18 months.

September 21, 2023 CDPP v O’Connell [2023] VCC 1741 — child exploitation offences — carriage service offences — sentence — nature and circumstances — hardship — rehabilitation

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to procure a person believed to be under the age of 16 years contrary to s 474.26(1) of the Commonwealth Criminal Code and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender used chat applications to transmit conversations to a person whom offender was led to believe was a 14-year-old girl. In fact they were an undercover police officer. Offender transmitted those communications with the intention of procuring the person to engage in sexual relations with them. Offender possessed 4 images of child abuse material. 1 image was Category 1 and 3 images were Category 2. Offender’s moral culpability for both counts is considerable. Offender did not know that they were communicating with an undercover police officer. That there were no explicit images transmitted during those conversations, or a specific time and date for the meeting, and it was limited to 1 day, places count 1 at the lower level of offending of this kind. The possession offence was at the low end for offending for that offence.

Hardship: As a result of being charged, offender’s children were taken away from them. An intervention order was imposed limiting offender’s contract with them to a phone call once per fortnight initially, and now nothing. Offender was sacked from their employment which they had been engaged in for some 5 to 5 and a half years. Offender was out of the family home.

Rehabilitation: Since offender’s arrest, they have engaged in psychological treatment involving cognitive behavioural therapy and reflection on the reasons for offending and the effect of offending. Offender has also enrolled in a business studies course to assist offender in gaining skills to run their own business and re-engage with employment. These matters, combined with strong support from offender’s mother, step-father and three brothers leads to an assessment that offender’s prospects of rehabilitation are very good. Offender has activated and driven the rehabilitation process since their arrest under the cloud of the prospect of incarceration. Offender is generally remorseful for their offending. Offender has been specifically deterred by these proceedings.
Orders: Offender sentenced to 6 months imprisonment to be released immediately on recognizance of $1,000 to be of good behaviour for 2 years.

September 15, 2023 AH v The King [2023] NSWCCA 230 — terrorist offence — appeal against sentence — nature and circumstances — antecedents

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of doing an act in preparation for, or planning, a terrorist act contrary to ss 101.6(1) and 11.5(1) of the Commonwealth Criminal Code. Original sentence imposed 12 years of imprisonment with a non-parole period of 9 years. Offender appealed on the grounds that the sentencing judge erred in the assessment of the objective seriousness of the offence, failed to make findings in relation to the applicant’s subjective case, erred in applying ‘principles applicable to sentencing for terrorism offences’ in an undiscerning way, and that the sentence was manifestly excessive. 

Nature and Circumstances: Although it would have been open to their Honour to have assessed the objective seriousness as being towards the low end of the range, no error is disclosed in the fact that they did not. The sentencing judge’s finding was an intrinsically discretionary one and no error has been established in their Honour’s decision in that regard.

Antecedents: There was a mass of evidence on the subjective aspects of the offending. Despite this, offender’s subjective case was summarised in only a few paragraphs at the conclusion of the reasons. The sentencing judge failed to have explicit regard to mandatory considerations of offender’s prior good character and whether their moral culpability was reduced by their youth and mental illness. It cannot be concluded that consideration of those matters may be implied. That conclusion is strengthened by the sentence in fact imposed.

Leave to appeal granted. Appeal allowed. Offender resentenced to 7 years and 6 months of imprisonment with a non-parole period of 5 years, 7 months and 15 days.

September 15, 2023 CDPP v Cheng [2023] VCC 1715 — drug possession offence — sentence — nature and circumstances — family and dependants 

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of unlawfully imported border controlled drug, contrary to the Commonwealth Criminal Code. Offending related to 326.7 kilograms of pure heroin.

Nature and Circumstances: Offence is an objectively serious one as indicated by the maximum penalty of life imprisonment. An offence of attempted possession is not in a less serious category than an offence of importation. Offender was aware that the substance was heroin of a substantial amount exceeding the commercial quantity. There is no evidence that offender had knowledge of precisely how much was involved, or of the purity levels or exact street values of the drugs. Offender was not the organiser or financer of this enterprise, their role was a relatively limited one and they did not appear to have acted independently or autonomously. Offender’s criminal involvement in this offending was confined to two days and constitutes a discreet aspect of the overall attempted importation. Offender engaged in conduct for profit. 

Family and Dependants: Offender’s sentence will have probable hardship on their young family in Malaysia. Offender’s family home has now been sold. Their daughter was also forced to stop school. Offender’s wife is under considerable strain, working and trying to look after their young children, and it is likely that she will have to return to the Philippines to get some extra help. In her letter to the court, offender’s wife describes how significantly life has changed for her and their children.

Offender sentenced to 12 years of imprisonment with a non-parole period of 8 years.

September 13, 2023 Director of Public Prosecutions (Cth) v Udemba [2023] VCC 1675 — drug importation offences — sentence — nature and circumstances — rehabilitation — hardship to offender

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of attempting to possess a marketable quantity of a border controlled rug contrary to ss 11.1(1) and 307.6(1) of the Commonwealth Criminal Code and 1 count of possessing a marketable quantity of a border controlled drug reasonably suspected of having been imported contrary to s 307.9(1) of the Commonwealth Criminal Code. Offending related to 205–280 grams of pure heroin in relation to count 1 and 249 grams of pure heroin in relation to count 2.

Nature and Circumstances: The amount of heroin involved in each count was significant. In each count, the amount is over 100 times the marketable quantity threshold of 2 grams and is over one-eighth of a commercial quantity, which is 1.5 kilograms. Offender’s role in count 1 involved subterfuge, using false addresses, false names, and different telephone numbers. In conjunction with co-offender, offender made multiple attempts to inquire about and/or collect the consignment. Offender was not the top person in any hierarchy of drug importation, they were clearly in the chain and facilitated the entry of the drugs into Australia. Offender knew that the consignment consisted of illegal illicit drugs, though not necessarily that the drugs were heroin. The offending in relation to count 2 is less serious than count 1. The offending constituted by both counts is objectively serious and offender played an active role in each.

Rehabilitation: Offender entered a plea of guilty at the earliest reasonable opportunity. Offender has shown some remorse, perhaps not strongly directed to having remorse for the consequences of an illicit drug such as heroin being distributed in the community. Offender has no prior criminal history in Australia or Nigeria. Offender’s prospects of rehabilitation are reasonable, given that they will be sentenced to a stern period of imprisonment from which they will hopefully learn not to be involved with drugs again.

Hardship to Offender: In the two years offender has been on remand, offender would have experienced frequent lockdowns, limited access to visitors and many of the programs which would normally run in prison having been suspended or cancelled. Offender faces the prospect of being deported which renders their imprisonment more onerous and constitutes an additional punishment. Offender has experienced a delay which has been unduly long which has caused the matter to hang over offender’s head.

Orders: Offender sentenced to 8 years imprisonment with a non-parole period of 5 years and 4 months.

September 7, 2023 R v Eckl [2023] QSC 178 — nature and circumstances — family hardship — hardship to offender — rehabilitation

See full judgment: Austlii.

The offender was sentenced following conviction for 2 counts of dealing with money or property that was and was believed to be proceeds of crime in excess of $100,000 contrary to s 400.4(1) of the Commonwealth Criminal Code, 1 count of dealing with money or property that was and was believed to be proceeds of crime in excess of $1 million contrary to s 400.3(1) of the Commonwealth Criminal Code, 1 count of dealing with money that was and was believed to be proceeds of crime in excess of $1,000 contrary to s 400.7(1) of the Commonwealth Criminal Code, and 1 count of dealing with money or property that was and was believed to be proceeds of crime in excess of $50,000 contrary to s 400.5(1) of the Commonwealth Criminal Code.

Nature and Circumstances: In each count, complainants received emails falsely claiming to be persons to whom the complainant was to send money, and each email provided false bank account details to redirect deposits. Offender received the 5 sums of money acquired by the actions of scammers and, in respect of 2 sums, distributed that money in accordance with directions from the scammers. There is no satisfactory evidence that offender benefitted from the various transactions with the exception of t $1,300 to pay for a dentist. Offender was not one of the scammers. It was not offender’s criminal enterprise. Offender’s role was to follow the instructions of others, including providing the facility bank accounts. Offender’s personal traits include a willingness to assist others and they held a blind and almost certainly irrational belief that the scammers would honour their promise to help to recover the money offender lost when they fell victim to a scam in 2010. The sums here were very significant and offender’s role facilitated serious and organised criminal activity.

Family Hardship: Offender provides financial and other care and support for their family and has done so for a lengthy period of time. Despite the decisions in Totaan v The Queen and R v Constant, the Court is bound to follow the QCA decision in R v Huston; Fox & Henke; ex parte CDPP: to be considered, the circumstances of hardship for offender must rise to the level of ‘exceptional’. The circumstances here meet that threshold. There is a significant dependance on offender by the 3 members of their immediate family.

Hardship to Offender: There is substantial evidence that offender will face hardship if deported. Offender is 68 years of age, has a shoulder injury as well as anxiety, depression and acute stress. Offender’s physical and psychiatric conditions would make time in custody or immigration detention difficult. Psychologist report provides that is a custodial sentence is imposed, offender will require regular mental health supervision, which is unlikely to be available in immigration detention, which would hinder their prospects of rehabilitation. Offender has spent their whole adult life in Australia and, if deported, would not be afforded the ability to spend their remaining years in Australia with their family.

Rehabilitation: Offender was warned by police not to launder money in 2020, prior to committing counts 4 and 5. The timing of these warnings was such that they should have been deterred from committing the latter counts. However, these warnings do not suggest that offender is at a high risk of re-offending or that they have poor prospects of rehabilitation. The pre-sentencing report suggests that offender is at a low risk of reoffending. Offender would benefit from structures therapy and being able to continue with pro-social aspects of their life. The community would be better protected if offender were afforded the opportunity to engage in rehabilitation and there is little utility in stinting their chances of rehabilitation by placing them in custody where their mental health will only deteriorate.

Orders: Offender sentenced to 3 years imprisonment to be released immediately upon recognizance of $1,000 to be of good behaviour for 5 years.

September 5, 2023 CDPP v Lamb [2023] VCC 1585 — nature and circumstances — rehabilitation

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to access, transmit, and cause to be transmitted child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.

Nature and Circumstances: The offending conduct consisted of only 2 files and 7 instances of chat over only a few days. There is no suggestion that offender possessed the material for sale or further distribution beyond sharing 1 image with 1 other chat participant. There was no demonstrable planning, organisation, or sophistication in your offending. There were 2 actual children depicted in the images, although only the video disclosed conduct of an overtly sexual nature. Offending falls somewhat lower than moderate objective seriousness.

Rehabilitation: Offender’s engagement in relevant counselling and treatment for over 2 years has been intensive and prolonged. Offender’s commitment to that task is to be commended. Offender’s prospects of rehabilitation are good. Offender has no criminal history and otherwise enjoys a good character in the community.

Mental Condition: Offender’s relevant experiences in childhood are mitigatory and serve to moderate their moral culpability to an extent. Any time in custody will be more onerous to offender due to their related post-traumatic stress disorder. Offender’s moral culpability is reduced due to their post-traumatic stress disorder. It is appropriate to apply a proportionate reduction in weight to general deterrence and specific deterrence accordingly.

Offender sentenced to 12 months imprisonment to be released immediately on recognizance of $2,000 to be of good behaviour for 18 months.

September 5, 2023 Marai v The King [2023] NSWCCA 224 — carriage service offence — appeal against sentence — commencement of sentence — pre-sentence custody — failure to state reasons — whether period in detention referable to offence

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of using a carriage service to procure a person under 16 years for sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code. Original sentence imposed 3 years imprisonment to be released after 1 year and 8 months on recognizance. The offender appealed on the ground that the sentencing judge failed to take into account the offender’s time in pre-sentence immigration detention.

Commencement of Sentence: Offender was previously serving an ICO for a state offence until taken into custody for the Commonwealth offence, at which time the ICO was revoked and offender was taken into custody. Offender’s visa was cancelled due to the state criminal conviction. Offender entered immigration detention on 9 March 2022. On 4 June 2022, the Department of Home Affairs issued a Criminal Justice Stay Certificate at the request of the CDPP made in February 2022 to prevent offender’s removal or deportation.

Failure to Consider: The reasons for sentence noted counsel’s request to backdate the sentence commencement, but in a transcript of proceedings after the Remarks on Sentence were delivered, the sentencing judge stated ‘I make it clear I have not regarded the immigration detention as referable to the sentencing process’. In failing to provide reasons for not taking into account the period offender had spent in immigration detention when that matter had been raised in the proceedings, the sentencing judge erred in the exercise of their sentencing discretion. Further, the sentencing judge not providing reasons and only announcing their decision that the immigration detention was ‘not referable to the sentencing process’ after delivering their sentencing remarks strongly suggests that the sentencing judge erred by failing to take into account the period in detention.

Referable Period: For all of the time that offender was in immigration detention, they were so because of the request of the Commonwealth that they remain in Australia for the purpose of the prosecution. Offender’s detention was in relation to the offence for sentence. Although offender was in immigration detention for 2 reasons for part of the time, the CDPP request was a factor in that detention. The delay in the making and granting of the CDPP’s request should not operate to the detriment of offender. Offender’s period in immigration detention from 9 March 2022 should be treated as referable to the offence. Offender’s sentence should be backdated, pursuant to the general discretion in s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (operating via Crimes Act 1914 (Cth) s 16E). Evidence of hardship while so detained is not necessary for the backdating to occur.

Orders: Leave to appeal granted, appeal allowed, original sentence set aside. Offender resentenced to 3 years imprisonment to be released after 1 year and 8 months on recognizance (unchanged). The commencement date is backdated to take into account the 211 days offender was in detention. As this would result in a release date which has passed, backdating set to that offender is released the day after the orders of the Court.

September 1, 2023 CDPP v Kumar [2023] VCC 1577 — dishonesty offences — sentence — nature and circumstances — rehabilitation

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 2 counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s 134.2(1) of the Commonwealth Criminal Code and 2 counts of attempting to obtain a financial advantage by deception from a Commonwealth entity contrary to ss 11.1(1) and 134.2(1) of the Commonwealth Criminal Code.

Nature and Circumstances: The offending was very serious. It occurred over a lengthy period when offender lodged nearly 4,000 false podiatry claims with Medicare. Offender received nearly $180,000 and but for their own mistakes would have received a further $40,000 or thereabouts. Each of the counts forms part of a systematic and planned course of conduct consisting of multiple criminal acts of deception. Offender’s conduct was consistent and ongoing, and offender used their position of advantage as a registered health provider to abuse the Medicare system which relies on participants’ trust for its proper administration. Offender abused the trust of their patients who relied on them to submit honest claims in order to protect their entitlements. Overall, the objective seriousness is in the mid-range.

Rehabilitation: Offender’s voluntary reparation demonstrates a very high degree of contrition. It is 5 years since offending. In the meantime, offender has married, had a child, bought a home, and have re-established their podiatry practice without access to direct Medicare billing. Offender has no criminal record and is unlikely to reoffend. Incarceration now would necessarily interrupt offender’s rehabilitation, which they have substantially progressed, to the disadvantage of the community and offender.

Offender sentenced to 3 years imprisonment to be released immediately on recognizance of $2,000 to be of good behaviour for 3 years.

August 30, 2023 CDPP v Bailey [2023] VCC 1561 — carriage service offences — sentence — nature and circumstances — rehabilitation

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 1 count of making available child abuse material using a carriage service contrary to s 474.22(1) of the Commonwealth Criminal Code and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the COmmonwealth Criminal Code.

Nature and Circumstances: Count 1 relates to offender exchanging audio recorded messages that contained child abuse material. The two messages appear to have been brief. Count 2 involved 7 Interpol Baseline Category 1 videos and 4 Category 2 videos. The objective gravity of count 1 is relatively low. Offender’s conduct did not involve actual children, was constituted by words communicated over the telephone on two occasions, and occurred on a single day. Count 2 is more serious. The number of images offender possessed is relatively low and offender did not possess the child abuse material for further distribution or sale or profit. Count 2 is based on a singe day of offending.

Rehabilitation: Given offender’s age, good work history, and the absence of prior and subsequent convictions, consideration of specific deterrence and the protection of the community may be somewhat moderated. Offender’s prospects of rehabilitation are reasonable.

Offender sentenced to 8 months imprisonment to be released immediately on recognizance of $1,000 to be of good behaviour for 15 months.

August 30, 2023 D’Agostino v R [2023] NSWCCA 212 — drug importation offences — appeal against sentence — manifest excess — physical condition

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of conspiring to import a commercial quantity of border controlled drugs contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. Original sentence imposed 10 years and 6 months imprisonment with a non-parole period of 6 years and 3 months. The offender appealed on the ground that the sentence was manifestly excessive.

Manifest Excess: Offender submits that the evidence before the sentencing judge as to their medical condition was confined in both quantity and quality. Offender then relies on fresh evidence to demonstrate a significant deterioration in his physical and mental health and establish that they have received inadequate care in custody. Particularly for persons who may be serving long sentences, there is always a possibility of a deterioration in both physical and mental health whilst in custody, despite treatment within the Justice Health system. Merely establishing deterioration of a medical condition greater than anticipated by the sentencing judge would not ordinarily result in a successful appeal. Something more must be required. It would be necessary that an offender at least establish that the sentencing judge sentenced on the basis of a misapprehension of the facts. The sentencing judge accepted that offender was suffering from Meniere’s disease and accounted for that on sentence. Offender’s symptoms are now worse than at the time of sentence but that, of itself, is insufficient to warrant intervention.

Application to appeal out of time allowed. Leave to appeal refused.

August 30, 2023 Lazarus v The King [2023] NSWCCA 214 — carriage service offences — appeal against sentence — general deterrence — specific deterrence

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 4 counts of using a carriage service to transmit indecent communication to a person under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code, 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code, 4 counts of using a carriage service to cause child pornography material to be transmitted to a person contrary to s 474.19(1) of the Commonwealth Criminal Code, 3 counts of using a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code, and 1 count of using a carriage service to procure a person under 16 years of age contrary to s 474.26(1) of the Commonwealth Criminal Code. Additional carriage service offences were also taken into account under s 16BA. Original sentence imposed 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months. The offender appealed on the grounds that the sentencing judge did not determine the weight to be given to specific deterrence, and that the sentencing judge did not determine the weight to be given to general deterrence having regard to the offender’s mental condition.

General Deterrence: At first instance, offender submitted that they were ‘not a suitable vehicle for general deterrence based on [their] long-term low-grade dysthymia with anxiety and schizotypal autistic-like odd and excentric features’. The sentencing judge’s reasons did not address the parties’ submissions on this issue at all. The error has been made out.

Specific Deterrence: Not addressed because error made out on the general deterrence ground.

Re-sentence: Offender is remorseful and has a low-to-medium risk of reoffending. Offender has good prospects of rehabilitation and psychological treatment needs are unlikely to be met in custody. Those factors suggest that the weight to be given to specific deterrence is somewhat limited. However, considering the fact that offending took place over a period of 8 years and the likely absence of family support, specific deterrence still has a role to play. General deterrence remains a significant factor on sentence. There is some uncertainty about the true nature and extent of offender’s mental ill-health in this case. Offender’s mental health problems can only loosely be described as contributing to the offending conduct and, as such, their moral culpability may only be reduced to a certain extent. The weight given to general deterrence is tempered by offender’s mental health problems, but only to a limited extent. General deterrence remains an important factor in the sentencing of offender. The sentencing judge’s findings as to objective seriousness are adopted. Although offender has established error, no lesser sentence is warranted or should have been imposed by the sentencing judge.

Leave to appeal granted, appeal dismissed.

Recent Legislative Amendments


August 22, 2023 — August and September 2023 Minor Crimes Act Amendments

Crimes and Other Legislation Amendment (Omnibus) Act 2023:

Crimes Act 1914 section 16AA (Matters to which court to have regard when passing sentence etc.—Northern Territory offences) amended to correct the citation of the Aboriginal Land Act 1978 (NT) and the Heritage Act 2011 (NT).

(commenced 14 September 2023)

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2023:

Crimes Act 1914 section 16A(2AA)(c) amended to change ‘Aboriginal Land Grant (Jervis Bay Territory) Act 1986‘ to ‘Aboriginal Land and Waters (Jervis Bay Territory) Act 1986‘ following the change of name of that Act.

(commenced 22 August 2023)

January 1, 2023 — Crimes Amendment (Penalty Unit) Act 2022 (Cth)

Amendments to Crimes Act 1914 (Cth) Value of Penalty Unit The value of a penalty unit, as set out in s 4AA(1) of the Crimes Act 1914 (Cth), is amended to be $275. The previous value was $210.

December 9, 2021 — Crimes Amendment (Remissions of Sentences) Act 2021 (Cth)

Amendments to Crimes Act 1914 (Cth) Remissions of Sentences Repeals section 19AA which provided for federal offenders to have their sentenced reduced for ‘clean street time’ spent while released on licence or parole upon the revocation of the licence or parole where the relevant state or territory provided for such reductions. Amends ss 16(1)(b)(i), 19AB(3)(b), 19AC(4)(b), 19AF, 19AMA(3)(a), 19AR(4)(b), and 19AW(1)(f) to remove references to remissions and reductions which previously applied by operation of s 19AA. Adds new sub-s 19AW(3A) which requires judges to have regard to the time spent by the offender on licence or parole when fixing a new non-parole period under s 19AW.

June 22, 2020 — Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

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.

December 11, 2019 — Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth)

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.

December 7, 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

November 27, 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
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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